R v Cheh [2009] NSWCCA 134 | Case summary

FRIDAY 1 MAY 2009 R v CHEH, Daniel Judgment 1 McCLELLAN CJ at CL: The respondent, Daniel Cheh, pleaded guilty to one count of specially aggravated break and enter and commit a serious indictable offence contrary to s 112(3) of the Crimes Act 1900. The circumstances of aggravation were that the respondent knew that persons were present in the premises and wounding. The maximum penalty for the offence is 25 years imprisonment. There is a standard non-parole period of 7 years imprisonment. The respondent was sentenced to a non-parole period of 3 years 9 months with a balance of term of 1 year 3 months. 2 When sentencing the respondent her Honour also had regard to a matter on a Form 1. That matter, a deemed supply of 12.4 grams of methylamphetamine, was a breach of s 25(1) Drug Misuse and Trafficking Act 1985 for which the maximum penalty is a term of imprisonment for 15 years. 3 At the same time as her Honour was sentencing the respondent for the substantive offence she was also asked to sentence the respondent pursuant to s 98 Crimes (Sentencing Procedure) Act 1999 for the breach of a s 9 bond in relation to an offence of destroy or damage property. The respondent had been sentenced for this offence on 16 January 2007, a little over one month before the subject offence, which was committed on 26 February 2007. The property in question was the back window of the complainant's car. The bond included a condition that the respondent not assault, molest, harass or otherwise interfere with the complainant. For the breach of the bond her Honour imposed a fixed term of imprisonment for 6 months which was wholly subsumed by the sentence for the primary offence. 4 The respondent and the complainant, Chantelle Pieterse, had previously been in a relationship from which there was one child who was twenty months old at the time of the offence. The relationship had come to an end. The complainant had formed a new relationship with Adrian Jackson. On the evening of 26 February 2007 Ms Pieterse and Mr Jackson were retiring to bed when they heard a noise like a window or door being opened. Ms Pieterse asked Mr Jackson to investigate while she stayed at the entrance to her bedroom. Mr Jackson walked down the hallway and saw the respondent through the hallway kitchen door standing approximately three steps away. The respondent came at Mr Jackson and grabbed him around the forearms. Mr Jackson managed to get out of his grip and continued to push him off. The respondent continued his aggression towards Mr Jackson calling out "Are you fucking her?" in an aggressive manner. Mr Jackson replied "No" and the respondent said "Get the fuck out of the house." 5 The respondent started to push Mr Jackson towards the front door. Mr Jackson then turned around and opened the front door and walked outside. The respondent followed Mr Jackson to the main driveway and pushed him to the ground. Mr Jackson could smell alcohol on the respondent's breath. Mr Jackson continued to defend himself and used his arms to push the respondent away. The respondent then walked back into the house. 6 The respondent next went to Ms Pieterse's bedroom. She was trying to secure her door but could not resist the respondent. He said to her "You're gonna fucking die tonight bitch." She replied "Please don't do it. Please don't do it." At this point the respondent dragged Ms Pieterse to the kitchen by grabbing hold of her hair and pulling her. Ms Pieterse struggled with the respondent and tried to push his arms off her. She was terrified and kept trying to get away but was unable to do so. 7 The respondent went to the kitchen door and took hold of a black handled steak knife. He repeated "You're gonna die bitch." Ms Pieterse who had fallen to the floor slid against the wall and the respondent stabbed her twice in the chest. She pleaded with the respondent "Please don't kill me." The respondent kept saying "I'm gonna hang myself now and you'll end up like me." 8 It was then that their son could be heard calling out "Mama" from his bedroom. The respondent stood over the complainant and said "I don't know why you are doing this to me. I thought we can be a family again if you want." She replied "I promise you we can be together as long as you don't kill me and hurt me more than you have." The respondent still had the steak knife in his hand; he raised it above his shoulder and brought it down towards Ms Pieterse's throat. She grabbed the blade of the knife in her left hand; the blade cut deeply into her hand and then broke off from the handle. 9 By this time the child had come from his bedroom and was near the kitchen entrance saying "Dada, Dada, Dada, Dada." The respondent stopped assaulting the complainant and started crying. He fell on top of Ms Pieterse who pushed him off and picked up her son. She ran out the front door to the nearest house with lights on where she saw one of her neighbours, Mr Jackson and another neighbour. She told them she had been stabbed in the heart and asked for an ambulance to be called. Mr Jackson had already called 000. 10 Ms Pieterse was taken to Liverpool Hospital and treated for two stab wounds to the chest and punctured lungs. She was also treated for a deep cut to her left hand. 11 Shortly afterwards the police went to the home of the respondent where he was arrested. They also found a suicide note which he had written on a coffee table. There were also a number of beer bottles. 