Regina v Zamagias

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60700/01 HODGSON JA LEVINE J HOWIE J FRIDAY 15 FEBRUARY 2002 R v Billy ZAMAGIAS

JUDGMENT 1 HODGSON JA: I agree with Howie J. 2 LEVINE J: I agree with Howie J. 3 HOWIE J: The respondent was convicted after trial by jury of one count of malicious wounding with intent to cause grievous bodily harm contrary to s 33 of the Crimes Act. He was sentenced by Judge Karpin to imprisonment for 2 years that sentence being suspended upon the respondent entering into a bond to be of good behaviour in accordance with s 12 of the Crimes (Sentencing Procedure) Act. The maximum penalty prescribed for the offence was 25 years imprisonment. The Crown has appealed against what is asserted to be the inadequacy of the sentence imposed. 4 The wounding occurred during a fight between the respondent and the victim at an hotel. The Crown's allegation was that the respondent used a piece of broken glass to inflict a severe gash to the neck of the victim. As a result the victim underwent emergency surgery and at the time of trial suffered permanent injuries being a substantial scar, an injury to his saliva gland and loss of sensory perception around one ear. 5 In the course of her sentencing remarks her Honour stated the facts as follows: The offence arose from an on-going dispute between the prisoner's now wife and her aunt, both of whom are about the same age. The victim was the boyfriend of the aunt at that time. Prior to the incident which gave rise to this conviction, there had been an earlier occasion on which following confrontation between the two women there had been a confrontation between the prisoner and the victim but not one of consequence. On 17 July 1999 the prisoner, and his then girlfriend and now wife, were present at the Albion Hotel, as were the victim and his girlfriend. In the early hours of the morning a fight developed between the two women which involved punches being thrown by both of them. The victim moved towards the fighting women with apparently the intention of removing his girlfriend to safety. Before reaching them he heard the sound of breaking glass, he saw the prisoner walking toward him swinging his arm in a punching action. The victim was struck on the right side of the face, he immediately felt a throbbing, he fell to the ground with the prisoner. After about 30 seconds the prisoner was pulled off the victim who then put his hand to his neck and saw that it came away covered with blood. The victim was taken to hospital where he was treated for a fifteen centimetre long laceration to the right side of his neck. The wound was continuous and very deep extending to the jaw bone. Substantial damage had been caused, including the complete division of the muscle in the neck. The medical practitioner who treated the victim's wounds gave evidence to the effect that the most likely cause of this wound was part of a broken glass or bottle being drawn across the length of the wound. He believed that it would have required significant force to cause the level of injury sustained… 6 The issue in the trial was whether the respondent had caused the injury or whether it may have occurred when, during the scuffle with the respondent, the victim fell on broken glass on the floor. Judge Karpin found that the jury must have been satisfied that the victim's version of events was true and that the prisoner must have been armed with a weapon of some kind fitting the description that which could have caused the injury sustained. 7 Her Honour made the following further comments about the nature of the offence committed by the respondent: The offence occurred in the context of ill feeling leading to a physical confrontation between the prisoner's wife and her aunt. No doubt feelings were running high. The prisoner and the victim had confronted one another on a prior occasion precipitated by the ongoing argument between these two women. The assault occurred in the heat of the moment and without apparent premeditation excepting that the prisoner clearly armed himself with broken glass or something similar. The assault was limited to one violent blow. It is fortunate for both the prisoner and his victim that the blow was not a little more forceful which could really have caused a life-threatening injury. 8 The Court has not been supplied with the transcript of the trial but the parties have supplemented the facts as recorded by her Honour in their written submissions. Those additional facts indicate that, as the altercation between the two women commenced, the respondent moved toward them for the purpose, so he told the police, of removing his wife to safety. The victim placed himself between the women and the respondent. Shortly after the two men commenced to wrestle, the sound of breaking glass was heard and the respondent swung his right hand toward the victim. The respondent's right hand connected with the right side of the victim's face. The two men wrestled on the floor for a short time before security guards intervened. 9 The substantial argument relied upon by the Crown in its attack upon the sentence imposed is that it fails to reflect the objective circumstances of the offence, bearing in mind the nature of the crime of which the respondent was convicted by the jury. Before considering the submission in light of the subjective circumstances of the respondent, it is apposite once more to quote a passage from this Court's judgement in Dodd (1991) 57 A Crim R 349 at 354 to which reference is often made when this Court has been called upon to consider the exercise of the sentencing discretion under appeal by the Crown: As Jordan CJ pointed out in Geddes at 556 , making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary: see, for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64; 36 A Crim R 468. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case: Rushby [1977] 1 NSWLR 594. 10 Before referring to the subjective circumstances of the respondent it is important, in light of the passage quoted above, to note the seriousness of the offence for which the respondent had been convicted and the implications of the jury's finding that he had inflicted a serious wound upon the victim with an intention to cause grievous bodily harm. 11 The offence carried the highest maximum penalty prescribed by the legislature short of life imprisonment. Although it could not be seriously suggested that this particular instance of the offence required anything near the maximum sentence provided, the sentencing court must bear in mind that the maximum penalty is a reflection of the seriousness with which the public through the legislature considers the type of criminal conduct with which it is concerned: H (1980) 3 A Crim R 53 at 65. It is through the maximum penalty that the legislature manifests its policy and it is the initial consideration when determining the appropriate sentence: Oliver (1980) 7 A Crim R 174 at 177. 12 On the face of it a sentence of two years when considered against a maximum penalty of 25 years indicates that the offence committed was very much at the lowest rung of an offence coming within s 33. 13 The jury's finding that the respondent acted with the intention of inflicting grievous bodily harm reduces, although it does not eliminate, the effect of some of the matters that might reduce the objective gravity of the offence had the respondent been sentenced for an offence of malicious wounding simpliciter. For example, it does not seem to me to be a matter of very great mitigation that the wound was inflicted by a single blow when that blow was delivered with the particular intention found by the jury. Further, the fact that the wound was caused by a sharp instrument being drawn across the victim's neck with significant force indicates that the type of harm intended was very grave indeed. It should also be noted that the respondent did not cease his attack voluntarily but was pulled away from the victim by others. 14 So too the importance of the fact that the offence occurred without significant premeditation is diminished, in my view, by the intention with which the wound was inflicted. The respondent deliberately armed himself with broken glass either before or during his attack upon the victim. He was prepared to use a weapon capable of inflicting life-threatening injuries with the intention of inflicting really serious injury on a person who was unarmed and virtually unable to defend himself from such an attack. 15 The respondent had shown no remorse or contrition, defiantly maintaining his innocence during the sentencing proceedings. Although he was not to be punished more severely because he continued to deny his guilt, he could not expect or receive any of the considerations that would have followed a plea of guilty and an acceptance of responsibility for what he had done. Thus he was to receive the full measure of the sentence that was appropriate to his crime and his subjective circumstances. 16 Judge Karpin told the respondent during the sentencing hearing that it would be a "most remarkable occurrence" if he were able to remain out of prison. She explained that the attitude of the courts and the legislature was that people who inflicted injuries of the nature of those suffered by the victim must expect to go to prison. Her Honour was, with respect, clearly correct in her assessment of the situation facing the respondent when he appeared before her. During the course of her remarks on sentence, her Honour stated that the objective gravity of the offence called for a full time custodial sentence. She also said that it was an offence of considerable violence which, on its face, could only be adequately punished by a term of full time imprisonment. Again, with respect, her Honour was accurate in her assessment of the sentence required. The question then is, why did her Honour not impose such a sentence? 17 The respondent was unrepresented when he came before the court for sentence. This was a circumstance that caused Judge Karpin some concern because of the seriousness of the offence for which he was to be punished. In the course of her remarks, her Honour said that it was impossible not to feel that, if the respondent had been represented, some material may have been elicited which would have assisted him. But it is difficult to see how the respondent was prejudiced by his lack of representation or what more could have been placed before her Honour. The respondent presented a substantial case in mitigation including a number of references from persons in the community. A very favourable pre-sentence report was before the court. Because of his denial of responsibility for the wounding, little could have been said by him or on his behalf to mitigate the circumstances of the offence, other than that which was apparent from the objective facts. However, the respondent did tell her Honour that he was astounded by the horrific injuries suffered by the victim although he did not inflict them. 18 The material before her Honour revealed the following subjective circumstances. The respondent was aged 26 years at the time of sentence