Mendes v R

Court of Criminal Appeal (NSW)|2012-05-23|Before: Whealy JA, Davies J, Schmidt J

Judgment 1WHEALY JA: I agree with Davies J. 2DAVIES J: On 19 July 2007 the Applicant pleaded guilty to two offences as follows: Count 1: Maliciously inflict grievous bodily harm upon Stefanie Rugiano with intent to do grievous bodily harm (maximum penalty - 25 years imprisonment; standard non-parole period - 7 years imprisonment); Count 2: Maliciously inflict grievous bodily harm upon Simon Paduch with intent to do grievous bodily harm. 3The Applicant also asked for the following offences to be taken into account on a Form 1 in respect of Count 1: (a) Malicious damage; (b) Possess prohibited drug being 0.07g methylamphetamine; (c) Possess prohibited drug being 4.1g cannabis leaf. 4The Applicant was sentenced by her Honour Judge Hock on 1 February 2008 as follows: Count 2: Imprisonment for five years commencing 8 October 2006. Count 1: Taking into account the matters on the Form 1, imprisonment for seven years with a non-parole period of four years commencing 8 October 2009 and expiring on 7 October 2013. Her Honour said that she declined to set a non-parole period in respect of Count 2 due to the structure of the sentences. 5The overall effective sentence was a non-parole period of 7 years with an additional term of three years.

40The Applicant was aged 22 at the time the offences were committed. He is now aged 28. 41The Sentencing Judge noted that he was an only child of a loving family for many years but now has a brother some 18 years younger than him. His parents emigrated from Portugal when the Applicant was five years old but returned to that country when he was eight. Whilst he was there he was the victim of sexual assaults by older teenage boys. These were not disclosed by him to anyone until he was interviewed by various persons after these present offences were committed. The assaults led him to become withdrawn and anxious. 42When the family returned to Australia his anxiety lessened, as the Sentencing Judge found. However, he began using cannabis and amphetamines, particularly ice, on a daily basis from the age of fifteen. He told Dr Westmore that this helped with his anger and flashbacks over the sexual assaults. The Sentencing Judge found that these incidents contributed to his decision to use drugs regularly at a young age. 43The Applicant had difficulties in high school and left before completing Year 10. He began working on a construction site with his father and gained qualifications as a carpenter. He was working in that capacity until he fractured his leg in March 2006. 44The Applicant gave evidence at the sentencing hearing. The Sentencing Judge accepted that he was genuinely remorseful. She said that he had never acted violently previously, and she thought it was the dangerous combination of illegal drugs, ice in particular, excessive consumption of alcohol and emotional distress over his grandfather's admission to hospital that very day, which led to what her Honour described as impulsive attacks. Her Honour noted that Dr Westmore said there would have been an impairment of the Applicant's capacity to form reasonable and rational judgments on the day concerned. 45Her Honour said that, like Dr Westmore, she was of the opinion that the Applicant was highly motivated to overcome his drug and alcohol problems. He gave unchallenged evidence at the sentencing hearing that he had not used illegal drugs in gaol although he had the opportunity to do so. He had completed a number of courses or programs in custody to address his problems. Her Honour noted also that he had the benefit of a supportive family who visited him regularly. 46The Sentencing Judge found that the Applicant had good prospects for rehabilitation provided he maintained his resolve to abstain from the use of illegal drugs. 47Her Honour noted that he had been in protective custody since shortly after being imprisoned with the result that he was only able to be out of his cell for about two hours a day. Her Honour noted that such a situation might not continue once he was a sentenced prisoner. There was no evidence at the hearing of this appeal about that matter.

