Regina v Guivarra [2002] NSWCCA 69

New South Wales Court of Criminal Appeal

CITATION : Regina v Guivarra [2002] NSWCCA 69 FILE NUMBER(S) : CCA 60893/01 HEARING DATE(S) : Tuesday 5 March 2002 JUDGMENT DATE : 5 March 2002

PARTIES : Regina v Kyle Raymond Guivarra JUDGMENT OF : Spigelman CJ at 17; Grove J at 2; Smart AJ at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0947 LOWER COURT JUDICIAL Finnane DCJ OFFICER :

COUNSEL : R.A. Hulme (Crown/Applicant) P.M. Winch (Respondent) SOLICITORS : S.E. O'Connor (Crown) Sydney Regional Aboriginal Corporation Legal Service CATCHWORDS : CRIMINAL LAW AND PROCEDURE - MALICIOUS WOUNDING - SENTENCE - IMPRISONMENT SUSPENDED - NO MISCARRIAGE OF JUDGE'S DISCRETION - SENTENCE AND ORDER NOT MANIFESTLY INADEQUATE LEGISLATION CITED : Crimes Act The Queen v Dinsdale (2000) 202 CLR 321 CASES CITED: R v Foster [2001] NSWCCA 215 R v Zamagias [2002] NSWCCA 17 R v Kama [2000] NSWCCA 23 DECISION : CROWN APPEAL DISMISSED

