Matzick v R

Court of Criminal Appeal (NSW)|2007-03-28|Before: Simpson J, Howie J, Hislop J

JUDGMENT OF: Simpson J at 1; Howie J at 42; Hislop J at 43

DECISION: Leave to appeal granted; appeal dismissed.

CATCHWORDS: CRIMINAL LAW - application to appeal against severity of sentence - malicious wounding with intent to inflict grievous bodily harm - use of knife - plea of guilty - subjective circumstances - finding of special circumstances - drugs - rehabilitation - attack unprovoked, uncalled for and unjustified - psychiatric and psychological reports - personality disorder - drug induced hallucinosis - finding of no obvious mental disability - no miscarriage of justice resulting from conduct of sentencing hearing by applicant's legal representatives - documents provided by applicant and her mother - not tendered - applicant and mother gave oral evidence - no miscarriage of justice

Crimes Act 1900 s33 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, Part 4, Division 1A, s44(2) Evidence Act 1995 s4(2)

R v Birks (1990) 19 NSWLR 677 CASES CITED: R v Engert (1995) 84 A Crim R 67 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383

PARTIES: Amber Matzick - Appellant Crown - Respondent

SOLICITORS: Applicant in person S Kavanagh - Crown

IN THE COURT OF CRIMINAL APPEAL 2006/2823

SIMPSON J HOWIE J HISLOP J

Monday 2 April 2007 Amber MATZICK v REGINA Judgment 1 SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed upon her by McGuire DCJ in the District Court on 31 March 2006 following her plea of guilty to a single count of malicious wounding with intent to inflict grievous bodily harm. 2 By s33 of the Crimes Act 1900 such an offence carries a maximum penalty of imprisonment for 25 years. Pursuant to Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Procedure Act") a standard non-parole period of seven years is applicable. McGuire DCJ sentenced the applicant to imprisonment for five years and four months with a non-parole period of two years and ten months, commencing on 1 December 2004. The balance of term was two years and six months. In so sentencing the applicant, his Honour found that special circumstances within the meaning of s44(2) of the Sentencing Procedure Act existed, justifying departure from the statutory proportions between the head sentence and the non-parole period there specified.

The facts 3 The offence was committed at about 11.45 am on 1 December 2004, a Wednesday. The applicant lived in a flat above a mixed business convenience store in Kings Cross. She was acquainted with the proprietor of the store, Mrs Kang, who had, on occasions, shown her kindness. When the applicant walked into the store on this occasion Mrs Kang thought she looked unwell and perhaps hungry and offered her some milk. The applicant preferred an ice cream, which Mrs Kang gave her. The applicant then walked behind the counter, produced a small knife and pointed the blade towards Mrs Kang. The applicant spoke to Mrs Kang but Mrs Kang had limited English and did not understand. A struggle ensued. Mrs Kang attempted to drag the applicant out of the shop and into the street in an attempt to attract the attention of police. This went on for some time. The applicant stabbed Mrs Kang to the front left-hand side of the neck and again to the left rear of the neck. Both wounds bled profusely. Mrs Kang attempted to disarm the applicant, who herself was cut around the hand and arm. Mrs Kang thought the applicant was going to kill her. 4 Police arrived and separated the two women. They asked the applicant whether the knife was hers. She replied that it was, but falsely reported that Mrs Kang had grabbed the knife from her and that this was what caused the struggle. She was found to be in possession of a second knife, secreted in the left leg of her pants. Mrs Kang was taken to St Vincent's Hospital and treated for her wounds. She underwent surgery. She remained in hospital for four days.