and had no previous criminal record of any kind. He was married and lived with his wife and her three young children for whom he cared as if they were his own. Unfortunately, because of the disapproval of the marriage by his parents, the respondent was alienated from his own parents. However, he was committed to his wife and family. The respondent has always been in stable paid employment. He held trade qualifications but was furthering his studies. He was actively involved in voluntary service in the community. He had been commended by the NSW Fire Service for his actions in entering a burning building to rescue an elderly occupant. The respondent was held in high regard in the community and considered to be hardworking, reliable and trustworthy. The probation officer's inquiries revealed him to be a responsible member of the community who was aware of the necessity of complying with the law. 19 In light of this subjective material her Hour stated: The prisoner is entitled to call in aid his previous excellent character, his demonstration of commitment to family and community and even the sustained act of bravery some years ago which saved the life of another. Whatever led him to what he actually did, I have little doubt that he has been effectively deterred from similar conduct in the future, none the less he must be punished for his wrongdoing and a sentence must be imposed which will have a tendency to deter him and others in the community from committing similar acts of violence. Her Honour concluded that the offence was "one breach in an otherwise exemplary life". She stated that the fact that the offence was out of character when taken together with other subjective material called for a degree of leniency. 20 Before considering whether the sentence imposed was erroneous and, if so, how the Court should respond to that finding, it is important to recognise and reaffirm the limitations placed upon this Court by the principles that govern the determination of a Crown appeal against sentence and the exercise of the discretion that resides in this Court. The Court must have regard to the width of the discretionary judgment of the sentencing court and the limitations upon the power to review that judgment. The Court can interfere only if it is necessary to correct error and then only in an appropriate case, bearing in mind that a Crown appeal should be rarely successful where no particular error can be identified. 21 As I have indicated earlier the Crown's basic submission is that the sentence does not reflect the objective seriousness of the offence and hence is outside the range of sentences that it was open to her Honour to impose within the exercise of her discretion. The Crown contends that the sentence imposed was manifestly inadequate even without regard to the fact that the sentence was suspended. In particular the Crown asserts that her Honour did not approach the determination of a suspended sentence in the appropriate manner. 22 Taking the last matter first, it seems beneficial to set out my understanding of how a court should approach the imposition of a sentence of imprisonment under the provisions of the Crimes (Sentencing Procedure) Act. 23 It is clear that, when sentencing an offender to a term of imprisonment under that Act, a court is required to undertake a number of steps before finally determining the appropriate sentence. Each step requires the court to consider the objective gravity of the offence balanced against the subjective circumstances of the offender, but it is the first of those considerations that will principally determine which of the available sentencing alternatives the court should adopt. This is because at the end of the day the sentence must be commensurate with the seriousness of the crime: R v Geddes (1936) 36 SR(NSW) 554; R v Rushby [1977] 1 NSWLR 594. 24 There is a preliminary question to be addressed and, depending upon the answer to that question, two further steps may have to be undertaken before the ultimate sentence is imposed. 25 The preliminary question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment. Section 5 of the Act prohibits a court from imposing a sentence of imprisonment unless the court is satisfied, having considered all possible alternatives, that no other penalty other than imprisonment is appropriate. It should be noted that at this stage in the process the only consideration is whether a sentence of imprisonment should be imposed and not whether that sentence should be suspended. Notwithstanding that s 12, which provides the power to suspend a sentence, is contained in Division 3 of Part 2 of the Act under the general heading "Non-custodial Alternatives", a suspended sentence is not an alternative to which s 5 relates: JCE (2000) 120 A Crim R 18 at [15]. That is because a sentence cannot be suspended until it has been imposed: it is the execution of the sentence that is suspended not its imposition. 26 Having determined that there is no other penalty appropriate other than a sentence of imprisonment, the court is next to determine what the term of that sentence should be; R v Foster [2001] NSWCCA 215 at [30]. This has been regarded as the first step of a two-step approach in the imposition of a sentence of imprisonment, see R v Blackman and Walters [2001] NSWCCA 121 at [50] to [52]; JCE at [17]. The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed, see s 6 (periodic detention order), s 7 (home detention order) and s 12. