SILVANO v R

COUNSEL: S Odgers SC (Applicant) J Dwyer (Crown)

SOLICITORS: North and Badgery (Applicant) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT DATE OF DECISION: 15 August 2006

LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 832

IN THE COURT OF CRIMINAL APPEAL 2007/2908

JAMES J HISLOP J HOEBEN J

MONDAY 2 JUNE 2008 SILVANO, Oliver v R Judgment 1 JAMES J: Oliver Silvano applied for leave to appeal against sentences imposed on him by Hulme J of this Court on 15 August 2006 for offences of:-

1. Assaulting a man named David Horin with intent to rob him, whilst armed with a dangerous weapon
2. Murdering a woman named Tracey Lee Oliver
3. Maliciously shooting at David Horin with intent to do grievous bodily harm 2 The applicant had been found guilty of the three offences by a jury, after a trial presided over by Hulme J. 3 The sentences imposed by the sentencing judge were:-

For the offence of assaulting with intent to rob, whilst armed with a dangerous weapon, a non-parole period of imprisonment of seven years commencing on 28 April 2004, with a balance of the term of two years four months.

For the offence of maliciously shooting at Mr Horin with intent to do grievous bodily harm, a non-parole period of imprisonment of four years with a balance of the term of one year four months, commencing on 28 April 2005.

For the offence of murder, a non-parole period of 16 years with a balance of the term of five years four months, also commencing on 28 April 2005. 4 Assaulting with intent to rob, whilst armed with a dangerous weapon, is an offence under s 97(2) of the Crimes Act, for which the maximum penalty is imprisonment for 25 years. There is no standard non-parole period for the offence. 5 Maliciously shooting at a person with intent to cause grievous bodily harm was an offence under s 33 of the Crimes Act (since amended) for which the maximum penalty was imprisonment for 25 years and for which there was a standard non-parole period of seven years. 6 Murder is an offence under s 18 and s 19A of the Crimes Act for which the maximum penalty is imprisonment for life and for which there is a standard non-parole period of 20 years.

Facts of the offences 7 The facts of the offences were found and stated in considerable detail by his Honour in his remarks on sentence. Having regard to the only grounds of appeal against sentence, it is sufficient to give a concise summary of the facts found by his Honour. 8 At some time after midnight on 28 April 2004 the applicant and Tracey Lee Oliver, the victim of the offence of murder, left their room in a hotel in inner Sydney, which they had booked into the previous day. They intended to carry out a robbery. No victim had yet been selected. The applicant was carrying a backpack, which contained a loaded, sawn-off shotgun. 9 Near a shop in George Street in the city, Mr Horin, the victim of two of the offences, was accosted by the deceased, who asked him for help, claiming that she felt unwell. Mr Horin followed the deceased into a car park off the street. In the car park the applicant joined Mr Horin and the deceased. The applicant pointed the shotgun at Mr Horin, yelled expletives at him and threatened, if Mr Horin did not "get down", to "blow off" Mr Horin's head. This conduct on the part of the applicant constituted the offence under s 97(2) of the Crimes Act. 10 Mr Horin did not get down, as the applicant had demanded, and the applicant, now at close quarters to Mr Horin, pointed the shotgun towards Mr Horin's stomach. Mr Horin pushed the barrel of the shotgun away from him, the gun discharged and the deceased Ms Oliver was struck by pellets which were discharged, receiving a major wound from which she later died. The Crown case against the applicant on the charge of murder was that the deceased had been killed during the commission by the applicant of a crime punishable by imprisonment for 25 years, being the crime charged under s 97(2) of the Crimes Act. 11 After the deceased was shot, Mr Horin ran off. The applicant fired the shotgun at Mr Horin, one of the shotgun pellets lodging in Mr Horin's shoulder. This conduct on the part of the applicant gave rise to the charge under s 33 of the Crimes Act.

