R v Timu

COUNSEL : Mr RA Herps for the Crown Mr RC Pontello for the Applicant SOLICITORS : Mr SE O'Connor for the Director of Public Prosecutions Scari Trimarchi Solicitors for the Applicant CATCHWORDS : Criminal Law - application for leave to appeal against sentence - no question of principle LEGISLATION CITED : Crimes Act 1900, s112 CASES CITED: Olbrich (1999) 199 CLR 270 DECISION : Leave to appeal allowed; Appeal dismissed.

• 9 -IN THE COURT OF CRIMINAL APPEAL 60188/02

Sperling J Buddin J

Tuesday, 15 October 2002 R v Timu Judgment 1 Sperling J: The applicant Gary Alexander Timu pleaded guilty to one count of aggravated break, enter and commit a serious indictable offence, contrary to s112(2) of the Crimes Act 1900, for which the maximum penalty is imprisonment for 20 years. The offence was committed on 27 June 2001. 2 The charge was in the following terms: On 27 June 2001, at HABERFIELD in the state of New South Wales, did break and enter the dwelling house of Kim Ashcroft, situate at 7/121 Parramatta Road, and therein did commit a serious indictable offence, namely Assault Occasioning Actual Bodily Harm, in circumstances of aggravation, namely knowing at the time of the said breaking and entering that there was a person in the said dwelling house. 3 On 5 April 2002, the applicant was sentenced by Nield DCJ to a term of imprisonment of two years and three months with a non-parole period of nine months. The applicant applies for leave to appeal against the severity of the sentence. 4 The applicant was born on 26 April 1969. He was, accordingly, 32 years of age at the time of the offence. 5 The Crown case, is summarised in the applicant's written submissions as follows: The Complainant and the Applicant had been in a romantic relationship for about 3 years prior to 27 June 2001. At about 8.30pm on that date the Complainant heard a knock at the front door of her residence. She looked through the peep hole in the door and saw the Applicant. The front door was secured by a security latch. After seeing the Applicant, the Complainant slightly opened the door and had a conversation with the Applicant. The Complainant told the Applicant to " go away and leave me alone " and closed the front door. She then went to the phone in her unit and dialled " 000 ". The Applicant forced the front door with his hands, breaking the security latch. He then entered the unit, grabbed the telephone cord and unplugged the phone from the wall. The Applicant was then alleged to have grabbed the Complainant by the hair and forced the back of her head against the concrete wall of the unit about 3 times, calling the Complainant a " stupid bitch ". The Applicant then started slapping the Complainant across her face with both hands causing swelling to the left side of the Complainant's face and a split lip. The Applicant is then alleged to have punched the Complainant to the left side of her face with a closed fist and punched the Complainant in the stomach twice, winding her. She gasped for air and the Applicant slapped her across the face. The Applicant is alleged to have said to the Complainant " If you go to the Police, I will hunt you down and have you killed ". It was alleged that the Applicant also grabbed the Complainant by the throat and punched her in an upwards fashion. About 1.30am on 28 June 2001 the Complainant went to bed; the Applicant followed her. He got into the same bed and went to sleep; the Complainant lay awake all night too scared to move. About 6.00am on 28 June 200 the Applicant got up, dressed, leaned over the Complainant and caressed her swollen cheek, said " I love you " and left. The Complainant then got up, dressed and left for work. When she got to work she reported the matter to her Manager who in turn arranged for a Counsellor. After finishing work the Complainant's mother drove her from work at Pyrmont to the Penrith Police Station where she made a statement of complaint. It was the Prosecution case that as a result of the assault, the Complainant received lumps to the back of her head, minor bruising to her neck and wrists and soreness to her back, together with a small cut on the left corner of her mouth. 6 The foregoing account of events was supported by the complainant in her statement to the police and in her evidence on the sentencing hearing. 7 In his account, given to the police when apprehended and as given in evidence at the sentencing hearing, the applicant admitted that he broke into the complainant's apartment, that, having seen her using the telephone, he pulled the line from the wall, and that he slapped the applicant on the face more than once, causing a cut to the left corner of her mouth. He denied that he had grabbed the complainant's hair and pushed her head against the concrete wall of the unit (three times), punched the complainant on the left side of her face with a closed fist, punched the complainant in the stomach (twice) or that he had threatened to kill her. 8 An outline of injuries suffered by the complainant appeared from a statement by a general practitioner, Dr Labib. How much of that was observation by the doctor and how much was hearsay through the complainant was in dispute. 