Regina v Josef Mioduszewski

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0744 FILE NUMBER(S) : LOWER COURT Blanch CJDC JUDICIAL OFFICER :

• 10 - IN THE COURT OF CRIMINAL APPEAL 60520/03

GROVE J DUNFORD J HOWIE J

FRIDAY, 28 MAY 2004 REGINA v JOSEF MIODUSZEWSKI Judgment 1 GROVE J: I agree with Dunford J. 2 DUNFORD J: This is an application for leave to appeal against the sentence imposed on the applicant by his Honour Blanch CJ DC in the District Court at Sydney on 12 November 2001 following the applicant's plea of guilty to one count of malicious wounding with intent to do grievous bodily harm contrary to s 33 of the Crimes Act 1900, an offence for which the maximum penalty is imprisonment for 25 years. The victim was the wife of the applicant. The applicant was sentenced to imprisonment for 6 years to date from 14 January 2001, and having found special circumstances, his Honour fixed a non-parole period of 4 years. 3 In sentencing the applicant, his Honour also took into account, in accordance with the Criminal Procedure Act 1999, an additional charge of possess unauthorised firearm. 4 The Notice of Application for Leave to Appeal was not filed until 11 December 2003, and was therefore out of time. The Crown takes no point on the late filing of the Notice and the applicant's explanation for the delay is that he does not speak English and was previously unaware of his right to appeal. I would therefore extend the time for filing the Notice. 5 The applicant and his wife were married in Poland in 1982 and they migrated to Australia in 1983. They have a son aged some 18 years but the applicant and his wife separated in about 1992/1993. Notwithstanding that separation, the applicant continued his stay periodically at his wife's home address at Maroubra. She allowed this to occur so as to maintain a harmonious relationship for the benefit of their son. 6 On the evening of 3 January 2001, the applicant, his wife and her mother dined at that address and the applicant drove his wife's mother home. He came back at about 10 o'clock and he went to bed while his wife did some business work and washing up. 7 At about 11pm the applicant went to the study of the house where his wife was, there was some argument, and the applicant said, "If you don't want me to stay here, I'll shoot myself". His wife tried to pass that off as a joke and said, "Well why don't you harm me and not yourself?" The applicant then pushed a small silver coloured handgun about 10 centimetres in length into the left side of his wife's temple. His wife recognised this handgun as a gun the applicant had used when he worked as a magician both in Poland and in Australia. 8 The applicant pulled the trigger a number of times but the gun did not go off, and the applicant said, " I don't know why it doesn't work, but sooner or later it will fire". His wife struggled with the applicant as he pulled the trigger of the gun, and eventually it did fire. A bullet went through the centre of his wife's forehead causing it to bleed profusely, and the applicant then said, "Yes, I shot you", but his wife continued to struggle. She broke free and ran to the front door and opened it. 9 The applicant caught up with her and picked up an eighty centimetre long wooden lamp stand and struck her about the head area several times. She managed to get out of the door and she sought help in the street. 10 The applicant dropped the handgun in the front yard of the house and drove off. His wife was treated at the Prince of Wales Hospital for a bullet wound and other lacerations to her head area, and a bullet was removed from the top inner skull area of her head. 11 The police went to the applicant's address and found him walking down the driveway covered in blood from what appeared to be self-inflicted wounds to his throat and forearms, and he was taken to the Prince of Wales Hospital at Randwick. He had also obviously taken an overdose of prescription drugs and the evidence available to the police indicated that he had used razor blades to cause injury to his arms and throat. He underwent medical treatment for a drug overdose and the wounds while he was in the hospital. At the time he was in the hospital, Dr Sinclair described him as being mentally unwell with psychotic features. 12 In sentencing the applicant, his Honour remarked that this was a serious attack upon his wife, that it was the type of offence which of necessity would cause significant problems for the victim as was borne out by the Victim Impact Statement and she would suffer significant amount of distress and pain as a result of it. His Honour noted that the applicant was 69 years of age at the time of the offence and 70 at the time of sentencing, that he was otherwise a highly respected member of the community with no previous convictions of any kind, that he had pleaded guilty on the first day of the trial, and was thus entitled to discount not only on account of utilitarian value of the plea, but also because the plea constituted an expression of remorse. 13 He noted a report from a psychiatrist, Dr Carne to the effect that the applicant was suffering from a level of distress which could be categorised as a mental disorder, and he concluded that the reason for the commission of the offence was the emotional distress that the applicant was under and the fact that something on this particular night caused him to lose control. 14 He also noted that the applicant was suffering from significant ill health and that his heart condition had deteriorated whilst in gaol on remand and had necessitated coronary artery bypass graft surgery. He also noted that the Long Bay Hospital report noted other medical conditions which indicated that the applicant was not in robust health and that accordingly, any time he spent in gaol would be more difficult for him than for an "ordinary prisoner". In considering the non-parole period, his Honour said that because of the applicant's age, his ill-health and because there appeared to be a significant psychological fragility, there was a basis for disturbing the statutory ratio and finding special circumstances. 