SATORRE v REGINA [2006] NSWCCA 298 | Case summary

WEDNESDAY 26 JULY 2006 SATORRE, Dax v REGINA Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty to murder and was sentenced to sixteen years' imprisonment with a non-parole period of twelve years. There are two grounds of appeal urged upon the court. Firstly, complaint is made about the discount of fifty per cent which the sentencing judge gave for the plea of guilty, past assistance to authorities, contrition and future assistance to the authorities. It is further submitted that the sentence was manifestly excessive. 2 The relevant events comprising the charge of murder occurred on 13 December 2002. The sentencing judge recounted the following as the relevant facts: "The victim, Dominic Li, was an accountant who lived with his wife and son in their home in Concord. As the victim was preparing to leave for work on the morning of 13 December 2002, two men came to the front door. The victim's wife answered the door. One of the men was carrying a package which he asserted was for the victim. The victim's wife called her husband to the front door, where he was confronted by the man who had been carrying the parcel and his companion, and each of these men were carrying guns. The victim was pulled out onto the front verandah. One of the men struck him on the back of the head with his pistol, and the victim was forced onto the floor of the porch. Whilst he was there restrained by one assailant, the other assailant poured the content of a plastic bottle over the victim's head as he lay on the ground. The content of the bottle proved to be hydrochloric acid. The content of the bottle entered the victim's mouth and was swallowed. The acid caused severe burns and permanent blindness in both eyes. The victim was taken to Concord Hospital where he died on 2 January 2003. The acid ingested affected the stomach, the duodenum and the oesophagus, and the post mortem finding was that the deceased had died as a result of multiple organ failure following inhalation and ingestion of the acid. [The applicant] was not one of the two men who attacked the deceased. His role was to provide and drive the car which took the deceased's attackers to the home of the deceased. He parked the car around the corner from the deceased's home and waited with it whilst the two assailants made their attack. Having done so, they returned to the car and the [applicant] observed the container one of the men was carrying and could smell the acid content. [The applicant] drove the two men back to their vehicle parked beside Concord Oval. The attack upon the deceased had been planned by two other co-offenders. These two co-offenders perceived that they had some grievance against the deceased and his brother-in-law over a monetary matter. One of the two offenders who planned the crime contacted yet another offender and enlisted his aid for the contemplated attack on the deceased. The instruction given to him was to pour acid on the victim's face so as to scar him permanently. So instructed, the offender engaged by the planners engaged the services of the [applicant] and of the two men who the [applicant] drove to the deceased's home. It was the [applicant] first engaged by the planners who purchased the acid that was used and that offender had available a videotape provided by the planners, apparently produced from surveillance of the victim's home over a period of several days. The offender first engaged by the planners engaged the assistance of the [applicant] to provide the car and to drive the eventual assailants to and from the victim's home. This offender told the [applicant] that he was going to be paid $10,000 for the attack, and the [applicant] was promised $1,000 for his participation." 3 His Honour found that the applicant was aware that his accomplices were intending to throw acid on the face of the victim so as to permanently disfigure him but was not aware that they were going to kill the deceased. At the time of the commission of this offence the applicant was a drug user and the offender who engaged him for this enterprise was his supplier. The applicant's motive for his participation in the crime was the offer of $1,000 and the contemplation of the continued supply of drugs from his supplier. 4 The sentencing judge described the offence in the following terms: "There could be no question but that the crime which resulted in the death of the deceased was a most grave crime. Indeed, it was a shocking crime. Whilst the prisoner did not participate in the actual attack upon the deceased, his role in the crime was a very meaningful one. Objectively then, a most serious view must be taken of the prisoner's criminality." 5 I agree with his Honour's assessment of the criminality involved. 6 His Honour gave consideration to the subjective features of the applicant. At the time of sentencing he was thirty-eight years of age. He was born in the Philippines and spent his childhood there. The applicant was brought up in a stable family environment and was educated in the Philippines before coming to Australia with his family in 1988 at the age of sixteen or seven years. 