9 Concerning the extent to which the applicant may have been affected by alcohol, the following is an extract from the applicant' s evidence in chief given at the sentencing hearing. Q: How much did you have to drink? A: I think it would be four or five schooners. Q: Are you a regular beer drinker? A: Not really, no. Q: Were you intoxicated when you left the pub? A: Fairly intoxicated, yes sir. Q: Did you intend to go to Ms Ashcroft's apartment after you left the pub? A: No. Q: When did you form that intention? A: I found myself walking towards that way after I had gone out to Summer Hill to buy some cigarettes and that. Q: What was the address you were living at when the incident happened? A: Unit 2, 34 Thomas Street, Leichhardt. Q: Well, why did you go to the apartment? A: To be quite honest I don't really know, but when I did find myself there our relationship had been such that every time we did break up we always ended up in a huge argument between her and myself, it always ended up bad, but for once, just once try to end it on a better note, I guess, and just get some good closure on it. Just carry on, get on with our own lives, that's about it. 10 The sentencing judge made no finding against the applicant in relation to the threat, but he found that the applicant otherwise did as the complainant asserted and that she received the injuries as alleged by her. In doing so, he resolved the conflict between the two accounts in the following way. 11 His Honour said he was not assisted by the demeanour of the two witnesses. He went on to say: However, there is one piece of evidence which assists me in rejecting the evidence of the offender. At least in rejecting his evidence to some extent. The fact that he had consumed a quantity of intoxicating liquor and was, as he told police, "tiddly" because of his consumption permits me to say that I doubt his memory, at least the accuracy of his memory, as to what occurred in what must have been a relatively short period of time from when he pushed open the door into the complainant's unit. 12 His Honour did not accept the complainant's evidence completely. He said: I accept the complainant's evidence as to what the offender did to her but I think that she, not unexpectedly, is herself unable to be precise as to exactly what occurred from when it was that the offender pulled the telephone cord out of the socket on the wall. That is not to say that I do not accept her as doing her best to remember what happened, but the very fact of being confronted by a former boyfriend when he was to some extent intoxicated and after he had broken into her home would, it seems to me, so surprise and confuse her that she may not be precise as to everything that had occurred. 13 His Honour then made the following findings: Having said those things, I accept, however, that she was pushed against the wall and that the back of her head hit the wall and that she was punched with a closed fist, and not slapped with an open hand, and that she was punched to the stomach as a result of which she lost her breath. 14 The finding made by the sentencing judge in relation to the likely effect of alcohol on the applicant's capacity to remember with accuracy what had occurred was central to his Honour's reasoning. There was a sufficient basis in the evidence for that finding. 15 His Honour then reviewed the relevant subjective considerations in relation to the applicant. There were some property offences during adolescence. However, the sentencing judge accepted that the applicant had, relevantly, an unblemished character, confirmed by the police report and by testimonials tendered in evidence. 16 His Honour allowed a discount of 25 per cent for the utilitarian value of the applicant's early plea of guilty. He did not doubt that the applicant's expressions of contrition were genuine. He did not think there was any prospect of the applicant re-offending and, accordingly, there was nothing that needed to be done by way of rehabilitation. 17 The sentence imposed represented a head sentence of three years, discounted by 25 per cent. 18 His Honour found special circumstances, namely, the applicant's prior unblemished character, that he had not previously served a prison sentence and that he was unlikely to re-offend. The provisional statutory non-parole period was accordingly reduced from two years and three months (three quarters of the sentence) to nine months (one third of the sentence). 19 His Honour gave specific consideration to whether full time custody could be avoided in favour of some other penalty. He found himself unable to do so by reason of what he regarded as the serious nature of the offence and its effect on the victim.

