Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Patsan v R [2018] NSWCCA 129 Hearing dates: 1 June 2018 Decision date: 29 June 2018 Before: Bathurst CJ at [1]; Leeming JA at [2]; Adamson J at [3] Decision: Refuse leave to appeal against sentence. Catchwords: CRIME – application for leave to appeal against sentence – alleged manifest excess – domestic violence offence – relevance of dynamic between participants – importance of general and specific deterrence and denunciation – no error established CRIME – application for leave to appeal against sentence – statistics particularly unhelpful when charge on Form 1 taken into account in sentence for index offence Legislation Cited: Crimes Act 1900 (NSW) ss 35(2), 59 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 32-33 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cherry v R [2017] NSWCCA 150 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551 The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 Category: Principal judgment Parties: George Patsan (Applicant) Regina (Respondent) Representation: Counsel: P Skinner (Applicant) T Smith (Respondent) Solicitors: N Felton (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2016/111835 Decision under appeal Court or tribunal: District Court at Newcastle Jurisdiction: Criminal Date of Decision: 4 August 2017 Before: Bright DCJ File Number(s): 2016/111835 Judgment 1. BATHURST CJ: I agree with the orders proposed by Justice Adamson and with her Honour's reasons. 2. LEEMING JA: I agree with Adamson J. 3. ADAMSON J: George Patsan (the applicant) seeks an extension of time for leave to appeal against a sentence imposed by Bright DCJ on 4 August 2017. 4. Her Honour imposed a sentence of 2 years and 3 months' imprisonment commencing on 4 August 2017 and expiring on 3 November 2019, with a non-parole period of 1 year and 4 months, expiring on 3 December 2018, for recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW), to which the applicant pleaded guilty. A further charge of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act was taken into account in the sentence on a Form 1 pursuant to ss 32-33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). 5. By his plea, the applicant can be taken to have admitted that he in fact caused grievous bodily harm, although he is not to be sentenced as if he intended to cause grievous bodily harm. The plea involved an acceptance that the applicant foresaw the possibility of actual bodily harm. 6. The maximum penalty for the s 35(2) offence is imprisonment for 10 years. A standard non-parole period of 4 years is prescribed for that offence. 7. Although the applicant's proposed grounds were expressed in terms of three discrete grounds, Mr Skinner, who appeared on his behalf, accepted that there was, in substance, only one ground: that the sentence was manifestly excessive. He agreed that the other two grounds (alleged error in assessment of objective seriousness; and alleged insufficient weight being given to subjective circumstances) ought properly be regarded as particulars of manifest excess, rather than discrete grounds. The agreed facts 1. The following narrative is taken from the agreed facts, which formed the basis for her Honour's findings. The applicant lived on the second floor of an apartment block in Adamstown. The applicant and Laura Honnery (the victim) commenced an intimate relationship in about January 2016. By about February 2016, their relationship became antagonistic. The applicant physically abused the victim and damaged her property. Form 1 matter - assault occasioning actual bodily harm on 11 April 2016 1. On 11 April 2016 the applicant and the victim were arguing in the kitchen of the applicant's apartment. As the victim walked away from the kitchen she accidentally damaged a bowl belonging to the applicant. She heard a stomping noise as the applicant followed her. When he caught up with her, he pushed her in the back toward a nearby window. She put her right hand out. Her right arm went through the flyscreen of a nearby window, causing damage to the flyscreen. Her left side caught on the window frame. 2. The victim's body, above her waistline, was protruding out of the window. The applicant was holding her. She was looking down at the ground. She feared that the applicant was going to push her out the window. The applicant pulled her back inside and they continued to argue. Later that day, the applicant pushed out the damaged flyscreen which fell to the ground. 3. As a result of the applicant's conduct, the victim suffered grazing and bruising to her left torso, around her lower ribs, and pain that prevented her from sleeping that night. She did not report the matter. That night she stayed at the applicant's unit. Count 1 on the indictment - reckless grievous bodily harm on 12 April 2016 1. When the victim woke at about 9am on 12 April 2016, the applicant was playing his X box. The victim sat next to him and asked if he was going to replace any of her possessions which he had damaged. This was a reference to a number of personal items that the applicant had damaged or destroyed during the course of their relationship. The applicant answered "no". The victim then told him that she was leaving him because he had injured her and damaged her possessions. She proceeded to pack up all her belongings from the unit and put them in her car. 2. The victim then called out to the offender that she was going to take evidence of him pushing her. She walked over to the flyscreen, which was still lying on the ground outside the unit, and took a few photographs of it. As she was doing so, the applicant came down from his unit and ran around the corner to where the victim was taking photographs. He asked her what she was doing. The victim put her mobile phone down her pants and told the applicant to leave her alone. When the victim started to walk past the applicant, he grabbed her left hand. The victim pulled away. As she turned to face him, he punched her in the face. The victim screamed. As she tried to open her mouth, she heard a massive crack. She ended up on the ground. 