15 His Honour continued: "I do not believe in the circumstances of this case, that should be a significant disturbance of the ratio, but it is apparent that the prisoner's psychological state has been very fragile over a significant period of time and that that is really what gave rise to the commission of the offence, and it is clear on that basis, that when he is released from prison, he will need some significant assistance to re-adjust into the community". 16 Two grounds of appeal were argued. The first was that the sentencing judge failed sufficiently to vary the ratio between the non-parole period and the head sentence. 17 In support of this ground, it was submitted that his Honour erred in holding that notwithstanding his finding that "special circumstances" exercised, there should not be " a significant disturbance" in the ratio between the non-parole period and the head sentence specified in the Crimes (Sentencing Procedure) Act 1999 s 44, and that this error had come about by approaching the question of special circumstances by reference only to whether the applicant would on his release require some significant assistance to re-adjust into the community. 18 It was also submitted that whilst considerations of general deterrence justified a severe head sentence, the age, prior good character, psychological fragility and poor health of the applicant supported a further reduction in the non-parole period. Bugmy v The Queen (1990) 169 CLR 525 was relied on to support the proposition that, although the same considerations apply to fixing the non-parole period as apply to fixing the head sentence, they do not carry the same weight and while general deterrence is particularly relevant to fixing the head sentence, personal matters favourable to the offender, including prospects of rehabilitation, assume greater relevance in fixing the non-parole period. 19 A similar submission was expressly rejected by this Court in R v Simpson [2001] NSWCCA 534, 53 NSWLR 704 at [63]-[64] where Spigelman CJ pointed out that the non-parole period must itself appropriately reflect the criminality involved in the offence and noted that considerations of general deterrence are at least equally significant in both decisions which are, in any event, interrelated. See also R v M A [2004] NSWCCA 92 at [33]. Moreover as also noted by the Chief Justice in Simpson at [67] that where a circumstance is taken into account by way of reduction of head sentence, the application of the statutory proportion will have the result that the circumstance also reduces the non-parole period, and it appears from his Remarks on Sentence that his Honour took the applicant's age, ill health and mental state into account in fixing the head sentence. 20 I reject the submission that his Honour approached the question of special circumstances by reference only to whether the applicant would on his release require some significant assistance to re-adjust into the community. In his Remarks on Sentence at p 6, his Honour expressly based his finding of special circumstances on the applicant's age, ill health and a significant degree of psychological fragility. The passage quoted above, referring to the need for significant assistance to re-adjust, was in its context only referring to the effect of the finding of special circumstances, not the reason for such finding. 21 Having regard to the fact that it is now established that a finding of "special circumstances" can encompass all relevant factors: Simpson at [73], I cannot see why such a finding should necessarily require in every case a "significant disturbance" in the statutory proportion; but in any event, although the reduction in the present case may not appear substantial when expressed as "only 6 months", it in fact constituted a reduction from 75% of the head sentence to 66% thereof, which in my opinion is a substantial disturbance with the statutory proportion. I have difficulty in seeing how the non-parole period could be any less in the circumstances of this case where the applicant fired a pistol at the head of his estranged wife until it discharged, and then, without showing any remorse or rendering any assistance, belted her a number of times with a lamp stand causing the injuries detailed above. 22 The second ground of appeal is that new evidence establishes that the applicant's medical condition is more serious than appreciated at the date of sentencing. 23 There was before the learned sentencing judge, apart from the psychiatric report from Dr Carne, a report from Dr Varga of Long Bay Hospital dated 20 March 2001 to which the applicant was admitted on 19 January 2001 following his arrest and a period of observation in Prince of Wales Hospital following his suicide attempt. The report detailed the applicant's past medical history as including renal calculi, polyarthritis, ischaemic heart disease and crush fractures of the upper lumbar vertebrae suffered in a motor vehicle accident a few years previously. The report noted that on 23 January 2001, he developed acute chest pain due to acute coronary insufficiency which resulted in him undergoing coronary artery bypass graft surgery at Prince of Wales Hospital. From this he made a good recovery and he was returned to Long Bay Hospital on 12 February 2001. 24 On the appeal, Senior Counsel for the applicant sought to read an affidavit by his instructing solicitor annexing a copy of a report by Dr M Geoffrey Miller dated 30 November 2003. The Crown Prosecutor objected to admission of this report but in case it was admitted sought to read the affidavit of her instructing solicitor annexing a report from Dr Jill Roberts of Corrections Health Service, with a number of test results annexed thereto. 25 The Court provisionally admitted both affidavits on the basis that it would consider their contents to determine whether they should be admitted as fresh evidence, or only in the event that the appeal was successful on other grounds and the Court came to re-sentence the applicant. 26 Dr Miller obtained a detailed history from the applicant which disclosed that his heart disease had been present for many years and he had been advised to have a coronary bypass on 2 previous occasions but had declined. He also noted that the applicant had suffered from gastro-oesophageal disease for many years, that osteoporosis was diagnosed on 15 January 2003 and mild hypertension on 2 June 2003 and also mild Renal Artery Stenosis on 29 April 2003. He noted that his heart disease prevents him walking more than short distances. 