New South Wales Court of Criminal Appeal CITATION: Christodoulou v R [2008] NSWCCA 102 HEARING DATE(S): 29 April 2008 JUDGMENT DATE: 15 May 2008 JUDGMENT OF: Campbell JA at 1; Grove J at 7; Johnson J at 45 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Multiple offences against family member victims and arresting police - Whether impositions excessive - Whether orders for cumulation and concurrency erroneous - (Per Grove J and Johnson JJ, Campbell JA not deciding) A deliberate self inflicted injury by the offender at the time of arrest not a matter of mitigation CATEGORY: Principal judgment Alameddine v R [2006] NSWCCA 317 R v Daetz [2003] 139 A Crim R 398 R v Engert [1995] 84 A Crim R 67 CASES CITED : R v Haddara [1997] 95 A Crim R 108 R v Israil [2002] NSWCCA 255 R v Scognamiglio [1991] 56 A Crim R 81 Sharpe v R [2006] NSWCCA 255 PARTIES: Spiro CHRISTODOULOU - Applicant REGINA - Respondent/Crown FILE NUMBER(S): CCA 2007/2862 COUNSEL: T Molomby SC - Applicant N Adams - Respondent/Crown SOLICITORS: J Papas - Applicant Solicitor for Public Prosecutions - Respondent/Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/21/0243; 06/21/0244 LOWER COURT JUDICIAL OFFICER: Ellis DCJ LOWER COURT DATE OF DECISION: 13 March 2007 IN THE COURT OF CRIMINAL APPEAL CCA 2007/2862 CAMPBELL JA GROVE J JOHNSON J Thursday 15 May 2008 Spiro CHRISTODOULOU v REGINA Judgment 1 CAMPBELL JA: I agree with the order proposed by Grove J, and, with one exception, with the reasons he gives. That exception is para 42 of the reasons for judgment. 2 I would prefer to leave undecided whether there are no circumstances at all in which injury or detriment that a criminal causes to himself or herself can operate as a mitigating factor. I can envisage a situation in which an argument might be put that an injury or detriment that a criminal had imposed upon himself or herself should be taken into account in mitigation. For example, if someone's criminal conduct had caused very serious injury to a family member, and the criminal thereafter spent considerable time and money in seeking to moderate the consequences of his or her action, an argument might be put that that was appropriate to take into account as a mitigating factor. I do not seek at present to foreclose what the appropriate response to such an argument would be, merely to leave open the possibility that it might be made. I would prefer to decide ground 4 on the basis of a more detailed consideration of the facts of the present case. 3 Apart from the matters recorded by Grove J in paras 35 and 36, the only evidence relating to the nature or effect of the applicant's self-injection with battery acid is a statement in a psychological report that "he received a graft from his right thigh due to necrosis of the arm muscle and tissue area." There is no indication of the extent of the necrosis. 4 While counsel at the sentencing hearing informed the judge, in the terms set out by Grove J at para 36, there was no allegation that the disability marred the applicant's physical capacity, as opposed to his appearance, and no indication of the size of the "crater" or of what the practical consequences of having it were. 5 In my view it is of considerable importance that the applicant's self-injection with acid, though not in itself a criminal act, was intimately bound up with his criminal actions on 20 January 2006. The types of detriments that have been recognised as extra curial punishment that can be taken into account as mitigating factors have all been detriments that have come to be imposed on the criminal after the crime has been committed in retribution for or as a consequence of, his having committed the crime, or detriments unintentionally arising from the criminal conduct. I would not expect a matter of mitigation to arise from something that was part of the committing of a crime itself – for example, a person who engaged a hitman to injure someone would be unlikely to succeed in arguing that it was a mitigating factor that he had paid a lot of money to the hitman. In the present case, when the self-inflicted harm is intimately bound up with the criminal conduct, and the extent to which it is a serious disability is not well established, I see no error in the trial judge not having mentioned it as being a mitigating factor. 6 As stated earlier, I agree with the orders proposed by Grove J. 7 GROVE J: The applicant seeks leave to appeal against the severity of sentence imposed upon him by Ellis DCJ at Parramatta District Court on 13 March 2007. The imposition concerned convictions for nine offences together with three further offences which were asked to be taken into account pursuant to the Form 1 procedure. The offending took place in January 2006. It is convenient first to sketch a summary of the facts which will provide context for demonstrating how the charges were derived. I extract this summary from a lengthy agreed statement which I will not reproduce in full but that is not to suggest that the extensive detail therein has been ignored. 