Menouhos v R

Court of Criminal Appeal (NSW)|2019-08-09|Before: Payne JA, Garling J, Wright J

Judgment

PAYNE JA: I agree with Garling J.
GARLING J: The applicant stood trial in October 2016 in respect of three counts upon which he was convicted.
Those counts were: 1. one count contrary to s 112(2) of the Crimes Act 1900 of break and enter and commit larceny in circumstances of aggravation, 2. one count contrary to s 33(1) of the Crimes Act of wounding with intent to cause grievous bodily harm; and 3. one count contrary to s 35(3) of the Crimes Act of reckless wounding in company.
After conviction, the applicant entered a plea of guilty to a further count contrary to s 112(2) of the Crimes Act of aggravated break enter and steal, which happened on an entirely different occasion. With respect to that offence, the applicant asked that one offence against s 547D of the Crimes Act, of carrying a cutting implement, be dealt with on a Form 1.
In respect of these four offences, the applicant was dealt with on sentence in the District Court on 20 April 2017.
The sentencing Judge determined that it would be appropriate to proceed by way of aggregate sentence. His Honour imposed an aggregate sentence of 10 years and 6 months imprisonment with a non-parole period of 7 years and 6 months with the term of imprisonment to commence on 8 October 2015.
The table below sets out the indicative sentences described by the sentencing Judge, and also the maximum penalty and standard non-parole periods provided for in the Crimes Act: Offences Max/SNPP Plea Indicative Sentence s.112(2) agg. break & enter & steal 20 yrs/ 5 yrs NG 6 yrs, NPP 4 yrs 6 mths s.33(1)(a) wound with intent to cause GBH (machete) 25 yrs / 7 yrs NG 8 yrs, NPP 6 yrs s.35(3) reckless wounding in company (shotgun) 10 yrs / 4 yrs NG 4 yrs, NPP 3 yrs s.112(2) agg. break, enter & steal 20 yrs / 5 yrs PG 2 yrs 6 mths Form 1 - s.547D - carry cutting implement 6 mths

Notice of Appeal

The applicant seeks leave to appeal (and leave to extend time within which to appeal) against his sentence. The applicant acts for himself and has expressed his proposed grounds of appeal in this way: "1. I would like to appeal severity of the sentence. I believe it was well not in the range; 2. It is my first [time] in jail. I know it would be better for me to have a longer parole and when I was sentenced it should have been run together are not overlapped."
I will adopt the descriptions of these two grounds used by the Crown in this Court. Ground 1 raises the issue of manifest excess, and Ground 2 raises the issue of special circumstances and totality.