3. The victim was in a daze and saw blood. She opened her eyes and saw the applicant running around the corner. He left the area. The victim pulled her phone out and called her father for assistance, saying that she thought the applicant had broken her jaw. When she got off the phone, the victim began to shake and cry. 4. An ambulance was called, attended the scene and took the victim to John Hunter Hospital. She had sustained severe facial injuries. Police attended the hospital and recorded an audio-visual statement from the victim. 5. At about 12.50pm that day the applicant presented himself to Newcastle Police Station in the presence of his legal representative. He was introduced to the Custody Manager and informed of his rights. He was issued with a Special Caution in the presence of his legal representative. He declined to provide any information to police or be involved in an interview. He consented to have photographs taken. He was granted bail and remained on remand until the sentence was imposed. 6. On examination at the hospital, the victim was found to be suffering from the following injuries and symptoms: swelling and bruising to the left side of her face; gross malocclusion (bite not fitting together); limitation in mouth opening; gingival laceration associated with jaw fracture; displaced lower jaw fracture with mobile segments; obvious space between lower right lateral incisor and lower right canine tooth. An x-ray confirmed that the victim's mandible (jawbone) was fractured in two places, the right lower body of the mandible; and the left angle of mandible. 7. On 13 April 2016, the complainant underwent surgery involving the fixation of titanium plates and screws. She was discharged on 14 April 2016. At a review on 6 May 2016, the doctor noted there were no post-operative complications. 8. The treating Oral and Maxillofacial Surgery Registrar expressed the opinion that the injuries received were intermediate/serious, and consistent with the alleged mechanism of injury (being punched in the jaw). Further evidence adduced on sentence 1. The Crown tendered Ms Honnery's victim impact statement at the sentence hearing in which she described the devastating effect of the attacks on her. It also tendered a pre-sentence report dated 19 July 2017. The applicant, who was 22 years old at the time of the offending, and 24 when the sentence was imposed, had no prior criminal history. The applicant tendered a substantial quantity of subjective material which established that he had sought, and obtained, substantial psychiatric and psychological treatment after 12 April 2016. 2. The applicant gave evidence in the proceedings, and expressed his remorse. He gave evidence that while on bail he had been reporting daily until 6 weeks before the hearing, at which time his bail conditions had been varied as to reduce the reporting requirement to once a week. The applicant's evidence was that he had not been required to report at times when he was in hospital or doing programs. There was no evidence of any other restrictions placed upon the applicant. 3. The applicant's mother gave evidence that: "he [the applicant] came straight to our place and said 'I've done something horrible' and we drove there straight away". The sentencing judgment 1. Her Honour assessed the offending as being "just below the middle of the range of objective seriousness" having regard to the following: "1. The nature of the physical act, that is one forceful blow delivered to the face of the victim. 2. The injuries sustained by the victim, as outlined in the facts, most particularly the fracture to the jaw in two places that required the victim to undergo surgery, and further involved the insertion of titanium plates and screws. 3. The offence occurred in the context of the breakdown of a dysfunctional relationship at a time when the victim had indicated to the offender she was leaving and proposing to take with her evidence of the assault that had happened the previous evening." 1. Her Honour found the offending to be serious and noted that the "conduct occurred in the context of a domestic relationship so whilst the injuries may not well be the most grave that can be occasioned by the infliction of grievous bodily harm". 2. Her Honour said of the need for specific and general deterrence: "Neither the courts or the community will tolerate violent acts upon women. A clear message needs to be sent to those who engage in such conduct that it is abhorrent and will be met with condign punishment." 