8 On Saturday 14 January 2006 the applicant was at the house of his wife and three children (aged 14, 11 and 8). As had occurred on numerous prior occasions, the applicant was living separately and apart from his family. However, on this day he spent a considerable time at his wife's house using her computer. In the evening she asked him to leave but he responded with verbal abuse. At about 7.30 pm she left with the children to dine elsewhere. Upon their return the applicant again refused to leave when requested so to do. Upon being told that police had been called, he obtained a knife from the kitchen, grasped his wife by the throat and presented the knife to her. His fourteen year old son intervened and he and his mother were able to run into his bedroom. The applicant followed them and slapped his wife's face. Their son again intervened and the applicant took his wife's car keys, left the house and drove off. 9 Mrs Christodoulou and the children went to her parents' home which was located at the back. The two residences occupied parts of what constituted a battleaxe block. A short time later, the applicant returned and was holding a small axe with which he struck one of the car tyres. Exchange of words and some physical struggle occurred but the son pleaded "Don't do anything Dad, just leave" whereupon the applicant looked about, after which he climbed the fence and decamped. The police arrived but their search did not locate the applicant. 10 From these events emerged charges of common assault which I will refer to as counts 2 and 3 using the enumeration in the particulars of trial filed in accordance with the Criminal Appeal Rules. 11 In the days between 14 and 20 January, the applicant made numerous calls to his wife's landline and mobile phones and sent text messages to the latter. They contained a variety of threats to kill and also threats to harm himself, specifically by sticking a needle into his own arm. There was evidence that a threat of the latter nature had been made previously by the applicant, for example, in 2000 when his wife informed him that their marriage was over. The conduct in this period led to a charge of intimidating with intent to cause fear (count 4). 12 Shortly before 7 pm on Friday 20 January 2006 the applicant called his wife and asked to speak to his children and she urged him to turn himself in, commenting that he needed help. This call terminated but at about 8 pm he left a message on the landline asserting that, as he was not being allowed to see the children, he would inject himself with acid in the sight of his family. 13 Mrs Christodoulou and the children went to her parents' residence where her father, with the assistance of her brother, locked the doors and windows. Following a further message which included a threat of suicide, the applicant arrived at the premises. He attempted to open the power box but it had been effectively sealed against interference. He yelled threats and commenced kicking the front door damaging the handle and causing part of the architrave to collapse. At the time he was seen to have a syringe in his hand. 14 Thereafter he picked up a pot plant weighing about 40 kilogrammes and threw it through a window. It in fact landed on a mattress upon which his younger children had been sleeping over the previous five nights. The breakage of the window left remnants of large glass shards. The applicant commenced to enter the house through the window frame but he was stopped by his brother-in-law who was wielding a cricket bat. After the applicant retreated he moved again to the front door and applied further kicks to it. He later returned and attempted once more to enter through the broken window. He picked up a large shard of glass and threw it at his father-in-law which caused a wound to his forehead. It was deep, it bled profusely and required medical treatment. The applicant took a second glass shard and threw it also, but he missed his father-in-law and it hit his son on the upper thigh. Further entry was prevented by use of a door and the applicant retreated to the front of the house and resumed kicking the front door. 15 By this time it appeared that he had impaled his arm with the syringe. The foregoing circumstances led to charges of specially aggravated breaking and entering and committing a serious indictable offence, namely wounding (count 1), malicious damage to the front door (count 7) and common assault upon his son (count 5). 