New South Wales Court of Criminal Appeal CITATION: Raczkowski v Regina [2008] NSWCCA 152 HEARING DATE(S): 24 June 2008 JUDGMENT DATE: 4 July 2008 JUDGMENT OF: Bell JA at 1; Grove J at 2; Latham J at 53 Appeal allowed DECISION: Sentences imposed in District Court quashed Resentenced (see par 52) CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Multiple offences by husband on estranged wife - Breach of current ADVO - Use of firearm - Sentence - Observation of possible ambiguity where standard non-parole period applies to offence against provision by section number and statute declares same penalty for attempt but determination not required - Error in applying apparently intended concurrency - Appropriate to adjust sentence commencement dates Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 CATEGORY: Principal judgment Hiron v R [2007] NSWCCA 336 Itaoui v R [2005] 158 A Crim R 233 R v Brown [2004] NSWCCA 249 CASES CITED : R v Burton [2008] NSWCCA 128 R v Dunn [2004] 144 A Crim R 180 R v Edigarov [2001] 125 A Crim R 551 R v Hamid [2006] 164 A Crim R 179 TEXTS CITED: PARTIES: Ted RACZKOWSKI - Applicant REGINA - Respondent/Crown FILE NUMBER(S): CCA 2007/00004595 COUNSEL: W Dawe QC - Applicant J Girdham - Respondent/Crown SOLICITORS: F McGowan - Applicant Solicitor for Public Prosecutions - Respondent/Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/31/0181 LOWER COURT JUDICIAL OFFICER: Sorby DCJ LOWER COURT DATE OF DECISION: 28/09/07 IN THE COURT OF CRIMINAL APPEAL CCA 2007/00004595 BELL JA GROVE J LATHAM J 4 July 2008 Ted RACZKOWSKI v REGINA Judgment 1 BELL JA: I agree with Grove J. 2 GROVE J: This is an application for leave to appeal against sentence imposed in the District Court. In order to give appropriate context it is desirable to recount some of the circumstances. The victim was the applicant's wife. They had been together for over 40 years, however the relationship had deteriorated and in April 2004 at Parramatta Local Court an apprehended domestic violence order (ADVO) was issued against the applicant for the protection of his wife. That order did not restrict their continuing to share the premises which had been their matrimonial home. 3 However, on 31 December 2004 the applicant was charged with two counts of common assault and three counts of contravening the ADVO. He was bailed on conditions which included not approaching or contacting his wife or being within 500 metres of the premises where they had both formerly resided. Despite these conditions the applicant wrote a number of letters to her, two of which were delivered by a family member and others were found by the victim left in and about the house. 4 On Thursday evening 27 January 2005 the applicant's wife attended a birthday celebration at the house of a friend in a nearby suburb. She arrived home shortly after 9 pm. She found that there had been left an old letter from the applicant together with a packet of photographs. She attended to having a cup of coffee and making a telephone call, after which she went to use an en suite facility attached to the main bedroom of the house. 5 As she emerged from the en suite she went to close the door of a walk in wardrobe which she noticed was opened, and, as she was turning on a light the applicant leapt from within and struck her on the face causing her nose to bleed. There followed further attacks by him and other serious criminal misconduct, the detail of which was recounted in a lengthy statement of agreed facts. For present purposes it will suffice to recount only some of the more prominent elements of the violence visited by the applicant upon his wife which took place throughout the night and continued until it was terminated when she was able to push him out of the front door early on the Friday morning, after which she was able to contact police who arrived at 7.20 am. 6 The applicant had initially prevented the victim from screaming by covering her face with his hand. Subsequently she was pushed to the floor and, among other things, the applicant said that he had come to hurt her and intended to torture her. Having announced this intention, he proceeded to tie her up with a length of orange nylon rope. He said that he had brought whisky and was, when he was ready, intending to engage in intercourse. To this his wife responded, "over my dead body" and he replied, "that can be arranged". He drew a Luger pistol from his pocket and pointed it at her head making a comment about his being "back in control". 7 The victim was able to struggle free from the rope but as she attempted to exit through the front door, the applicant apprehended her and dragged her back and retied her. He produced the whisky and two glasses. He placed the pistol on the floor next to where he sat. He commenced to drink the whisky and gave a glass to his wife. He proceeded to drink a considerable amount while she simply sipped what he had given to her. 8 Throughout these events there were exchanges which substantially referred to the breakdown of the relationship. Eventually the applicant began to cry and he later untied her but then made her walk to the bed and told her to remove her clothes. She removed some of her clothing and threw herself on the bed telling him to get over with whatever he was planning. He repeated his intention concerning intercourse but the victim commented that she did not