Solicitors:
Murphys Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2010/95238
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 18 May 2012
Before: Toner SC DCJ
File Number(s): 2010/95238
[2]
Judgment
MEAGHER JA: I agree with RS Hulme AJ.
HIDDEN J: I agree with RS Hulme AJ.
RS HULME AJ: This offender was sentenced on 18 May 2012 by Toner SC DCJ for two offences. The first was of wounding Samantha Holland with intent to murder, an offence contrary to s 27 of the Crimes Act 1900 (NSW) and one which attracts a maximum penalty of 25 years imprisonment. A standard non-parole period of 10 years has been prescribed.
The second offence was of detaining Samantha Holland without her consent and with the intent of obtaining a psychological advantage and, before the detaining actual bodily harm was occasioned to her. This offence is contrary to s 86(2B) of the Crimes Act and attracts a maximum penalty of 20 years' imprisonment.
In arriving at the sentences he imposed Toner DCJ allowed a discount for the utilitarian value of the Applicant's pleas of 10%. The sentences imposed were, on the detention charge, a fixed term of imprisonment of eight years commencing on 17 April 2010 and on the wounding with intent to murder charge, imprisonment for 16 years, including a non-parole period of 11 years, both such periods to commence on 17 April 2010.
The Applicant seeks leave to appeal against those sentences. The grounds of appeal are:
1. His Honour erred in concluding that the offences were aggravated, within the meaning of s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999, because the injury sustained by the victim was substantial, but then in circumstances where the substantial nature of the injury was an element of each offence.
2. His Honour erred in finding that the offences were aggravated, because the victim was "vulnerable" within the meaning of s 21A(2)(l) Crimes (Sentencing Procedure) Act 1999.
3. His Honour erred in failing to recognise the injuries suffered by the applicant as amounting to extra-curial punishment.
4. His Honour erred in finding that the effect of the applicant's injuries were relevant only to the question of special circumstances, and thus only to the term to be served by way of the non-parole period, rather than relevant also to the head sentence.
The Applicant and Ms Holland had been in a relationship for some years. By 5 April 2010 the relationship had broken down. Ms Holland had moved out of the unit they had shared together with some of her possessions. The Applicant told her that he would be moving out of that unit on the weekend of 17 and 18 April, he would move his belongings out on 17 April and would be gone by 10.30am. Ms Holland told him she would arrive after he had left. She arrived at the block of units at about 11.10am but on entering the unit they had shared, saw that the Applicant was still there. A discussion took place during which the Applicant kept reiterating there was no reason for them to be apart to which Ms Holland responded to the effect "the damage to our relationship has already been done."
After something over an hour, Ms Holland said "… I'm done. It's over. I'm going downstairs to let Todd [her brother] in."
The Applicant blocked Ms Holland's access to the front door, then moved out of the way and as the victim turned the door handle, she was pulled back by the Applicant and he started stabbing Ms Holland repeatedly in the back with a knife. He was then holding her around the chest/waist and moving her towards the kitchen.
At one point she went to the kitchen floor and recalls the Applicant straddling her and continuing to stab her. She made two further attempts to escape out the front door but was stopped. He stabbed himself, cut his left wrist, stabbed himself in the neck and again stabbed the victim. He said to the victim, "We will die here together, then we can be together for eternity."
The Applicant moved to stab the victim in the chest but she asked him not to stab her there and he rolled her over and stabbed her a number of times in the back. The victim believed her only chance to escape was to calm the offender and weaken him. She said, "If we are going to do this together, then I should have a turn with the knife." The tip of the knife the offender then had had broken and was embedded in the victim's back so the offender grabbed another knife from the kitchen, handed it to the victim and said "Okay" and lay on his back. The victim stabbed the Applicant in the stomach, giving an extra shove to make sure the knife was in deep and she twisted it. It appeared that some of the Applicant's intestines came out, the Applicant remarking "That was a good one."
There was further stabbing by each, another unsuccessful attempt by the victim to escape and the Applicant stabbed himself four times in the leg.