1. Her Honour found: "Here I have no doubt that the only reason the offender chose to assault the victim in the way he did was because he was well aware she was incapable of any meaningful physical retaliation against him." 1. Her Honour said further: "To strike a defenceless woman in the face with a forceful punch is particularly reprehensible." 1. The sentencing judge referred in detail to the applicant's subjective circumstances, including his mental health. Her Honour accepted that the applicant had shown remorse; found his prospects of rehabilitation to be good; and considered that he was unlikely to re-offend. While the sentencing judge did not find any causal link between the offending and the applicant's mental health, her Honour said that the applicant's mental health would have the consequence that a custodial sentence would weigh more heavily on him. The sentencing judge did not refer to the conditions of the applicant's bail. 2. The sentencing judge allowed a 25% discount for the applicant's plea of guilty. Her Honour found special circumstances. The non-parole period represents 59.3% of the total term of the sentence. The applicant's submissions 1. Mr Skinner submitted that the sentencing judge erroneously emphasised the respective genders of the victim and the applicant. He contended that this approach was inconsistent with what the High Court said (in an admittedly different context) in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 when it expressly disapproved of attributing too much weight to generic considerations relevant to indigenous Australians when sentencing an indigenous offender. Mr Skinner argued that the sentence imposed in the present case was inconsistent with the principle that every particular offender standing for sentence is to be treated individually, irrespective of race or gender. He contended "the applicant has been punished by her Honour for male violence on women generally" and submitted that the sentencing judge had, in effect, used the applicant as a scapegoat for the prevalence of domestic violence offences perpetrated by men against women. 2. Mr Skinner also sought to challenge her Honour's finding that the applicant had "chosen" to hit Ms Honnery because she was unable to retaliate. He submitted that all the evidence pointed to the applicant's spontaneously lashing out, which did not involve any "choice" by him at all. He submitted that the finding was inconsistent with the offence for which the applicant was sentenced, being one of recklessly causing grievous bodily harm. 3. Mr Skinner also submitted that her Honour gave insufficient weight to the subjective circumstances of the applicant, which included: his remorse; his bail conditions over 16 months, which were said to be onerous; his relative youth at the time of offending; his otherwise good character; his mental health problems which dated back to an early age; and the considerable efforts he had made to rehabilitate himself. Mr Skinner referred to examples in the authorities where a sentence had been back-dated to take account of the "onerous" conditions of the offender's bail. 4. Mr Skinner submitted that the starting point for the sentence of three years (before it was discounted by 25% to take account of the early plea) was too high, especially when compared with the statistics available for similar sentences and other comparable cases. He argued that the appropriate sentence would have been a suspended sentence, which was a sentencing option available at the time the sentence was imposed. In substance, Mr Skinner submitted that it was manifestly excessive that the applicant ought be incarcerated for a comparatively minor, isolated attack when he was relatively young. He contrasted the present case with those where an assault took place in a course of abusive conduct within a domestic relationship over a substantial period. Mr Skinner also relied on statistics in support of his argument that the sentence was "outside the range" and therefore manifestly excessive. Consideration 1. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 the High Court said at [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ): "Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending." 1. In an oft-cited passage from Mulato v R [2006] NSWCCA 282 this Court said of a sentencing judge's assessment of objective seriousness, at [37] (Spigelman CJ, Simpson J agreeing): "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." 1. It does not follow from the fact that matters personal to the offender cannot be taken into account in assessing objective seriousness that the relative strengths of offenders and victims cannot be taken into account. Indeed, for an offence such as the present, the context in which the assault was perpetrated may be highly significant in assessing objective seriousness. Her Honour's assessment of the offending as being "just below the middle of the range of objective seriousness" took into account the matters set out above. 