Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Pattalis v R [2013] NSWCCA 171
• Hearing dates: 15 July 2013
• Decision date: 24 July 2013
• Before: Hoeben CJ at CL at [1]; McCallum J at [26]; Schmidt J at [27]

Decision

Leave to appeal refused.

• Catchwords: CRIMINAL LAW - sentence appeal - assault occasioning actual bodily harm - unexplained attack on patron outside nightclub - single punch - serious injuries suffered by victim - submission that sentence manifestly excessive - sentence not shown to be unreasonable or plainly unjust - leave to appeal refused.
• Legislation Cited: Crimes Act 1900 (NSW) - s59(1)
• Cases Cited: Hayek v R [2010] NSWCCA 139; R v De Simoni [1981] HCA 31; 147 CLR 383; Vuni v Regina [2006] NSWCCA 171
• Category: Principal judgment
• Parties: Alex Kosta Pattalis - Applicant; Regina - Respondent Crown
• Representation: Counsel: Mr A Radojev - Applicant; Ms V Lydiard - Respondent Crown; Solicitors: CBD Lawyers - Applicant; S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
• File Number(s): 2011/75570

Decision under appeal

• Date of Decision: 2012-11-02 00:00:00
• Before: Judge Berman SC DCJ
• File Number(s): 2011/75570

Judgment

1 HOEBEN CJ at CL:

Offence and sentence

The applicant pleaded guilty to one offence of assault occasioning actual bodily harm, contrary to s59(1) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 5 years. On 2 November 2012 the applicant was sentenced by Judge Berman SC to imprisonment with a non-parole period of 12 months commencing 2 November 2012 and expiring 1 November 2013, with a balance of term of 12 months to expire on 1 November 2014.

2 The applicant seeks leave to appeal from this sentence on a single ground:

The sentence was manifestly excessive

Factual background

3 The following facts are taken from the Agreed Statement of Facts which was before the primary judge.

4 At around 3.25am on Saturday, 1 May 2010 the victim left a nightclub on Pitt Street, Sydney, and stood outside waiting for friends within the club to join him. At about that time the applicant and an unknown male walked out of the club. The applicant and the unknown male turned to face the victim, who was approximately four metres away from them. The applicant then punched the victim in the face with a closed fist. The punch struck the victim on the left side of his face, knocking him to the ground.

5 While the victim was on the ground, the unknown male approached him and kicked him in the buttocks with his right foot. The applicant and the unknown male walked from the area leaving the victim lying motionless on the ground. A witness to the incident came to the assistance of the victim and alerted security personnel from the nightclub, who called for an ambulance and police.

6 When the police arrived, the victim was attempting to stand but kept collapsing. His face was covered in blood and he was very distressed. An ambulance took the victim to St Vincent's Hospital Emergency Department. When interviewed by the police at approximately 4am, the victim was unable to recall any detail of the incident.

7 As a result of the attack, the victim suffered generalised facial pain, a fracture of the left eye socket, a comminuted fracture of the left nasal bone and nasal septum and concussion. He later had to have his nose re-broken and reset. He also had some abrasions and bruising to the face.

8 The actions of the applicant and the unknown male were captured on a CCTV system. When interviewed by the police, and in the Probation and Parole report, the applicant was not able to offer any explanation for his conduct. He said that he could not remember any details of the offence.

Sentence proceedings

9 His Honour accepted that it was a single forceful punch which caused the victim to fall to the ground. He noted that not only were the injuries significant, but the victim had not made a full recovery. He still had physical deformities and suffered the "inevitable emotional consequences that flow from being the victim of apparently random violence".

10 In relation to the applicant's subjective case, the primary judge noted that he had been raised by his father, with whom he had a good relationship. He was quite a good rugby league player and was employed in that occupation until injury forced him to retire. At the time of the incident, he was working part-time with his sister, who ran a fitness centre. He was good at that job. He told the Probation and Parole officer that he did not consider that he had an alcohol problem, despite bouts of heavy drinking from time to time.

11 His Honour observed that the "most that can be said to explain why this offence occurred was that the offender was drunk at the time. That may have caused him to act out of character and may be a factor in assessing the prospects of the offender's rehabilitation but it does little to reduce the objective gravity of what the offender did" (ROS 2.6).

12 The primary judge was prepared to accept that the actions of the applicant on this night were out of character. His Honour did, however, note a previous conviction for common assault, which his Honour thought could not have been of a serious kind because the applicant received a s9 bond for it.

13 Because the legal advisors for the applicant and the Crown could not agree as to the facts concerning the incident, the applicant only entered a plea of guilty after he was committed for trial. For that reason, the primary judge allowed a discount of 20 percent to reflect the utilitarian value of the plea. His Honour took into account that the matter could have been dealt with in the Local Court.

