Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Blackwell v R [2012] NSWCCA 227 Hearing dates: 04/09/2012 Decision date: 01 November 2012 Before: McClellan CJ at CL at [1] McCallum J at [2] Garling J at [3] Decision: Appeal dismissed Catchwords: CRIMINAL LAW - Crown appeal - sentence - reckless infliction of grievous bodily harm, respondent pleaded guilty - respondent released from custody under supervision - whether Crown denied procedural fairness in factual finding on sentence after Judge alone trial - whether error in finding respondent had no knowledge of glass in hand - whether error in failing to have regard to use of glass as a weapon - whether error in giving discrete mathematical discount to remorse rehabilitation and unlikelihood of re-offending - whether error in giving discount of 13 per cent for plea - whether sentence manifestly inadequate Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Blackwell v R [2011] NSWCCA 93 Blackwell v Regina [2011] NSWCCA 93 Butters v R [2010] NSWCCA 1 Butters v R [2010] NSWCCA 1 R v MAK and MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Thompson; R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383 Reberger v R [2011] NSWCCA 132 Sayin v R [2008] NSWCCA 307 Spooner v R [2009] NSWCCA 247 Category: Principal judgment Parties: Shane Blackwell The Crown Representation: Counsel: J Pickering (Appellant) P Hamill SC (Respondent) Solicitors: Solicitor for Public Prosecutions (Appellant) William O'Brien & Ross Hudson Solicitors (Respondent) File Number(s): 2008/10926 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-02-13 00:00:00 Before: Cogswell DCJ File Number(s): 2008/10926 Judgment 1McCLELLAN CJ at CL: I agree with Garling J. 2McCALLUM J: I agree with Garling J. 3GARLING J: This is an appeal by the Crown pursuant to s 5D(1) of the Criminal Appeal Act 1912 in respect of a sentence imposed by the District Court of New South Wales (Cogswell DCJ) on 13 February 2012. 4The respondent, Mr Blackwell, had been convicted by Cogswell DCJ after a trial without a jury, of an offence of reckless infliction of grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900. 5The offence related to the fact that on 13 October 2007, at a hotel in Sydney, Mr Blackwell had assaulted a victim, whilst holding a glass, and seriously injured the victim. 6The maximum penalty for the offence was 10 years imprisonment. A standard non-parole period was fixed for the offence of 4 years. 7The sentencing Judge imposed an overall sentence of 4 years and 4 months imprisonment with a non-parole period of 2 years and 8 months to date from 3 August 2009. Procedural history 8The proceedings against Mr Blackwell have had a somewhat protracted procedural history. It is appropriate to recount this history. 9Mr Blackwell was arrested and charged on the day of the assault, 13 October 2007. Bail was refused. On 23 October 2007, he was granted bail subject to various conditions which, from time to time, were varied. He complied with those conditions. 10On 8 December 2008, Mr Blackwell was arraigned in the District Court before Hock DCJ and a jury of 12. On 18 December 2008, Mr Blackwell was found guilty by the jury of an offence, contrary to the provisions of s 33(1)(b) of the Crimes Act, of maliciously inflicting grievous bodily harm with intention to cause grievous bodily harm. The offence carries a maximum penalty of 25 years imprisonment with a non-parole period of 7 years. 11On 24 April 2009, Hock DCJ sentenced Mr Blackwell to imprisonment for a total term of 9 years, dating from 8 December 2008, with a non-parole period of 6 years. The non-parole period would have expired on 7 December 2014. 12Mr Blackwell appealed against his conviction and also sought leave to appeal against his sentence. On 23 August 2010, the Court of Criminal Appeal (Beazley JA, James and Hall JJ) heard his appeal. For the reasons that they published on 15 April 2011, the Court, by majority, allowed the appeal, quashed the conviction and ordered that there be a new trial: Blackwell v R [2011] NSWCCA 93. 13On 10 May 2011, the Supreme Court granted bail, and on 4 June 2011, Mr Blackwell entered into conditional bail. 14Mr Blackwell stood trial for a second time before Cogswell DCJ sitting without a jury starting 31 October 2011. Conditional bail continued throughout the trial. 15Immediately prior to being arraigned, on a count of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, counsel for Mr Blackwell indicated to the Court that he pleaded not guilty to that count but guilty of the statutory alternative to that count, namely, that he had recklessly inflicted grievous bodily harm on the victim, which is, an offence contrary to s 35(2) of the Crimes Act. 16This plea of guilty was not accepted by the Crown in satisfaction of the indictment, and the trial proceeded, on the more serious offence set out in the indictment. 17On 8 November 2011, Cogswell DCJ delivered his reasons and found that Mr Blackwell was not guilty of the offence of maliciously inflicting grievous bodily harm with intent so to do. However, he found him guilty of the statutory alternative offence of reckless infliction of grievous bodily harm. Conditional bail continued from 8 November 2011 until 3 February 2012, during sentencing proceedings when bail was not applied for and refused. 18On 13 February 2012, Cogswell DCJ sentenced Mr Blackwell to a total term of 4 years and 4 months imprisonment with a non-parole period of 2 years and 8 months. Cogswell DCJ took into account all of the time which Mr Blackwell had, prior to the sentence, been held in custody and determined that the appropriate commencement date for the offence would be 3 August 2009. Consequently, the non-parole period to which Mr Blackwell was sentenced by Cogswell DCJ expired on 2 April 2012, and the balance of the term will expire on 2 December 2013. 