Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Brown v R [2013] NSWCCA 309 Hearing dates: 25 October 2013 Decision date: 09 December 2013 Before: Hoeben CJ at CL at [1] Johnson J at [2] Latham J at [3] Decision: Application for extension of time within which to seek leave to appeal sentence refused. Catchwords: CRIMINAL LAW - application for extension of time to seek leave to appeal sentence - plea of guilty - robbery in company with infliction of grievous bodily harm - application for legal aid previously refused - legal aid provisionally granted on basis of Muldrock ground - whether refusal of application would result in substantial injustice to applicant - whether trial judge adopted two-stage approach to sentencing and gave determinative weight to standard non-parole period - whether trial judge erred in assessment of objective gravity - no Muldrock error - no House v The King error - no error in characterisation of level of injuries - application refused Legislation Cited: Crimes Act 1900 Cases Cited: Abdul v R [2013] NSWCCA 247 Bou-Antoun v R [2013] NSWCCA 305 House v The King [1936] HCA 40; 55 CLR 499 Muldrock v The Queen [2011] HCA 39 ; 144 CLR 120 Category: Principal judgment Parties: James Brown - (Applicant) Regina - (Crown Respondent) Representation: Counsel: M King - (Applicant) N Noman SC - (Crown Respondent) Solicitors: Legal Aid NSW - (Applicant) Solicitor for Public Prosecutions - (Crown Respondent) File Number(s): 2009/00193144 Decision under appeal Date of Decision: 2010-03-04 00:00:00 Before: Berman DCJ File Number(s): 2009/00193144 Judgment 1HOEBEN CJ at CL : I agree with Latham J. 2JOHNSON J : I agree with Latham J. 3LATHAM J : The applicant, James Leon Brown, seeks an extension of time within which to seek leave to appeal against a sentence imposed upon him after a plea of guilty to robbery in company with the infliction of grievous bodily harm, contrary to s 98 of the Crimes Act 1900. The offence carries a maximum penalty of 25 years' imprisonment with a standard non-parole period of 7 years. 4Judge Berman SC imposed a non-parole period of 4 years and 6 months with a balance of term of 2 years and 6 months on 4 March 2010. The applicant filed a notice of intention to appeal on 18 March 2010 and an application for legal aid on 28 July 2010. On 7 December 2010 the application was refused on the basis that the Legal Aid Commission considered the appeal did not have reasonable prospects of success. 5The applicant's file was reactivated by Legal Aid pursuant to the review of cases initiated by the decision of the High Court in Muldrock v The Queen [2011] HCA 39 ; 144 CLR 120. 6This is yet another application which asserts the adoption of a two-stage approach to sentencing and the attribution of determinative significance to the standard non-parole period, contrary to Muldrock, in addition to a ground alleging error in the assessment of the objective gravity of the offence. For reasons which I have expressed elsewhere (see Bou-Antoun v R [2013] NSWCCA 305), it is difficult to comprehend why an extension of time ought be granted in circumstances where the latter ground was always available, yet considered lacking in merit when the applicant previously sought to appeal. 7The offence was committed by the applicant in company with a co-offender. On 24 November 2008 the offenders attacked a 36-year-old male who was walking in his local neighbourhood. The judge noted the fact that earlier that evening, the applicant and his co-offender had both been drinking. The applicant had also ingested Xanax. The applicant and his co-offender decided to obtain money for the purpose of purchasing heroin by robbing someone. 8The offence was described by his Honour in the following terms :- The victim .. first saw the two men on the other side of the road. He was later pushed from behind, he fell forward and landed on his chest in a doorway. He tried to look around but was hit to his left eye. One of the two men, it does not matter who, grabbed his neck and pushed his face into the ground. His jacket was pulled over his head so he could not see anything. He was thus in a rather helpless position. Despite that he was kicked a number of times. One of the men made their intentions clear when he said "I want your wallet". Very sensibly [the victim] handed it over. It contained a number of things to which he was entitled, credit cards, personal papers, some money, a drivers licence and a gold souvenir coin. The offenders were not satisfied however. They wanted his PIN number so that they could withdraw money from his bank account. He refused. The offenders responded by pulling him backwards and forwards and yelling "give us the PIN number or I will kill you". At this stage [the victim], hoping to minimise his loss, gave the offenders an incorrect number. Unfortunately for him the offenders had other ideas. The [co-offender] stayed with the victim while [the applicant] left the vicinity. Bank records show that on a number of occasions this [applicant] attempted to get the money out of [the victim's] bank account. The attack upon [the victim] had woken someone nearby from her sleep. In fact what woke her was [the victim] crying out in pain. She looked out and saw [the victim] curled up in a foetal position on the ground being punched and kicked. She thus saw [the victim] in a helpless position. She arranged for the police to be called. In the meantime [the co-offender] made further demands on [the victim]. While [the applicant] was off trying to access [the victim's] bank account [the co-offender] asked for [the victim's] watch, and .... demanded that [the victim] hand over his wedding ring. He was also required to hand over his mobile phone. At this stage [the applicant] returned, telling [the co-offender] that [the victim] had given the wrong PIN number. The offenders had not given up however. They responded by pulling his jacket over his head once more so that again he couldn't see anything. They picked him up off the ground and began dragging him before they pushed him in the back so he fell forward and hit the ground facedown. Once more they threatened to kill him saying "give us the right number or I will kill you". By now [the victim] had had enough so he gave them the correct PIN number. This time [the co-offender] left to access the bank account leaving [the applicant] behind. The [applicant] was not satisfied with the violence he had already inflicted, instead he kicked him again and held him down with his foot on his neck, in effect holding [the victim] captive for 10 minutes. The eyewitness said that at this stage every time [the victim] tried to get up the man, who we now know was [the applicant], would kick him. Fortunately police arrived preventing any further harm being caused to [the victim] although he had already suffered significant harm indeed. 