New South Wales Court of Criminal Appeal CITATION : Regina v BRETT [2004] NSWCCA 372 revised - 28/10/2004 HEARING DATE(S) : 27/9/04 JUDGMENT DATE : 27 September 2004 JUDGMENT OF : Wood CJ at CL at 1, 50; Barr J at 48; Hoeben J at 49 DECISION : 1. Leave to appeal granted; 2. Appeal allowed; 3. Sentence quashed, and in lieu thereof the Applicant is sentenced to a term of imprisonment of 9 years to commence on 12 October 2002, with a non parole period of 6 years and 3 months, to date from 12 October 2002, and to expire on 11 January 2009. The earliest date, therefore, on which the Applicant would be eligible for release on parole would be 11 January 2009. CATCHWORDS : CRIMINAL LAW - appeal against severity of sentence - maliciously inflict grievous bodily harm - plea of guilty. Crimes Act 1900 LEGISLATION CITED : Crimes Sentencing Procedure Act Listening Devices Act 1984 Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 137 A Crim R 180 Pearce v The Queen (1998) 194 CLR 610 R v Birks (1990) 19 NSWLR 677 R v Cooney [2004] NSWCCA 255 R v Cotter [2003] NSWCCA 273 R v Dibb [2003] NSWCCA 117 R v Doorey [2000] NSWCCA 456 R v Edigarov [2001] NSWCCA 436 R v GB [2002] NSWCCA 11 R v Hayes [2001] NSWCCA 358 CASES CITED : R v Johnson [2004] NSWCCA 76 R v KCH [2001] NSWCCA 273 R v KM and others [2004] NSWCCA 65 R v Lardner NSWCCA 10 September 1998 R v Pearson (2002) 137 A Crim 419 R v Rushby [1977] 1 NSWLR 594 R v Scott [2003] NSWCCA 28 R v Sutton [2004] NSWCCA 225 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Toro-Martinez [2000] NSWCCA 216 R v Totten [2003] NSWCCA 207 PARTIES : Regina Adam Eric BRETT FILE NUMBER(S) : CCA CCAP 2004/1892 COUNSEL : G Rowling (Crown) Applicant In Person SOLICITORS : S. Kavanagh (Crown) LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/1025 FILE NUMBER(S) : LOWER COURT O'Reilly QC DCJ JUDICIAL OFFICER : - 14 - IN THE COURT OF CRIMINAL APPEAL CCAP 2004/1892 WOOD CJ at CL BARR J HOEBEN J Monday 27 September 2004 Regina v Adam Eric BRETT Judgment 1 WOOD CJ at CL: The Applicant was arraigned, on 28 April 2003, on an indictment containing three counts. The first was a count of causing his former partner Emma Semlitzky grievous bodily harm with intent to murder her. On the day that he appeared for trial, he pleaded not guilty to that charge, but guilty to an alternative count of maliciously inflicting grievous bodily harm to that person with intent to cause her grievous bodily harm (s 33 of the Crimes Act 1900). That plea was accepted in full satisfaction of the indictment, to which there was also a plea of guilty to one count of maliciously wounding Christopher Robert Harper (s 35 of the Crimes Act). 2 The maximum available sentences for the two offences were imprisonment for 25 years and 7 years respectively. 3 The Applicant was sentenced on the count of maliciously inflicting grievous bodily harm with intent, to a head sentence of 10 years imprisonment, with a non-parole period of 7 years, and on the count of malicious wounding to a fixed term of imprisonment of 4 years. The sentences were directed to be served concurrently. FACTS 4 On 11 October 2002, the Applicant entered the home of the victim, his former defacto partner, without her permission, at night, and contrary to the terms of an Apprehended Violence Order, which had been made against him on 30 January 2002 at the Windsor Local Court. He armed himself with a filleting knife which was 26 centimeters in length with a blade 21 centimeters in length. Using that knife he inflicted stab wounds to the chest, abdomen, left wrist and head of Emma Semlitzky resulting in a hemothorax, collapse of the lung, and damage to her transverse colon. She suffered some injuries to the head when the Applicant kicked her, as well as a compound fracture of the left wrist. 5 At Nepean Hospital she underwent operations and was discharged 18 October 2003. She later required further surgical treatment and suffers from a Post Traumatic Stress Disorder such that she can no longer carry out her normal duties and has been unable to sleep at night. 6 The attack upon her occurred while she was making a 000 call following an attack which the Applicant had already made on the other victim, who, during the course of the struggle initiated by the Applicant, was struck with a knife to the back of his head, opening up a wound that bled and required suturing. 7 A conversation was recorded on the answering machine while the attack on Emma Semlitzky took place. That recording has the Applicant making observations such as "you fucked with the wrong person", "you are dead", "are you ready to die?" "you haven't let me see my daughter you cunt", "you are a goner, you are a fucking goner", "you fucking piece of shit" and so on. 8 By the time of this offence, which his Honour noted occurred during the existence of an Apprehended Violence Order, the Applicant had acquired a number of prior convictions including convictions for violence, the most recent of which was an offence which had been dealt with in 1995 of maliciously inflict grievous bodily harm. 9 The Applicant gave evidence in the course of the sentencing proceedings, in which he professed shame and disgust at what had occurred, recognised that he had a problem with anger management and alcohol, and also acknowledged having taken a knife from the kitchen in the victim's home before the attack on the two persons. 