27 He agreed that the report from Dr Varga which was before the sentencing judge, correctly set out the applicant's condition except that it did not go into detail of the applicant's reduced effort tolerance to less than 100 metres walking on the flat, that he had been advised on two previous occasions to have coronary bypass surgery, nor did it refer to his bladder problems with frequency and nocturia since the early 1900's. 28 He expressed the opinion (although he had not seen the applicant previously) that whilst in prison his cardiac condition had significantly deteriorated, he had developed renal artery stenosis and difficulty controlling his hypertension, an overactive thyroid condition and peripheral artery disease. Also his rheumatoid arthritis had deteriorated. 29 Dr Roberts' report set out the medical facilities provided for prisoners in Correctional Centres and detailed the progress of the applicant during his incarceration, including the results of a number of tests which had been carried out during that period. Her concluding remarks were as follows: "This patient certainly has significant health problems that will require monitoring, medication and specialist review. His main health problems that have had recent deterioration are his rheumatoid arthritis and thyroid problems, which I feel are being appropriately managed by the relevant specialist clinics. His cardiac condition has been reasonably stable. Clinic Staff advise me that they have observed gradual deterioration in his mobility with the need to stop and rest after walking approximately 50 metres. It is unlikely that Mr Mioduszewski's condition with respect to his cardiac disease will improve past the benefits already attained through his bypass graft operation and this operation does not eliminate the possibility of further cardiac problems in the future. He will require continued support by both general and specialist medical practitioners. Additionally, he will continue to require multiple medications to maintain medical stability". 30 Generally, evidence of events subsequent to the passing of sentence are not admissible in appeals against the sentence unless the Court upholds the appeal and comes to re-sentence. As Loveday J pointed out in R v Ehrenburg (unrep - CCA - 14 December 1990) at p 5 this is because the Court may only quash a sentence and pass a fresh sentence in substitution therefore if it has been made to appear that the sentence which had been passed was not warranted in law and should not have been passed: Criminal Appeal Act 1912, s 6(3). It is the responsibility of the executive government to provide for the care and treatment of prisoners: R v Vachalec [1981] 1 NSWLR 351 at 353-4 and the Court will not review sentences in the light of the hardship suffered in prison by prisoners on account of their medical condition: ibid. See also R v Jones (1993) 70 A Crim R 449. 31 There are exceptions to this rule include cases where subsequent events make known or explain something that was either unknown or not fully appreciated at the time of sentencing: R v Bradley [2004] NSWCCA 88, R v Spagnolo (2000) 114 A Crim R 98, or where the circumstances demonstrate that the sentence is being served in conditions much more onerous than, or sufficiently different in nature from, those which were expected: R v Jenkins (unrep - CCA - 14 July 1993). 32 In R v Keir [2004] NSWCCA 106, the sentencing judge had heard evidence of the facilities available for accommodation for the aged and infirm applicant within the prison system, but the evidence submitted on the appeal disclosed that he had been incarcerated in very different and more onerous conditions than had been described. The Court admitted the evidence because it disclosed that the sentence being served was materially different to the sentence which the judge envisaged when passing it, but described the circumstances at [81] as "wholly exceptional", and intervened "in order to ensure that the sentencing regime contemplated by the trial judge was not thwarted and to ensure that there was no injustice as a result". 33 Another case where the prisoner did not receive the medical assessment and treatment which was envisaged, and where, although the judge appreciated that the applicant's time in gaol would be had, he could not and did not appreciate how hard it would be was R v B E G [2001] NSWCCA 341. As Smart AJ said at [26]: "The effect of the post sentence events is to underline what was not fully appreciated at the time of sentencing, namely that it would be difficult if not practically impossible, to manage the applicant's condition adequately in gaol." 34 The effect of the authorities is that this Court can only intervene on account of subsequent events where the basis on which the sentence is passed is completely undermined by the subsequent events. 35 In the present case, the matters disclosed in Dr Miller's report, with the exception of the bladder problems, are essentially the deterioration of conditions which were present and disclosed to the sentencing judge, and which his Honour anticipated. He specifically noted that the applicant had been suffering significant ill health, that his heart problems became significant after he was removed to gaol and that he had needed a coronary artery bypass graft surgery. 36 He also noted there were a number of other medical problems all of which indicated that the prisoner was in bad health and that any time he spend in gaol would be more difficult for him than for an ordinary prisoner, as indeed would be the case in any event for a 70 year old man, who had never been to prison before. His Honour made allowance for these matters in terms of the sentence he imposed, and the applicant's ill health was one of the specific matters that he referred to in finding "special circumstance". 37 Dr Roberts states at the end of her report that there has been no significant deterioration in relation to the applicant's heart condition except his reduced capacity for walking without fatigue, and this has been confirmed by a number of tests. She notes that his main health problems that have recently deteriorated have been his rheumatoid arthritis and thyroid problems, in respect of which he is being treated within the gaol system.

