Perry v R [2021] NSWCCA 244 (11 October 2021)

Last Updated: 11 October 2021

Court of Criminal Appeal

Supreme Court

New South Wales

Case Name:	Perry v R
Medium Neutral Citation:	[2021] NSWCCA 244
Hearing Date(s):	25 August 2021
Date of Orders:	11 October 2021
Decision Date:	11 October 2021
Before:	Bathurst CJ at [1]; Garling J at [2]; Wright J at [5]
Decision:	(1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentence imposed by the District Court on 15 October 2020 is quashed. (4) In lieu, the applicant is sentenced to imprisonment for a non-parole period of 1 year and 6 months commencing on 16 April 2020 and expiring on 15 October 2021 and a balance of the term of 1 year and 6 months expiring on 15 April 2023.
Catchwords:	CRIME — appeals — appeal against sentence — application for leave to appeal — misapplication of principle — De Simoni principle — where documentation provided by the parties assumed applicant had pleaded guilty to a more serious offence — parties’ error identified during the hearing — whether sentencing judge nonetheless fell into error CRIME — appeals — appeal against sentence — application for leave to appeal — manifest excess — whether sentence imposed was so far outside the range of sentences available that there must have been error CRIME — violent offences — reckless wounding — sentencing
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 54A Crimes Act 1900 (NSW), ss 4, 35 Criminal Appeal Act 1912 (NSW), ss 5, 6
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cao v R; McGregor-Macdonald v R [2020] NSWCCA 223 DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 Haoui v R [2008] NSWCCA 209 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Moriarty v Brooks [1834] EngR 1141; (1834) 6 C & P 684; 172 ER 1419 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Swan v R [2016] NSWCCA 79 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Vallance v The Queen (1961) 108 CLR 56; [1961] HCA 42
Category:	Principal judgment
Parties:	Matthew Scott Perry (Applicant) Regina (Respondent)
Representation:	Counsel: J Paingakulam (Applicant) C Dodds (Respondent) Solicitors: Legal Aid Commission of New South Wales (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):	2019/00301943
Decision under appeal:
Court or Tribunal:	District Court
Jurisdiction:	Criminal
Date of Decision:	15 October 2020
Before:	Turnbull SC DCJ
File Number(s):	2019/00301943

JUDGMENT

1 BATHURST CJ: I agree with the orders proposed by Wright J and with his Honour’s reasons.

2 GARLING J: I agree with the orders proposed by Wright J.

3 I agree with his Honour’s reasons for rejecting Ground 1 of the appeal and upholding Ground 2.

4 I agree that the sentence his Honour proposes is entirely appropriate although I would have reached that conclusion on the basis that the objective seriousness of the offending was below the mid-range as the sentencing Judge below found.

5 WRIGHT J: The applicant, Mr Matthew Perry, seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him by Turnbull SC DCJ in the District Court at Bathurst on 15 October 2020.

Background

6 On 16 July 2020, the applicant pleaded guilty in the Local Court to one charge of reckless wounding contrary to s 35(4) of the Crimes Act 1900 (NSW) and was committed for sentence to the District Court.

7 The sentence proceedings were heard by Turnbull SC DCJ on 15 October 2020. On that occasion, the sentencing judge delivered ex tempore reasons and imposed a sentence of 4 years’ imprisonment commencing on 16 April 2020 and expiring on 15 April 2024, with a non-parole period of 2 years expiring on 15 April 2022.

Grounds of appeal

8 In his notice of application for leave to appeal, the applicant relied on two grounds of appeal:

“1. The sentencing judge erred by breaching the principle in The Queen v De Simoni (1981) 147 CLR 383.

2. The sentence is manifestly excessive.”

9 In light of the grounds of appeal sought to be relied on, it is necessary to review the sentencing judge’s remarks on sentence in some detail.

Remarks on sentence

The offence, the maximum penalty and the standard non-parole period

10 Turnbull SC DCJ commenced his remarks on sentence by stating, and repeating, that the applicant stood for sentence in relation to a single count of reckless wounding.

11 His Honour correctly noted that the maximum penalty for this offence was 7 years’ imprisonment with a standard non-parole period of 3 years. The sentencing judge then said that he took into account as guideposts the maximum penalty, which he described as Parliament’s confirmation of the community’s view as to the seriousness of the offence, and the standard non‑parole period, which he observed was for matters which fall into the mid range.

Time in custody and plea of guilty

12 The learned sentencing judge recorded that the applicant had spent 386 days in custody already and explained that there were reasons for this which he would return to later. It was noted that the applicant had pleaded guilty at the first reasonable opportunity and his Honour indicated that he would consequently apply a discount of 25%.

Aggravating factor

13 Turnbull SC DCJ also recorded that the applicant was subject to an Intensive Correction Order (ICO) at the time of the offending and that this was an aggravating factor that he took into account.