48The Applicant was sentenced on 1 February 2008. On 20 February 2008 a Notice of Intention for Leave to Appeal was filed. No Appeal was filed and on 4 August 2008 a Notice of Application for Extension of Period within which Notice of Intention to Apply for Leave to Appeal was filed. An extension of time was granted and the Applicant was advised that the Notice of Intention to Apply for Leave to Appeal would expire on 20 October 2008. No Notice of Application for Leave to Appeal was filed within the time limited. 49On 22 December 2011 the Applicant filed a further Notice of Application for Extension of Period within which Notice of Intention to apply for Leave to Appeal. The affidavit in support was sworn by his father, Manuel Mendes. The affidavit said that the Applicant had always wanted to appeal the severity of the sentence. Both the deponent and his son had always believed that an appeal was on foot from very shortly after the time sentence was handed down. That was said to have been based on numerous express representations over a period of years by the Applicant's legal advisors to the effect that an appeal had been lodged. The affidavit disclosed that, on a number of occasions, the solicitor for the Applicant, when asked, referred to the indisposition of the barrister who had been obtained to prepare the necessary documents for the appeal. 50The Crown did not challenge any of the material contained in Mr Mendes' affidavit, nor did it oppose an extension of time being granted. 51Although the delay is considerable, it has been sufficiently explained, and in the absence of objection from the Crown the extension of time should be granted. 52The grounds of appeal are these: Ground 1 - Her Honour erred by giving primary significance in the sentencing exercise to the existence of a standard non-parole period. Ground 2 - Her Honour erred in the manner in which she took into account the Applicant's intoxication. Ground 3 - Her Honour erred by declining to set a non-parole period in relation to Count 1. Ground 4 - Her Honour erred by failing to give proper effect to the principle of totality. Ground 5 - The total effective sentence is manifestly excessive.

53The Sentencing Judge recited the facts and the subjective features relevant to the Applicant as I have already detailed. She referred to the difficulty in sentencing, particularly as only two authorities were provided, being decisions of this Court on successful appeals by offenders. In addition, her Honour identified two other cases both of which were Crown appeals. She said that the cases made very clear that the result of the offender's conduct would, to a very significant degree, determine the seriousness of the offence and the appropriate sentence. 54The Sentencing Judge then said that she had to consider the question whether it was appropriate to impose the standard non-parole period for either of the offences. She noted that the Crown submitted that each of the offences was in the mid-range of objective seriousness but that the Applicant submitted each was just below the mid-range. Her Honour concluded that each offence was at the mid-range of objective seriousness. 55Her Honour then concluded that it was not appropriate to impose the standard non-parole period for two reasons. First, the Applicant's early plea of guilty entitled him to a reduction of 25%. Secondly, his strong subjective case, in particular his lack of previous convictions, his genuine remorse and his good prospects for rehabilitation justified a departure from the standard non-parole period. 56Her Honour also found special circumstances because it was the Applicant's first period in custody. Finally, her Honour thought there should be some concurrence in the sentences.

Ground 1 - The standard non-parole period 57Her Honour said in relation to the standard non-parole period: I come now to the question of whether it is appropriate to impose the standard non-parole period for either offence in this case. The Crown submitted that each offence was at the mid range and Mr Kintominas on behalf of the offender submitted that each was just below the mid range. On the material before me I find that each offence was at the mid range of objective seriousness. However, I have determined that in neither case is it appropriate to impose the standard non-parole period. My reasons are, firstly, the early pleas of guilty which entitle the offender to a reduction of twenty-five per cent in each sentence for the utilitarian value of those pleas to the criminal justice system and as indicating an acceptance of responsibility and a willingness to facilitate the course of justice. Secondly, the offender's strong subjective case, in particular his lack of previous convictions, his genuine remorse and his good prospects for rehabilitation. 58The Applicant submitted that those remarks demonstrated that the existence of the standard non-parole period was of primary significance in the determination of the sentences. The Applicant further submitted that her Honour engaged in a two-stage approach to sentencing contrary to what was said in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. The Applicant submitted that the two-stage process was most clearly demonstrated by her Honour's identification of the offender's strong subjective case as one of the reasons why the standard non-parole period should not be imposed. 59In Butler v R [2012] NSWCCA 23 this Court said: Merely showing that a sentencing judge sentenced pre-Muldrock following the dictates of Way will not be sufficient to demonstrate error. What should be ascertained in each case is whether a reliance on Way has sufficiently infected a sentence with such error that this Court must intervene. Ordinarily this might occur in cases where an applicant is found guilty by a jury, with the result that the sentencing judge will have considered that a two-stage process must be applied and that the standard non-parole period is mandatory unless factors can be found to justify a variation from it. It is far less likely that intervention will be required from this Court where a sentence has been imposed following a plea of guilty and the sentencing judge has referred to the standard non-parole period as simply a guideline or yardstick. 60Although in the present case the Sentencing Judge was considering an Applicant who had pleaded guilty, the way her Honour has expressed herself shows that undue emphasis has been given to the standard non-parole period. Her Honour has used it as the starting point and then determined whether there should be any variation from it. Even prior to Muldrock, where there was a guilty plea, the standard non-parole period was used simply as a benchmark or guidepost. Her only reference to the guilty plea when discussing the standard non-parole period was the fact that it would result in a reduction of 25% for the utilitarian value of that plea. 61Her Honour then, by considering reasons that she should depart from the standard non-parole period, tended to engage in the two-stage sentencing approach proscribed by Muldrock at [28]. 62The Crown's submissions appeared to accept that the Sentencing Judge had wrongly treated the standard non-parole period as the starting point rather than regarding it and the maximum penalty as the two legislative guideposts as Muldrock requires. 63In my opinion, this ground is made out.