19Mr Blackwell remained in continuous custody until he was released on parole on 16 May 2012, and has since then been in the community, but subject to such supervision as the Probation and Parole Service have undertaken. The facts 20The offence was committed by Mr Blackwell in the early hours of 13 October 2007, at Scruffy Murphy's Hotel in Sydney. 21Mr Blackwell was at the hotel and had been so for some time. He was alone and he was drunk. 22The victim, Mr Daniel Ward, who was a police officer but who was off duty at the time, attended at Scruffy Murphy's Hotel, arriving there at about midnight or so. Prior to that time, Mr Ward had been at a bar in Darling Harbour with some of his colleagues, farewelling a fellow police officer. By the time Mr Ward arrived at Scruff Murphy's Hotel, he was affected by alcohol to a moderate extent. 23At or about 3.20am, Mr Ward and a number of his female colleagues were on the dance floor in the hotel. Mr Blackwell approached the group, attempting to try and dance with them. He was told that he was not welcome by the group, but he persisted. His approach was rebuffed by the female members of the group. 24He again persisted and Mr Ward stepped in, telling Mr Blackwell to leave. Mr Blackwell, who was holding a glass in his hand, struck out and hit Mr Ward in the face. 25As a consequence of that blow, Mr Ward was severely injured and has now lost the sight of one eye. He has facial scarring and has undergone surgery. His career in the police force is severely limited and he suffers from psychological damage with an adverse affect on his confidence, particularly when mixing socially. His social and recreational activities are restricted because he has only one eye. 26Mr Blackwell was arrested at the scene after being detained by security staff of the hotel. He was taken to the police station where, after being given some time to recover from his intoxication, he was charged with the present offence. 27At the trial before Cogswell DCJ, the trial Judge found that he was not satisfied beyond reasonable doubt that at the time Mr Blackwell struck Mr Ward, he had the requisite intention to cause grievous bodily harm. His Honour made that finding because he found that Mr Blackwell was behaving like a person who was very drunk and who was not adequately processing information about what was going on. His Honour said that the period of time involved in the assault was so short that he could not be satisfied that Mr Blackwell had the requisite intention. Crown's submissions on sentence 28Mr Blackwell gave evidence at the trial before Cogswell DCJ, but did not give evidence again on the sentence hearing. 29The Crown tendered a Pre-Sentence Report, the applicant's criminal history and a Victim Impact Statement. 30The criminal history record contained some relatively minor offences in the applicant's past. 31The Victim Impact Statement recorded, in some detail, the significant adverse effect which the assault had upon Mr Ward. 32The Pre-Sentence Report recorded that some years previously, at the age of 23, by reason of being involved in a motorcycle accident in which Mr Blackwell was injured and a close friend travelling as his pillion passenger was killed, he suffered post-traumatic stress disorder with accompanying depression, for which he had been treated with a two week in-patient session in Perth. Since then he had taken medication, but by the time of the pre-sentence report, having engaged in regular counselling sessions with a psychologist, he was not on medication any longer. 33It recorded that although he had been a heavy drinker in the past his consumption of alcohol was moderated by the time of the report. It recorded that he did not regularly drink nor was his drinking problematic. 34The report recorded that he expressed his regret and remorse for the offence. He said he accepted responsibility for what occurred. 35The Crown, in oral submissions, drew the attention of the sentencing Judge to the following: (a)the fact that the injury to Mr Ward was a substantial one; (b)that the plea entered by Mr Blackwell was entered late and deserved a discount which "...should be less than 20%, [and] should be in the realms of perhaps 10%"; (c)that the circumstances called for a full-time custodial sentence which would need to exceed the period of time that Mr Blackwell had already served by way of a non-parole period; and (d)the Crown accepted that there were special circumstances. 36The Crown provided the sentencing Judge with a series of statistics from the relevant database, and conceded that it would be appropriate to date the commencement of any further term of imprisonment to a date two and a half years before the sentence was imposed, to take account of the two periods of custody which Mr Blackwell had served. Mr Blackwell's submissions on sentence 37In support of the submissions, a number of documents were tendered for Mr Blackwell. 