Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Campbell v R [2016] NSWCCA 170 Hearing dates: 1 July 2016 Date of orders: 17 August 2016 Decision date: 17 August 2016 Before: Payne JA at [1] McCallum J at [2] Wilson J at [45] Decision: Leave to appeal refused Catchwords: CRIMINAL LAW – appeals – sentencing – whether sentencing judge failed to give effect to finding of special circumstances – whether sentence manifestly excessive Legislation Cited: Crimes Act 1900 (NSW), ss 33, 33(1)(b), 35(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 44(1), 44(2), 54A Cases Cited: Barbaro v R; Zirilli v R [2014] HCA 2; 253 CLR 58 Caristo v R [2011] NSWCCA 7 Deng v R [2007] NSWCCA 216 Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 El-Almad v R [2015] NSWCCA 65 Makarian v The Queen [2005] HCA 25; 228 CLR 357 Pearson v R [2002] NSWCCA 428 Category: Principal judgment Parties: Richard Campbell (applicant) Crown (respondent) Representation: Counsel: M Higgins (applicant) S Dowling SC, L Coleman (respondent) Solicitors: N Velcic (applicant) Solicitor for Public Prosecutions (respondant) File Number(s): 2013/96443 Publication restriction: None Decision under appeal Court or tribunal: District Court of NSW Date of Decision: 2 April 2015 Before: Bennett DCJ File Number(s): 2013/96443 Judgment 1. PAYNE JA: I agree with McCallum J. 2. McCALLUM J: Richard Campbell seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to an offence of causing grievous bodily harm with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for 25 years. A standard non-parole period of seven years is specified for the offence. [1] 3. The sentencing judge assessed the offence to be at the mid-range of objective seriousness. His Honour said that, but for other matters brought to account in the applicant's favour, he would have imposed a non-parole period of seven years. The plea was entered on the first day of the second occasion on which the matter was listed for trial (the applicant had earlier offered to plead guilty to a lesser charge but that was not accepted by the Crown). The judge allowed a discount of 10% for the plea, indicating a starting point of 8 years. The applicant was sentenced to a term of imprisonment for seven years and two months with a non-parole period of five years. 4. The applicant relies on two grounds of appeal, contending that the sentence imposed was manifestly excessive and that the sentencing judge erred in failing to give sufficient weight to the finding of special circumstances. Circumstances of the offence 1. The applicant was sentenced on the strength of a Statement of Agreed Facts signed by both parties. The following summary is drawn almost verbatim from that statement. 2. In August 2010, the applicant and the victim were both involved in the Muay Thai fight circuit. They competed against each other in a professionally organised fight approximately 18 months to two years before the assault. The applicant won the fight on points. The victim believed he should have won and communicated that view to friends. 3. On Thursday 28 March 2013, the applicant went out drinking with friends. The victim attended the same hotel that night and was also drinking with friends. In the early hours of the following morning the applicant approached the victim in the main bar area and spoke to him about the Muay Thai fight. 4. The victim was standing by himself at a small table facing the dance floor with his back to the table. The applicant asked him whether he thought he had won the fight. The victim said he believed so, as did other people who watched it. One of the applicant's friends approached. The victim told him to "piss off". 5. As the victim was looking at that person, the applicant pulled his right arm back and struck the victim to the left side of his face with his elbow with great force. The victim's head was thrust backwards and his body hit the table as he crashed to the ground. The applicant threw a number of punches at the victim as he fell to the floor. The attack was recorded on CCTV footage. At no time does it show the victim push or strike the applicant. Hotel security personnel attended immediately and separated the two. As the applicant was walked away from the victim he yelled: "That's twice, that's twice." 6. The victim was taken to Westmead Hospital for treatment. The applicant was arrested and taken to Parramatta Police Station where he participated in an electronically recorded interview. He told police he had fought the victim in a professional Muay Thai fight nearly two years before. 