New South Wales Court of Criminal Appeal CITATION: Assaf v Regina [2007] NSWCCA 122 HEARING DATE(S): 12 March 2007 JUDGMENT DATE: 16 May 2007 JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hislop J at 4 DECISION: (1) Leave to appeal granted; (2) Appeal dismissed. CATCHWORDS: Criminal Law - Sentence - Appeal based on events subsequent to sentence. - Review of sentence a matter for executive government not court. LEGISLATION CITED: Crimes Act 1900 - ss 59(2), 178BA(1) Crimes (Sentencing Procedure) Act 1999 - ss 9, 66(1)(b), 21A R v Ashton (2002) 137 A Crim R 73 CASES CITED: R v Ehrenburg(NSWCCA, unreported, 14 December 1990) R v Mioduszewski (NSWCCA, unreported 28 May 2004) R v Munday (1981) 2 NSWLR 177 PARTIES: Applicant - Bakos Assaf Respondent - Regina FILE NUMBER(S): CCA 2005/1104 COUNSEL: Applicant - Mr J. Punch Respondent - Mr P. Ingram SOLICITORS: Applicant - Raphael & Associates Respondent - Director of Public Prosecutions (New South Wales) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0043 LOWER COURT JUDICIAL OFFICER: Nield DCJ LOWER COURT DATE OF DECISION: 21 April 2005 - 1 - IN THE COURT OF CRIMINAL APPEAL 2005/1104 McCLELLAN CJ at CL HULME J HISLOP J 16 May 2007 Bakos ASSAF v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Hislop J. 2 HULME J: I agree with the orders proposed by Hislop J and with his Honour's reasons. I would add the following. 3 The material before the Court persuades me that a combination of his sentence and the psychiatric condition which has supervened since, means that in consequence of his offence the Applicant has suffered far, far more than any punishment his offence deserved. The case is one which merits serious consideration by the executive government pursuant to the powers referred to in R v Munday (1981) 2 NSWLR 177 at 178 and, following the dismissal of this appeal, urgent such attention. 4 HISLOP J: The applicant was charged on indictment on the following counts: Count (1) attempt to obtain money by deception contrary to the Crimes Act 1900 s178BA(1). The maximum penalty for such an offence is imprisonment for 5 years when dealt with on indictment or 2 years if dealt with summarily. Count (2) assault in company occasioning actual bodily harm contrary to the Crimes Act 1900 s 59(2). The maximum penalty for such an offence is imprisonment for 7 years when dealt with on indictment or 2 years if dealt with summarily. 5 The applicant pleaded guilty to each count and on 21 April 2005 was sentenced in the District Court by Judge Nield. As to the first count his Honour deferred passing sentence conditionally upon the applicant entering into a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 ("the Act") to be of good behaviour for a period of 12 months. As to the second count his Honour sentenced the applicant to imprisonment for 1 year and 6 months. He fixed a non-parole period of 9 months and a parole period of 9 months. He ordered that the sentence be served by periodic detention and fixed 5 May 2005 as the date of commencement of the sentence. 6 The applicant has sought leave to appeal against the sentence on the second count on the grounds that: (1) the sentence imposed by his Honour Judge Nield was manifestly excessive and outside the appropriate range; (2) a sentence of periodic detention is no longer appropriate. 7 The circumstances of the offences were that the applicant was a concreting sub-contractor. He had sub-contracted to perform certain concreting works at a development site owned by a partnership comprising the complainant and a Mr Tauok. In June 2004 the applicant was paid by cheque for certain of the work done. The cheque was for $9,000. The applicant altered the cheque by increasing the amount to $19,000 and presented it at the bank for payment. The bank refused payment on the cheque. Thereafter the complainant agreed to pay the $9,000, in cash, on 24 July 2004. On that day only $1,500 was paid. It was agreed the balance was to be paid at about twelve noon on 26 July 2004. At twelve noon on 26 July 2004 the applicant was told (as recorded by his Honour in his Remarks on Sentence) that : the complainant would have to go to the bank and as he was very busy the [applicant] would have to wait. At about 12.30pm the complainant went to the Newtown branch of the ANZ bank and withdrew sufficient money to meet payment to the [applicant] and some other expenses. When he returned to the development site in his car the complainant was attacked by the [applicant] and four other men. One of the men was armed with a baton and two of the men were armed with hand guns. The men dragged the complainant out from his car and, notwithstanding that he said that he had the money for the [applicant], the men tried to drag him to the [applicant's] car. The complainant called out for help and he fell to the ground and he was punched, kicked, struck with a baton and threatened with a hand gun. After Mr Tauok had gone to the aid of the complainant the men left the scene in the [applicant's] car, with him driving it … the [applicant] disputes and, as I understand it, the Crown accepts, that he knew that one of the men was armed with a baton and that two of the men were armed with hand guns. Ground One – The sentence imposed by his Honour Judge Nield was manifestly excessive and outside the appropriate range 8 The applicant was born on 15 July 1967 in Lebanon. He was educated to year 10 and obtained the matriculation certificate. He then worked in the building industry. In 1991 he married and shortly thereafter he migrated to Australia. In Australia he worked as a concreter and form worker in the building industry and in 1997 he and his wife established their own concreting business. He has three young children. 