38The first was a report by Dr Olav Nielssen, a psychiatrist, dated 1 February 2012. Dr Nielssen expressed this opinion: "The diagnosis of depressive illness is made on the basis of Mr Blackwell's account of previously having the syndrome of depression, including frequent thoughts of suicide, and the supporting information from the medical reports. His condition responded to treatment with anti-depressant medication and counselling. The disorder was described as being in remission, on the basis of Mr Blackwell's presentation during the recent interview, when he did not appear to be pervasively depressed, and the history that his treating psychiatrist had not advised him to take antidepressant medication. The diagnosis of alcohol abuse disorder is made on the basis of the history of a pattern of very hazardous drinking, especially around the time of this offence, and the complications of alcohol abuse, including the episode of alcohol-related amnesia and the criminal charge. ... Mr Blackwell expressed his sorrow and remorse over his actions. He reported being very wary of the effects of alcohol and to have a completely different attitude to the use of alcohol. He was assessed to have good prospects for rehabilitation on the basis of his skills, prospects for employment and the support he enjoys from his family." 39As well, a report from Mr Tony Olech, a clinical psychologist, was tendered. The report was dated 31 March 2009, and summarised the ten consultations which Mr Olech had with Mr Blackwell. 40In broad terms, the report recorded the progress that Mr Blackwell had made with respect to his psychological and psychiatric states. It concluded with this summary with respect to the likelihood of future commission of crime: "A direct assessment of the likelihood of recidivism was not part of my therapy with Mr Blackwell ... Nevertheless, Mr Blackwell's willingness to engage in therapy and seek help for himself, indications that he was starting to make gains in therapy, his shock and feeling appalled at the possibility of committing such a crime, as well as his empathy for the victim are good indicators of a reduced risk of committing such a crime in the future. Re-engagement in his occupation as an off-shore diver, which he clearly enjoys, and a minimisation of alcohol use and abstinence from illicit substance use will also further reduce the risk." 41I note that after Mr Blackwell's release, following upon the successful appeal to the Court of Criminal Appeal, he did re-engage with his employment as an offshore diver, and in all other respects seemed to have resumed his life. He did not commit any further offences. 42Other documents were tendered supporting the existence of a post-traumatic disorder following upon the motor accident. As well, letters from Mr Blackwell's general practitioner, his parents and various friends, all assisted to identify a picture of Mr Blackwell which suggested that he would have a stable life upon release from custody, he would have family support and that, notwithstanding the particular offence, he had good prospects of rehabilitation. 43In oral and written submissions, the following matters were put on behalf of Mr Blackwell: (a)the plea of guilty merited a discount of 20 per cent on any sentence; (b)Mr Blackwell had no significant record of any previous convictions; (c)he was essentially a person of good character having regard to his limited prior criminal convictions, his work record and the references attesting to his good character; (d)he was unlikely to re-offend and had good prospects of rehabilitation; (e)he had demonstrated remorse. 44The submissions accepted that the offence had caused substantial injury and emotional harm. 45The submissions also accepted that a term of imprisonment was appropriate, but he submitted that, in light of all the circumstances, no further time was required to be served in custody. Remarks on Sentence 46The sentencing Judge recorded the following matters: (a)the fact of, and the contents of, the Victim Impact Statement. His Honour concluded that the injury was a very serious one and it had had a very significant personal impact on the victim; (b)that he regarded Mr Blackwell's previous record as being of little significance; (c)he was not satisfied beyond reasonable doubt, for the reasons which he had given in his judgment on Mr Blackwell's guilt, that Mr Blackwell knew that he had a glass in his hand when he punched the victim, Mr Ward; (d)Mr Blackwell was a highly regarded young man, with a lot of potential, who worked very hard; (e)he accepted that Mr Blackwell's prospects of rehabilitation were good, if not very good. His Honour concluded that Mr Blackwell was unlikely to re-offend; (f)his Honour found that it was appropriate to allow a discount with respect to the plea of guilty of 13 per cent. 47His Honour noted the statistics which had been provided to him, and in particular drew attention to the decision of Butters v R [2010] NSWCCA 1, which he found to be of some assistance. 48Ultimately, his Honour expressed his conclusion in this way: "The maximum penalty is 10 years imprisonment for this crime and I regard this as a serious example of this sort of crime, where the grievous bodily harm is grave and has had obviously a significant impact on the victim and his life. Without the features such as Mr Blackwell's remorse and his prospects of rehabilitation and the unlikelihood of him offending again and the fact that he has very few prior convictions, I would have thought that a sentence of 6 years imprisonment would be appropriate. But after those considerations I would regard a sentence of 5 years as being the appropriate one to impose in this case. I will reduce that figure by 13 per cent to reflect Mr Blackwell's plea of guilty." 