Relevant Facts for Purposes of Sentencing

It is necessary to recount briefly the relevant facts found by the sentencing Judge, which are relevant to the objective offending and the applicant's subjective circumstances.
These facts are drawn from the remarks on sentence because there is no complaint of any error in the findings. No submission was made that the Court should not adopt these factual conclusions.
It is convenient to also record at the outset that, at the time of sentence, the applicant was dealt with together with three other offenders: Dean Ian Horst, Daniel Bezjak and James Button.
Although there was a good deal of commonality in the factual circumstances for which all four men were being sentenced, there were also significant differences. For example, Mr Bezjak and Mr Button pleaded guilty to the relevant offences whereas Mr Horst and the applicant stood their trial and were convicted.
Although all four offenders were charged with the s 112(2) offence, Mr Button pleaded guilty to reckless wounding but the applicant was found guilty (on the second count) of the more serious offence of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act. Mr Bezjak pleaded guilty to being an accessory after the fact to two counts of reckless wounding, being Counts 2 and 3, of which the applicant was found guilty.
The offences for which the applicant stood trial arose in the context of a joint criminal enterprise entered into by the various offenders, to go to a house in Dundas Valley and, knowing that there were people inside (which constituted the circumstance of aggravation) to break into the house, enter it and steal various items. The property was targeted because the offenders expected that there would be cash, drugs and other valuables in it for them to steal.
Some of the offenders were armed during the incident. There was at least one machete (although there could have been two), a screwdriver and a sawn off shotgun which were produced in the course of the crime.
A visitor to the property, who was staying there as a guest, was sitting outside the house in his car on the driveway. He was talking to his wife on a mobile phone. One of the offenders tapped on his window and told him to "Get out, be quiet and go into the house". The visitor got out of his vehicle and saw a number of other men walking towards the house. He noticed that the man who had told him to go into the house was carrying a sawn-off shot gun. Acting out of instinct, the visitor grabbed for the gun, after which a tussle ensued and the shotgun discharged. He was injured in the right thigh. The struggle persisted for some time, during which at least one further shot was fired.
During the course of the attack, the visitor realised that his wrist had been injured because he saw that blood was spurting from that area. He was also wounded to the shoulder. The injuries to his wrist and shoulder were inflicted by machete blows. The struggle in which the visitor engaged continued for some time until all the offenders left the vicinity of the house. The visitor suffered significant wounds including a deep penetrating wound to the right shoulder; a deep laceration of the left wrist exposing, but not severing, the tendons; pellet holes to the right thigh and right foot; and superficial abrasions to his forehead, chest, back, knees and ankles. Clearly these injuries amounted to grievous bodily harm.
Whilst that attack was taking place outside, one of the offenders entered the house brandishing a machete. A struggle ensued until a resident of the house sought refuge in a bedroom. The offender took the resident's bag from him, which contained $700 in cash, as well as a sterling silver necklace. The offender left the house and ran off with the other offenders who had been outside.
Police were called, but the offenders had disappeared before they arrived. Lengthy and detailed police investigations succeeded in identifying the offenders. They were ultimately arrested and charged.
The sentencing Judge found that the offences were clearly organised and planned in advance, including the obtaining of a number of weapons for use in the planned home invasion. He found that that invasion was conducted for the purpose of obtaining drugs, money or other valuables.
The sentencing Judge further found that the applicant was a participant in the altercation with the visitor who was in the vehicle outside the house, although he was not satisfied that it had been established which of the co-offenders had brandished any particular weapon or caused any particular injury.
The sentencing Judge was satisfied that one of the other co-offenders was the person who entered the house, and that it was not the applicant.
In considering the s 112(2) offence, his Honour noted the following facts as being relevant to the seriousness of the offence: 1. the offence was committed at night: 2. it involved physical violence although, ultimately, the resultant injuries were not significant; 3. the physical altercation with the visitor occurred in an endeavour to force the visitor to go back into the house; 4. in the house, the machete was brandished to create a fear of harm in the minds of the occupants and thereby obtain their assistance to locate the desired items; 5. the offences were committed in company; and 6. there was a degree of planning involved in the offences particularly during the course of the preceding day, involving changes of clothing and the obtaining of weapons.
With respect to the s 33(1)(a) offence, his Honour noted that the offence featured the use of a weapon, that there was a significant degree of violence and that the nature and extent of the wounds to the victim were substantial, with the victim suffering ongoing difficulties. The offence was committed in company.
With respect to the s 35 offence, his Honour noted that a shotgun was used as a weapon, that there was a significant degree of violence and a substantial risk of injury, although ultimately the injuries were relatively superficial.
His Honour found that each of the offences approached the mid-range objective seriousness.
The sentencing Judge noted the following facts with respect to the separate offence with which the applicant was charged under s 112(2), and to which he pleaded guilty. That offence related to a different occasion two months later in April 2015, when he attended a house in Russell Lea.
On that occasion the homeowner returned home from work, arriving at approximately 9:30am. As he entered his house, he noticed that his bedroom had been ransacked and he saw the applicant wearing a balaclava running towards the rear of the house. The applicant and his co-offender left the house through a rear window which was already broken. They then jumped over a side fence and ran away. A bystander called police. As the applicant and his co-offender continued running, they were stopped by police and arrested.
When approached by a police officer, the applicant was told to get on his knees. He responded by removing the backpack he was wearing and taking a knife out of his pocket. The police officer drew his firearm in response and the applicant then dropped the knife when directed to do so. He was handcuffed and arrested. Items that had been stolen from the premises were found in the backpack carried by the applicant.
There was damage to the front door of the house consistent with an attempt to gain entry using a crowbar. The back window was broken - apparently being the point of entry.
The sentencing Judge found that this s 112(2) offence was somewhat below the mid-range of objective seriousness. He noted that there was some evidence of planning in that there was a motor vehicle being driven by a co-offender who was parked there as a lookout to provide a warning to those inside. The offence was clearly premeditated because the co-offenders took the necessary implements with them including items to disguise themselves and to prevent detection, such as balaclavas and gloves.
His Honour considered the subjective circumstances relating to the applicant with respect to all offences.
He noted that at the time of the offences the applicant was 26 years old, and at the time of sentencing he was 28 years old.
His Honour noted that whilst at school the applicant had a number of learning disabilities including dysgraphia, a deficiency in the ability to write, and also dyslexia, which affects the ability of a person to read and articulate words. His Honour noted that the applicant's disabilities clearly frustrated him whilst at school leading to confrontation and conflict with teachers.
His Honour noted that since he had been in custody, the applicant has been attending literacy and numeracy classes. He has made significant enthusiastic attempts to address his fear of education. His reading and writing have significantly improved. His Honour noted that the applicant undertook those lessons very positively.
The sentencing Judge noted that the psychological report provided indicated that the applicant had a criminal history defined by illicit drug use, that he has been on the Disability Support Pension since the age of 18, had occasional intermittent work and, at the time he committed the relevant offences, he had been using ice, heroin and marijuana on a daily basis and at chronic and dangerous levels. His Honour also noted the applicant had been a binge drinker of alcohol for a time in his late teens and early adulthood.
The psychological report recorded that the applicant was identified as having the learning disabilities to which I have earlier referred, a speech impediment and, as well, attention deficit hyperactivity disorder and attention deficit disorder.
The applicant was noted to have had an unfortunate upbringing. He was the eldest of four children. His father was a drug addict who had a volatile and dysfunctional marital relationship with his mother. The applicant had a mixed educational history. He completed Year 12 with a Certificate of Attainment, although he required assistance with various educational tasks.
The sentencing Judge found that the applicant did not suffer from any serious psychiatric disorder and that there was no evidence of any delusions, hallucinations or other psychiatric symptoms.
His Honour noted that the applicant had been diagnosed with epilepsy and had suffered from, and continued to suffer from, a number of seizures. His Honour recorded that: "I accept that he had a dysfunctional family environment marred by domestic violence and the use of illicit substances, particularly by his father. He has apparently had, while in custody, minimal parental support as a result of both his parents being banned from institutional visits following warnings for bringing contraband into different institutions. He has no current contact with his ex-partner."
A pre-sentence report indicated that whilst the applicant acknowledged the seriousness of the offences, he failed to acknowledge the impact of those offences on the victim and witnesses. The report also noted that the applicant had continued to display "pro-criminal and anti-social behaviour whilst in custody". The applicant was assessed as a medium risk of reoffending. It also concluded that the applicant had "no insight into the severity of his offending behaviour". It seems that His Honour accepted these findings.
His Honour also noted that the applicant was, at the time of committing this offence, on bail for an offence committed in March 2014. His Honour identified this as an aggravating factor. His Honour also found with respect to the applicant, that there was no evidence of remorse or contrition, nor did he appear to acknowledge the seriousness of the offences committed. His Honour found that the prospect of rehabilitation was very limited.
It was on the basis of these findings that the applicant was sentenced in the way described above at [6] and [7].
It is convenient now to consider the grounds of appeal.

