New South Wales Court of Criminal Appeal CITATION: ZAMMIT, Jared Mark v R [2010] NSWCCA 29 HEARING DATE(S): 12/02/2010 JUDGMENT DATE: 2 March 2010 JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Harrison J at 40 DECISION: The application for leave is granted and the appeal allowed. The sentences in the District Court are quashed and in lieu the applicant is sentenced to a term of imprisonment made up of a non-parole period of 2 1/2 years and a balance of term of 2 1/2 years. The sentence is to date from 19 June 2008 and the applicant is eligible to be released to parole on 18 December 2010. CATCHWORDS: CRIMINAL LAW - Sentencing - Aggravated break and enter and Assault occasioning actual bodily harm - whether incorrect finding of facts - whether sentence manifestly inadequate. LEGISLATION CITED: Crimes Act 1900 -s 112(2) CATEGORY: Principal judgment R v Falls [2004] NSWCCA 335R v Millar [2005] NSWCCA 202 CASES CITED : R v Price [2005] NSWCCA 285 Ngati v R [2008] NSWCCA 3 Mulato v R [2006] NSWCCA 282 PARTIES: Jared Mark Zammit v Regina FILE NUMBER(S): CCA 2008/16033 COUNSEL: F Veltro - Crown D O'Neil - Applicant SOLICITORS: S Kavanagh - Crown S O'Connor - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/16033 LOWER COURT JUDICIAL OFFICER: Marien DCJ LOWER COURT DATE OF DECISION: 19/02/2009 IN THE COURT OF CRIMINAL APPEAL 2008/16033 McCLELLAN CJ at CL HOWIE J HARRISON J TUESDAY 2 MARCH 2010 Jared Mark ZAMMIT v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Howie J. 2 HOWIE J: This is an application for leave to appeal against sentence. The applicant pleaded guilty in the Local Court to a charge of breaking and entering a dwelling house and committing a serious indictable offence, being an assault occasioning actual bodily harm. This is an offence contrary to s 112(2) of the Crimes Act in respect of which there is a maximum penalty prescribed of imprisonment for 20 years and a standard non-parole period of 5 years. 3 On 19 February 2009 Marien DCJ (the Judge) sentenced the applicant to a term of imprisonment made up of a non-parole period of 3 years and a balance of term of 3 years. The sentence commenced on 19 June 2008 and the applicant is eligible to be released to parole on 18 June 2011. 4 The applicant has raised three grounds of appeal as follows: 1. His Honour wrongly concluded that Mr Fisher had told the offender of his animosity towards either or both Ms Saliba and Mr Scott. 2. His Honour failed to give any, or any appropriate, weight to the applicant's youth. 3. The sentence was manifestly excessive. 5 There was a statement of facts tendered by the Crown without objection. They were not stated to be the agreed facts between the parties, but there was no suggestion made before the applicant gave evidence at the sentencing hearing that they were in dispute. Facts 6 What follows is a summary of facts taken from the statement. The background to the incident giving rise to the charge is that a co-offender, Fisher, had been in a relationship with Ms Saliba. On 14 June 2008, or thereabouts, the two had an argument and Ms Saliba left the premises where she had been cohabitating with Fisher. She took her personal belongings and her daughter. She contacted the victim, Mr Scott, and arranged for him to take her to his home in Ettalong. 7 Ms Saliba and Fisher communicated by text messages. At about 8.30pm that evening she received a text message from Fisher's mobile phone stating: "ha ha I no you got the fone Tara Im guna fucking smash his face in so soon u lieing slut". At about 9.40pm the same evening she received another text message from Fisher's phone as follows: "your fucken gone think you can lie to me mother fucker". There followed another text message about an hour later that read: "U both fucked up big time". About an hour later Ms Saliba used the victim's phone to speak to Fisher. They appeared to be having an argument and the victim took the phone and turned it off. Ms Saliba and her daughter slept in the premises that evening. 8 At about 8.15am the next morning, 15 June, there was a loud banging on the back door of the premises that woke the residents. They heard some person say, "Just kick the fuckin cunt in". The door was then kicked open and Fisher entered followed by the applicant. Fisher told Ms Saliba to get ready to leave and she refused. Fisher asked where was Mr Scott, the victim. He identified himself and Fisher said to him, "Why did you lie to me cunt". The victim said, "I'm doing what I had to do". The applicant immediately attacked him, punching him about the head. Fisher told the applicant to stop and pushed him out through the door. Fisher grabbed Ms Saliba and the victim said, "Just go". 9 The victim left the house to go to his vehicle to retrieve Ms Saliba's bag. The applicant approached him and swung a punch that the victim blocked. Fisher left with Ms Saliba, the applicant and another male person in the vehicle. 