R v Mendez [2002] NSWCCA 415

New South Wales Court of Criminal Appeal

CITATION : R v Mendez [2002] NSWCCA 415 FILE NUMBER(S) : CCA 60513/01 HEARING DATE(S) : 08/10/2002 JUDGMENT DATE : 8 October 2002

PARTIES : Regina v Priscilla Ingrid Mendez JUDGMENT OF : Sully J at 21; Howie J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/52/0044 LOWER COURT JUDICIAL Ducker DCJ OFFICER :

COUNSEL : D. Woodburne - Crown C. Craigie SC with C. Loukas - Applicant SOLICITORS : S.E. O'Connor - Crown Sydney Regional Aboriginal Corporation Legal Service - Applicant CATCHWORDS : Criminal Practice and Procedure - Sentence - Relevance of provocation LEGISLATION CITED : Crimes Act 1900 - ss 33, 35 CASES CITED: R v Qutami [2001] NSWCCA 353 R v Palu [2002] NSWCCA 381 DECISION : Leave to appeal granted, appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60513/01

SULLY J HOWIE J

TUESDAY 8 OCTOBER 2002

R v Priscilla Ingrid MENDEZ Judgment 1 HOWIE J: On 23 July 2001 the applicant pleaded guilty when arraigned on an indictment containing a count of maliciously inflicting grievous bodily harm. This is an offence contrary to s 35 of the Crimes Act and carries a maximum penalty of 7 years imprisonment. On 27 July 2001 Judge Ducker sentenced the applicant to 4 years imprisonment to date from 21 May 2001 with a non-parole period of 2 years and 3 months to expire on 20 August 2003 the date upon which the applicant will be eligible for release to parole. She seeks leave to appeal against that sentence. 2 The applicant was initially committed for trial on the more serious offence under s 33 of the Act, alleging that she acted with intent to do grievous bodily harm. But she offered to plead guilty to the less serious offence and the Crown accepted that offer. From the date that she pleaded guilty, the applicant was remanded in custody. She had previously been allowed on bail except for a period of 67 days. His Honour backdated the sentence he imposed to take into account this earlier period of custody. 3 The facts can be briefly stated. In the early hours of 11 November 2001, the victim, having consumed about 8 middies of beer at a hotel, caught a taxi to the residence of her ex-husband, Phillip Hansen. While the taxi waited for her, she knocked on the door and called out asking whether Mr Hanseon was all right. The applicant, who was living with Mr Hansen at the time, opened the window adjacent to the doorway and began to argue with the victim. The applicant suddenly leaned out of the window and swung a heavy object, probably a glass ashtray, into the face of the victim. The victim ran away from the house toward the taxi. The applicant, notwithstanding that she was naked at the time, pursued her. 4 As the victim attempted to get into the taxi, the applicant repeatedly struck at her head and body with the object she was carrying. While she was attacking the victim, the applicant said, "Leave us alone. I'm pregnant. We don't want anything to do with you." When he saw that the victim was bleeding from the mouth, the taxi driver called the police and drove her to hospital. 5 The next morning, the applicant said to Mr Hansen, "Your slut of a girlfriend came around early this morning and we had an argument." Mr Hansen noticed that one of his circular, glass ashtrays was missing. 6 The victim suffered a fracture to the lower left jaw, a shattered left cheekbone and a fracture of the left eye socket. She required reconstruction of the left side of her face involving the permanent use of two plates and eight screws. She is likely to recover well but with scars and possible left facial numbness. In a victim impact statement, she complains of disfigurement and constant pain. She states that she is depressed by her looks and in fear of the applicant. 7 The applicant did not give evidence before Judge Ducker, but a psychological report was tendered which set out the background of the applicant and her version of the events giving rise to the offence. The applicant told the psychologist that the victim would constantly come to the house where the applicant and Mr Hansen lived, especially when she was drunk. At the time of the offence the applicant believed that she was pregnant to Mr Hansen and the victim was constantly abusing her and "playing with her head". She said that she was in fear for herself and Mr Hansen when the victim was at the door. She struck her at the taxi because she thought that the victim was going to get out and attack her. 8 The applicant is now aged 23. She has a criminal record which includes offences of violence. In 1992 she was before the Children's Court in Victoria for offences including intentional or reckless causing injury. In July 1997 she was sentenced to perform community service for an offence of recklessly cause serious injury. At the time of the commission of the offence, for which Judge Ducker sentenced her, she was on bail for an offence of violence against Mr Hansen. That offence is described in the psychologist report as a drunken fight that occurred two weeks before the present matter and during which the applicant threw a television at Mr Hansen. 