16 At a point when the applicant was still kicking the front door, police arrived. The syringe was observed to be impaled in his arm and he said to police that he would inject himself if they came any closer. He then picked up a brick and successively threw it at Subaru and Holden vehicles which belonged to his wife and father-in-law respectively. Both vehicles were damaged and two further charges of malicious damage to property arose out of this conduct (counts 8 and 9). 17 Thereupon the applicant rushed at the police officers who applied capsicum spray to him but this had no apparent effect and he resumed kicking the front door. More police arrived and a Sergeant Dodd called upon the applicant to desist and also informed him that he was under arrest. The applicant did not comply with the direction to desist and picked up nearby garden chairs which, in succession, he threw at police officers striking four of them. He then attempted to punch one of the police officers who avoided his blows. Ultimately police subdued the applicant and handcuffed him. This led to four charges of assaulting a police officer in the execution of his (and in the case of Sergeant Bills, her) duty. One such charge became count 6 and the other three charges were scheduled in the Form 1. 18 The prescribed maximum penalties in respect of the respective charges were for the specially aggravated breaking and entering, 25 years imprisonment; for common assault, 2 years imprisonment; for intimidation, 5 years imprisonment; for malicious damage to property, 5 years imprisonment and for assault of a police officer in the execution of duty, 5 years imprisonment. 19 It can be noted that, with the exception of count 1, the applicant pleaded guilty to the offences at Parramatta Local Court on 18 July 2006. He pleaded guilty to the remaining count 1 upon his arraignment in the District Court. He had been in continuous custody from 20 January 2006. Although he was for a time granted bail, he did not enter it. 20 The sentences imposed by his Honour were as follows: (a) On each of counts 2 and 3 (common assaults of 14 January 2006) to imprisonment for six months commencing on 20 January 2006 expiring on 19 July 2006. These sentences to be served concurrently with each other. (b) On count 4 (intimidation committed between 14 and 20 January 2006) to imprisonment for six months commencing on 20 March 2006 and expiring on 19 September 2006. (c) On count 1 (aggravated breaking and entering and committing a serious indictable offence on 20 January 2006) to imprisonment consisting of a non parole period of two years six months commencing on 20 September 2006 and expiring on 19 March 2009, with a balance term of three years commencing on 20 March 2009 and expiring on 19 March 2012. The offences on the Form 1 were taken into account in this sentence. It is convenient to note that his Honour also made an apprehended violence order to take effect from 13 March 2007 for a period of five years. It would thus expire at the end of the balance term and was ordered for the protection of the applicant's wife, their three children, her brother and her father. (d) On count 5 (common assault on the applicant's son on 20 January 2006) to imprisonment for six months commencing on 20 June 2006 and expiring on 19 December 2006. (e) On count 6 (assaulting a police officer in execution of his duty on 20 January 2006) to imprisonment for six months commencing on 20 August 2006 and expiring on 19 February 2007. (f) On each of counts 7, 8 and 9 (malicious damage to the door and two vehicles on 20 January 2006) to imprisonment for three months commencing on 20 May 2006 and expiring on 19 August 2006. These sentences to be served concurrently with each other. 21 Ground 1 of the grounds of appeal asserts that his Honour erred in accumulating the sentences in whole. As the dates of commencement and expiry above recited show, his Honour structured the sentences so that there was partial concurrency affecting some of the sentences to be served. This was recognized by the applicant and the thrust of argument in support of this ground was directed to an assertion that his Honour had not given effect to a stated intention when he said in his remarks on sentence: "In the Court's view there should be some cumulation as between the incidents of 14 and 20 January, and indeed, between some of the incidents involving different complainants and different criminality on the 20th." 22 It is true that there is no element of concurrency in respect of the offences on 14 January (counts 2 and 3) and the most serious offence on 20 January (count 1) and the offence of assaulting a police officer on that occasion (count 6). There is, however, a concurrency with the 14 January offences, sentences to the extent of two months in the sentence for assault of the applicant's son (count 6) and the entirety of the counts for the malicious damage to property (counts 7, 8 and 9). 