10 As a result of the assault the victim suffered bumps and bruising to the back of his head and was in some pain and discomfort. 11 Police later spoke to Ms Saliba and Fisher. He told police that the applicant hit the victim. The applicant's fingerprints were found on the door handle of the premises where the offence took place and he was identified by the victim and another resident. 12 The applicant was arrested on 19 June and initially denied being present at the premises. Later he admitted to having been with Fisher but maintained he did not leave the motor vehicle. He said that he had been at Kings Cross earlier that evening and was intoxicated. Subjective case 13 The applicant was born on 22 November 1987 and was aged 20 at the time of the offending. He had a criminal record mainly for traffic matters but received a bond for an offence of malicious damage in 2006. There was a psychological report in evidence. The applicant told the psychiatrist that after his parents separated, when he was aged 12 years, he was subjected to physical abuse by his stepfather. He decided eventually to leave home to avoid the abuse. By this time the applicant was using cannabis. He went to live with his sister in Brisbane but was asked to leave when he failed to stop using the drug. 14 At the age of 16 he went to live with his father, but he died within a few months. He entered into a relationship and at the age of 17 he had a daughter and the next year a son from this relationship. They separated in August 2007. The mother brings the children to see him occasionally. He left school in year 9 and is just literate. 15 The applicant told the psychologist that he was on medication for ADHD but stopped using medication from the age of 10. He used cannabis from the age of 13 and ecstasy and speed from the age of 15. His major problem was with the abuse of alcohol. He told the psychiatrist he was intoxicated by alcohol and drugs at the time of the offending. He was receiving counselling in custody for drug and alcohol abuse. The psychologist believed he had gained some insight into his relationship with drugs. 16 There was in evidence a letter from a former employer indicating that he had been a conscientious employee and he would be re-employed in the future if a position became available. Sentencing remarks 17 The Judge found that the applicant had attempted to minimise his role in the commission of the offence. The reasons for that view form the context in which the complaint in the first ground of appeal arises and will be considered under that ground. 18 His Honour described the offence as of "great seriousness" and remarked that it "involves the invasion of the privacy of dwelling houses and it is a serious interference with private rights of individuals". He noted that deterrent sentences were appropriate for such offences. He noted the applicant's record but held it was not an aggravating factor. 19 The Judge rejected a submission on behalf of the applicant that the offence fell "just below the mid range of objective seriousness". His Honour stated: In my view, taking into account the aggravating factor that the offence was committed in company and taking into account the degree of force that was used to enter the premises and the violent and terrifying manner in which they must have entered the premises, and taking into account that the offender, I have found, knew that there was a young child in those premises and taking into account also the degree of violence that was perpetrated by the offender on the victim which although that level of violence did not fortunately inflict serious injury on the victim, it would have to be regarded as a serious and sustained assault upon him involving a number of punches to his head. 20 The Judge accepted that the plea of guilty was entered at the first available opportunity and therefore warranted a discount "in the order of twenty-five per cent". He also found that there were special circumstances "warranting a variation in the statutory ratio between the total sentence and the non-parole period", being that fact that it was the applicant's first custodial sentence and that he had favourable prospects of rehabilitation. 21 Shortly before imposing the sentence his Honour stated: Ultimately, however, I have to sentence him for what I have found was a serious offence and as I say, it is an offence which, if there had been no plea of guilty, would have attracted a standard non-parole period of five years imprisonment of course subject to taking into account the subjective case. It is not an automatic imposition of the standard non-parole period when there is no plea of guilty, because the subjective case of the offender must always be taken into account and the objective seriousness offence must be assessed…….. Ground 1 - finding of facts 22 The complaint is that the Judge was not entitled to find the facts as he did and, in particular, he could not find beyond reasonable doubt that there was a joint criminal enterprise between the applicant and Fisher that violence would be used in order to force Ms Saliba to leave the premises. 