Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kemp v R [2012] NSWCCA 281 Hearing dates: 5 December 2012 Decision date: 17 December 2012 Before: Simpson J at [1] Harrison J at [2] Adamson J at [3] Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - offences of recklessly causing grievous bodily harm in company and affray - whether sentence manifestly excessive - principles of consistency and parity Legislation Cited: - Crimes Act 1900 - Crimes (Sentencing Procedure) Act 1999 Cases Cited: - Callaghan v R [2006] NSWCCA 111 - GAS v The Queen [2004] HCA 22; 217 CLR 198 - Green v The Queen; Quinn v The Queen (2011) HCA 49; 244 CLR 462 - Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 - Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 - Lowe v The Queen [1984] HCA 46; 154 CLR 606 - Postiglione v The Queen [1997] HCA 26; 189 CLR 295 - R v Cotter & Ors [2003] NSWCCA 273 - R v Wright [2009] NSWCCA 3 - Siganto v The Queen [1998] HCA 74; 194 CLR 656 - Wong v The Queen [2001] HCA 64; 207 CLR 584 Category: Principal judgment Parties: Ryan Kemp (Applicant) Regina (Respondent) Representation: Counsel: I Nash (Applicant) H Wilson (Crown) Solicitors: Legal Aid Commission of NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2011/124028 Publication restriction: None Decision under appeal Citation: N/A Date of Decision: 2011-12-08 00:00:00 Before: Ellis DCJ File Number(s): 2011/124028 Judgment 1SIMPSON J: I agree with Adamson J. 2HARRISON J: I agree with Adamson J. 3ADAMSON J: The applicant pleaded guilty to an offence of recklessly causing grievous bodily harm in company, contrary to s 35(1) of the Crimes Act 1900 and one count of affray contrary to s 93C of the Crimes Act. 4Offences under s 35 of the Crimes Act have a maximum penalty of 14 years and a standard non-parol period of five years. Offences under s 93C of the Crimes Act have a maximum penalty of 10 years with no applicable standard non-parole period. 5The Sentencing Judge imposed the following sentences: (1)for the s 35(1) offence, a total sentence of 4 years and 6 months with a non-parole period of 2 years and 6 months, commencing 15 June 2011; (2)for the s 93C offence, a fixed term of 12 months commencing 15 June 2011. 6The applicant seeks leave to appeal against the severity of the sentence imposed for the s 35(1) offence. He takes no issue with the sentence for affray. The single ground of appeal is that the Sentencing Judge erred in his application of the principle of parity that resulted in disparity between the sentences that the applicant received and those imposed on his co-offenders. The facts 7The facts surrounding the offences were established by an agreed statement of facts and closed circuit television footage that depicted parts the incident from various angles. 8At approximately 2.45 am on 10 April 2011, the victims, Tim Thorton (Thorton) and Kent England (England) were waiting for a northbound train at Gosford Railway Station together with Phil Scaturchio (Scaturchio). 9 10At the same time the applicant was standing on an adjacent platform amongst a group of people including the co-offenders, Bradley Hendry (Hendry), Bryce Black (Black) and Shane Wilson (Wilson). This group started to argue with England. When the argument started, Thorton was seated approximately 10 metres from England. Scaturchio had left the area to purchase a drink. 11At 2.50 am the males in the applicant's group other than Sebastian La Rosa (La Rosa) made their way to the platform where England and Thorton were. La Rosa remained for the time being on the adjacent platform but continued to "abuse the victims." 12The applicant, the co-offenders and an unknown male approached England from behind and surrounded him. At about this time Thorton stood up and went towards England to help him. The Sentencing Judge described Thorton's actions in the Remarks on Sentence (ROS) in the following terms: "Mr Thorton is seen on the CCTV to approach in a reasonable manner, hands out in clearly what was an effort to placate the other young men". 13At this point La Rosa ran across the railway tracks and joined the applicant and the other co-offenders. Hendry punched England to the face causing him to fall backward. La Rosa and the applicant then moved towards England whilst the remaining four males surrounded Thorton. England got to his feet and was then punched by La Rosa in the face, causing him to fall to his knees, holding his face. La Rosa then began to kick England several times to the body. 14At the same time, Wilson grabbed Thorton by the T-shirt and spun him around. Hendry then punched Thorton in the stomach. Wilson grabbed Thorton again by the neck of his T-shirt, shoved him backward and punched him in the stomach. 15The applicant then ran up to Thorton, pushing one of his other attackers aside and punched him with a closed fist to the face. Thorton, who was taken unawares by the applicant, was thrown backward off his feet. He struck the back of his head when he landed on the concrete platform. The applicant continued running straight up the stairs and exited the platform, followed by Hendry. 