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. For example it cannot be increased because it is to be served by way of periodic detention: R v Wegener [1999] NSWCCA 405, or by home detention: R v Jurisic (1998) 45 NSWLR 209 at 249. Nor can the term be reduced because an otherwise appropriate alternative is unavailable: R v T (NSWCCA, 19 June 1995). 27 The fact that a term of a sentence is to be determined without regard to the fact that it is to be suspended is consistent with the approach adopted in other jurisdictions where that sentencing alternative has been available for many years, see R v Percy [1975] Tas SR 62 at 73; Stevens v Giersh (1976) 14 SASR 81 at 82; Dinsdale v The Queen (2000) 202 CLR 321 at 346 per Kirby J. 28 Once the term of the sentence has been determined the court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined subject to the restrictions or pre-conditions imposed by the legislature on a particular sentencing alternative, see for example s 77 of the Act with respect to home detention. But the appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment: R v Jurisic at 250B 29 So in the second step, where, for example, the term chosen is one of 18 months or less the alternatives generally available would be, in escalating order of severity: an order suspending the sentence; a home detention order; a periodic detention order; full-time custody: R v LRS [2001] NSWCCA 338 per Sully J at [65]. Of course the court has a discretion as to which of the available alternatives is chosen, but that discretion must be exercised according to established sentencing principles. 30 Having determined the appropriate sentence, the court must explain the sentence imposed and this may require in an appropriate case some discussion of the alternatives available and why a particular alternative has been chosen: JCE at [19]. But it is unnecessary that a sentencing court expressly state that it has applied these two steps in arriving at the sentence imposed: R v Foster at [33]. In particular, merely because a court has not expressly indicated that it has taken the two-step approach to the determination of a sentence of imprisonment it does not follow that it has failed to carry out the sentencing exercise in this manner: R v Saldaneri [2001] NSWCCA 480 at [14]. However, the nature of the sentence imposed and the failure to record that a two-step approach has been taken may lead this Court to examine carefully the findings made by the sentencing judge to determine whether the sentence is erroneous: R v Foster at [35]. 31 As s 5 of the Act recognises, the imposition of a sentence of imprisonment is a grave step for a court to take whether or not the offender's liberty is immediately removed or curtailed. Section 5(2) requires a court, which imposes a sentence of imprisonment of 6 months or less, to indicate to the offender, and to record, its reasons for imposing such a sentence including the reasons why no penalty other than imprisonment is appropriate. These restrictions upon the power of a court to impose a sentence of imprisonment apply even if the sentence is suspended. A sentencing court, therefore, must recognise that a sentence of imprisonment can be a significant and effective punishment even where the execution of that sentence is suspended: JCE at [25], R v Foster at [36] where reference is made to statements to that effect in other jurisdictions. That is why, in the hierarchy of sentencing alternatives, a suspended sentence is considered as more severe than a community service order even though it may appear on its face to be less punitive. 32 Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate. 33 In the present case Judge Karpin came to the view that the objective circumstances called for a full-time gaol sentence in order to punish the respondent for what he did and to deter him and others from like conduct in the future. As against a maximum penalty of 25 years and where the respondent had gone to trial and denied his responsibility for what her Honour described as "considerable violence", her Honour determined that an appropriate sentence to reflect the objective seriousness of the offence was two years imprisonment. Notwithstanding the strong subjective features of the case, that sentence was manifestly inadequate even before regard is had to the fact that the sentence was suspended. 34 I acknowledge that her Honour was faced with a difficult task in that it is never easy to impose a full time sentence of imprisonment upon a young man of the character and disposition of the respondent. That is particularly so when the offender himself stands before the court unrepresented and makes the plea on his own behalf. But it is inescapable, in my view, that her Honour allowed the subjective matters, as powerful as they were, to obscure a proper evaluation of what the respondent had done and the nature of the offence for which he had been convicted. 35 The Crown has submitted that her Honour must have elided the two steps, to which I have referred above, and having determined that a suspended sentence was appropriate imposed a sentence to achieve that result. Having regard to what her Honour said to the respondent during his submissions on sentence and her acknowledgment of the seriousness of the offence and the importance of general deterrence, it is difficult to come to any other conclusion other than that her Honour determined to suspend any sentence imposed because she did not wish to send the respondent into full-time custody. 