R v Zegura

Court of Criminal Appeal (NSW)|2006-08-03|Before: McClellan CJ, Kirby J, Hoeben J, Ms J, Clellan CJ

Background to offences 6 In relation to the charge of wounding with intent to murder, the victim, Angela Blake, was 21 years of age at the time of the incident. She lived with her parents and brother at 25A Belmore Road at Peakhurst. She had met the respondent in December 2000 and a relationship had begun soon after. In May 2002 the respondent went to South Korea for work. While he was away, the victim decided that their relationship was not working out and tried to distance herself from him. 7 In December 2002 the victim started to go out with another man. As far as the victim was concerned her relationship with the respondent was over. On 30 December 2002 the respondent rang the victim on her mobile phone. It was during the course of this conversation that the victim told the respondent that she was seeing someone else. The respondent became very upset and over the next couple of days kept ringing the victim's mobile phone number. 8 On 2 January 2003 the victim became aware that the respondent had returned from Korea. The respondent attempted to revive their relationship without success. From that the respondent continued to call the victim and made threats to her such as "I will get people to bash Matt … you'd better watch out". The respondent continued to make phone calls to the victim and continued to make threats. On 16 January 2003 the respondent telephoned the victim and said: "I need to get back with you … I've organised for somebody to bash Matt … it is my life's mission to make sure that you never have a boyfriend and that you will be single unless you are with me." 9 It was on that day, 16 January 2003, that the respondent left Australia and returned to South Korea. He continued to send emails to the victim in which he begged her to be with him. The respondent continued to try to contact the victim on her mobile phone. On 14 March 2003 at about 11.10am the victim received a call from the respondent in which asked her about her sexual relationship with Matt. The victim refused to discuss this subject. 10 On the same day at approximately 11.45pm the victim was in her bedroom at home when she heard noises in her backyard. When she looked out the window she saw the respondent's face at the window. They had a conversation in which the victim agreed to meet the respondent on Monday 17 March 2003. The victim told the respondent that she had to go to bed and that he should go. The respondent appeared to be upset and began to cry. 11 On the morning of 17 March 2003 the victim decided to cancel the arranged meeting and at about 9.45am sent an SMS message to the respondent's sister to that effect. Shortly afterwards she received a phone call from the respondent who said "Why don't you want to see me?" The victim was frightened and said "I'm scared. We should talk and fix things up before I see you". 12 At about 10.45am on 17 March 2003 the victim heard her doorbell ring. When she answered the door, she saw the respondent and his sister, Anita. The respondent asked the victim to go out for a coffee with him and his sister. The victim agreed taking comfort from the fact that the respondent's sister was present. The victim (then being in her pyjamas) went into her bedroom to get changed. 13 As she entered her bedroom, she was followed by the respondent who pulled out a knife. The victim screamed "Help he has got a knife". A struggle ensued during which the respondent lunged at the victim's stomach about ten times while she moved and sought to avoid the knife. During the struggle she put her left hand in front of her stomach and the knife struck her hand causing injury. 14 Photographs which were before his Honour showed that these injuries to her hand were extensive and required stitches. The victim grabbed the respondent's right arm and when she did this he punched her in the face, in the forehead and on the left side of her face five or six times. It was at this point that the respondent's sister came into the room. The victim was by this time on the floor and was holding the knife in her right hand and the respondent's arm in her left hand. The respondent was leaning over trying to push the knife into the victim's stomach. He bit the victim on the shoulder blade. 15 The victim and the respondent continued to struggle in the course of which the respondent let go of the knife. The victim rushed out of the house calling to her brother. The victim was carrying the knife. 16 After seeking assistance from a neighbour, the victim was taken by two police officers with her mother to a medical centre. While the victim was at the medical centre, the respondent called the victim on her mobile phone from her own house phone. In the course of that conversation he said: "Angela doesn't want to be with me any more and if I can't have her I don't want anyone to have her." 17 The respondent remained in the victim's house for approximately five and a half hours. The house was surrounded by police from the State Protection Group and negotiators attended. The respondent had a number of conversations with negotiators, in the course of which he said the following: "I've been overseas and I just got home. I just found out my girlfriend … ex-girlfriend has been slutting around on me. She's been fucking some stupid guy so I messed her up with a knife and cut her and stuff." "This morning I failed in my goals." "It's unfortunate that I failed with what I had in mind today."

