Regina v Andrew Mitropoulos [2004] NSWCCA 402

New South Wales Court of Criminal Appeal

CITATION : Regina v Andrew Mitropoulos [2004] NSWCCA 402 HEARING DATE(S) : 17/11/04 JUDGMENT DATE : 17 November 2004

JUDGMENT OF : Bell J at 1; Buddin J at 27 DECISION : Application for leave to appeal be allowed; Appeal dismissed.

LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure Act) 1999 CASES CITED : R v Johnson [2004] NSWCCA 76 R v Veen (No 2) (1988) 164 CLR 465 PARTIES : Regina (Respondent) Andrew Mitropoulos (Applicant) FILE NUMBER(S) : CCA 2004/1842 CCAP COUNSEL : A Francis (Applicant) P Miller (Respondent) SOLICITORS : Gregory J Goold (Applicant) S Kavanagh (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0353 FILE NUMBER(S) : LOWER COURT Ainslie-Wallace DCJ JUDICIAL OFFICER :

- 8 - IN THE COURT OF CRIMINAL APPEAL 2004/1842

BELL J BUDDIN J

17 November 2004 Regina v Andrew Mitropoulos Judgment 1 BELL J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant by her Honour Judge Ainslie-Wallace (the Judge) on 19 September 2003. 2 The applicant was convicted at trial of the offence of enter a dwelling with intent to commit a serious indictable offence, namely, assault occasioning actual bodily harm in circumstances of aggravation. The offence is created by s 111(2) of the Crimes Act 1900. It carries a maximum penalty of imprisonment for fourteen years. The circumstance of aggravation particularised was that the applicant was armed with an offensive weapon, a piece of wood that resembled a cricket stump. 3 The trial proceeded between 7 and 11 July 2003. Following the return of the jury's verdict her Honour heard submissions on sentence and remanded the applicant in custody. On 19 September 2003 she sentenced the applicant to a term of five years' imprisonment to date from 11 July 2003 and to expire on 10 July 2008. A non-parole period of three years was specified. 4 It is convenient to set out the facts upon which the Judge sentenced the applicant by reference to the remarks on sentence: "The offender had a relationship with a Miss Elena-Blazquez which had continued over some years. At the date of the offence the relationship had ended. Ms Elena-Blazquez has a child, not the child of the offender, but with whom the offender had a relationship. It seems that he took the child regularly for access and his parents cared for the child while Ms Elena-Blazquez worked at night. Ms Elena-Blazquez met the victim and became friendly with him and after a time a sexual relationship developed between them. Shortly before the offence Ms Elena-Blazquez had moved into a new unit and agreed to allow the victim to stay with her in the flat for a short period. On the afternoon before the attack, 30 September 2002, the victim, Ms Elena-Blazquez and some other people were playing cards in the flat. The offender arrived and he spoke to Ms Elena-Blazquez. … The victim had spent the night of 30 September with Ms Elena-Blazquez. He said that early in the morning of 1 October he heard banging on the door and said that Ms Elena-Blazquez called out to her son, who was also in the flat, 'Don't open the door'. Ms Elena-Blazquez got out of bed and went into the next room. The victim said that the offender came into the room and said 'Get out of the unit, get up'. The victim said he was getting dressed when the offender king-hit him with a closed fist to the side of the head. The victim stood up and saw the offender pull a piece of wood, like a cricket stump, from his jacket sleeve and with it he hit the victim very hard several times around the top of the back. The offender left the bedroom. The victim, once dressed, came out into the sitting room where the offender punched him heavily to the face. The victim then defended himself and a scuffle occurred. During the struggle the victim and the offender moved into the child's room where the offender picked up a cricket bat which was there and struck the victim very hard on the lower back, twice. The offender told the victim to get out and the victim, deciding that discretion was the better part of valour, left the unit. As soon as he was outside he summoned assistance and the police and ambulance were called. He was treated in hospital for his injuries where included stitches to a cut inside his lip and he was released." 5 The applicant was aged thirty-two years at the date of sentence. A pre-sentence report and the report of Carlene Ryder, a psychologist, were in evidence on the sentence hearing. The applicant did not give evidence. A number of testimonials were tendered on his behalf. It will be necessary to return to the contents of some of these in light of the first ground of challenge. 