R v Fajka

The applicant's evidence 13 The applicant gave evidence before his Honour. It is clear that, despite his plea, the applicant was maintaining that his actions were not unlawful and that he was acting in self-defence from attacks upon him by others at the hotel. However, he indicated to his Honour that he was pleading guilty because he was involved. 14 The applicant was asked what he wanted to say about the offence and replied:

I regret being involved in the brawl. All I can say I'm sorry for the incident and that's basically it.

He denied having started the brawl. He said he received a blow to the head during the fight and received bruises and concussion. He was cross-examined at length about his brother's conduct. He denied that his brother had started the fight or that he was the major offender. He accepted that his brother was more involved than he was but denied having seen the incidents giving rise to the particular allegations made against his brother in the statement of facts. 15 At one stage, after the transcript of evidence of the police officer given at committal proceedings was tendered by Mr Farmer, who appeared for the applicant, the following exchange occurred:

FARMER: Well your Honour I'm trying to focus on the case involving my client as opposed to the case that my learned friend seems to be focusing on involving Attila Fajka. Now I…….

HIS HONOUR: "[If] two or more persons use or threaten the unlawful violence it is the conduct of them taken together that must be considered for the purpose of sub section 1". That is, the conduct of the brother is admissible on the question of guilt or not.

HIS HONOUR: And therefore it must be evidence on the question of penalty.

FARMER: I understand your Honour. My focus is directed to the principle that when one comes to sentencing in cases of affray your Honour is entitled to distinguish between the actual roles of the different person involved in the affray.

HIS HONOUR: Its quite clear that Attila was more violent than your client.

HIS HONOUR: But it is quite clear equally that your client identified himself with his brother. He left the premises with him -

HIS HONOUR: --left the premises with him knowing that his brother had stolen the surveillance video. He was arrested near the place where the stolen video was located. Now all of that is a mark against him.

FARMER: Yes your Honour I understand that but as I say your Honour I want to focus on his actual involvement in the affray itself and I understand he's aligned with the brother………..

That part of the Crimes Act quoted by his Honour during this exchange was s 93C(2). 16 Shortly after this exchange defence counsel recalled the applicant to give further evidence. His Honour continued questioning the applicant about the conduct of his brother and, in particular, the taking of the video. The applicant denied that he heard his brother say, "Come on I've got the tape let's go we will get rid of it". The applicant said at the time it was chaotic and people were screaming. 17 His Honour's questions continued:

Q. When he [the brother] was handcuffed did you hear him say to the detective or to the police officer, "You black cunt, take these cuffs off and I'll have you"?

A. No' cause I just can't see that - him saying that.

Q. Why - you don't see people saying things, you hear them?

A. Just the language that was used just now. 18 With respect, I fail to understand how it could possibly be a relevant matter whether the applicant heard his brother use offensive and threatening language to the arresting police officer or not. There was nothing about the charge that made the applicant responsible for all that his brother said or did during the night simply because he happened to be in his presence. Yet, the Crown put a number of propositions to the applicant, presumably on the basis of Brown v Dunne (1893) 6 R 67, that were in my view completely irrelevant to the sentencing exercise, including that he had heard his brother make the comment to which the sentencing judge had referred. 19 It seems to me that there was a real danger arising from the conduct of the proceedings, and particularly the cross-examination of the applicant by the sentencing judge and the prosecutor, of the applicant being punished for the brother's conduct rather than his own. And so it transpired, when regard is had to the sentencing remarks and the penalty imposed.

