Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Brown v R [2014] NSWCCA 215 Hearing dates: 02/09/2014 Decision date: 13 October 2014 Jurisdiction: Criminal Before: Beazley P at [1] R A Hulme J at [2] Garling J at [3] Decision: (1) Application for leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW - appeal - sentence - one offence - recklessly causing grievous bodily harm contrary to Crimes Act 1900, s 35(2) - guilty plea - head sentence of 4 years and 10 months - non-parole period of 3 years and 4 months - CRIMINAL LAW - appeal - sentence -whether trial Judge erred in the way he used the appellant's prior criminal record - antecedent criminal history - factor which may be taken into account in determining sentence to be imposed - Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 - CRIMINAL LAW - appeal - sentence - whether trial Judge erred in characterising the level of objective seriousness as being within the mid-range for offences of this type - objective serious not ordinarily susceptible of interference on appeal - no discrete error - objective circumstances taken into account - characterisation of facts challenged - CRIMINAL LAW - appeal - sentence - whether sentence manifestly excessive - whether the sentence was unreasonable or plainly unjust Legislation Cited: Crimes Act 1900 Cases Cited: Aslett v Regina [2006] NSWCCA 360 Barbaro v The Queen, Zirillli v The Queen [2014] HCA 2; (2014) 305 ALR 323 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Hili v The Queen, Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 Mulato v Regina [2006] NSWCCA 282 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 Veen v The Queen (No.2) [1988] HCA 14; (1987 - 1988) 164 CLR 465 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Category: Principal judgment Parties: Paul Wayne Brown (Applicant) The Queen Representation: Counsel: A Miller (Applicant) S Dowling SC (Crown) Solicitors: William Whitby Lawyers (Applicant) Director of Public Prosecutors (Crown) File Number(s): 2012/368228 Decision under appeal Date of Decision: 2013-10-18 00:00:00 Before: Frearson DCJ Judgment 1BEAZLEY P: I agree with Garling J. 2R A HULME J: I agree with Garling J. 3GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court by his Honour Frearson DCJ, on 18 October 2013. 4The applicant had pleaded guilty on 29 July 2013, to one offence contrary to s 35(2) of the Crimes Act 1900, of recklessly causing grievous bodily harm to Monique Latini. 5The maximum penalty for the offence was 10 years imprisonment. A standard non-parole period of 4 years was prescribed. 6On 18 October 2013, the sentencing Judge imposed a term of imprisonment of 3 years and 4 months by way of a non-parole period, with a balance of term of 1 year and 6 months. He ordered that the term of imprisonment commence on 26 November 2012. Facts 7An agreed Statement of Facts was tendered to the sentencing Judge. A brief summary of the relevant facts follows. 8The victim, Ms Latini, and the applicant, had, at the time of the offence, been in a domestic relationship for six years. 9On 7 October 2011, a little over 12 months prior to the offence in question, an apprehended violence order had been granted against the applicant at the Wollongong Local Court. The victim, Ms Latini, and her two children, were named as protected persons under that order. 10On 10 November 2012, the applicant and the victim went out for dinner together and later attended a rodeo held at a stadium in Wollongong. During the evening they both consumed alcohol and argued. After the rodeo finished, they returned to the applicant's home at about 11pm. Both were affected by alcohol. 11After arriving at the applicant's home, he and the victim continued their argument. During the course of the argument the applicant asked the victim to leave. She did not, and the argument continued. 12The applicant lost control and punched the victim on both sides of her face with his fists a number of times. The victim felt that her left eye area had been badly injured, and thought she was going to lose consciousness. Later, the applicant offered her some headache tables and anti-inflammatory tablets. 13The following morning the applicant drove the victim to a medical centre and instructed her to tell the doctor that it was not him that inflicted the injuries. The victim was referred for x-rays and to the Wollongong Hospital for further examination. 14Upon examination, it was found that the victim suffered facial numbness, swelling and bruising to her face. X-rays and scans showed that she had suffered fractures to her left lateral maxillary antrum (upper jaw), the zygomatic arch (cheek bone) - which fracture extended to the upper left inferior orbital margin (the eye socket). As well, she had tenderness to the right side of her face. 15She was referred for surgery. The surgery required was an open reduction internal fixation of the left zygomatic fracture with the insertion of a 1.5mm plate. Proceedings on Sentence 16A Victim Impact Statement was read. The victim set out the significant effect that the offence had had upon her. 17A Pre-Sentence Report, which had been prepared with respect to the applicant, was also tendered. The applicant had a considerable prior criminal history. He had been the subject of prior management by Community Corrections, a part of Corrective Services. The report in part dealt with that prior interaction. 