9 His Honour, in sentencing the Applicant, referred appropriately to sections 3A and 21A of the Act. He had before him a probation and parole presentence report dated 11 March 2005 which concluded: The offender is eligible and has been assessed as suitable for a periodic detention order … and has signed an undertaking as required by section 66(1)(f) of [the Act]. 10 His Honour found that before his commission of the subject offences, the applicant was a man of unblemished character, well liked and well respected by those who knew him well and who regarded his commission of the subject offences as being contrary to his character; he was contrite, had the support of his wife, friends and business associates; he was not likely to re-offend and was likely to be rehabilitated; his guilty pleas were given at the earliest appropriate opportunity and entitled him to a 25% sentencing discount; the likelihood that he will not re-offend and will be rehabilitated were special circumstances which justified a non-parole period of nine months. 11 His Honour also found the second offence was a very serious offence. It was planned (albeit without much sophistication) and involved the actual use of violence and the actual use of a weapon, and it involved the threatened use of a hand gun and it, unfortunately, resulted in the complainant suffering some relatively minor injuries. 12 His Honour concluded: The factors not referred to in s21A of the Act are one, deterrence, and two, the concurrent jurisdiction of the Local Court. As to deterrence, as I consider that the offender is not likely to re-offend and is likely to be rehabilitated, personal deterrence is not as important as it might be in another case. However, general deterrence is important. People, when owed money, must be aware that they cannot enforce payment of the money with the use of force. 13 In my opinion, it was open to his Honour, in the exercise of his sentencing discretion, to conclude that the objective seriousness of the offence, the criminality involved and the need for general deterrence could not have been adequately addressed by a suspended sentence or other non custodial sentence notwithstanding the very favourable findings made by his Honour as to the applicant's subjective case. The sentence imposed by his Honour on count 2, having regard to the materials which were before him at the time of sentence, was well within the discretionary range open to him. I do not understand counsel for the applicant to contend otherwise. 14 It was however submitted on behalf of the applicant that, since the imposition of sentence, and as a result of it, he had suffered from an adjustment disorder with anxiety and depression. This condition had prevented him attending the periodic detention centre on all but two occasions since the commencement of the order. It had had a profound effect upon the well being of the applicant and his family. He no longer worked and as a result various assets of the family had had to be sold. It was submitted that the applicant's condition had resulted in a level of psychiatric and psychological disorder which took his case to a level where this Court should intervene and re-sentence. 15 In support of these submissions the applicant sought to tender affidavit evidence and reports of a psychiatrist and two psychologists which post dated the imposition of sentence as evidence to be taken into account in determining if the sentence imposed was manifestly excessive. The Crown submitted such evidence was inadmissible but accepted that the Court must see the evidence in order to rule upon it. 16 The general principle which has application in matters of this type was stated by this court in R v Munday (1981) 2 NSWLR 177 at 178 in the following terms: It has been made plain in this Court on many occasions that the court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong, was excessive or inadequate, as things existed at the time when it was passed. The review of a sentence in the light of subsequent events is the proper province of the executive Government and not of an appeal court. 17 In R v Ashton (2002) 137 A Crim R 73 at 76 [10] it was held: There is a firmly established principle that this Court will allow evidence to be introduced of events subsequent to the imposition of sentence concerning the physical or mental condition of the applicant where the existence or effect of that condition was unknown or not fully appreciated at the time sentence was passed. 