Subjective circumstances of the applicant 12 In his remarks on sentence the sentencing judge made findings about the subjective circumstances of the applicant. 13 The applicant was born in Colombia in South America in 1977. He migrated to Australia with his mother in 1994. 14 Soon after the applicant arrived in Australia, he entered into a relationship with the deceased Ms Oliver. A child was born to them in 1996. Shortly after the birth of the child, the applicant and the deceased separated, the child remaining with the applicant. Not long before the offences were committed in 2004, there had been some resumption of the relationship between the applicant and the deceased. 15 The applicant had some criminal history but for comparatively minor offences of a different kind from any of those for which he was being sentenced and the sentencing judge found that the offences for which he was being sentenced were "completely out of character". 16 The sentencing judge found that, since being imprisoned, the applicant "has made real and substantial efforts to improve himself both by way of courses and seeking psychological or other counselling". 17 The sentencing judge found that the applicant had, as a result of causing the death of Ms Oliver, suffered grief and a degree of self-punishment. 18 In dealing with the applicant's subjective circumstances the sentencing judge referred to two incidents which had occurred while the applicant had been in custody on remand. It will be necessary to refer to this part of his Honour's remarks in detail in considering one of the grounds of appeal against sentence. 19 The sentencing judge found that the applicant had been housed in a Special Management Area Placement within the Correctional system for a substantial period and that it was likely that in the immediate future he would be given a higher protected custody classification. After discussing what allowance should be made because the applicant would serve at least part of his sentence in some form of protective custody, the sentencing judge said at par 37 of his remarks on sentence:- "There is a deal of authority as to the undesirability of the court specifying allowances for specific aspects taken into account on sentencing. However, in the circumstances of this case and in particular because of the nature and incidents of the topic with which I am presently dealing, and so that both the Crown and the prisoner are aware of my allowance in this regard, and may challenge it if so advised, I believe I should do so. On account of the matters to which I have just referred I propose to reduce the sentence I would otherwise have imposed by 3 years." 20 In par 49 of his remarks on sentence his Honour said:- "The only mitigating factors I regard as of significance are:- (d) The prisoner does not have a record of previous convictions that I regard as significant; (f) The prisoner is unlikely to re-offend; (g) The prisoner has good prospects of rehabilitation; (h) The prisoner has shown remorse; and (i) There was some degree of pre-trial disclosure in the statement of agreed facts." 21 Towards the end of his remarks on sentence the sentencing judge assessed the level of objective seriousness of the two offences for which there were standard non-parole periods. It is necessary to refer only to his Honour's assessment of the level of objective seriousness of the offence of murder. At par 61 of his Honour's remarks on sentence his Honour said:- "As it is, I regard the offence as falling just below the middle of the range. The only factor that leads me to this view is that the person killed was a co-offender with the prisoner and someone who willingly undertook the risks that the night's activities carried. I do not mean by taking this approach to suggest that the prisoner's offence was other than extremely serious. However in numerous cases of murder including felony murder, the courts have placed emphasis on the fact that an innocent person, not responsible in any way for events, has lost their life. If that emphasis is not just empty air - and I do not so regard it - then the absence of that factor means the particular offence is not as objectively serious as when the factor is present." 22 There were two grounds of appeal against sentence:-

1. The sentencing judge erred in failing properly to take into account the injuries inflicted on the applicant whilst in prison.

2. The sentencing judge erred in failing to give proper weight to the subjective circumstances of the applicant. 23 I will now consider each of these grounds of appeal.