10 His mother gave evidence to suggest that he was remorseful, that he had been worried about his relationship with his daughter and that he had a history of difficulty with alcohol and drugs which had forced her, on one occasion, to take out an Apprehended Violence Order in relation to him. 11 The step father also gave evidence to show that the Applicant was a person who had been easily led and had acquired, at an early age, a problem with alcohol and gambling. 12 Evidence was tendered in the form of reports from Dr Westmore and Anita Duffy, each of which eliminated the presence of any significant mental illness, suggested that the Applicant was of average intellectual capacity, and noted that he had a problem with alcohol and that he would benefit from counselling. Ms Duffy noted that he appeared to be suffering from a degree of depression. Dr Westmore recorded him as being a "distressed person". THE GROUNDS OF APPEAL 13 The Applicant appeared before us in person and seeks leave to appeal his Honour's sentence upon a number of grounds, one of which might have been taken to be a request to have his conviction, for the count of maliciously inflicting grievous bodily harm with intent, set aside, upon the basis that he had been misled into offering a plea in response to an assurance that he would receive a 25 percent discount for a plea, and could expect a three to four year non-parole period. He has, however, this morning, indicated that he does not seek leave to appeal against the conviction, rather his appeal is confined to the question of sentence. 14 The remaining grounds largely turn upon the proposition that he received poor legal representation, with the result that various matters, that may have assisted him in relation to sentence, were not placed before the Court. In summary his complaints in this regard involve assertions that: (a) He only saw his counsel for 30 minutes on the day of the sentence hearing; (b) His counsel did not place before the judge the following facts: (i) that he had notified police of his concerns that the victim Harper had been guilty of child abuse in relation to his daughter; (ii) that he had, at various times, contacted the Police, DOCS, Legal Aid, the Salvation Army, a Chamber Magistrate, Family Law specialists and a Family Law Registrar to complain of the abuse or at least to seek some assistance in relation to it; (iii) that he had only entered the victim's home after hearing his daughter crying; and, (iv) that he had made various attempts to discuss, with his former partner, his concerns in relation to their daughter or to secure a meeting through one or other of the agencies that may have been in a position to assist. (c) His counsel had failed to tender: (i) a 16 page letter which he had prepared; and (ii) a letter and affidavit from his mother. (d) His representatives had not asked for a pre-sentence report, which may have been beneficial, had one been prepared; (e) they did not obtain copies of the medical reports in respect of the various knife wounds which, had they been procured, would have shown, on his account, that the wounds were not significant; (f) the statement of the facts which was tendered had been altered by them without his approval; and (g) objection had not been taken to the tender of the transcript of the conversation, between himself and the Ms Semlitzky, which happened to have been recorded on the answering service, while the telephone line was open during the course of the 000 call. 15 Additionally, it is contended that his Honour erred in so far as: (a) He found that the offences occurred without provocation, and also in so far as he found that the injuries to Ms Semlitzsky's arm were occasioned when the Applicant jumped up and down on it, as distinct from occurring when she fell to the ground (b) The discount for the plea was only 10 percent, which was an insignificant reduction for the utilitarian value of the plea. (c) No discount was given for the fact that he surrendered himself to the police, and had done so after being turned away from the police station that he first attended. (d) No consideration was given for the fact that he would serve the sentence on protection. (e) Insufficient weight was given to the gap between the present offences and his prior offending, a matter which was said by him to be suggestive of the fact that the offending was out of character. (f) Insufficient weight was given to the state of his mental health, in so far as there was a difference between Dr Westmore and Anita Duffy which, on his account, may have been reconciled in his favour had a further psychiatrist been qualified and provided a report, and, (g) The case was not one that was an appropriate vehicle for general deterrence. 16 Finally, it is contended that the Applicant observed the victim Harper looking at him through the doorway which is used by judges to enter the court room, that being suggestive, on his account, of some improper contact having occurred between the victim and his Honour. 