With a view to answering the phone, the Applicant left the victim. She commenced to escape over a balcony railing but the Applicant pulled her back. Shortly afterwards she passed out. Later she encouraged the Applicant to lie on the bed with her and sometime later he appeared to be passing in and out of consciousness. She again attempted to escape via the balcony, this time managing to swing onto the balcony of the floor below hitting her back on its railings. After discovering that the door from the lower balcony was locked, she climbed over its rail intending to repeat the exercise. She noticed people in the street and called for their help. Someone in that group rang 000, the first call recorded being at 1.54pm.
The victim had arrived at the unit at about 11.11am. Her brother arrived some time later with a view to helping her and at 12.23pm she sent him a text message saying "Give me a couple of minutes [the Applicant] is here. Sorry." At about 1.40pm a real estate agent had opened the front door of the unit for the purposes of an inspection, but seeing red liquid everywhere, he shut the door and left.
The time of the first offence by the Applicant is not recorded but his attack on her must have continued for a very substantial period. The sentencing judge proceeded on the basis that the attack extended over a period of about 40 to 45 minutes.
Police attended, they located two blood stained knives and the Applicant and Ms Holland were taken to hospital.
The wounds suffered by Ms Holland were:
20 stab wounds to her back.
A 20mm laceration to her upper right neck.
A 20mm laceration to the right side of her chin.
A 10mm laceration to her left shoulder.
A 10mm laceration to her upper left arm.
Three further 5-10mm lacerations.
Two collapsed/punctured lungs.
A fracture to the spinous process of her eighth thoracic vertebra.
The Applicant's wounds included:
Multiple stab wounds to his neck, back and flanks including one with abdominal content protruding.
Full penetrating wounds to the right thigh.
A collapsed punctured lung.
The Applicant was treated at the Royal Prince Alfred Hospital between 17 and 23 April. On 24 April he was admitted to the Prince of Wales Hospital for treatment of complications remaining there for a further five days. He was then discharged to the Long Bay (Prison) Hospital where he remained for a further five weeks.
His Honour found that the offences were planned and it was simply a matter of luck that the Applicant failed in his intention to kill Ms Holland. His Honour concluded that the offence of wounding with intent to murder "represents a sustained and determined attempt to kill Ms Holland and thus represents a very serious example of its type." His Honour also observed:
"I find from her victim impact statement that her injuries and disabilities, both physical and psychological, constitute both injury and emotional harm which was and is substantial and thus aggravating these offences. Further, I am of the view that she was vulnerable. She was alone in the apartment with the offender and to a significant extent, was at his mercy, albeit that she, as the facts show, acquitted herself with great courage and intelligence during this prolonged horror. I find this an aggravating feature of these crimes."
His Honour was asked to find that the Applicant had suffered "extra curial-punishment" by reason of the injuries suffered during his attempt to kill Ms Holland and secondly, at the hands of more than one person since he went to jail.
His Honour found in the Applicant's favour in respect of the second of these matters but in respect of the first observed as follows:
"There is no doubt that the injuries he suffered were very substantial and have left him with significant ongoing disabilities, including what appears to be permanent difficulties in controlling his bowel movements. The cause of those injuries is revealed within the facts, as I have found them, beyond reasonable doubt. Some of them were at his own hands, and others were injuries that were inflicted by Ms Holland in the context of those facts.
…
It seems to me that in considering the circumstances in which these injuries occurred the crucial matter in determining whether any mitigation should be allowed in the sentence which otherwise would be imposed - in other words the circumstances themselves - here the undoubted injuries which the offender suffered were in circumstances where the injuries incurred were intrinsic to the commission of the offence itself, not collateral to it. I find that it was the offender's ambition to kill himself, and to kill Ms Holland. To find that because he failed to do so, in other words failed to achieve that ambition and merely suffered injuries as a result of his attempts, either at his own hand, or as a result of his invitation to her to stab him, would in essence be most obscene, and would legitimately be seen not only by Ms Holland, but by the community, as subversive to the rule of law.
I do not propose to mitigate the sentence because of the injuries suffered during his attempt to murder Ms Holland whilst he held her hostage.