49By reason of his finding of special circumstances, his Honour applied a ratio of about 65 per cent between the non-parole and parole period (though the ratio was referred to as 66 per cent), rather than the 75 per cent ratio mandated by the legislation. This finding of special circumstances, and the resulting ratio, is not challenged by the Crown. Grounds of appeal 50The Crown relied upon seven grounds of appeal, which were as follows; "Ground 1: His Honour denied the Crown procedural fairness in his finding that the matter did not involve the actual use of a weapon, pursuant to s 21A(2)(c) of the Crimes (Sentence Proceedings) Act as the respondent did not know he had a glass in his hand at the time. Ground 2: His Honour was in error in finding that the respondent did not know he had a glass in his hand when he was punching the victim. Ground 3: His Honour erred in failing to have regard to the use of a glass as a weapon as an aggravating feature under s 21A(2)(c) of the Crimes (Sentence Proceedings) Act. Ground 4: His Honour erred by failing to have regard to the higher moral culpability of an offence under section 35(2) as amended by the Crimes Amendment Act 2007 since R v Blackwell [2011] NSWCCA 93. Ground 5: His Honour was in error in giving a discrete mathematical discount (17%) to remorse, rehabilitation, and unlikelihood to offend, and that such an approach also involved double counting. Ground 6: It was an error to give the respondent a discount of 13% for the utilitarian value of the plea. Ground 7: The sentence is manifestly inadequate." 51It is convenient to deal with the first three Grounds together, because they are closely linked. Grounds 1, 2 and 3 - Knowledge of and use of a glass 52As I have recorded above, his Honour found in the course of his Sentencing Remarks, that he was not satisfied beyond reasonable doubt that Mr Blackwell knew that he had a glass in his hand when he was punching the victim, Mr Ward. He remarked that he came to that conclusion for the reasons that he had given in his judgment at trial. This was clearly a reference to the reasons which his Honour gave for concluding that he was not satisfied beyond reasonable doubt that Mr Blackwell had any intention to cause grievous bodily harm. Clearly, if Mr Blackwell knew he had a glass in his hand and intended to strike the victim's face with it, then the requisite intention for that offence against s 33(1) of the Crimes Act would have been established. His Honour was not so satisfied. 53In his judgment, Cogswell DCJ reviewed at length the evidence which told in favour of Mr Blackwell having the intent necessary for the offence against s 33(1) of the Crimes Act. He also reviewed the evidence telling against this inference. In so doing, he noted, highlighted and discussed the submissions made by the Crown Prosecutor and the senior counsel for the defendant. There is no doubt that in advancing their respective submissions, the Crown Prosecutor and senior counsel for the applicant, had a sufficient opportunity to be heard. They each exhausted their arguments. 54In the circumstances of this case, a finding that Mr Blackwell, by throwing a punch, or else his fist, at the head of the victim, whilst there was a glass in his hand, did not intend to inflict grievous bodily harm on Mr Ward, necessarily incorporates the question of whether he knew, and adverted to, the fact that there was a glass in his hand and that it would, if it came into contact with Mr Ward's face, as it did, cause grievous bodily harm. 55However, the Crown submits, in support of the first ground, that it was denied procedural fairness in the finding made by his Honour in his Remarks on Sentence, to the effect that Mr Blackwell knew that he had the glass in his hand, because it did not have any notice that such a finding was to be made, and hence had no opportunity to make any submissions to the Court about it. 56The basis of this submission was that in the written submissions by Mr Blackwell's counsel, he had conceded that "the offending involved the use of a glass..." which, together with circumstances, the subject of the submissions, constituted an aggravating feature in accordance with s 21A(2)(b) and (c) of the Crimes (Sentencing Procedure) Act 1999. 57The Crown submits that that submission was not qualified in any way, and accordingly, since the Crown accepted that characterisation involving an aggravating feature, there was no need for the Crown to address upon it. 58The Crown put its submission on the denial of procedural fairness in this way: "At no stage did his Honour give the Crown the benefit in the hearing of indicating that he intended to reject the respondent's acceptance that this aggravating feature should be found. His Honour had a duty of procedural fairness to the Crown to inform the Crown, in all of the circumstances ..., that he was thinking of rejecting the respondent's acceptance of the aggravating feature." 59I am not persuaded that the Crown was denied procedural fairness in the circumstances of this case. There are three principal reasons why this is so. First, as I have said above, the Crown had ample opportunity during the course of the trial to address the Court on whether it had proved the more serious offence against s 33(1)(b) of the Crimes Act. A central part of these submissions dealt with the question of whether Mr Blackwell intended to cause Mr Ward grievous bodily harm. These submissions necessarily included the question of whether M Blackwell knew and appreciated that he had a glass in his hand when he threw a punch at Mr Ward. His Honour rejected these submissions and gave ample reasons for so doing. 60Secondly, the written submissions of Mr Blackwell on sentence, which are said by the Crown to contain a concession that Mr Blackwell knew that he had a glass in his hand, do not bear out the construction for which the Crown contends. Senior counsel for Mr Blackwell did not refer specifically to that part of his written submissions, during his oral submissions, which preceded those of the Crown. However, on two occasions during those submissions, he did remind Cogswell DCJ that the offence was unintended on his client's part. 61Looking then at the written submissions, it is to be observed that generally speaking, the submissions draw attention to evidence and put argument about relevance by reference to the provisions of ss 21A(2) and 21A(3) of the Crimes (Sentencing Procedure) Act. Relevantly, the submissions read: "S21A(2)(b) and (c) - Violence and Weapon 59. The offending involved the use of a glass but occurred in circumstances where: (i) ... (vii) The action was a reflex/spur of the moment spontaneous reaction/action." 