R v Parlapanov [1999] VSCA 24

13. The applicant now seeks leave to appeal on a number of grounds:

1. that insufficient regard was given by the judge to the applicant's lack of prior convictions, his early plea of guilty and his remorse;

2. that insufficient regard was paid to the applicant's prospects of rehabilitation;

3. that an unjustified conclusion was drawn as to the applicant's propensity for violence;

4. that sentence was imposed on a basis that was factually incorrect and speculative; and -

21. The applicant was born in a small town in Macedonia. At 23 years of age he married a woman three years his junior who had been living in Australia and when she returned to Australia with her parents, he followed some four months later in 1990. After living with his wife and her parents for some months, the applicant returned to Macedonia where he stayed for more than two years, his wife divorcing him. In the meantime a son had been born. The applicant returned to Australia and has been here ever since. Though he has tried, I rather gather he has tried unsuccessfully to keep in touch with his wife and son. In a sense he lost them both.

24. On 29 July 1995, the applicant married Tania Irene Parlapanov. There are two children of the marriage, a son born on 4 March 1996 and a daughter born on 16 March 1997. Mrs Parlapanov is 25 years of age or thereabouts. The applicant's second marriage has been interrupted by a number of separations and reconciliations. In September 1997 the family moved from Thomastown to a flat in Dandenong. According to the summary of evidence put before us, Mrs Parlapanov was frightened of the applicant and wanted to leave him. In late September, she did leave him and went to live with her mother. On the day she left, she told the applicant that she was going shopping and he gave her some money for the purpose. In fact, she went to her mother's house. She went then to see a solicitor to seek advice in relation to the custody of her children. On 13 October 1997 the Family Court made an order, apparently on an interim basis, granting custody of the two children to the applicant, giving Mrs Parlapanov daily access from 10 a.m. to 2 p.m. Mrs Parlapanov believed that the applicant was granted custody of the children because he told the court that she had post-natal depression, which she said was contrary to the fact.

27. On 14 October 1997, at about 9.30 a.m., Mrs Parlapanov telephoned her husband to arrange for access that day. He told her that she had to come to the flat in Dandenong and that she could have access to the children only in his presence. Mrs Parlapanov claimed to know that such an arrangement was not required; however, because she was missing the children, she went to the flat as directed.

30. Arriving at the flat at about 10 a.m., Mrs Parlapanov bathed the children, put them to bed and commenced to clean the flat. The applicant kept asking her why she had left him and inquired as to where she was living. She would not tell him. He became angry and commenced throwing things around and broke a saucer by slamming a cup into it. At that point a woman who lived in the same block of flats came to the door. She arrived, according to Mrs Parlapanov, at about 11 a.m., although the neighbour puts it at shortly after 12.30 p.m. After the neighbour entered the flat, the applicant continued to question his wife about where she was living. He asked her whether she had a boyfriend, suggesting to her that she did. The neighbour said that Mrs Parlapanov simply did not answer the questions. Mrs Parlapanov said that her husband asked her a few times "if I was seeing someone else and I told him that I wasn't". She says that the applicant did not believe her and became angry.

33. At about 2 p.m. Mrs Parlapanov said that she was going to leave the flat. At that point the applicant became upset and told her that she was not to leave, locking the security door at the front of the flat and putting the keys in his pocket. He said more than once that she and the neighbour were not going to leave. The neighbour specifically asked that she be allowed to leave and was told that she could not. The two women stood then at the front door with their arms linked. The applicant went and got two knives from the kitchen of the flat: one was a carving knife and the other a Stanley knife.

36. The neighbour's daughter, who was outside the flat, said that she heard her mother asking the applicant to unlock the door. She also heard Mrs Parlapanov say that she wanted to leave. The neighbour's daughter spoke through the security door and asked the applicant to unlock the door so that her mother and Mrs Parlapanov could leave. When this was ignored, the neighbour's daughter went back to her own flat, intending to call the police. A short time later, the applicant did open the security door and allowed the neighbour to leave.

39. When Mrs Parlapanov attempted to leave with the neighbour, she was grabbed by the applicant who pushed her to the floor, just outside the front door, and cut her on the left side of the neck with the Stanley knife. There was a struggle. Mrs Parlapanov managed to break free and ran about two metres before she was caught again by the applicant and pulled to the ground. He slashed her on the neck, back, throat and face with the Stanley knife. She then managed to free herself and ran into the street.

42. Mrs Parlapanov suffered multiple deep lacerations to her neck and back, requiring 70 stitches. There was also a laceration to the left side of her face which affected the facial nerve and she received other lacerations on the throat, neck and back. Permanent scarring was caused. The applicant inflicted some injuries on himself, using the same Stanley knife, but, as I apprehend it, these injuries were fairly superficial.