38 In my opinion, the material disclosed in the affidavits discloses no more than the natural deterioration of a 70 year old man with heart disease, rheumatoid arthritis and other problems, all of which his Honour took into account in imposing the sentence he did, but they do not disclose the type of exceptional circumstance referred to in Jenkins or Keir, which would justify this Court receiving evidence of matters subsequent to the imposition of the sentence. 39 For these reasons, I would reject the affidavits of David Philip Giddy and Adelle Hudson, I would extend the time for filing the Application for Leave to Appeal and grant leave for appeal, but dismiss the appeal. 40 HOWIE J: I agree with Dunford J. I would simply by way of emphasis refer to the following passage from R v Ashton (2002) 137 A Crim R 73 as to the exceptional nature of the Court's power to receive evidence of post-sentencing events. 10. "The basis of the application made to this Court is what is said to be fresh evidence relating to the applicant's psychiatric state at the time of sentence. In this regard reliance is placed upon the decisions of this Court in Bailey (1988) 35 A Crim R 458 and R v Ehrenberg (NSWCCA, unreported, 14 December 1990). There is a firmly established principle that this Court will allow evidence to be introduced of events subsequent to the imposition of sentence concerning the physical or mental condition of the applicant where the existence or effect of that condition was unknown or not fully appreciated at the time sentence was passed. In Bailey the material related to the applicant having been diagnosed with the AIDS virus, a fact that was unknown at the date of sentence. In Ehrenberg it was the birth of a deformed child to the applicant as a result of complications of her pregnancy. In both cases the fresh material indicated that prison would impact more harshly upon the applicant than was thought to be the case when the applicant was sentenced.

11. However, this Court must be careful to maintain a principled approach in dealing with appeals before it. The Court should be scrupulous to ensure that there is a proper basis for receiving evidence of events that occurred after sentence where there is no error established in the sentence imposed. In Ehrenberg , the Court emphasised the special and unusual circumstances that would permit such evidence to be received and acted upon in order to reduce an otherwise appropriate sentence. Loveday J, with whom Gleeson CJ agreed, stated: It must be stressed, however, this is a most unusual case. It will be unfortunate if the special facts and circumstances of this case, which I regard as borderline, were to be regarded as a general precedent for the review of a sentence by this court in the light of subsequent events. Such a course is, as it has always been, a matter for the executive government (see R v Munday (1981) 2 NSWLR 177). Samuels JA, while also agreeing with Justice Loveday, cautioned against this Court erring in principle as a result of sympathy for the applicant."

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