Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Santo v R [2011] NSWCCA 156 Hearing dates: 15 June 2011 Decision date: 14 July 2011 Before: McClellan CJ at CL at [1] Hidden J at [29] Grove AJ at [30] Decision: 1. Grant leave to appeal. 2. Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - head sentence and non parole excessive - objective range of seriousness - error in findings of fact - totality principle - special circumstances - no error found - leave to appeal granted - appeal dismissed. Legislation Cited: Crimes Act 1900 Cases Cited: Cahyadi v R (2007) 168 A Crim R 41 Perry v R (2006) NSWCCA 351 R v Dang (2005) NSWCCA 430 R v Fisher (2008) NSWCCA 103 R v Hammoud (2000) 118 A Crim R 66 R v Mulato (2006) NSWCCA 282 Stanford v R (2007) NSWCCA 73 Vuni v R [2006] NSWCCA 171 Category: Principal judgment Parties: Bianca Shandell Santo (Applicant) The Crown Representation: G Corr (Applicant) V Lydiard (Crown) Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Crown) File Number(s): 2008/19715 Decision under appeal Date of Decision: 2011-04-23 00:00:00 Before: Colefax DCJ File Number(s): 2008/19715 Judgment 1McCLELLAN CJ at CL : The applicant was convicted following a jury trial of one count of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 and one count of robbery whilst armed with wounding contrary to s 98 of the Crimes Act . The maximum penalty for each offence is 25 years imprisonment. Each offence has a standard non-parole period of 7 years. 2At the time that the applicant was being sentenced she was already serving a sentence for an offence of robbery in company which she committed on 30 March 2007 and for which she was sentenced to a term of imprisonment of 4 years and 10 months with a non-parole period of 2 years and 10 months. For that offence she was eligible to be released on parole on 26 April 2011. 3The applicant was charged in relation to the present matters on 19 May 2008 and was in custody solely in relation to these matters from 20 May 2008 until 27 June 2008. The sentencing judge backdated the sentence to accommodate this period of custody. 4At the time the applicant committed the offences, that are the subject of this appeal on 14 May 2008, she was on conditional bail for the robbery in company offence. 5For each of the offences for which the applicant was found guilty by the jury she was sentenced to a period of 13 years imprisonment. A non-parole period of 9 years and 9 months commencing on 19 March 2011 and expiring on 18 December 2020 was imposed, with an additional term of 3 years and 3 months commencing on 19 December 2020 and expiring on 18 March 2024. The sentences were made concurrent. 6The applicant seeks leave to raise six grounds of appeal as follows: 1. Both the individual head sentences and the non-parole periods are excessive. 2. His Honour erred in finding that the sentences were above mid-range in terms of seriousness. 3. His Honour erred in making findings of fact which were not based on any evidence in the trial. 4. His Honour erred in not properly applying the principle of totality in totally aggregating the sentences on an earlier sentence. 5. His Honour erred in not finding special circumstances. 6. The aggregate head sentence and non-parole period are excessive. 7The sentencing judge made findings with respect to the relevant facts. 8As at 14 May 2008, Mr Rymaszewski lived at Ashfield and was 84 years. The applicant was aged 34 years. Mr Rymaszewski had travelled to the city that day to have lunch with his son for his son's birthday. After lunch, Mr Rymaszewski went to Central Railway Station. Instead of immediately catching a train home, he went to a bar on the concourse of the railway station to have another drink. The applicant was also in the general bar area. The applicant and Mr Rymaszewski who were previously unknown to each other became engaged in conversation and over a couple of hours, Mr Rymaszewski bought a few rounds of drinks for the applicant and himself. The applicant and Mr Rymaszewski then left the bar and travelled by train to Ashfield. Although they had been drinking, neither of them was intoxicated, nor adversely affected by alcohol. They then proceeded to Mr. Rymaszewski's flat. Mr Rymaszewski prepared a light meal for the applicant and himself. 9In relation to what happened next, there was a contest at trial. However, the sentencing judge said that the applicant's evidence at trial was "deliberately and calculatedly dishonest" and "on any contested issue of fact, I would not accept anything the offender said unless it was independently corroborated." 