14 His Honour took into account that there had been some delay in bringing the sentence proceedings. His Honour did not know why it took so long for the applicant to be arrested.

15 His Honour took into account that the applicant expressed some remorse and that there were prospects for his rehabilitation. Because there was no real explanation for the offence, his Honour found it difficult to assess how good those prospects for rehabilitation were. His Honour thought that the sentence which he was about to impose would operate as a significant personal deterrent against the applicant committing a similar offence.

16 His Honour rejected the applicant's submission that a non-custodial sentence should be imposed. Although his Honour appreciated that imprisonment was very much a sentence of last resort, he was satisfied that no other sentence was appropriate. His Honour regarded general deterrence as being very important in this matter. His Honour considered that people were entitled to walk along the street without being injured in a significant way. His Honour noted that on occasions a single punch, such as the applicant inflicted on the victim, had led to death.

Appeal

17 The applicant submitted that the primary judge failed to have proper regard to his age (23 at the time of the incident and 26 when sentenced). He submitted that the primary judge had impermissibly focused on the injury to the victim and on his personal revulsion to "street violence". The applicant submitted that his Honour had failed to take appropriate note of his modest criminal history, that he was facing a custodial sentence for the first time and that only a single blow was involved. The applicant submitted that when these matters and his subjective case were taken into account, the sentence imposed was manifestly excessive and a lesser sentence was warranted.

Consideration

18 The primary judge was entitled to take into account the full extent of the injuries suffered by the victim. It was plainly open to conclude, as his Honour did, that those injuries were "quite serious". In sentencing the applicant on that basis, his Honour was careful not to sentence him as though he had committed the more serious offence of recklessly inflicting grievous bodily harm, expressly applying the principle stated in R v De Simoni [1981] HCA 31; 147 CLR 383.

19 His Honour took into account both general deterrence and specific deterrence as he was obliged to. The importance of general deterrence is obvious, as was conceded by the applicant. Specific deterrence was also important given that the applicant had a previous conviction for assault the detail of which he could not remember, and given that the applicant could not remember the detail of his offending behaviour on this occasion. The notation in the Probation and Parole report that the applicant did not consider that he had a drinking problem, despite bouts of heavy drinking, was relevant to this consideration.

20 The sole ground of appeal in this matter is that the sentence was manifestly excessive. As was said in Vuni v Regina [2006] NSWCCA 171 at [33] (Hoeben J with whom Tobias JA and James J agreed):

"33 To establish that a sentence is manifestly excessive an applicant has to demonstrate that the sentence was "unreasonable or plainly unjust" (Dinsdale (2000) 202 CLR 321 at 325). This has to be established in a context where 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 consistency of approach and application of principle. Most pertinently the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that of the sentencing judge. (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [26] - [28])."

21 That principle was recently restated in Hayek v R [2010] NSWCCA 139 at [37] where McCallum J (with whom Simpson and Johnson JJ agreed) said:

"37 The principles to be applied in determining whether a sentence is manifestly excessive are well known. ... the task is not for this Court to decide whether it would have exercised its discretion differently. The applicant must demonstrate that the sentence was "unreasonable or plainly unjust": Vuni v R [2006] NSWCCA 171 at [33], citing Dinsdale (2002) 202 CLR 321 at 325; endorsed in Stewart v R [2009] NSWCCA 152 at [16] - [17]."

22 The submissions of the applicant were not directed towards establishing that the sentence imposed by his Honour was "unreasonable or plainly unjust" but to persuading the Court to impose a lesser sentence. The Court was, in effect, invited to replace the sentencing discretion of the primary judge with its own. Even if this Court had been so persuaded, to do so would be contrary to principle and to the long line of authority to which reference has been made above.

23 Even if such an approach were open to this Court, no persuasive reason has been put forward as to why the Court would interfere with the sentence imposed by the primary judge. Over recent years, the incidence of such offences, particularly when associated with the excessive consumption of alcohol, have been all too frequent. Such offences are a cause for grave disquiet and the community is understandably angry and frustrated at their occurrence. Regrettably, it is now notorious (as his Honour recognised) that a single punch can not only cause catastrophic injuries but also death. For offences of this kind, the community has the rightful expectation that judicial officers will impose meaningful penalties.

24 It follows that the applicant has failed to establish that the sentence imposed upon him by the primary judge was manifestly excessive.

25 I would refuse to grant leave to appeal in this matter.

26 McCALLUM J: I agree with Hoeben CJ at CL.

27 SCHMIDT J: I agree with Hoeben CJ at CL.

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Decision last updated: 24 July 2013