9The judge went on to record the fact that the victim remained in hospital for three days, suffering a fractured collarbone, fractured cheekbone and significant bruising to his body. The victim suffered financially, because of his absence from work and his resumption on light duties, in addition to physical and emotional suffering. 10The judge noted the existence of the standard non-parole period and the fact that it was not of direct application because of the plea of guilty. His Honour observed that it remained as a guidepost to the sentence. That was the sum total of the references to the standard non-parole period within the remarks on sentence. 11His Honour found that the offence was "significantly above the middle of the range" of objective gravity. His Honour observed that there ought be "a substantial component of general deterrence". Next, the judge referred to the submission of the applicant's legal representative that the applicant ought receive the same sentence as that imposed upon the co-offender and that the Crown did not submit to the contrary. A finding of special circumstances was made on the basis of the applicant's age, his youth and his need of supervision in the community. Finally, sentence was pronounced in identical terms to that imposed upon the applicant's co-offender. 12Whilst acknowledging that the judge correctly referred to the standard non-parole period as a guidepost and that "the structure of the sentencing decision is not such that the judge commenced with an assessment of the objective seriousness of the offence and then turned to subjective factors", the applicant submits that a conclusion that a two-stage approach to sentencing was in fact adopted, and that the standard non-parole period was given determinative significance, may be drawn from the combination of three factors : that the objective seriousness of the offence was classified by reference to the middle of the range, the "neatness of the mathematics" and the heaviness of the sentence. 13The first two factors have already been the subject of argument in this Court in Ngati v R [2013] NSWCCA 307. I repeat what I said in my judgment (with reference to the applicant's submissions in this case) at [18] - [20] (with the agreement of Hoeben CJ at CL and Johnson J) :- With respect, this submission invites the Court to draw an inference that is not supported by the judge's comprehensive reasons. At its heart, it seeks support from matters external to the reasons and relies upon retroactive analysis. There is no indication anywhere in the remarks that the judge considered it mandatory to determine where the offence fell in the notional range. Considering the offence in accordance with Way does not, of itself, support that conclusion. There is nothing in Muldrock which prohibits a court from determining whether an offence falls within the mid range of objective gravity, rather the prohibition lies in adopting a two-stage approach to sentencing, that is by commencing with the standard non-parole period and oscillating around that figure, depending on the presence or absence of aggravating and/or mitigating factors. The applicant's reference to the "neatness of the mathematics" derives from Bolt v R [2012] NSWCCA 150. However, the submission is, for my part, inscrutable. The applicant commences by noting that the notional starting point, prior to the application of the discount for the plea of guilty (25%), was ["a head sentence of 9 years and 4 months. Applying the statutory ratio .. would result in a non-parole period of 7 years - that is, the standard non-parole period."] ....................................................................... There is nothing "neat" about these calculations. ........... It is of no moment that the judge did not specify [the notional starting point]. His reasons disclose an application of the discount for the plea of guilty, and a consideration of all the relevant factors, objective and subjective, before determining [that it was appropriate to impose the same sentence as was imposed upon the co-offender]. Given that the standard non-parole period is 7 years, that the offence was considered one falling [significantly] above the mid range and the non-parole period actually imposed was [4 years and 6 months], it is difficult to discern how the standard non parole period had "determinative significance." 14I reject the contention that the sentence imposed upon the applicant is heavy. Even if it were capable of that description, it does not of itself or in combination with other features of the sentencing exercise demonstrate Muldrock error. 15The applicant recognises that the finding of objective seriousness ought not be interfered with unless the judge erred in a House v The King sense (House v The King [1936] HCA 40; 55 CLR 499). The applicant submits however that the judge's discretion miscarried because of a mischaracterisation of "the extent of the injuries suffered, and/or having little or no regard for the low level of injuries suffered". The extent of this mischaracterisation is apparently his Honour's description of the injuries as "substantial" when compared with other instances of this offence resulting in the infliction of more serious injuries. 16The applicant also acknowledges that the gravity of the offence falls to be determined by reference to the length of time over which the offence occurred, the callousness of the violence inflicted, and the threats that were made to the victim in addition to the use of violence. It is then submitted that because the injuries occasioned to the victim were "towards the lower end of the scale of grievous bodily harm" that the judge's assessment of the objective seriousness of the offence as significantly above the middle of the range was not open to him. The applicant then goes on to compare the instant offence with other cases of robbery in company causing grievous bodily harm. 17In my view, there is no useful purpose to be served by comparing the extent of the injuries inflicted in other cases with the instant case, by reference to findings with respect to the objective gravity of those other offences. The assessment is an evaluative one, which takes account of a variety of objective features (which the applicant himself recognises). The applicant's undue emphasis upon one of several factors seeks to isolate that factor as the critical one in the assessment of objective gravity. For my part, fractures to the collarbone, cheekbone and bruising of the body warrant the description "substantial". 18There is no merit in either ground of this application. No substantial injustice is occasioned to the applicant by a refusal to intervene : Abdul v R [2013] NSWCCA 247. I propose that an extension of time within which to seek leave to appeal be refused. ********** 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: 09 December 2013