…
I turn to the question of special circumstances. It was submitted that I ought to find special circumstances in this case. He has no prior criminal history, and thus of course he has not been to gaol before. He has significant ongoing serious medical problems as a result of the injuries he suffered during the commission of his crimes.
I accept his evidence that in gaol an effect of his bowel and abdominal injuries has been an inability to readily control his bowel movements. This has proved difficult for him in custody in that toilets are not readily available. This causes both significant discomfort and embarrassment. Because of these injuries he needs dietary supervision. He has lost a lot of weight since these offences as a result of the injuries suffered. Thus I find special circumstances."
I turn to the grounds of appeal.
[3]
Ground 1
His Honour erred in concluding that the offences were aggravated, within the meaning of s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999, because the injury sustained by the victim was substantial, but then in circumstances where the substantial nature of the injury was an element of each offence.
Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires the Court to take into account a number of specified aggravating factors. These include:
(g) the injury, emotional harm, loss or damage caused by the offence was substantial.
…
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant),
The sub-section provides that the Court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
An element of the offence under s 27 which was charged was that the Applicant wounded Ms Holland. An element of the detention charge was that actual bodily harm was occasioned to her. A "wound" is an injury involving the breaking or cutting of the interior layer of the skin but requires nothing more. "Actual bodily harm" includes any hurt or injury calculated to interfere with the health or comfort of a victim providing it is more than merely transient or trifling.
Clearly the injury and harm suffered by Ms Holland greatly exceeded these elements understood in the way I have explained. The first ground of appeal fails.
[4]
Ground 2
His Honour erred in finding that the offences were aggravated, because the victim was "vulnerable", within the meaning of s 21A(2)(l) Crimes (Sentencing Procedure) Act 1999.
When considering Ground 1 I have set out s 21A(2)(l).
The authorities make clear that sub-paragraph (l) "is concerned with the weakness of a particular class of victim and not with the threat posed by a particular class of offender" and that "the examples set out in the sub-paragraph suggest that it is vulnerability of a particular kind that attracts its operation" and the fact that a victim does not have the characteristics of a powerful offender with violent tendencies does not make the victim vulnerable within the meaning of sub-paragraph (l) - see R v Williams [2005] NSWCCA 99 at [40], [41]; R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740 at [26], [27]. The paragraph looks to the circumstances of groups or classes of victims inherent in their situation or characteristics as such divorced from any actions of an offender.
In finding that the victim was vulnerable because she was alone in the apartment with the offender and at his mercy indicates that his Honour did not direct attention to the correct operation and limits of sub-paragraph (l). While in one sense the complainant was vulnerable, that vulnerability arose because of the particular events of the day, not because of the characteristics of any group of which she was a member. Those events included that the applicant was able to prevent the victim from communicating with her family by taking her mobile phone and replying to text messages from her brother who was waiting downstairs. Accordingly, his Honour erred and this ground of appeal is made out.
[5]
Ground 3
His Honour erred in failing to recognise the injuries suffered by the applicant as amounting to extra-curial punishment.
In addressing this issue, Toner DCJ made the remarks I have set out above.
In Christodoulou v R [2008] NSWCCA 102 the offender had committed offences of assault, intimidation and malicious damage. During the last of these offences he impaled himself with a syringe. When police arrived he threatened to inject himself if they came closer and he continued offending. At some stage the contents of the syringe which consisted of hydrochloric acid or battery acid did enter the offender's arm resulting in a substantial and permanent disability to it. Grove J with the concurrence of Johnson J declined to regard the disability as extra-curial punishment. His Honour observed at [39]-[42]:
"39. In Alameddine v R [2006] NSWCCA 317 the offender suffered extensive injuries when, in seeking to destroy evidence of amphetamine manufacture in a laboratory before the foreshadowed arrival of police, an explosion was initiated and the offender burned in the ensuing fire. An examination of authorities in that case included reference to R v Haddara [1997] 95 A Crim R 108 where an arsonist had been injured in a fire which he lit and Brooking JA in the Victorian Court of Appeal observed that the sentencing judge was right to treat the injuries as going to mitigation. With the concurrence of Kirby and Hislop JJ in Alameddine I concluded:
"... there is a strong current of judicial opinion against outright rejection of the possibility of mitigation even where the injury is self inflicted or induced by the activity of the offender."