2. I discern no error in the sentencing judge's comments regarding offences committed in the context of a domestic relationship. As set out above, the agreed facts included that the applicant had been in an "intimate relationship" with the victim for about three months prior to the two offences occurring. The night before the infliction of grievous bodily harm the victim had spent the night at the applicant's home. Around two months earlier the relationship had "started to become more antagonistic. There were arguments between the [applicant] and the victim, as well as physical abuse by the [applicant] against the victim, and damage by the [applicant] to the victim's property." Her Honour correctly treated the offences on the indictment and Form 1 as offences of domestic violence and properly regarded this as a matter of real significance. 3. I see no error in her Honour stating that the applicant "chose to assault the victim in the way he did" because of her inability to retaliate physically. Mr Skinner's submission that the applicant had not, in effect, made any choice at all because he had merely reacted spontaneously was inconsistent with the applicant's plea. The elements for the offence under s 35(2) of the Crimes Act included that the applicant intended to punch the victim in the face; that he was reckless as to causing actual bodily harm (in that he actually foresaw actual bodily harm as a consequence); and that he caused grievous bodily harm. The applicant is taken to have admitted each element by reason of his plea. 4. I reject Mr Skinner's further submission that the sentencing judge had, in effect, used the applicant as a scapegoat for the prevalence of domestic violence offences. While every sentence imposed must have regard to all the circumstances particular to the specific case, individualised justice does not require sentencing judges to ignore patterns of behaviour which are repeated all too frequently before them. The experience of this Court and the statistics relied upon by the Crown indicate that domestic violence offences not infrequently conform to the following pattern, to which the applicant's conduct in the present case conformed: a male attacks (or kills) a woman with whom he is, or has been, in an intimate relationship when she expresses a wish to leave that relationship. Typically, the male is physically stronger than the female. The male is thus generally in a position to inflict considerable harm to the female and there is no real prospect of spontaneous physical retaliation because of the disparity between their respective strengths. 5. In R v Edigarov [2001] NCWCCA 436; (2001) 125 A Crim R 551, Wood CJ at CL (Studdert and Bell JJ agreeing) said at [41]: "[V]iolent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence." 1. The High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 recognised the role of the criminal law in the context of domestic violence and authorised the giving of significant weight to specific and general deterrence, denunciation and community protection. The High Court referred, at [54], to: "the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community." 1. Recently the High Court in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 said at [21] that: "current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of the offence because of change in societal attitudes to domestic violence." 1. The approach sanctioned by the High Court in Munda v Western Australia and The Queen v Kilic has frequently been applied by this Court: see, for example: Cherry v R [2017] NSWCCA 150 at [78]-[79]; and Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224 at [83]-[84]. I regard her Honour's approach in the present case as entirely appropriate and in accordance with the above authorities. 2. Mr Skinner's submission that her Honour gave insufficient weight to the subjective circumstances of the applicant implicitly acknowledged that the judge did take into account the subjective case of the applicant. This acceptance is appropriate as her Honour referred expressly in detail to the evidence of the applicant's mental health and his relevant subjective circumstances. Whilst it was open to a sentencing judge to take into account the time on remand, the applicant's conditions on bail were not so restrictive as to amount to quasi-custody. In these circumstances it was open to her Honour to commence the sentence from the date the sentence was imposed, being the first date on which the applicant was taken into custody. 3. Statistics are of limited value generally in sentencing: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [55]. The many and varied ways in which the offence of reckless grievous bodily harm (s 35(2) of the Crimes Act) can be committed makes the examination of statistics a largely futile task. Statistics are particularly inapposite in the present case where the sentencing judge was required to take another charge into account on the Form 1, namely, the charge of assault occasioning actual bodily harm (s 59 of the Crimes Act). 4. Whether a sentence is manifestly excessive is a conclusion. To make out his claim of manifest excess the applicant must establish that the sentence imposed was unreasonable or plainly unjust, having regard to the principles that there is no single "correct" sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Hili v The Queen; Jones v The Queen at [58]-[59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 5. I am not persuaded that the sentence imposed in the present case was in any way unreasonable or plainly unjust. Proposed order 1. For the reasons set out above, I propose that leave to appeal against sentence 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: 29 June 2018