Subjective circumstances 5 The applicant's background and history are quite remarkable, and, in many respects, tragic. She was born in Korea on 14 September 1983 and was, accordingly, 21 years of age at the time of the offence. She had only one prior criminal offence, possession of a prohibited drug for which she was, on 25 August 2004, dealt with by way of a bond. Given the circumstances I am about to recount, that she had reached that age without any other conviction is, to say the least, surprising. At the age of nine months the applicant was adopted by an Australian couple. She had an older sister, also Korean-born and also adopted. 6 Initially, the adoption was successful and, although the applicant described her adoptive father as a "closed man" and "emotionally distant", she described her adoptive mother as "soft, caring and forgiving". She had a close relationship with both her mother and her maternal grandmother. There was an element of resentment in her relationship with her sister; this may be because the sister was a gifted ballet dancer, for which she was the subject of much attention. 7 When the applicant was about 14 her maternal grandmother, to whom she was very close, died, and her death had a significant effect upon the applicant. She saw a psychologist for some time but did not feel that she received real assistance and discontinued. 8 In any event, she left school shortly thereafter, and fell under the influence of a series of older men, each of whom was abusive in one way or another, who exploited her, and each of whom was involved with illicit drugs. She herself began using drugs, and became involved, at the behest of one or more of her male companions, in prostitution. The history shows that the applicant's life swung dramatically towards a drug, prostitution, and crime culture from her mid teens. 9 The sentencing judge had the benefit of a psychiatric report prepared by Professor Greenberg, and a psychological report prepared by Ms Robilliard. These detailed the applicant's history. 10 She has been diagnosed as suffering from a personality disorder with borderline features, depression and auditory hallucinations. She herself reported that she had made three suicide attempts, at the ages of 15, 17 and 18. She binges alcohol. Professor Greenberg considered that the auditory hallucinations were probably attributable to a drug-induced hallucinosis. 11 Testing by Ms Robilliard indicated that the applicant is in a high risk of re-offending. She found that the applicant scored extremely low on a scale measuring defensiveness, indicating emotional pain, possibly related to low self-esteem, feelings of worthlessness and hopelessness, loss of energy and suicidal ideation. She concluded her report by saying: "Recommendations are very difficult in this case as this young woman is tragically chaotic in her lifestyle and habits, both of which are potentially self-destructive." 12 The applicant has had the benefit of unceasing support form her parents, particularly her mother. Her parents have, apparently at considerable cost, repeatedly arranged for the applicant to be provided with private rehabilitation facilities. She has never responded. They have persevered against all the odds. 13 Both the applicant and her mother gave evidence on the sentencing proceedings. It is convenient to begin with the evidence given by her mother. It may be observed that the applicant is extremely fortunate still to retain the strong support of her family, particularly her mother, who has attempted to explore the circumstances that have led the applicant to her present predicament. She gave evidence that she herself had visited Mrs Kang. When she told the applicant that she proposed to do this the applicant spontaneously asked her to apologise on her behalf. She also said that the applicant had sent letters of apology to her parents for her conduct. 14 Mrs Matzick has been visiting the applicant on a weekly basis and gave evidence of her current behaviour. She said: "… She's been incarcerated now, that's tomorrow, for sixteen months. She is waiting to hear of … a date of release and then I think she will be able to think about some things. To think about where she is going. She is also then able to do some courses which she hasn't been able to do, because that's not offered to people who aren't sentenced. So she said to me only last week, mum I just want to do some courses. I'll do every drug and alcohol course that comes up. I'll do it all, but until I'm sentenced I am unable to do any of it. But I think she just takes one step at a time at the moment, because she can't focus any further." 15 The applicant's evidence was also telling. She confirmed much of the history which has already been set out, and which need not be repeated. McGuire DCJ was plainly intrigued by the applicant's history, and most concerned about her potential to commit herself to what will (if she undertakes it) inevitably be a long and difficult process of rehabilitation. At about this point in her evidence in chief the applicant said: "Listen, I don't want to talk any more, I'm finished." 16 When asked to persevere she declined. 17 However, when his Honour asked questions about rehabilitation, she said: "I don't think about that. I know I'm going to be doing the next few years in gaol, so I don't even think about where I'm going to be at in the next few years. That's something I'm not - I told [my solicitor] this morning I'm not going to say oh well after I've finished my sentence, yeah, I'll go to rehab for another twelve months. That's something I'll decide after I've done my time." His Honour invited her to consider that the sentence he would impose might depend upon her commitment to rehabilitation. She said: "I do realise that. [My solicitor] went through it this morning with me but I am not going to sit here and lie and say, yeah, I'll do rehab when I don't want to." His Honour observed that it was rare, in sentencing proceedings, to experience such frankness. It played a part in his reasoning on sentence, not entirely to the applicant's benefit, but also not entirely to her detriment.