The stolen videotape 20 The first ground of appeal relates to his Honour's findings as to the applicant's involvement in the taking of the videotape. Obviously, as his Honour recognised, the applicant was not charged with any offence in relation to this incident: nor could he be. There was no evidence of a joint enterprise between his brother and him to take the tape. Yet a not insignificant amount of the brief remarks on sentence was taken up with this matter. 21 During his remarks Judge Maguire quoted a passage from the statement of a witness as to what she had seen and heard in relation to the taking of the tape. The part of the statement quoted followed an account of an apology made by the applicant to that witness for what had happened. His Honour made no reference in his remarks to the apology. However, during defence counsel's address and after his Honour was referred to the apology, the sentencing judge drew counsel's attention to what the witness said about the brother stealing the tape and the applicant leaving the hotel with him. His Honour then said:

I'm not going to punish him for stealing the tape, clearly he didn't, but his identification with the thief of the tape who has evinced a wish to destroy the evidence against him suggest to me that there is no genuine apology. With respect to his Honour, such a line of reasoning was simply not open for a number of reasons, not the least being that it was not logical. 22 But it is clear from the passage quoted by his Honour in his sentencing remarks, that the brother had gone downstairs and taken the tape while the applicant was talking to the witness to whom he was apologising. The fact that, when the brother returned, he informed the applicant that he had the tape and said, "Let's go. We will get rid of it" did not make the applicant party to a joint enterprise in relation to the theft of the tape simply because he then left with his brother. His Honour appeared to think that it was significant that, although the witness was cross-examined at committal proceedings, she was not questioned about the tape. Two observations can be made about this remark: firstly, that part of the committal transcript was not in evidence and, secondly, the failure to question her about the matter was probably because what she said about the tape was irrelevant to the case against the applicant. 23 Yet his Honour stated in the course of his remarks:

There is no doubt in my mind that the offender acted jointly with his brother in removing the stolen tape from the premises in an attempt to destroy evidence useful to the prosecution.

In my view his Honour was not entitled to come to that finding or use it in any way to the prejudice of the applicant. The applicant was neither charged with taking the tape nor with attempting to pervert the course of justice. His Honour did not indicate what use he made of this finding, but it was clearly a matter that was being taken into account to the applicant's detriment in some undefined and unexplained manner. 24 The Crown has argued that his Honour was entitled to make both the finding that he did and to take it into account. It is unnecessary for present purposes to examine in fine detail the principle in De Simoni v The Queen (1981) 147 CLR 383 and its application. However, I have considerable doubt that a sentencing court would be entitled to take into account an allegation of a serious criminal offence, uncharged by the Crown and denied by the offender, when sentencing that offender for an offence of a completely different nature to that alleged. Whether the court can do so may depend upon the purpose for which the finding is to be made. In the present case his Honour in effect found that the applicant was party to an attempt to destroy evidence, an offence contrary to s 317(a) and which carries a maximum penalty of 10 years. If his Honour was using that as an aggravating feature of the offence, then I do not understand how it can be said that to do so does not infringe the principle in De Simoni or common fairness.

The conduct of the applicant 25 It is submitted that his Honour erred in his assessment of the applicant's conduct and, in particular, in finding that the applicant had assaulted more persons than the one unidentified person referred to in the statement of facts. 26 The applicant had during his evidence accepted that he had struck an Asian person although he maintained it was in self-defence. The evidence was that thereafter there was a scuffle between the applicant, the Asian man and another who intervened. His Honour in his remarks described the applicant's behaviour as follows:

He admits to fighting, although I am conscious that he told me on his oath that he struck only one other person, that being an Asian gentleman who he claims was as large as himself. That seems unlikely. I noticed in the Probation and Parole Service report which was tendered only this morning that he is recorded by the probation officer as having agreed that he assaulted others.