23 During the sentencing hearing, the applicant's representative tendered some reports and then indicated that she would call the applicant to give evidence "briefly just in terms of the remorse". During examination-in-chief he was asked why he went with Fisher to the premises. He replied: I was intoxicated at the time and I wasn't really sure, I was in the car, I seen Mr Fisher go around the back. By the time I got around the back the door was open. The door was only open about 11, 12 centimetres so I walked inside – I went inside to see what was going on because I could hear arguing and yelling and I noticed Mr Fisher was in a scuffle with the victim - ……. 24 The following questioning then took place: HIS HONOUR Q. Just a moment do you say that you weren't present when the door was kicked in? A. No, I wasn't, your Honour …….. Q. The agreed facts say that there was a loud bang at the back door waking up the victim and the others and they all heard someone say, "Just kick the funking (sic)……cunt in". Somebody wouldn't be saying that to themselves, Mr Zammit? A. I – I had no, by the time I got around there, your Honour, the door was open. Q. Well, is it possible that you were so intoxicated you don't recall that you were at the back door when that happened? A. It could be slightly possible but on my – on what I recall of the night I was – I got to the back door at a different time to Mr Fisher. 25 Towards the end of the applicant's evidence the Judge attempted to clarify the facts and the applicant insisted that a scuffle was already taking place when he entered the house. He maintained this account even though the Judge pointed out what was contained in the statement of facts. The applicant acknowledged that he had read the facts and complained to his solicitor that "there were bits of the story missing". At the conclusion of his evidence the applicant said: Just one other thing that all I'm trying to point out was that there was no intentional reason to go there and to do this, it just happened. 26 In R v Falls [2004] NSWCCA 335 this Court had to consider the scope of a judge's entitlement to find facts where an agreed statement of facts has been tendered but the applicant gives evidence inconsistent with those facts. It was held that it was open for the Judge to sentence in accordance with the agreed statement of facts despite the sworn evidence of the offender. With the concurrence of Dunford J, I stated: 37 Where, as here, there is an agreed statement of facts placed before the sentencing judge, and there is also material either inconsistent with, or in amplification of, some aspect of the facts in that statement, the sentencing judge should not act upon that material without having brought it to the attention of the parties during the course of submissions so that the parties can deal with it. If the judge determines to sentence the offender on a factual basis other than in accordance with the agreed statement of facts, clearly the judge should refer to that matter during the course of the remarks on sentence. But if the sentencing judge determines to sentence the offender on the basis of the agreed facts, ignoring the material inconsistent with, or in amplification of those facts, then in my view there is no requirement for the judge to refer to the other material either during submissions or in the course of the remarks. Neither party can complain if the sentencing judge acts upon their formal agreement as to what are the relevant facts. 27 In the present case the factual issues were clearly raised by the Judge during the applicant's evidence and with his legal representative during addresses. It is obvious that the Judge dismissed the applicant's evidence, and he was entitled to do so, not just because it was inconsistent with the facts tendered. 28 The particular part of the findings about which the applicant complains is as follows: Further I cannot accept the offender's evidence that he had no discussion with Mr Fisher beforehand as to the reason Mr Fisher was going to the premises other than to collect Ms Saliba and her daughter. Clearly there had been these threatening text messages from Mr Fisher, sent to the victim's mobile phone, and I find it impossible to accept that in the course of the evening before and in the course of the car journey to the premises, that Mr Fisher had not told the offender of his animosity towards either or both Ms Saliba or {the victim}. 29 In my opinion it was open to his Honour to make the findings he did. He was entitled to consider all the evidence including the threatening text messages that indicated that violence would be used against both Ms Saliba and the victim. Once the victim was identified and there was an exchange between him and Fisher, the applicant attacked the victim. There was no other possible reason for him to have done so unless he understood that they were present to enter into the house, and remove Ms Saliba by force if necessary and that the victim was an opposing party. 