45. On the same day, 14 October, the applicant was arrested and he has been in custody since. In his record of interview there is reference to his belief that a ring being worn by his wife had been given to her by a man from Sri Lanka, and perhaps this was the basis for his asking Mrs Parlapanov whether she had a boyfriend. Be that as it may, in the course of his interview the applicant made a number of admissions about the events of 14 October, though it must be said that those events could scarcely have been in dispute, at least in substance. As the sentencing judge said, the third charge, that of intentionally causing serious injury "is the most serious of the three charges". His Honour also said that it "inevitably called for a term of imprisonment" and in the circumstances there can be no doubt of that. So much was recognised by counsel on the plea.

48. Speaking in general terms about the circumstances of the applicant, the judge said this in his introductory remarks when sentencing:

"You were born in Macedonia in June 1967 and migrated to Australia a few years ago. Your life in Australia has been unsuccessful. Two marriages have failed. You have been mostly unemployed and you lack the skill to learn English. Intelligence testing indicates you have a dull capacity placing you at the lower end of the scale. You have personality problems and feelings of insecurity. Your level of excitability causes you to react to stress and you experience difficulty controlling this reaction. Your conduct towards your wife, Tania, last October leads me to conclude that under stress you give way to violence. I am not confident that under similar circumstances you would not re-offend."

52. On this application Mr Crisp, who appeared for the applicant, sought to characterise the last three sentences of what I have just quoted as findings on the part of the sentencing judge which were altogether unjustified. But they were nothing of the kind. The sentence beginning "Your level of excitability" is plainly derived from the psychologist's report and that sentence quite obviously founds the next, and the final sentence of what I have just quoted must follow, given the circumstances of the present offending. Counsel pointed to the fact that the applicant has behaved himself very well in gaol, but that does not really meet the point: in gaol conditions are very different and, although Mr Crisp sought to elevate that good behaviour into sound prospects of rehabilitation, counsel for the respondent was correct in her submission, I think, that the one does not follow from the other in these particular circumstances.

55. In his sentencing remarks the judge then went on to say this:

"When you are released from prison, I hope that you keep away from your wife because, if you do not, it seems to me likely more violence may occur. It was said by your counsel that you are remorseful and expressed your remorse to the police soon after you had seriously injured your wife. Perhaps you were remorseful when you realised what you had done to your wife. However I consider your wife is quite justified in fearing for her safety in the future should you seek and be allowed by a Court to resume contact with the children of the marriage. You may use the children to influence your wife to return to you."

59. Again these views were attacked by applicant's counsel as unjustified findings, but again I think not. The summary before us states that Mrs Parlapanov was frightened of her husband, and, as the judge remarked, "it is most unusual for a mother to leave behind in the home a six-month-old child. Accordingly I consider the circumstances must have been extreme." Although the judge recounted in his sentencing remarks that Mrs Parlapanov claimed that there had earlier been violence in the course of the marriage, the judge made no finding in that regard and, to my mind, placed no weight on her assertions in saying what he did about the applicant's use of violence. Although counsel was disposed to submit otherwise, I regard the judge's comments as springing from the events of 14 October. The circumstances of that attack surely gave rise, in themselves and without more, to an apprehension that there could be further violence if, as seems probable, the marriage founders and neither party is willing to relinquish the children.

62. Indeed, the applicant's attack on his wife on 14 October in particular is the more disconcerting because it was he who had, for the time being, just been given custody of the children, and it was she who was driven to seeking access. Again to draw on what the sentencing judge said:

"At this time you harboured a suspicion that your wife had formed a relationship, and was residing with, another man. Your wife strongly denies that she had formed another relationship in October last year and there is not a tittle of evidence to support your suspicion. Your suspicion, I believe, sprang from a jealous mind and was encouraged perhaps by Tania's reluctance on 14 October last year to reveal to you her place of residence. The events that occurred in the house involved short-term false imprisonment of [the neighbour] and Tania."

66. Although applicant's counsel was critical of what the judge said next, I find it difficult to disagree with anything that followed, for his Honour went on to say:

"It is clear to me that your violent actions with the Stanley knife were born out of a jealous rage. You completely lost control of yourself and in a rage you set about inflicting terrible injuries to the neck, face and back of your wife by means of the knife. You have scarred and disfigured Tania, a young woman of 25 years of age. A victim impact statement discloses that Tania had 70 stitches in her neck and back and that a nerve on the left side of her face was severed. No doubt she is embarrassed by her disfigurement and she says that she has had to consult a psychologist. I consider that you intended to punish your wife for what you wrongly perceived to be her infidelity. The third offence was not premeditated. You spontaneously picked up two knives, one much larger than the other and potentially more lethal. You were persuaded to put the larger knife aside, but you then proceeded to slash your wife's neck and back unmercifully."

