R v BADANJAK

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70024/01 FILE NUMBER(S) : LOWER COURT Greg James J JUDICIAL OFFICER :

• 11 - IN THE COURT OF CRIMINAL APPEAL CCAP 2001/2930

WOOD CJ at CL McCLELLAN AJA SMART AJ

Monday 25 October 2004 Regina v Josip BADANJAK Judgment

1 WOOD CJ AT CL: The Applicant seeks leave to appeal against the sentence which was imposed upon him, by Greg James J in the Supreme Court of New South Wales, on 16 November 2001, following his plea of guilty to one count of murder. He was sentenced to imprisonment for sixteen years with a non parole period of twelve years. FACTS 2 The victim was the Applicant's wife, Maria Badanjak. There had been a long history of violence, on the part of the Applicant within the marriage due mainly to his resentment in relation to her emerging independence, and her complaints about his excessive drinking. He had been convicted of an assault on his wife in 1983. He had committed a number of breaches of apprehended violence orders, and there had been periods of separation followed by a resumption of co habitation. 3 In January 2000 Mrs Badanjak indicated a desire to move out of the matrimonial home and to live apart from the Applicant, a proposal that did not meet with his approval. 4 During the late afternoon of 24 January 2000, he repeatedly stabbed his wife to death. The immediate causes of death were two stab wounds to her chest, which pierced her heart, and two stab wounds to her neck which severed her jugular vein. The frenzy with which she was attacked was indicated by the large number of additional knife wounds to her chest, arms and head, which were apparent at post mortem examination. 5 The sentencing judge found that the murder was premeditated, by reference to the circumstance that, about two hours before the murder, the Applicant told an acquaintance, Kevin Frances that his wife wanted him to move out of their home, and that he was returning home to kill her and his daughter. Although his Honour did not refer to it, there was also evidence before him to show that, two days before the murder, the Applicant had informed another friend, Frank Novak, that if his wife persisted with her plan to make him leave the matrimonial home then he would kill her. 6 The Applicant appeared in person and relied upon two grounds of appeal which were reduced to writing. Additionally, this morning, he tendered two documents, in one of which he repeated the submission concerning the advice which he alleges was given to him by counsel as to the extent of the discount for a plea of guilty, that he might expect. To the substance of that ground I will return. However, before proceeding to deal with the two specific grounds which have been identified, it was established with the Applicant that his appeal remains one against sentence. He does not bring any application before the court to re-open the conviction appeal. Upon that basis I will proceed to deal with the two grounds which have been identified.

GROUND 1 - ERROR IN A FAILURE TO FIND SPECIAL CIRCUMSTANCES. 7 The Applicant submits that the sentencing judge erred in not finding special circumstances, by reason of the fact that he suffered from a back injury and deteriorating mental health at the time of the sentencing, which would make custody more difficult for him. In this regard attention was drawn to the observation of his Honour: "I do not see that the offender is suffering from some such substantial condition as would warrant some special mitigation of sentence, which might otherwise be appropriate". 8 Although those observations were passed in the context of his Honour's consideration of the question of deterrence, they may be taken as indicating a general finding that the Applicant did not suffer from any serious condition, which would justify a significant mitigation of sentence. 9 It was held in R v Smith (1987) 44 SASR 587 at 589, an authority to which the Applicant made express reference, that while the health of the offender is relevant to the type and length of any sanction imposed, generally speaking it will only be a factor tending to mitigate punishment when there is evidence to show that there is a serious risk that imprisonment will be a greater burden on an offender, by reason of ill health, or where there is a serious risk that imprisonment will have a grave adverse effect on the offender's health. 10 That decision was applied by the High Court in Bailey v DPP (1988) 62 ALJR 319, and by this court in R v Vachalec [1981] 1 NSWLR 351 and R v L NSWCCA 17 June 1996: see also R v Burrell (2004) 114 A Crim R 207 and R v Azar [2000] NSWCCA 26. 11 It remains the responsibility of the Corrective Services Authorities to provide appropriate care and treatment for prisoners: R v Vachalec, and R v Krasser NSWCCA 2 September 1993. Most conditions can be adequately managed by those authorities without the need for mitigating the sentence that would otherwise be appropriate, and it is only in relatively rare cases that the Smith principle is applicable. 12 In this case there was no evidence before the sentencing judge to suggest that the Applicant's mental health was deteriorating at the time of the sentence. The report of the psychologist, Ms Devlin, of 16 October 2001, indicated that there had been a gradual decline in his intellectual functioning due to alcohol abuse, but there was nothing to indicate any increase in that decline between the time of the killing and the sentence. She also noted his history of depression. 13 Dr Bruce Westmore expressed an opinion, in his reports of 19 July 2001 and 27 September 2001, that the Applicant was not suffering from a major depressive illness or displaying any psychotic features. Dr Westmore also noted that, despite the Applicant's claim to memory loss: "he was an attentive and alert historian who appeared to be able to provide, if accurate, a good autobiographical history".