23 His Honour did not indicate that he intended some cumulation in respect of all offences and I am unpersuaded that he failed to fulfil any expressed intention. The language in the above quoted remark would not comprehend count 4. 24 It was sought to derive support for the applicant's contention from a mis-statement concerning the specification in respect of the offence of intimidation (count 4). It might be observed that this was an offence committed on neither 14 nor 20 January but during the span of time between them. The sentence in respect of this count was ordered to be served concurrently with four months of the terms imposed for the offences of 14 January. In imposing the sentence on count 4, his Honour said that it would "date from 20 March 2006 and to expire on 19 March 2006". That was an obvious error and was corrected when it was drawn to his attention. At that time his Honour revealed that he had written down the date but I am unable to accept the submission that anything to support the applicant's contention should be inferred from that circumstance. 25 Ground 1 is not sustained. 26 Ground 2 asserts that his Honour erred in failing to take into account evidence of the applicant's mental state when considering the level of criminality. 27 There could scarcely be any debate about the fact that, at the time of the offences, the applicant was in a highly disturbed and emotional state. Senior counsel pointed to the applicant's invitation to police to shoot him as a dramatic illustration of his condition, but whilst I would consider such a statement to be an illustration of the level of his disturbance at the time, I would not deduce therefrom any diagnosis of some mental condition which would diminish the applicant's culpability. 28 There is ample authority that an offender who suffers a mental disorder or abnormality which affects the ability to make judgments or control faculties or emotions may be regarded as less culpable and that such a condition can have an impact in mitigating sentence: R v Israil [2002] NSWCCA 255. A person so affected may be an unsuitable vehicle for the inclusion of a substantial element of general deterrence: R v Scognamiglio [1991] 56 A Crim R 81; R v Engert [1995] 84 A Crim R 67. In the present case there was no psychiatric evidence establishing any relevant mental disorder or abnormality. There was evidence of a long and bitter dispute engaged in by the applicant, in particular with an insurance company for injuries which he sustained in an accident and as a result of which it was opined that his psycho-social functioning had deteriorated. A psychological report by Ms Emma Collins was tendered but she was unable to be relevantly definitive. Inter alia, she observed: "Mr Christodoulou presents as a diagnostic conundrum. His current personality suggests pervasive traits of significant dysfunction, commonly seen in personality disorder, nonetheless he does not satisfy criteria for this diagnosis. Alternatively, the entrenched anger, paranoid and substance abuse issues seem consistent with someone in the tertiary stages of a complex and chronic PTSD condition. However, the period of time in which this condition has been most severe (approximately eight years) seems somewhat briefer than expected." 29 His Honour made appropriate reference to this evidence. There was no error in his approach to the evidentiary material nor in his consequent assessment of sentence. I would reject ground 2. 30 Ground 3 asserts that the sentences imposed were excessive. 31 In a written submission it was put: "It is submitted that an overall sentence of 6 years and 2 months is excessive. His Honour at p 18 allowed a discount of 25 % for an early plea, utilitarian value and some aspects of contrition. It is submitted that the starting point before these discounts is too high. The error arose it is respectfully submitted by accumulating in whole and failing to take into account the applicant's psychiatric history and suicidal state when assessing his level of criminality." 32 The matters of cumulation and asserted psychiatric history have been dealt with under earlier specific grounds. In addition to the obviously high objective level of seriousness of the applicant's offences, on the issue of subjective factors it can be observed that the agreed facts included a circumstance that, as well as the numerous separations between the applicant and his wife during 15 years of marriage, two apprehended violence orders have previously been made although as at January 2006 these were by then expired. 