The nature of the offending

14 The sentencing judge then went on to make findings as to what had relevantly occurred, which are summarised in the following paragraphs.

15 On 24 September 2019, the applicant, Mr Pittman and two other persons attended a club in Lithgow where in the afternoon they played poker machines together. Eventually the applicant and Mr Pittman left and walked to a house in Lithgow rented by the applicant’s then-girlfriend, Ms Dempsey.

16 The applicant walked into the house and left Mr Pittman outside near the side gate. Five minutes later, the applicant called for Mr Pittman to come into the house, which he did. Mr Pittman was introduced to Ms Dempsey and the applicant left Mr Pittman talking to her in the kitchen while he went outside into the rear of the property.

17 When the applicant returned to the kitchen, he had a broken chair leg that had screws and broken pieces of wood protruding from it. The broken leg was about 1 metre long. The applicant raised the chair leg above his shoulder and struck Mr Pittman to the head with the chair leg, resulting in immediate bleeding of Mr Pittman’s head.

18 The applicant rendered some assistance to Mr Pittman by giving him something to help stop the bleeding and he told Mr Pittman to put pressure on it and apologised to him.

19 Mr Pittman left the house but was located by police nearby. He appeared unsteady on his feet and had difficulty communicating. Mr Pittman was taken to Lithgow Hospital where he was treated for the following injuries, as recorded by the sentencing judge: a large parietal scalp laceration and contusion; a right shoulder contusion; a right hand contusion; a left leg minor contusion; and a large left parietal extradural haematoma compressing and displacing the left side of his brain. Mr Pittman was airlifted to Nepean Hospital where an emergency craniotomy was conducted. He discharged himself from Nepean Hospital against medical advice on 2 October 2019, having been in hospital for about a week if not slightly more.

20 On 26 September 2019, the applicant was located by police and declined, as was his right, to participate in a record of interview.

Objective seriousness

21 The learned sentencing judge was satisfied on the balance of probabilities and based on the injuries inflicted that the event was not completely unexpected and that there was at least a moment when Mr Pittman was capable of protecting himself. This conclusion was found by the trial judge to reduce the objective seriousness of the offending but only to a moderate degree.

22 His Honour went on to say that this was nonetheless a very serious offence and the fact that Mr Pittman received the injuries he did, seemingly without provocation, was really quite concerning. The sentencing judge observed that in assessing the objective seriousness of this kind of offence, one is primarily required to consider the extent of the consequences and the recklessness.

23 As to the consequences and the degree of recklessness, his Honour emphasised that what he was considering was a wounding with consequences reflective of not insignificant injury. The sentencing judge also said that striking to that area of the head with an implement in circumstances where it was relatively unexpected showed a very significant degree of recklessness.

24 The sentencing judge’s assessment was that the applicant’s offending was “at the upper end of the lower range of objective seriousness”.

Motivation and drug use

25 His Honour went on to consider the applicant’s motivation and accepted on the balance of probabilities that it was a misapprehension by the applicant that Mr Pittman was speaking to the applicant’s girlfriend in an inappropriate way when the applicant’s judgment was significantly affected by the consumption of “a quite extraordinary amount of amphetamine ... three grams that day”, and in circumstances where the applicant had a “very, very significant drug problem ... using vast amounts of drugs”.

26 Based on the applicant’s criminal record, a psychological report, which the sentencing judge said should be treated with circumspection in relation to self‑serving statements, and a sentencing assessment report, his Honour accepted that the applicant was “an herculean user of drugs” and continued:

“Three days before the offence ... he had smoked upwards of sixteen cones of cannabis, used three grams of heroin and ... the day of the offence, he had injected three and a half grams of ice. He said that he had ‘wigged out,’ thought the victim ‘was talking shit about his partner’ when he was out of the room and so he made the impulsive decision to assault him.”^[1]

27 Turnbull SC DCJ accepted that there was no real preplanning and that the offending was a spontaneous, drug addled and violent response to a perceived slight to his girlfriend.

Custodial sentence

28 In this situation, his Honour was of the view that no sentence other than a custodial sentence was appropriate. It was noted that the applicant had a number of challenges in his life that remained to be addressed and resolved, and the sentencing judge specifically referred to the purposes of sentencing being not just to denounce, to provide general deterrence and to recognise the harm to the victim, but also to protect the community, to provide specific deterrence and to rehabilitate.

Subjective circumstances

Background and upbringing

29 As to the applicant’s background and upbringing, the sentencing judge recorded that the applicant had been born in Lithgow and had a twin sister. His father was an Aboriginal man, from the Wiradjuri tribe, and his mother was Caucasian.

30 It was found that, at the age of five, he was kicked in the face by his mother’s partner, and, at the age of seven, he was beaten with a metal spatula causing deep lacerations to his lower body. His Honour found that this was the kind of discipline that was meted out by the applicant’s mother’s partner after his biological father and his mother separated. In addition, it was found that the applicant had to stand for hours facing the corner of a room and was beaten with a belt buckle when he lowered his head. After his mother formed a relationship with another man, that man stabbed the applicant in the chest with a metal fork as punishment for laughing at the dinner table.