intend to be raped on the last day of her life. He then tied one of her hands to the bedpost and secured the ankle on the same side of her body. He engaged in sexual assaults upon her but she prevented him from achieving penile penetration by kicking with her unsecured leg. She shouted at him to stop and he put a piece of her clothing into her mouth which acted as a gag. During these struggles, the victim got her hand free and scratched the applicant but he subdued her and again tied her to the bed. After this he straddled her and ejaculated over her face. 9 Later the applicant expressed shock at what he had done and that he intended to kill himself. He continued drinking whisky. His condition became such that the victim was able to push him out of the front door and she then made an emergency call to police who arrived and transported her to hospital. 10 In the meantime other police had observed the applicant sitting in a vehicle in a car park. On approach they saw that he was holding the Luger pistol to his chest. After negotiation, he opened the door of the car and fell to the ground leaving the pistol on the car seat. Police arrested him. 11 The charges against the applicant as ultimately dealt with were using a prohibited pistol without a licence or permit (count 1) which carried a maximum penalty of 14 years imprisonment with a standard non-parole period of 3 years imprisonment; detain with intent to obtain advantage occasioning actual bodily harm (count 2), maximum penalty 20 years imprisonment; attempt sexual intercourse without consent (count 3), maximum penalty 14 years imprisonment with a standard non-parole period of 7 years imprisonment and indecent assault (count 4), maximum penalty 5 years imprisonment. Taken into account on a Form 1 when sentence was imposed on count 2 was an offence of possessing an unauthorized firearm. At the final hearing, the applicant was also sentenced for breach of the ADVO, such charge having been transferred to the District Court pursuant to a certificate under s 166 of the Criminal Procedure Act. 12 I should record some observations about the statement that a standard non-parole period of 7 years was applicable to count 3. The Particulars of Trial filed by the Crown pursuant to the Criminal Appeal Rules noted that count 3 was charged pursuant to s 61I of the Crimes Act 1900 and that the standard non-parole period applied. Section 61I establishes an offence of sexual intercourse without consent, knowing that the other person is not consenting for which the prescribed maximum penalty is imprisonment for 14 years. The schedule in s 54D of the Crimes (Sentencing Procedure) Act 1999 specifies a standard non-parole period of 7 years for an offence against s 61I. The indictment charged the applicant with an attempt to commit an offence contrary to s 61I. There is no mention in s 54D of attempts but s 61P of the Crimes Act provides that a person who attempts to commit an offence under s 61I "is liable to the penalty provided for the commission of the offence". 13 In the District Court no question was raised about whether or not the statutory structure resulted in the applicability of the standard non-parole period when attempt was charged. It was mentioned in passing in the course of submissions in this Court but no argument was directed to the matter. As will appear when the impositions of sentence are examined, any issue about a standard non-parole period would not be determinative of the resolution of the appeal and insofar as it is perceptible that the statement in the Particulars of Trial may be argued to be incorrect, in the absence of hearing submissions, I would refrain from expressing an opinion. 14 The applicant was committed for trial from the Newcastle Local Court on 29 June 2005 and in due course a trial date of 17 October 2005 was set. On that date, pleas of guilty were entered and the applicant was remanded for sentence. In March 2006 he applied to reverse the pleas of guilty but when this application was listed on 18 May 2006 it was withdrawn. Sentence proceedings were heard in the latter part of 2006, however owing to the serious illness of the presiding judge they were not completed and by 27 September 2007 it became known that that judge would not be able to continue. The applicant then appeared before Sorby DCJ. His Honour was supplied with relevant material including transcript of the earlier proceedings, part of which was evidence given by the applicant. 15 There is an ambiguity in the expression of some of the sentence imposition but his Honour specified an intention to achieve an overall result of custody for a minimum of 8 years with a balance period of 3 years 6 months during which the applicant may be released on parole. The applicant had been in custody since his arrest on 28 June 2005. The ambiguity derives first from impositions on counts 1 and 3 of what were expressed as non-parole periods but without balance terms. Second, his Honour said in his remarks that he considered the appropriate sentence on count 3 to be 2 years but when imposing sentence he articulated a "term of a non-parole period of three and a half years, to commence on 28 January 2005 and conclude on 27 July 2008." 