Ground 2 - The Applicant's intoxication 64The Applicant argued that because his addiction to drugs had commenced at a young age and was chronic, it could not be said that his intoxication on the night concerned was a rational choice that would carry with it moral culpability for the predictable consequences of that choice - see R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [173]-[207]. 65The Applicant submitted that the issue of the Applicant's intoxication needed careful consideration whereas the only reference to it being considered by the Sentencing Judge was to be found in the following passage: Unsurprisingly Dr Westmore, who is a highly regarded forensic psychiatrist, said at p. 8 that in his opinion there would have been an impairment of the offender's capacity to form reasonable and rational judgments. This of course only highlights the dangers of any person, but this offender in particular, carrying such a weapon as that depicted in the photographs which are part of Exhibit E. 66The Applicant argued that his intoxication should have been regarded as a mitigating factor to some degree. 67Apart from the passage quoted above her Honour made other reference to the Applicant's drug use. She noted that he began using cannabis and amphetamines, ice in particular, on a daily basis from the age of 15. She noted that he told Dr Westmore that this helped with his anger and flashbacks over the sexual assaults. She found that those sexual assaults at least contributed to his decision to use drugs regularly at such a young age. 68As noted earlier, her Honour found that the Applicant had never acted violently before; that it was because of the dangerous combination of illegal drugs, particularly ice, excessive consumption of alcohol and emotional distress over his grandfather's admission to hospital that day which led to what her Honour described as impulsive attacks; that the Applicant was highly motivated to overcome his drug and alcohol problems; that he had not used illegal drugs in gaol even though he had had the opportunity to do so; and that he had completed a number of courses or programs in custody because, he wanted to address his problems. 69It does not seem to me that her Honour failed to consider adequately the issue of the Applicant's drug taking and the effect that it had, or may have had, on his personality over a period of time. Her reference to what Dr Westmore said at page eight of his report showed that she had those matters in mind. 70Her Honour had also a lengthy report from Gerard Glancey, a psychologist, who had examined the Applicant. That report disclosed, on the basis of what the Applicant told Mr Glancey that, on the day in question, he was stressed because his girlfriend had been invited to the wedding and he had not, and his grandfather had been admitted to hospital in a critical condition. He told Mr Glancey (in contradistinction to what he had told the police on the night of the assault) that he had not smoked ice at that time for approximately eight months. He gave evidence to similar effect at the sentencing hearing. Because, apparently, of the stress he was under, he had gone with a friend and smoked ice. He became increasingly suspicious about his girlfriend's unfaithfulness. Earlier that day he had taken a bottle of scotch from his parents' home and during the course of the day he had consumed the greater contents of that bottle by drinking quickly and heavily. 71Those actions which led to his intoxication by drugs and alcohol do not suggest that the intoxication should be regarded as a mitigating factor even given his earlier history of consumption of drugs. 72The Applicant submitted that he had never previously been violent or been in a fight prior to this time. However, the report from Mr Glancey suggested otherwise. Mr Glancey said this: He spoke of associating to an ever increasing degree with drug users and drug dealers. Many of these people were involved in crime. They criticised him over his passive nature. They questioned why he tolerated certain treatment from peers. They encouraged him to stand up for himself. They spoke of hitting people if necessary. These people employed violence in their dealings with others. "They didn't take crap from no-one". He felt they were respected within their peer group. They were liked by most people. Mr Mendes said that he longed for respect. He wanted to be liked. He was influenced by their advice. He became an angry person. With the passage of time he demonstrated a greater potential for irritability and unreasonable temper. He was disagreeable at home. On the soccer field he developed the reputation of an aggressive player. He went from being a well disciplined player to one who would react with aggression. He attracted many Red Cards whilst playing soccer. He had the worst Red Card record in the Wollongong league. He spoke of receiving two long suspensions one particular season. He played only two games during that season. 73That background, demonstrating a link between his drug use and aggression which was understood by the Applicant, and the fact that he had abstained from using ice for eight months prior to the incident in question, suggests that any use of drugs and alcohol on the day in question was a choice he made, and cannot be regarded as being mitigated by the fact that he had been introduced to drugs as a teenager. 74In Stanford v R [2007] NSWCCA 73, Rothman J (with whom McClellan CJ at CL and Hulme J agreed) said, when discussing the way intoxication should be dealt with: [52]...The effect, if any, of the intoxication of an offender on the sentence to be imposed, or the culpability of the offence, has been dealt with by the courts on a number of occasions. [53]By and large, the cases fall within two classes. There are those classes of offences in which an offender has voluntarily embarked upon a course, for a range of reasons, which has led to his/her intoxication and then voluntarily embarked upon a course that is criminal conduct. High range PCA offences are the most obvious example. Dangerous driving where intoxication is an aggravating circumstance is another. ... [55]The principles were dealt with by this court in R v Coleman (1990) 47 A Crim R 306. After discussing the effect of intoxication on the guilt or innocence of an accused, the Court dealt with the effect, if any, on sentencing. It said: "Only one matter of general principle was debated, and that was the extent to which the appellant was entitled to have his intoxication at the time of this offence taken into account in mitigation. The degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication would therefore be relevant in determining the degree of deliberation involved in the offender's breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender has by reason of that intoxication acted out of character. (I have not intended by those examples to limit the extent to which intoxication may be taken into account: see, generally, Sewell and Walsh v R (1981) 29 SASR at 12 at 14-15; 5 A Crim R 204 at 207.) Where the reason for the offender's intoxication is a self-administered drug rather than alcohol, the cases suggest that that fact may well be more likely to aggravate than to mitigate." (R v Coleman (1990) 47 A Crim R at 327, per Hunt J, with whom Finlay and Allen JJ agreed). 75In the present case the intoxication came about from two self-administered drugs as well as alcohol. There was deliberation involved in both the drug-taking and the alcohol consumption, or at the very least recklessness. The statements made by the Applicant to Mr Glancey suggest that the ingestion of the drugs for the specific purpose of becoming aggressive was not out of character. In all of those circumstances far from the drug-taking being a mitigating factor, it was an aggravating one, although the Sentencing Judge did not specifically regard it as such. 76In my opinion, if her Honour did err in considering the Applicant's intoxication she did so favourably to him.

