TESTALAMUTA v R

Court of Criminal Appeal (NSW)|2007-04-18|Before: McClellan CJ, Hidden J, Rothman J, Mr P, Clellan CJ

The application 20 In written submissions Mr Byrne SC, for the applicant, pointed out an error in the statement of facts which had been presented to his Honour. Those facts recorded that three cartridge cases had been found at the scene of the offences, suggesting that the applicant had fired the weapon three times. There is no doubt that this was an error, apparently arising from some confusion at the forensic ballistics laboratory between this case and another. However, it is clear from his Honour's recitation of the facts that he sentenced him on the basis that the weapon was fired twice. No submission was made about the error in oral argument and nothing turns on it. 21 The thrust of the application was that his Honour fell into error in his approach to sentence in several respects, resulting in sentences which are manifestly excessive. It was put that he had erred in placing the offences towards the upper range of objective gravity, in failing to give adequate weight to the psychological material, and in his use of the standard non-parole period as a guide to the determination of the appropriate sentences.

Objective gravity 22 As to the objective gravity of the offence of specially aggravated break and enter, Mr Byrne acknowledged that it was premeditated but relied upon what he described as a finding by his Honour that the applicant's "primary intention" was to scare the victim. In truth, as I have said, his Honour expressed himself satisfied that the applicant intended to scare the victim and, if necessary, to cause him serious injury. Consistent with that conclusion was his Honour's finding that the applicant fired the second shot because the first had not achieved his purpose. 23 In any event, this was a particularly serious manifestation of the crime for which provision is made by s112(3) of the Crimes Act, that is specially aggravated breaking and entering a dwelling house and committing therein a serious indictable offence. The expression "serious indictable offence" embraces a wide variety of criminality and, obviously, the nature of the serious indictable offence alleged in a particular case will bear upon the gravity of the offence under the subsection. 24 In the present case the serious indictable offence was threatening to cause injury to a person to be called as a witness in judicial proceedings, intending to influence him not to attend court as a witness. That is an offence under s322 of the Crimes Act, which carries a maximum sentence of imprisonment for ten years. That maximum term reflects the significance which the community places upon a crime which strikes at the administration of justice. Given the facts as he recited them, and the circumstances as he found them, his Honour's assessment of the gravity of the offence was clearly open to him. 25 As to the objective gravity of the offence of maliciously inflicting grievous bodily harm with intent, Mr Byrne relied upon his Honour's finding that the victim's injuries fell into the lower end of the range of grievous bodily harm. He also noted that his Honour did not find that the applicant intended to inflict more serious injury. He referred to R v Amohanga & Rai (2005) 155 A Crim R 202. In that case the leading judgment was delivered by Simpson J, and in the course of it her Honour referred to other relevant decisions of this Court. 26 Amohanga & Rai were Crown appeals against sentences passed upon the respondents for armed robbery with the infliction of grievous bodily harm, an offence under s98 of the Crimes Act which also carries a maximum sentence of 25 years. The respondents committed the offence in somewhat sordid circumstances, and the victim was attacked ferociously with a tyre lever, causing very serious head injuries and leaving him with permanent disability. The appeals were allowed. Amohanga's sentence was increased to imprisonment for twelve years with a non-parole period of eight-and-a-half years, and Rai's to imprisonment for eleven years with a non-parole period of eight years. 