I am persuaded that his role in this affair was an active one and that he was quite prepared to identify himself with his brother, who started the brawl for the basest of reasons, and took a more active part in it than did this offender. 27 It seems to me, with respect, that too much was made throughout the sentencing hearing of the conduct of the brother rather than focusing, as his counsel sought to have the judge do, on the conduct of the applicant. The brother was charged with a number of offences, including, somewhat surprisingly, two counts of affray. The applicant did not become liable for all that his brother had done, either because of the nature of the charge of affray or because, in his Honour's words, "he was quite prepared to identify himself with his brother". If that phrase meant that he became involved in order to assist his brother or to take his brother's part in disputes with the hotel guests, then it might be accurate. But if it suggests that by participation in the brawl he adopted all that his brother did and in someway became criminally liable for it, that is not so. 28 Of course the applicant's conduct had to be considered in the context of the fact that his brother had become involved in a brawl with guests and staff at the hotel on what was in effect a family occasion, with children present. But that was the limited basis upon which the brother's conduct aggravated that of the applicant. Section 93(C)(2) does not mean, in my opinion, that the applicant was to be punished for all the conduct of both himself and his brother. Rather the section is concerned with ensuring that the conduct of the two of them is considered in determining whether that conduct "is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety". 29 In a case such as the present the applicant could only be punished for that part of his and his brother's conduct which gave rise to the offence of affray and not that conduct which also resulted in some other offence or offences being committed by the brother, for example an assault occasioning actual bodily harm. In particular where the brother was charged with two offences of affray and the applicant only one offence, the sentencing court had to be careful not to take into account that part of the brother's conduct that gave rise to the second offence with which the applicant was not charged. 30 It was unfortunate that this matter had not been sufficiently addressed at the hearing before his Honour and that the statement of facts contained allegations against the brother that were, in my view, not admissible against the applicant as aggravating his offence. If the sentencing judge was going to sentence the applicant for some matter outside the particulars relied upon in the statement of facts under the heading referring to the applicant, then he should have raised this matter with the defence and given the applicant the opportunity of meeting it. The ground is in substance made out.

The applicant's contrition 31 I have referred earlier to the applicant's statement in evidence as to his regret at being involved in the brawl. There was also evidence of an apology to one person at the hotel before he left with his brother. His Honour said in his remarks:

When he was asked by his counsel what he had to say about his involvement in the brawl, the offender uttered the barest pro forma expression of contrition. I do not accept him as being sincere in this regard. 32 With respect to his Honour this seems unduly harsh. I am not sure what it was expected that the applicant might say other than he did. It was not as if he was asked by his counsel whether he was sorry and answered "yes", as is so often the case. True it is that he did not accept that he was acting unlawfully but there was little reason to doubt that he was remorseful for his involvement in the fight in light of the apology he made on the night in question. There was more force in his Honour's finding that he had not faced up to his responsibility for his actions. 33 But the significant matter raised in respect of this ground of appeal is the failure by the sentencing judge to refer to any discount for the plea of guilty, either generally or by reference to a percentage reduction in the sentence during the course of his remarks. When counsel raised the discount for the plea in address, and admitted it was a late plea, his Honour remarked, "What after committal?" Thereafter, while counsel was addressing the judge as to the discount for the plea of guilty, there was no further response on that matter from his Honour. 34 It should be a very rare case where a sentencing judge does not indicate that he or she is giving a discount for a plea of guilty. It is important that the offender believes that the plea of guilty has been taken into account, and a judge should expressly indicate that it has been. With judges experienced in the criminal jurisdiction it might well be the case that this Court would not be prepared to find that so significant a matter could possibly have been overlooked. Very often the sentence itself will reveal whether and to what degree a discount must have been given. In the present case as I am of the view that the sentence is manifestly excessive, it is unnecessary to determine whether this was due to a failure to take into account the plea of guilty or some other error that I have found established. However, I am far from confident that the applicant did receive a discount for the plea even to the extent of, say, 10 per cent.

