Zaharos v R

R v Dib [2003] NSWCCA 117; R v Fidow [2004] NSWCCA 172 R v Hemsley [2004] NSWCCA 228 R v Henry & Ors [1999] NSWCCA 111 CASES CITED : R v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v SY [2003] NSWCCA 291 R v Wright (1997) 93 A Crim R 48 Sullivan v R; Skillin v R [2008] NSWCCA 296

PARTIES: Spyros Zaharos (Applicant) The Crown

COUNSEL: A P Cook SC (Applicant) L Wells (Crown)

SOLICITORS: Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/13283

McCLELLAN CJ at CL GROVE J HOWIE J

MONDAY, 22 DECEMBER 2008 ZAHAROS, Spyros v R Judgment 1 McCLELLAN CJ at CL: The applicant was originally charged with malicious wounding with intent to do grievous bodily harm contrary to s 33 of the Crimes Act 1900. That offence carries a maximum penalty of a term of imprisonment for 25 years. He was also charged with an alternative count to which he pleaded guilty of malicious wounding contrary to s 35(1)(a) of the Crimes Act 1900 (Repealed) which carries a maximum penalty of 7 years imprisonment. He was sentenced to a total term of 5 years 2 months imprisonment with a non-parole period of 3 years and 10 months. 2 The relevant facts can be briefly stated. At about 7 pm on 2 March 2007 Aaron Petrovic went to a seafood restaurant with a friend for dinner. Mr Petrovic ordered barramundi but believed that the fish he was served was of a different variety. He complained to the shop owner. Shortly afterwards Mr Petrovic asked the applicant, who was also present in the restaurant, why he was staring at him. The applicant asked Mr Petrovic in effect "do I know you?" Mr Petrovic then advised the applicant not to order barramundi for his dinner. 3 The applicant's response was to tell Mr Petrovic to shut up otherwise he would stab him. He pulled a hunting knife with a blade approximately 12 cm long from a sheath and slammed it on the table. Mr Petrovic replied: "Stab me for what? I just said that the barramundi was not barramundi. I just ordered it … If you're going to pull a knife you may as well use it or sit down." 4 Mr Petrovic then took his dinner over to the applicant to show him. The applicant began swinging the knife around and calling out incoherently. Mr Petrovic told him to calm down and relax and that he had merely wanted to tell him about the barramundi. 5 The applicant swung the knife at Mr Petrovic who grabbed him in order to restrain him. They struggled and eventually fell to the floor. Mr Petrovic tried to grab the knife and as he was doing so the applicant stabbed him in the left upper arm. He was also stabbed in the left side of his abdomen. Mr Petrovic ultimately managed to get the knife and threw it away. 6 Mr Petrovic was assisted by a friend to walk outside the restaurant where he collapsed. He was found by the police lying on the footpath. He had suffered grievous injuries. The stab wound to the left side of his abdomen had perforated his large bowel and there were multiple stab wounds to his left arm with a separation of the bicep muscle, the median and musculo-cutaneous nerves and the brachial artery. He required surgery to both the bowel perforation and his arm and artery. He spent a number of weeks in hospital. 7 The subjective circumstances of the applicant were identified by the sentencing judge. He was born on 10 May 1942 in Greece and was 64 years of age at the time of the offence and 65 when sentenced. He has no prior criminal history. 8 The applicant suffers from schizophrenia and has done so since he was in his mid forties. He has a history of mental health admissions at the St George Mental Health Unit. The admissions arose from non-compliance with medication regimes, breaching of community treatment orders, self-harm attempts, unprovoked aggression, paranoid ideation and command auditory hallucinations. He reported to Dr Olav Nielssen, a psychiatrist, that he had a total of 8 or 9 admissions to St George Hospital, most recently for around 2 months in July 2006. He had a period of stable health but his condition again deteriorated when his medication was changed and ultimately he ceased taking it. 9 Dr Nielssen expressed the following opinion: "The diagnosis of chronic schizophrenia is based on the history of typical symptoms of the illness, a typical pattern of treatment and the findings during the interview, including impaired insight regarding the origins of the symptoms during the acute phase of the illness. The Justice Health Medical Records show that Mr Zaharos was acutely mentally ill at the time of his reception to gaol, but his symptoms are now in remission as a result of consistent treatment with antipsychotic medication since his arrest. Mr Zaharos has a form of the illness that responds to treatment, but his illness has followed a relapsing course because he has previously stopped taking medication against medical advice. He attributed his poor adherence to the unpleasant side effects of medication, but limited awareness of the presence of illness and the need for indefinite treatment must be a factor in his decision to stop [taking] medication. His longest period of remission since the onset of illness in his mid forties was the five years that he received treatment in the form of long acting injections as a condition of a [community treatment order]." 10 There was evidence before the sentencing judge that the applicant although lacking in confidence and formal education, has a keen mind. He has engaged in community activities and was said by the Reverend Brian Tung, the Anglican priest at the Parish of Riverwood-Punchbowl to have a "very kind heart." The applicant is known to have provided financial and other help to his neighbours in the housing commission block where he lived. 11 Four grounds of appeal were advanced in the application being:

1. The learned sentencing judge erred in his consideration of the mental illness of the applicant.

2. The learned sentencing judge erred in his approach to the question of whether there were special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

3. The learned sentencing judge erred in allowing only a 20 percent reduction in sentence for the plea of guilty.

4. The sentence is manifestly excessive in all the circumstances. 12 The sentencing judge found that the applicant was not remorseful and was not prepared to find that the applicant was "not fully aware of the consequences of his action." He concluded that the applicant was dangerous and rejected the suggestion that he was "unlikely to re-offend". 13 The sentencing judge rejected a submission that the applicant's mental illness was causally connected to the commission of the offence. His Honour did not accept the diagnosis of Dr Nielssen, it being apparent that the account of the events which the applicant told the psychiatrist was at odds with the agreed facts placed before his Honour. In particular his Honour rejected the suggestion by Dr Nielssen that the applicant was acting "in response to a defect of reason in the form of persecutory beliefs arising from acute symptoms of mental illness" and further rejected the suggestion that the applicant did not know that what he was doing was "morally wrong." 14 To my mind the finding which his Honour made was soundly based. Where mental illness has played a part in the offending, the need for general deterrence may be diminished: R v Wright (1997) 93 A Crim R 48. However, where an offender understands what he is doing and the gravity of his actions, general deterrence may be of continuing significance: Wright at 51; R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [252]-[254]. The issue is further discussed in R v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445 and R v Hemsley [2004] NSWCCA 228 at [33]-[36]. 15 His Honour rejected the suggestion that the applicant's mental illness was causally connected to the commission of the offence. I am not persuaded that that finding was incorrect. Accordingly, I reject the first ground of appeal. 16 With respect to special circumstances the applicant complained that his Honour's finding is unclear. The sentencing judge said: "Ms McSpedden submitted that I should make a finding of special circumstances here so as to alter the ordinary [ratio] of the offender's non-parole period to his overall sentence. I have considered that submission and although I acknowledge that this is a case in which I could find special circumstances my assessment is that there is no proper reason for me to make a finding of special circumstances here and, therefore, I do not find special circumstances." 17 The applicant submitted that there was a compelling case for special circumstances, in particular because the applicant was aged in his sixties, suffered from a mental illness, and had never previously offended. 18 This Court has previously considered the question of special circumstances on many occasions. The decisions have emphasised the need for such a finding to be carefully considered and properly justified by an offender's circumstances. In R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 this Court considered the range of factors capable of constituting special circumstances. In particular, where factors relevant to the subjective circumstances of the applicant have been considered in relation to the head sentence it is important that they are not "double counted" and utilised to alter the statutory proportion between the head sentence and the non-parole period. The Chief Justice said in R v Fidow [2004] NSWCCA 172 at [18]: "Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur." 19 In Simpson at [73] the Chief Justice said when considering the appropriate relationship between the non-parole period and the total sentence: "As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive." 20 In the present case, his Honour's sentencing remarks suggest that he was aware that there were features of the applicant's case which would justify a finding of special circumstances. As I make plain below I am of the view that such a finding should be made. However, the issue is one on which sentencing judges may reasonably differ and is one of the many issues to be considered. I am not persuaded that by not making a finding in this case his Honour erred. 