When asked "What are your goals today?" the respondent said: "If I live through this to repeat the act. I will finish the job on her I started today." "She will need protection the police won't be with her always. As long as I live she will need protection because I'm going to finish the job." "She was lucky she grabbed the knife or I'd have kept stabbing her. I punched the shit out of the side of her face and I bit her."

In answer to a comment from a negotiator, "I am sure if you really wanted to kill her you would have done it, she's only a girl." The respondent replied: "You don't know how strong she is, she has trained as a gymnast, she can climb a rope using her arms only, no legs. She trains as a dancer, she is very strong. I probably would have been able to if she hadn't seen the knife but she saw the knife straight away." 18 After the respondent's arrest he was overheard speaking to his sister in the Croatian language when he said "When I get out of gaol I will kill her". 19 In relation to the malicious damage to property by fire and the commission of an act of aggravated cruelty upon an animal offences, the facts were these. After the State Protection Group police officers had approached the house the respondent refused to come out. He threw his passport out of the house to the police. It contained a suicide note. Negotiations to persuade the respondent to leave the house were unsuccessful. 20 After approximately five and a half hours, the respondent went to the upstairs area of the house and lit a number of fires using newspapers. When the State Protection Group personnel became aware of those fires, they entered the dwelling and removed the respondent. 21 Although the fire brigade was called and were able to extinguish the fire, the upper level of the house had for all practical purposes been destroyed. Photographs before his Honour showed very extensive damage. It was discovered that the family dog had been twice stabbed by the respondent while he was in the house.

Subjective matters 22 The respondent had a prior criminal record. He had been convicted in the District Court at Campbelltown in July 1997 of armed robbery, for which he was sentenced to a minimum term of 9 months imprisonment. He was convicted in February 1997 of two charges of break, enter and steal in the Sutherland Children's Court for which he received a bond. 23 The respondent was born on 12 February 1979. He was 24 when the offences occurred and is now 27. He was born in Australia of Croatian parents and enjoyed a stable upbringing. His parents have now returned to Croatia to live but his sister continues to live in Sydney and visits him regularly. 24 The respondent left school having completed year 11. Thereafter he held a variety of positions in the retail and hospitality industries. He had spent 10 months in South Korea working as an English teacher before the offences. 25 The respondent had been a user of marijuana from the age of 11. He said that he was introduced to it by friends, many of whom were several years older than he was. He used it intermittently until he was aged 15 when he began to use it daily. Thereafter he had smoked marijuana daily, although there were periods of abstinence and lower rates of use. He decreased his use of the drug significantly when he was in his relationship with the victim because she disapproved of it. The respondent said that he used marijuana because it relaxed him. The respondent had also used other illicit drugs including ecstasy, amphetamines and cocaine. 26 When interviewed by a Probation and Parole officer in July 2004, the following description was given of the respondent's attitude to the offences: "Mr Zegura stated he was involved in a relationship with the victim for two years and that she had ended the relationship whilst he was in South Korea. His account of the break down of the relationship emphasised his sense of victimisation. He minimised the assault on his former partner claiming that he did not intend to hurt her. However, he stated that he had intended to intimidate her by drawing the knife on her and appear to feel that this was acceptable, given that he had experienced a great deal of distress over the ending of their relationship. Despite the effort Mr Zegura placed on describing his emotional states and reactions to the break down of his relationship, he was able to offer little insight into why he had committed the offences. Furthermore he did not appear remorseful, claiming that the sight of the victim in the court room during proceedings made him feel physically ill." 27 By April 2005 that attitude had modified somewhat and the Probation and Parole officer reported that as of that date, the respondent admitted that he was responsible for the offences and that he felt disgusted by his behaviour. He claimed that he now wished to apologise to the victim and her family. 28 Two psychiatrists gave evidence before his Honour as to the respondent's mental state at the time of the offences. Dr Allnutt gave evidence on behalf of the respondent and Dr Nielssen on behalf of the Crown. Having heard that evidence his Honour preferred the view of Dr Nielssen. He did this because he regarded the history which the respondent had given to Dr Allnutt as false and self-serving. 29 His Honour concluded that the respondent may have had some mental condition at the time of the offences which caused him to have more rigid beliefs than normal. Even so, that did not explain the respondent's conduct in trying to murder somebody by stabbing her with a knife, in setting fire to a house or in causing gratuitous cruelty to a dog. His Honour concluded that the respondent was fully aware of his actions and that they were performed maliciously in the full sense of that word.