18 The principle referred to in Ashton has application where the relevant condition existed at the time of the imposition of sentence but its existence or effect was unknown or not fully appreciated at that time. See Ashton (late manifestation of a pre-existing psychiatric condition) and the cases upon which it relied namely Bailey (1988) 35 A Crim R 458 (late diagnosis of AIDS Virus), R v Ehrenburg(NSWCCA, unreported, 14 December 1990), (late birth of deformed child as a result of complications of pregnancy) see also R v Mioduszewski (NSWCCA, unreported 28 May 2004). 19 In his remarks on sentence the learned sentencing Judge observed that the applicant was in good health and there was nothing untoward with his physical or mental health. The histories recorded in the reports which the applicant sought to tender were confirmatory of his Honour's remarks. 20 Counsel for the applicant accepted the evidence did not establish the existence of a psychiatric condition which pre existed the imposition of sentence. The applicant had obtained an adjournment of the appeal on 28 September 2006 to seek expert evidence on that issue. The only report subsequent to that date sought to be tendered on behalf of the applicant was a report of the psychiatrist Dr Roberts dated 22 February 2007. That report did not traverse that issue. 21 The applicant was examined by a psychiatrist on behalf of the Crown. His reports were sought to be tendered in the event the applicant's further evidence was admitted. He stated expressly that the applicant had no premorbid psychiatric illness or psychiatric disorder. He also opined that the applicant had the mental and physical capacity to serve his sentence and that his response was not unduly different to many other persons sentenced for similar offences. 22 The further evidence sought to be tendered does not establish the applicant, at the time of the imposition of sentence, was suffering from any psychiatric condition or one the effect of which was unknown or not fully appreciated at that time. The principle referred to in Ashton's case has no application. 23 This Court in Ehrenburg stressed that the principle referred to in Ashton should be confined. 24 Loveday J, with whom Gleeson CJ agreed, said: It must be stressed, however, this is a most unusual case. It will be unfortunate if the special facts and circumstance of this case, which I regard as borderline, were to be regarded as a general precedent for the review of a sentence by this Court in the light of subsequent events. Such a course is, as it has always been, a matter for the executive government (see R v Munday (1981) 2 NSWLR 177). Samuels JA also agreed with Loveday J and cautioned against this Court erring in principle as a result of sympathy for an applicant. 25 In my opinion the principled approach to the law requires adherence to the principle expounded in R v Munday. Accordingly the additional evidence sought to be tendered must be rejected and this ground of appeal must fail. Ground Two - A sentence of periodic detention is no longer appropriate 26 Section 66(1)(b) of the Act provides that a periodic detention order may not be made unless the court is satisfied that the offender is a suitable person to serve the sentence by way of periodic detention. The applicant sought to tender and rely upon a probation and parole service report dated 26 September 2006 which states: The offender is eligible but has been assessed as unsuitable for a periodic detention order as per the requirements of s 66(1) of [the Act] … The reasons for unsuitability are as follows: Mr Assaf declined to be assessed for a Periodic Detention Order, stating he cannot cope in a custodial setting. 27 It was submitted the report established that the applicant was no longer a suitable person to serve his sentence by periodic detention and that accordingly he should be re sentenced by this Court. 28 A Court may have regard to the contents of an assessment report on an offender or the evidence of a probation and parole officer in deciding whether to make a periodic detention order (s 66(2) of the Act), However the Court may make such an order notwithstanding an assessment report that an offender is not a suitable person to serve the sentence by way of periodic detention (s66(4)(a)). 29 The report dated 26 September 2006 is dependant purely upon a subjective opinion expressed by the applicant. Such a report, taken alone, would not cause a Court to decline to make an order for periodic detention. 30 In any event the report relates to events subsequent to the imposition of sentence and as such is not admissible – see R v Munday. This ground of appeal must also fail. 31 In my opinion error has not been established. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal. 32 I propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed. ********** 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.