New South Wales Court of Criminal Appeal CITATION: R v Mauri [2005] NSWCCA 272 HEARING DATE(S): 1 August 2005 JUDGMENT DATE: 4 August 2005 JUDGMENT OF: Simpson J at 1; Johnson J at 2; Rothman J at 44 DECISION: See paragraph 42 of Judgment CATCHWORDS: SENTENCING - malicious wounding - excessive self defence - short non-parole period imposed - head sentence excessive - head sentence reduced Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 Criminal Procedure Act 1986 R v Alexander (1995) 78 A Crim R 141 R v Trevenna [2004] NSWCCA 43 R v Crombie [1999] NSWCCA 297 R v El Masri [2005] NSWCCA 167 CASES CITED: Veen v The Queen (No. 2) (1988) 164 CLR 465 R v WHS (CCA(NSW), 27 March 1995, unreported) R v Johnson [2004] NSWCCA 76 R v Johnson [2005] NSWCCA 186 Regina (Crown) PARTIES: Ngereteina Mauri (Applicant) FILE NUMBER(S): CCA 2005/1109 Mr J Bennett SC (Crown) COUNSEL: Mr C Smith (Applicant) Mr S Kavanagh (Crown) SOLICITORS: Mr S E O'Connor (Applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1202 LOWER COURT JUDICIAL OFFICER: His Honour Judge Finnane QC IN THE COURT OF CRIMINAL APPEAL 2005/1109 Simpson J Johnson J Rothman J 4 August 2005 Regina v Ngereteina Mauri Judgment 1 Simpson J: I agree with Johnson J. 2 Johnson J: Following a trial before his Honour Judge Finnane QC and a jury at the Sydney District Court, the Applicant, Ngereteina Mauri, was convicted on 15 December 2004 of the offence of malicious wounding. That offence carries a maximum penalty of imprisonment for seven years: s.35(1)(a) Crimes Act 1900. 3 On 22 December 2004, his Honour Judge Finnane QC sentenced the Applicant to a non-parole period of nine months to date from 22 December 2004 and to expire on 21 September 2005, with a balance of term of three years and three months commencing on 22 September 2005 and expiring on 21 December 2008. His Honour directed that, upon the Applicant's release on parole, he be placed under the supervision of the Probation and Parole Service for the balance of his sentence, and that he undertake such anger management and drug and alcohol counselling as that Service should propose and accept any reasonable directions given to him by that Service. His Honour noted that such supervision could be discontinued if the Probation and Parole Service saw fit. 4 At the time when sentence was imposed by his Honour, the Applicant was subject to a sentence of imprisonment for an unrelated offence which was to expire on 20 June 2005. Accordingly, the period of actual custody imposed upon the Applicant by way of non-parole period which related solely to the subject offence was three months from 21 June 2005 to 21 September 2005. 5 The Applicant seeks leave to appeal against the sentence imposed by his Honour Judge Finnane QC. Challenge is made to the head sentence of four years' imprisonment. For understandable reasons, the Applicant does not challenge the non-parole period imposed by his Honour. The Offence 6 On 15 May 2004, the Applicant was present in a hotel at Campsie. He had consumed a significant amount of alcohol. The Applicant was sitting at a table with a number of men. He approached another table at which a young woman was sitting with other persons. He spoke to her, but she did not wish to have anything to do with him and she made that plain to the Applicant. A man who had been sitting at the table with the young woman came back to the table and tried to persuade the Applicant to leave. The Applicant ignored the man's request and persisted in his attempts to speak to the young woman. 7 The learned sentencing judge found that the Applicant was not touching or grabbing the young woman in any way, but was talking to her in a manner which annoyed her. 8 The victim, Sean Makepeace, was sitting at another table and observed what was happening between the Applicant and the young woman. Both the Applicant and the victim were unknown to each other prior to this incident. Mr Makepeace decided that he would intervene to request the Applicant to move away from the young woman. The learned sentencing judge observed that Mr Makepeace was a rather heavily built man who had consumed a substantial quantity of alcohol that day. Having approached the Applicant, the victim "had his face very close to that of the offender" and "was standing and directing the offender in very firm terms, and using very strong language that he should leave the table" (remarks on sentence, page 3). The Applicant replied using "some rather uncomplimentary words" towards the victim (remarks on sentence, page 3). At that time, the Applicant had his back facing a pole in the hotel. 