31 The sentencing judge accepted that, from the age of 8 to 14, the applicant was placed into the care of his paternal grandparents by the Department of Community Services. He stayed with them, they looked after him “pretty well” and he formed an emotional bond with them. The applicant did, however, have ongoing but “itinerant” contact with his biological parents, and his father was a heroin addict. The applicant eventually went into juvenile detention and was thereafter the victim of sexual abuse.

32 The learned sentencing judge concluded that the applicant’s history of deprivation, abuse and violence was one to which he gave full weight, referring to the well-known principles from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy).

33 The sentencing judge found that the applicant had been in intimate relationships and fathered children, and his Honour had no doubt that the applicant would like to rejoin society in a way that would allow him to have a bond with those children but said that this would depend on decisions the applicant had to make for himself.

34 After touching upon the ICO and the applicant’s criminal record, Turnbull SC DCJ noted that the applicant had the support of two pro-social friends and his former partner. It was then observed in effect that the applicant would have to address his drug use and that he had an opportunity to do so if he wanted to take it.

35 His Honour noted that it was very hard to untangle the drug use on the day in question from symptoms that had arisen out of various disorders during his life. While the sentencing judge could not say with any confidence that there was any relevant mental condition on display at the time of the offence beyond that induced by the life that he had led and the drugs he had taken, his Honour said in effect that he was going to give those matters full weight, in light of the Bugmy principles.

Criminal record, backdating and totality

36 The sentencing judge observed that the applicant’s criminal record included a most unfortunate number of violent matters, of which some details were given. It was also noted that at the time of the commission of the wounding offence, the applicant was subject to a 20 month Community Correction Order for being armed with intent to commit an indictable offence and there was also an ICO in relation to driving offending. In the exercise of his discretion in relation to backdating and having regard to the principle of totality, his Honour decided to backdate the sentence he was to impose by six months and make it concurrent with the balance of the ICO, which had been converted to full-time imprisonment.

37 The sentencing judge found that the applicant was disentitled to leniency because of prior convictions on his criminal record and that there must be an element of personal deterrence in the present case.

Special circumstances

38 His Honour found special circumstances based on the applicant’s need for help to deal with his drug addiction and mental condition and the need for ongoing support when he re-entered society, notwithstanding that his response previously to supervision had not been particularly good.

Remorse

39 It was accepted that the applicant was “somewhat remorseful here” and the sentencing judge said that he would give that full weight.

Prospects of rehabilitation

40 The applicant’s prospects of rehabilitation were found to be guarded, as was the likelihood of reoffending.

Imposition of sentence and recommendation

41 The sentencing judge then imposed a non-parole period of 2 years commencing on 16 April 2020 and expiring on 15 April 2022, with a balance of term of 2 years expiring on 15 April 2024.

42 Turnbull SC DCJ recommended that that the applicant be considered for acceptance into the Intensive Drug and Alcohol Treatment Program at the John Morony Correctional Complex and for placement into the Violent Offender Therapeutic Program (VOTP) and the VOTP Maintenance and Outreach Program.

Ground 1 — De Simoni error

43 The first ground of appeal involved the contention that the sentencing judge erred by breaching the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (De Simoni).

Submissions

44 It was submitted that the applicant had pleaded guilty to, and was to be sentenced only for, the offence of reckless wounding contrary to s 35(4) of the Crimes Act. Although “wounding” was not defined in the Crimes Act, the applicant contended that the authorities established that it involved an injury by which the interior layer of the skin, the dermis, was broken or cut. By way of contrast, it was said that “grievous bodily harm”, as that expression is used in the Crimes Act, means really serious bodily injury.

45 The applicant noted that the offence of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act attracted a maximum penalty of 10 years’ imprisonment and a standard non-parole period of 4 years and, thus, was a more serious offence than reckless wounding contrary to s 35(4), which carried a lesser maximum sentence and lesser standard non-parole period.

46 Accordingly, it was submitted that if the sentencing judge took into account facts which would have warranted a conviction for recklessly causing grievous bodily harm, his Honour would have fallen into error. Next, it was contended that the sentencing judge did take such facts into account when his Honour observed that the consequences of the wounding were “reflective of not insignificant injury”. It was submitted that this was the injury that had been identified earlier in the remarks on sentence as including a large left parietal scalp laceration and contusion, various other contusions and “a large left parietal extradural haematoma compressing and displacing the left side of the brain” which required an emergency craniotomy. It was submitted that only the scalp laceration fell within the definition of “wounding” and, while the contusions might be taken into account in assessing the recklessness of the wounding offence, the haematoma and resulting craniotomy were indicia of the more serious offence of recklessly causing grievous bodily harm under s 35(2) and should not have been taken into account when sentencing for the lesser offence contrary to s 35(4). Thus it was submitted that the sentencing judge fell into error, although this was acknowledged to have been the result of the material placed before his Honour by the parties.

