Hendra v R [2013] NSWCCA 151 (27 June 2013)

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Hendra v R [2013] NSWCCA 151 (27 June 2013)

Last Updated: 17 July 2013

Court of Criminal Appeal New South Wales

Case Title:	Hendra v R
Medium Neutral Citation:	[2013] NSWCCA 151
Hearing Date(s):	17 June 2013
Decision Date:	27 June 2013
Before:	Hoeben CJ at CL at [1] RA Hulme J at [34] McCallum J at [2]
Decision:	Leave to appeal granted; appeal dismissed.
Catchwords:	CRIMINAL LAW - sentence appeal - whether trial judge failed to take into account the availability of summary disposal - whether legitimate sense of grievance - whether trial judge erred in characterisation of objective seriousness - whether sentence manifestly excessive
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986
Cases Cited:	R v Palmer [2005] NSWCCA 349 Zreika v R [2012] NSWCCA 44
Category:	Principal judgment
Parties:	Menelaus Hendra (Applicant) Regina (Respondent)
Representation
- Counsel:	Counsel: J Dwyer (Crown) D Carroll (Applicant)
- Solicitors:	Solicitors: Director of Public Prosecutions (Crown) Legal Aid (Applicant)
File Number(s):	2011/288740
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Berman DCJ
- Date of Decision:	26 October 2012
- Citation:	R v Hendra [2012] NSWDC 198
- Court File Number(s):	2011/288740
Publication Restriction:	Nil

JUDGMENT

1. HOEBEN CJ at CL: I agree with McCallum J.
   
2. McCALLUM J: On 28 August 2011, a man was assaulted by a number of security guards at the Ivy nightclub. The applicant was one of the security guards charged as a result of that incident. He was arraigned on an indictment containing one count of assault occasioning actual bodily harm in company contrary to s 59(2) of the Crimes Act 1900 and one count of common assault contrary to s 61 of the Act. He pleaded not guilty to both offences and was tried before Berman DCJ with a jury. He represented himself at the trial. The jury returned a verdict of not guilty of the charge of assault occasioning actual bodily harm in company and guilty of the charge of common assault.
   
3. The applicant was legally represented at the proceedings on sentence. The maximum penalty for the offence of common assault is imprisonment for a period of two years. The judge sentenced the applicant to imprisonment with a non-parole period of nine months and a balance of term of nine months, giving a total sentence of 18 months imprisonment. The applicant seeks leave to appeal against that sentence.
   

Circumstances of the offence

4. The victim of the assault was Mr Nicholas Barsoum. The judge found that Mr Barsoum was drinking at the Ivy when, in the early hours of the morning, he was approached by an ex-girlfriend, who punched him. He became cross and grabbed her as she ran away. That led to the intervention of security guards other than the applicant. They directed Mr Barsoum to leave the nightclub and escorted him out of the premises. He remonstrated with them. One of the security guards, probably Paul Fenukitau, punched him in the face. The punch caused a significant injury to Mr Barsoum's lip, which later required stitching. Mr Barsoum sent a text message to friends who assembled outside the Ivy and returned to talk to the security guards, evidently to find out the name of the security guard who had assaulted Mr Barsoum.
   
5. The judge stated that it was difficult to tell from closed-circuit television footage whether the violence that followed was started by Mr Barsoum and his friends or by the security guards. Within a short space of time, the security guards had isolated Mr Barsoum and he was set upon outside the club. The judge described him as having been "beaten savagely", being kicked, punched and stomped upon by the guards. It is important to note, as observed more than once by the sentencing judge, that the applicant is not alleged to have been involved in that part of the assault. The judge's purpose in reciting that history was that it explained the condition in which the applicant found Mr Barsoum, which the judge evidently regarded as a significant factor aggravating the seriousness of the offence. An eyewitness who saw Mr Barsoum after he had been assaulted outside the club said:
   

His face was like, I've never seen anything like his face. He was just, I couldn't even see his eyes, like it was like somebody literally drew a line, like just a thick line on his face and that was his eyes. Like, he was just like a balloon. His face was like, blown up like a balloon and there was blood all over him. I couldn't even recognise what nationality he was, anything.