Ground 3 - No non-parole period for Count 2 77Section 45(1) Crimes (Sentencing Procedure) Act 1999 permits a Court to decline to set a non-parole period for an offence in particular circumstances, other than an offence set out in the table to Division 1A of Part 4 of the Act. The offences in the table to Division 1A are offences carrying a standard non-parole period. Count 1 carried a standard non-parole period of 7 years imprisonment. 78The Crown accepts that the Sentencing Judge made an error in this regard. This ground should be upheld.

Ground 5 - Sentence manifestly excessive 79The Applicant submitted that although there was a very real need for an accumulation of the sentences, even a substantial accumulation, the Sentencing Judge had failed to have regard to the totality principle because of the common features involved in the attacks on the two victims. It was submitted that the Applicant was the same person in the same place at the same time and that the offending took place in the same circumstances. Bearing in mind those matters, an accumulation of three years between the first and second sentences had the result that the total sentence was manifestly excessive. 80What is being challenged, in asserting manifest excess, is a discretionary judgment: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]-[27]. Moreover, the appropriate way to consider any submission about manifest excess is to go to the salient facts of the case and assess them by reference to the maximum applicable sentence and any standard non-parole period: Way Zhen Wong v R [2010] NSWCCA 160 at [14]. 81For reasons which will be given when this Court comes to re-sentence the Applicant, no error has been demonstrated in the approach taken by the Sentencing Judge to the principle of totality nor to the ultimate length of the sentences imposed.

