R v Richard Fojt

[2011] NSWCCA 20

Court of Criminal Appeal (NSW)|2010-12-10|Before: Simpson J, Blanch J, Garling J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2010-12-10

Before

Simpson J, Blanch J, Garling J

Catchwords

Jones v The Queen [2010] HCA 45 (8 December 2010) Mirza v R [2007] NSWCCA 248 Mulato v R [2006] NSWCCA 282 R v Knight

Source

Original judgment source is linked above.

Catchwords

Jones v The Queen [2010] HCA 45 (8 December 2010) Mirza v R [2007] NSWCCA 248 Mulato v R [2006] NSWCCA 282 R v Knight

Judgment (13 paragraphs)

[1]

Judgment 1SIMPSON J: I agree with Garling J. 2BLANCH J: I agree with Garling J. 3GARLING J: The Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 in respect of two sentences imposed by English DCJ on 9 July 2010. 4The respondent, Mr Richard Fojt, pleaded guilty to one count of a specially aggravated break, enter and commit serious indictable offence (wound with intent to cause grievous bodily harm) contrary to s 112(3) of the Crimes Act 1900, and one count of reckless wounding contrary to s 35(4). 5The offences related to an incident on the evening of 22 September 2009, in which Mr Fojt broke into the home of Mr David Watson and attacked him and his partner Ms Lisa Stuckey with a kitchen knife. 6The maximum penalty for the s 112(3) offence is 25 years imprisonment, with a standard non-parole period of 7 years. The maximum penalty for the s 35(4) offence is 7 years imprisonment, with a standard non-parole period of 3 years. 7Her Honour, after allowing a 25 per cent discount for the utilitarian value of a plea of guilty, imposed an overall sentence of 4 years and 6 months imprisonment for the s 112(3) offence, with a non-parole period of 2 years 8 months and 12 days. For the s 35(4) offence her Honour imposed an overall sentence of 2 years and 3 months imprisonment, with a non-parole period of 1 year 4 months and 6 days. 8Her Honour made the sentences wholly concurrent, to commence from 22 September 2009, which was the date upon which Mr Fojt was arrested and refused bail. He pleaded guilty to the offences on 6 May 2010.

[2]