16 The endorsement on the back of the indictment records a sentence of "a term of 2 years to date from 28/1/05 and expire on 27/1/07" on count 3. The warrant of commitment reflects this endorsement. The warrant effectively treats both the sentences on counts 1 and 3 as fixed terms equivalent to the terms expressed by his Honour as non-parole periods. 17 Following his remarks concerning his assessments of appropriate terms for the individual counts, his Honour stated that he intended to make sentences partly concurrent and partly cumulative and backdated two counts to the commencement of the applicant's custody on 28 January 2005. 18 Accordingly, the applicant was expressed to be, as recorded in the remarks, sentenced on count 4 (indecent assault) to imprisonment for a fixed term of 12 months commencing on 28 January 2005 and expiring on 27 January 2006; on count 3 (attempt sexual intercourse without consent) to a "fixed term" of 3 years 6 months commencing on 28 January 2005 and expiring on 27 July 2008; on count 1 (use prohibited pistol) to a "fixed term" of 3 years imprisonment commencing on 28 January 2007 and expiring on 27 January 2010, and on count 2 (detaining for advantage) and taking in account the Form 1 offence (possessing unauthorized firearm) to imprisonment consisting of a non-parole period of 5 years commencing on 28 January 2008 and expiring on 27 January 2013 with a balance term of 3 years 6 months commencing on 28 January 2013 and expiring on 27 July 2016. For breach of the ADVO the applicant was sentenced to a fixed term of 3 months imprisonment commencing on 28 January 2005 and expiring on 27 April 2005. 19 The endorsements on the back of the indictment and the specifications in the warrant of commitment were the same except, as I pointed out above, the expiry date of the sentence on count 3 is recorded as 27 January 2007 rather than 27 July 2008. 20 The applicant relies upon six grounds of appeal. Ground 1. His Honour erred in failing to express the sentences in accordance with section 44 of the Crimes (Sentencing Procedure) Act 1999 in that when sentencing for counts 1 and 3 on the indictment his Honour failed to set a balance of term. His Honour also failed to give reasons for setting a fixed term in relation to count 4 as required by section 45(2). 21 That his Honour's impositions on counts 1 and 3 were expressed as non-parole periods but effectively amounted to fixed terms has been acknowledged above. In respect of neither of these impositions nor in respect of the expressed fixed term on count 4 did his Honour record any reasons for not setting a non-parole period and balance term. Such failures do not invalidate the sentences: Crimes (Sentencing Procedure) Act 1999 s 44(3) and s 45(4). 22 Whilst in the event of inconsistency it is the endorsement on the back of the indictment which is the record of the court prevailing over transcribed remarks, I am persuaded that the applicant's argument that the extent of concurrence and cumulation which his Honour intended has been infected by his error in expressing the sentence on count 3 and its expiry date, is made out. I comment that, even on the photocopies of the indictment in the papers, it is plain that the expiry date has been overwritten to substitute "07" for "08". 23 Subject to the sentence on count 4 being wholly concurrent with the first 12 months of the sentence on count 3 (irrespective of whether it is viewed as 2 years or 3 years 6 months), there is a pattern of partial cumulation and partial concurrency perceptible in the spans of the sentences except that the second year of service on count 3 has no concurrency with any other sentence and, in terms of his Honour's oral expression of a sentence of 3 years 6 months, concurrency is in the final 18 months, that period being concurrent within the first 18 months of the sentence on count 1 and the final 6 months being also concurrent with the first 6 months of the sentence on count 2. 24 As the operative sentence on count 3 is 2 years imprisonment (as earlier in his remarks, his Honour said he intended) there is no final 18 months of a 3 year 6 month sentence on count 3 and the applicant receives no benefit of partial concurrency during such period. 25 I am conscious that the consequence of his Honour's erroneous statement of sentence on count 3 can be viewed in different ways but I conclude that the error has led to an extension of the minimum term of custody intended by his Honour. Again, the extent of the extension may be differently viewed, for example as 12 months during which there was no other sentence concurrent or, 18 months being the addition to the actual term of 2 years. 26 The error attracts the power of this Court to intervene and, stressing that I do not seek to minimize the serious criminality of the applicant's offences, I consider that a lesser effective sentence overall is warranted. I would adjust commencement and expiry dates to remove any perception that the applicant is required to serve minimum custody of 18 months longer than appropriate structure would achieve. 27 Ground 2: His Honour failed to have sufficient regard to the delay which occurred between the entering of the plea of guilty and the passing of sentence. This delay was not due to the fault of the applicant. 