Misleading evidence 20 There is a disturbing aspect of the evidence given by the applicant at the sentencing hearing. Our papers include the applicant's criminal history in New Zealand. Relevantly, in 1984, he was convicted in the District Court at Hastings, New Zealand, of robbery by assault, for which he was sentenced to four months imprisonment with probation for one year thereafter. This information was not before the court when the applicant was sentenced here in April 2002. 21 The following is an extract from the evidence given in chief by the applicant at the sentencing hearing on 5 April 2002. Q: And have you ever been convicted of any criminal offences? A: No. 22 That answer was untrue. It misled the court. The sentencing judge specifically found that the applicant had "an unblemished character". There was evidence of commendable progress by the applicant in rehabilitating himself pending sentence. However, it seems likely that the evidence of prior good character contributed to the finding made by his Honour that it was unlikely that the applicant would re-offend. That, in turn, led his Honour to conclude that specific deterrence was not as important as it might otherwise have been. 23 Additionally, that this was to be the applicant's first time in prison was a factor which his Honour specifically took into account in determining that there were special circumstances warranting a reduction in the length of the non-parole period. That is a second way in which the misleading evidence came to bear on the result.

Grounds of appeal 24 The applicant relies on the following grounds of appeal: (1) His Honour the learned sentencing judge did not apply the correct onus and standard of proof in finding the facts upon which the sentence was to be passed. (2) There was too fragile a basis, on the evidence, to make a finding that the applicant: (a) Grabbed the complainant's hair and pushed the complainant's head against the concrete wall of the unit three times; (b) Punched the complainant on the left side of her face with a closed fist; (c) Punched the complainant to the stomach twice; (d) Threatened to kill the complainant. (3) The sentence was, in the circumstances, manifestly excessive.

Ground 1 25 In relation to disputed facts going to aggravation of the offence, the burden of proof was on the prosecution and the standard of proof was proof beyond reasonable doubt: Olbrich (1999) 199 CLR 270. The trial judge did not state those principles. However, it cannot be doubted that a judge of Nield DCJ's experience intended to apply them. It follows that his Honour was satisfied beyond reasonable doubt of the factual matters in dispute. 26 The real question is whether it was open to his Honour to be so satisfied on the evidence before him. 27 His Honour accepted the evidence of the complainant to the extent necessary to support the findings which he made. There was a rational basis for doing so, notwithstanding the applicant's evidence to the contrary, namely, the likely impairment of the applicant's capacity to remember accurately what had occurred because of the alcohol he had consumed. It was, accordingly, open to his Honour, in these circumstances, to be satisfied of the matters in question to the requisite standard of proof. 28 For these reasons, this ground of appeal must fail.

Ground 2 29 The applicant's submissions in support of ground 2 amount to there having been a paucity of corroboration for the complainant's testimony in relation to disputed acts on the part of the applicant and in relation to the nature and extent of injury alleged. 30 Paucity of corroboration or, indeed, lack of corroboration, does not preclude a tribunal of fact from being satisfied of matters in issue beyond reasonable doubt. It was clear that much of what the complainant alleged lacked corroboration. There is no reason to suppose that this escaped his Honour's attention when evaluating the weight to be given to her evidence. 31 This ground of appeal, accordingly, fails.

Ground 3 32 The sentence imposed was not manifestly excessive. It was within the range of a proper exercise of sentencing discretion. That is so on the evidence before his Honour. It is the more so on the true facts, which include the applicant's prior criminal record of which his Honour was unaware.

Result 33 I propose that leave to appeal be allowed and that the appeal be dismissed. 34 Buddin J: I agree with Sperling J. -o0o-

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