14 Both parties agreed, on sentence, that while the Applicant's intellect had declined over the years due to alcohol abuse, he should be sentenced on the basis that his intellectual decline had played no role in the commission of the offence. He was sentenced on that basis. 15 Dr Westmore said that the Applicant might be prone to episodes of depression over the next few years, but that is hardly an unexpected consequence for an offender sentenced to imprisonment. His abstinence from alcohol, while in custody, is likely to be a favourable factor for him. 16 There was no medical evidence tendered on sentence concerning the extent of his back injury, other than for the history which the Applicant gave to Ms Devlin and Dr Westmore. That was a history of an injury which had occurred nine years earlier, at work, and which had involved a disc. 17 Surgery eighteen months after the injury had helped, although it was recorded that the Applicant still needed a TENS machine to treat pins and needles and cramps, and that he took Panadeine Forte for the pain. 18 The Applicant had been in custody for eight months by the time that he was seen by Dr Westmore, and he made no complaint of any deterioration in his back condition when asked about his health. 19 There was again no evidence before his Honour suggesting a risk of deterioration, and no evidence was tendered on appeal to show that his condition had been worse than was expected at the time of sentencing. 20 It is the fact that there were tendered this morning (although they had also been attached to the earlier submissions), some photographs of x-rays which show the pins which had been inserted in the vertebrae of the Applicant at the time of his original surgery. It is evident from the attached card and the accompanying photograph of the Applicant that these were x-rays taken at the time of surgery. They are not fresh x-rays. It is impossible to draw any conclusion from the bare fact of the x-rays that anything was overlooked in relation to the Applicant's back condition. 21 During the proceedings on sentence counsel for the parties were specifically invited to make submissions in relation to the way in which his Honour should take into account the Applicant's physical or mental condition. His counsel, no doubt in recognition of the principles which I have cited, submitted that these matters would make custody more difficult for him but said: "That might be a matter taken into account eventually if he comes before the Parole Board in relation to release, but I do not think there is much a court could do apart from give some consideration to the length of sentence to assist the prisoner who has serious physical problems like this prisoner has. Those matters will be in the hands of the prison authorities".