IN THE COURT OF CRIMINAL APPEAL 60893/01 SPIGELMAN CJ GROVE J SMART JA

Tuesday 5 March 2002

REGINA v KYLE RAYMOND GUIVARRA

JUDGMENT

1 SPIGELMAN CJ: I invite Grove J to deliver the first judgment. 2 GROVE J: This is a Crown appeal asserting the inadequacy of sentence imposed by Finnane DCJ on the respondent at Sydney District Court. The respondent appeared before his Honour on a single count of malicious wounding having been committed for sentence after pleading guilty to that offence before a Magistrate. The maximum prescribed penalty is seven years imprisonment. The learned Judge sentenced the respondent to imprisonment for two years but directed that the imprisonment be suspended on condition that the respondent enter into a recognizance to be of good behaviour, such recognizance to be current for the whole of that term. 3 The respondent was born on 14 January 1970. For about ten years prior to September 2000 the respondent and one Penny Jarrett had lived in a de facto relationship. There are no children of that relationship, the respondent having been rendered sterile as a result of critical illness and treatment in his childhood. The relationship terminated and Miss Jarrett commenced a relationship with one Richard Hoskins. 4 At about 12.30pm on 25 September 2000 the respondent was driving in Maroubra, a suburb in which he had lived for many years and in which Miss Jarrett and Mr Hoskins were also living, when he passed Miss Jarrett and her sister who were walking dogs. There was some dispute as to the ownership of one of the dogs but as he drove past the respondent made insulting remarks to his former girlfriend. 5 Shortly thereafter he arrived at the victim's premises. The respondent raised the question of ownership of the dog with Miss Jarrett's sister. Mr Hoskins emerged from the premises and an argument ensued between the two men, in the course of which Mr Hoskins struck the respondent with a golf club. A fight continued until they were separated by Miss Jarrett's brother. 6 The respondent left the scene but returned in his car shortly thereafter. He was armed with a long bladed knife. He testified to Finnane DCJ that that knife had at all times been in his car. He had not journeyed for the express purpose of collecting it. Be that as it may, whilst armed with it he called out to Mr Hoskins who emerged again from his premises armed with an extendable baton. Fighting between the two men resumed in the course of which the respondent used his knife to stab Mr Hoskins twice in the abdomen. 7 Mr Hoskins sought sanctuary in a nearby TAB agency from which he was in due course transferred to hospital. Emergency surgery stemmed his bleeding and he was discharged from the hospital four days later. Whilst the wounded Mr Hoskins was within the TAB premises the respondent continued aggressive actions and language which included doing some damage to the TAB building. He was arrested at his place of work about two days later. 8 The respondent appeared for sentence on 19 February 2001 on which occasion the learned Judge at first instance adjourned the proceedings for nine months making particular reference to the respondent's undertaking anger management counselling and overcoming an apparent addiction to marijuana. During the period of remand he was required to report to police three times per week. Prior to that whilst on bail he had been reporting to police daily. When the respondent reappeared for sentence on 9 November 2001 his Honour imposed the sentence which I have mentioned. 9 The Crown's submission is that the sentence imposed failed adequately to reflect the objective gravity of the offence. It is acknowledged by the Crown that there were significant subjective factors to be taken into account. A submission by the Crown adverted to the apparent absence of attempts by the sentencing Judge to undertake the "two step process" referred to by Kirby J in The Queen v Dinsdale (2000) 202 CLR 321, that is to say, first a determination of whether a sentence of full time imprisonment was appropriate and second whether the circumstances were such as to lead to a further determination that the sentence should be suspended. It has been observed that it does not follow that every failure to advert to the two stage process mentioned by Kirby J requires a conclusion that this court must set aside the sentence and to proceed to re sentence R v Foster [2001] NSWCCA 215 per Badgery-Parker AJ, (Giles JA and Greg James J agreeing). Foster has been cited with approval in Regina v Zamagias [2002] NSWCCA 17. 10 Some mention should be made of the subjective factors. Although the respondent did not have an entirely clear record there had been no entry since 1993 when he was convicted of an offence relating to a dog and fined. Other offences were dealt with by fine except that in 1991 he had been placed on a recognizance to be of good behaviour for one year for common assault. He kept the recognizance. He was one of two children who were left to be raised by their mother when the respondent was aged about two. I have already mentioned his serious illness and chemotherapy treatment whilst he was a young person. About five years prior to appearing before his Honour he had cared for his mother in her final illness. He had had little or no contact with his father for many years. Whilst he was growing up his father had achieved responsible positions in relation to both Australian organisations concerned with Aboriginal and Torres Strait Islanders and representation upon a United Nations body in relation to indigenous people. When the respondent was charged with this matter his father became reinvolved with him and it was noted by his Honour that the respondent's father, whose place of residence and principal activity are centred upon Melbourne, had attended in support of him. 11 His Honour had the benefit of two reports from probation and parole officers, one prepared prior to the proceedings in February which led to the adjournment and another for the final period. He also had reports concerning the rehabilitation progress of the respondent. It is true that the respondent's progress was not perfect but his Honour was in a position to make a judgment about the extent and significance of progress. He found that the respondent complied with the conditions fixed and on the whole behaved in a responsible manner. That finding has not been shown to be wrong. 12 The Court has been referred to a number of cases for comparative purposes. For example R v Zamagias (above cited) where a sentence similar to the present was, on Crown appeal, replaced with a sentence of two and a half years imprisonment to be served by way of periodic detention with a non parole period of one year and nine months. However, that case involved a trial pursuant to s 33 of the Crimes Act which involved intent and carries the prescribed maximum penalty of twenty five years imprisonment, in contrast with the statutory maximum of seven years applicable to the respondent's crime. We were also referred to R v Kama [2000] NSWCCA 23 where the victim suffered what was described as "an extremely severe brain injury". The primary Judge had imposed a sentence of penal servitude for twenty seven months comprising a minimum term of nine months and an additional term of eighteen months to be served by way of periodic detention. On Crown appeal the Court increased the sentence to a minimum term of two years together with an additional term of one year, again the sentence to be served by way of periodic detention. In the course of his judgment Spigelman CJ pointed out that this offence (under s35 of the Crimes Act) is one which can vary to an extraordinary extent particularly in terms of the severity of an attack. Although Finnane DCJ quite rightly, if I may say with respect, observed that the respondent "had no cause at all to approach Mr Hoskins with a knife, much less to stab him", a judgment on severity of attack must necessarily take into account the overall circumstances which included the extendable baton with which Mr Hoskins armed himself and which he used. 13 The principal thrust of the Crown's argument was directed towards the order made by his Honour suspending service of the sentence of imprisonment. It was not directed to the assessment of two years imprisonment as such. It was submitted that there had to be something "special, exceptional or unusual" about the case for the court to conclude that it was appropriate to place the respondent on recognizance rather than ordering him to serve the sentence. 14 The court was taken to remarks in R v Zamagias (supra) including a statement about the scale of escalating severity expressed in Regina v LRS [2001] NSWCCA 338. It is unnecessary to dispose of this appeal to investigate the applicability or the validity of that scale in every circumstance. 15 In my opinion Finnane DCJ has not been shown to be wrong in reaching his conclusion. In addition to the matters which I have mentioned, his Honour was also made aware that Mr Hoskins and Miss Jarrett had relocated to Queensland the likelihood of further friction was removed by distance, as well as the apparent progress of the respondent towards rehabilitation. Although after being charged and appearing in court on the first occasion the respondent's employment had taken a turn for the worse, he had throughout his life generally been in active employment. Although the injury to the victim was no doubt threatening in the absence of treatment, he was discharged from hospital after four days without any indication of any need for further treatment. These are but factors to be weighed in the balance in order to determine whether the sentence and order were in all the circumstances manifestly inadequate. As I have indicated, in my view, that has not been demonstrated. 16 I would dismiss the appeal. 17 SPIGELMAN CJ: I agree. 18 SMART AJ: I have found this appeal quite troubling as it involves the respondent stabbing the victim in the stomach. Initially I was disposed to think the sentence was manifestly inadequate. It was certainly very lenient. However, on further consideration and having regard to the views of my brothers, I am not prepared to dissent from the orders which they propose. 19 SPIGELMAN CJ: The order is as indicated by Grove J.