Applicant's Submissions

The applicant's submissions were relatively brief. In support of both grounds, the applicant submitted that there were three components of the sentence which in their combination meant that his sentence was excessive.
The first of those components was that in comparison with his co-accused his aggregate sentence was significantly longer and therefore more harsh; secondly, the extent of the backdating was inadequate and therefore gave him a longer effective sentence than some of his co-offenders; and thirdly, that the proportionality of the non‑parole period compared with the parole period was such that, given he had not been to jail before, he ought to have had a longer proportion of his sentence as a non-parole period.
In the course of oral submissions, the applicant suggested that he may have had less than adequate advice about when to enter his plea of guilty in respect of the fourth offence and whether it ought properly to have been entered in the Local Court. However, no evidentiary basis was tendered to support this claim which rested on the applicant's assertion from the Bar table.
In that respect it is to be observed that his co-offender, Mr James Button, in respect of the Russell Lea offence, was sentenced in the Local Court after a plea of guilty, and received an Intensive Corrections Order for a period of 2 years. Mr Button did not have any additional offence to be taken into account in a Form 1. The indicative sentence with respect to this offence for the applicant was 2 years and 6 months including the Form 1 offence. At the time he committed this offence, the applicant was also on bail for a previous unrelated charge. Mr Button was not.

Crown Submissions

The Crown submitted that the aggregate sentence imposed was not manifestly excessive and that there were significant factors which differentiated the applicant from his co-offenders and which were sufficient to justify the difference in the sentences which were actually imposed.
Insofar as the issues of backdating of the sentence were concerned, and the issue whether or not there was an appropriate period of parole as well as an appropriate non-parole period, the Crown submitted that these were matters within the discretion of the trial Judge who had not been shown to have erred.