6 The applicant's criminal history included that on 11 March 1997 he had been convicted by the Kogarah Local Court of contravening a condition of an apprehended violence order. He was released on an eighteen-month recognizance under s 556A of the Crimes Act (as it then stood). On 18 June 1997 he was convicted of an assault for which he was fined the sum of $150 by the Kogarah Local Court. On 14 November 1997 he was convicted of assault occasioning actual bodily harm. This conviction was recorded in the Parramatta District Court. He was released on a two-year recognizance under s 556A of the Crimes Act (as it then stood). The recognizance was conditioned that he accept the supervision of the New South Wales Probation Service. The statement of facts in relation to this offence was in evidence at the sentence proceedings. It occurred in February 1997 and arose in the context of a minor motor vehicle accident. The applicant had not been at fault in the accident. His partner who was in his vehicle was pregnant. He was concerned for her well being. He alighted from his vehicle and engaged in an argument with the other driver punching him and breaking his nose. 7 The sentence is challenged on two grounds. Firstly, it is contended that the sentencing judge gave undue weight to the applicant's criminal record and, secondly, on the same ground of manifest excess. The latter ground was developed in oral argument by the submission that the Judge failed to take into account a number of favourable subjective features that bore on the applicant's prospects for rehabilitation. Generally it was put that her Honour failed to give sufficient, or any, consideration to the applicant's prospects of rehabilitation. 8 It is necessary to refer in some detail to the matters that the judge took into account in dealing with the applicant's subjective circumstances. Her Honour referred to the pre-sentence report and the report of the psychologist. She noted that the applicant, although not the biological father of Ms Elena-Blazquez' child, had played a role in the child's upbringing, including by caring for him over extended periods. Her Honour noted the evidence that the relationship was of value to both the child and to the applicant and that it would be difficult to maintain were he to remain in custody. 9 The Judge found that the applicant came from a supportive and warm family. This was made clear, her Honour said, by reference to the testimonial written by the Reverend Grilli of the Greek Orthodox Church. Having regard to the other testimonials tendered on the applicant's behalf, her Honour further observed that: "All referees refer to the crime of violence as being out of character for the offender. He is referred to as being caring and compassionate. His criminal record speaks a different picture. In March 1997 he was convicted of breaching an apprehended violence order. In June 1997 he was convicted of common assault and on 14 November 1997 he was convicted of pleading guilty to assault occasioning actual bodily harm". 10 Her Honour went on to record that the applicant had not given evidence at the sentence hearing and to observe that in the pre-sentence report it was said that the applicant had denied having a serious problem with anger and violence. Her Honour noted that the applicant had attended a course while in prison in stress and anger management. 11 The Judge found that in none of the reports, references nor in the submissions made on behalf of the applicant had there been any expression of remorse or contrition for the offence. She referred to a passage in the psychologist's report in which the applicant was quoted as saying: "I'm upset with myself that it happened but I don't want to sit and get stressed over getting myself into this. I don't hold any ill feelings towards anyone." 12 The Judge found that the offence had been planned. The applicant had brought the piece of wood to the premises early in the morning. Her Honour considered, by reference to the evidence that had been given at the trial, that the offence was an extremely serious one. 13 The Judge considered that in light of the applicant's history of violence the sentence should reflect considerations of personal as well as general deterrence. 14 Ms Francis, who appeared on the applicant's behalf, submitted that while the applicant had three convictions for offences of violence the offending occurred over a limited period between late 1996 and early 1997 and it was relevant to note that the applicant had not offended thereafter until the commission of the present offence. 15 Ms Francis also submitted that the 1997 offence was committed in "bizarre circumstances" in which the applicant, who was not at fault in the motor vehicle accident, had lashed out in stressful circumstances. In Ms Francis' submission, the applicant's criminal record did not militate against leniency being afforded to him. In her submission the Judge erred in concluding that the criminal history was inconsistent with the assertions contained in the testimonials. 16 The testimonials included statements such as that made by the applicant's former employer, Mr Arronis, that the offence "contradicted deeply" the applicant's character. A number of testimonials were framed in similar terms; that is, they asserted the author's belief that the offence was completely out of character with the person whom they knew. It is in this context that her Honour's reference to the applicant's criminal record is to be understood. 