New South Wales Court of Criminal Appeal CITATION: Frigiani v R [2007] NSWCCA 81 HEARING DATE(S): 22/03/2007 JUDGMENT DATE: 30 March 2007 JUDGMENT OF: Simpson J at 1; Barr J at 2; Howie J at 3 DECISION: Leave to appeal granted, appeal dismissed. CATCHWORDS: Criminal Law - Sentencing - application of R v Way - taking into account a prior offence dealt with under s 10 of the Crimes (Sentencing Procedure) Act. LEGISLATION CITED: Crimes Act 1900 - s 33 Crimes (Sentencing Procedure) Act 1999 - ss 10, 21A(2)(d), 21A(2)(j), 54B R v Way [2004] 60 NSWLR 168 R v AJP (2004) 150 A Crim R 575 R v Ancuta [2005] NSWCCA 275 R v Sangalang [2005] NSWCCA 171 CASES CITED: R v Zegura [2006] NSWCCA 230 MLP v R [2006] NSWCCA 271 R v Price [2005] NSWCCA 285 Veen v R (No. 2) (1988) 164 CLR 465 R v Palmer [2005] NSWCCA 349 PARTIES: Enzo Frigiani v Regina FILE NUMBER(S): CCA 2007/145 COUNSEL: R. Herps - Crown P. Lange - Applicant SOLICITORS: S. Kavanagh - Crown Mark Klees & Associates - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/3205 LOWER COURT JUDICIAL OFFICER: Marien DCJ LOWER COURT DATE OF DECISION: 24/03/2006 IN THE COURT OF CRIMINAL APPEAL 2007/145 SIMPSON J BARR J HOWIE J FRIDAY 30 MARCH 2007 Enzo FRIGIANI v REGINA Judgment 1 SIMPSON J: I agree with Howie J. 2 BARR J: I agree with Howie J. 3 Howie J This is an application for leave to appeal against a sentence imposed upon the applicant in the District Court by Marien DCJ (the Judge). On 21 October 2005 the applicant pleaded guilty in the District Court to an offence of malicious wounding with intent to inflict grievous bodily harm contrary to s 33 of the Crimes Act 1900. This is an offence for which a maximum penalty of 25 years imprisonment is prescribed and to which a standard non-parole period of 10 years applies. 4 On 24 March 2006 the applicant was sentenced to a term of imprisonment comprising a non-parole period of 5 years 6 months and a balance of term of 3 years 6 months. The sentence commenced on 8 December 2004 and the applicant is eligible to be released to parole on 7 June 2010. 5 The victim was the estranged wife of the applicant. They separated in August 2004 and the applicant moved away from the family home. The victim had continued to have contact with a former husband, the father of her child, but was not in an intimate relationship with him. However, the applicant was suspicious of this relationship. 6 On 6 October 2004 the applicant came to the house and demanded to know what was going on between the victim and her ex-husband and told her that he had heard rumours they were going to go back together. The applicant became angry and assaulted the victim by slapping her on the face and grabbing her throat. As a result the victim took out an apprehended violence order against the applicant. The applicant was charged with assault and on 23 November 2004 was place on a good behaviour bond under s 10 of the Crimes (Sentencing Procedure) Act. It was a condition of the bond that he not assault or interfere with the victim. 7 In December 2004 there were discussions about the applicant and the wife resuming their relationship and they spoke together by telephone on 6 December the day before the offence. She told him that she thought they should wait. He asked whether they could see one another but she said to leave it for the time being. 8 The next morning, 7 December 2004 the applicant rang the victim and asked if he could bring some flowers for their wedding anniversary. He later arrived with a bunch of roses. He told her that he wanted to talk about their relationship but she asked him to leave. He told her he wanted to make love to her but she refused. He dragged her to the bedroom where her son was present, and the applicant told him to go to bed. 9 The applicant first struck the victim to the head, and then placed his hand over her mouth and nose restricting her breathing. He threatened to kill her son. She struggled trying to make her way to the front door but the applicant grabbed her by the hair and pulled her to the kitchen. He grabbed a knife from the counter and stabbed her about six to eight times to the upper body. He then dropped the knife and left the scene. The victim was taken to hospital and treated for two large wounds, one to the left side of the chest and the other to her upper back. She suffered a collapsed lung. 10 Police were unable to find the applicant. However, that evening he rang Mr Scott, one of the persons from his workplace, and said that he had killed the victim. When asked why, he replied, "I saw Sylvia's [the wife's] ex husband. They were fucking in my house. I had to kill her". Mr Scott told the applicant to hand himself into police. They spoke again a short time later and the applicant said he was going to commit suicide. Mr Scott again told the applicant to go to the police, but he refused saying that he did not want to go to gaol. However, on 8 December the applicant attended the local police station and surrendered. 11 As a result of the attack upon her the victim made a fair physical recovery except for some nerve damage to one arm and a lacking of feeling in some of her fingers. She has scarring to her body. She was traumatised by the event and unable to return to her own home. She lacked trust in her relationships and could not allow her son to be left with anyone. She suffered from poor sleep and flashbacks. She has no social life. 12 The applicant was aged 36 years at the time of the offence. He had no criminal record except for the assault offence against the victim. He has very large family and community support. The applicant had been receiving counselling since the offence from a psychologist, who prepared a report for the sentencing court. The applicant had expressed guilt and remorse for the offence to the psychologist. He was of the opinion that the applicant's "personal and social functioning were highly destabilised" and that up to the time of offending "his personal adjustment was adversely preoccupied with the loss of his marriage". The applicant said that he had memory loss for the date of the offending and the psychologist explained this as "disassociation". The psychologist considered that the applicant's prognosis was positive as the applicant had "experienced deeply profound lessons from his actions and is very unlikely to repeat them". 