The applicant's rehabilitation 35 I have already indicated that the applicant had overcome his reliance on prohibited drugs and alcohol by voluntarily undertaking an intensive rehabilitation course. The undisputed evidence was that he was at the time of sentencing no longer addicted to drugs or alcohol. I have earlier quoted that part of the report which referred to the wife's impression of her husband's attempts at reform. The report concluded with the following assessment by the officer:

Supervision is not warranted as the offender has to his credit made positive progress in addressing his past drug and alcohol problem and has addressed underlying issues. 36 It was never suggested to the applicant during evidence that he was still abusing alcohol or that any attempts at reform and rehabilitation were not genuine. It was never suggested by His Honour to counsel appearing for the applicant that he harboured any doubts about the applicant's rehabilitation either up to the date of sentencing or beyond. Yet his Honour stated in his remarks:

As to rehabilitation, I have grave reservations. Whilst I accept his evidence about his recovery in Odyssey House, it is apparent, not only from the Probation and Parole report, that he is still drinking. The present case makes it clear that he does not have proper control over his behaviour. 37 In an attempt to support his Honour's assessment the Crown points to the fact that the applicant was in breach of a community service order at the time of the offence. However, his Honour did not refer to that matter at any stage in his remarks or otherwise, the applicant was never asked about it, no breach proceedings had been taken, and it did not seem to affect the officer's assessment. 38 With respect, his Honour's view of the applicant's rehabilitation was unfair and unjust. It was unfair, because the issue had never been raised with the applicant or his counsel. It was unjust, because it was plainly inconsistent with the unchallenged assessment of the probation officer, based no doubt on the records of the service as well as the officer's investigations. I do not understand how his Honour could have any reservations about the applicant's rehabilitation, at least since the commission of the offence. If, as it seems, his Honour required complete abstinence from alcohol on the part of the applicant as proof of his rehabilitation, that was an unreasonable demand. If, as it seems, his Honour was judging the applicant's efforts at rehabilitation by the commission of the offence, 18 months earlier, he was clearly in error by disregarding what had occurred since.

Sentence manifestly excessive 39 It should be clear by now that in my view the sentencing discretion was infected with serious error. Further the sentence itself was manifestly excessive both as to the head sentence and the non-parole period. True it is that the applicant had, by his desire to work seven days a week, made two sentencing options unavailable; community service and periodic detention. However, it seems to me a curious result, to say the least, that, because the Probation service declined to find him suitable for alternatives to full-time custody on the basis that it did not wish to interfere with his work commitments, it followed that the applicant had to be given a sentence of full-time custody because alternatives were not available. 40 On the basis that it may be necessary for the applicant to be re-sentenced the Court received affidavits from him and his wife about the effect of imprisonment upon him. It has clearly been the case that the six weeks in custody had a salutary effect upon him. His imprisonment also resulted in the collapse of the business that he and his wife had embarked upon. We were informed on the hearing of the appeal that the applicant has since his release secured a full-time position with a bank. 41 At the conclusion of argument the Court indicated that it was minded to allow the appeal and consider some other course than full-time custody if it determined that a gaol sentence was warranted. With this in mind the matter was stood over to today so that the applicant could be assessed as to whether he is now suitable for either periodic detention or some non-custodial order. The Court has been informed that the applicant is suitable for both periodic detention and community service order. 42 In this case the sentence that I propose should now be imposed cannot be regarded as necessarily a guide to what otherwise would be an appropriate sentence for an affray occurring in circumstances similar to the present matter. This is for three principal reasons. 43 Firstly, the evidence before the sentencing judge which could be properly taken into account indicated a very limited role of the applicant in the affray commenced by his brother. On that material, it is apparent that the fear engendered in the persons present was very largely a result of the conduct of his brother and not the applicant. 44 Secondly, the applicant has served seven weeks in full time custody for an offence that the Crown now accepts on the material before his Honour did not warrant a full time custodial sentence. 45 Thirdly, the applicant is now in my view completely rehabilitated and the characteristics of the person who committed the offence are not the characteristics of the person who is now being sentenced. 46 In these circumstances I propose that leave to appeal be granted and the appeal be allowed. The sentence imposed by Judge Maguire should be quashed and in lieu the applicant ordered to perform 100 hours community service. **********

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