47 The Crown submitted that, although the material initially put before the sentencing judge had referred to the more serious offence contrary to s 35(2) which attracted a maximum sentence of 10 years and a standard non-parole period of 4 years, this error was brought to his Honour’s attention at the beginning of the sentence hearing. As a result, the sentencing judge was made aware, and proceeded on the basis, that the applicant had pleaded guilty to reckless wounding contrary to s 35(4) and that the maximum penalty for this offence was 7 years with a standard non-parole period of 3 years. Further, the Crown submitted in effect that his Honour’s comments during the sentence hearing and in his remarks made clear that he was mindful of the De Simoni principle and specifically avoided taking the more serious injury into account when assessing the objective seriousness of the offending. The Crown relied upon Cao v R; McGregor-Macdonald v R [2020] NSWCCA 223.

48 Finally, it was submitted in effect that when the sentencing judge referred to the consequences of the wounding being “quite clearly significant”, his Honour was only recognising that the more serious injury was a collateral consequence of the wounding and that this was relevant to assessing the level of recklessness involved in, and thus the objective seriousness of, the wounding offence. It was said, therefore, that the De Simoni principle had not been breached in the present case.

Consideration

49 In De Simoni, Gibbs CJ (Mason and Murphy JJ agreeing) stated, at 389:

“... the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. ... The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.”

His Honour also stated, at 392:

“It is not only in cases in which the offence has been accompanied by circumstances of aggravation that a trial judge may be required, in sentencing, to take an artificially restricted view of the facts. ... [W]here the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty.”

50 It is the last of these principles that is of particular relevance in the present case.

51 The injuries suffered by Mr Pittman as a result of the applicant’s hitting him with the chair leg were listed in the agreed facts, which were put before the sentencing judge, as follows:

“a. A large parietal scalp laceration and contusion;

b. Right shoulder contusion;

c. Right hand contusion;

d. Left leg minor contusion;

e. A large left parietal extradural haematoma compressing and displacing the left side of the brain.”

52 It was also recorded in the agreed facts that Mr Pittman was airlifted to hospital where an emergency craniotomy was conducted.

53 Section 35 of the Crimes Act relevantly provides:

(2) A person who—

(a) causes grievous bodily harm to any person, and

(b) is reckless as to causing actual bodily harm to that or any other person,

is guilty of an offence.

Maximum penalty—Imprisonment for 10 years.

...

(4) A person who—

(a) wounds any person, and

(b) is reckless as to causing actual bodily harm to that or any other person,

is guilty of an offence.

Maximum penalty—Imprisonment for 7 years.

(5) If on the trial of a person charged with an offence against any subsection of this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section (that carries a lesser maximum penalty), the jury may acquit the person of the offence charged and find the person guilty of an offence against that other subsection. The person is liable to punishment accordingly.

54 As can be seen, s 35(2) makes it an offence recklessly to inflict grievous bodily harm and s 35(4) makes it an offence recklessly to wound. The maximum penalties for those offences and the terms of s 35(5) indicate that the offence under s 35(4) is a less serious offence than the offence under s 35(2).

55 Section 4(1) of the Crimes Act provides that the expression “grievous bodily harm” includes certain matters that are of no particular relevance in the present case, namely:

(a) the destruction (other than in the course of a medical procedure or a termination of a pregnancy in accordance with the Abortion Law Reform Act 2019) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and

(b) any permanent or serious disfiguring of the person, and

(c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).

56 Otherwise, the expression is not defined in that Act. In Swan v R [2016] NSWCCA 79 (Swan), Garling J helpfully considered this expression as it appears in s 35 of the Crimes Act and reviewed many of the authorities. His Honour (R A Hulme J agreeing in relevant respects) concluded, inter alia, that:

(1) “grievous bodily harm” refers to a more serious form of injury than actual bodily harm and means really serious bodily injury (Swan at [57] and [71(b)]);

(2) the words “grievous bodily harm” do not require that the injuries are permanent or that the consequences of the injury are long-lasting or life threatening, but they do require that the injury is a really serious one, citing Johnson J (McCallum J, as her Honour then was, agreeing) in Haoui v R [2008] NSWCCA 209 (Swan at [63]); and

(3) there is no bright line by which an injury can be classified as really serious bodily injury; it is always a question of fact and degree (Swan at [63] and [71(c)]).

57 “Wound” is not defined in the Crimes Act but the common law establishes that wounding involves an injury to the person by which the skin is broken and that if the skin is broken, and there was bleeding, then that is a wound: Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56 at 77 (Windeyer J); [1961] HCA 42, citing Moriarty v Brooks [1834] EngR 1141; (1834) 6 C & P 684 at 686; 172 ER 1419 at 1420.