18The Pre-Sentence Report noted that the applicant had been educated to School Certificate level and, at the time of his arrest, had been working as a general hand at a hotel where he had been in employment for about two years. 19It recorded that the applicant had reported long-term untreated alcohol abuse, which had not been managed successfully. The applicant gave an account of what occurred and, having agreed with the police facts, said that alcohol was a significant contributing factor to the offence. He apparently also told the author of the Pre-Sentence Report that: "... the victim was a very jealous person and this also contributed to the incident". 20The Pre-Sentence Report assessed the applicant as being at a medium risk of re-offending. 21It concluded with this assessment: "The offender has displayed through the execution of his current offences and a number of historical violent offences, an inability to manage his own emotions. He has displayed a lack of insight into the role of alcohol in both his historical and current offences. In particular he tends to blame the victim for his record of violence towards her, and by doing so is indicating that he does not accept full responsibility for his domestic violence. The offender's statements during this assessment committing to any identified program superficially appear to be reasonable. However, he has in the past failed to attend such identified programs. Additionally Mr Brown fails to see any difficulty between his untreated alcohol abuse issues and working in the role of a general hand at [a] hotel." 22The applicant gave evidence himself, and tendered a report from Ms Duffy, an expert psychologist. There were also a number of personal references tendered. 23Ms Duffy recorded her opinion in a report dated 9 September 2013. The report contains a comprehensive account of the applicant's personal background, and his educational and work history. The applicant gave evidence that his history and background had been given accurately to Ms Duffy. 24The applicant told Ms Duffy that he had always experienced feelings of insecurity and had been easily roused to jealousy, and that these emotions were prominent in his relationship with Ms Latini. Of his emotions and relationship with the victim, he said: "Mr Brown acknowledged that his emotions have overwhelmed him at times, particularly during his relationship with Monique. Whereas he could exercise controls whilst working in the pub and defuse situations, resolve conflicts and avoid physical confrontations, he had always found it much more difficult to deal with conflict in his personal relationships, particularly if he had been drinking." 25The applicant reflected upon the offence in this way to Ms Duffy: "Mr Brown expressed extreme remorse for his actions. He recognised that it was the 'wrong thing', but then agreed that he did try and help her and take her to the doctor. He acknowledged the feelings of insecurity and jealousy have undermined their relationship as he felt that he had never been able to trust her again because she was unfaithful to him while he was in jail. He acknowledged that there has 'got to be a better way' than fighting, to the point where it reaches a physical altercation. He stated that even when they started arguing at home, he had tried to get her to leave but she would not go, and the situation escalated." 26Ms Duffy identified a series of programs, which would be suitable for the applicant, all of which addressed aspects of his offending behaviour. She did not express any direct view as to his likelihood of re-offending. 27The applicant himself gave evidence, and was cross-examined. 28He was asked what effect hearing Ms Latini's Victim Impact Statement had had on him. He said it did not make him feel very good and that he appreciated how his conduct had impacted upon his victim. Of that impact, he said this: "Well, she sounded pretty emotional. Yeah, it's not good I suppose her partner striking her, yeah, it's pretty bad. I don't know, I don't really know what to say. I'm sorry, ..." 29He told the Court that when he was released on parole he would attend various programs and obtain treatment for his alcohol abuse. 30It was apparent from the material before the sentencing Judge that at the time he stood for sentence, the applicant was 46 years old. Prior Criminal History 31As I have earlier said, the prior criminal history, which was before his Honour, was extensive. The applicant first came before a court when he was 19 years of age, and continued to do so reasonably regularly until the offence in question. Many of the offences, which brought him before a court related to conduct when he was affected by alcohol, and included offences of violence. 32In 1997, the Sutherland Local Court dealt with the applicant for a series of offences, including two offences of breaching an Apprehended Violence Order, for which he was ordered to serve 200 hours of community service. 33In 2002, he was before the Gosford Local Court for, amongst other things, contravening an Apprehended Domestic Violence Order, and for which he was sentenced to a term of imprisonment of 6 weeks. 