Facts 9At the sentencing proceedings a detailed statement of agreed facts was tendered to the sentencing judge, and her Honour essentially repeated those facts in her remarks on sentence. It is appropriate to set out a summary of these facts below. 10Between 2004 and early 2008, Mr Fojt had been in an intimate relationship with Ms Stuckey. This relationship had been "on and off" over that period, and ended when he fathered a child with another woman. 11In June 2009, Ms Stuckey began an intimate relationship with Mr Watson, who was a close friend of Mr Fojt. This new relationship was not made known to Mr Fojt. 12On 21 September 2009, Mr Fojt had lunch with Mr Watson and inadvertently found out about the relationship whilst browsing through the photos on Mr Watson's mobile phone. 13That evening, and then on the next morning of 22 September 2009, Mr Fojt had several conversations separately with Mr Watson and Ms Stuckey, in the course of which they apologised for not previously telling him about their relationship. These conversations ended in a manner that could be described as amicable, although both Mr Watson and Ms Stuckey knew that Mr Fojt was upset. 14From about 4:30pm on 22 September 2009, Mr Fojt met up with several of his other friends near Punchbowl, and became very emotional. He had already drunk a cask of wine and was intoxicated. He then began to get angry. They tried to calm him down but he walked off, threatening to hit them if "they tried to stop him". 15At about 7:30pm Mr Fojt arrived at his mother's house on Washington Avenue, Riverwood and said to her: "I want to kill someone". She said: "You remember your son... Please don't hurt your mum. You need to repent that." 16His mother tried to grab his T-shirt to stop him but he pulled it off. He then went to the kitchen and grabbed a black handled kitchen knife that had a blade of approximately 30cm. 17Mr Fojt ran towards Mr Watson's home, which was at Broad Arrow Road, Riverwood, with two of his friends in pursuit. They tried more than once to stop him, walking backwards in front of him and grabbing at him, but each time he pushed past them, put up his fist at them and said " get away from me ". 18When the group approached Mr Watson's house Mr Fojt said " Oh, I don't know if I should do it ". One of his friends urged him to leave and to walk away. 19Mr Fojt however, shirtless and holding the black handled knife, opened the flyscreen door, ran through the lounge room, and ignored Mr Watson's father's questions and Mr Watson's mother who called out to Mr Fojt to leave their house. Mr Fojt swung open the door of Mr Watson's bedroom, slamming it into a wall. Mr Watson and Ms Stuckey were sleeping on a mattress on the floor. 20Once inside the bedroom, Mr Fojt swung the black handled knife at Mr Watson again and again. Mr Watson had no opportunity to get up or respond. When Ms Stuckey jumped up, Mr Fojt said to her " I'm gonna get you too, you slut ". 21Mr Watson's father and mother rushed into the room and, with Ms Stuckey's assistance, managed to disarm Mr Fojt and restrain him, but in the meantime Mr Fojt managed to throw several punches at the right jaw and ear of the wounded Mr Watson. There was blood everywhere. 22In the struggle to disarm and restrain Mr Fojt, Mr Watson's father suffered chest pain which he, not unreasonably, interpreted as having another heart attack. 23Mr Fojt fled. Police officers found him shortly afterwards, sitting near the toilet block in Riverwood Park. He was arrested and charged. As he was being escorted to the dock at Hurstville Police Station he said " I fucked up, I fucked up, didn't I ?" Later he asked " The bloke I stabbed, do you know if he is alright? " 24Mr Watson suffered a "through and through" laceration to his front left triceps into his upper axilla, a 3cm stab wound into his right lumbar paravertebral muscles, and some other superficial lacerations to the area. He also had bruising to his neck and ear. He remained in hospital overnight and received stitches. 25Ms Stuckey had a 4cm wound to her upper left arm that damaged her ulnar nerve. She had surgery to repair the nerve and suffered ongoing problems with her arm for a period of time afterwards.

[3]

Subjective Features 26Mr Fojt was born on 19 September 1987 and had just turned 22 at the time of the offences. 27He had previous offences and convictions for violent conduct. In January 2006 he assaulted a police officer in execution of duty, and broke the officer's nose. He also caused some damage to property. He was sentenced to 12 months imprisonment with a non-parole period of 4 months. 28In February 2007, he was charged with entering prescribed premises without lawful excuse, and received a fine. In September 2007, he was charged with affray and received a 12 month suspended sentence. 29A probation and parole service pre-sentence report dated 1 July 2010 was tendered at the sentencing proceedings. It states that Mr Fojt had a history of problems with drug and alcohol abuse. During past supervision in the community he had attended alcohol and drug counselling. 30The report also states that since his incarceration for the present offences he has participated in further alcohol and drug counselling. 31A lengthy and detailed clinical psychologist's report by Ms Michele Player, dated 10 June 2010, was also tendered at the sentencing proceedings. The report described Mr Fojt as a man of sound intelligence. It noted that he grew up in a single parent family, and has had problems with anger management since childhood, of which he himself had been aware and for which he had sought some assistance. The report found that Mr Fojt was not suffering from a diagnosable mental illness, but that his history revealed difficulties with emotional regulation, impulse and anger control. 32At the conclusion of the report, Ms Player suggested that maximising the amount of time Mr Fojt spends in the community under supervision, and where he could receive appropriate interventions, should help in reducing his risk of recidivism. She noted that prolonged incarceration was unlikely to offer as much rehabilitative opportunity to Mr Fojt as supervised, supported residence in the community, where he could pursue stable employment, participate in social activities and draw upon family support. 33Mr Fojt gave evidence at the sentencing proceedings where he expressed shame, embarrassment and remorse for his actions. He tendered a letter to the sentencing judge in which he expressed similar sentiments. 34Mr Fojt was quite unable to justify his conduct. His explanation was that he went out "... to drink just to forget about everything and just drank too much and ... I just snapped ... ". 35Mr Fojt also expressed a desire to further his education and to seek counselling for his problems with anger management and drug and alcohol abuse. He has tendered before this Court an affidavit affirmed on 1 December 2010, which sets out the progress he has made in seeking to obtain his Higher School Certificate, and his desire to obtain tertiary education.