70. This was a savage and brutal attack by a man on his wife, he with a dangerous weapon and she defenceless, when she came to his place of residence solely to have access to her children in pursuance of a court order. It cannot be excused. It can perhaps be explained if the attack was, as the judge said, "born out of a jealous rage" and the applicant "completely lost control of [himself]". Below, counsel for the applicant appears to have accepted the expression "jealous rage": indeed, she seems to have adopted it. But, whether the rage stemmed from jealousy or from simple fury at the wife's supposed unfaithfulness or from either of these coupled (as Mr Crisp suggested) with fear on the part of the applicant that he was losing the children, does not seem to me to matter. The indisputable fact is that the applicant was in a rage and that rage was plainly founded in his wife's association, or supposed association, with another man. What the judge said on this aspect derives clearly enough from the record of interview, and I refer by way of example to the applicant's answers to questions 91-94, 121, 134, 177-8, 210-3, 232, 239 and 335. In the last of these the applicant admits that he lost control of himself. Indeed if the attack is not to be explained as the judge said, the attack seems altogether inexplicable - and that could only make matters worse for the applicant.

73. What I have said thus far leads me to reject the submissions that were made by Mr Crisp under grounds 3 and 4. In my opinion there is nothing in either of these. What the judge said about the applicant's violence in particular was properly grounded in the events of 14 October, the applicant's own answers in the record of interview or Mr Joblin's report. Whether taken separately or together, his Honour's findings of fact in this regard, such as they were, were clearly open on the evidence before him and to the requisite standard.

76. As for grounds 1 and 2 in the applicant's notice of application, these mentioned, as I said earlier, the lack of prior convictions, the early plea of guilty, the applicant's remorse and rehabilitation. The judge referred to the applicant's lack of prior convictions in his sentencing remarks, as he did too to the applicant's pleading guilty. Neither can therefore be said to have been disregarded. It is true that his Honour did not refer expressly in his reasons for sentence to the stage at which the plea of guilty was made or offered, but in the course of the plea this exchange occurred between applicant's then counsel and his Honour (and I read from p.55):

"Counsel: And may I also say, Your Honour, that whilst this matter was not resolved until late last week, I don't think [prosecuting counsel] will disagree with me, it has always been indicated that Mr Parlapanov would plead to the count of intentionally cause serious injury always. ... From the very outside [I think that must mean "outset"], and whilst that wasn't formally done until most recently, the Crown have always known that that was his intention. His Honour: Yes. I will assume, unless [counsel] wishes to state otherwise, that he notified an intent to plead guilty at an early stage."

80. The sentencing judge is an experienced common law judge and it cannot be supposed that in sentencing, only a matter of days later, his Honour failed to "have regard to" what he said expressly, in the course of the plea, he was prepared to assume: see Sentencing Act s.5(2)(e). Anyway, the significance of a plea of guilty must be the less when an accused really has no defence to the charge and, as Mr Crisp said in the course of his submissions to us, there was always the possibility in the circumstances of this case of a "more serious" charge.

83. As for remorse, the judge did not make any finding in that regard. He referred to remorse in passing, as a possibility. The main burden of Mr Crisp's submissions was that the judge more than once made findings adverse to the applicant without any sufficient basis in the evidence and to the requisite standard. Here, he was driven to complain that the judge failed to make a positive finding in favour of the applicant. Suffice it to say that that was a matter for his Honour, and having read the record of interview and what was said on the plea, I see no error in the approach taken by his Honour. That leaves the matter of rehabilitation. Here, the only evidence was of the applicant's good behaviour in gaol and his willing participation in a number of courses, even some from which the benefit might be questioned (such as drug rehabilitation). But, as I indicated earlier, I agree with respondent's counsel that that has little if any bearing on the chances of his re-offending. Mr Crisp made the submission that the judge failed to sentence on the basis that the attack was an isolated aberration on the part of the applicant because he formed the view, impermissibly it was said, that there had been previous occasions of violence within this marriage. In my opinion there is no sound basis in the sentencing remarks for that contention. I have already identified what I regard as the proper and sufficient basis for what the judge said about the applicant's resorting to violence, and it does not include the wife's referring to other incidents of violence before 14 October.

86. It follows that in my opinion none of the grounds 1 to 4 is made out. As for ground 5, I cannot regard the sentence as manifestly excessive. Perhaps, in view of the plea of guilty and the lack of prior convictions, the sentence is on the high side, but this was a savage and brutal attack in very unequal circumstances. General deterrence is one very important consideration where violence is used in a domestic situation. The sentence was not outside the range of sentences that were properly open to the sentencing judge.

89. For these reasons I would dismiss the application.

94. I agree with the conclusions of Phillips, J.A. and I would subscribe to his reasons therefor.

104. The order of the Court is that the application for leave to appeal against sentence stands dismissed.