62The sections to which reference is made require a court to take into account as aggravating factors, whether the offence involved the actual and threatened use of violence or a weapon. Contrary to the Crown's submission, whilst there was a reference to the fact that the use of a glass was involved in the offending, the submissions make no reference to, nor any mention of, Mr Blackwell's knowledge about the glass. No concession can be found in the respondent's submissions. 63Thirdly, a finding of the kind which the Crown contends was expressly conceded, would have been contrary to the findings and reasoning involved in the sentencing judge's judgment on the question of whether the more serious offence of intending to cause harm had been made out. On sentence, the judge was obliged to sentencing Mr Blackwell on a version of the facts which was consistent with his first judgment. 64I would not uphold Ground 1. 65The second ground relied upon by the Crown with respect to the use of the glass, is one of discrete error, namely, that the sentencing judge erred in finding that Mr Blackwell did not remember that he had a glass in his hand when he punched Mr Ward. 66Whether such a finding was available on the evidence depends upon the drawing of an inference contrary to that for which Mr Blackwell contended, because Mr Blackwell had no recollection of the conduct at all. This is unsurprising because of the fact that he was well intoxicated. 67In addition to the witnesses, there was also available a CCTV record of the incident. That record is, it must be said, of very little assistance. It is indistinct. I found no real assistance from the viewing of the CCTV footage in attempting to access the state of mind of the applicant. 68There was sufficient evidence available to the sentencing judge for him to conclude that at the time Mr Blackwell threw the punch, which caused the injury, he was not aware that he was holding the glass. That evidence includes the nature of the punch itself, which was described by witnesses as, in effect, a spontaneous action or reaction; the fact that the glass was not first smashed and then shoved, with the broken edges leading, into the victim's face, rather than as the applicant described it in his evidence that as he was moving or falling backwards, his arm went forwards towards Mr Ward; the fact of, and the extent of, Mr Blackwell's intoxication, which the Crown Prosecutor accepted, in submissions to the Court, did not assist the prosecution case on intent, and the fact that the punch was not preceded by obvious aggression between Mr Blackwell and Mr Ward. 69In my opinion, having regard to this evidence, it cannot be said that his Honour fell into error in including the finding that he did. I would not uphold Ground 2. 70Ground 3 claims that the sentencing judge erred in failing to have regard to the use of the glass in Mr Blackwell's hand as constituting the use of a weapon which is an aggravating feature in accordance with s 21A(2)(c) of the Crimes (Sentencing Procedures) Act. This ground encompasses the same factual basis as the previous two grounds. If the sentencing judge had found, as on the Crown submissions he ought to have, that Mr Blackwell knew that he had the glass in his hand when he struck out and punched Mr Ward, then it was arguable that his conduct was aggravated by the use of a weapon. In light of the fact that I am not persuaded of any error in the sentencing judge's finding that Mr Blackwell did not know that the glass was in his hand when he punched Mr Ward, I am not persuaded that there was any error in failing to find the use of a weapon. I would not uphold Ground 3. Ground 4 - Higher moral culpability 71The Crown argues that as a consequence of the decision of this Court in the first appeal involving Mr Blackwell: Blackwell v Regina [2011] NSWCCA 93, that an offence against s 35(2) of the Crimes Act carries a higher degree of moral culpability than it was originally regarded as so doing. 72The Crown points to [82] in the judgment of Beazley JA, with whom on this point, James and Hall JJ agreed. Her Honour said: "Relevantly for present purposes, the statute provides for an offence of "recklessly [causing] grievous bodily harm". There is no definitional construct within the terms of the provision which governs its meaning. There is a requirement of recklessness, which I have addressed. That is, there must be a foresight of the possibility of something. The recklessness must cause something. That which it must cause is grievous bodily harm. In my opinion, there is no basis upon which that term can be read down to mean "some physical injury". Although the purpose of the amending legislation was to remove the 'archaic' fault element of offences done maliciously, there is a difference of substance between an intention to inflict some physical harm (the former section 35) and recklessness as to whether grievous bodily harm would be inflicted (section 35(2) as amended) as I have explained." 73The Crown submits that since the decision of this Court in Blackwell, it is essential that the offender have a level of realisation of the fact that the injury that they may inflict is one involving grievous bodily harm and proceed with the act anyway. The submission follows that there is a higher level of moral culpability involved in such conduct which must, of necessity, be reflected in the sentence to be imposed. 