16Thorton was knocked unconscious and was bleeding from the back of his head and ear. Wilson walked over to Thornton, who was lying on the ground unconscious, and slapped his chin. The unidentified male and Wilson then ran from the scene via the stairwell. La Rosa returned to his original platform. 17As a result of the assault Thorton was conveyed to Royal North Shore Hospital (RNSH) and was found to have a fractured skull, bleeding on the brain and loss of hearing in his right ear. 18A medical report dated 3 June 2011 from Dr Stuart Browne, a rehabilitation medicine specialist from RNSH's Brain Injury Clinic, described Thorton's injuries as follows: "Tim Thorton has suffered right ear deafness from this injury (referring to the assault). His vision was initially blurry, but has now improved. His balance continues to improve (he reported falling when getting out of bed). He sleeps excessively, although this has not changed compared to before his injury. He describes no new cognitive problems, although is aware of forgetfulness. He has not suffered any seizures. He reports normal smell ability... Tim Thorton has suffered a significant traumatic brain injury secondary to an assault about two months ago. His recovery has been positive so far, although there are ongoing issues: 1. deafness - right ear 2. Post-traumatic seizure risk 3. Depression - intercurrent 4. Chronic / neuritic pain (pre-TBI) 5. Mild disinhibition? 6. Balance impairment - mild 7. Unemployed." 19In a victim impact statement Mr Thorton described initial difficulties walking in hospital and other problems with balance, deafness in his right ear, his memory having "drastically deteriorated", blurry vision, nightmares, flashbacks and resulting effects in social situations. The applicant's antecedents 20The applicant, who was born in October 1992, was 18 at the time of the subject offences and 19 when he was sentenced in December 2011. 21He has a short but serious criminal history. At the time of the commission of the subject offences he had been on parole for assault occasioning actual bodily harm and wound person with intent to cause grievous bodily harm, which he had committed on 22 December 2009 and to which he had pleaded guilty. The Facts Sheet was in evidence before the Sentencing Judge (who as it happened had sentenced the applicant for these offences). 22The applicant had stolen the wallet of a youth he had known for a number of years. The victim contacted the applicant with a view to having the wallet returned. The applicant brought a knife with him to the assignation and threatened the victim with it. As the victim was trying to run away he tripped and fell backwards. The applicant stabbed the victim, who was using his hands to shield his face, in his left torso. The applicant asked the victim whether he wanted "any more" and the victim told him that he could keep the wallet. 23He was sentenced to 3 months imprisonment for the assault, which commenced on 23 December 2009 and 2 years' imprisonment commencing on 11 January 2010, consisting of a non-parole period of 9 months and a 15 month parole period. On 10 April 2011, when the subject offences were committed, he had been on parole for about 6 months, and had a further 9 months on parole. His parole would, but for its revocation have expired on 15 January 2012. 24The applicant's parole was revoked because of the subject offences. He was taken into custody on 15 April 2011 where he remained until he was sentenced on 8 December 2011. The applicant's subjective circumstances 25The applicant did not give evidence at the sentence hearing. The applicant's father, Alan Kemp, deposed to his subjective circumstances. A report of psychologist, George Dieter, dated 29 September 2011 was also tendered. 26Alan Kemp gave evidence that after being released on parole the applicant had been working with him in his building business as well as commencing his own business. He said his son had expressed some remorse for the offence and, in particular the severity of the victim's injuries, and that his son's attitude to work was better since his release from custody. He said that he expected the applicant would return to the parental home upon his release from custody and that his son's incarceration was emotionally trying. 