[4]

Remarks on Sentence 36After summarising the facts and the subjective features, her Honour commented on the seriousness of the offences in this way: "Both offences are of course objectively very serious and the offence against Mr Watson one of the most serious in the criminal calendar as can be seen from the maximum penalty and the standard non-parole period. The offence against Ms Stuckey is also serious, so much so that the legislature has seen fit to impose a standard non-parole period to ensure adequate punishment is handed down for an offence found to fall within the mid range of objective seriousness following upon a guilty verdict after trial. In each instance there has been, of course, a plea of guilty, hence the standard non-parole periods are not of direct application but they remain as a guidepost to the sentences to be imposed." 37Her Honour then set out what might be described as the aggravating features of the offences: "The incident... can accurately be described as a home invasion. Both victims were asleep in their bed and were entitled to feel safe in the sanctity of their bedroom within their home. Others in the house were no doubt extremely frightened at what was taking place. The offender was armed with a knife, a weapon capable of inflicting the most serious of injuries or resulting in death. ... the offender ignored warnings by others who tried to prevent him from going to the home of the victims. He ignored attempts by others to prevent him from inflicting injuries with the knife... He had to be overpowered to stop the knife attack." 38Two additional potentially aggravating features were the subject of submissions by the Crown and the solicitor for Mr Fojt, but did not feature in her Honour's remarks: (a) Whether the offences were committed without regard for public safety, given that Mr Fojt was walking some distance throughout the streets armed with a large knife. (b) The extent to which there was planning involved in the commission of the offences, having regard to the fact that Mr Fojt went to his mother's premises first to obtain a knife, and the fact that numerous people tried to prevent him in the course of his journey to Mr Watson's home. 39Her Honour proceeded to consider the mitigating features, and noted the following considerations: (a) Although Mr Fojt's previous offences and convictions do not aggravate his offences, they were such as to temper any leniency to which he was entitled. (b) Although Mr Fojt has expressed a genuine desire to rehabilitate himself, he had re-offended whilst on parole for a previous offence, and had incurred an institutional misconduct charge whilst remanded for the current offences. As well, he had had ample opportunity in the past to address his issues of anger and alcohol abuse. For these reasons, her Honour had some doubts about his prospects for rehabilitation. (c) Her Honour noted that the victims had not suffered any ongoing or substantial physical injuries or emotional harm. It is however unclear as to whether her Honour considered this a mitigating feature, as submitted by the solicitor for Mr Fojt (T11.2-7), or merely a fact that does not further aggravate Mr Fojt's offences. 40On the face of the remarks on sentencing, it appears that the only mitigating feature her Honour clearly found was that Mr Fojt pleaded guilty at the earliest opportunity. It seems that, on this basis, her Honour determined that his offences fell "below the mid range of objective seriousness envisaged by the legislature". 41On the question of totality, her Honour found that the offences arose out of the one course of criminal conduct, and so it was appropriate for the sentences to be served concurrently.

[7]