74It is then submitted that the sentencing Judge did not consider the consequences of the verdict in the light of this Court's decision in Mr Blackwell's earlier appeal. 75It is first necessary to observe that the prosecutor, when making submissions to the sentencing Judge, did not refer to this argument. He did not submit that the Judge ought form the view that there was a higher degree of moral culpability necessitated by the findings of this Court in the first appeal. The prosecutor made no reference at all to the question of the nature of the offence or the degree of moral culpability involved. The prosecutor's submissions touched upon, as I have adverted to earlier, the significance of the injury involved, matters subjective to Mr Blackwell, the extent of the discount for the plea of guilty, and the likelihood of successful rehabilitation and abstinence from alcohol. 76The prosecutor also addressed the objective seriousness of the offence by submitting "it is above the middle range of criminality ... when your Honour takes into account all the circumstances". 77It is difficult to see, from a reading of the Remarks on Sentence, how the present ground and the Crown's submission relates to any error in the sentencing Judge's Remarks. Since the matter was not addressed in submissions to him, there is no direct reference to it by his Honour in his Remarks. 78However, it is clear that his Honour was seized of the seriousness of the offence. He identified the maximum penalty, and that the offence carried a standard non-parole period. In so doing, his Honour said: "... Parliament has fixed a maximum sentenced of 10 years imprisonment to that crime. Not only that, Parliament regards the crime as so serious that it has fixed a standard non-parole period of 4 years imprisonment to the crime." Later in his judgment, the sentencing Judge said this: "The maximum penalty is 10 years imprisonment for this crime and I regard this as a serious example of this sort of crime, where the grievous bodily harm is grave and has obviously a significant impact on the victim and his life." 79I see no basis for a submission that, in some way incapable of being specifically identified, the sentencing Judge has failed to have regard to the appropriate level of moral culpability involved in an offence such as this. 80I would reject Ground 4. Grounds 5 and 6 - Errors in discounts 81In Ground 5 the Crown complains that the sentencing Judge was "in error in giving a discrete mathematical discount (17%) to remorse, rehabilitation and unlikelihood to offend ...". This submission refers to that part of the judgment which I have extracted at [48] above where his Honour, in determining an appropriate sentence, refers to the fact that had these subjective features not been present, a longer sentence would have been appropriate. 82I observe that his Honour did not specifically identify or calculate a 17 per cent discount in the manner in which this ground of appeal implies. This is a calculation made by the Crown. The reasoning to which the Crown points was part of the Judge's reasoning, which explained how he reached his conclusion that, having regard to all of the facts and circumstances, including both the objective seriousness of the offence and the subjective factors to which he was obliged to have regard, a sentence of 5 years imprisonment, before any discount for a plea of guilty, was the appropriate one. 83However, the Crown submits that this reasoning was in breach of this Court's approach in R v MAK and MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159, because it has, in effect, provided a double discount for the same features which were associated with the plea of guilty. 84The Crown points to [44] and [45] of that decision. 85However, particularly relevant in this case, is what the Court said in [41] and [42]. The Court said: "41 In any event it seems to us that events have moved on somewhat since Thomson and Houlton was decided. In particular, s 21A of the Crimes (Sentencing Procedure) Act has been enacted and requires the sentencing court to take into account specifically, as matters in mitigation of sentence, not only the plea of guilty but also that the offender is unlikely to re-offend and has good prospects of rehabilitation. In respect of the last two matters it is clear that remorse will be a major factor in determining whether those matters of mitigation exist: without true remorse it is difficult to see how either finding could be made. Although it is accepted that nothing in s 21A affects, or was intended to affect, the matters that were taken into account in determining the appropriate sentence before the section was enacted, the section does highlight the fact that there is an overlap between various sentencing considerations and has led this Court to be more sensitive to the fact of, or at least the appearance of, double counting either in favour of, or to the detriment of, the offender; see for example Elyard v R [2006] NSWCCA 43. 42. Rarely, if ever, at the present time does a sentencing court give a rolled up discount for all aspects of the plea of guilty. Yet this was a practice recognised by the Court when Thomson and Houlton was decided; see at [162]. In this Court's experience the usual practice now is to specify a discount only for the utilitarian value of the plea and then to take remorse into account as it is reflected in the mitigating factors to which reference is made in s 21A(3) of the Crimes (Sentencing Procedure) Act and other considerations such as the absence of any need for specific deterrence. If remorse does not give rise to any of those findings in mitigation of sentence, it is difficult to see its relevance, let alone why the sentence should be discounted in recognition of it." 86In this case, I see no reason to think that his Honour was not conscious of the correct approach as articulated in MAK, nor that he allowed any additional discount for the plea of guilty over and above the utilitarian value of that plea. As the Court says, in MAK, the existence of true remorse is typically a pre-condition to a finding of the existence of good prospects of rehabilitation and an unlikelihood of re-offending. 