Re-sentence 82Error having been demonstrated in relation to Grounds 1 and 3 it is necessary for this Court to re-sentence the Applicant. In my opinion, no lesser sentence is warranted than that imposed by the Sentencing Judge for the following reasons. 83First, for reasons given earlier, the Applicant's intoxication is not to be seen as a mitigating factor but should be regarded as an aggravating factor. The Applicant, not having used ice for a period of eight months, embarked upon its use and consumed almost an entire bottle of scotch during the course of the day. This must be regarded as self-induced intoxication at an age of rational choice which involves moral culpability for the predictable consequences of that choice: Bourke v R [2010] NSWCCA 22 at [28]. 84Secondly, as her Honour rightly observed, in respect of offences contrary to s 33 of the Crimes Act 1900, the result or consequences of the conduct in terms of the nature of the injury suffered determine the seriousness of the offence to a very significant degree: R v Mitchell, R v Gallagher [2007] NSWCCA 296 at [27]; R v Jione [2007] NSWCCA 170 at [14]. In the present case the injuries, both physical and psychological, which resulted from the attacks were significant and continuing. Both victims have scars which will be permanent reminders of the offence. These injuries amply justified the Sentencing Judge's finding that the offences were within the mid-range of objective seriousness. 85Thirdly, the Applicant told the police that he had carried the knife due to his being told it was dangerous in Sydney. He said at his sentencing hearing that he had experienced two attempted carjackings. His explanation for taking the knife to the room of the apartment was that it was his separating and cleaning device to be used in association with the consumption of drugs. That explanation had not been given either to the police or to Dr Westmore with whom he had discussed the carjackings. Particularly when the Applicant knew that the ingestion of ice caused him to become bad-tempered and aggressive, the carrying of the knife should be regarded as an aggravating factor. 86Fourthly, in relation to Ms Rugiano there were two, and possibly three, separate attacks upon her. He attacked her in the hotel room and endeavoured to throw her off the balcony. He stabbed her during that attack but she managed to make it down to the ground floor away from him. However, the Applicant, having followed her to the ground floor then chased and attacked her with the knife as she ran into Bathurst Street with Mr Paduch. He continued to attack her with the knife while she was on the ground. He then turned his attention to Mr Paduch. After inflicting the injuries upon Mr Paduch he returned to attack Ms Rugiano for a third time despite attempts by the passerby Ms Harman to prevent injury to Ms Rugiano. 87Fifthly, although the Sentencing Judge accepted that the Applicant was genuinely remorseful and that he had good prospects of rehabilitation, his drug use over a number of years and the changes that such drug use produced to his behaviour, meant that issues of personal and general deterrence as well as retribution loomed large in the consideration of the appropriate penalty. A lesser sentence than that imposed by the Sentencing Judge would not adequately demonstrate the disapproval that should be shown by the Court for the viciousness of the attacks perpetrated on the victims by the Applicant. 88Finally, as to the accumulation of the sentences, although the attacks on both victims occurred at a similar time, that was true only to the limited extent that Ms Rugiano was again attacked when both victims were in Bathurst Street outside the hotel. Ms Rugiano experienced a prolonged attack in the hotel room where the Applicant not only attempted to throw her off the balcony but stabbed her as well and then chased her out of the room as she fled. 89In addition, it seems that the attack was perpetrated on Mr Paduch merely because he had the misfortune to be present with Ms Rugiano in a way that caused the Applicant to become paranoid about his relationship with Ms Rugiano. Whilst it may have been appropriate for there to have been some concurrency between the sentences, there were two separate attacks on two different persons which resulted in serious injuries to each of those persons.

90Because of the error in not providing for a non-parole period for Count 2 it is necessary to uphold the appeal and to re-sentence the Applicant. No lesser sentence overall is warranted. In the circumstances it is appropriate to provide for a non-parole period of three years and nine months for Count 2 with an additional term of one year and three months. The sentence for Count 1 will commence, as the Sentencing Judge provided, three years after the sentence for Count 2 commences. 91In my opinion the following orders should be made: (1)Leave to appeal granted. (2)Uphold the Appeal. (3)Quash the sentences imposed upon the Applicant on 1 February 2008. In lieu, sentence the Applicant as follows: (a) In respect of Count 2 - a non-parole period of three years and nine months commencing 8 October 2006 expiring on 7 July 2010 with and additional term of one year and three months expiring on 7 October 2011 (b) In respect of Count 1 and taking into account the matters on the Form 1 - a non-parole period of four years commencing 8 October 2009 and expiring on 7 October 2013 with an additional term of three years expiring on 7 October 2016. 92SCHMIDT J:I agree with Davies J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2012

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