22 He did not submit that his Honour should find special circumstances. Rather, it was submitted that the Applicant's physical and mental health were relevant to the question of the overall length of the sentence. 23 The state of his health was expressly taken into account by his Honour in this way. His Honour accepted the histories set out in the reports of the psychologist and psychiatrist, except for the suggestion, which had no foundation whatsoever, that the offence involved any element of self defence or provocation. He also expressly took all of the Applicant's subjective circumstances into account in fixing both the sentence and the non parole period. 24 The present case is not one where the Applicant was suffering from some illness or injury which was not identified or known by his Honour at the time of sentencing, and it is, accordingly, distinguishable from cases such as R v Vento NSWCCA 6 July 1993, R v Dowe NSW CCA 1 September 1995 and R v F NSWCCA 21 May 1998. 25 In the event of the Applicant's condition deteriorating in the future then the principles summarised by the court in R v L apply: "The fact that an offender suffers from an illness does not necessarily mean that a prison sentence should not be imposed, or that the sentence should be less than the circumstances of the case would otherwise require. It is the responsibility of the executive to provide for the care and treatment of its prisoners: R V Vachalec (1981) 1 NSWLR 351, per Street CJ at 353-4. If a prisoner's condition deteriorates during the course of the sentence such that his or her release ought to be permitted on humanitarian grounds the executive is empowered to deal with the situation. Section 53 of the Sentencing Act 1989 preserves the royal prerogative of mercy and s 25A(1) of the Act enables the Offenders' Review Board to grant parole at any time if the prisoner is dying or there are other "exceptional extenuating circumstances'". 26 In my view there was no error in the exercise of his Honour's direction, insofar as he declined to find special circumstances. 27 As was noted by Spigelman CJ in R v Simpson (2001) 53 NSWLR 704 (paras 63 and 65) the ultimate constraint on the discretion of a sentencing judge to find special circumstances, warranting a reduction of the non parole period, is that the non parole period, must itself reflect the criminality involved in the offence, including the objective gravity of the offence and the need for general deterrence. 28 His Honour continued (para 67): "Where a circumstance is taken into account by way of reduction of the head sentence, the application of the statutory proportion will have the result that the circumstance also reduces the non parole period. Before a sentencing judge further reduces the non parole period by reason of that circumstance he or she must undertake a process of analysis which travels beyond that which has been undertaken in the course of determining the head sentence". 29 In R v Fidow [2004] NSWCCA 172 the Chief Justice observed at para 18: 'Double counting' for matters already taken into account in reducing the head sentence and therefore already reflected in the non parole period must be avoided. (See Simpson at {47}). Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur'.

30 His Honour went on to note that the flow of appeals to the Court of Criminal Appeal on the issue of special circumstances had not abated, despite the fact that the court had said, in Simpson, that it would be unlikely to interfere unless the non parole period was found to be manifestly excessive or manifestly inadequate. 31 It is beyond question that the Applicant in the present case killed his wife because he resented her attempts to separate from him. The sentencing judge correctly referred to those authorities in which the courts have emphasised the abhorrent nature of domestic murder, and to the circumstance that considerable weight must be given, in such cases, to the need for punishment and general deterrence (see R v Cheung NSWCCA 11 December 1995). 32 The Applicant's health, including his cognitive deficits and his age, were expressly taken into account in fixing the sentence, as was the loss which he had suffered in effectively terminating contact with the remainder of his family as a result of his conduct. Each was automatically reflected in the non parole period which is at the lower end of the range for an offence of murder. Any further reduction of the non parole period by reason of a finding of special circumstances, referable to the Applicant's health, would have involved erroneous double counting and it would also have resulted in a sentence that did not reflect the objective criminality involved. 33 This ground is not made good. GROUND 2. ERROR IN FAILING TO GIVE THE APPLICANT A TWENTY FIVE PERCENT DISCOUNT FOR HIS GUILTY PLEA.