87I would not uphold this ground of appeal. 88Ground 6 complains that it was an error to give the respondent a discount of 13 per cent for the utilitarian value of the plea of guilty. 89The Crown submits that a discount of 13 per cent for the plea of guilty was not reasonably open to the sentencing Judge. In support of this submission the Crown points to the following factors: (a)no actual plea of guilty was ever entered, although the Crown accepts that an offer to plead guilty to the offence under s 35(2) of the Crimes Act, of which Mr Blackwell was ultimately convicted, was offered; (b)the offer to plead guilty to the defence came on the eve of the second trial, 4 years after the offence; (c)two trials and an appeal were conducted in the matter; and (d)in the first trial the respondent had denied he was even the person involved in the attack. 90I would reject the Crown's submissions in the circumstances of this case. The discount of 13 per cent was within the reasonable discretion of the trial Judge. It is to be recalled that the Crown Prosecutor who appeared on the sentencing hearing, submitted that the discount should be less than 20 per cent and "... should be in the realms of, perhaps, 10 per cent". 91There is no appreciable difference between the discount his Honour applied and the submission which the Crown Prosecutor made at the sentence hearing. 92But, importantly, each of the matters to which the Crown refers, and which I have set out, do not call for the conclusion that the trial Judge's determination of the discount was erroneous. 93In point (a) the Crown seeks to distinguish between the entry of an actual plea of guilty and the offer of a plea of guilty. What in fact occurred on the first day of the trial before Cogswell DCJ is this: at the start of the trial and before Mr Blackwell was formally arraigned, the prosecutor raised a number of "housekeeping" matters with the trial Judge. There was a general discussion of a number of matters which might affect the days upon which the Court should sit. When that discussion was concluded, senior counsel for Mr Blackwell said this: "Dunn: Your Honour, can I indicate one other matter of housekeeping, I will also indicate to my learned friend, I have instructions from my client to plead guilty to the reckless wounding charge under s 35(2). I have indicated that to the Crown and I indicate it to the Court. So that makes the only issue ... His Honour: It does. I guess I have to formally ask Mr Lungo does the Crown accept that offer so to speak? Crown Prosecutor: No it doesn't. His Honour: But the indication is noted. Dunn: Thank your Honour." 94Immediately thereafter Mr Blackwell was arraigned and pleaded not guilty to the charge under s 33(2) of the Crimes Act. 95In the circumstances of this case, where the trial was being conducted before a judge sitting alone, I can discern no reason in principle why the method by which Mr Blackwell's counsel on his behalf, indicated his desire to plead guilty to the reckless wounding charge, which he, no doubt, knew the Crown would not accept in discharge of the indictment, should be a relevant factor to consider in the percentage discount applied by way of a reduction in the discount ordinarily to be applied. It was obvious on the first day of this trial, at the commencement of it, for a trial that was listed for five to seven days, that Mr Blackwell was prepared to plead guilty to the charge of reckless wounding. 96It is correct that the offer to plead guilty was late. It came on the eve of, or at the start of, the second trial. No doubt that is one of the reasons why the percentage discount is towards the lower end of the range regarded as appropriate: see R v Thompson; R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [151]-[155]. 97The remaining two matters relied upon by the Crown, namely that there had been two trials and an appeal, and that at the first trial the respondent denied that he was the person involved in the attack, are not relevant, in the circumstances of this case, to the calculation of this discount, which related to the utilitarian value of the plea. 98It is sufficiently clear that his Honour was allowing a discount for the utilitarian value of the plea. It is not to be held against Mr Blackwell that his first trial resulted in a conviction which the Court of Criminal Appeal determined ought be set aside for error of law. The relevant issue is the stage of the proceedings at which the plea was offered. His Honour clearly had regard to this and gave it appropriate weight. 99I can detect no appellable error in the allocation by the sentencing judge of a discount of 13 per cent for the plea of guilty. 100This ground does not succeed. Ground 7 - Manifest inadequacy 101The Crown submits that the sentence was manifestly inadequate. It submits that the offence, commonly known as "glassing", is an offence that is becoming prevalent, particularly in factual circumstances similar to those in the appeal. It submits that it is an offence that calls for significant general deterrence, and that there was an inadequate sentence imposed in all of the circumstances. 