33 The overall sentence, taking into account a notional calculation of a starting point before the discount stated by his Honour, was well within the ambit of a sound exercise of his discretion. It is also not without significance to be observed that the proportion of non parole period against the total sentence favoured the applicant and very much applied the submission by counsel in the District Court (who did not appear in the appeal) that a ratio of 50 percent would be appropriate. The effective ratio which can be calculated as being represented in his Honour's orders is 51 percent. I would reject ground 3. 34 Ground 4 asserts that his Honour erred in failing to take into account the injuries suffered by the applicant in the course of committing the offences. 35 As noted above, by the time police arrived, the applicant had impaled his arm on the needle of a syringe. The agreed facts state that the applicant "was taken to hospital due to injuries he sustained to himself with a syringe which contained hydrochloric acid or battery acid." 36 A statement by Sergeant Dodd notes that the applicant was admitted to Royal North Shore Hospital under police guard and on 24 January he arranged a hearing at the hospital when a Local Court registrar remanded the applicant in custody. There is little information in the papers about the applicant's medical condition in this regard but the transcript shows that the learned sentencing judge was informed by counsel, without objection by the Crown, about the matter in these terms: "He has now as a consequence of the ingestion or the injection of that material, a substantial and permanent disability to his arm, his upper arm effectively has a crater in it where the acid was injected, and that is something that is a constant physical reminder to him of his behaviour on this day." 37 For present purposes I would be prepared to accept the existence of the disability described by counsel. The question is whether his Honour should have granted the applicant some mitigation of sentence on account of that self inflicted disability. 38 The argument was developed to place the applicant's circumstances into the category of what is often referred to as extra curial punishment. In R v Daetz [2003] 139 A Crim R 398 the offender, following participation in a robbery, was assaulted by a group exercising a vigilantism and suffered a skull fracture with consequent brain involvement. There was no question of deliberate self infliction of injury. In Sharpe v R [2006] NSWCCA 255 the offender was shot by a security guard. In both those cases it was recognized that extra curial punishment may be taken into account although in Sharpe the extent of injury was not regarded as sufficient to require mitigatory reflection in sentence. Again, in Sharpe, there was no element of self infliction. 39 In Alameddine v R [2006] NSWCCA 317 the offender suffered extensive injuries when, in seeking to destroy evidence of amphetamine manufacture in a laboratory before the foreshadowed arrival of police, an explosion was initiated and the offender burned in the ensuing fire. An examination of authorities in that case included reference to R v Haddara [1997] 95 A Crim R 108 where an arsonist had been injured in a fire which he lit and Brooking JA in the Victorian Court of Appeal observed that the sentencing judge was right to treat the injuries as going to mitigation. With the concurrence of Kirby and Hislop JJ in Alameddine I concluded: "… there is a strong current of judicial opinion against outright rejection of the possibility of mitigation even where the injury is self inflicted or induced by the activity of the offender." 40 I added the qualification: "To the extent that the Crown submitted that there was a boundary created by injury sustained by self inflicted illegal activity beyond which no mitigation could be granted, I would reject it. That is not to say that the circumstances of infliction are irrelevant but to deny that, once injury is sustained by the action of the offender in the course of committing the crime, the consequences are incapable of giving rise to a factor of mitigation." 41 It is a step beyond Alameddine (and Haddara) to seek to extend the availability of a mitigatory element to a deliberately self inflicted injury as distinguished from occasions where the injury was, although self inflicted and in the course of crime commission, unintentional. 42 Insofar as the taking into account of extra curial punishment may be described as a principle, there is no authority for extending it to deliberately caused injury and such an extension should not, in my opinion, be recognized. 43 There was no error by his Honour in declining to reduce the assessment of the applicant's sentence on account of his having suffered the consequences of deliberately self inflicted harm. Ground 4 also fails. 44 I would grant the applicant leave to appeal against sentence but I would dismiss the appeal. 45 JOHNSON J: I agree with Grove 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. 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.