9 What happened thereafter is set out in the following findings of his Honour Judge Finnane QC (remarks on sentence, pages 4-7): "In my opinion the jury verdict was perfectly consistent with the following having happened; Mr Makepeace striking the head of the offender sufficiently to push him back into the pole, after the two of them had been having an argument. Then the offender striking him with his fist, holding a glass, which broke against his face. The jury verdict, in my opinion, could well have been arrived at because they were satisfied that he was acting in some form of self defence but were not satisfied that what he did was a reasonable response to the assault which had been committed upon him. In my opinion what he did was not a reasonable response to the assault that had been committed upon him. It may be that he did not specifically advert to the fact he was holding a glass, he had been drinking for some hours and his senses may have been dulled. … … I am of the opinion that he was at the time he struck out at Mr Makepeace attempting to act in some form of self defence. He is a smaller man, he had obvious physical disabilities and he would not sustain for very long any fight with a man much bigger and burlier than him. What he did was not a reasonable response and caused a wounding in law. … … [I] t was a serious matter and the injuries, whilst not life threatening, were in themselves serious enough to warrant somebody standing by Mr Makepeace for half an hour trying to stem the blood flow and then for treatment to be given in hospital which include [ed] suturing for two wounds." 10 The offence involved the Applicant striking the victim with his fist whilst he was holding a glass. The glass broke against the victim's face. The injuries were serious enough to warrant a bystander trying to stem the victim's blood flow for half an hour and the hospitalisation of the victim for two wounds. A medical certificate which was tendered stated that the victim had a four centimetre laceration to his left temple and an eight centimetre laceration to his left cheek, a painful jaw and painful left shoulder. A total of nine sutures was required for the facial injuries. The victim was given a prescription for Panadeine Forte for pain relief. There was no evidence on sentence that the victim's wounds resulted in permanent disfigurement. Subjective Factors 11 The Applicant was born on 22 July 1965. He was 38 years old at the time of the offence and 39 years old at the time of sentence in the District Court. 12 The Applicant gave evidence at the sentencing proceedings. He was born in New Zealand and has six brothers and three sisters. He moved to Australia when he was 15 years old. 13 He had recently separated from his partner of 15 years, and he financially supported his two adult children in New Zealand who were aged 21 years and 18 years respectively. 14 The Applicant's father was an aggressive alcoholic. The Applicant became a ward of the State at an early age. He spent time in institutions in New Zealand before coming to Australia at the age of 15 years. He had limited education and was restricted in his ability to read and write. 15 The Applicant had been regularly employed as a steel fixer and references from past employers were in evidence on sentence in the District Court. 16 The Applicant had been involved in a motor cycle accident about 10 years before the subject offence and sustained a spinal cord injury, resulting in wasting of his legs and difficulty in walking. A Corrections Health Service medical certificate confirming this injury was received in evidence in the sentencing proceedings. 17 The Applicant's criminal history includes a number of offences of violence and offences involving the abuse of alcohol. 18 The Applicant's criminal record contains entries for common assault (two counts) in 1981 (Borstal training), assault female in 1982 (fine), assault in 1983 (four-year bond), assault occasioning actual bodily harm in 1984 (100 hours community service), assault occasioning actual bodily harm in 1999 (three-year bond) and common assault in 2003 ($400.00 fine). In addition, the Applicant has a record for drink-driving offences in 1983, 1985, 1987, 1991, 2003 and 2004. 19 On 1 May 2003, the Applicant was sentenced to terms of imprisonment at the Bankstown Local Court for drink-driving offences. He appealed to the District Court with respect to those sentences and was released on bail pending the hearing of his appeal. The present offence was committed by the Applicant on 15 May 2004 whilst he was subject to conditional liberty pursuant to this grant of bail. 20 On 21 October 2004, the Applicant appeared before the Campbelltown District Court upon his appeal against sentences imposed in the Bankstown Local Court for drink-driving offences. He was sentenced to imprisonment for eight months commencing on 21 October 2004 and expiring on 20 June 2005. It was this sentence which the Applicant was serving at the time of sentence by his Honour Judge Finnane QC. 21 The Applicant gave evidence in the District Court on sentence that he realised that he had a drinking problem and had put his name down on a waiting list for a course in prison, but had not, by December 2004, been able to undertake the course. He acknowledged that alcohol was the cause of much of his offending. He said that he was willing to accept any help offered to him by the Probation and Parole Service. 