R v Manna

Court of Criminal Appeal (NSW)|1999-09-14|Before: Handley JA, Grove J, Hidden J, As Hidden J

The application 20 The principal argument for the applicant in this Court was that it was not open to his Honour to find that the history of irrational behaviour had no bearing upon the commission of the offence. As this is a matter of inference from the whole of the material, and does not depend upon the assessment of the credibility of any witness in the sentence proceedings, it is something which we are as well placed as his Honour was to determine. 21 In my view, the submission is sound. His Honour appears to have reached the conclusion he did primarily because he rejected the explanation of the shooting which the applicant proffered to the psychiatrist. Certainly, that explanation is false. In other respects, which I need not set out, the applicant appears to have been an unreliable historian. However, it does not follow from the rejection of that account that this was simply an armed robbery gone horribly wrong, to which the applicant's psychiatric history is irrelevant. The true picture is more complicated than that. 22 It may be that, as the victim put his hand in his pocket to get his keys, the applicant thought he was reaching for a weapon of some kind. To have shot him once at that stage, as he did, is one thing. To have shot him another four times while he was on the ground is quite another. It is not without significance that the victim told a psychologist, who prepared a victim impact statement, that he remembered "the look of hatred" in the applicant's eyes as he was firing the gun. He expressed his difficulty in understanding that "someone who did not know him could appear to hate him". For my part, I am satisfied that the repeated shooting is consistent with the applicant's history of mindless and aggressive behaviour over the years. Indeed, it appears to be the dreadful culmination of an escalating pattern of behaviour of that kind since the breakdown of his relationship with his girlfriend, a pattern which endured right up to the time of the offence. 23 I am satisfied that his Honour fell into error in holding that the applicant's psychiatric history provided no explanation for the crime. Accordingly, leave to appeal should be granted and this Court should determine for itself the appropriate sentence. The question remains, however, whether that sentence should be different from that which his Honour passed: s6(3) of the Criminal Appeal Act .

Re-sentence 24 The familiar principles governing the sentencing of an offender who is psychiatrically disordered were summarised by Gleeson CJ in R v Engert (1995) 84 ACrim R 67 at 70-1. Among other things, his Honour said that the relationship between a mental disorder and the commission of an offence is one of the circumstances of the case to be taken into account when applying general sentencing principles. His Honour continued (at 71): The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence … . … the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. 25 I have referred to the admonition of the probation officer who prepared the pre-sentence report of the need to assess the risk which the applicant might pose to society before releasing him on parole. The psychiatric report is silent about his long term prognosis. The sentencing judge, after referring to his background, his criminal record and his need for appropriate treatment and counselling in prison, commented that it was "impossible to say whether or not he will change his ways but everything that he has done in the past suggests that he is unlikely to do so". Senior counsel who appeared for him in this Court acknowledged that he could not challenge that conclusion. 26 In the result, the applicant's psychiatric history provides some explanation for this violent offence and, to that extent, reduces his culpability for it. This, however, is substantially offset by the need for particular deterrence and, above all, the protection of the public. His condition should be taken into account but, in the circumstances, it cannot afford him any marked measure of leniency. On the other hand, of course, it must not lead to the imposition of a sentence more severe than that which would have been appropriate if he were not suffering from any mental abnormality: Veen v The Queen [No 2] (1987-88) 164 CLR 465 at 477. 27 Senior counsel for the applicant referred us to a number of decisions of this Court in more or less comparable cases, together with sentencing statistics provided by the Judicial Commission. A summary of the cases is set out in a schedule to this judgment. The statistics are derived from a relatively small sample, twenty-three cases, but the pattern of sentence which they disclose is much as one would expect. Against a statutory maximum of twenty-five years, a sentence of twenty years penal servitude is exceptional and right at the top of the range. 28 This is consistent with the sentences in the cases set out in the schedule. This Court upheld a sentence of twenty years in Applebee but, quite apart from the high level of criminality involved in the offence, that sentence was partly concurrent with a lengthy existing prison term. In the related cases of Papalia (wound with intent to murder) and Azzopardi (solicit to murder), this Court accepted that twenty years was an appropriate starting point before allowance was made for subjective matters favourable to the applicants. However, that was a case of a contract killing which was unsuccessful, but which left the victim permanently and seriously disabled. 29 The present case is very serious but, upon a proper balance of the objective and subjective factors, it does not call for a sentence of that order. Nevertheless, a lengthy sentence is inevitable. Clearly, there are special circumstances warranting an extended additional term. It will remain to be seen whether the applicant could responsibly be released at the expiration of the minimum term which I propose. Obviously, it is in the community's interest that he be rehabilitated and, in my view, that would best be achieved by his being at liberty for a lengthy period with the benefit of supervision and subject to the sanction of parole. 30 In arriving at what I consider to be the appropriate sentence, I have had regard to evidence tendered in this Court of the applicant's completion of various courses since he has been in custody. I would propose that leave to appeal be granted, the appeal allowed and the sentence in the District Court quashed. I would re-sentence the applicant to penal servitude for eighteen years, comprising a minimum term of twelve years, commencing on 19 February 1997 and expiring on 18 February 2009, and an additional term of six years.

