R v Chisari

Court of Criminal Appeal (NSW)|2006-02-06|Before: Beazley JA, Simpson J, Rothman J

JUDGMENT OF: Beazley JA at 1; Simpson J at 2; Rothman J at 42

DECISION: (i) Crown appeal allowed; sentence imposed in the District Court be quashed; (ii) in lieu thereof the respondent be sentenced to imprisonment with a non-parole period of two and a half years to commence on 19 March 2005 and expire on 18 September 2007, with a balance of term of two and a half years to commence on 19 September 2007 and expire on 18 March 2010.

CATCHWORDS: Crown appeal - conviction by jury - maliciously inflicting grievous bodily harm with intent to do so - whether sentence manifestly inadequate - aggravating factors - victim a police officer - whether previous convictions amount to an aggravating circumstance - whether disregard to public safety an aggravating feature - whether actual use of a weapon is an essential element of offence - subjective circumstances - evaluation of objective seriousness of offence

LEGISLATION CITED: Crimes Act 1900, s33 Crimes (Sentencing Procedure) Act 1999, s21A(2), s44(2), s54B

House v The King [1936] HCA 40; 55 CLR 499 CASES CITED: R v Way [2004] NSWCCA 131; 60 NSWLR 168 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465

PARTIES: Crown - Appellant Steven Chisari - Respondent

COUNSEL: G Rowling - Crown A Francis - Respondent

SOLICITORS: S Kavanagh - Crown S O'Connor - Respondent

IN THE COURT OF CRIMINAL APPEAL 2005/1591

BEAZLEY JA SIMPSON J ROTHMAN J

Thursday 23 February 2006 R v Steven CHISARI Judgment 1 BEAZLEY JA: I agree with Simpson J 2 SIMPSON J: This is a Crown appeal against a sentence imposed upon the respondent consequent upon his conviction by a jury of an offence of maliciously inflicting grievous bodily harm with intent to do so. Pursuant to s33 of the Crimes Act 1900 the conviction exposed the respondent to a maximum penalty of imprisonment for 25 years. By s54B of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), a standard non-parole period of seven years is prescribed in respect of the offence. That provision applies where, as here, the offender is to be sentenced after trial. The Crown asserts that the sentence is manifestly inadequate. 3 Puckeridge DCJ sentenced the respondent to imprisonment for a total term of two years and eight months with a non-parole period of fourteen months. In doing so, he found, pursuant to s44(2) of the Sentencing Procedure Act, that special circumstances existed justifying departure from the ratio between the head sentence and the non-parole period otherwise specified.

facts 4 Because the respondent was convicted after a jury trial there was no agreed statement of facts, and precisely what facts were accepted by the jury cannot be determined. However, there does not appear to have been a large area of contest. What follows is, in general terms, drawn from the evidence given in the trial and from the findings of fact contained in the Remarks on Sentence. 5 The circumstances of the offence can be recorded relatively briefly. It was committed in the early evening of 1 September 2003 in Parramatta Road at Haberfield in Sydney. During the afternoon of that day the proprietor of a service station complained to police that a motor vehicle was parked across the service station entrance, blocking access. The motor vehicle was registered in the name of the respondent's brother. At some earlier stage an infringement notice had been attached to the windscreen of the vehicle. 6 In response to the proprietor's complaint, Constable Scott Harder attended the service station. He placed a second infringement notice on the vehicle. He then made arrangements for a tow-truck to attend and remove the vehicle. He was present when the tow-truck operator arrived, and began the process of hooking the vehicle to the tow-truck so that it could be removed. 7 At that point the respondent and his brother arrived. The brother became agitated and abusive. The respondent unhooked the vehicle from the tow-truck, and started it. He locked the door from inside. His brother continued to behave abusively and threateningly and shouldered Constable Harder away from the vehicle. Constable Harder pointed a can of capsicum spray at him. The respondent reversed the vehicle and then drove forward, in the direction of where Constable Harder was standing. Constable Harder had no escape route. He jumped onto the bonnet of the vehicle, attempting to hold on to the windscreen. The respondent accelerated the vehicle. Constable Harder rolled off the bonnet and fell to the ground. The respondent drove off. He drove the vehicle on the footpath, and on to Parramatta Road. Its headlights were not on and he drove at high speed, swerving in and out of traffic. 8 Two days later, on 3 September, in company with legal advisers, the respondent presented himself at a police station and handed to an officer a statement he had made. In the statement he claimed that Constable Harder, with his gun drawn, ran to the car, jumped on the bonnet, and smashed the windscreen, and that that was how he was injured. The respondent denied that the injury had been his fault or that he had any intention of harming Constable Harder. 9 That was also, essentially, the response the respondent made in the trial, at which he gave evidence. The verdict demonstrates that the jury did not accept his version of events. 10 Constable Harder suffered pain in his right side and right wrist, and a fractured right arm. A victim impact statement setting out (in lay terms) his injury was before the sentencing judge. Constable Harder described a period of extreme pain, which continued in varying degrees over several months. He had difficulty sleeping, and when he did sleep, had recurring dreams of the incident. He underwent surgery in hospital and remained an in-patient for some time. The surgery also caused him extreme pain. He has had to attend physiotherapy. Because he was unable to work, he suffered financial stress. He was unable to pursue his pre-injury sporting activities, and lost general fitness. 11 A medical report of a specialist hand surgeon was tendered in evidence in the trial. It showed that Constable Harder suffered a displaced fracture of the right distal radius, which was reduced in surgery, with a satisfactory result. However, the surgeon expected that the wrist would never return entirely to normal, and that Constable Harder would be left with some degree of stiffness, weakness, or discomfort; and that the plate used for the internal fixation, which would remain in place for at least a year, may itself be the cause of discomfort. He envisaged a slight prospect that Constable Harder would, in the future, develop degenerative arthritis.