7 In Australia he had fairly regular employment and since 1988, apart from some time spent in America and time spent in custody, he has been employed in this country for all but a period of approximately fourteen or fifteen months. For more than two years six months prior to the commission of this crime, the prisoner was employed by a major car sales company. 8 The applicant is single but is the father of a child born of a de facto relationship which lasted for some five or six years. That relationship ended when the prisoner's de facto wife left him for another man. This separation apparently occurred towards the end of 2001. 9 The applicant became a drug user after the separation and had a regular habit at the time he was engaged to participate in the commission of this crime. Not only did the applicant use drugs but he sold them and used the proceeds of sale to fund his addiction. 10 His Honour the sentencing judge was asked to, and did, take into account a scheduled offence of supplying a prohibited drug. This offence was committed between 24 March 2003 and 11 April 2003 and concerned eight individual acts of supplying methylamphetamine. The total amount of prohibited drug supplied to various persons during the period was found to be 4.3 grams, a traffickable quantity, but not an indictable one. His Honour was asked to, and did, take into account the drug offence pursuant to s 32 of the Crimes (Sentencing Procedure) Act. His Honour was careful to remind himself to impose a sentence for the totality of the criminality, being the offence charged in the indictment and the scheduled matter. 11 At the time of sentence the applicant had a criminal record which the Crown accepted was minor. His Honour accepted that description, identifying that in March 2002 the applicant was sentenced to six months' imprisonment for contravention of an apprehended domestic violence order but that sentence was suspended on his entering into a recognizance. At the same time he was given a similar punishment for a charge of malicious damage to property. This also occurred in March 2002 and the applicant was placed on a two year bond for goods in custody and other offences of dishonesty. In March 2003 he was convicted and fined for the possession of a prohibited drug. 12 The sentencing judge found that the applicant has the support of his family, a number of whom attended the hearing on sentence. His aunt gave evidence reflecting the support of the family and his Honour accepted that the family regularly visited the applicant in prison. Both the applicant and his aunt gave evidence as to the applicant's contrition. It was further evidenced by a plea of guilty. His Honour accepted that the applicant was contrite and identified the fact that the Crown accepted that there was relevant remorse and contrition demonstrated by the applicant. His Honour determined that the prospects of rehabilitation of the applicant were reasonable. 13 His Honour also considered the victim impact statement which was tendered before him and appropriately had regard to that document. 14 When considering the subjective features of the applicant, his Honour was careful to identify that they could not be allowed such weight as to displace the objective gravity of this offence. 15 His Honour was asked to, and gave careful regard, to the fact that the applicant had entered an early plea of guilty, had provided assistance to the authorities and, as I have indicated, accepted that the applicant had displayed general contrition. 16 His Honour noted that the plea of guilty was first entered on 4 February 2005 in the Local Court and he subsequently adhered to that plea. His Honour had regard to the principles provided in R v Thomson & Houlton (2000) 49 NSWLR 383 when considering the utilitarian value of that plea. 17 His Honour also had regard to the assistance which had been provided to the police. We have been informed today by the applicant's counsel that that assistance has continued and there has been expressed a preparedness to give evidence in the trials of the co-accused, should they eventuate. 18 His Honour accepted that immediately following the applicant's arrest he was candid with investigators and from that point displayed a willingness to assist police. He made frank admissions. 19 His Honour was also mindful of the fact that the applicant, by reason of the assistance that he had offered, to that point had been detained in protection and that it may be necessary for him to continue in protection for a further period during his incarceration. However, his Honour considered, and in my opinion correctly applied, the decision of this court in R v Way (2004) 60 NSWLR 168, particularly at [177] when giving consideration to that matter. 20 His Honour also had regard to the approach that this Court indicated to be appropriate to that matter in R v Mostyn [2004] NSWCCA 97. 