6. Mr Barsoum was then taken downstairs inside the club. The judge, who saw the CCTV footage during the trial, described it as revealing a man "who had been beaten so much he was barely able to sit upon a stool". While Mr Barsoum was seated on the stool, the applicant approached him and kicked him once, apparently to the stomach or chest area. There was CCTV footage of the assault which was viewed by the judge during the trial.
   
7. The applicant had at his trial run a defence that he was acting in self- defence on the basis that, as he approached Mr Barsoum to assess him for the purposes of first aid, Mr Barsoum spat blood at him. The judge, consistently with the jury's verdict, rejected that contention and found beyond reasonable doubt that if Mr Barsoum did spit blood, it was only in response to other security guards spitting at him. The judge found that the applicant was not acting in self-defence or in the defence of any other person but was an aggressor who had lost his temper.
   
8. After Mr Barsoum was kicked by the applicant, other security guards continued to beat him. The judge noted that the applicant was second in charge of security that evening and had done nothing to intervene to prevent the further attack upon Mr Barsoum.
   
9. The judge noted that, in accordance with the jury's verdict and noting that Mr Barsoum had in fact suffered actual bodily harm at the hands of others during the downstairs phase of the attack, it should be concluded that the jury was not satisfied beyond reasonable doubt that the applicant was acting in company. However, as noted by the judge, it did not follow that what occurred after the applicant kicked Mr Barsoum should be ignored. The judge said:
   

Having kicked Mr Barsoum, no feelings of remorse came upon [the applicant]. He did not do a single thing as Mr Barsoum was savagely beaten again. He looked after Mr Fenukitau and Mr Vacic [another security guard], ignoring what was happening to Mr Barsoum a short distance away. This lack of remorse has continued to this day.

10. His Honour's reference to the continuing lack of remorse found unequivocal support in the report of a probation and parole officer who recorded that the applicant had told her he had no remorse in relation to the commission of the offence. As to that evidence, the judge described the applicant's attitude towards his criminality as "remarkable" and noted that the applicant appeared to see himself as the victim, accusing police who investigated the matter as having political allies and "being primed for bigger things".
    
11. The judge acknowledged that the assault was based on a single blow but described it as one revealed by the video evidence as being "a significant one". His Honour also recorded the fact that it was a blow inflicted on a man who was "already exhibiting the signs of terrible injuries". His Honour concluded that it was "one of the worst types of common assault that it is possible to contemplate".
    
12. As to the applicant's subjective circumstances, the judge noted that the applicant had a difficult upbringing entailing violence at the hands of his own father. The violence he had experienced during his childhood had been bad enough to prompt the applicant to leave home at the age of 15. The judge noted the applicant's history of gainful employment and observed that character references tendered on his behalf spoke very highly of him. The references included a description of the applicant's good works particularly at the time of the Brisbane floods when he had given his own time and organised other people to travel to Queensland to assist people harmed through the floods. The judge noted that the applicant had no prior convictions which, noting his age of 35 years, the judge thought spoke strongly of the applicant's underlying good character.
    
13. The first ground of appeal is:
    

that his Honour erred in failing to take into consideration that the matter could have been disposed of in the Local Court.

14. Chapter 5 of the Criminal Procedure Act 1986 requires certain indictable offences to be dealt with summarily (in the Local Court) unless an election is made to have the offence dealt with on indictment. The relevant offences are listed in schedule 1 to the Act. The schedule is divided into two tables. Offences listed in table 1 are to be dealt with summarily unless either the prosecutor or the person charged elects to have it dealt with on indictment. Offences listed in table 2 are required to be dealt with summarily unless the prosecutor elects to have the offence dealt with on indictment.
    