12 When interviewed at the police station the respondent said he had been drinking the whole afternoon and denied that he had been to the complainant's house. He denied having assaulted her. He said he could not remember anything because of the amount of alcohol that he had been drinking. 13 The respondent is presently 33 years of age. He has a limited criminal history but it does include offences for drug and alcohol related matters and for violence. He has been consistently employed since leaving school and completed a business course. However, prior to the offence his employment ceased, apparently due to his increasing use of alcohol. Although the respondent pleaded guilty at committal there was a dispute in relation to the facts and both he and the complainant gave evidence at the sentencing hearing. Her Honour preferred the complainant's version of the facts. 14 The respondent began his first long term relationship in 1996. There was a child born of that relationship who died of meningitis in 2002 when aged 2½ . The couple separated. The respondent was adversely affected by his son's death. As a consequence he increased his alcohol consumption to in the order of a case of beer and a bottle spirits each day. 15 In 2003 the respondent formed a relationship with the complainant. However, there were difficulties between them which resulted in the complainant taking out two apprehended violence orders against the respondent since 2004. Since entering custody the respondent has been diagnosed with depression. He had previously been diagnosed with this condition before the offence and had been prescribed medication which he did not continue. He told a psychologist that "it was easier to go to a bottle shop." Since his incarceration he has received on-going treatment and is medicated. This has had beneficial effects and the evidence suggests that he is coping with being in gaol. 16 The respondent has expressed remorse for the fear experienced by his victim and his son who witnessed the violent event. 17 The Crown submitted that the sentence which her Honour imposed was manifestly inadequate. It was submitted that her Honour erred by failing to properly assess the objective seriousness of the offence, failed to pay due regard to the principles in Veen v The Queen [No 2] (1988) 164 CLR 465, erred by giving undue weight to the plea of guilty and the subjective features of the respondent, erred in her application of special circumstances and erred by failing properly to take into account the need for specific and general deterrence. 18 Her Honour's remarks on sentence are inadequate in a number of respects. After finding the relevant facts and recording subjective matters, including the respondent's difficulties with depression and alcohol, her Honour considered the submissions of both the Crown and of the respondent. Her Honour concluded that the seriousness of the offence was enhanced by the fact that the respondent was on conditional liberty when it was committed which was a short time after the imposition of the s 9 bond. Her Honour concluded that there was no planning involved in the offence but that the respondent was severely affected by alcohol at the time. She identified the fact that he did not take a weapon with him to the complainant's house but opportunistically found a weapon in the kitchen drawer. 19 The Crown submitted to her Honour that the actual trauma suffered by the complainant was such as to be an aggravation of the offence. However, her Honour concluded that it was an element of the charge as was "the force used or threatened" which her Honour concluded was also "part of the charges which are part of the offence." Her Honour concluded that Ms Pieterse suffered a significant injury and was in hospital for a period of time including some time in intensive care. Her Honour also found that Ms Pieterse suffered mental and physical trauma from the assault. 20 With respect to the issue of the objective seriousness of the offence her Honour said: "In looking to objective seriousness it seems to me that this falls somewhere in the mid-range of objective seriousness and perhaps slightly below the mid-range of objective seriousness. I take into account in particular the subjective features to which I have referred and also in relation to the age, background, the employment prospects and also the prospects of rehabilitation which I believe will be available to this offender. I accept his contrition to be real. It is his first time in prison. It appears that he has been well behaved and it also appears that he has engaged in the courses in an effort to engage in rehabilitation processes prior to his release from gaol." 21 Her Honour then continued with a discussion of the purposes of sentencing and concluded with a discussion of the appropriate discount. Her discussion of the latter issue was confused and erroneous. Her Honour said: "The purposes of sentencing of course are not only of punishment of an offender for the crime committed but also in relation to general deterrence. Clearly offences of break and enter committing a serious indictable offence which are aggravated by the factors which I have set out in