22 An affidavit of the Applicant affirmed on 1 August 2005 was read, without objection from the Crown, at the hearing before this Court. The affidavit confirmed that the Applicant, whilst in prison, had been attending regularly at AA meetings and had been participating in one-on-one counselling with a drug and alcohol counsellor since his transfer to the Mannus Correctional Complex on 11 February 2005. A reference and certificate annexed to the Applicant's affidavit attested to his attendance at such counselling and his completion of an anger management course in custody. Some Further Findings of the Sentencing Judge 23 Reference has been made earlier in this judgment to findings of fact made by the learned sentencing Judge with respect to the circumstances of the offence. In light of those findings of fact, his Honour Judge Finnane QC said (remarks on sentence, pages 8-9): "In my opinion, having regard to the findings of fact which I have made that this was an offence where the verdict of the jury is consistent with his acting in self defence to an unprovoked attack, but acting unreasonably, it is not necessary that I should sentence him to some lengthy period of imprisonment. I agree with the Crown that this is a serious offence, and of course he was on bail at the time the offence occurred." 24 His Honour made a finding of "special circumstances" for the purposes of s.44 Crimes (Sentencing Procedure) Act 1999. In this regard, his Honour referred to the Applicant's age, his need to have an opportunity to do something about his drinking, the fact that he had not been imprisoned for an offence of violence before, his good employment history in a difficult industry and the fact that imprisonment would be much harder for the Applicant given his physical disability affecting his capacity to walk freely. His Honour found that there were "very good prospects of rehabilitation" (remarks on sentence, page 9). 25 His Honour said (remarks on sentence, page 9): "He needs the opportunity to do something about his drinking and to be subject to a fairly lengthy period of supervision to enable that to be done. I propose to give him that opportunity and to fix a non-parole period which is very much less than I would normally fix, having regard to the rehabilitative features. I consider he needs a lengthy period of supervision by the Probation and Parole Service and that he needs to do something about drinking and anger." The Sole Ground of Appeal – The Sentence is Manifestly Excessive 26 Mr Smith, Counsel for the Applicant, contends that, in light of the findings of the learned sentencing Judge concerning the offence, a total sentence of imprisonment for four years is manifestly excessive. Reliance is placed upon authorities concerning sentencing for offences of violence where there was provocation on the part of the victim (R v Alexander (1995) 78 A Crim R 141) or excessive self defence (R v Trevenna [2004] NSWCCA 43). 27 It was submitted that this offence fell below the mid-range of objective seriousness for offences under s.35(1)(a) Crimes Act 1900. Mr Smith points to the following features of the present case which bear upon the objective seriousness of the offence: (a) the Applicant was faced with substantial provocation comprising strong verbal abuse from the victim in close proximity to the Applicant's face and then a striking by the victim of the Applicant's head; (b) there was no, or practically no, time lapse between the provocative act of the victim and the response of the Applicant striking the victim; (c) the Applicant struck the victim only once and there was no evidence of an attempt to carry out a prolonged attack or inflict a series of blows; (d) the learned sentencing Judge accepted that there was no specific intent on the part of the Applicant to use the glass in striking the victim; (e) so far as the use of the glass is concerned, this was not a case where the Applicant armed himself in order to carry out the offence. 