15. The offence of common assault under s 61 of the Crimes Act is a table 2 offence and was accordingly required to be dealt with summarily in the absence of an election by the prosecutor. The maximum penalty that the Local Court could have imposed had the offence been dealt with summarily was imprisonment for 12 months or a fine: s 268(2)(b) of the Criminal Procedure Act as it stood on the date of the offence (s 268 has since been amended so as to provide a uniform maximum term of imprisonment for table 2 offences of two years unless the maximum term provided by law for the offence is shorter: s 268(1A)).
    
16. Accordingly, had the applicant been sentenced in the Local Court, the maximum penalty that Court could have imposed was imprisonment for 12 months, whereas in the District Court he faced the maximum penalty of two years prescribed by s 61 of the Crimes Act. The relevance of that circumstance was not in dispute in the appeal. The applicant relied upon the summary of the applicable principles by Hall J in R v Palmer [2005] NSWCCA 349 at [15]. As his Honour noted, when an offence is dealt with on indictment which could have been dealt with summarily in the Local Court, the District Court is not bound by any lower maximum penalty that binds the Local Court, but may have regard to that circumstance in an appropriate case. The fact that the sentencing judge does not expressly refer to the fact that the matter could have been dealt with summarily does not necessarily establish that the judge failed to have regard to that consideration. One way of testing whether or not silence on that issue is indicative of error is to consider whether the sentence appears to be manifestly excessive and whether a substantially lesser sentence was appropriate.
    
17. It may be acknowledged that the sentencing judge in the present case did not expressly refer to the fact that the offence could have been dealt with summarily in the Local Court. However, it should be observed that no submission was put to his Honour on that issue. For the reasons explained in Johnson J's careful treatment of a similar argument in Zreika v R [2012] NSWCCA 44, the failure to raise the possibility of summary disposal as a mitigating factor at the time when an offender is being sentenced in the District Court may be seen as "a very practical barometer as to whether such an argument was realistically available in the circumstances": at [83]. Johnson J stated at [111] to [112]:
    

111. The ground of appeal can only be meaningful if this Court determines that the total sentence for the particular offence should not have exceeded the jurisdictional limit of the Local Court. It might be thought that a ground asserting manifest excess is capable of covering the same ground, if the position is that clear in the particular case.

112. Unless it is plainly wrong that the offence is in the District Court, it is difficult to see how an offender can succeed on a ground of appeal which claims that a relevant factor has not been taken into account by the sentencing Judge.

18. Having regard to the experience of the sentencing judge in the present case, I consider it unlikely that his Honour failed to have regard to the availability of summary disposal of the charge. For the reasons explained in Zreika, it is otherwise appropriate to return to this ground in the context of the ground of manifest excess considered below.
    
19. Ground 2 is:
    

that the applicant has a legitimate sense of grievance when his sentence is compared to related offenders.

20. In support of that ground, the applicant pointed to the sentences imposed on Emmanouil Ntaras and Jason Mendelow, who set upon the victim while he was sitting on the stool downstairs, and Paul Fenukitau, who attacked the victim upstairs (striking him many times around the head) and punched him again to the head whilst he was seated on the stool downstairs.
    
21. The Crown provided a helpful table comparing the circumstances of the four sentences. The three co-offenders were sentenced by Flannery DCJ after the applicant had been sentenced. Each had pleaded guilty to an offence of assault occasioning actual bodily harm in company, which carries a maximum penalty of 7 years' imprisonment. Mr Ntaras and Mr Fenukitau were given the maximum discount of 25 percent to reflect their pleas. Mr Mendelow pleaded guilty at the earliest opportunity but subsequently withdrew his plea, entering it again at a later point. He received a discount of 20 percent.
    
22. Taking the pleas into account, the starting point for Mr Ntaras was a total sentence of 3 years and for Mr Mendelow a total sentence of 2 years and 6 months. Mr Ntaras received a non-parole period of 14 months with an additional term of 13 months while Mr Mendelow received a non-parole period of 12 months with an additional term of 12 months. Mr Fenukitau was sentenced to a term of imprisonment of 22 and a half months which was ordered to be served by way of intensive correction order.
    