Sindoni (unreported, 27 April 1993): The applicant was convicted at trial of wounding his sister's husband with intent to murder him. He believed that the victim had been violent to his sister. He shot the victim in the abdomen and, after he had fallen to the ground, shot him two or three more times. He then struck him on the head with the butt of the pistol. The victim underwent surgery and made a substantial recovery. The applicant presented a very favourable subjective case, and the offence was seen as an isolated act of criminality.

He was sentenced to 8 years penal servitude (MT 6 years, AT 2 years). An appeal against sentence was dismissed, McInerney J observing that the sentence was "to the bottom of the range".

Cool (unreported, 2 June 1994): The applicant was convicted at trial of wounding with intent to murder, having stabbed a passenger on a train in the neck. He was affected either by liquor or drugs at the time, and there was no apparent motive for the crime.

For that offence, and taking into account several less serious offences, he was sentenced to 10 years (MT 7 years, AT 3 years). That sentence was accumulated upon a minimum term of 6 years imposed by another judge in respect of a serious drug offence, and the sentencing judge assessed it with an eye to totality. An appeal against sentence was dismissed.

Merritt (unreported, 26 February 1996): The applicant pleaded guilty to wounding with intent to murder, maliciously shoot at to prevent lawful apprehension, maliciously discharge a firearm with intent to prevent lawful apprehension, and common assault. The applicant entered a hotel and shot the publican, wounding him in the right shoulder. Shortly afterwards, he pointed his rifle in a threatening manner at a woman in a motor vehicle (the common assault charge). Later again, when police tried to apprehend him, he fired a shotgun in their direction, narrowly missing one of them (the charges of shoot and discharge firearm with intent to prevent lawful apprehension). The applicant was grossly affected by alcohol and drugs at the time, and the sentencing judge had regard to his Aboriginal background.

His Honour passed concurrent sentences designed to reflect the totality of the applicant's criminality, the effective sentence being 13 years penal servitude (MT 9 years, AT 4 years). An appeal against sentence was dismissed.

Nguyen (unreported, 13 June 1991): The appellant was convicted at trial of wounding with intent to murder in the course of a violent incident in a restaurant. In the course of that incident, he was wounded when a gun held by a man seated at a table in the restaurant accidentally discharged. He himself was armed, and he shot another man seated at the same table at close range. Despite the circumstances, this Court held that the trial judge had correctly characterised that shooting as a "cold-blooded attempt at murder". Nevertheless, the judge had taken into account the fact that he was affected by alcohol at the time and was himself injured, requiring extensive hospital treatment.

The sentence, passed under the regime prior to the Sentencing Act 1989, was penal servitude for 17 years with a non-parole period of 13 years. An appeal against that sentence was dismissed.

Papalia (unreported, 18 July 1996): The applicant pleaded guilty to wounding with intent to murder and another offence of no present consequence. He was engaged to murder the victim, who was not known to him. He shot the victim three times, causing him to fall to the ground, whereupon he shot him two more times. The victim's injuries were life-threatening, he was hospitalised for many months, and was left a paraplegic. He was in his mid-forties, married with two children. The applicant had a criminal record, including convictions for armed robbery.

The sentencing judge considered that, but for some assistance which the applicant offered to the authorities in the prosecution of others involved in the affair, the appropriate sentence was penal servitude for 20 years. Because of the offer of assistance, he reduced the sentence to 13 years (MT 9 years, AT 4 years). An appeal against sentence was dismissed.

Azzopardi (unreported, 1 October 1998): This appellant was convicted at trial of soliciting Papalia to murder the victim referred to in the previous case. He was a man in his mid-fifties, having no criminal record and suffering from a life-threatening disease.

He was sentenced to the term which the judge would have imposed upon Papalia but for his offer of assistance: 20 years penal servitude (MT 15 years, AT 5 years). Given his subjective circumstances, this Court reduced that sentence to 17 years (MT 12 years, AT 5 years).

Applebee (unreported, 16 July 1991): The applicant was convicted at trial of wounding with intent to murder, and robbery with corporal violence, the charges arising out of the same incident. He was one of two men, both of them armed, who robbed the licensee of a hotel. As they fled, they were pursued by one of the hotel's patrons. The applicant's accomplice fired a shotgun at that man twice, on the second occasion causing a serious and life-threatening wound. In this Court, Grove J considered the case to be "one of the most serious of its type", noting "the deliberate robbery and the final act of shooting a concerned citizen who sought to do something about this violent crime".

He was sentenced on the charge of wounding with intent to murder to penal servitude for 20 years (MT 15 years, AT 5 years) and on the robbery charge to a lesser concurrent term. However, those terms themselves were partly concurrent with terms of imprisonment, effectively of 10 years, which had previously been imposed upon the applicant for other offences in the Australian Capital Territory. **********

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.

New South Wales Court of Criminal Appeal CITATION : R v Manna [1999] NSWCCA 314 FILE NUMBER(S) : CCA 60374/98 HEARING DATE(S) : 14 September 1999 JUDGMENT DATE : 10 December 1999

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Cases Cited (1)