New South Wales Court of Criminal Appeal CITATION : Regina v Kollas [2002] NSWCCA 15 FILE NUMBER(S) : CCA 60396/01 HEARING DATE(S) : 11/02/02 JUDGMENT DATE : 11 February 2002 PARTIES : Regina Robbie Ashley Kollas JUDGMENT OF : Kirby J at 1; Hidden J at 28 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0731 LOWER COURT JUDICIAL Hosking DCJ OFFICER : COUNSEL : L Lamprati (Crown) P J D Hamill (Appl) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Appl) CATCHWORDS : Criminal Law & Procedure - Sentence - Appeal against severity - Inadequate sentence of co-offender - Parity in such circumstances Crimes Act, 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act, 1999 Court of Criminal Appeal Act, 1912 The Queen v Doan (2000) 115 A Crim R 497 The Queen v Capper (1994) 69 ACR 64 CASES CITED: R v Tislandis (1982) 2 NSWLR 430 The Queen v Diamond (CCA, unreported, 08.02.93) R v Simpson [2001] NSWCCA 534 Power v The Queen (1973) 131 CLR 623 DECISION : Leave to argue the appeal.; Appeal dismissed. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60396/01 HIDDEN J KIRBY J Monday 11 February 2002 REGINA v Robbie Ashley KOLLAS Judgment 1 KIRBY J: This is an appeal by Robbie Ashley Kollas (the applicant), against a sentence imposed by Judge Hosking on 1 June 2001. Mr Kollas was charged with three offences as follows: First, that on 23 December 1999 at Willoughby, he did maliciously inflict grievous bodily harm upon George Kanaan with intent to do grievous bodily harm. Secondly, in the alternative, that on the same day he maliciously inflicted grievous bodily harm upon George Kanaan contrary to s39 of the Crimes Act 1900; and Thirdly, that on the same day he maliciously damaged property, namely a glass door, contrary to s195 of the Crimes Act. 2 Mr Kollas pleaded not guilty to each offence. He was tried before Judge Hosking and a jury. The jury returned a verdict of not guilty on the first count. However, it found him guilty on counts 2 and 3. His Honour therefore was obliged to sentence in respect of those counts. He did so on 15 June 2001, backdating the sentence to the time Mr Kollas went into custody, 16 March 2001. His Honour imposed a term of imprisonment of three years in respect of count 2 with a non-parole period of two years expiring on 15 March 2002. On the remaining count, his Honour sentenced Mr Kollas to a fixed term of six months, concurrent with the previous term. The Offences 3 The events giving rise to these charges occurred on 23 December 1999. Mr Kollas was driving a vehicle in Willoughby. He was accompanied by his mother and half brother, Luke Jones, who was younger. An incident occurred involving another vehicle. It was a vehicle used by the pizza shop in Willoughby Road for the delivery of pizzas. There was an exchange of abuse. The abuse was followed by what is commonly referred to as "tailgating", that is, Mr Kollas driving uncomfortably close to the vehicle in front, the pizza shop vehicle. 4 That was conduct which the sentencing judge described as silly and unnecessary. Unfortunately the incident did not end there. Mr Kollas then drove his vehicle past the pizza shop on three occasions. On one such occasion he swerved towards the entrance of the shop. A number of young men, who worked at the shop, were standing on the footpath. There was an altercation. A bottle was thrown, apparently by Luke Jones. It struck one of the men. Mr Kollas got out of his vehicle. He had, according to witnesses, a club-lock, being a large metal object used to lock the steering wheel of a vehicle. Threats were made as the club-lock was brandished. Mr Kollas then got back in his vehicle and drove off. However, his purpose was not to put an end to the incident. Rather, it was to obtain reinforcements so that he might return to the pizza shop. 5 Mr Kollas went to the hotel where another brother, Jason Ross, and his stepfather were drinking. They and another man, who was also drinking at the hotel, then got into Mr Kollas's vehicle. Mr Kollas drove back to the pizza shop. It is plain, as the learned sentencing judge found, that he was intent upon revenge. What followed was described by the sentencing judge as "chilling". And so it was. Judge Hosking gave a description of what happened in these words: "... the victim George Kanaan, a young man I think in his early twenties and of relatively slight build. Late in the afternoon of 23 December 1999 Mr Kanaan went to his place of part time employment, The Flying Pigs Pizza Shop in Penshurst Street at Willoughby to commence a work shift there. He was standing outside the shop minding his own business before he went inside to commence his shift. According to one witness, he was simply standing smoking a cigarette on the footpath adjacent to the front glass door of the pizza shop. Suddenly and without any warning to Mr Kanaan, the offender pulled up nearby in his old Holden sedan with three other men and a woman (who was in fact the offender's mother, Fay Hines). One of the three other men was the offender's half brother, Jason Ross. The offender and the three men with him rushed towards the front door of the pizza shop and tried to get inside to attack the occupants of the shop. The occupants closed the front door to protect themselves but unfortunately for him, Mr Kanaan was still outside and unable to get into the door before his workmates closed it. The offender and his male accomplices assumed (correctly) that Mr Kanaan had some connection with the pizza shop. In a highly agitated state they turned on Mr Kanaan, striking him with their fists repeatedly until he fell to the ground. At that time the offender was armed with a club-lock, that is to say a locking device to lock a car steering wheel. One of the offender's accomplices was armed with some kind of weapon described by one witness as being like a tyre lever. Whilst on the ground Mr Kanaan was struck with the club-lock and the other weapon. In addition he was kicked to the head and body and was stomped on with considerable force, both to his head and his body. To try and protect himself, Mr Kanaan assumed a foetal position and moved his hands and his forearms from his head to his torso and back again against the rain of blows and the kicks being directed towards him. Such was the savagery and duration of the attack upon him that his attempts to protect himself were in vain. He lost consciousness." 