7. The applicant told police he began drinking at about 6:30pm that night. Throughout the night he drank a total of six schooners of beer and four single shots of Jack Daniels and Coke. He said: "I feel alright now, so I don't think I drank a whole lot". He said that at the time of the incident, he "knew what was going on". He agreed that he approached the victim, who was sitting by himself, to talk to him about the fight. He said he wanted to know why the victim thought he beat him. He said he did not go over to pick a fight. He said that one of his friends came over and the victim told him to "fuck off". He admitted he hit the victim with his elbow. 8. The applicant also said: "I can always tell when someone is actually aggressive and they, they're looking for it, so I always think I should get the first one, which is probably stupid". 9. When asked about his intentions at the time he hit the victim the applicant replied: "Just to, I don't know, shut him up, I'd love to all I, all I want, I didn't want to hurt him, all I would like is to fight him again in the ring to shut him up…I'm massively angry about all of this, this is bullshit. He's the one that's been, he was antagonising me, he was the one that, I went to talk about the fight and he's abusing me…" 10. The accused said later: "I'm not an idiot, I know when someone's going to fight you and it's getting to the stage where I need to cop one, I've had a broken jaw before, I need to cop one to stay out of trouble. He's a fuckin' wanker too, fucker… he has his first clenched… he was going to punch Shane." 11. The police later asked the accused: "So it was in self- defence?" he replied "Oh no, I felt antagonised. I knew he was going to hit me. I knew a fight was going to happen." He was then asked: "Why didn't you take his warning and walk away?" The applicant answered: "Cause I'm not a pussy." 12. The applicant was asked if he was aware of the victim's injuries. He replied: "I couldn't care, he deserved all of it. When the applicant was told it was fairly likely the victim had a broken jaw, he replied… "[it] should keep his mouth shut for a while." 13. The victim suffered a bilateral fractured mandible. He underwent surgery which involved an open reduction internal fixation of the bilateral mandibular fractures and the insertion of a fracture plate. He was discharged from hospital after five days. He was not able to eat any solid foods or perform any physical work for a period of 6 weeks. Proceedings on sentence 1. The applicant gave evidence at the proceedings on sentence. The evidence addressed his prior use of drugs (which had stopped) and his ongoing use of alcohol. At the time of the offence he was consuming about 15 to 20 drinks in a day, if he was drinking all day. In 2012, at the request of a previous girlfriend, he had sought assistance from a psychologist to address anger management issues. The treatment included discussion of his abuse of alcohol. He did not find the treatment particularly helpful. He said he had tried to enrol in courses whilst on remand but that "they wouldn't give me any courses because I was un-sentenced". 2. In cross-examination the applicant conceded that, in Thai boxing, particular strikes and blows are referred to as weapons. The elbow strike that he used on the victim is called "the horizontal strike". He agreed there was a great deal of force used. He agreed that in junior bouts and amateur fights elbow strikes are prohibited; they may only be used where elbow pads are worn by combatants. They were not permitted in the fights in which he had participated. 3. In re-examination the applicant said he used his elbow because he was drunk and he might not have wanted to hurt his knuckles. 4. The applicant also tendered a report from a consultant psychiatrist, Dr Ben Teoh, who recorded the applicant's "long history of poor impulse control and explosive anger". Dr Teoh considered that the applicant's presentation was consistent with a history of ADHD, alcohol use and substance use disorder. He thought the applicant would benefit from treatment and that the applicant was motivated to seek further treatment. 5. The applicant wrote a letter of apology to the Court (exhibit 3). The letter revealed that the applicant accepted full responsibility for his conduct and expressed genuine remorse. The applicant expressed his sorrow to the Court, the victim and his family and stated that he proposed to focus on being a better person. 6. The sentencing judge described the offence as "yet another example of alcohol-fuelled violence leading to profound injury". His Honour considered the applicant's alcohol and anger issues and acknowledged his attempts to deal with those problems. He noted the applicant's acceptance, since incarceration, that he is an alcoholic. He accepted that the applicant had sought drug and alcohol intervention but that "because of his remand status" he had been unable to access any of those programmes. 