21 Having considered these matters his Honour then, in summary form, considered the discount which may be appropriate having regard to the relevant principles. His Honour said: "To what extent then is the prisoner's sentence to be reduced in order to take due account of his early plea of guilty and of the assistance thus far given by him to the authorities and to be given in the future? I am asked by Mr Paish to allow a twenty-five per cent discount for the plea of guilty, and of course reference was made to R v Thomson & Houlton in support of that submission. Then, as to the matter of assistance, the range of discount is normally stated as being from twenty per cent to fifty per cent: see R v Cartwright (1989) 17 NSWLR 243; R v Chu (unreported, NSWCCA, 16 October 1998); and R v El Hani [2004] NSWCCA 162. Mr Paish submitted that this prisoner should be regarded as meriting a discount for assistance towards the top of the range, as he put it 'towards the fifty per cent'. However, it would be quite wrong, as Mr Paish recognised, for this Court to give an aggregate seventy-five per cent discount on the sentence otherwise to be imposed. There is much overlapping of the features attracting discounts for the early plea and for assistance, as is well recognised." 22 His Honour then referred to the principles set forth by Gleeson CJ (as he then was) in R v Gallagher (1991) 23 NSWLR 220, as confirmed and further explained by Spigelman CJ in Thomson & Houlton. 23 His Honour also identified the fact that when determining the extent to which the offender's sentence should be reduced, a judge must be concerned to ensure that the sentence which is imposed paid due regard to the principle of proportionality in sentencing. His Honour then reminded himself, correctly, of the obligation imposed by s 23(3) of the Crimes (Sentencing Procedure) Act 1999 upon a sentencing judge. That section expressly provides that where a lesser sentence is to be imposed to take account of assistance given or undertaken to be given, the reduced sentence "must not be unreasonably disproportionate to the nature and circumstances of the offence". 24 His Honour, accordingly, concluded that in the circumstances of the applicant's case it was appropriate to provide a rolled-up discount for the plea of guilty, contrition and for the past assistance, of thirty per cent and a further reduction for the assistance the prisoner had undertaken to give but has not yet given of twenty per cent: see R v Waqa (No 2) [2005] NSWCCA 33. 25 Before this Court the applicant's counsel advanced the proposition that rather than a total discount of fifty per cent the appropriate discount should have been sixty per cent. However, in making that submission counsel accepted that the fifty per cent discount which his Honour provided was within the range. 26 To my mind, accepting this to be the case, it is apparent, as I would otherwise have concluded, that no error can be demonstrated in his Honour's determination of the appropriate discount. Each of the elements of that discount are matters of discretion to be carefully weighed in the circumstances of the particular case. There would be no one correct answer to any of the components of the discretion and certainly no one correct answer to the overall discount to be allowed. To my mind, a discount of fifty per cent provides adequately and appropriately for the matters relevant to consideration of the applicant's particular circumstances. Although his assistance has been of a high order, I am not persuaded that it is of such extraordinary quality that the sentencing judge has erred in concluding that a fifty per cent discount is appropriate. 27 The second limb advanced by the applicant challenges the starting point of the sentence which his Honour imposed. That starting point was identified as thirty-two years to which the discount was applied. As I have indicated, his Honour, in my opinion, correctly identified this crime as being of a high order of criminality involving, as it did, a planned and deliberate imposition of pain by the use of acid causing very serious injury to the victim, ultimately leading to his death. 28 The court's attention has been drawn to other sentencing decisions in relation to serious offences involving injuries and death. In particular, we have been referred to the decision in relation to sentence in R v Irani [2002] NSWCCA 153 and R v Tran [2002] NSWSC 394. 29 Although the sentence imposed in relation to offences of a similar order can be instructive, they cannot of course dictate the outcome in any particular case. There are significant differences between the nature of the criminal enterprise and the personal circumstances of the offender in each of the cases to which reference has been made. 30 I am not persuaded that by reference to that limited number of cases it can be demonstrated that his Honour's starting point in relation to the sentence imposed on the applicant was inappropriate. To my mind, this was a brutal crime, placing it either close to or warranting consideration as possibly being in the worst category. The injury intended to be inflicted on the victim was premeditated and the attack clearly planned. The applicant undertook his part in this terrible crime for the intended payment of $1,000 and consideration in relation to future drug supply. Although a severe sentence, to my mind a starting point of thirty-two years is within the overall range. 31 Accordingly, I am not persuaded that this court should intervene, either because the starting point was inappropriate or because the discount which his Honour applied was other than appropriate. 32 Although I am of the opinion that leave to appeal should be granted, I would dismiss the appeal. 33 KIRBY J: I agree. 34 HOEBEN J: I agree. 35 McCLELLAN CJ at CL: Accordingly, the orders of the court are as I have indicated. **********

SATORRE v REGINA

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