1. The sentencing judge erred in failing properly to take into account the injuries inflicted on the applicant whilst in prison. 24 Earlier in this judgment I noted that the sentencing judge in discussing the subjective circumstances of the applicant referred to two incidents which had occurred while the applicant had been in custody. These incidents were described in pars 32-35 of his Honour's remarks on sentence in which his Honour said:- "32 There are some other matters to which I shall refer. On 13 January 2005 the prisoner was anally raped while in the shower, soap being rubbed into his eyes, no doubt to help in the perpetrator's anonymity. The prisoner did not report this for 9 days and there is no corroborative evidence. Nevertheless I accept this incident occurred. 33 On 15 August 2005 the prisoner was punched by another inmate and swelling to his face and bleeding from his eye was noticed by others. According to the prisoner, whose hearsay statements in this respect also I accept, he has lost substantial vision out of his eye. 34 The prisoner has been housed in a Special Management Area Placement for a substantial period. For reasons which I need not detail but which are the subject of evidence before me, it is likely that in the immediate future he will be given a higher protected custody classification. 35 Insofar as a prisoner may be subjected to more than normal restrictions in prison, a court may take this into account on sentencing. However otherwise, the fact that a prisoner may have suffered or may suffer injury or serious injury at the hands of other inmates is not, as I understand it, something of which a sentencing judge may take account. Accordingly, I do not propose to make any allowance for the injuries which the prisoner has suffered but I do propose to reduce the sentence I would otherwise have imposed on account of the fact of past and probably future protective custody." 25 It was submitted that the sentencing judge had erred in not taking into account, and making some allowance for, the injuries inflicted on the applicant in these two incidents. 26 Counsel contended in written submissions that the injuries inflicted on the applicant came within the principle which I stated in R v Daetz; R v Wilson (2003) 139 A Crim R 398 at 411, that:- "A sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence." 27 It was acknowledged by counsel for the applicant that there was no evidence that the infliction of the injuries on the applicant had been motivated by a desire on the part of those inflicting the injuries to punish the applicant for the offences for which he was to be sentenced. However, it was submitted that there was a causal connection between the commission of the offences and imprisonment of the applicant and the infliction of the injuries, in that, but for the commission of the offences and the imprisonment of the applicant, the injuries would not have been inflicted. 28 I do not consider that these submissions should be accepted. 29 The principle stated by me in Daetz which was relied on by counsel for the applicant and which I have already quoted, was stated by me in the context of determining whether a sentencing court can properly take into account "extra-curial punishment", that is loss or detriment imposed on an offender by persons other than the sentencing court, for the purpose of punishing the offender for his offence or at least by reason of the offender having committed the offence. Cases in which such extra-curial punishment occurred include the cases of R v Allpass (1993) 72 A Crim R 561 and R v Clampitt-Wotton (2002) 37 MVR 340, both of which are referred to in Daetz, and Daetz itself. 30 The concept of extra-curial punishment has on occasions been extended so as to apply in cases where the offender received serious injuries in the course of, or shortly after, committing the offence, the injuries being inflicted by others or being accidentally self-inflicted by the offender. Examples of such cases include R v Fletcher, a decision of a Victorian Court of Criminal Appeal noted at (1980) 4 Crim LJ 244; R v Noble [1996] 1 Qd R 329 (Queensland Court of Criminal Appeal); R v Barci (1994) 76 A Crim R 103 (Victorian Court of Criminal Appeal); and R v Haddara (1997) 95 A Crim R 108 (Victorian Court of Appeal). All of these cases were referred to in Daetz. Later cases include R v Webb [2004] NSWCCA 330, where the offender was shot by police in the course of being arrested after committing the offence and suffered significant and ongoing disabilities, which were taken into account in the sentencing of the offender. 31 In R v Sharpe [2006] NSWCCA 255, where the offender was shot by a security guard in the course of committing the offence, the Court of Criminal Appeal held that, on the very limited evidence about the extent of the offender's injuries, a ground of appeal that the sentencing judge had failed to take sufficient account of extra-curial punishment should not be upheld. 32 In Alameddine v R [2006] NSWCCA 317 the offender had received serious burns, when, being about to be arrested, he accidentally caused a laboratory in which he was illegally manufacturing amphetamine to explode. The Court of Criminal Appeal held that the injuries suffered by the applicant should have been taken into account in the sentencing of the offender, notwithstanding that the injuries had resulted from illegal activities and had been self-inflicted. 33 In the recent decision of this Court in Christodoulou v R [2008] NSWCCA 5 May 2008 the Court held that injuries resulting from the offender having deliberately injected himself with battery acid at about the time of being arrested were not to be taken into account in the sentencing of the offender. 34 Notwithstanding these extensions to the concept of extra-curial punishment, the Court was not referred on this application to any case which would support taking into account in favour of the present applicant the injuries suffered by him in the two incidents. There is nothing in the sentencing judge's remarks on sentence or in the agreed facts or in the Correctional Services records which were included in the appeal papers, to suggest that the injuries were inflicted on the applicant by the other prisoners for the purpose of punishing him for having committed the offences of any of them. The first incident appears to have been simply a brutal sexual assault. The second incident appears to have arisen out of a dispute between the applicant and another prisoner with whom he was then sharing a cell. 35 In my opinion, it is not sufficient to enable injuries suffered by an offender in prison to be taken into account as extra-curial punishment, that the injuries would not have been suffered, if the offender had not been arrested and remanded in custody as a result of having committed the offences. If such a connection between the offences and injuries suffered by a prisoner was sufficient, then injuries suffered by a prisoner could be taken into account as extra-curial punishment, even if they had resulted merely from some mishap occurring in the prison, such as the prisoner accidentally falling. 36 Of course, if an offender has suffered injuries while he is in prison awaiting sentence, and as a consequence of the injuries the offender's conditions of custody will be more than usually onerous, that matter can be taken into account in the sentencing of the offender. 37 I would reject the first ground of appeal.