17 Section 21A(2)(d) of the Crimes (Sentencing Procedure Act) 1999 requires the court to consider an offender's record of previous convictions as an aggravating factor to be taken into account in determining the appropriate sentence. Section 21A(4) requires the court not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. In R v Johnson [2004] NSWCCA 76 this Court considered the approach to be taken to s 21A(1)(d) holding that an offender's record of previous convictions was to be taken into account consistently with the statement of principle in R v Veen (No 2) (1988) 164 CLR 465. An offender's criminal record may illuminate his or her moral culpability and demonstrate the need for deterrence. It was in this way that her Honour paid regard to this applicant's record of past convictions for offences of violence. She said so much in her remarks on sentence. 18 I am not persuaded that ground 1 has been made good. 19 I turn to ground two. In oral submissions Ms Francis contended that the sentencing judge had failed to take into account sufficiently, or at all, a number of matters. These included that he enjoyed the continuing support of Ms Elena-Blazquez and, in this context, his prospects of rehabilitation might be assessed as high since there was no reason to fear the repetition of offences relating to Ms Elena-Blazquez. 20 However, as Ms Francis conceded in her oral submissions, the fair inference to draw from the Judge's remarks on sentence is that she was well aware that Ms Elena-Blazquez bore no ill will to the applicant. Ms Elena-Blazquez had departed in significant respects from her proof of evidence and was declared an unfavourable witness at the trial. Her Honour noted: "It was clear that she had regretted her statement to the police and was at pains to exculpate the offender for any criminality." (ROS 2) 21 I am wholly unpersuaded that the Judge's sentencing discretion miscarried by reason of her failure to refer in terms to the fact that there was no animosity between this applicant and Ms Elena-Blazquez. The applicant's conduct on this occasion was said to have been in part prompted by his concern that Ms Elena-Blazquez was drinking too heavily. He considered her conduct in this respect to be associated with her relationship with the victim of the offence. The Judge's emphasis upon the need for personal deterrence, given that the applicant had on two occasions lashed out violently from what may have been a misguided desire to protect his partner, was an approach that was open to her. 22 Ms Francis complained that the Judge failed to refer to the applicant's record of employment. It is to be noted that in the pre-sentence report it was said that apart from casual work the applicant had been mainly unemployed since 1996. It is true that in the psychologist's report it is recorded that the applicant had obtained an apprenticeship as a mechanic after leaving school. He abandoned this after two years because of the poor pay and thereafter he "went into the building game". He was said to have laboured at various sites over the next five years. He had been unemployed for a while because he had not wanted to be, "stuck being a labourer forever". He had worked as a seafood deliverer on and off for four years. Generally he reported a history of having left positions voluntarily and of easily finding new employment. He had worked as a cleaner for Qantas for some four years. His employment history appeared to have come to an end in 1997 in circumstances associated with the court cases to which I have referred. 23 I am not persuaded that her Honour's failure to set out in terms the evidence relating to the applicant's employment history up to 1997 constituted error. Ms Francis complained that insufficient weight was given to the fact this was the applicant's first sentence of imprisonment and that he had undertaken an anger management course. Her Honour did refer explicitly to the reference to the applicant having undertaken a course while in prison relating to stress and anger management. This was in the context of her Honour's observation that he had denied that he had a problem with anger or violence. 24 In Ms Francis' submission the offence was to be viewed at the low end of the scale for offences contrary to s 111(2) of the Act, and for a person who had not previously been sentenced to imprisonment the sentence was submitted to be manifestly excessive. 25 The sentence was one imposed following trial. It was well less than half the statutory maximum for an offence of this description. I am unpersuaded that such a sentence, in light of the factors to which the judge referred, can be said to have fallen outside the range of sound discretion. 26 For these reasons the orders that I propose are that the application for leave to appeal be allowed but that the appeal be dismissed. 27 BUDDIN J: I agree. 28 BELL J: The orders will be as I have proposed.