58 In the present case, the large parietal scalp laceration and contusion was a wound and the contusions to the shoulder, hand and leg did not mean that the injury suffered by Mr Pittman went beyond wounding and constituted grievous bodily harm. By way of contrast, it can be accepted that the large left parietal extradural haematoma compressing and displacing the left side of Mr Pittman’s brain, which required an emergency craniotomy, amounted to grievous bodily harm.

59 Therefore, in the circumstances of the present case where the applicant pleaded guilty to, and was to be sentenced for, the less serious offence of reckless wounding contrary to s 35(4) of the Crimes Act, the Crown could not rely, or ask the sentencing judge to rely, on facts that would have rendered the applicant liable to a more serious penalty under s 35(2), such as the brain injury which required an emergency craniotomy. Furthermore, if the judge did sentence the applicant on the basis of those facts, which would have rendered the applicant liable to a more serious penalty under s 35(2), his Honour would have fallen into error by contravening the principle in De Simoni at 392.

60 In my view, on a fair and proper reading of the transcript of the proceedings on sentence and the remarks on sentence, it is to be concluded that the sentencing judge was well aware of the principle in De Simoni, took steps to rectify the problem created by the parties’ putting entirely inappropriate documentation before him and deliberately limited his consideration of the facts in such a way as not to fall into error. Those conclusions are based on the following matters.

(1) The original Crown Sentence Summary (sometimes referred to as the coversheet), the Agreed Facts on Sentence, the Crown’s written submissions on sentence and the applicant’s written submissions on sentence all dealt with recklessly causing grievous bodily harm contrary to s 35(2), rather than reckless wounding contrary to s 35(4), as the relevant offending. Thus, both parties share responsibility for the inappropriate documentation being put before his Honour.

(2) At the beginning of the sentence hearing, the Crown, as a result of the applicant’s counsel pointing out the error on the coversheet, brought the error to his Honour’s attention as follows:

“CRAMER: Your Honour, I would seek to tender the Crown sentence summary although it’s been pointed out by Mr Swaine that there is an error with reference to the offence and the maximum penalties that apply on the coversheet.

HIS HONOUR: It’s ten with seven, is it?

CRAMER: Yes, it’s particularised there as a 35(2). The offence which was committed for sentence was a 35(4) offence, being seven and three. So before proceeding--

HIS HONOUR: It’s not a wounding, is it?

CRAMER: It’s been committed as a wounding.

HIS HONOUR: It has been committed as a wounding?

CRAMER: Yes, your Honour.

HIS HONOUR: All right, so it’s seven with three; is that right?

CRAMER: Yes, your Honour, and I apologise for that.

HIS HONOUR: Just let me have a look here, please. Yes, recklessly wound, all right, I see it there. All right, yes, thank you.”^[2]

It can be seen from this passage that the sentencing judge was aware of the error in the identification of the relevant provision and specifically had in mind that the correct offence for which the applicant was to be sentenced was reckless wounding. His Honour expressly identified the correct maximum penalty, 7 years, and the correct standard non-parole period, 3 years.

(3) When the documentation was tendered before the sentencing judge, further difficulties were identified:

“CRAMER: In that bundle, your Honour, there’s the Local Court bench papers, agreed facts on sentence, criminal history, custodial history, ICO revocation papers and the sentencing assessment report.

HIS HONOUR: Thank you. Is there any objection to any of that now?

SWAINE: There’s not now, your Honour, no.

HIS HONOUR: I’m grateful, Mr Swaine, for you pointing that out otherwise I would have fallen into appellable error immediately.

SWAINE: I should just note, your Honour, that my submissions refer to it as a 35(2). The error was only found more recently than that and the other aspect is I believe the agreed facts, although I may be wrong, I think may also have 35(2) on the top of them.

CRAMER: They reference 35(2).”^[3] (Emphasis added.)

From the emphasised portion of this passage, it can be seen that his Honour was aware of the risk of falling into error by contravening the De Simoni principle.

(4) His Honour then sought to address part of the problem of the incorrect material being put before him by correcting some of the documentation by hand and having corrected documentation provided by the Crown at a later time as follows:

“HIS HONOUR: All right, thank you. Do you just want to make those amendments by hand, Mr Crown? Having been put on the record they will be noted on the documents which I will admit thereafter without objection.

...

[After another error on the coversheet was dealt with, the proceedings continued.]

HIS HONOUR: Right, sorry, that’s my error there. So 24 September is correct. 26 September is correct. The year is changed now by me to reveal 2019 and that handwritten endorsement on the Crown sentence summary coversheet now makes it entirely correct, does it, Mr Swaine?

SWAINE: Perhaps not entirely correct, your Honour. I just note in the top left-hand corner where it lists the offences as reckless cause GBH, it should read as reckless wound, of course.