34 It is apparent from the record before us that the Applicant entered a plea of guilty on 3 September 2001, which was the date fixed for the commencement of the trial. 35 The record shows the matter then came before the court on 26 October 2001, on which occasion the Applicant was represented by counsel. Upon that date evidence was received, and some submissions were placed before his Honour concerning the appropriate range. It is evident from the discussion which took place that Mr Austin of counsel, who represented the Applicant, accepted that a range of fifteen percent to twenty five percent, by way of a discount for the plea, was appropriate. There was discussion between his Honour and counsel to the effect that the relevant non parole period was within the range of twelve to eighteen years. 36 As his Honour pointed out, the Crown pointed to the higher end of that scale and Mr Austin accepted that the lower end of the scale would be appropriate. 37 His Honour indicated that, after a discount for the plea he would end up with a non parole period within that range. 38 It is also evident from the record that, subject to the reception of the victim impact statement, all relevant evidence and submissions had been received on 26 October. 39 The sentence was, in fact, handed down on 16 November, following the tender of the victim impact statement. 40 The Applicant has submitted, in a letter provided this morning, that he has concerns in relation, not only to the advice which he claimed was given to him by counsel concerning the possibility of him receiving a twenty five percent discount, but also in relation to the asserted absence of counsel when the matter came back before the court on 26 November. 41 We have had the benefit of perusing a copy of the associate's record which shows that the case was called on at 12.06pm, at which point Mr Austin apologised for not having attended earlier. The record then shows that there was a discussion concerning the victim impact statement, after which his Honour proceeded to pronounce sentence. 42 That record does not bear out the assertion which is made in the document, provided this morning, to the effect that there was no one to argue on sentencing on behalf of the Applicant on that day. Nor does it bear out the assertion that counsel said that he did not have any paperwork for sentencing and did not have a date for sentencing. 43 It is apparent, as I have indicated, that for all practical purposes the reception of evidence and submissions had already been completed, and all that remained on 16 November, was for his Honour to receive the victim impact statement and then to pronounce sentence. The matter of which the Applicant complains could not possibly have acted to his prejudice. 44 It may be noted that additionally there was an indirect suggestion in this document that the Crown Prosecutor and the Judge had some kind of discussion, and that the sentencing did not occur until after lunch and then only in the absence of counsel. It is perfectly apparent that those facts are incorrect. It is also inconceivable that the Crown Prosecutor had any discussion with his Honour in private. 45 The case is one where the sentencing judge had accepted that the Applicant had shown some remorse and fixed a discount of fifteen percent to encompass the utilitarian value of the plea and the remorse. 46 In R v Thomson and Houlton (2000) 49 NSWLR 383 a range of between ten percent and twenty five percent was suggested as the appropriate range of discount for a guilty plea. The Chief Justice there said (at para 155): "The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial." 47 It is to be observed this is a case where the plea first came on the date fixed for trial. It is not a case where there were any particular benefits from the plea arising in relation to the prospective length and complexity of a contested trial. 48 As was said by Howie J, with whom Dunford and Adams JJ agreed, in R V Hanslow [2004] NSWCCA 163 at para 24: "It was submitted that the plea of guilty, coming at the earliest opportunity and before the magistrate, should have alone resulted in a discount of twenty five percent. This is an argument that converts a guideline into a rule. It has been said repeatedly by this court that the discount for the plea is a discretionary matter and that a particular offender has no entitlement to any particular discount: R v Scott [2003] NSWCCA 286; R v Newman [2004] NSW CCA 113".

49 There were no exceptionally complex matters, or other reasons in this case warranting a discount for the plea and remorse greater than fifteen percent. There was never a basis for the Applicant's contention that defences of provocation, or self defence or of substantial impairment may have been available to him and required investigation, let alone that they provided a defence. 50 Although the Applicant says that he only pleaded guilty because of the advice, the record does not suggest that he was in any way disadvantaged by the approach which was taken in relation to the value to be given to the plea. 51 The Applicant has, accordingly, failed to establish error in sentencing principle. He has also failed to show that some sentence other than that passed was warranted in law and should have been passed (S6(3) Criminal Appeal Act 1912), for an offence of domestic murder involving the significant attack which was inflicted upon the victim. It appears to me that the sentence was, in fact, a lenient sentence. Any other sentence would have been manifestly inadequate. 52 I would grant leave to appeal but I would dismiss the appeal.

53 McCLELLAN AJA: I agree. 54 SMART AJ: I also agree. 55 WOOD CJ AT CL: The order of the court will be as I proposed.

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