30 True it is that Fisher immediately stopped the applicant but that might well have been because there was no occasion to use force at that time. The attack upon the victim was unjustified when it occurred, but it does not follow that there had been no agreement between the applicant and Fisher that force might be required to be used against the victim. In my opinion the attack upon the victim is consistent only with the fact that, before they arrived at the premises, the applicant knew of the animosity that had been expressed by Fisher towards the victim and was there to assist him if necessary. It is clear that the door was kicked in by agreement between Fisher and the applicant, whoever it was that actually forced the door open. 31 This ground fails. Grounds 2 and 3 - manifest excessive sentence 32 The complaint under the second ground is that the Judge paid insufficient attention to the applicant's age. But that submission can only be justified if the sentence is manifestly excessive having regard to the applicant's age. 33 I doubt that I would have determined that the offence was mid range, having regard to the types of offences with which the section is concerned. As counsel for the applicant pointed out in this Court, the offence charged was an assault occasioning actual bodily harm and by reason of the maximum penalty is the least serious of the indictable offences that could give rise to the offence under s 112(2). However, frequently the offence committed, or intended to be committed, is a stealing and that offence also carries a maximum penalty of 5 years. It is to be noted, however, it was not alleged in the charge that the applicant entered with any intent to commit an offence. This was very fortunate for the applicant as clearly he entered intending to abduct Ms Saliba, in that they intended to force her to accompany them. 34 The applicant referred to decisions of this Court considering sentences imposed for similar charges. In R v Millar [2005] NSWCCA 202 the sentencing judge found the offence to be considerably below mid range. In R v Price [2005] NSWCCA 285 the judge found the offence fell "quite away below" mid range. In Ngati v R [2008] NSWCCA 3 the sentencing judge made a similar finding. But these are all decisions based upon their own facts. They do not inform the Court about the Judge's finding in this particular case. 35 In any event, this Court will not usually interfere with a finding by a sentencing judge as to the objective seriousness of an offence: see Mulato v R [2006] NSWCCA 282. In my opinion it was open for the Judge to find it was mid range, but it was at the lower end of that range. 36 In the present case the non-parole period was a result of the Judge finding that a discount of 25 per cent applied for the plea. The subjective case of the applicant was that he was young, with little criminal record, he had a drug and alcohol problem that had not brought him into conflict with the law to any significant degree and there were good prospects of rehabilitation. The non-parole period was 50 per cent of the total sentence, no doubt as a result of the subjective factors. 37 In my opinion, having regard to all the relevant circumstances of the offending and the subjective features, a head sentence of 6 years was excessive even if the offence was just within the mid range of seriousness. It meant a starting sentence before discount of 8 years. As the Judge found, the offending was a result of the applicant's intoxicated state rather than a reflection of his true character. He had no earlier offences for violence and Fisher was clearly the principal in the enterprise. In my opinion the appropriate starting sentence is 6½ years that should be then reduced by 25 per cent. I have rounded out the figures particularly taking into account that the applicant is getting the benefit of a non-parole that is 50 per cent of the total term. 38 There have been affidavits filed on behalf of the applicant in case the Court was required to resentence the applicant. The applicant has been doing courses while in prison and learning some skills. The contents of the affidavits support his Honour's conclusion as to the applicant's prospects of rehabilitation. They justify a finding of special circumstances. 39 I propose the following orders. 1. The application for leave is granted and the appeal allowed. 2. The sentences in the District Court are quashed and in lieu the applicant is sentenced to a term of imprisonment made up of a non-parole period of 2½ years and a balance of term of 2½ years. The sentence is to date from 19 June 2008 and the applicant is eligible to be released to parole on 18 December 2010. 40 HARRISON J: I agree with Howie 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.