40. I added the qualification:
"To the extent that the Crown submitted that there was a boundary created by injury sustained by self-inflicted illegal activity beyond which no mitigation could be granted, I would reject it. That is not to say that the circumstances of infliction are irrelevant but to deny that, once injury is sustained by the action of the offender in the course of committing the crime, the consequences are incapable of giving rise to a factor of mitigation."
41. It is a step beyond Alameddine (and Haddara) to seek to extend the availability of a mitigatory element to a deliberately self-inflicted injury as distinguished from occasions where the injury was, although self-inflicted and in the course of crime commission, unintentional.
42. Insofar as the taking into account of extra curial punishment may be described as a principle, there is no authority for extending it to deliberately caused injury and such an extension should not, in my opinion, be recognized."
In Cvetkovic v R [2013] NSWCCA 66, the Applicant had seriously injured his wife by stabbing her with a gyprock saw. After she had escaped from the car in which she had been attacked the Applicant stabbed himself inflicting at least five wounds to his chest, five to his abdomen, some to his neck and a punctured lung. Some hours after these events the offender had told police that he wanted to terminate "our lives", a reference in the context of the conversation to his wife and himself. This Court held that the sentencing judge had not erred in following Christodoulou v R and in not placing much or any weight on the harm the offender had done to himself. In dismissing a special leave application by Mr Cvetkovic from the decision of this Court, Bell and Gageler JJ remarked that "An appeal on the ground that Christodoulou v The Queen was wrongly decided would enjoy insufficient prospects of success to warrant a grant of special leave to appeal". - Dragan Cvetkovic v The Queen [2013] HCASL 131.
In R v SS [2010] NSWSC 1169, the offender had set fire to her room in an attempt to end her own life. She was however rescued, badly burnt. Distinguishing Christodoulou v R upon the basis that the injury in that case arose after the offences had been committed and were inflicted by the offender upon herself as a means of evading arrest, Kirby J held that the injuries SS suffered could be characterised as extra-judicial punishment. Kirby J continued:
"Here, the injuries were a consequence of the offence itself. It may be accepted that SS intended death, not the shocking injuries that she sustained. They are the consequence of her rescue. They may be characterised as extra judicial punishment. The words of the Victorian Full Court in R v Barci (1994) 76 A Crim R 103 are apposite. In the context of serious injuries inflicted upon the offender in the course of a robbery, the Court said this: (at [111])
For the rest of his life, those injuries will serve as a savage reminder to Barci of his criminality, and as such, they must fairly be regarded as constituting some punishment for that criminality."
Whether Kirby J was correct to distinguish Christodoulou v R as he did, the injuries suffered by the Applicant here were deliberately self-inflicted or inflicted at the Applicant's instigation and intimately bound up with the Applicant's criminal conduct. There was no basis advanced upon which this Court could conclude that Christodoulou v R was wrongly decided and in these circumstances ground 3 must also be decided adversely to the Applicant.
[6]
Ground 4
His Honour erred in finding that the effect of the Applicant's injuries were relevant only to the question of special circumstances, and thus only to the term to be served by way of the non-parole period, rather than relevant also to the head sentence.
Passages set out above from his Honour's remarks - and they were not qualified by other passages I have omitted - do indicate that his Honour found as the ground asserts. His Honour considered only the difficulty those injuries would occasion to the Applicant while in custody.
Undoubtedly the injuries suffered by the Applicant are likely to have a greater impact on him while in custody rather than in any period of his sentence while he is at liberty. However, it cannot be predicated that it will be only during the non-parole period of his sentence that the injuries will so operate. While it may be likely, there is no guarantee that the Applicant will be released immediately once the non-parole period fixed by Toner DCJ expires and no guarantee that his injuries will have no significance during the balance of his sentence. They may, for example, impact on his ability to comply with terms imposed or which might otherwise be imposed as conditions of his parole.