this matter are matters that are prevalent in the community and are matters that require condemnation. The protection of the community is needed and also there should be denunciation of the conduct of an offender. It is necessary to make the offender accountable for his actions but it is also necessary to promote his rehabilitation. I recognise the harm which has been done to Ms Pieterse in the actions by the offender and her substantial wounding and as I have said I accept her evidence in relation to the continuing sequelae in that regard. The offender pleaded guilty at an early time although I am aware that there was the necessity of a hearing necessitating both the offender and Ms Pieterse giving evidence in relation to what were disputed facts. That was something which I take into account in looking to the utilitarian discount afforded by the plea of guilty. To that end and taking into account the special circumstances which I find being the need for rehabilitation, the fact of his remorse and also because of the mental illness, the alcohol problems and the like I believe a discount in the range of twenty five per cent to be appropriate." 22 As I have indicated there are multiple problems with these remarks. Her Honour in considering the objective seriousness of the offence did not apparently have regard to the principles discussed by this Court in R v Way (2004) 60 NSWLR 168. It would be unnecessarily repetitive for me to incorporate into these reasons the description in Way of the sentencing task required to be undertaken by a judge who must consider a standard non-parole period. They were carefully considered by the joint judgment of the court which must be continually borne in mind by sentencing judges: (see also Simpson J in R v AJP [2004] NSWCCA 434; 150 A Crim R 575). Although her Honour described the offence as "falling somewhere in the mid-range of objective seriousness and perhaps slightly below the mid-range of objective seriousness" her Honour did not explain, in any satisfactory way, her reasons for this conclusion. The conclusion itself was inadequate; the offence was either within the mid-range or it was not and her Honour should have turned her mind to this question with precision. I have previously commented on these problems in R v Knight; R v Bivanua NSWCCA (2007) 283 see [4]; 176 A Crim R 338; and the discussion by Howie J at [39]. The lack of attention given to the task which the sentencing judge was required to undertake compared with the emphasis her Honour gave to subjective matters suggest that an error may have occurred. 23 The suggestion of error is confirmed by the concluding paragraph in the extract from her Honour's remarks. Although the respondent pleaded guilty, entitling him to a reasonable discount on his sentence, her Honour failed to quantify the discount appropriate for his plea. Instead, in the concluding paragraph which I have extracted above her Honour provides a global twenty-five percent discount for, so it would seem, the plea of guilty together with matters relating to rehabilitation, remorse, mental illness and alcohol problems. This reasoning was misconceived, no separate "discount" being available for these various matters. 24 To my mind the offence was serious and but for the respondent's psychiatric illness fell within the mid-range of objective seriousness. The respondent entered the complainant's premises at night and threatened, insulted and ultimately attacked Mr Jackson. He then set about the attack upon Ms Pieterse. In the course of that attack he not only put her in terror but inflicted serious stab wounds to her chest, in particular her lungs and hand. He carried out this attack while his young child was in the house. The child came from his bedroom calling out and must himself have been severely traumatised by what occurred. Although the offence did not appear to be entirely planned, the respondent did not take a weapon with him, it was nevertheless a serious physical attack. It would seem that his original motivation in going to Ms Pieterse's premises was to see his son before then killing himself. He did not, at least initially, intend harm to Ms Pieterse. It is apparent that the respondent was affected at the relevant time by serious depression and had problems with alcohol. His psychiatric condition was likely to have been initiated by the death of his son and it remained untreated. No doubt his sense of loss at the break up of the relationship and his abuse of alcohol, which may have impaired his judgment, contributed to his behaviour. 25 Although it was submitted to the sentencing judge that the level of the applicant's mental health and alcohol abuse was such as to reduce his moral culpability her Honour does not explain any finding which she made in this respect. However, when her Honour ultimately expresses her conclusion as to the appropriate sentence she said that she had regard to the applicant's "mental illness". It would seem probable that her Honour had in mind the finding of the psychiatrist Dr Lucire, that the applicant was suffering from depression. Mr Taylor expressed a similar conclusion. Her Honour had previously said "I note that the evidence of the offender was that at the time of committing the offence he had formed an intention to commit suicide to the extent that he had written a suicide note and had also prepared a noose, but that he had determined to visit his small child to say goodbye before going ahead with that course." Her Honour would appear to have regarded the mental illness of the offender according to the psychological and psychiatric evidence as being merely a subjective circumstance which in combination with other subjective circumstances would entitle the respondent to a discount of 25%. The sentencing judge should have found that the respondent's actions were significantly influenced by his mental illness and that this was a matter relevant to the objective seriousness of the offence. 