Remarks on sentence 18 His Honour set out the facts of the offence, which he described as: "… a vicious attack upon a shopkeeper, a lady who had treated the prisoner as a friend, who had offered her nothing but kindness … an entirely unprovoked and uncalled for and unjustified gratuitous violence visited upon the victim."

He correctly described it as "grossly criminal behaviour". 19 He then noted that he found "this a most difficult sentencing exercise", the one reason given being that the applicant was grossly affected by drugs at the time of the offence (something he recognised did not excuse her behaviour). 20 He found it difficult to be optimistic about her prospects of rehabilitation, noting that she appeared to be "ambivalent" about engaging in meaningful rehabilitation or counselling. He accepted that the applicant's representations to her mother about her intentions for the future were genuine (although he did this with some misgivings). He allowed the maximum discount (25%) in accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, in respect of her plea of guilty, which was entered, he said, at the earliest opportunity. He noted that the applicant had remained drug free in prison and saw this as providing some degree of hope. 21 He accordingly found special circumstances and proceeded to impose the sentence I have mentioned above. 22 The applicant was represented in the sentencing proceedings, but is unrepresented in this application. She has formulated her own grounds of appeal, as follows: "1. His Honour erred when he took into account it was entirely unprovoked, uncalled for and unjustified attack. 2. His Honour erred when he failed to consider the violence and sexual abuse I was subjected to in my early teens. 3. His Honour erred when he stated I suffer from no obvious mental illness. 4. My solicitor had not followed my instructions on the day of sentencing and I had not received my full brief prior to sentencing."

Ground 1: "His Honour erred when he took into account it was entirely unprovoked, uncalled for and unjustified attack" 23 It was not clear from the applicant's submissions whether her complaint is of the characterisation of the offence as an "unprovoked, uncalled for and unjustified attack" or of his Honour having taken that into account. Either way, the ground cannot succeed. In so describing the attack his Honour was entirely correct. It was, of course, also entirely appropriate that he take this into account. There is no substance in this ground of the application.

Ground 2: "His Honour erred when he failed to consider the violence and sexual abuse I was subjected to in my early teens" 24 This ground also cannot be sustained. His Honour said: "… She left school at an early age and almost immediately began using drugs and alcohol and mixing with highly undesirable young people, including those who were obviously of criminal intent and background. She headed into a series of disastrous relationships. The youths or men she chose to cohabit with used her as a source of income to fund their drug habits when they required her to engage upon a career of prostitution. She, of course, used the income to fund her own habit and despite the abuse heaped upon her in those relationships she seemed content to remain in them." 25 This ground ought to be rejected.