102The Crown draws attention to the remarks of Howie J in Sayin v R [2008] NSWCCA 307 at [47], where his Honour said: "The Courts clearly must impose very severe penalties for such offenders, but of course within the limits afforded by the prescribed maximum penalty. In light of the fact that the maximum penalty for an offence under s 35(2), recklessly inflict grievous bodily harm, is now 10 years imprisonment, the increased maximum penalty should result in a marked increase in the penalty for offences of this nature." 103In addressing the seriousness of this particular offence, the Crown in its submissions pointed to the seriousness of the injury and the devastating career impact that the injury had on Mr Ward's future prospects in the NSW Police Service. As well, it pointed to the fact that the offence was unprovoked, the victim was turning away from Mr Blackwell when the blow was delivered, the offence was unjustified and there was a significant degree of violence involved in the assault even though it consisted of a single blow. As well, the Crown submitted that because the glass held in Mr Blackwell's hand had shattered at the time of the blow, there must have been considerable force used in the punch. 104In short, the Crown submitted: "His Honour took into account the extent of the injuries to raise the seriousness of this offence, however his Honour should also have had regard to the aggravating factors of the use of the glass as a weapon, the degree of violence in the single blow and the unprovoked nature of the attack." 105Three cases in particular are called to attention by the Crown in which the victim has lost the sight of an eye as a consequence of a glassing-type offence, where a breach of s 35(2) has been the relevant offence. The Crown submitted that these cases demonstrated the manifest inadequacy of the sentence imposed. 106The first of these is the matter of Butters v R [2010] NSWCCA 1, where a total term of 4½ years was imposed with a non-parole period of 3 years. Mr Butters also pleaded guilty at an early point in time and was given a 25 per cent reduction on his sentence as a consequence. His Honour was specifically referred to this decision, and the detail of it, in addresses by counsel for Mr Blackwell. The Crown Prosecutor agreed that it was a relevant decision. 107The second case is a matter of Reberger v R [2011] NSWCCA 132, where a stranger in the street was subjected to a glassing attack resulting in the loss of the sight of one eye. The offender pleaded guilty at an early stage and an allowance of 25 per cent was made with respect to that plea. On appeal, the sentence imposed was a total sentence of 3 years and 9 months with a non-parole period of 2 years and 3 months. 108The third of these cases is the decision of Spooner v R [2009] NSWCCA 247, where a total term of 4 years was imposed with a non-parole of 1 year and 10 months. Mr Spooner also received a 25 per cent discount for an early plea of guilty. 109By reference only to the cases cited by the Crown, none of which are, of course, precisely the same as this matter, I would be prepared to conclude that this sentence was at the lower end of the appropriate range. However, I am not at all positively satisfied that it was so low as to bespeak a failure of exercise of discretion on the part of the sentencing Judge. 110The issue of whether the sentence was manifestly inadequate needs to be considered according to the particular facts of each case, the provisions of s 21 of the Crimes (Sentencing Procedure) Act and the general principles of sentencing. Given that an offence against s 35(2) of the Crimes Act is a "result" offence, and the injury here is a particularly serious one, even when in combination with all of the other relevant facts and circumstances, there is a sound basis for the Crown's submission that the sentence was manifestly inadequate. 111There is no need for me to form a concluded view on this question because even if I were persuaded that the sentence was manifestly inadequate, I would not, in the exercise of the residual discretion of this Court, have upheld this ground of appeal. 112The history, which has been related above, and which as a consequence has resulted in the applicant being at liberty at the time this appeal is being heard, and in circumstances where on two occasions the applicant had been in custody on separate discrete periods, does not justify this Court, in the exercise of its discretion, imposing a sentence that would have the effect of returning the applicant to custody. 113Since being released, Mr Blackwell has been living and working on a farm in southwestern New South Wales. He has been subject to the supervision of the NSW Probation and Parole Service. Shortly after his release on parole, Mr Blackwell sought permission to return to Tasmania and live there with his family, and to work on their farm. This was not possible and, accordingly, he remains in New South Wales. 114There is no suggestion that Mr Blackwell has failed to comply with any of the requirements imposed on him by his parole. There is no suggestion that he has not been of good behaviour. According to the evidence tendered to the Court, his behaviour whilst on parole has demonstrated that the deterrent effect of his custody has, so far, succeeded. None of the material suggests that there is any need for him to be returned to custody. 115In light of all of this material and the history to which I have referred, I would not be prepared to exercise my discretion to re-sentence the applicant. 116Accordingly, I would not uphold this ground of appeal. Orders 117I would propose that the Crown appeal ought be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2012