HIS HONOUR: All right, what I’ll do, Mr Crown, all of this having been put on the record, is invite you to, at some later stage with the consent of your learned friend, provide me with a document which doesn’t require any handwritten endorsement and I will substitute that for the coversheet, all right? All I need to know are the facts so I think I now do. So in those circumstances, aside from that remaining task, Mr Crown, is there anything else? I got your written submissions here so do you want to provide those?”^[4] (Emphasis added.)

Unfortunately, the Agreed Facts on Sentence, as well as the Crown Sentence Summary, had been prepared on the basis that the applicant was to be sentenced for the recklessly causing grievous bodily harm offence, not reckless wounding. The emphasised portion above indicates that his Honour was aware of the need to identify the facts establishing reckless wounding, not grievous bodily harm, as the basis for the sentencing exercise.

(5) The applicant’s written submissions had also been prepared on the incorrect basis that the applicant was to be sentenced for recklessly causing grievous bodily harm, but his Honour was once again astute to ensure that the applicant’s counsel address the correct offence of reckless wounding in his submissions as follows:

“...

[After the defence written submissions were marked for identification, the proceedings continued.]

SWAINE: I just note, your Honour, with respect to the offence, I have referred to it as a 35(2) with the incorrect maximum penalty and standard non-parole period therein.

HIS HONOUR: Yes, you’ve got wounding offences as what you’re addressing.

SWAINE: The wounding offences forming the basis of it, exactly, your Honour.

HIS HONOUR: So it’s seven with three, all right. Is there anything else at this stage?

...

SWAINE: I’d just add, your Honour, perhaps with respect to the seriousness of the offence, it is acknowledged that the head injury was inflicted by an approximately 1 metre long broken chair leg. It’s accepted that that was used as a weapon on these circumstances, although not a traditional description of a weapon perhaps, but certainly in these circumstances that is accepted that it was used as a weapon. There was immediate bleeding from the victim’s head. Perhaps what’s notable, your Honour, is that the offender then assisted. There was significant--

HIS HONOUR: I see that but, of course, the victim then leaves and is found by the police bleeding on the street.

...

SWAINE: ... There’s certainly no evidence before your Honour that there was much of a time lapse between the offence and obtaining something to attempt to stop the bleeding, albeit unsuccessfully in those types of head wounds, but certainly telling the victim to put the pressure on the wound there was that effort, your Honour.

HIS HONOUR: As a consequence of that wound, and combined with its infliction, was the brain injury.

SWAINE: There was an injury which required an operation, the craniotomy, presumably, to reduce pressure on the brain from bleeding. That’s not obviously in the facts but your Honour would, of course, be familiar with that type of operation.

...

HIS HONOUR: You’d agree that that’s a collateral consequence of the wounding?

SWAINE: Yes, your Honour, there’s no argument with that.”^[5] (Emphasis added.)

The latter two emphasised passages indicate that his Honour was aware that he should not take the head injury into account as part of the wounding; its only potential relevance was said to be as a “collateral consequence” of the wounding. The applicant’s counsel did not contend that this was not so.

(6) Later, after the defence submissions and the commencement of the Crown’s submissions, his Honour returned to the significance of the consequences of the wounding in the following passage:

“HIS HONOUR: ... I’m compelled to look at not just the injury but all the circumstances, as you rightly point out. If I might refer to some law in the area that I’ve recently just addressed in another matter, in Manocha v R [2019] NSWCCA 122, the objective seriousness of the offence is primarily dependent upon the mental element, recklessness, and the consequences, but it’s not entirely. ... [N]onetheless, it’s a serious matter.

CRAMER: It is.”^[6]

This comment is consistent with his Honour being aware of, and intending to apply, the De Simoni principle while at the same time making a proper assessment of the seriousness of the wounding based on all the circumstances.

(7) Later, during argument, the sentencing judge returned to how the degree of recklessness might be assessed and the appropriateness of an ICO in the present case as follows:

“HIS HONOUR: I do think there’s a high degree of recklessness here. You cannot hit a bloke on the head with a chair leg with things protruding from it when he’s not prepared and there’s no notice and expect that there isn’t going to be significant injuries. So to the extent that I’m obliged to review that level of recklessness in order to determine the objective seriousness, alongside of the consequences, which were almost life-threatening – I won’t go that far because I don’t want to make an error, but he’s been flown to hospital and he’s had the pressure on his brain released potentially by the removal of bone and he was in there for quite a while – I certainly can’t accede to your submission about an ICO.”^[7] (Emphasis added.)

The emphasised comment by his Honour demonstrates his awareness of the limitation which the De Simoni principle placed upon the factual findings which he could make and the facts which he could take into account in this case.

(8) In addition, in his remarks on sentence, the sentencing judge identified at the outset the correct section, described the offence for which he was sentencing the applicant correctly and noted the correct maximum penalty and the correct non-parole period.