28 As the ground implies, his Honour did take delay into account. He said: "Following authority, I am able to take in a (sic – into) consideration in the offender's favour that he has been awaiting sentence for these matters, through no fault of his own, since his day of arraignment on 17 October 2005. Whilst there could be no doubt in the offender's mind that he would be sent to prison for these offences, the delay over two years would have produced needless uncertainty in his mind, as to the actual length of his sentence." 29 As the Crown has pointed out, the finding is generous to the applicant in that at least some part of the delay could be referenced to the abandoned application to reverse his pleas of guilty. 30 The applicant argued that, although his Honour recognized the delay, there was "no indication that any mitigation of sentence was applied in regard to that fact". His Honour's task was to assess appropriate sentences and in so doing to take into account relevant matters. Delay was relevant in the sense stated and his remarks included specifying that he took it into account. He was not obliged to quantify individual items of relevance nor to calculate terms by processes of addition and subtraction reflecting the various elements which he had taken into account. 31 It is complained that his Honour did not consider the effective delay as a basis for finding special circumstances when setting the division of total term into non-parole period and balance term. In fact, his Honour did depart from the formulation in the statute in the applicant's favour, the minimum custody period against total term being approximately 69.5 percent as opposed to 75 percent. The issue would be whether his Honour erred in that division not what variety of factors may have been available to justify the decision to depart from the statutory formula. 32 I would reject ground 2. 33 Ground 3: His Honour gave insufficient weight to the fact that the applicant was suffering from severe depression at the time of the commission of these offences. 34 His Honour made explicit reference to the applicant's mental health issue which antedated the offence and to the diagnosis by Dr Nielssen of severe depressive illness. He quoted extensively from the principal report of the doctor. Clearly his Honour did not overlook this matter. 35 Submission is made that the applicant is less culpable than a person not affected by this illness. The evidence did not oblige his Honour to find that the applicant's judgment was impaired by the illness. Obviously the applicant was in a state of high emotion. To the extent that his depression may have contributed to his poor judgment, its significance is diminished by his voluntary reduction of his capacities by drinking a large quantity of whisky. 36 There was evidence of advance planning by the applicant who secreted himself in the wardrobe after equipping himself with a pistol, a rope and a bottle of whisky. His Honour specifically found that specific and general deterrence were particularly important in this case. No submission had been made to his Honour that the applicant was, by reason of depression or for any other reason, not a suitable vehicle for the manifestation of general deterrence. 37 The approach undertaken by his Honour was amply endorsed by authority particularly when offences have been committed in a domestic context: R v Hamid [2006] 164 A Crim R 179 and emphatically this is the case when such offences occur in breach of extant restraining orders such as an ADVO: Hiron v R [2007] NSWCCA 336. 38 Ground 4: His Honour gave insufficient weight to the remorse and contrition shown by the applicant. 39 His Honour stated that he accepted that the applicant was remorseful for what he had done. That statement followed recitation of an extract of evidence about regret and expressions of sorrow by the applicant in the proceedings presided over by the late Judge Donovan. Having recited that evidence and made that statement Sorby DCJ moved on to record an intended "discount" of sentence for the utilitarian value of the plea of guilty. Whilst the transcript places both the finding of remorse and the statement of intention concerning discount for utilitarian value in the same paragraph, it is plain that the former statement was referrable to the passage of evidence which his Honour had just cited. 40 The applicant's submissions complain that the applicant was given credit for the utilitarian value but his Honour did not indicate credit being given for remorse and contrition. Sentencing courts have been encouraged, but not obliged, to quantify the so-called utilitarian discount and obviously that is what his Honour was doing when he recorded his assessment of 20 percent in that regard. Insofar as the applicant was found to be contrite that was one of the factors about which his Honour had made a finding and this indicated its inclusion in the accumulation of matters from which assessment otherwise than in respect of the utilitarian discount derived. 41 Ground 5: His Honour gave insufficient weight to the apparent improvement in the psychiatric condition of the applicant since the increase of his medication whilst in prison. 42 It is plain that his Honour gave appropriate consideration to the applicant's treatment and progress. He referred to Dr Nielssen's opinion that the applicant was in need of long term rehabilitation and this formed a basis for variation of the ratio of non-parole period to total term in the applicant's favour. Having made this finding he added a quotation from a further report from Dr Nielssen referring to the post imprisonment contact between the applicant and his wife and the applicant's acceptance that he should submit to her wishes in regard to any future contact. 