6 The consequences for Mr Kanaan were described by his Honour as follows: "When his attackers finally desisted and made off Mr Kanaan was left on the footpath, covered in blood, moaning and shaking uncontrollably as though experiencing an epileptic fit. Ambulance officers came to attend to him. In a grave condition he was taken to hospital where medical examination showed that he had significant intra-cerebral bleeding and to more than one area of his brain. He also had numerous cuts and abrasions. He suffered brain damage which may be permanent. He suffers from continuous headaches, or at least did at the date he gave evidence at the offender's trial and to that date and from the date of the attack to that date had not been able to resume either his normal work as a spray painter, nor indeed do any work at all." 7 Mr Kollas was identified. He was later approached by the police. He acknowledged his involvement in the incident. However, he denied that he was responsible for Mr Kanaan's injuries. 8 The case was put to the jury by the Crown upon a number of bases. Broadly, it was suggested that either Mr Kollas had inflicted the injuries upon Mr Kanaan himself, or was part of a joint criminal enterprise, the purpose of which was to inflict such harm. His Honour was satisfied beyond a reasonable doubt that Mr Kollas had struck the victim, though he may or may not have been responsible for the grievous bodily harm actually inflicted upon him. 9 Against this background his Honour said this: "The offence of maliciously inflicting grievous bodily harm is an offence of the utmost gravity in these circumstances. This was a premeditated attack by a group upon one man who was simply minding his open business. The thirst for revenge for a perceived wrong was at such a pitch that the offender and his companions did not seem to care who was the victim of their attack." 10 His Honour stated: "People such as the offender and his companions in this pitiless attack must understand that to beat and kick someone in these circumstances so savagely and repeatedly and without mercy for an imagined slight by somebody with whom the victim was associated will bring commensurate penalties. In my view the commission of the offence of malicious infliction of grievous bodily harm is one which calls for a sentence reflecting considerations of both subjective and general deterrence." Subjective Circumstances 11 His Honour, in his remarks on sentence, dealt with the subjective features of the applicant's case. He was a man aged 24 years. He had a number of convictions, all relatively minor. None involved crimes of violence. Mr Kollas came from a dysfunctional family in which his stepfather was an alcoholic and violent. Mr Kollas had exhibited some behavioural problems at school. He was described as a good worker. His Honour accepted that he was, to a degree, contrite. He also accepted that there had been reprisals against him in goal from people associated with the victim's brother who was a person with a significant criminal record. As a consequence, Mr Kollas had been taken into protective custody. He was likely to remain on protection for the duration of his sentence. His Honour accepted that his sentence was likely to be more arduous by reason of that fact. It was acknowledged that Mr Kollas had not been in prison before. 12 His Honour found special circumstances (s44(2) Crimes (Sentencing Procedure) Act, 1999). He made a small adjustment to the parole period, which would otherwise apply, fixing the non-parole period as two years. Sentencing Co-offender 13 It will be recalled from the description that I have given, that Jason Ross was one of the reinforcement that Mr Kollas obtained from the hotel. Mr Ross pleaded guilty to the offence of maliciously inflicting grievous bodily harm, being the same offence for which Mr Kollas was later sentenced. The plea was entered at an early date. Mr Ross was sentenced by his Honour Judge Herron QC on 20 April 2001. The court has been provided with Judge Herron's remarks on sentence. His Honour said this: "It is confusing, to say the least, to work out exactly how it came about that the defendant happened to be there at all." 14 His Honour later stated that Mr Jason Ross was there bent upon revenge for what he believed to have been an assault upon one of his friends. His Honour's remarks gave no indication that he was apprised of the precise sequence before the assault, as revealed by the evidence before Judge Hosking at the applicant's trial, nor the absence of provocation by the victim who was set upon. Nor does it appear from the remarks on sentence that his Honour was acquainted with the serious consequences for the victim, which included brain injury. His Honour acknowledged that the offence was serious and ordinarily would require a custodial sentence. However, having regard to the early plea of guilty and the subjective case, his Honour believed that it would not be in the community's interests to send the offender to goal. His Honour imposed a two year sentence suspended upon Mr Ross entering into a good behaviour bond. The Sentencing Judge's Comments 15 Judge Hosking was told of the sentence of Mr Jason Ross before he passed sentence upon the applicant. The remarks of Judge Herron were placed before him. When composing his own remarks on sentence, Judge Hosking stated that, in his view, the sentence of Judge Herron was inadequate. He said this: "I am not convinced that his Honour understood the true seriousness of these offences and, again with the greatest respect to his Honour, in my view that sentence was manifestly inadequate." 