(9) While his Honour listed all the injuries suffered by Mr Pittman, including the extradural haematoma requiring an emergency craniotomy, the sentencing judge only used that information to assess the seriousness of the wounding and did not, in effect, sentence the applicant for the more serious offence of recklessly causing grievous bodily harm. This is clear from the following passage:

“Nonetheless this is a very serious matter, a very serious offence and the fact that he received the injuries he did, seemingly without provocation, is really quite concerning. When one comes to deal with matters of this sort there are a number of cases which have made, one might have thought, the common-sense observation that in assessing the objective seriousness of this kind of offence, one is primarily required to consider the extent of the recklessness and the consequences.

The consequences here are quite clearly significant. This is a wounding nonetheless but it had consequences which were reflective of not insignificant injury. In addition to that, a striking to that area of the head by use of an implement, the leg, the chair leg, which was delivered in circumstances where it was relatively unexpected shows in my mind a very significant degree of recklessness.”^[8] (Emphasis added.)

61 Finally, it can be noted that the proceedings were heard while his Honour was dealing with other matters in a busy list, and the remarks on sentence were delivered ex tempore. The sentencing judge, a very experienced criminal lawyer, was placed in a difficult position by the errors made by both sides in preparing inappropriate material for him to consider. His Honour took steps to ensure that the errors did not infect the exercise of his sentencing discretion, and the comments made during submissions and his remarks on sentence demonstrated his awareness of the applicable principle in De Simoni and his compliance with it, notwithstanding the unsatisfactory form of the written material put before him in the present case.

62 For these reasons, I would reject the first ground of appeal.

Ground 2 — Manifest excess

63 The second ground of appeal raises the contention that the sentence imposed by Turnbull SC DCJ, including the non-parole period, was manifestly excessive. The principles to be applied when this court is considering such a ground of appeal were not in dispute between the parties.

Submissions

64 The applicant submitted in substance that the head sentence of four years’ imprisonment, after the application of the 25% discount for the applicant’s plea of guilty, meant that the starting point for the sentence was five years and four months. Given that the maximum penalty for the offence in question was seven years’ imprisonment and that the sentencing judge had found the objective seriousness of the offence to be below the mid range, albeit at the upper end of the lower range, it was submitted that the sentence was unreasonable or plainly unjust. A similar submission was made in relation to the non-parole period of two years imposed by the sentencing judge compared with the standard non-parole period of three years.

65 Even if the applicant’s criminal history did not entitle him to any leniency, it was submitted that the sentence imposed was simply unavailable as an exercise of the sentencing discretion for what had been found to be a below mid range offence. This was said to be particularly so in the present case where the principles in Bugmy were to be afforded “full weight”, as found by the sentencing judge.

66 The Crown submitted that, in light of the applicable principles concerning when a sentence is manifestly excessive, the applicant’s sentence should not be regarded as unreasonable or plainly unjust, in summary because:

(1) the offence was to be assessed against the legislative guideposts of the maximum penalty of seven years and the standard non-parole period of three years;

(2) the offence was unprovoked, serious and committed with a high degree of recklessness;

(3) the applicant’s criminal record did not entitle him to any leniency, the offence had been committed while the applicant was subject to an ICO and an element of personal deterrence was required;

(4) while “full weight” was to be given to the principles in Bugmy, this case also required consideration of protection of the community;

(5) a generous finding of special circumstances had been made leading to a ratio in the order of 50%, and, as a result of the application of the principle of totality, the sentence had been backdated by six months so as to be partially concurrent with the time to be served in custody as a result of revocation of the ICO.

Consideration

67 The applicable principles and relevant authorities which are to be considered when determining whether a sentence is manifestly excessive were conveniently summarised by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

It is not to the point that this Court might have exercised the sentencing discretion differently.

There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

68 In the present case, the applicant pleaded guilty to an offence of reckless wounding contrary to s 35(4) of the Crimes Act. That offence attracted a maximum penalty of 7 years’ imprisonment and a standard non-parole period of 3 years. These statutory guideposts are to be taken into account as part of the full range of factors which determine the appropriate sentence for the offence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. In this regard, it can be noted that s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act) provides:

For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the Table to this Division that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

69 The sentence imposed on the applicant was 4 years’ imprisonment with a non‑parole period of 2 years, after a reduction of 25% because of the applicant’s early guilty plea. It follows that the notional starting point for the sentence must have been 5 years and 4 months.

70 In the present case, his Honour characterised the offending as “at the upper end of the lower range of objective seriousness”. In addition, and as outlined above, the applicant’s subjective case contained powerful factors weighing in favour of mitigation of the sentence as well as some other factors which tended in the opposite direction.