Thus his Honour erred in limiting the significance of the Applicant's injuries as he did.
[7]
Decision
Although she did not employ the terms of s 6(3) of the Court of Criminal Appeal Act 1912 (NSW), counsel appearing for the Crown submitted that, even if any of the Applicant's grounds of appeal succeeded - and grounds 2 and 4 have - no less severe sentence was warranted.
I have summarised the circumstances of the offence. I have said enough to demonstrate that the Applicant's offence must be described as a determined, sustained and terrifying attempt to kill the victim. When one has regard to Toner DCJ's finding that the offence was planned and to the number and extent of the injuries inflicted it is inescapable that objectively the offence of wounding with intent to murder was very high on the scale of those contemplated by the relevant statutory provision. Certainly it was well above the middle of the range of objective seriousness.
However, consideration of the Crown's argument requires some further attention to the circumstances of the offender.
He was born in 1979 and had no criminal record. Based on material adduced in evidence, Toner DCJ observed that "these crimes are incongruous to the person described by so many - a generous, loving, honest, reliable man of integrity and gentility". His Honour observed that the Applicant had suffered violence at the hands of his stepfather and had used illicit drugs but, after reflecting on reports by Dr Westmore, rejected submissions to the effect that these matters had contributed to the offending. His Honour found that the offences were the result of the Applicant being driven by profound jealousy inspired by the break-up of his relationship with the victim.
At the commencement of the hearing in this Court, there was tendered and admitted further material to which the Crown had no objection "on the usual basis". The material included a psychiatric report by Dr Nielssen, the substance of which was that the offence occurred while the Applicant was affected by an hallucinogenic drug, and a report from a psychotherapist, Webber Roberts, who had worked with the Applicant, his sibling, mother and stepfather in and about 1993 and then with Mrs Betts later. The psychotherapist has also interviewed the Applicant on some eight occasions since he was sentenced.
In his report Mr Roberts observed that:
1. The impact of domestic violence indicated acute developmental deficits within the interpersonal capacity of Mr Betts and his siblings.
2. Personality traits of Mr Betts and his siblings, their complex behavioural issues and their coping mechanisms stem from unresolved issues regarding domestic violence during their formative years.
Mr Roberts sought also to provide an explanation of the Applicant's drug use and observed that at the time of offending the Applicant was "on a collision course of a type of emotional and or [sic] interpersonal crisis given the factors that span the period of his life" and that discussions since the Applicant's sentence had placed him "in a healthier emotional and mental position to address his re-development through the remainder of his sentence".
Also tendered were certificates of completion of a Domestic Abuse program and participation since his incarceration in a University course, and a number of references attesting to his good character and to the fact that he has made efforts in prison to make the most of his situation. To a very large degree the references reinforce Toner DCJ's assessment of the Applicant as "a generous, loving, honest, reliable man of integrity and gentility". They do not take the Applicant's subjective circumstances further to any significant degree.
Insofar as the reports of Dr Nielssen and Mr Roberts seek to canvass the factors causing or contributing to the offence, they are inadmissible. The time of sentence was the appropriate occasion for such matters to be addressed - as they were - and an appeal does not provide an opportunity for a second bite of those issues. Mr Roberts' opinion that the Applicant has an improved ability to address his re-development is relevant but of limited weight given that Toner DCJ made no findings on this or any similar topic.
Was some sentence, other than the one Toner DCJ imposed, warranted in law? I am not persuaded that it was. Despite the subjective features that argue in the Applicant's favour, the objective features, whether compared against the guidepost of the standard non-parole period or the statutory maximum were so grave that the sentence should not be reduced. In that latter connection it might be noted that, even adding back the discount that the Applicant received for his plea, the non-parole period would be only half of the statutory maximum for wounding with intent and this for an offence that was so bad, it is not easy to imagine one worse.
I would grant leave to appeal but dismiss the appeal.
[8]
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Decision last updated: 24 March 2015