Remarks on sentence 30 His Honour took account of the victim's statement as to her injuries and as to the psychological effects of the attack on her. His Honour accepted that the victim was still very distressed by the attack. 31 His Honour accepted that the plea of guilty to the attempted murder count did have utilitarian value but noted that it had not been entered at the earliest opportunity. His Honour accepted that some discount on sentence was appropriate but did not quantify the extent of the discount. 32 When considering the objective seriousness of the offence, his Honour assessed it as "well within the middle range of objective seriousness". He made that assessment in the following context: "In these circumstances had the offender been guilty of this offence rather than pleading guilty to it then because of the scheme of Division 1A of Part 4 he should have been sentenced to a non-parole period of at least 10 years imprisonment. I am not going to impose a non-parole period of 10 years imprisonment. Because of the offender's plea of guilty I am not obliged to do this and in my view in the circumstances a non-parole period of 10 years is not appropriate even in a case as bad as this." 33 His Honour regarded the use of a knife as an aggravating circumstance. He noted that if it had not been for the victim's strength and presence of mind in fighting off the respondent, she almost certainly would have been killed. Nevertheless, he regarded the victim as part of a class of vulnerable persons and that was also a matter of aggravation. 34 When taking account of the Form 1 offence involving cruelty to the family dog, his Honour considered that the criminality involved was by no means insignificant in that it was a gratuitously cruel act motivated by sheer spite. 35 Another matter which his Honour took into account was that the respondent was not entitled to any leniency because of his prior good character in that he did have a criminal record of some significance. Because of the various self-serving histories which he had given to persons interviewing him after the offence, his Honour concluded that the respondent had little remorse for what he had done. His Honour was not prepared to infer any remorse from the respondent's plea of guilty. 36 His Honour thought that the respondent required a long period under supervision on parole once he was released to attempt to address some of the issues identified in the pre-sentence reports. In that regard his Honour was prepared to find special circumstances so as to vary the statutory ratio between the non-parole period and the overall sentence. 37 Having taken into account those factors, his Honour concluded: "Having regard to all the factors I have mentioned, in my view on an instinctive synthesis assessment basis, the offender's non-parole period for the wounding with intent to murder should not be less than 6 years. I have factored into this a very significant discount for the offender's plea of guilty. There is also the question of what sentence the offender should receive for the offence of malicious destruction of the victim's parents' house or the upper portion of it by fire. The photographs of the damage show that the damage was extensive. Why did the offender commit this offence? In my view he committed it for the same reason he sought to murder Ms Blake and for the same reason he stabbed the family dog. That is, out of sheer spite. As he told Dr Allnutt he wanted to punish Ms Blake's parents as well. This offence too was most serious, it too calls for a custodial sentence. This was an early plea of guilty and should attract a discount of 25%. But for the plea, in my view the sentence in terms of a fixed term or non-parole period should have been at least 2 years imprisonment. But for reasons of totality I will make it partly concurrent for the wounding with intent to murder but only partly. As the Crown has submitted it was committed hours after attacking Ms Blake with a knife. The people it was intended to hurt were Ms Blake's parents in particular, no doubt in addition to Ms Blake as well. In my view the offender should serve some additional time in gaol for this offence. In my view the additional time served should be 6 months."