28 Counsel for the Applicant submits that it was relevant that an offence under s.35(1)(a) Crimes Act 1900 may be dealt with summarily in the Local Court. It was submitted that this remained a relevant consideration in the exercise of the sentencing discretion. It was not submitted that it followed that the sentencing judge was bound to proceed on the basis that the maximum available sentence was the maximum that could have been imposed in the Local Court: R v Crombie [1999] NSWCCA 297 at paragraphs 15-16; R v El Masri [2005] NSWCCA 167 at paragraph 29. 29 The Crown submitted that no error was shown in the learned sentencing Judge's assessment of the objective seriousness of the offence nor in the length of the head sentence which was imposed. The Crown emphasised the nature of the injuries sustained by the victim. Further, the Crown submitted that an assessment of the objective seriousness of the offence required consideration of: (a) the relevance of the Applicant's prior convictions: s.21A(2)(d) Crimes (Sentencing Procedure) Act 1999 ; Veen v The Queen (No. 2) (1988) 164 CLR 465 at 477; (b) the serious aggravating feature that the offence was committed whilst the Applicant was on bail for alcohol-related offences: s.21A(2)(j); R v WHS (CCA(NSW), 27 March 1995, unreported). 30 With respect to the Applicant's prior criminal history, the Crown emphasised the fact that the Applicant had, in his adult life, no fewer than nine prior convictions for assault or causing damage to property and at least six other prior offences that were directly alcohol related. He had been given the benefit of recognisances, community service, fines and a suspended sentence in the past, including supervision by the Probation and Parole Service. 31 With respect to the breach of conditional liberty, the Crown submitted that whilst the present offence was not identical to the offences for which he was on bail, the nexus with alcohol was present. The Crown contended that this was a relevant aggravating feature in addition to the Applicant being on conditional liberty per se. 32 The Crown submitted that an effective non-parole period of three months was extremely lenient and arguably did not provide meaningful punishment for the offence. It was submitted that the relatively long parole period, designed to assist the Applicant's rehabilitation, shifted the sentence very much in the Applicant's favour. The Crown submitted that the ratio of the parole period to the non-parole period gave too much weight to the Applicant's subjective circumstances at the expense of the objective seriousness of the offence and the aggravating factors present. The Crown pointed out that the nine-month non-parole period represented only 18.75% of the four-year term. It was submitted by the Crown, correctly, that this was a generous allowance following upon his Honour's finding of "special circumstances" which allowed a variation of the statutory proportion. 33 Given the objective seriousness of the offence and the aggravating factors present, the Crown submitted that no lesser penalty was warranted in law: s.6(3) Criminal Appeal Act 1912. Consideration of Submissions 34 The non-parole period in this case was generous to the Applicant. However, the Crown has not appealed against any suggested inadequacy in this part of the sentence. The Applicant, of course, does not contend that the non-parole period is excessive. Accordingly, it is appropriate to determine the present application for leave upon the basis that the non-parole period will stand. 35 The head sentence of imprisonment for four years must be considered against the background of a maximum penalty of seven years' imprisonment for an offence under s.35(1)(a) Crimes Act 1900. Having regard to the circumstances of the offence alone, there is merit in the submission by Counsel for the Applicant that this was a case that fell below the mid-range of objective seriousness. Factors which bear upon this assessment have been referred to earlier in this judgment (see paragraph 27). The offence involved a single blow to the face of the victim in circumstances of excessive self defence. The learned sentencing Judge did not find that the Applicant had consciously used the glass in his hand as a weapon. To a very large extent, the learned sentencing Judge accepted the Applicant's version of the incident. 36 It is true, as the Crown submits, that there were significant aggravating factors in this case based upon the commission of the offence whilst the Applicant was subject to conditional liberty and the Applicant's prior criminal record for offences of violence and alcohol-related offences. The record was of a type which could attract the application of the principles in R v Veen (No. 2): R v Johnson [2004] NSWCCA 76 at paragraphs 34-37. However, there were features of the case that pointed to the rehabilitation of the Applicant as being a significant factor on sentence. It is apparent that the learned sentencing Judge considered that the Applicant, at 39 years of age, was at something of a turning point with respect to criminality arising from his abuse of alcohol. The evidence of the Applicant's actions whilst in custody to undertake alcohol counselling and anger management assists him on the present application. 