7. The judge considered that there were no aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), all relevant considerations of seriousness falling within the ambit of the offence. His Honour found a number of mitigating factors. He accepted that the offence was spontaneous. Having "thought carefully", his Honour was prepared to find that the applicant was remorseful by the time the plea was offered to the lesser charge (implicitly, not before). He rejected the Crown's assessment that the offence was at the lower end of the mid-range of objective seriousness, finding that it was at the mid-range. Grounds of appeal 1. The two grounds of appeal are expressed as follows: 1. In all the circumstances the sentence imposed was manifestly excessive. 2. His Honour erred in failing to give sufficient weight to the finding of special circumstances. Special circumstances 1. It is appropriate to address ground 2 first. The ground invokes s 44 of the Crimes (Sentencing Procedure) Act, which provides: (1) Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). 1. The judge decided that there were special circumstances for increasing the proportion of the balance of term. His Honour said: "I find that there are special circumstances for the reasons articulated by his counsel. There shall be an extended period on parole to facilitate the rehabilitation I anticipate he will be able to build upon in custody and that will be for a period of two years and two months to commence at the expiration of the non-parole period." 1. The "reasons articulated by his counsel" were the applicant's problems with alcohol and his need for ongoing treatment and counselling. As already noted, the applicant's evidence was that he had tried to enrol in courses to address those issues but had been unable to while he was "un-sentenced". 2. The degree of variation to the statutory ratio was small; the overall sentence was seven years and two months (86 months). Absent the finding of special circumstances, the balance of term (the potential period on parole) should not have exceeded 21.5 months or one year and 9 ½ months. The judge fixed a balance of term of 26 months, allowing the potential of an additional 4 ½ months on parole. Sentences are commonly analysed against the requirements of the section by expressing the non-parole period as a percentage of the total term. On that analysis, the statute implies, absent special circumstances, that the non-parole period will ordinarily be 75% of the total sentence whereas in the present case it was about 70%. 3. Closer adherence to the words of the statute would direct attention, rather, to consideration of the balance of term as a percentage of the non-parole period ("the balance of the term of the sentence must not exceed one-third of the non-parole period"). On that analysis, the balance of term will ordinarily be close to 33% of the non-parole period whereas here it was 43%. 4. Neither analysis is particularly helpful. As explained by R A Hulme J in Caristo v R, [2] it will often be more helpful and more appropriate to consider the actual periods involved. His Honour explained at [41]: The factual situations confronting a judge who has made a finding of special circumstances are so variable that no generalised proposition would suit every situation. To offer an obvious example, a non-parole period that is 50 per cent of the total term might be considered appropriate in a case where the total term is 2 years when it is felt necessary to allow for a 12 month period of parole. But it is almost impossible to imagine 50 per cent being appropriate where the total term is 20 years so as to allow for a 10 year parole period. Further, the total term of the sentence is but one of almost infinite considerations that may potentially be relevant. 1. The applicant submitted that, in order to give real effect to the finding of special circumstances in the present case, the non-parole period should have been set at a significantly lower ratio to the total sentence. [3] The applicant relied in particular on the fact that there was evidence at the proceedings on sentence to suggest that rehabilitation was not available to him in custody (suggesting a need for a longer period of rehabilitation whilst on parole). 2. In my view, it is clear that the applicant's evidence on that issue at the proceedings on sentence related only to the unavailability of rehabilitation programmes during the period when he was on remand awaiting sentence. There was no evidence to suggest that, once sentenced, the applicant would not be able to enrol in appropriate courses whilst in custody. The sentence imposed allows a period of five years during which that can occur, followed by a period of over two years during which the applicant can continue to address his problems with alcohol and his need for ongoing treatment and counselling whilst on parole. 