34In 2004, the applicant was sentenced to a term of 12 months imprisonment with a non-parole period of 6 months for the offence of assault occasioning actual bodily harm. Later in 2004, in the Blacktown Local Court the applicant was sentenced to a term of imprisonment of 4 months for a common assault. 35In 2009, the applicant was sentenced in the Wollongong Local Court for offences that occurred in May of that year whilst he was on parole. Those offences involved Ms Latini, who is the victim in the offence for which the applicant was sentenced, giving rise to this application. The offences were stalking/intimidating the victim with the intention of causing her to fear physical or mental harm. For this, he was sentenced to imprisonment for 8 months with a non-parole period of 6 months between May and November 2009. He was also convicted of an offence of common assault against Ms Latini, for which he was sentenced to a term of imprisonment of 6 months. 36In October 2010, he was brought before the Wollongong Local Court on one offence of assault occasioning actual bodily harm, where the victim was again Ms Latini, and also an offence of stalking/intimidating the victim with the intention of causing fear of physical or mental harm. In respect of these offences, he was imprisoned for a period of 12 months, commencing in October 2010 with a non-parole period of 9 months. 37Whilst in jail, the applicant used the telephone to threaten to kill Ms Latini and her children. For this further offence he was convicted and imprisoned for an additional term of 3 months, which commenced at the expiry of his previous term. He was also sentenced to the same period of imprisonment because, in using the telephone in the way he did, he had contravened an apprehended violence order. 38On 7 October 2011, the Nowra Local Court made an Apprehended Violence Order. It was due to last for 2 years and the victim Ms Latini, and her children, were the protected persons. 39It was during the currency of this Apprehended Violence Order that the current offence occurred. 40All of these matters were put before the sentencing Judge. Remarks on Sentence 41In his Remarks on Sentence, the sentencing Judge described the procedural background. He noted that the plea had been entered on the first day of the trial, and that the plea was to an alternative count. He noted that, in the circumstances, the appropriate discount for the plea was 10 per cent. 42His Honour then went on to note the existence of the offence of contravening a prohibition or restriction in an apprehended domestic violence order in respect of Ms Latini. This offence had occurred at the time of the principal offence of inflicting grievous bodily harm recklessly on Ms Latini. The offence of being in breach of the apprehended domestic violence order was to be taken into account on a Form 1. His Honour noted the existence of the Form 1, and noted in particular that the fact that the applicant had been in breach of an apprehended violence order was of itself an aggravating factor, and that he needed to be cautious not to double count the circumstances of aggravation arising by reason of this breach. 43His Honour went on to set out the relevant facts, and he recounted in brief terms, the applicant's prior history. In particular, he noted the prior offences of violence occasioned upon the same victim by the applicant, as was concerned with this offence. 44He concluded his review of the past conviction history in this way: "I appreciate I have not read them all out, but the upshot is that the offender has a history of assaulting this partner and partners, and otherwise he has a Veen 2 record, which is morally illuminating and shows persistent disobedience. In terms of s 21A, it is aggravating in terms of the sentence, not of course the objective gravity, but it is aggravating of the sentence itself and I take it into account in that way." 45The reference to "a Veen 2 record" is a reference to the decision of the High Court of Australia in Veen v The Queen (No.2) [1988] HCA 14; (1987 - 1988) 164 CLR 465. 46The sentencing Judge then went on to summarise the facts in this way: "When I look at the actual offence, it involves punches by a large strong-looking man, who has had a bit of boxing training, to a woman's face, indeed both sides of the face. He fractured her jaw, cheekbone extending to the eye socket. She has needed a plate in the head. True it is he was intoxicated, and there is some, what one may term provocation, in terms of s 21A, but nothing that could remotely justify this type of drunken violence perpetrated on a woman, or the degree of it, not that any such violence is acceptable. I accept that alcohol may contribute to a loss of self-control. It obviously did not make the offender act out of character, this is the way he acts when he is intoxicated. It may detract from the extent of deliberation. I accept it was a spontaneous incident, a spontaneous assault, and I take that into account. It was not planned, I take that into account. There are countervailing considerations herein that the community and females in particular need to be protected from the offender, who has this propensity for drunken extreme violence." 47His Honour then went on to consider where he might find the range of offending and said that if he were "forced to say" where the offence fitted, he would consider it to be a mid-range offence "... somewhere in the mid-range". 