23. Mr Ntaras was sentenced on the basis that he had subjected the victim to a prolonged attack which was due to a desire for retribution and extreme irritation he felt towards the victim for talking back.
    
24. Mr Mendelow was sentenced on the basis that he was in company with Mr Ntaras during his prolonged attack upon the victim. Her Honour concluded as to each offender that their offences were serious but not in the worst category.
    
25. Each had strong subjective circumstances. As to Mr Mendelow, Flannery DCJ accepted the assessment of a psychiatrist, Dr Olav Nielssen, that the offender had a low risk of re-offending. Mr Mendelow gave evidence at the proceedings on sentence. Her Honour accepted that he was "very much" sorry for what he had done; that there was little likelihood of his re-offending and that his prospects of rehabilitation were good. Her Honour made similar findings in respect of Mr Ntaras. Her Honour found that his behaviour on the evening was an aberration for which he was now remorsefull and that he had good prospects of rehabilitation and was unlikely to re-offend.
    
26. The applicant's argument in support of ground 2 relied principally on the case of Mr Fenukitau, who was dealt with by the more lenient penalty of serving his term by way of intensive correction order. Specifically, the applicant noted that Mr Fenukitau had a charge of common assault taken into account on a form 1 which was itself objectively more serious or at least indistinguishable from the offence for which the applicant was sentenced. The submission ignores a number of aspects of the sentence passed on Mr Fenukitau. First, his assaults were committed after Mr Barsoum had assaulted him and caused a fracture and laceration to his eye. Flannery DCJ found that, after being struck by Mr Barsoum, Mr Fenukitau was in a state of "hyper arousal" brought about by reactivation of a post-traumatic stress disorder and that he had acted in shock and anger as a result of being struck. That was found to have reduced his ability to respond appropriately, significantly reducing his moral culpability for the offences.
    
27. Mr Fenukitau also had a strong subjective case. He was of good character. The judge found that he was extremely remorseful. He had had trouble forgiving himself for the offences and had undertaken extensive cognitive behavioural therapy to address his offending. The judge found that he was "most unlikely to re-offend". No such findings were made in favour of the applicant in the present case. The applicant's submission also overlooks the aggravating circumstances of his offence which included the fact that he was the second in charge of security that evening and thus in a position in which he should have been controlling violence for the benefit of others, not inflicting it himself.
    
28. I am not persuaded that the applicant should have a legitimate sense of grievance at the penalty imposed upon him in comparison with those imposed on his co-offenders.
    
29. The third ground of appeal is:
    

that his Honour erred in finding that the offence is "one of the worst types of common assault that is possible to contemplate".

30. It is well established that a sentencing judge's characterisation of the degree of objective seriousness of an offence is an evaluative judgment with which this Court will not interfere unless the finding was not open. The sentencing judge had the benefit of hearing all of the evidence at the trial, including viewing the CCTV footage and seeing the applicant give evidence. His Honour evidently placed weight on the vulnerability of the victim due to the horrific injuries he had already sustained and the fact that the applicant was in a position of seniority among the security guards present that evening. The judge squarely raised with counsel the opportunity to say why this was not the worst kind of this offence. The response was unedifying. In my view, the conclusion his Honour reached in assessing the objective seriousness of the offending was well open.
    
31. Ground 4 is that the sentence is manifestly excessive.
    
32. Once it is accepted, as in my view it must be, that it was open to the judge to sentence the offender on the basis that the offence was within the worst type of common assault, in my view it follows that the sentence imposed was within the permissible range. The applicant was sentenced to a term of imprisonment which was three quarters of the maximum penalty. The finding of special circumstances was reflected in a generous adjustment of the statutory ratio and resulted in the imposition of a non-parole period which, had it been imposed as a fixed term, would have been within the range of penalty that could have been imposed in the Local Court.
    
33. I am not persuaded that the sentence imposed was manifestly excessive. The orders I propose are that leave to appeal be granted but that the appeal be dismissed.
    
34. R A HULME J: I agree with McCallum J.
    

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