9 The psychologist described the applicant as a "very damaged young woman". She reported to him that her father was an alcoholic who was frequently violent to her mother. After her parents separated, she and her brother were placed in a foster home until, at the age of 9 years, she returned to her father to care for him. From the age of 11 she lived "on the streets" and abused alcohol continuously thereafter. The report continues: She attributes the violence of her offences to knowing nothing but violence in her life, both in her childhood and on the streets, and to alcohol intoxication. At the time of these offences she acknowledges drinking heavily and says that she had ceased to use heroin and was on the methadone program. This woman has many visible scars on her head and face and her report of a lifetime of violence both given and received is likely to be true. It is also quite possible that she has some degree of acquired brain injury which would contribute to the loss of control and level of her violence and an over-reaction to the effects of alcohol. The whole presentation as well as her thinking is variable. I think there is probably a co-morbidity of substance abuse, mental disorder and some degree of acquired brain injury. 10 The psychologist noted that the applicant expressed some regret and personal distress over the extent to which she hurt others and that she believed her first priority was to deal with her alcohol problem which she saw as the most important factor in her violent behaviour. The psychologist was also of the view that alcohol rehabilitation would be the first step towards the applicant's rehabilitation and that she should remain on the methadone program. He believed that she might well need psycho-active medication should she stop drinking alcohol and that she would benefit from a personal development programme as part of her alcohol rehabilitation. 11 Notwithstanding the psychologist's conclusions, which the sentencing judge accepted, and the compassion that his Honour expressed in respect of the applicant's background, Judge Ducker formed the view that the offence was towards the top of the scale of seriousness for offences under the section and, therefore, that a substantial sentence was called for. His Honour found that there were special circumstances by reason of the need for prolonged counselling of a psychological or psychiatric nature and for the applicant to undergo an intensive alcohol rehabilitation programme as soon as she is released to parole. 12 The first ground of appeal is that Judge Ducker erred in assessing the objective gravity of the offence by giving insufficient weight to provocation from the victim. It is submitted that this is evidenced by his Honour's failure to refer to significant factual matters during the course of his remarks. In particular, it is complained that his Honour did not take into account a version given by the applicant to the psychologist to the effect that the victim had made threats to the applicant and Mr Hansen, and that the applicant was in fear of the victim when she arrived at the house on the night of the offence. In my view there was no obligation on his Honour to either refer to, or accept, that part of the applicant's version which was on the one hand inconsistent with the objective facts of the matter and on the other merely a statement made by the applicant to a psychologist. 13 It has been held by this Court that statements made by an offender to a person preparing a report should generally be given little weight in the absence of evidence from the offender during the sentencing proceedings; see R v Qutami [2001] NSWCCA 353, and R v Palu [2002] NSWCCA 381. In the present case the applicant was not called to give evidence even though his Honour indicated to her solicitor that he was not prepared to take account of matters going to the facts and circumstance of the offence from the bar table. 14 The sentencing judge accepted that the victim was intoxicated; that she lied to the police about her reason for going to the house that night; and that there was an argument at the window between the applicant and the victim. But it did not follow from these matters that his Honour had to find that such provocation as there might have been from those facts themselves or when taken with the prior history, resulted in any significant mitigation of the offence. His Honour's failure to refer to any argument at the taxi that the time that the victim was being assaulted there, is quite explicable in light of the fact that he had found that the applicant had pursued the victim to the taxi even though she had already injured the victim at the house. The solicitor appearing for the applicant before the sentencing judge conceded that the applicant had no reason to leave the house in order to pursue the victim. 15 In respect of the second assault at the taxi his Honour stated: This was an extremely brutal, determined and vicious attack upon a woman who, by the reason of the earlier assault, was in no condition to resist being battered around the head in a way that could have proved fatal to the victim. This was, in short, an extremely violent attack. It showed a complete lack of restraint on the part of the offender.