17 Affidavits have been filed for the appeal from Ms Winston in relation to the state of the Applicant's custody; from counsel who appeared for the Applicant at trial, and from the solicitor who had the carriage of the matter. A statement from Mr Harper has also been tendered. Together they answer most, if not all, of the various grounds which have been argued and tend to show, at least in some respects, that the Applicant has been sparing with the truth. Should Leave to Appeal be Granted? 18 I turn first to what initially appeared to have been an attempt to go behind the plea for the count of maliciously inflicting grievous bodily harm, with intent. The acceptance of the plea in full discharge of a more serious count, it may be noted, was very much in the Applicant's favour. Although, the Applicant does not now seek to go behind that plea, I think it appropriate to note that the circumstances in which an application can be made to set aside a conviction after a plea has been accepted, and a sentence imposed are very limited. Having regard to the facts in this case, I am satisfied that it is not a case which could be said to have come within the area of improper pressure, from legal representatives, that was considered in R v KCH [2001] NSWCCA 273 and R v GB [2002] NSWCCA 11. 19 The relevant principles which apply in this context are those set out in R v Toro-Martinez [2000] NSWCCA 216, which was applied by this court in R v Cooney [2004] NSWCCA 255. 20 However, since the point is not now taken I leave it aside and turn to the remaining grounds which were argued. 21 First, the evidence of Ms Winston shows that the Applicant's custody will not be any more onerous than that for a main stream prisoner. He has been held in the Junee Correctional Centre as a Special Management Placement Prisoner at his own request. As such he is not on segregation, and he has access to the programmes and facilities which are there available. His classification is not affected by the placement. The case is, therefore, not one that, within the principles discussed in R v Totten [2003] NSWCCA 207 and R v Scott [2003] NSWCCA 28, calls for any reduction of the sentence or for a finding of special circumstance on this account. 22 Secondly, Mr Harper has provided a statement denying that he ever entered the area reserved for judges, or that he was in the courtroom other than in his balcony. 23 Thirdly, there is no possible issue concerning the extent and severity of the wounds that were occasioned to Ms Semlitzsky and it is somewhat surprising for the Applicant to suggest that the medical reports may have shown they were any less severe than as earlier described. The precise circumstances in which the arm injury was occasioned do not appear to me be of any great moment. Whether it was inflicted by the Applicant stomping upon the victim, or by her being forced to the ground in the course of a knife attack, the criminality involved would be equally serious. In any case, this court is a court of error. It is not open to it to review contested facts or findings where there is evidence available, as there was in this case, to support the finding made. 24 Fourthly, there is no basis for the submission that a presentence report would have assisted the Applicant. He had a bad prior record, he had detailed psychiatric and psychological reports placed before the Court, and he had evidence from his mother and step father which comprehensively dealt with his subbjective circumstances. The case is not one where any tangible benefit in the provision of a presentence report has been demonstrated. It clearly was a matter taken into account by the Applicant's legal advisors who were content to place before the Court the more detailed information, which was available from the sources mentioned. 25 Fifthly, the Applicant was not entitled to any discount for having handed himself in to a police station. He was wanted for the offences, his identity was known and his arrest was inevitable. 26 Sixthly, the evidence obtained from the answering machine was properly admissible under s 12(2)(d) of the Listening Devices Act 1984. 27 Seventhly, the case was one that was eminently suitable for a significant element of general deterrence to be built into the sentence, for the reasons which were identified in R v Edigarov [2001] NSWCCA 436. 28 Eighthly, as appears from the transcript of 3 October the reason that the 16 page letter was not tendered was that the Applicant had not brought it with him. Counsel did his best thereafter to give him a full opportunity to deal with such matters as had been referred to in that letter and to advance any matter that he wished to put. As appears from the affidavits, a forensic decision was made that the preferable approach was not to seek to justify the offence but to address his thoughts about the offence, his remorse and his appreciation of the effects of the offence on the victims. It is simply untrue for the Applicant to assert, as he did, that counsel ignored his directions in relation to this letter. 