10The applicant asked to be shown around the flat. They came to a bedroom where Mr Rymaszewski showed his computer to the applicant. Whilst he was doing so the applicant quickly undressed. She offered to massage the victim. He initially expressed surprise and reluctance but after reassurances from the applicant he undressed and lay on his bed on his stomach. The applicant sat across his low back. While she was massaging his back, Mr Rymaszewski heard the sound of glass breaking. It was a bottle of vodka which the applicant had brought to his bedroom and which she smashed by hitting it with considerable force on the wall. 11Mr Rymaszewski felt a sharp stabbing pain to the left side of his neck. He tried to turn around but could not. The applicant had her knees against his back. Mr Rymaszewski statrted to yell for help and for the police. He could feel more sharp stabbing pains to his neck and upper back. He tried to bang on the wall next to the bed with his fist. The applicant was saying: "I am going for your jugular; I am going for your jugular". 12Mr Rymaszewski tried to wriggle out from underneath the applicant but she had him pinned down. Mr Rymaszewski thought he was going to die. At one point he tried to twist his head to look over his shoulder at which point the applicant grabbed one of his pillows and put it over his mouth. He felt her hand pressing against his face, covering his nose and mouth. As she pressed the pillow against his face, Mr Rymaszewski could feel the sharp stabbing pain continuing in his back. 13Suddenly everything stopped. Mr Rymaszewski was exhausted. The applicant left the premises with his mobile phone and $250 in cash. Mr Rymaszewski dialled triple O and was ultimately taken to hospital. 14There was an issue at the trial as to whether Mr Rymaszewski knew the applicant was a prostitute and whether they had returned to his flat with an expectation that they would have sex. In relation to this issue the sentencing judge said: "Whether or not the offender actually intended to provide sexual service to Mr Rymaszewski is not clear but what is clear beyond reasonable doubt is that at least from the time she left the bar with him, she intended to rob him. In this regard, Mr Rymaszewski, despite his actual age, was a very fit looking gentleman at the time. Any plan to rob him necessarily involved the very real prospect of the use of violence by the offender to achieve her aim. Whether it was always her intent to inflict the degree of violence that she ultimately came to inflict is not clear but the attack was not impulsive. Getting Mr Rymaszewski to undress and lie down on his stomach on a bed while the offender sat across his low back pretending to give him a massage was a planned act to render him vulnerable to her subsequent violence. I am unable to conclude with any certainty when this scheme came into her mind but I have no doubt that immediately before or shortly after she entered the premises, she had decided on the course she ultimately pursued. [ROS 6]" 15The victim suffered three significant stab wounds to the neck, two of which were quite deep. One wound to the neck penetrated the muscle. Another wound to the neck left a 4 x 2 cm skin loss which was unable to be sutured. He also suffered a particularly deep wound at the rear of the neck in the area of clavicle which penetrated into the supraclavicular fossa. He also suffered two deep wounds near the right shoulder blade and near the right rear underarm, one of which went down to the muscle and towards the bone. He had another wound to his back which was a full thickness wound requiring stitching. The victim also suffered numerous superficial lacerations including to head, face, ear, arms and back. He also suffered bruising particular to his face. He suffered a traction injury to his left arm which has led to ongoing problems with his use of the arm. He remained at Royal Prince Alfred Hospital from his admission on 14 May 2008 to 27 May 2008 after which he was transferred to a rehabilitation facility. Grounds 1, 2 and 6 16Both offences carried a maximum penalty of 25 years and a standard non-parole period of 7 years. The sentencing judge determined that the objective seriousness of each of the offences was substantially above the middle of the range and accordingly the non-parole period in each case exceeded the standard non-parole period of 7 years. In determining that the offences were substantially above the mid range the sentencing judge had regard to the fact that there was some planning involved and the offences occurred in the victim's home. The victim was 84 years of age and suffered serious wounds inflicting both physical and significant psychological injury upon him. The applicant effectively tricked the victim into lying naked in a vulnerable position where she could confine him and took a broken bottle to inflict injuries upon him. 17Although the applicant complained that it was not open for his Honour to determine that the offences were substantially above the mid-range I am satisfied that this finding and the sentence which his Honour imposed as a consequence were appropriate. This Court has indicated on many occasions that where an offence falls upon the scale of objective seriousness is a matter falling within the sentencing judge's discretion. This Court is reluctant to interfere with the finding made by the sentencing judge. R v Dang (2005) NSWCCA 430; R v Mulato (2006) NSWCCA 282; Perry v R (2006) NSWCCA 351; Stanford v R (2007) NSWCCA 73; R v Fisher (2008) NSWCCA 103. 