2. The sentencing judge erred in failing to give proper weight to the subjective circumstances of the applicant. 38 Counsel for the applicant's argument in favour of this ground, which was directed only to the sentence for the offence of murder, contained a number of steps, which I will now summarise.

(1) As there is a standard non-parole period for the offence of murder (of 20 years), the sentencing judge was obliged to assess the objective seriousness of the applicant's offence to determine whether the applicant's offence fell in the middle of the range of objective seriousness for offences of murder.

(2) The sentencing judge assessed the applicant's offence "as falling just below the middle of the range". His Honour distinguished the applicant's offence of murdering Ms Oliver from other offences of murder in which the victim is not responsible in any way for what happened.

(3) The sentencing judge, in a part of his remarks on sentence which I have already quoted, quantified at three years the discount he was allowing because the applicant would serve at least part of his sentence on protection.

(4) Consequently, if, as his Honour had found, the objective criminality of the applicant's offence of murder fell below the middle of the range and a discount of three years was allowed because the applicant would be serving part of his sentence on protection, the sentencing judge would have arrived at a non-parole period of 16 years, which was the non-parole period in the sentence his Honour imposed. However, the setting of such a non-parole period meant that no allowance had been made by the sentencing judge for the favourable subjective circumstances which the sentencing judge had found in his remarks on sentence, that the offences were out of character, that the applicant had shown remorse, that the applicant had suffered a degree of self-punishment, that the applicant was unlikely to re-offend, that the applicant had good prospects of rehabilitation, that the applicant had made real and substantial efforts to improve himself and that there had been some degree of pre-trial disclosure in the statement of agreed facts. 39 I do not consider that this argument by counsel for the applicant should succeed. 40 Although the sentencing judge's own decision to quantify the amount of the discount he was allowing for protection might have encouraged such an argument, there are a number of statements of high authority that such a mathematical approach to sentencing as is manifested in the argument by the applicant's counsel is to be avoided. For example, in Pearce v The Queen (1998) 194 CLR 610 McHugh, Hayne and Callinan JJ said at 624 [46]:- "Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision." 41 In Markarian v The Queen (2005) 79 ALJR 1048 at 1058 [39] Gleeson CJ, Gummow, Hayne and Callinan JJ said:- "Following the decision of this Court in Wong (2001) 207 CLR 584 it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison."

It is true that in the present case the standard non-parole period is not "a subliminally derived figure" but the passage is otherwise applicable. 42 Even if a mathematical approach of the kind advocated by counsel for the applicant is adopted, the argument should, in my opinion, be rejected. The argument depends, at least partly, on the final sentence in par 37 of his Honour's remarks on sentence being read as expressing a decision by his Honour to allow a discount of three years from the non-parole period. However, the words used by his Honour in the final sentence of par 37 to describe what was being reduced by three years were "the sentence" and I consider that his Honour was distinguishing between "the sentence", that is the head sentence, and the non-parole period. A discount of three years from the head sentence will produce a discount of less than three years from the non-parole period. 43 Furthermore, there was considerable overlap between the various favourable subjective circumstances found by the sentencing judge, for example that the applicant had shown remorse and that the applicant had suffered a degree of self-punishment; and that the applicant was unlikely to re-offend and that the applicant had good prospects of rehabilitation and that the applicant had made efforts while in custody to improve himself. His Honour found that the offence fell only just below the middle of the range of objective seriousness and, even after allowing a discount of three years from the head sentence for the applicant being in protective custody, there was still room for his Honour to make some allowance for the applicant's favourable subjective circumstances, consistently with his setting a non-parole period of 16 years. 44 I would reject this ground of appeal and, as I have rejected both grounds of appeal. I would, while granting leave to appeal, dismiss the appeal against sentence. 45 HISLOP J: I agree with James J. 46 HOEBEN J: I agree with James J. **********

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