13 The Judge found that the offence was an unplanned and spontaneous act. However he regarded the circumstances of the offending as very serious describing it as a "ferocious and frenzied attack". He stated that it was unprovoked by any actions of the victim or her former husband. The Judge found that the extent of the injuries and disabilities to the victim were substantial and an aggravating factor. He also held that there was gratuitous cruelty in the acts committed by the applicant prior to the stabbing including the threats made to kill the victim's son. However, the Judge concluded that the applicant was at the time of the commission of the offences in a state of emotional upheaval and that his moral culpability was mitigated to an extent by his mental state. 14 The Judge referred to the fact that the applicant pleaded guilty on arraignment. Although he found that it was not a plea at the earliest convenience, the Judge noted that it saved the victim from giving evidence. He thought that a discount in the middle of the normal range would be appropriate. The Judge found that the applicant was contrite and that this would moderate the sentence. He held that the applicant had good prospects of rehabilitation. 15 The first ground of appeal contends that the Judge erred by placing inappropriate reliance on the standard non-parole period for the offence even though the applicant pleaded guilty. In particular complaint was made about the following passage towards the end of the sentencing remarks: Accordingly, in sentencing the Offender, I propose to impose a non parole period which is less than the standard non parole period applicable for that offence and in particular the reason I am not imposing the standard non parole is, despite my finding as to the objective seriousness of the offence, the fact that he has pleaded guilty at a relatively early stage and in my view his positive prospects of rehabilitation warranting the finding of special circumstances and a variation on the statutory ratio. 16 It was submitted that, notwithstanding that the Judge had referred extensively to Way in his sentencing remarks and had quoted the summary of that case given by Simpson J in AJP (2004) 150 A Crim R 575, he had misconceived the manner in which he was to approach the standard non-parole period. It was submitted that the Judge ought to have referred to it merely as a guidepost or reference point but he had allowed it to dominate his discretion. In advancing this criticism the applicant's counsel, Mr Lange, referred the Court to R v Ancuta [2005] NSWCCA 275 and R v Sangalang [2005] NSWCCA 171 which he said were authority for the proposition that a judge should "state no more than that he or she has used the standard non-parole period as a reference point". The submissions indicated that the correct approach was contained in Sangalang at [22] and the following passage from that decision was quoted in support: A sentencing judge should state no more than that he or she has used the standard non-parole period as a reference point or guidepost, and then identify the appropriate non-parole period, describing where significant any particular matters taken into account in doing so. It was argued that the passage quoted above evinced the erroneous approach adopted by the Judge. 17 In my view the ground has no merit. The Judge was doing no more in the passage quoted than complying with s 54B of the Crimes (Sentencing Procedure) Act by exposing his reasons for departing from the standard non-parole period. It has been made clear in a number of decisions of this Court that, notwithstanding that an offender has pleaded guilty, the court is still required to "identify…each factor that it took into account" in increasing or decreasing the standard non-parole period: see s 54B(3) and R v Zegura [2006] NSWCCA 230. 18 In the present case, after considering the various aggravating and mitigating factors, the Judge found that the objective seriousness of the offence fell slightly above the midrange of seriousness. He then took into account as a "further aggravating factor" that the applicant was on a good behaviour bond for assaulting the victim. There is a ground of appeal relating to that finding that I will deal with shortly, but it is clear that the Judge, having considered the objective facts of the offence and formed a view as to where in the range of offending the present offence lay, then went on to consider other matters to see whether they aggravated or mitigated the seriousness of the offence. This is precisely what is required by Way. 19 The Judge then formed the view that he should depart from the standard non-parole period by giving the applicant the benefit of a discount for the plea of guilty and by a finding of special circumstances. In my opinion, rather than disclosing any error, the sentencing remarks show an attempt by the Judge to apply the standard non-parole period in precisely the way that has been approved by this Court: see MLP v R [2006] NSWCCA 271. There is nothing in either Ancuta or Sangalang to suggest otherwise. Ancuta was a case where the sentencing judge had erred by oscillating about the standard non-parole period by adding and subtracting factors. Sangalang was a case where the judge used the standard non-parole period as a starting point from which to make deductions rather than as a reference point to determine the appropriate non-parole period. The passage quoted from Sangalang in the written submissions is taken entirely out of context and is with respect misleading. The following is the full passage from the judgment of Hunt AJA with the quoted passage in italics: [22] It could perhaps be that the judge merely intended to say that he had fixed the non-parole period appropriate to the present case at four years, and then merely described it as the equivalent of eighty per cent of the standard non-parole period, but if he did reason in that way (which I doubt) his description was a particularly unfortunate one. A sentencing judge should state no more than that he or she has used the standard non-parole period as a reference point or guidepost, and then identify the appropriate non-parole period, describing where significant any particular matters taken into account in doing so. That appropriate non-parole period should never be described as a percentage of the standard non-parole period. 