16 His Honour noted that a Crown appeal had been lodged. Further, his Honour sought to distinguish the case of Mr Kollas from that of Jason Ross. He said this: "The principal differences are that Jason Ross was not the instigator of these offences but that this offender was the instigator of them. Secondly, and more importantly in my view, whereas Jason Ross pleaded guilty, the accused did not plead guilty and is therefore not entitled to the same discount given to his co-offender who did. In my view, I have no alternative to impose a full time custodial sentence upon the offender." 17 Mr Kollas who was involved from the outset. It was he who had recruited Mr Ross and others from the hotel. Mr Kollas had also used the club-lock as a weapon. The Crown Appeal against Mr Ross 18 The Director of Public Prosecutions filed an affidavit which set out the course of the Crown appeal against the sentence imposed upon Mr Jason Ross. The matter came before the Court of Criminal Appeal on 14 August 2001. Mr Ross did not appear. The matter was refixed for 27 November 2001. Again, Mr Ross did not appear. The court was told that Mr Ross had gone to New Zealand. The Probation and Parole Service had commenced proceedings for breach of the bond. The appeal proceedings had been adjourned. They are listed before the Registrar of the Court of Criminal Appeal on 4 March 2002. This Court has been told that, so far as the Crown is concerned, the appeal is still on foot. The Appeal by Mr Kollas 19 Broadly, the applicant relies upon two grounds of appeal. · First, there is an argument based upon parity. Given the sentence upon Mr Jason Ross, it was suggested that Mr Kollas has a justifiable sense of grievance. · Secondly, the finding of special circumstances justified a more significant reduction of the non-parole period than given by the sentencing judge. 20 I will deal with each aspect. The Parity Argument 21 It would no doubt be convenient had the Crown appeal against Mr Jason Ross's sentence been heard before the determination of this appeal. If it were allowed, the supposed justifiable sense of grievance of the applicant may have no foundation. If it were not allowed, then the court would be in a position to approach this appeal with the remarks of the appellate court in mind. 22 However, Mr Ross may or may not return to Australia. Even were he to do so, the resolution of his appeal may be some way off. I believe that there is material which enables this Court to deal with the matter at this time. 23 The applicant drew attention to the decision of the Court of Criminal Appeal in The Queen v Doan (2000) 115 A Crim R 497. This was a case where a trial judge was confronted by a sentence imposed by another judge which he believed to be inadequate. The sentencing judge, Freeman DCJ, did not, in these circumstances, feel himself obliged to impose a sentence which took as its benchmark the inadequate sentence in the other case. To do so, in his judgment, would have perpetuated the error. Rather, his Honour believed that he should approach the sentencing task conservatively, that is, fixing a sentence which was "at the bottom the range of adequacy". On appeal, Grove J (with whom the Chief Justice and myself agreed), noted that such an approach reflected the suggestion of Anderson J in Western Australia in The Queen v Capper (1994) 69 ACR 64, where his Honour said this: "When a co-offender has been treated with excessive leniency, justice may sufficiently be done if the prisoner receives as lenient a sentence as can be justified within the accepted range for this kind of offence in the light of matters personal to the prisoner, including his record ..." 24 See also R v Tislandis (1982) 2 NSWLR 430 at 434-435. In The Queen v Diamond (CCA, unreported, 8 February 1993) in a dissenting judgment, Smart J, suggested that it may be appropriate in such circumstances for a sentencing judge to impose a sentence which might not be as heavy as might otherwise have been imposed. 25 Here, the sentencing judge referred to the case of The Queen v Diamond. He did not, in terms, refer to the need to approach his task conservatively. However, I regard the sentence imposed by his Honour as conservative. I do not believe that any lesser sentence is warranted. Before the Court should intervene, exercising its powers under the Court of Criminal Appeal Act, 1912 (s6(3)), it must form an opinion that "some other sentence ... is warranted in law and should have been passed" (cf Spigelman CJ, R v Simpson [2001] NSWCCA 534 para 79). I would therefore reject the argument which is based upon parity. Special Circumstances 26 So far as special circumstances are concerned, there were, as his Honour identified, matters which justified the finding of special circumstances. His Honour duly made such a finding. His Honour was obliged in fixing an appropriate sentence to determine the minimum time which justice required that Mr Kollas should serve before release on parole (Power v The Queen (1973) 131 CLR 623; R v Simpson (supra) paras 55 to 59). As a matter of discretion, that required only a small adjustment to the period which would otherwise apply under the Crimes (Sentencing Procedure) Act, 1999. Again, I do not believe that there was an error. It was a matter within his Honour's discretion. I would likewise reject the second ground. 27 The order that I propose therefore is as follows. I would give leave to argue the appeal. However, the appeal should be dismissed. 28 HIDDEN J: I agree. The order of the Court will be as proposed by Kirby J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.