21 The sentencing judge provided a 20% reduction in the sentence for the plea of guilty. The applicant complained that he should have received the maximum entitlement having regard to the fact that he pleaded to the alternative count on the indictment but was dependent on its acceptance by the Crown if a trial was to be avoided. I do not accept this submission. 22 The applicant was arrested and charged on the date of the offence, 2 March 2007. He pleaded guilty more than 9 months later on 7 December 2007 when the matter came before the District Court. In the meantime there had been a committal hearing. 23 As has been said by this Court on many occasions the discount for a plea is to recognise the utilitarian benefit which it brings to the system of justice. When that plea is entered at the time of trial, even though to a lesser offence, the utilitarian benefit may be significantly different from that resulting from a plea at an earlier time. The relevant principles were discussed in R v Dib [2003] NSWCCA 117; Sullivan v R; Skillin v R [2008] NSWCCA 296; R v SY [2003] NSWCCA 291 at [85]-[88]. 24 The applicant submitted that this issue should be resolved by the fact that the Crown Prosecutor conceded at the sentence hearing that "it would be fair to say it was a plea at the earliest opportunity." This submission was made in recognition that the plea was entered as a result of the bargain between the Crown and the defence on the first day of trial. The concession was not appropriate and his Honour was correct to find that the applicant did not plead guilty at the earliest opportunity. 25 The applicant's ultimate submission was that the sentence was manifestly excessive. In my judgment this submission should be accepted. 26 The maximum penalty for the offence to which the applicant fell to be sentenced was seven years. This is of course in distinct contrast to the penalty for the more serious offence being twenty-five years. Although the wounds inflicted upon Mr Petrovic were serious they did not fall at the upper end of the range. Malicious wounding very often occasions significant and permanent injury to the victim. This was not a case in that category. Allowing a discount of 20% for the plea it is apparent that the starting point for the sentence was a total sentence of six years and six months. Having regard to the fact that this was a first offence, and could not be described as falling within the most serious case of this offence the sentence was excessive. 27 However, although not in the most serious category of case the offence was serious and the result of an aggressive response to Mr Petrovic's endeavours to assist the applicant. Mindful of the sentencing judge's findings of a lack of remorse and reservations as to his prospect of rehabilitation, a substantial prison term must be imposed. I have significant reservations as to whether in the circumstances the sentencing judge's finding that a discount of 20% for the plea of guilty was appropriate but I accept it for the purpose of re-sentencing. To my mind there is a need for the applicant to receive a lengthy period of supervision upon release and accordingly I would find special circumstances. Although not directly relevant to the offence, it is apparent that the applicant must continue on his anti-psychotic medication if he is to lead a stable life. 28 In my judgment the applicant should be sentenced to a non-parole period of two years and nine months with an additional term of one year and three months. I propose the following orders:

1. Grant leave to appeal and uphold the appeal. 2. The sentence imposed in the District Court is quashed. 3. The applicant is sentenced to a non-parole period of 2 years and 9 months commencing on 2 March 2007 and to expire on 1 December 2009 being the date upon which he is eligible to be released to parole. There is an additional term of 1 year and 3 months to commence on 2 December 2009 and concluding on 1 March 2011. 29 GROVE J: I agree with McClellan CJ at CL. 30 HOWIE J: I agree with McClellan CJ at CL. **********

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