36 There is nothing in her Honour's reasons to indicate why a suspended sentence was chosen as the appropriate order to make in respect of the sentence of imprisonment imposed. Her Honour makes no reference to suspending the sentence until the order is made. As I have indicated earlier, it is not always necessary for a sentencing court to explain why a particular sentencing alternative is chosen. But in the present case, her Honour having indicated to the respondent that "it would be a most remarkable occurrence" if he stayed out of prison, it is not unreasonable to expect that her Honour would have explained why that occurrence was justified in the respondent's case. Her Honour having acknowledged that the objective gravity of the offence called for a full-time custodial sentence merely indicated that leniency was warranted by his subjective circumstances and because the offence was uncharacteristic. Leniency was warranted but not to a disproportionate degree. 37 In my view the subjective circumstances of the respondent could not justify the sentence imposed having regard to the offence committed: there was no need to attempt to rehabilitate the respondent, there was nothing to be served by a good behaviour bond, supervision by the probation service was not required, the respondent was unlikely to re-offend. 38 True it was that the offence was uncharacteristic and might be regarded as "one breach in an otherwise exemplary life", but it was a breach of very substantial criminality and had to be met with condign punishment for all the reasons to which her Honour referred. As her Honour recognised, general deterrence was of very great importance in sentencing for this type of offence, which is unfortunately prevalent in the community. Although a suspended sentence can, in an appropriate case, adequately reflect the deterrent aspect of sentencing, it could not do so in this case, so important was that aspect of punishment by reason of the offence committed by the respondent. 39 In my opinion the Crown has made good its challenge to the sentence. 40 What then should be the result of the appeal? This is a case where double jeopardy looms large. The respondent appeared unrepresented before her Honour and ultimately left the court with what was effectively a non-custodial sentence. The probation officer reports that the respondent and his wife were experiencing considerable stress due to their concern at the outcome of the proceedings. It is difficult not to feel some sympathy for the situation of the respondent in that, having been relieved of the burden of a custodial sentence, he should face once more the possibility of such a sentence being imposed upon him, no matter how richly he deserved it. He has been subject to the uncertainty of the Crown appeal since October last year. He has been subject to the sentence imposed by her Honour since 14 August last, a period of 6 months. During that time he has been subject to supervision by the probation service. 41 In my view a sentence of imprisonment must now be imposed upon the respondent but not that which should have been imposed by the sentencing judge. An appropriate sentence to be imposed by this Court, bearing in mind double jeopardy, would be one of imprisonment for three years. A sentence of full-time custody should have been imposed in the District Court, notwithstanding the terrible consequences of such a sentence for the respondent and his family. However, it would now be unduly harsh to impose a full-time sentence upon him. 42 There was in evidence before Judge Karpin a pre-sentence report that indicated that the respondent was a suitable candidate for periodic detention. The Crown Prosecutor on the hearing of this appeal has accepted that this Court can rely upon that report and the findings of the probation officer. He has further stated that the Crown is aware of no matter which would disentitle the respondent to an order that any sentence be served by way of periodic detention. Mr Watts for the respondent has indicated that, if the Court was minded to make such an order in re-sentencing the prisoner, he had no submission to make against the Court taking that course. It seems to me now to be a proper order to make although it would not have been appropriate at first instance. 43 Because I propose that the respondent be sentenced to a term of imprisonment, albeit one to be served by way of periodic detention, consideration must be given to the length of the non-parole period. In my opinion, notwithstanding the respondent's prior good record and the fact that this will be his first period in custody, there are no special circumstances justifying a reduction in the non-parole period. The sentence I propose has already been reduced by reason of double jeopardy to what is arguably an unduly lenient sentence. 44 I propose that the appeal be allowed and the sentence imposed in the District Court be quashed. In my opinion the sentence that should now be imposed is imprisonment for 3 years with a non-parole period of 2 years 3 months. It is not possible to backdate the sentence but the respondent should receive the benefit of the period during which he has been subject to the good behaviour bond. The sentence and the non-parole period, therefore, should be reduced by 6 months. I propose that the respondent be sentenced to imprisonment for 2 years 6 months with a non-parole period of 1 year 9 months. There should be an order that the sentence be served by way of periodic detention. The sentence is to commence on Friday 22 February 2002. The non-parole period is to expire on 21 November 2003 the date upon which the respondent is to be released to parole.

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