3. The principles relevant to the task of fixing the proportion of the non-parole period to the balance of term are well known. The decision in Caristo provides a helpful, non-exhaustive summary. Relevantly for present purposes, the degree of any adjustment of the statutory ratio is a matter for the discretion of the sentencing judge: R v Cramp [4] ; Trad v R. [5] In order to make good this ground, the applicant must demonstrate that the exercise of that discretion miscarried. 4. In the present case, the judge expressly addressed the issue whether two years and two months would be adequate to meet the applicant's need for ongoing treatment upon his release from custody. His Honour was satisfied that it would. There was no evidence at the proceedings on sentence that compelled a different conclusion. I am not persuaded that his Honour's discretion miscarried in that assessment. I would reject ground two. Whether the sentence was manifestly excessive 1. Ground 1 is that in all the circumstances the sentence imposed was manifestly excessive. 2. The applicant's submissions on this ground were brief, resting on a comparison with the sentences considered in two decisions of this Court, R v Deng [6] and R v Pearson. [7] It was submitted that there is "a significant disparity" in the starting point of the sentence imposed in the present case and "a number of cases" but those were the only cases cited. 3. It is well recognised that there is limited utility in comparing a sentence with the sentences imposed in other cases to determine whether a sentence falls outside an appropriate sentencing range. As noted by the Crown, the relevant principles were considered by the High Court most recently in Barbaro v R; Zirilli v R [8] where French CJ, Hayne, Keifel and Bell JJ said: "The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence. As the plurality point out in Hili v R, 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. What is important is the unifying principles which those sentences both reveal and reflect. (Footnotes omitted; emphasis added). 1. The decisions relied upon by the applicant in the present case were particularly unhelpful; the only clue to their choice is the fact that they were cases involving, as counsel for the offender, the author of the written submissions in the present appeal (not the barrister who appeared at the hearing of the appeal). 2. Deng was a Crown appeal. The Court found that the sentence imposed was manifestly inadequate but exercised the discretion not to intervene, for reasons relating to the circumstances of the offender. [9] It should not be necessary to explain, in a judgment of this Court that it is accordingly not open to this Court to consider the sentence imposed in that case as a comparable sentence; it has been found to entail error. 3. Pearson was an appeal by the offender against conviction and sentence; both aspects of the appeal were dismissed. Unlike the decision in Deng, the decision is at least available for comparison in the sense that the sentence has not been found to entail error. However, as submitted by the Crown, it is a poor analogue with the present case. 4. The offender was convicted after trial of a number of offences including an offence against s 33 of the Crimes Act (as it then stood) of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. Almost the only common feature with the present case is that the offence involved an attack in which the victim suffered a broken jaw. For that offence, the offender was sentenced to a term of seven years imprisonment with a non-parole period of four years. The disparity with the present case is relatively slight. Significantly, the offender in Pearson was sentenced before the commencement of s 54A of the Crimes (Sentencing Procedure) Act, which introduced standard non-parole periods. 5. In order to establish that a sentence is manifestly excessive an applicant must demonstrate that the sentence was "unreasonable or plainly unjust". [10] The sentence imposed in the present case might be regarded as stern but that is no warrant for intervening with the sentencing judges' exercise of discretion. The applicant's brief submissions on this ground have not persuaded me that the sentence was manifestly excessive. 6. Having regard to my assessment of the merits of the grounds raised, I would refuse leave to appeal. 7. WILSON J: I agree with McCallum J. ********** Endnotes 1. Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A, item 4 of the table. 2. [2011] NSWCCA 7 at [42] 3. El-Almad v R [2015] NSWCCA 65 4. [2004] NSWCCA 264 at [31] 5. [2009] NSWCCA 56 at [33]. 6. [2007] NSWCCA 216 7. [2002] NSWCCA 429 8. [2014] HCA 2; 305 ALR 323 at [40]-[41] 9. Deng at [81]-[83] per James J; Mason P and Hislop J agreeing at [1] and [87] 10. Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at [325]; Makarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]. 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 August 2016