Discernment

The first ground of appeal can conveniently be described as one of manifest excess. If one was to approach the matter, as the applicant seems to, solely by reference to the aggregate sentences imposed on Mr Bezjak and Mr Button (after their successful appeal), and without having regard to the difference in their respective cases, then the submission that the applicant's sentence was manifestly excessive would be superficially attractive.
However, this would have regard only to one part of the entire sentencing process which requires a Court to take into account all of the relevant features.
Although there was a real discrepancy in the aggregate sentence, neither Mr Bezjak nor Mr Button were convicted of the second s 33(1)(a) offence of wounding with intent to cause grievous bodily harm. As noted earlier, Mr Bezjak pleaded guilty to being an accessory after the fact to reckless wounding in company, and Mr Button pleaded guilty to reckless wounding in company. The offence of reckless wounding is significantly less serious than wounding with intent to cause grievous bodily harm. It carries a significantly lower maximum penalty and a significantly lower standard non-parole period. These are both statutory guideposts to which a sentencing Judge must have regard.
The further consequence of the disparity between the offences is that the sentencing Judge, when assessing the aggregate sentence to be imposed, has to give full weight to the criminal conduct engaged in, and how the sentence properly reflects the totality of that conduct. It is to be observed, as well, that if regard is had to the only offence charged which was common to all four co-offenders, namely the offence against s 112(2) of aggravated break, enter and steal, the indicative sentences, whilst different, were adequately explained by varying subjective factors. It cannot be said that the sentences are so markedly different that there must be an error by way of manifest excess on the part of the sentence imposed on the applicant.
It may be difficult, particularly where the applicant appears in person, for him to understand the complexity of all of the factors which are to be considered as part of a sentence being imposed. What is obvious on an examination of this case is that the mere fact that there were four co-offenders engaged in a home invasion as part of a joint criminal enterprise does not necessarily mean that each one of them must get the same sentence. On the contrary, as it appears to me, the sentencing Judge engaged in a very careful assessment of the individual factors which were applicable in each case and imposed sentences accordingly.
In considering whether the aggregate sentence which was imposed was manifestly excessive, it is necessary to consider whether the sentence was within the range which might properly be applicable to this offence. This consideration is made in light of all of the factors to which reference been made above, including the fact that the applicant committed the first three offences whilst on bail, that the sentencing Judge concluded that the applicant had very limited prospects of rehabilitation, that there was no evidence of remorse or contrition, and the seriousness of the home invasion offence in which the applicant participated. In my view it was within the applicable range and I am unpersuaded that the sentence was manifestly excessive.
The second ground upon which the applicant submitted that the Court ought interfere is in respect to special circumstances and totality.
The aggregate sentence imposed on the applicant revealed a slight adjustment from the statutory ratio, namely 71% compared with 75%.
The sentencing Judge noted that he did not "in effect [find] special circumstances". However when he moved to imposing the aggregate sentence with respect to the applicant, he noted that he had reduced the non‑parole period from the statutory ratio so as to provide for a more extended period of supervision "… for a lengthier period than otherwise would be the case while on parole to assist the offender in returning to a non‑offending lifestyle in the community".
The sentencing Judge noted that with respect to the applicant, that he had reduced the non-parole period to ensure that he had the benefit of 3 years of parole which equated with the maximum period of supervision provided for in the relevant regulations.
It is necessary also to note that at the time the sentence was imposed on the applicant, he was serving a sentence for an unrelated matter, and the commencement of the sentences in respect of the offences subject to the application for appeal was backdated by three months to take account of that existing matter and to adjust the sentence to allow for the principle of totality.
Issues of whether or not special circumstances ought be found to exist and the extent of concurrence with existing sentences, are ordinarily matters upon which this Court is reluctant to intervene. That is because the weight to be accorded to these factors is seen to be a matter within the discretion of the sentencing Judge and is commonly a matter in respect of which there is no single correct answer but rather reflect a subjective assessment: Caristo v R [2011] NSWCCA 7 at [28]; Jiang v R [2010] NSWCCA 277 at [83].
It does seem that the allowance made by the sentencing Judge with respect to these matters fulfilled his described purpose, namely to allow the applicant the maximum time for supervision in the community after his release. The extent of the backdating was well within the discretionary range given to the sentencing Judge.
I am unpersuaded that there is any error of the kinds that the applicant seeks to establish.

Conclusion

In my view, the application for leave to appeal against sentence lacks any merit.
In my view the appropriate approach in this case is to refuse to grant the applicant leave to appeal.
I propose, accordingly, that leave to appeal should be refused.
WRIGHT J: I agree with Garling 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: 19 September 2019

At a glance

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Judgment (8 paragraphs)

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Cases Cited (2)