27The applicant told Mr Dieter that he had a relatively normal childhood with his parents in their home at Pearl Beach. He had a particular interest in sports and played baseball and rugby league until the age of 16, when drug-taking started to interfere with that and other aspects of his life. He changed his peer group and "started to hang out with older peers, most of whom had dropped out of school and were 'just hanging around', as well as having been in trouble with police and the law." 28The report stated that the applicant had started to fall behind at school from Year 3 and ultimately did not complete Year 10. Instead he commenced working with his father. This change was said to have coincided with an increased use in marijuana that had commenced at the age of 14. The applicant reported that the habit "took over and controlled" his life. 29The report also noted that the applicant had been diagnosed with Attention Deficit Hyperactivity Disorder at the age of 16 which had been medicated with Risperdal and that whilst in custody he had been prescribed Lithium, a drug normally associated with the treatment of psychotic symptoms and Bipolar Disorder. A Personal Assistance Inventory was conducted by the psychologist who concluded that a Substance Abuse Disorder was a "possible" explanation for the applicant's behaviour. Applicable principles 30The relationship between the principles of consistency and parity can be distilled into the following propositions: (1)The goal of consistency in sentencing is to be obtained by a consistent application of the appropriate principles established by the legislature or otherwise applicable under the general law: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [77]-[78]. (2)Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect: Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 608, cited with approval in Green v R; Quinn v R (2011) HCA 49; (2011) 244 CLR 462 at [28] (Green & Quinn). (3)Consistency in the punishment of offences against the criminal law is a fundamental element in a rational and fair system of criminal justice: Green & Quinn. (4)In relation to co-offenders consistency finds expression in the parity principle. In relation to offenders who are not co-offenders, it finds expression in the principle of consistency in sentencing: see Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 at 588-589, cited with approval in Green & Quinn at [30], per French CJ, Crennan and Kiefel JJ and at [119]-[123], per Bell J with whom Heydon J agreed. 31The plurality (French CJ, Crennan and Kiefel JJ) in Green & Quinn explained the rationale for intervention by an appellate court, citing Gibbs CJ in Lowe v The Queen [1984] HCA 46; 154 CLR 606, who said, at 610: "...the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done." 32The plurality in Green & Quinn articulated the principles to be applied by an appellate court if it considered that there was an unjustified disparity, which include, relevantly, the following: (1)An appellate court has the power to reduce a sentence that is not manifestly excessive in order to correct a marked disparity with a sentence imposed on a co-offender. (2)The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. (3)An appellate court ought not intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise. (4)An appellate court deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. The applicant's argument 33The applicant submitted that the Sentencing Judge failed to have regard to the principle of parity. He placed particular emphasis on the following passage from Quinn, at [30], which is, accordingly, set out in full: "In Lowe v R ([1984] HCA 46; 154 CLR 606) and in Postiglione v R ([1997] HCA 26; 189 CLR 295) this court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v R ([2010] NSWCCA 60; 77 NSWLR 540), there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged." 34The applicant contended that, since the question was one of substance rather than form, the Sentencing Judge ought to have had regard to the fact that the applicant and his co-offenders could have been charged with the joint enterprise of assaulting the victim. He submitted that had that charge been laid and proved, then the co-offenders and the applicant would have been convicted of the same offence. Although the applicant accepted that, even in that event, it did not follow that they ought receive the same sentence, he contended that the substantive identity of offence ought to have been given greater weight on the basis of the parity principle. 35The disparity principally relied upon is that between the sentence imposed on the applicant and the sentence imposed on La Rosa. Reasons 36The material before the Sentencing Judge included the statement of facts for each of the co-offenders and the sentences which each received. Each was dealt with in the Local Court. Each pleaded guilty. 37The transcripts of their sentence hearings, which were available to this Court, were not available to his Honour, but I do not consider that anything turns on that. The sentences imposed on the co-offenders were as follows: Co-offender Charges Maximum penalty on indictment Maximum penalty for summary offence Sentence Wilson Common Assault 2 years 12 months Section 9 bond for 18 months + $600 fine Common Assault 2 years 12 months CSO 150 hours Hendry Common Assault 2 years 12 months Concurrent CSOs 200 hours Common Assault 2 years 12 months Black Affray 10 years 2 years Section 9 bond for 18 months La Rosa Assault occasioning actual bodily harm 5 years 2 years Concurrent terms of 3 month non-parole period and 9 month balance of term commencing 26 September 2011 Affray 10 years 2 years 38The facts sheets in respect of each offender were generic and accordingly substantially similar, although the charges were different. 