Ground 1 46The first ground of appeal suggests that her Honour did not determine, or adequately determine, the objective seriousness of the s 112(3) offence. 47At page 10 of her remarks on sentence, after she had set out in detail the nature of the conduct and what might be regarded as both aggravating and mitigating circumstances, her Honour said: "I find the offences fall below the mid-range of objective seriousness envisaged by the legislature in any event." 48The context against which this finding by her Honour needs to be considered can be seen from the submissions made by the lawyers for the Crown and the respondent. Ms Hawkins, for the respondent, submitted that the s 112(3) offence "... will fall below mid-range ... " and "... there are circumstances on the whole that would make this set of circumstances fall perhaps low mid-range which would mean ... your Honour would not be in error by formulating a sentence that falls below, and even well below, that 7 year standard non-parole period ". 49The Crown prosecutor submitted this: "... in terms of objective seriousness the Crown does agree that this offence falls below the middle range, however ..., the Crown submits that it does so only slightly. ... The Crown submits that the matter is approaching the middle range in terms of objective seriousness ...". 50Later in his submissions, when addressing the standard non-parole period, the Crown prosecutor said: "This would be a matter though your Honour where the Crown would say that there would not be a significant departure from the standard non-parole period ... Clearly, there would need to be some departure but, your Honour, as I said earlier, the Crown says that the matter is approaching the middle range in terms of objective seriousness." 51Having regard to those submissions, and in the absence of any greater specificity by her Honour, it seems to me that the only available interpretation of the expression used by her Honour to describe her finding as to the objective seriousness of the s 112(3) offence, is that it is properly to be understood as indicating that the conduct underlying that offence fell slightly below, or at the low end of, the mid-range of objective seriousness. 52On current authority, it is necessary for a sentencing judge to indicate, with some precision, the extent to which the finding of objective seriousness falls above or below the mid-range: R v Knight; R v Biuvanua [2007] NSWCCA 283 at [4] per McClellan CJ at CL at [34] per Harrison J; R v McEvoy [2010] NSWCCA 110 at [87] per Simpson J. 53However, in light of the understanding which I express in para 51 above, I regard any error of the sentencing judge on this question to be "... an error of process ... " of the kind referred to by Simpson J in McEvoy at [89]. 54It remains to be considered whether the sentence imposed is, as the Crown submits under Ground 5, manifestly inadequate. 55This ground of appeal standing alone fails.

[8]

Ground 2 56This ground challenges her Honour's finding that the objective seriousness of the s 112(3) offence was below the mid-range. The ground argues that, in so finding, her Honour made an error of law. 57The Crown submits to this Court that the offence fell within, and not below, the mid-range of objective seriousness. 58It is to be remembered that a sentencing judge's assessment of where a particular instance of offending stands is a matter upon which minds might reasonably differ. Generally this court would not interfere in that assessment unless it was clearly erroneous: Mirza v R [2007] NSWCCA 248 at [16] per Howie J. 59This Court in Mulato v R [2006] NSWCCA 282 made it plain that the Court ought to be slow to interfere with the assessment made by the sentencing judge of the objective seriousness of the offending conduct. At [37], Spigelman CJ said: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised." 60I express, with respect, my agreement with the remarks of Simpson J in Mulato v R [2006] NSWCCA 282 at [46] where her Honour said: "The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance." 61Whilst it would have been open to the sentencing judge to find that the offences fell, as the Crown now submits, in, or perhaps slightly above, the mid-range of objective seriousness, particularly having regard to the conduct of Mr Fojt in the wielding of the knife, and to the circumstances of his entry into the house of Mr and Mrs Watson, the fact is that her Honour's finding accorded with what the Crown put to her and the basis upon which the sentencing proceedings were conducted. 62In light of the Crown's submissions to her Honour, and consistently with the remarks set out above, I am not satisfied in the particular circumstances of the case that her Honour was in error in determining that the s 112(3) offence was slightly below the mid-range, as this ground of appeal asserts. I would reject this ground.

[10]