71 Even taking into account all of the factors identified by the Crown in submissions as part of a consideration of all of the matters that are relevant to fixing the sentence in this case, it appears to me that it should be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the sentencing judge’s reasons set out in his remarks on sentence. The starting point, before the 25% discount, of 5 years and 4 months was, in my view, outside the available range of sentences for an offence with a maximum penalty of 7 years and which was assessed as being below the mid range of objective seriousness, taking into account the applicant’s strong subjective case and all of the other relevant factors both objective and subjective as well as the purposes of sentencing and the statutory guideposts of the maximum penalty and the standard non-parole period.

72 For these reasons, I would uphold the appeal on the basis of ground 2.

Resentencing

73 Since the second ground of appeal has been made out, it now falls to this Court to exercise the sentencing discretion afresh and independently and, in doing so, the Court is to take into account the purposes of sentencing as well as the factors that the Sentencing Procedure Act and any other Act or rule of law requires or permits: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) at [42].

74 In accordance with s 6(3) of the Criminal Appeal Act, if, having carried out the process required by Kentwell, the Court is of the opinion that some other sentence (generally less severe) is warranted in law and should have been passed, it is required to quash the sentence imposed and sentence the applicant accordingly. Otherwise, the appeal is to be dismissed.

75 DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 establishes, at [9], that where this Court is resentencing, the sentencing discretion is to be exercised having regard to the material that was before the sentencing judge, the sentencing judge’s unchallenged factual findings, and any relevant evidence of post-sentence conduct.

76 I have set out above the sentencing judge’s findings of fact, none of which was challenged in this appeal. I have taken them into account together with the material that was before his Honour.

77 Having regard to all of the matters relevant to the assessment of objective seriousness, I find that I cannot accept his Honour’s characterisation of the seriousness of the offending as being in the lower range, albeit at the upper end. It seems to me that the objective circumstances of the wounding, including the recklessness involved and the consequences, mean that the relative seriousness of the applicant’s offending should be characterised as falling somewhere in the middle of the range.

78 Subject to what is set out in the following paragraphs, I adopt his Honour’s findings and assessments as to the applicant’s subjective case, especially the appropriateness of giving full weight to the applicant’s background and profound childhood deprivation, in accordance with the principles in Bugmy at [43] and [44]. I also observe, however, that the need for protection of the community in the present case tends, to a certain extent, against the otherwise mitigating effect of the application of those principles.

79 In addition to the material that was before Turnbull SC DCJ, there was before this Court an affidavit of the applicant affirmed 5 August 2021. Based on this affidavit, I accept that:

(1) the applicant is now on the buprenorphine program and he has found it is helping him address his drug addiction;

(2) he now wants to undertake drug rehabilitation programs that are available to him;

(3) he is motivated to change his life, provide a better life for his children and stay away from drugs, including by remaining on the buprenorphine program after he is released;

(4) he has ongoing support from his partner, Belinda, who is prepared to provide accommodation when he is released as well as support from his former partner.

80 In these circumstances, I am prepared to accept that the applicant’s prospects of rehabilitation and risk of re-offending are now more positive than they were when he was originally sentenced by Turnbull SC DCJ.

81 I propose to adopt the sentencing judge’s approach of backdating the sentence so that it commences on 16 April 2020 and thus is partially concurrent with the term served as a result of revocation of the ICO.

82 I also find that there are special circumstances, having regard to:

(1) the applicant’s need for an extended period of treatment and supervision to address his drug addiction; and

(2) the accumulation of this sentence on the time served in custody as a result of revocation of the ICO.

Sentence

83 Having undertaken the task required by Kentwell, and bearing in mind the purposes of sentencing in s 3A of the Sentencing Procedure Act, the other requirements in that Act, the relevant principles concerning sentencing, and all of the objective and subjective circumstances, in my view the applicant should be sentenced to imprisonment for 3 years, commencing on 16 April 2020 and expiring on 15 April 2023, with a non-parole period of 1 year and 6 months expiring on 15 October 2021. This non-parole period is 50% of the head sentence and gives appropriate effect to the finding of special circumstances referred to above.

Orders

84 For these reasons, I propose that the orders of the Court should be:

(1) Leave to appeal is granted.

(2) The appeal is allowed.

(3) The sentence imposed by the District Court on 15 October 2020 is quashed.

(4) In lieu, the applicant is sentenced to imprisonment for a non-parole period of 1 year and 6 months commencing on 16 April 2020 and expiring on 15 October 2021 and a balance of the term of 1 year and 6 months expiring on 15 April 2023.

**********

^[1] Tcpt, 15 October 2020, pp 4-5.

^[2] Tcpt, 15 October 2020, p 2.

^[3] Tcpt, 15 October 2020, pp 2-3.

^[4] Tcpt, 15 October 2020, pp 3-4.

^[5] Tcpt, 15 October 2020, pp 5-6.

^[6] Tcpt, 15 October 2020, pp 12-13.

^[7] Tcpt, 15 October 2020, p 13.

^[8] Tcpt, 15 October 2020, pp 3-4.

Authorities Cited19

Referred to (19)