27 Among the cases to which Simpson J referred were the related matters of R v El-Andouri [2004] NSWCCA 178 and R v Fidow [2004] NSWCCA 172. Those two offenders were jointly involved in an offence under s98 of the Crimes Act, on this occasion robbery in company with the infliction of grievous bodily harm. In reviewing those cases, Simpson J noted at [103] that that offence was well planned and that the victim, a service station proprietor, was subjected to a vicious and brutal attack. Her Honour described him as having suffered "extremely severe and permanent injury". El-Andouri had been sentenced to imprisonment for sixteen years with a non-parole period of nine years, and Fidow to imprisonment for eleven years with a non-parole period of eight years. Appeals by the two men against their sentences were dismissed. 28 In Amahonga & Rai Simpson J considered whether the respondents' offences fell into the worst category of their kind. Her Honour said at [121], "As were the offences in El-Andouri and Fidow, these were among, or close to, the worst of their kind, if only by reason of the injuries occasioned to the victim". 29 Her Honour also referred at [135]-[136] to the then recent decision of R v Duncan & Perre [2004] NSWCCA 431, a case of maliciously inflicting grievous bodily harm with intent. She noted that it also involved a brutal attack, causing the victim severe brain damage. Appeals against sentence by those offenders were successful, and in each case their sentences were reduced to imprisonment for thirteen years with a non-parole period of nine years. They had not pleaded guilty, but her Honour noted that they were juveniles at the time of the offence and "had the benefit of considerably favourable subjective circumstances". 30 Mr Byrne also referred to R v Kirkland [2005] NSWCCA 130 and R v Bobak [2005] NSWCCA 320, again related matters. Those two offenders had been sentenced for maliciously inflicting grievous bodily harm with intent, arising from an attack upon the victim with a hammer which left him with extremely serious injuries, having effects on his physical and mental capacity which the sentencing judge described as "profound, pervasive and permanent". Bobak, whose role in the offence was greater than his co-offender, was sentenced to imprisonment for sixteen years with a non-parole period of twelve years, and Kirkland was sentenced to imprisonment for twelve years with a non-parole period of eight years. Appeals by both men against sentence were dismissed, the Court in each case adopting the sentencing judge's characterisation of the offence as at the very upper end of the range of seriousness, while falling short of a worst case. 31 There is no doubt that the nature and effect of the victim's injuries is an important matter in assessing the gravity of an offence of maliciously inflicting grievous bodily harm with intent and, clearly, the injuries in all the cases referred to are much more severe than those in the present case. However, the seriousness of such an offence must be assessed on the basis not just of the injuries but of all the circumstances of the case. 32 The Crown prosecutor referred to Vragovic v R [2007] NSWCCA 46, a case of maliciously inflicting grievous bodily harm with intent arising from an attack by the offender upon his former wife. He had broken into the home where she was living with a new partner, and had beaten her with a piece of exhaust pipe and a shortened firearm. The offence was premeditated, and was committed at a time when he was subject to an apprehended domestic violence order protecting her and her partner. He was found guilty after a trial, and an appeal against a sentence of 12 years with a non-parole period of 8 years was dismissed. In delivering the leading judgment, Adams J referred to the circumstances of the offence and at [32], after noting that her injuries were "far from the most serious form of grievous bodily harm which might be suffered", observed that the "objective gravity of the offence is not determined merely by considering the injuries". 33 That observation is apposite in the present case. The offence involved the use of a firearm. As I have said, his Honour noted that, like the other principal offence, it was committed in the victim's home while his son was nearby. It was well open to his Honour to have assessed the gravity of this offence also as he did.