48His Honour went on to deal with the subjective material. He concluded that the applicant had shown remorse, but that he could not find that he was unlikely to re-offend. He found that he had some prospects of rehabilitation, but they were guarded. 49The sentencing Judge noted that he had been provided with statistics of apparently comparable cases and, with respect to them, said this: "I have been provided with the statistics. They are a very blunt tool because one would need to know more particularly the facts of the cases, but here, there is a combination of the facts plus the Veen 2 record." 50His Honour found special circumstances. 51Having imposed the sentence, he expressed the view that he considered the non-parole period to be "the minimum that could possibly accommodate the gravity of the offence". Grounds of Appeal 52Together with the Application for Leave to Appeal, the applicant filed a Notice of Grounds of Appeal. He nominated three grounds. They are: "1. His Honour erred in the way he used the appellant's criminal record. 2. His Honour erred in characterising the level of objective seriousness as being within the mid-range for offences of this type. 3. The sentence imposed by his Honour was manifestly excessive." Ground 1: Applicant's Prior Criminal Record 53The applicant submitted that the sentencing Judge erred in using the applicant's criminal record in the way he did. The applicant drew attention to the Remarks on Sentence, which I have set out above at [4442] and [49], and submitted that the words were suggestive of the fact that his Honour had used the applicant's previous criminal record in determining the range of sentence appropriate for the offending conduct. 54The applicant drew attention to the principles in R v McNaughton [2006] NSWCCA 2010 with respect to the proper use of a prior criminal record and, in particular, that prior offending was not an objective circumstance for the purpose of the application of the principle of proportionality, and nor was it open to a court to use prior convictions to determine the upper boundary of a proportionate sentence. 55Veen (No.2) is authority for the proposition that an antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but that it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the offence for which sentence is being imposed. 56As Mason CJ, Brennan, Dawson and Toohey JJ said at [14]: "The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence, a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 57Their Honours made it plain that antecedent criminal history was relevant to more than simply an offender's claim for leniency. 58In Aslett v Regina [2006] NSWCCA 360 at [24], McClellan CJ at CL (with whom James and Hoeben JJ agreed) said: "24. ... An offender is required to be sentenced to a punishment which can be no greater than the maximum range of punishment appropriate of the particular offence. The role of any previous offending will not increase that punishment but may be taken into account in determining whether that maximum or some lesser punishment within the range should be imposed. Prior offending may diminish any leniency which might otherwise be showed to the offender. ... " 59In sentencing the applicant, the Judge was entitled to, and ought to have had regard to his previous criminal history. He was, in accordance with authority, able to have regard to the record for the purpose of determining where, within the range of penalties properly open to be imposed, he should sentence the applicant. The existence of the prior record diminished any claim which the applicant had to leniency. 60It seems to me that when his Honour, in his ex tempore Remarks on Sentence, referred in a shorthand way to a "Veen 2 record" which he described as "morally illuminating and shows persistence disobedience", his Honour was using no more than a shorthand description of the authorities to which I have just drawn attention. That is, that the antecedent criminal history of the applicant is relevant in the ways described. 61The Remarks on Sentence delivered by his Honour do not indicate the presence of any error on their face. Nor can it be said, as the applicant submits, that such an error must have occurred by reference to the overall sentence which is less than 50 per cent of the available maximum. The applicant's previous history was lengthy. His history was one correctly characterised as showing "persistent disobedience". 62I would not uphold this Ground. Ground 2: Level of Objective Seriousness 63His Honour extensively dealt with the facts and confined his remarks on the level of objective seriousness in the way to which reference has been made in [46]. 64The applicant submits that the characterisation of the level of objective seriousness as being within the mid-range or, as the sentencing Judge described it "...somewhere in the mid-range", is an error of a kind which justifies intervention by this Court. 65The applicant submitted that the seriousness of the injury will be a major factor in the determination of the objective gravity of the offence and that, having regard to the injuries sustained here, which were at the low end of the scale, there ought to have been a finding that the offending was at that end of the scale. 66As well, the appellant pointed to the fact that the offence did not involve the use of any weapon other than the applicant's fists, it was of brief duration, it was not pre-planned but was spontaneous, and it occurred in the context of the victim being asked to leave the applicant's premises. 