Ground 3: "His Honour erred when he stated I suffer from no obvious mental illness" 26 To some extent this misrepresents what his Honour said. The passage in the Remarks on Sentence is: "She is an attractive young lady, suffering from no obvious mental or physical disability, albeit at this stage she has Hepatitis C." 27 Whether this was correct or not requires some analysis of the reports of Ms Robilliard, and, more particularly, Professor Greenberg. 28 Professor Greenberg reported: "I note from her medical record at Justice Health that she was seen by Dr McClure who diagnosed her with a personality disorder with borderline features, depression and auditory hallucinations … Dr Martin (a psychiatrist) noted she had instability of mood and that she was complaining of 'voices'. Dr Martin was of the opinion that she had a borderline personality disorder and the voices were in keeping with this diagnosis and that she was not psychotic." 29 The reference to Justice Health makes it plain that Dr McClure's diagnosis occurred after the applicant's arrest, since she had not previously been involved with the prison system. That means that the diagnosis was of relevantly recent origin, no later than 1 December 2004. In a later part of his report Professor Greenberg set out his own diagnoses which were: · poly-substance dependence · drug induced hallucinosis, in partial remission · personality disorder · physical - Hepatitis C. 30 There is no explicit reference in the Remarks on Sentence to either the report of Professor Greenberg or of Ms Robilliard. However, some of the factual matters contained in the Remarks are clearly drawn from one or other or both of those reports. 31 The passage in the Remarks on Sentence is not easily reconciled with the extracts from Professor Greenberg's report. However, Professor Greenberg's assessment of the applicant's mental condition was not such as to attract the principles stated in cases such as R v Engert (1995) 84 A Crim R 67. Even if the observation in the Remarks did not do complete justice to the opinion of Professor Greenberg, it can have had no impact on the ultimate outcome of the sentencing process. The diagnoses did not in any way entitle the applicant to any reduction in the sentence that would otherwise have been imposed. They were merely a part of the detail of the history and circumstances relevant to the overall approach to sentencing. 32 I would, accordingly, reject this ground of the application.

Ground 4: "My solicitor had not followed instructions on the day of sentencing and I had not received by full brief prior to sentencing" 33 I take this ground to be a complaint about the manner in which her legal representative conducted the sentencing hearing. Generally speaking, an offender is bound by the manner in which the legal representatives conduct the case. A ground of appeal complaining of the manner in which criminal proceedings are conducted will only succeed where a recognisable miscarriage of justice can be demonstrated, resulting possibly from "flagrant incompetence" or some other cause: R v Birks (1990) 19 NSWLR 677. 34 The applicant put before this Court a series of documents. One of these was an affidavit sworn 12 March 2007 by herself. This was received by this Court on the usual basis; that is, that it would be taken into account if but only if the court found error in the sentencing process and proposed to move to re-sentence. 35 Of more concern were two other documents which the applicant said were letters written by herself and her mother to be provided to the sentencing judge, but which were not. The appellant's letter is a letter in which she expresses "guilt and remorse" and accepts, despite her intoxication, full responsibility for what had occurred. She also wrote: "Every day I am punished with my own thoughts of how many people I have affected by my own recklessness. I am changing my behavior (sic) and wish not to return to the lifestyle I had previously. I have now been drug free for sixteen months and realise how drugs have affected my life as well as others in the past." 36 Her mother's letter is a moving one, fleshing out, in considerable detail, the evidence that she gave. She recorded that the applicant had been a happy child, in a happy family. She described the applicant as "the most delightful child a parent could ever wish for". 37 She recorded a change in mood and behaviour at the age of 12 and the onset of puberty. She gave considerable detail of the applicant's associations with older and undesirable men. She recorded the applicant's engagement in prostitution and drug use. 38 It may be that these documents could or even should have been put before the sentencing judge. Although they may not have been admissible in the proceedings to which the Evidence Act 1995 applied, no direction under s4(2) of that Act had been given to make the Act applicable, and in the ordinary course, the documents could have been tendered. However, it is to be remembered that both the applicant and her mother gave oral evidence, and, no doubt, the applicant's solicitor took the view that their evidence substituted for the contents of these documents. Indeed, the applicant's evidence went well beyond what was contained in the letter, and the letter could have added nothing to that evidence. Her mother's evidence was less detailed and less forceful than that contained in her document, but nevertheless, covered the same essential points. 39 In my opinion no injustice has been shown by these documents not having been put before the sentencing judge. Their substance was. The decision to call oral evidence in preference to evidence in documentary form was well within counsel's professional discretion. 40 In my opinion none of the grounds of the application can succeed. It remains to consider whether any less severe sentence ought to have been imposed. In my opinion there is no basis for coming to such a conclusion. 41 I would grant leave to appeal but dismiss the appeal. 42 HOWIE J: I agree with Simpson J. 43 HISLOP J: I also agree with Simpson J.

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