37 It will be recalled that his Honour concluded that "it is not necessary that I should sentence [the Applicant] to some lengthy period of imprisonment" (see paragraph 23 of this judgment). It is true that a short non-parole period was fixed. However, a significant head sentence was imposed by his Honour. It was intended to provide an extended period of supervision in the community following the Applicant's release on parole. It would, of course, be erroneous to extend the length of a head sentence beyond that which would otherwise be called for to allow for a protracted period of supervised liberty to the offender. Likewise, it would be erroneous for this Court to reduce the head sentence solely for the purpose of bringing it closer to a lenient non-parole period. 38 In my view, the capacity for an offence under s.35(1)(a) to be disposed of summarily in the Local Court does not assist the Applicant in this case. The Court was informed that the Crown elected that the matter proceed on indictment having regard to the nature of the injuries sustained by the victim and the criminal history of the Applicant. The Crown was of the view that the maximum penalty of two years' imprisonment available to the Local Court (s.267(2) Criminal Procedure Act 1986) may not be sufficient in this case, and that the matter should proceed to trial on indictment. It does not appear that any submission was advanced on the Applicant's behalf in the District Court that the possibility of summary disposal of the matter should be taken into account on sentence. I do not consider that the theoretical availability of summary disposal of a s.35(1)(a) matter assists the Applicant in this case: El Masri at paragraph 29, 38, 43. Conclusion 39 Given the findings made by the learned sentencing Judge concerning the offence and the offender, I consider that a head sentence of four years' imprisonment is excessive, even allowing for the aggravating features pointed to by the Crown. 40 In R v Johnson [2005] NSWCCA 186, Hunt AJA (Hulme J and myself agreeing) said at paragraphs 33-34: "Section 5(1)(c) of the Criminal Appeal Act permits a person convicted to appeal with leave against the sentence imposed. Section 6(3) permits the Court to impose another sentence in substitution for that sentence only if it is of opinion that such other sentence is warranted in law and should have been imposed. Neither provision requires this Court to identify any particular error before exercising that power. Indeed, as House v The King (1936) 55 CLR 499 at 504-505 says, even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the sentencing discretion. In such a situation where the precise nature of the error is not apparent, the Court will inevitably have concluded that the sentence imposed was outside the appropriate range for the circumstances of the particular case, and it must determine for itself what sentence is warranted in law in relation to those circumstances". 41 In all the circumstances of this case, I am satisfied that a head sentence of imprisonment for four years is manifestly excessive and that this Court should intervene pursuant to s.6(3) Criminal Appeal Act 1912. In my opinion, a head sentence of imprisonment for three years represents an appropriate sentence having regard to the purposes of sentencing contained in s.3A Crimes (Sentencing Procedure) Act 1999, and the factors required to be taken into account under s.21A of that Act, including the objective and subjective factors touching upon the offence and the offender. 42 I propose the following orders: (a) leave to appeal against sentence is granted; (b) the non-parole period of nine months to date from 22 December 2004 and expiring on 21 September 2005 is confirmed; (c) the balance of term comprising imprisonment for three years and three months commencing on 22 September 2005 and expiring on 21 December 2008 is quashed; (d) in lieu thereof, the Applicant is sentenced to a balance of term of imprisonment of two years and three months commencing on 22 September 2005 and expiring on 21 December 2007. 43 For the purposes of s.48 Crimes (Sentencing Procedure) Act 1999, I specify that the date on which the sentence of imprisonment commenced is 22 December 2004 and the earliest date on which it appears that the Applicant will become eligible to be released on parole is 21 September 2005. 44 Rothman J: I agree with Johnson 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. 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