Ground 4 67Ground 4 argues that her Honour erred by not accumulating the offence under s 35(4) of the Crimes Act, involving the injury to Ms Stuckey, with the offence under s 112(3) involving Mr Watson. 68The area of discourse as to whether sentences ought be made concurrent, partially concurrent, or consecutive is commonly the subject of submissions in this Court. I agree, with respect, with the remarks of Howie J in Cahyadi v R [2007] NSWCCA 1 at [27] where his Honour said: "In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both. 69It needs also to be recognised that there are circumstances where the imposition of a sentence to be served wholly concurrently with another sentence arising out of the same incident "... will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending ": R v MMK (2006) 164 A Crim R 481 at [13]. 70One significant reason for not imposing sentences that are wholly concurrent and instead to accumulate the sentences, at least partially, is that the judgment otherwise "... may well be seen as a failure to acknowledge the harm done to [the] individual victims ": R v Wilson [2005] NSWCCA 219 at [38] per Simpson J. 71The agreed facts in this case do not adequately describe any separate course of conduct occurring whilst Mr Fojt was in the bedroom of the house at Riverwood, by which Ms Stuckey received her injury. 72It is clear on the facts which were agreed (and which her Honour found) that as Mr Fojt was swinging the knife down towards Mr Watson, who was lying on a mattress on his bedroom floor, with his arms around Ms Stuckey, Ms Stuckey remained in close proximity to Mr Watson. As the assault continued, and attempts were being made to restrain Mr Fojt, Ms Stuckey was also in close proximity to Mr Fojt and was able to grab the knife and throw it away behind a desk. 73She did not notice until some time after Mr Fojt was dragged out of the room, and whilst first aid was being administered to Mr Watson, that she too had sustained an injury. It was at that time that she noticed blood coming from a wound in her arm and felt her arm tingling. 74Her Honour made no discrete finding as to precisely how Ms Stuckey came to be injured. 75It seems to me that the only inference which was available to her Honour was that Ms Stuckey's injury, which consisted of a 4cm wound to her upper left arm that damaged her ulnar nerve, was sustained in the course of, and during, the attempts by Mr Fojt to inflict an injury upon Mr Watson. Although there was a verbal threat made by Mr Fojt which suggested that he intended to assault Ms Stuckey, there is no evidence that this threat was ever separately acted upon. 76In short, the one course of conduct by Mr Fojt led to the injuries to both victims, and the injury to Ms Stuckey occurred in circumstances of recklessness, and not intention. In those circumstances, it was clearly open to her Honour to order that the sentences be served concurrently. 77I am not persuaded, subject to questions of totality, that there was a failure to consider accumulation properly. I would not uphold this ground of appeal.

[11]

Ground 5 78In this ground the Crown argues that each of the individual sentences which were imposed and the total effective sentence are manifestly inadequate. 79In Hili v The Queen; Jones v The Queen [2010] HCA 45 (8 December 2010), French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, said: "59. As was said in Dinsdale v The Queen , '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out in Wong , appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say in Wong , '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'. But, by its very nature, that is a conclusion that does not admit of lengthy exposition ... 60 ... But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence." (references omitted) 80Having regard to all of the factual circumstances of the s 112(3) offence, the conclusion, which I would uphold, of the sentencing judge that the offence was slightly below the mid-range of objective seriousness, and the subjective features of Mr Fojt, I am satisfied that the sentence imposed was manifestly inadequate. This is so particularly having regard, in light of Mr Fojt's plea of guilty, to the standard non-parole period for the s 112(3) offence of 7 years which is appropriately to be regarded as a guidepost or yardstick. 81Because I have concluded that the sentence was manifestly inadequate, it follows that I am satisfied that the sentence imposed by the sentencing judge on the s 112(3) offence was erroneous and ought to be quashed. 82The sentencing judge was persuaded that there were special circumstances. She said that these circumstances consisted of the relative youthfulness of Mr Fojt and his clear need for guidance and supervision after his release. The Crown does not submit that this finding was erroneous. I am satisfied that special circumstances exist. 83There is no need to make any order with respect to the second offence to which Mr Fojt pleaded guilty because the sentence for that offence is less than that to be imposed on the s 112(3) offence, and because there was no error in ordering that the sentences be served concurrently. 84In resentencing Mr Fojt for the s 112(3) offence, I have had regard to the objective seriousness of the offence, all of the agreed facts and circumstances, the subjective features of Mr Fojt and the contents of his affidavit affirmed on 1 December 2010 which describes, in particular, his educational progress and improvement. 85After allowing a discount of 25 per cent for the utilitarian value of Mr Fojt's early plea of guilty, I would impose an overall sentence of 5 years and 6 months imprisonment. The appropriate non-parole period is 3 years and 9 months commencing on 22 September 2009 and expiring on 21 June 2013. The balance of the term is 1 year and 9 months which will expire on 21 March 2015. 86The first date upon which Mr Fojt will be eligible to be released is 21 June 2013.

R v Richard Fojt

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