subjective circumstances 12 Before the sentencing judge were a pre-sentence report, and a large volume of very favourable references and testimonials. 13 The respondent was born in Sydney on 20 May 1976, and was, at the date of the offence, 27 years of age. His parents are Italian. The family was stable and happy, with no major problems. The respondent left school during year 12, and completed a motor mechanic's apprenticeship. He has worked predominantly in the motor industry, but also in building trades. 14 He has a minor criminal record, consisting of drug offences in 1996, in respect of which (after appeal) no conviction was recorded; an offence of malicious damage, in 1997, in respect of which a fine of $200 was imposed; and a set of offences in 1998, of driving in a manner dangerous, refusing to supply details, and resisting an officer in the execution of duties. On each of these he was fined and he suffered a period of disqualification from driving. No details of the nature of these offences emerged. 15 He is engaged to be married. His fiancée lives in Melbourne where she is a university student. 16 The respondent's prospective father-in-law travelled to Sydney for the purpose of giving evidence in the sentencing proceedings. He confirmed the relationship between his daughter and the respondent, who remains a welcome visitor in his home. He spoke highly of the respondent's character. The respondent also gave evidence, although this was in a very short compass, and was limited to explaining a matter in the testimonials that had excited the interest of the sentencing judge. In giving evidence, of course, the respondent exposed himself again to cross-examination, although the Crown Prosecutor did not avail himself of the opportunity.

remarks on sentence 17 The sentencing judge took a relatively benign view of the respondent's culpability. He considered that the respondent's brother was "a significant culprit". He appears to have accepted Constable Harder's evidence that he did not have a gun in his hand, but equally appears to have accepted that the respondent might, in the circumstances, have believed that the capsicum spray that he did have in his hand was a firearm. He considered that the respondent drove the vehicle towards Constable Harder in panic. He accepted that the offence was unplanned, and that it took place over a very short period of time. 18 The sentencing judge dealt with aggravating factors in the offence. One of these was that Constable Harder was a police officer acting in the execution of his duties (the Sentencing Procedure Act (s21A(2)(a)). 19 His Honour rejected a submission put on behalf of the Crown that, pursuant to s21A(2)(c), the use of the vehicle as a weapon was an aggravating factor. He considered himself obliged to do so, in accordance with the suffix to s21A(2), because the use of a weapon was an element of the offence. He also rejected the proposition that, pursuant to s21A(2)(i), he ought take into account, as an aggravating factor, that the offence was committed without regard to public safety. He said that he rejected this proposition because to have done so would have amounted to "doubling aggravating factors". In considering the respondent's criminal record, his Honour made particular reference to the 1998 offences, including a conviction for resisting a police officer in the execution of duty. He regarded this as evidence of: "a tendency not to abide by the rules and to resent authority". 20 His Honour expressly turned his attention to s54B of the Sentencing Procedure Act and held that the offence was not in the mid-range, but in the lower range, of objective seriousness. This was, he said, because of "the totality of the circumstances" and the very short period of time over which the events took place, and the absence of any planning of the offence. In reaching this conclusion he expressly adverted to Constable Harder's victim impact statement. He then imposed the sentence I have already mentioned.