18In relation to the sentences and non-parole periods which his Honour imposed it is important to remember that the applicant has a criminal record and committed these offences when she was on parole. In a callous and deliberate manner she sought to take advantage of an 84 year old man and inflict physical injury on him facilitating the robbery and escape from the premises. 19The maximum penalty provided for these offences is a term of imprisonment of 25 years. Even if severe the sentences imposed do not require the intervention of this Court (see Vuni v R [2006] NSWCCA 171). Ground 3 20The complaint under this ground of appeal relates to the finding by his Honour that the applicant formed an intention to rob the victim before she left the hotel. 21Whether or not the applicant had formed the relevant intention when she left the bar or whether it was formed at some later point is to my mind immaterial. It is plain that it was open to his Honour to find that the applicant formed an intention to inflict injury on her victim and rob him and did not act impulsively. She thought of a plan to have him undress and lie on his stomach making him vulnerable to her restraint and available for her to inflict serious wounds. 22The sentencing judge made two findings of present relevance. One finding was that when she left the bar with her victim the applicant intended to rob him. The other finding was that his Honour could not conclude "with any certainty" when the scheme which she ultimately carried out came into her mind, although he believed it to be shortly before or after she entered his premises. 23These findings are not inconsistent. His Honour was merely indicating that he was satisfied that she had formed an intention to rob him when she left the bar although the precise manner in which the robbery would be carried out and the intention to attack him with a broken bottle may have been formed at a later point in time. Ground 4 24Under this ground complaint is made that the sentencing judge failed to pay appropriate regard to issues of totality having regard to the sentence which the applicant was then serving for the earlier offence. It is well established that questions of accumulation and concurrency are matters falling within the discretion of the sentencing judge. R v Hammoud (2000) 118 A Crim R 66. There is no general rule which determines whether sentences ought to be imposed concurrently or consecutively Cahyadi v R (2007) 168 A Crim R 41 at [47]. 25In the present case it is clear from his Honour's remarks that he was conscious of the issues of totality and accordingly determined to commence the new sentences upon the expiration of the non-parole period of the sentence which had previously been imposed. That sentence included a finding of special circumstances which reduced the non-parole period from that which would otherwise have been required. Mindful of these matters the sentencing judge was careful to indicate that he had had regard to issues of totality and proportionality but had determined that the sentences he imposed were appropriate. 26In these circumstances there is no error in the path which his Honour took. I reject this ground of appeal. Ground 5 27Under this ground of appeal the applicant complained that his Honour should have made a finding of special circumstances. Special circumstances are a matter falling within the discretion of the sentencing judge. In considering the matter his Honour recognised the fact that the sentence which he proposed to impose would provide a period on parole in excess of 3 years. Mindful of his finding, which was clearly open, that the applicant's prospects of rehabilitation were dubious, there was no requirement for a longer period of parole. 28There is no error in the course which the sentencing judge took in relation to this issue. Orders: 1. Grant leave to appeal. 2. Appeal dismissed. 29HIDDEN J: I agree with McClellan CJ at CL. 30GROVE AJ: I agree with McClellan CJ at CL. ********** 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. Decision last updated: 22 July 2011