26 With respect to subjective matters the sentencing judge was satisfied that the respondent was genuinely remorseful and contrite. It would seem that with appropriate treatment his psychological state has returned to reasonable balance and it may be accepted that he has good prospects of rehabilitation. Although the offence was committed when the respondent was subject to a bond, in reality this formed part of the sequence of events culminating in the crime for which he was being sentenced. 27 The respondent pleaded guilty at an early stage. However, because the respondent did not accept a number of the elements of the Crown case it was necessary for the sentencing judge to conduct a hearing to resolve factual disputes. A discount in the order of twenty percent would in my judgment be appropriate for the utilitarian value of his plea. 28 The standard non-parole period for the offence is 7 years. Although by reason of the plea it is not of direct relevance it provides a guidepost to the sentence which should be imposed in the present case. In sentencing the respondent it was also necessary to have regard to the drug offence on the Form 1 for which the maximum penalty was imprisonment for 15 years. 29 It is apparent that the respondent has a need for psychiatric treatment and is likely to require psychiatric or psychological counselling into the future. His rehabilitation will need to be carefully monitored and his mental health on release maintained. Accordingly, a finding of special circumstances was appropriate so as to ensure that an adequate period of supervision is available upon his release from custody. 30 It is appropriate to view the respondent's crime as a manifestation of violence in a domestic situation. Although the parties were no longer residing together they were required to relate to each other in the interests of their small child. Just as this Court has expressed concern that appropriate sentences be imposed for violence within the home it is also necessary to ensure that the objective of general deterrence is achieved when sentencing a former partner for violence committed to the other person (see R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 and R v Burton [2008] NSWCCA 128). However, of significance in this case is that this Court has consistently adopted the view that when an offender's actions are affected by mental disability the objective of general deterrence is of less significance: R v Engert (1996) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (unreported, Court of Criminal Appeal, 18 March 1992 per Badgery-Parker J). 31 Because this is a Crown appeal it is necessary for this Court to be mindful of the principles governing such appeals. They were described by Wood CJ at CL in R v Wall [2002] NSWCCA 42 and have been so frequently repeated that I need not further refer to them. 32 I have found this a difficult matter to resolve. The circumstances of the offence were serious. The complainant suffered severe injury and must have been terrified. Mr Jackson had also been put in fear. But for the applicant's mental illness a longer sentence than was imposed would have been appropriate. 33 The evidence before the sentencing judge confirmed that the respondent committed his crime at a time when he was debilitated by psychiatric illness. He was abusing himself by excessive drinking and his life was generally falling apart. He was on the verge of suicide. The evidence before this Court indicates that he is making progress within the prison system, his psychiatric condition has been treated and he has come to understand the serious nature of his offending. Mindful of the respondent's psychiatric condition and the inhibitions on this Court in intervening in a Crown appeal against sentence I have ultimately come to the opinion that the Crown appeal should be rejected. 34 JAMES J: I agree with McClellan CJ at CL. 35 ADAMS J: I have read the judgment in draft of the Chief Judge at Common Law and agree with it and his Honour's proposed orders. I wish, however, to add some remarks of my own. 36 The learned sentencing judge summarised the evidence about the respondent's mental state in a way that indicated that she accepted it, going on to say - "It has been submitted to me that the level of his mental illness and alcohol abuse are such as to reduce his moral responsibility in respect of subjective circumstances by providing an explanation as to his behaviour and it has also been pointed out that he has shown some responsibility since being in custody and has made plans for the future and has had family support." (Emphasis added.)

R v Cheh

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