29 Ninethly, the Applicant's mother was called to give evidence. There is no reason to suppose that anything which may have been contained in the letter, or affidavit, was not placed before his Honour. In this regard the solicitor has said that the matter was discussed with the Applicant, and in the course thereof, he confirmed his instructions that she should give evidence directly rather than via the documents. 30 Tenthly, so far as an allegation is made that the statement of facts was inappropriately amended, or amended without his authority, it may be noted that the document which was signed has a single alteration which changed the word "they" in the sentence "they resided at 4 Wilcox Drive, Richmond" to "she resided" at that address. The "she" in question was the victim. I am unable to see how that could have had any relevance whatsoever in relation to the objective severity of the offence. 31 Eleventhly, as appears from the affidavit of counsel, as well as from the affidavit of the solicitor, the argument that evidence concerning the Applicant's approaches to the various agencies mentioned, was not placed before the Court is not supported by the documents which were subpoenaed from the Windsor Police, the Department of Community Services, the Salvation Army and the Commissioner of Police. In those circumstances it is difficult to understand what could have been placed relevantly before his Honour, or indeed what relevance it would have had. It is perfectly plain, as will be noted later, that these offences arose out of a dispute concerning custody and access of a child. 32 Twelvethly, the observations as to the lack of provocation which appear in the reasons for sentence were obviously directed to the period immediately preceding the offences. That is plain from the terms of the relevant passage in the sentencing remarks: "The Crown makes a valid submission that it was a case of an immediate attack, there was no provocation, there was nothing, no behaviour emanating from the two victims whatever to merit a sudden attack with a carving knife. And if he had some obsessive worry about Mr Harper taking over his role as father of the child, then why having attacked Mr Harper did he turn his attention to Emma and strike her with six knife blows and then another eight blows to the wall." 33 Any suggestion that the Applicant had been provoked by the conduct of either victim, on the occasion of his attendance at Ms Semlitzky's home, would have been comprehensively contradicted by the available evidence as to the events which unfolded and by the violent words of the Applicant captured on the answering machine. 34 It is clear that the sentencing judge was not unaware of the wider history of the relationship since that was referred to in some little depth in the histories taken by Dr Westmore and by Ms Duffy. It is true, when those documents were tendered, objection was taken to them being used other than as a basis for their expert opinions. So far as there was any difference in their opinions, it was one of only a minor degree, involving a distinction between depression and anxiety and a distressed state. 35 His Honour noted the substance of their opinions as well as the fact that the Applicant had been worried about his daughter. Assuming in his favour that the Applicant had genuine concerns for the welfare of his daughter, as distinct from a desire to have his own will so far as she was concerned, his response and his resort to violence would not have been mitigated by that circumstance. As I indicated in Edigarov this kind of dispute is not to be settled by personal violence. There is a time and a place for custody and access issues to be resolved and that has to be confined to the justice system. 36 In any event his Honour made it clear that Ms Duffy's assessment of him was taken into account in relation to the finding of special circumstances that was made. 37 Thirteenthly, the gap between these offences and the prior offences was not particularly significant given the nature of the offending involved and the poor record of the Applicant. It cannot have seriously been put to his Honour that he did not have a problem with alcohol and anger management, or that the offence was out of character. 38 Fourteenthly, so far as the Applicant seeks to demonstrate appellable error in relation to the alleged incompetency of his legal advisors, he needs to bring himself within the principles determined in this Court in R v Birks (1990) 19 NSWLR 677. In my view he has singularly failed in that attempt, having regard to the affidavits which have been filed by his counsel and solicitor, which indicate that counsel was provided with a full brief, and which also indicate that the solicitor attended conferences with him, on a number of dates both at the Penrith District Court, and at the Remand Centre, between July 2003 and October 2003. 39 So far as it has been suggested, additionally, that he was misled in relation to the plea, that was directly contradicted by the solicitor, who has said that it is incorrect for any allegation to be made that he assured the Applicant that he would receive a three or four year non-parole period. 