67The applicant noted that the sentencing Judge had found that the offence was one of impulsivity, and that it occurred in circumstances where both parties were probably well affected by alcohol. His Honour found, and the applicant relied on, the fact that the consumption of alcohol may have contributed to a loss of self-control on the part of the applicant. 68In seeking to challenge the sentencing Judge's assessment that this crime fell within the mid-range, the applicant is confronted with the clear authority of this Court that the assessment by a sentencing Judge of the objective seriousness of an offence is a matter which is not ordinarily susceptible of interference on appeal. 69Spigelman CJ (with whom Simpson J agreed) said in Mulato v Regina [2006] NSWCCA 282 at [37] this: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour." 70It is not contended by the applicant that there was any discrete error in the fact finding process by the sentencing Judge. Nor is it suggested that any part of the objective circumstances were overlooked. Rather, the applicant seeks to attack the characterisation of the facts as being within mid-range. 71I am not persuaded that the characterisation of the objective seriousness was not open to his Honour, the sentencing Judge. It may be accepted that the assault was brief, but on the other hand it was fierce. There were a number of fractures which required open fixation and the insertion of a plate to enable them to heal. Both sides of the victim's face were involved and she has been left with no feeling in the left side. The appellant was much stronger than the victim, and used his physical strength in the assault. 72Not only was it, in my opinion, open to his Honour to find the characterisation as he did, but in my view, his Honour was correct. 73I would not uphold this Ground. Ground 3: Manifest Excess 74To succeed on this Ground, the applicant must show that the sentence was unreasonable or plainly unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6]. 75In Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, Gaudron, Gummow and Hayne JJ said at [58] with respect to the issue of manifest inadequacy or excess of a sentence: "In this ... kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons." 76The applicant submitted that by reference to Judicial Commission Sentencing statistics, only a very small percentage, approximately seven per cent, received a comparable sentence to that of the applicant in cases where a plea of guilty had been entered. It was submitted that by reference to those statistics, at least 90 per cent of offenders received a head sentence less than the applicant. 77Finally, the applicant submitted: "... that when proper consideration is given to the objective seriousness of this offence, it does not warrant a head sentence nor a non-parole period in the top 10 % of sentences for this type of matter, and it is submitted that the sentence is therefore 'unreasonable or plainly unjust'. " 78The Court has cautioned about the use of statistics as the sole measure for determining manifest excess. 79In Barbaro v The Queen, Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323 at [41], French CJ, Hayne, Kiefel and Bell JJ said: "... in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence." 80It is important to note that the High Court has said in many cases that the consistency in sentencing which is sought from intermediate appellate courts, is not numerical equivalence but rather consistency in the application of relevant legal principle: Hili v The Queen; Jones v The Queen [2010 HCA 45; 242 CLR 520 at [48]-[49]; Barbaro at [40]. 81In offences such as the one with which the Court is here concerned, the statistics from the Judicial Commission are a particularly blunt tool because the injuries which were actually inflicted are not described. Whether the sentences which were imposed upon offenders who had a prior criminal history, and what that criminal history was, are not described and, the range of possible factual circumstances involved in an offence such as this is broad. 82The statutory guidelines in this case of the maximum penalty, and the standard non-parole period can be another point of reference. 83I would be prepared to accept that the sentence which was imposed was not a lenient sentence. Some would describe it as being at the upper end of the range of available sentences. What is plain, however, is that the sentence is not so harsh as to take it outside of the legitimate bounds which were reasonably open to the sentencing Judge. 84I am wholly unpersuaded that the sentence was manifestly excessive. 85I would not uphold the appeal on that basis. Conclusion 86It follows that were leave granted to appeal, the appeal would not succeed. 87However, I would grant leave, because, having regard to the nature of the submissions, the applicant had a legitimate concern about the length of the sentence, and whether, in all of the circumstances, the findings of the sentencing Judge were appropriate. 88In those circumstances, I would propose the following orders: (1)Application for leave to appeal granted; (2)Appeal 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: 13 October 2014