39Black, who was born in July 1992, had no relevant prior history and was charged only with affray. Wilson, who was born in September 1990, had no relevant prior history and was sentenced on the basis that he had punched Thorton in the stomach when he was upright and slapped his chin when he was lying unconscious on the ground. Hendry, who was born in August 1991, had no relevant prior history and was sentenced on the basis that he punched England in the face and Thorton in the stomach. La Rosa, who was born in March 1990, had a relevant prior history of violent offences but was not on parole or conditional liberty when he committed the subject offence. He was sentenced for assault occasioning actual bodily harm to England and affray. 40It is evident from the comparison that the applicant's sentence was more severe than those imposed on his co-offenders. The question arises whether the disparity was a result of a failure on the part of the Sentencing Judge to correctly apply the principle of parity or whether the difference was a product of the greater objective criminality of the applicant's conduct, of the fact that the subject offences were committed while he was on parole for a violent offence and of his subjective circumstances. The former would indicate error; the latter would amount to a proper exercise of the sentencing discretion. 41The following passage in the ROS reflects the Sentencing Judge's consideration of the sentences imposed on the co-offenders: "The Court has been provided with a set of facts in relation to four of the other young men, all of whom were dealt with in the Local Court, none of whom were charged with this particular offence. Each of those statements of fact relative to each individual also includes the criminal history of the respective offender. Parity does not strictly apply because those matters were dealt with in the Local Court and one of those individuals faced a s 35 'in company' count. In my view, the fact that the offender was already on parole for a serious act of violence which had brought him before me here at Gosford District Court when he was aged seventeen means that his subjective material further differentiates him from the others notwithstanding that one of the other four, Mr Larossa [sic], also has a criminal history involving violence. It appears to me that Mr Larossa [sic] was rather fortunate to receive a sentence of twelve months imprisonment with a non-parole period of three months. Nevertheless, when one looks at the video, it was this offender that escalated the violence significantly by striking the victim in the way and in the circumstances which he did." [Emphasis added]. 42This passage shows that the Sentencing Judge had regard to the relative objective seriousness of the applicant's conduct by comparison with his co-offenders and to the fact that the applicant committed the subject offence while on parole. Although his Honour said that the parity principle did not strictly apply, I consider that this observation ought be understood as an acknowledgement that each of the offenders had been involved in the same criminal events, although none apart from the applicant had been charged with an offence under s 35 of the Crimes Act and none but the applicant had been dealt with by indictment. His Honour's consideration of the need to differentiate the subjective material pertaining to the applicant from that of the other offenders is also, in my view, a powerful indication that he considered that the respective criminality of the participants ought be addressed in a holistic way to ensure both consistency and parity. 43I consider that his Honour gave adequate consideration to the sentences imposed on the co-offenders when sentencing the applicant. 44Further, even though it would appear to have been open for the Crown to charge the applicant and each of the co-offenders with a joint illegal enterprise, the acts of each individual participant would have been a material consideration in sentencing each offender, on the assumption that each would either have pleaded guilty or been found guilty. As James J, with whom McClellan CJ at CL and Adams J agreed, said in R v Wright [2009] NSWCCA 3 at [28]-[29]: "If this conduct by other persons was done in the carrying out of a joint criminal enterprise to which the respondent was a party, then the respondent was to be sentenced for that conduct under the principle that a party to a joint criminal enterprise is to be sentenced for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise R v Cotter & Ors [2003] NSWCCA 273 especially per Carruthers AJ at 90. However, the respondent was not necessarily to receive the same punishment as would have been appropriate if he had himself personally performed all of those acts. In each case it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person who actually performed the criminal act. See the discussion by the High Court in GAS v The Queen (2004) 217 CLR 198 especially at 209 [23]. 