the Crown appeal 21 In a number of respects the Crown takes issue with the approach taken by the sentencing judge. It has submitted in this Court that five aggravating factors existed. These were:

(i) the identity of the victim as a police officer (s21A(2)(a)); (ii) that the offence involved the actual use of a weapon, that is, the motor vehicle (s21A(2)(c)); (iii) the respondent's record of previous convictions, including a conviction for resisting a police officer, and one for a serious driving offence (s21A(2)(d)); (iv) the extent of the injury caused to Constable Harder (s21A(2)(g)); and (v) that the offence was committed without regard to public safety (s21A(2)(i)). 22 It is, obviously, quite correct that the offence was aggravated by the identity of the victim, and by the extent of injury. These were both taken into account by the sentencing judge. Treating the extent of the injury as an aggravating feature requires some caution. An element of an offence against s33 is the infliction of injury amounting to grievous bodily harm. To take that into account as an aggravating feature would contravene the direction contained in the final words of s21A(2). Where, however, as here, the injury significantly exceeds the minimum necessary to qualify as grievous bodily harm, it is relevant to take the extent of the injury into account. This was done and, in my opinion, no error has been shown in this respect. 23 I would reject the proposition that the respondent's record of previous convictions amounts to an aggravating circumstance. The Crown submitted that, by reason of that record, retribution, deterrence and the protection of society called for a more severe penalty on the principles stated in Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465. In my opinion this overstates the effect of the respondent's record. It is worth recalling what was said by the High Court in Veen about the use that may be made, in sentencing, of prior criminal records. It was: "...the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences ... The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties." (pp. 477 - 478) 24 Although the sentencing judge made no express finding to that effect (no doubt because the issue was not raised before him), I am satisfied that he approached the sentencing of the respondent on the basis that the offence was an uncharacteristic aberration, and not one in which the respondent had manifested a continuing attitude of disobedience of the law. It is only in the latter circumstance that the High Court held that considerations of retribution, deterrence and protection of society may indicate that a more severe penalty is warranted. This was, in my opinion, not such a case. 25 In further support of this ground, the Crown placed heavy reliance upon the respondent's previous conviction for resisting an officer in the execution of duty, and on the sentencing judge's characterisation of that offence as denoting a disregard for authority, and a tendency "not to abide by the rules". 26 It is impossible to know from the bare criminal record the circumstances or the gravity of the offences for which the respondent was previously dealt; however, to the extent that the penalties imposed are any guide, I would infer that those offences were not at a range of seriousness such as to invoke the Veen principles. Nor were they shown to have been such as to warrant the characterisation that the respondent was the kind of person who disregarded authority or flouted the rules so as to call for a harsher penalty. 27 I do not think that the sentencing judge intended to make a finding to that effect. Read in context, the observation on which the Crown has seized cannot be so construed; or, if it can be so construed, it cannot, on the facts available, be sustained. 28 After consideration I also would reject the proposition that the offence was aggravated because it was committed without regard to public safety. In my opinion, while the danger to Constable Harder should in no way be minimised, s21A(2)(i) is directed not to the specific victim of any offence, but to the danger caused to other members of the public by reason of the offence. There was no evidence that any other member of the public was endangered by the respondent's conduct. In reaching this view I bear in mind the evidence, relied upon in support of this proposition by the Crown, concerning the respondent's driving after the incident which directly involved Constable Harder. The offence with which the respondent was charged was malicious infliction of grievous bodily harm (with intent to do so) upon Constable Harder. That offence was completed at or about the time Constable Harder rolled from the bonnet of the vehicle. The subsequent conduct, while integrally linked with that offence, was not part of it. It would, in my opinion, be an error to regard the subsequent driving as part of the offence, and therefore an aggravating feature of it. 29 There remains the question whether the offence was aggravated by the actual use of a weapon. This was a proposition rejected by the sentencing judge, because he held that the use of a weapon was an essential element of the offence. 30 The charge was brought under s33 of the Crimes Act, which, relevantly, provides: "Whosoever: maliciously by any means ... inflicts grievous bodily harm upon any person, ...

with intent in any such case to do grievous bodily harm to any person , ...

shall be liable to imprisonment for 25 years." 31 In my opinion, the actual use of a weapon is not an essential element of an offence against s33, and it was an error for his Honour so to hold. The infliction of grievous bodily harm can be brought about without the use of a weapon, and using only the body of the offender. The offence may be committed without any weapon at all. It was, therefore, under s21A(2)(c), an aggravating feature that the commission of the offence involved the actual use of a weapon.