Appeal 38 The only ground of appeal relied upon by the Crown is that the sentences passed by his Honour were manifestly inadequate. The thrust of the submissions by the Crown was that although his Honour referred to relevant principles, he did not in reality apply them. In essence his Honour undervalued the degree of criminality. 39 By way of specific argument, the Crown submitted that his Honour failed to pay due regard to the standard non-parole period applicable to the attempted murder offence and in particular failed to provide adequate reasons with respect to his decision to depart from the standard non-parole period as required by s54B(4) of the Crimes (Sentencing Procedure) Act 1999. 40 The Crown accepted that his Honour was not bound to impose the standard non-parole period because of the plea of guilty. The Crown also accepted that R v Way (2004) 60 NSWLR 168 allowed a broad range of factors to be considered by a sentencing judge when determining whether an offence fell within the mid-range of seriousness for offences of that kind. The complaint of the Crown was that except for the plea of guilty when one had regard to that broad range of factors, all of them were adverse to the respondent and all of them pointed towards a high level of objective seriousness well above the mid-range. 41 The submission proceeded to the effect that although his Honour purported to take into account a broad range of factors and to engage in an instinctive synthesis assessment, he had not in fact done so and had not adequately explained his reasons for departing from the important benchmark constituted by the standard non-parole period. 42 The Crown likened his Honour's approach to that criticised in R v Mills [2005] NSWCCA 175 at [49]: "49 I do not consider that this was a sufficient compliance with the requirements of s 54B(4). A mere statement of the conclusion, accompanied by a confirmation that the submissions of counsel, and the circumstances of the case, have been taken into account, does not constitute an identification of the reasons which are expected in a case which falls within the umbrella of the Division. As is also the case in relation to s 21A of the Act, more is expected than mere lip service to the legislation. What is required is a clear identification of the relevant factors, the weight given to them, and their role in the structuring of the sentencing order: see R v Walker [2005] NSWCCA 109." 43 The Crown submitted that since all the factors referred to by his Honour were adverse to the respondent, in the absence of some explanation by his Honour as to how he took those factors into account, error was revealed by his Honour's ultimate conclusion that he ought depart from the standard non-parole period in a very significant way. 44 As both Markarian v The Queen (2005) 79 ALJR 1048 and Way pointed out, the discretion allowed to a sentencing judge at first instance is extremely wide: "[25] As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well known passage in the joint reasons Dixon Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy". [26] Any consideration of alleged error of principle must now begin in any applicable legislation governing sentencing either generally or in the particular case … [27] Express legislative provisions apart, neither principle nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies." ( Markarian [25]-[27]) 45 In line with that approach it is not open to the Crown on the facts of this matter to successfully challenge his Honour's preliminary assessment that the respondent's criminality in respect of indictment 1 fell within the mid range of offences of that kind. This was very much a discretionary matter for the sentencing judge and error has not been identified in his approach thereto. 46 The question of reasons and in particular adequate reasons as required by s54B(4) is another matter. This is a specific requirement of statute. As Markarian identified where the legislature has intervened in sentencing matters "any consideration of alleged error of principle must now begin in any applicable legislation …". For the reasons specified by Wood CJ at CL in Mills his Honour's rolled up summary of factors (see [37] hereof) does not comply with the requirements of s54B. This is particularly so when as the Crown pointed out in its submissions, all of the factors except for the plea of guilty were adverse to the respondent. What his Honour was required to do was to clearly identify the relevant factors, the weight which he gave to them and their role in the structuring of the sentence. 47 The second argument put by the Crown related to the offence in indictment 2, ie maliciously destroy property by means of fire. The Crown submitted that even allowing for the plea of guilty at the earliest time, a sentence of 18 months for that offence did not adequately have regard to its objective criminality. In addition the Crown submitted that the small amount of accumulation (6 months) added to the overall sentence offended the principle of totality. 48 The specific submissions made by the Crown were that the objective seriousness and level of criminality was high because:

(i) The damage caused was very extensive; (ii) The motive was sheer spite. (iii) Additional victims were involved. (iv) Some five and a half hours had elapsed between the attack on the victim so that the offence should not be regarded as one committed in the heat of passion, but with the considered intention of causing as much harm to the victim's family as he could before his inevitable apprehension. (v) The same adverse subjective factors found by his Honour in respect of indictment 1, applied equally to this offence. 49 His Honour's rather abbreviated analysis of this offence (see [37] hereof) does not indicate, in my opinion, an adequate assessment of the objective seriousness of the offence. Similarly, because of the high level of criminality involved an additional 6 months by way of accumulation of the sentence imposed in respect of indictment 1, does appear to offend the principle of totality.

Conclusion 50 This is a Crown appeal. The relevant principles were summarised in R v Wall [2002] NSWCCA 42 at [70]: "(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at [58] and [109]. (b) Appeals by the Crown should generally be rare; Malvarso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the court to interfere; R v Baker [2000] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons" per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32 at paras 61-62 and Wong and Leung v The Queen at para 109. (d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561; R v Papazis (1991) 51 A Crim R 242 at 247 and Wong and Leung v The Queen at para 110. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62." 51 Being mindful of those principles, it seems to me that despite the inadequacy of his Honour's reasons when complying with s 54B(4) of the Crimes (Sentencing Procedure) Act 1999, the sentence passed in respect of indictment 1 although lenient given the adverse factors found his Honour and given that the plea of guilty was not entered at the earliest opportunity, was still within the range of sentences open to his Honour for offences of this kind. Accordingly, I would not interfere with his Honour's sentence in respect of indictment 1. 52 The situation is otherwise for the sentence in respect of indictment 2. Making full allowance for all of the matters referred to in Wall, I remain of the view that the sentence was so lenient that the Court ought to intervene and re-sentence the respondent, notwithstanding the residual discretion that the Court has. Not only is the sentence itself below the range for an offence of this kind, but the extent of its accumulation with the sentence imposed in respect of indictment 1, produces an overall sentence which does not adequately reflect the criminality involved in both offences and certainly does not adequately acknowledge the principles of general and particular deterrence. 53 The sentence which I propose in respect of the offence in indictment 2 is a sentence of imprisonment with a non-parole period of 2 years with a balance of term of 2 years. In order to give effect to an appropriate level of accumulation, it will be necessary to alter the commencement and finishing date of the sentence imposed in respect of indictment 1. The effect of the sentences which I propose is to increase the total non-parole period of imprisonment which the respondent has to serve by 12 months and to increase the balance of term by 12 months, ie a non-parole period of 7 years and 6 months with a head sentence of 10 years. 54 The orders which I propose are: (1) Appeal allowed. (2) The sentences passed by Judge Hosking SC on 16 December 2005 are quashed. (3) In lieu thereof, the respondent is sentenced as follows: (i) In respect of indictment 1 - for the offence of wound with intent to murder contrary to s27 of the Crimes Act 1900 - the respondent is sentenced to imprisonment for a non-parole period of 6 years to commence on 18 March 2003 and to expire on 17 March 2009 with a balance of term of 2 years and 6 months to expire on 17 September 2011. (ii) In respect of indictment 2 - for the offence of maliciously destroy property by fire contrary to s195(b) Crimes Act 1900 - the respondent is sentenced to imprisonment for a non-parole period of 2 years to commence on 18 September 2008 and to expire on 17 September 2010 with a balance of term of 2 years to expire on 17 September 2012. **********

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R v Mills [2005] NSWCCA 175 at [49] CASES CITED: R v Walker [2005] NSWCCA 109 R v Way (2004) 60 NSWLR 168

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