45On this analysis, the objective seriousness of what the applicant did was substantially greater than that of his co-offenders. Although they, too, were participants in the assault of Thorton and England, it was the applicant who delivered the blow which knocked Thorton to the ground and caused him to suffer grievous bodily harm. The Sentencing Judge was not only entitled, but obliged, to have regard to the extent of the harm to the victim: Siganto v The Queen [1998] HCA 74; 194 CLR 656 at [29]; s 21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999. 46That the applicant assaulted Thorton when Thorton's capacity to withstand attack had already been compromised by others in my view increased, rather than ameliorated, the relative objective seriousness of his conduct. 47It is also significant that the applicant committed the offence when he was on parole for another violent offence for which he had served a custodial sentence. The Sentencing Judge had a discretion to backdate the commencement of the sentence where parole in respect of an earlier offence is revoked by reason of the commission of a further offence: Callaghan v R [2006] NSWCCA 111. His Honour exercised the discretion substantially in the applicant's favour by backdating the sentence for the subject offences to 15 June 2011 which took account of all but one month of the loss of parole. It would have been open to his Honour to commence the sentence for the subject offences on 15 January 2012, when the term of the earlier sentence would otherwise have expired. The favourable exercise of discretion by the Sentencing Judge is a factor to be taken into account in considering whether the principles of parity have been correctly applied. 48The other material matter is that the applicant and the co-offenders were not mature men. They were on the cusp of adulthood. When sentencing offenders in that category, a sentencing judge might impose a non-custodial sentence on a first offender in the hope that it will have a salutary effect on the offender's future conduct and that he will not re-offend. However, when an offender comes before a court for sentencing for a similar offence in respect of which a lighter sentence has been imposed in respect of a prior offence, it is a proper exercise of the sentencing discretion to impose a harsher sentence, particularly when the offender is still on parole for the earlier offence. 49These circumstances explain why the Sentencing Judge was evidently concerned about the leniency apparently extended to La Rosa, which appeared to him to be at odds with the respective criminality in light of La Rosa's prior criminal record. However, although La Rosa had a prior criminal record which included offences of violence he was not on parole or any other form of conditional liberty at the time of the subject offence. His Honour was careful to record that the applicant had not kicked Thorton when he was down. I take this to be a distinction which the Sentencing Judge considered ought to be recorded because of the apparent similarity between La Rosa's conduct and the applicant's, although the harm to the respective victim was, different materially. 50That his Honour commented on the relative leniency of La Rosa's sentence as compared to the one he proposed to impose on the applicant demonstrates a concern, rather than a disregard, for the principles of parity and consistency. 51The Sentencing Judge appears to have considered that the sentence imposed on La Rosa was, if anything, lenient. I do not consider the sentence imposed on La Rosa to be excessively lenient although I do not disagree with the Sentencing Judge's observation that La Rosa was, in the circumstances, fortunate. 52Sentencing requires a judgment to be made not only of relative criminality and subjective circumstances, but also of the relative consequences of actions. On one view there is a similarity between the act of the applicant in punching Thorton in the head and the act of Hendry and La Rosa doing the same to England. It could be argued that La Rosa's action was more serious because he subsequently kicked England when he was down. There is, however, a significant distinction: it was the applicant's blow that caused grievous bodily harm to Thorton. While it may have been a matter of chance which blow on which victim had that effect, the actual consequences of the offender's actions are, for reasons given above, a material consideration in sentencing. That Thorton suffered really serious injury as a result of the applicant's blow is, in my view, sufficient to justify the greater sentence imposed on him, particularly when compared with La Rosa's sentence. 53I propose the following orders: (1)Grant leave to appeal. (1)Dismiss the appeal. ********** 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: 17 December 2012