R v Richard Fojt

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.

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.

Grounds of Appeal 42The Crown relies on five grounds of appeal: "(1) Her Honour erred in failing to determine, or adequately determine, where the offence pursuant to s.112(3) lay in the range of seriousness for offences of that type. (2) Her Honour erred in her finding regarding the objective seriousness in respect of the s.112(3) offence that it was below the mid range. (3) Her Honour failed to have adequate regard to the standard non parole period for the s.112(3) offence. (4) Her Honour erred by not accumulating the s.35(4) offence. (5) Both the individual sentences and the total effective sentence are manifestly inadequate."

Applicable Principles for Crown Appeals on Sentence 43Section 5D of the Criminal Appeal Act provides: "5D Appeal by Crown against sentence (1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper. ...". 44Section 68A of the Crimes (Appeal and Review) Act 2001 further provides: " 68A Double jeopardy not to be taken into account in prosecution appeals against sentence (1) An appeal court must not: (a) dismiss a prosecution appeal against sentence, or (b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate, because of any element of double jeopardy involved in the respondent being sentenced again. (2) This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal." 45In R v JW [2010] NSWCCA 49 at [95], Spigelman CJ (Allsop P agreeing, McClellan CJ at CL, Howie and Johnson JJ agreeing on this point) said this in regard to s 68A: "... s 68A, whilst removing the double jeopardy element from the exercise of the discretion to intervene, leaves other aspects untouched. On this basis, there remains a residual discretion to reject a Crown appeal, notwithstanding the abolition of the double jeopardy principle. The Court of Criminal Appeal must continue to recognise in a real and practical way the Crown's responsibility for the proper administration of the criminal justice system."

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.

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.

Ground 3 63Ground 3 argues that her Honour failed to have adequate regard to the standard non-parole period for the principal s 112(3) offence. Properly understood, this ground seems to be really a particular of the final ground, Ground 5, which asserts manifest inadequacy of the sentence. 64Her Honour clearly did have regard to the standard non-parole period. Her Honour drew attention, at page 9 of the remarks on sentence, to the seriousness of the offence, and made these remarks: "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 ... In each instance there has been of course, a plea of guilty, hence the standard non-parole periods are not a direct application but they remain as a guide post to the sentences to be imposed." 65Her Honour had earlier noted that the maximum penalty for the s 112(3) offence was 25 years imprisonment with a standard non-parole period of 7 years. 66On its own, it cannot be said that her Honour did not have regard to the standard non-parole period. Clearly she did. This ground is properly to be viewed as a particular of Ground 5, and I would not be prepared to uphold the appeal on the basis of this ground alone.

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.

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.

Orders 87I propose these orders: (1) Appeal allowed. (2) Set aside the sentence imposed in the District Court of NSW by English DCJ on 9 July 2010. (3) In lieu thereof, Mr Fojt is sentenced to a non-parole period of 3 years and 9 months commencing on 22 September 2009. He is sentenced to a balance of the term of 1 year and 9 months. The entire sentence will expire on 21 March 2015. (4) The first date upon which Mr Fojt will be eligible for release is 21 June 2013.

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