40 As I have indicated the decision which was made at trial was to not to seek to justify the conduct, which would have been a fruitless exercise, but rather, to concentrate on matters of remorse, contrition and insight. That decision was a justifiable and understandable tactical approach to the sentencing exercise, and I am not persuaded that any error was made in that regard, of the kind that would attract intervention. 41 There is one matter, however, which seems to me to be of concern. That relates to his Honour's assessment that the plea was not an early plea, and that a 10 percent discount was properly to be given in relation to it, that being a discount at the lower end of the range suggested in R v Thomson and Houlton (2000) 49 NSWLR 383. 42 The fact is that the Applicant had indicated a willingness, at a much earlier date, to plead guilty to the alternative count, as well as to the remaining count, as is confirmed in the report of Dr Westmore which was dated 6 December 2002. 43 His Honour acknowledged that the Applicant was entitled to consideration for having avoided the need for Ms Semlitzky to give evidence, and that the plea had been entered into after discussion and agreement between counsel as to the agreed facts. 44 Erroneously, in view of the long line of decisions in this court, he said, in relation to the plea "the Crown makes the valid point that it was an extremely strong Crown case". District Court Judges must recognize that the strength of the Crown case is irrelevant in this context, a point that was made with considerable strength in R v Sutton [2004] NSWCCA 225. 45 The case is one in which it seems to me that once it became clear that the Crown would accept the plea to the alternative count then that should have been taken into account. The plea should not have been regarded as a late plea for the reasons identified in R v Dibb [2003] NSWCCA 117. Nor should its utility have been devalued because of an assessment that the Crown case was strong. In my view a discount within the range of 15 to 20 percent was justified. 46 That is a circumstance which justifies leave to appeal being granted and also justifies some reduction in the sentence. Otherwise, however, I am satisfied that the offences were such as to merit the imposition of very substantial period of full-time custody for the following reasons: (a) They involved a substantial amount of actual violence in a domestic setting, a matter of relevance having regard to the decision in Edigarov, which I have previously mentioned and also s 21A(2)(b) of the Crimes Sentencing Procedure Act ; (b) They involved the use of a knife, a matter which this Court has indicated, repeatedly, includes a form of conduct which the community regards with the greatest of abhorrence, see R v Doorey [2000] NSWCCA 456, see also 22A(2)(c) of the Act; (c) The Applicant had a record of previous convictions such as to indicate that particular weight needed to be given to retribution, personal deterrence and protection of the community: See R v Johnson [2004] NSWCCA 76; (d) The injury and emotional harm caused by the offences were serious: S 21A(2)(g); (e) The offences were committed at night. (f) The offences were committed in the home of one of the victims: see R v Lardner NSWCCA 10 September 1998, and R v Pearson (2002) 137 A Crim R 419; (g) The Applicant asked that offences of contravening an Apprehended Violence Order, and possession of a prohibited weapon without a permit, be taken into account on a form 1, thereby necessitating the imposition of additional imprisonment, for the reasons discussed in Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 137 A Crim R 180 at paras 40 to 42; (h) His Honour was required to impose a sentence that properly reflected the objective seriousness of the offence: R v Hayes [2001] NSWCCA 358 and R v Rushby [1977] 1 NSWLR 594; and, (i) The imposition of wholly concurrent sentences for the offences was favorable to the Applicant, having regard to the principles of totality noted in Pearce v the Queen (1998) 194 CLR 610 such that his Honour would have been fully within his rights in imposing a sentence that was at least partially accumulative, having regard to the fact there was more than one victim: See R v Cotter [2003] NSWCCA 273 and R v K M and others [2004] NSWCCA 65. 47 While I would not interfere with the sentence in relation to the count of malicious wounding of Christopher Harper, I am of the view that there should be some reduction both of the term of sentence, and of the non-parole period, in relation to the count of maliciously inflict grievous bodily harm with intent. I propose the following orders in relation to that count: 1. Leave to appeal granted. 2. Appeal allowed. 3. Sentence quashed, and in lieu thereof the Applicant is sentenced to a term of imprisonment of 9 years to commence on 12 October 2002, with a non-parole period of 6 years and 3 months, to date from 12 October 2002, and to expire on 11 January 2009. The earliest date, therefore, on which the Applicant would be eligible for release on parole would be 11 January 2009. 48 BARR J: I agree. 49 HOEBEN J: I agree. 50 WOOD CJ at CL: The order of the Court will be as I have proposed. ********** Last Modified: 11/01/2004 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.