In this respect, therefore, the Crown has established error. 32 The Crown also challenged the finding that the offence fell below the mid-range of objective seriousness. That finding was important, because it provided the foundation for fixing a sentence that included a non-parole period well below the specified standard non-parole period. Factors relevant to the evaluation of the objective seriousness of an offence were identified in R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [74] - [77]. These include (but are not necessarily limited to) the actus reus, the consequences of the conduct, factors impinging upon the mens rea of the offender, motivation, and mental state, mental illness or disability where these last have sufficient relationship to the offence. 33 In my opinion, the assessment of the objective gravity of an offence falls into that category of judicial decision-making that is reviewable on appeal only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. 34 In support of its challenge to the finding, the Crown pointed to the use of the vehicle as a weapon, the seriousness of the injury to Constable Harder, the identity of the victim as a police officer who was, at the time, acting in that capacity, the deliberate (although spontaneous) nature of the respondent's conduct, and the manner in which the respondent drove the vehicle after Constable Harder had rolled off the bonnet. These are, essentially, the same considerations as were advanced as aggravating features, but it is, nevertheless, legitimate to use them on both issues. 35 In response, counsel for the respondent argued that s33 covers a wide variety of offences, and a diversity of injuries, including permanent brain damage, loss of limbs, restriction of eyesight, and many more which would have to be seen as considerably more serious than the (admittedly serious) injury suffered by Constable Harder. There is some merit in this argument. Serious as the injury suffered by Constable Harder was, this Court does see many cases of offences against s33 which result in far greater injury. On the other hand, there is merit, also, in the features identified by the Crown. Although I have wavered on this issue, in the end I am not satisfied that it was not open to Puckeridge DCJ to make the assessment he did. But the offence could not have been significantly below that level. 36 The final challenge to the Remarks On Sentence concerns his Honour's finding that the respondent's criminal record indicated a tendency not to abide by the rules, and to resist authority. The Crown did not, of course, dispute that this was the case, but contended that, that finding having been made, a manifestly inadequate sentence was imposed. It was suggested that the sentencing judge allowed the respondent's subjective circumstances to cause inadequate weight to be given to the objective circumstances. I have already indicated my view on the significance of the respondent's prior record. As I have said above, the evidence simply does not permit a conclusion that the specific previous offence of resisting a police officer ought to have had any real bearing on the sentence imposed. 37 Notwithstanding that, for the reasons I have given, error has been established. Further, I am satisfied that the sentence imposed was, in the circumstances of this case, well below what was permissible in the exercise of a sound sentencing discretion. It did not in my opinion take into account, in any meaningful way, that the legislature has decreed that, for offences within the middle of the range of objective seriousness (and absent other reasons for departure) a non-parole period of seven years ought to be imposed. Even where a court finds reason for departing from the standard non-parole period, the term so fixed by the legislature stands as a guide post or bench mark. 38 Latent error, as well as patent error has been demonstrated. In my opinion therefore, the Crown appeal must succeed, the sentence must be set aside, and this Court must proceed to re-sentence. 39 Given the recency of the amendments introduced with s54B of the Sentencing Procedure Act, there is little in the way of a pattern of sentencing to assist in the exercise of sentencing discretion. The Court did receive, against the possibility of re-sentencing, an affidavit sworn by the respondent on 2 February 2006. He has experienced some difficulty in the course of his incarceration. Although he has been advised that he ought to undertake some programmes, such as an anger management course and a gambling course, and consult a psychologist, he has been unable to do either of the courses and has had only one appointment with a psychologist. He also spoke of the shock of the Crown appeal, and the uncertainty as to his future thereby created. He spoke of financial difficulties resulting from the offence and said that he had lost his business as a motor vehicle inspector and his share in a lawnmower shop. It is of concern that the respondent has not yet been able to enter the rehabilitative programmes, but this cannot have any significant influence on the sentence that must be imposed. 40 Bearing in mind the principles which apply to re-sentencing after a successful Crown appeal, and adopting the finding of special circumstances, I propose that the respondent be sentenced to a non-parole period of two and a half years with a balance of term of two and a half years. 41 The orders I propose are:

(i) Crown appeal allowed; sentence imposed in the District Court be quashed;

(ii) in lieu thereof the respondent be sentenced to imprisonment with a non-parole period of two and a half years to commence on 19 March 2005 and expire on 18 September 2007, with a balance of term of two and a half years to commence on 19 September 2007 and expire on 18 March 2010. 42 ROTHMAN J: I agree with Simpson J.

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