Psychological report 34 Mr Byrne acknowledged that his Honour had referred to the psychological material in his remarks, but submitted that he had failed to give it the weight it deserved. From that material it appeared that the applicant's assault on the victim, Mr Sheath arose from the strained relationship between the victim and Ms Mathews and, in particular, from disputes between those two about access to the children. The evidence conveyed, said Mr Byrne, that the applicant's reduced intellectual capacity and dependant personality meant that he did not have the maturity to deal with the situation. 35 That may well afford some explanation for the assault but, of course, that offence is no more than the background to the serious offences with which this Court is dealing. The psychological material provides nothing in mitigation of those offences. Indeed, as I have said, his Honour found that the applicant was not influenced by anyone to commit them and that they were not the product of his need to secure the approval of others. 36 As I have also said, his Honour found that the applicant's below average intellectual capacity fell short of intellectual disability. Presumably, that observation amounted to a finding that the case was not one affected by the special considerations governing the sentencing of persons who are mentally ill or intellectually disabled reviewed in cases such as R v Engert (1995) 84 A Crim R 67. Clearly, that was so.

Standard non-parole period 37 His Honour expressed himself to have determined the appropriate sentence for each offence in the light of the prescribed maximum sentence and the standard non-parole period, guided by the decision of this Court in R v Way (2004) 60 NSWLR 168. As I have said, the standard non-parole period for each of the principal offences was seven years and for each offence the sentence imposed was imprisonment for fifteen years with a non-parole period of ten-and-a-half years. Mr Byrne submitted that, in the light of the applicant's pleas of guilty, a non-parole period which represented an increment of the standard non-parole period by fifty per cent was manifestly excessive (as was the head sentence associated with it). He argued that such a marked increase of the standard non-parole period demonstrates that his Honour did not adopt the approach endorsed in Way and a series of subsequent decisions of this Court which followed it. 38 As to the offence of specially aggravated break and enter, I have already referred to the broad range of criminality encompassed by the term "serious indictable offence" in s112 of the Crimes Act. No doubt, it is for that reason that a relatively moderate standard non-parole period is prescribed for specially aggravated offences under s112(3). The serious indictable offence in the present case, as I have said, is one of particular gravity. In all the circumstances, his Honour was justified in fixing a non-parole period significantly higher than the standard non-parole period, notwithstanding the plea of guilty. 39 The same non-parole period for the offence of maliciously inflicting grievous bodily harm with intent, after a plea of guilty, is undoubtedly high. However, in the light of all the circumstances which I have outlined, I cannot say that it was outside the bounds of his Honour's discretion. Moreover, the fact that the sentence for that offence is wholly concurrent with the other sentence cannot be ignored.

Manifestly excessive? 40 Allied to Mr Byrne's argument about the non-parole periods was his submission that the sentences are, in any event, manifestly excessive. As to the sentence for the grievous bodily harm charge, he relied on the other cases to which I have earlier referred. He noted that the only two cases in which sentences higher than the applicant's had been passed were El-Andouri and Bobak, in both of which sentences of sixteen years were upheld (although in El-Andouri's case the non-parole period was lower than that of the applicant, nine years). Otherwise the sentences ranged between eleven and thirteen years. To those cases should be added McArthur v R [2006] NSWCCA 200, in which the Court upheld a sentence of twelve years with a non-parole period of nine years for an offence of armed robbery with the infliction of grievous bodily harm, in which the victim had suffered injuries which the sentencing judge described as "catastrophic". In all of these cases except Duncan & Perre, there had been pleas of guilty. 41 The sentences passed on this applicant were severe but, given the gravity of the circumstances surrounding them, appropriately so. Such pattern as emerges from the cases involving grievous bodily harm referred to does not demonstrate that the sentence for the grievous bodily harm charge in the present case is manifestly excessive. As I have said, the applicant has the benefit of complete concurrence of the sentences on the two principal charges, in a case where it would have been open to his Honour to have accumulated partially. Moreover, the criminality of the offence on the form 1 had to be reflected, and all the offences were committed while the applicant was subject to conditional liberty of particular significance, that is, bail which prohibited him from approaching the victim's home. 42 Before parting with the matter, however, I should add this. The fact that his Honour passed the same sentences, to be served concurrently, for both of the principal offences suggests that he may have had an eye only to the aggregate sentence, without considering the appropriate sentence for each charge in accordance with the principles enunciated in Pearce v The Queen (1998) 194 CLR 610. One might have thought that a distinction in sentence was called for, given the different nature of the criminality of the two offences and, particularly, the fact that the form 1 matter was taken into account in sentencing for the aggravated break and enter offence. However, this point was not taken in the application. In any event, as the sentence for the aggravated break and enter is to stand, any adjustment of the sentence for the grievous bodily harm offence would be of no practical effect.

Conclusion 43 I am not persuaded that any of the challenges to the sentences has been made good. I would grant leave to appeal but dismiss the appeal. 44 ROTHMAN J: I agree with Hidden J.

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CITATION: TESTALAMUTA v R [2007] NSWCCA 258

R v Amohanga & Rai (2005) 155 A Crim R 202 R v El-Andouri [2004] NSWCCA 178 R v Fidow [2004] NSWCCA 172 R v Duncan & Perre [2004] NSWCCA 431 R v Kirkland [2005] NSWCCA 130 CASES CITED: R v Bobak [2005] NSWCCA 320 Vragovic v R [2007] NSWCCA 46 R v Engert (1995) 84 A Crim R 67 R v Way (2004) 60 NSWLR 168 McArthur v R [2006] NSWCCA 200 Pearce v The Queen (1998) 194 CLR 610

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