20 The second ground of appeal relates to the fact that the applicant was on a good behaviour bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act for assaulting his wife at the time of the commission of the offence and what use his Honour made of that fact. It was submitted that the Judge was not permitted to take into account the facts of that matter because to do so would be to deprive the applicant of the benefit of the dismissal of that charge under s 10. 21 After finding that the objective seriousness of the offence was "slightly above the mid range" the Judge stated: "A further aggravating factor in my view is the fact that some two months prior to this offence the Offender had assaulted Ms Frigiani. That firstly, of course, disentitles him from leniency in my view. But it demonstrates by way as an aggravating factor not aggravating in the sense that it makes the offence more objectively serious but for the reasons explained in Veen (No 2) and the recent decision of Palmer [2005] NSWCCA 349. That prior matter so soon before the commission of this offence clearly indicates that greater weight needs to be placed on the factor of personal deterrence in the sentencing exercise. Further, the offence is aggravated by the fact that the offence was committed whilst the Offender was subject to the constraints of a good behaviour bond under section 10, as well as an apprehended violence order. The Courts have stressed time and time again that apprehended violence orders must be observed. It is hard to imagine a more serious breach of that order than what occurred in this case." 22 The argument is that his Honour was not entitled to take into account an offence dealt with under s 10 as disentitling the offender to a finding of good character and, therefore, so the argument ran, the Judge could not take into account the conduct giving rise to that offence. The argument was founded on what was said by Simpson J in R v Price [2005] NSWCCA 285 as follows: [36] In my opinion there are good reasons for interpreting s21A(2)(d) as proposed on behalf of the applicant, that is strictly, and excluding reference to an offence in respect of which the offender has been given the benefit of a s10 order, from s21A(2)(d). Firstly, s21A(2)(d) is, in effect, a penal provision, which ought to be construed strictly, and beneficially to those against whom it operates. That is a conventional principle of statutory construction. Secondly, a s10 order is intended, expressly, to permit an offender to retain the benefit of good character. To extend the meaning of "conviction" in s21A(2)(d) to include a finding of guilt for an offence in respect of which no conviction has been recorded would be to defeat at least part of the object of s10. This court has held that s21A(2)(d) involves the application of the principles stated in Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465: see R v Wickham [2004] NSWCCA 193. 23 It can be seen immediately from this quote that her Honour was concerned with the application of s 21A(2)(d) of the Crimes (Sentencing Procedure) Act and whether the existence of an offence which was dealt with pursuant to s 10 can be treated as an aggravating factor under that provision. Neither this passage nor the reasons of her Honour elsewhere in the judgment gives the slightest support for the submission that a court is prohibited from taking into account prior conduct that has been dealt with under s 10. 24 It is clear that the prior matter was relevant in two ways. Firstly it was an aggravating factor because the offence for which the applicant was being sentenced was committed in breach of a good behaviour bond. That is an aggravating factor listed in s 21A(2)(j) regardless of the conduct in respect of which the bond was imposed. However, it is generally considered to be more aggravating when the conduct is similar to that for which the offender is being sentenced. The second paragraph of his Honour's remarks quoted above reflects this fact. 25 Secondly, the fact that the applicant had assaulted his wife was relevant to show that the offence for which he was being sentenced was not an aberration. For this purpose it was enough that the applicant had been found guilty of that conduct even though no conviction had been recorded against him. In part the first paragraph of the remarks quoted above reflect this fact. 26 However, I doubt that it was appropriate for the Judge to refer to Veen (No 2) in this regard or Palmer, which was a case concerned with an offender with a lengthy criminal record. In my opinion care should be taken when referring to Veen and the principles for which it stands when discussing the relevance of criminal record. It was never intended to refer to a situation where there was only one prior offence recorded against the offender even if the conduct of that offence was similar to that for which sentence was being passed. Simpson J pointed this out in part of her judgment in Price on which the applicant's counsel did not rely. The Judge was correct to hold that he needed to take into account personal deterrence, but he did not need to rely upon Veen for support for that proposition. 27 In my opinion neither of the grounds relied upon are made out. Therefore, I propose that leave to appeal be granted but the appeal be 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. 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