43 Grounds 3, 4 and 5 all asserted error in giving insufficient weight to identified factors to which his Honour clearly and expressly had paid attention. No basis is shown for concluding that his Honour did not take into account the matters which he mentioned and there is no basis for conclusion that his discretion has miscarried in any of these regards so as to attract intervention by this Court. 44 Ground 6: The sentences imposed, structured as they are, result in a manifestly excessive sentence. 45 The effective sentence can be categorized as severe, but the conduct of the applicant constituted criminality of a very high order. Reference was made to the standard non-parole period of 3 years specified in relation to count 1. Of course in the light of the pleas of guilty that prescription was indicative but it is instructive to observe that in assessing what was appropriate for the individual counts, his Honour obviously considered the conduct manifest in count 2 involving detention and the causing of actual harm as of greater gravity than the offence in count 3 which, certainly if the attempt had succeeded, carried a standard non-parole period of 7 years. As earlier recounted, the attempt failed because of the victim's vigorous physical resistance despite the applicant's efforts to subdue her by binding her with the rope. 46 This Court was invited to consider that the offences occurred in the context of (broken down) domestic relationship and the applicant's depression. Depression has been dealt with in relation to ground 3. That a violent and pre planned attack occurred in what might be classified as a domestic setting is not a matter of mitigation. This Court has repeatedly stressed that it is a circumstance of significant seriousness: R v Edigarov [2001] 125 A Crim R 551; R v Dunn [2004] 144 A Crim R 180; R v Burton [2008] NSWCCA 128. 47 The applicant detained and abused his wife verbally, physically and finally sexually. He did so in defiance of restraints placed upon him by conditions of the ADVO and by bail. The production and use of a pistol must have magnified the fear which his threats instilled in his wife. The level of fear would surely elevate as he drank a copious amount of whisky. It is claimed that the attempt by the applicant to commit suicide was real. His Honour made no finding to that effect and the facts simply show that after considerable consumption of whisky, the applicant was found sitting in a car with the pistol and shortly thereafter persuaded by police to surrender. Those facts did not compel a finding that the applicant's behaviour extended beyond a threat of self harm which he did not carry out. That he had previously made some attempt does not in the circumstances attract the application of any particular mitigation. 48 I would not uphold ground 6 except to the extent above discussed in relation to ground 1. 49 The shortcomings which have been identified in dealing with ground 1 are in essence both technical and procedural. Failure to comply with the procedures does not of itself give rise to a lesser sentence: Itaoui v R [2005] 158 A Crim R 233; R v Brown [2004] NSWCCA 249. 50 Nevertheless, in this instance I have concluded that the overall justice of the situation should be achieved by a variation of 18 months in the term of custody before the applicant is eligible for parole. This can be done in a practical way by advancing the commencing dates of the sentences on counts 1 and 2 by that period. Although the individual sentences are unaltered in terms of length, it should avoid recurrence of ambiguity if all sentences are quashed and re-imposed. There is no need to do so in respect of the offence referred to in the District Court under the s 166 certificate, the sentence for which is expired. 51 Also expired are the sentences on counts 3 and 4 but they are reimposed for clarity and to maintain specification of the continuity of custody. Fixed terms on counts 1, 3 and 4 are ordered as they will expire during or before the commencement of the non-parole period specified in respect of count 2. The finding of special circumstances by Sorby DCJ should be adopted and applied. 52 I propose the following orders: 1. Application for leave to appeal against sentence granted. 2. Appeal allowed and sentences imposed in the District Court quashed. 3. In lieu thereof the appellant sentenced as follows: (a) On count 1 to imprisonment for a fixed term of 3 years commencing on 28 July 2005 and expiring on 27 July 2008; (b) On count 2 (taking into account the offence on the Form 1) to imprisonment consisting of a non-parole period of 5 years commencing on 28 July 2006 and expiring on 27 July 2011 with a balance term of 3 years 6 months commencing on 28 July 2011 and expiring on 27 January 2015; (c) On count 3 to imprisonment for a fixed term of 2 years commencing on 28 January 2005 and expiring on 27 January 2007, and (d) On count 4 to imprisonment for a fixed term of 12 months commencing on 28 January 2005 and expiring on 27 January 2006. 4. The earliest date of eligibility for consideration of parole specified as 27 July 2011. 53 LATHAM 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.