Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Youssef v R [2013] NSWCCA 308 Hearing dates: 20 November 2013 Decision date: 06 December 2013 Before: Hoeben CJ at CL at [1] Blanch J at [2] R A Hulme J at [3] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - wounding with intent to cause grievous bodily harm - aggravated kidnapping - sustained assault and restraint of intellectually impaired woman - asserted error in having regard to features of harm caused in kidnapping offence beyond basic requirement of actual bodily harm - asserted error in benefit to victim taken into account when considering utility of guilty plea - asserted error in failing to give weight to mental conditions of offender not related to offence - no error in finding offence more serious because harm significantly beyond basic element - remorse not expressed until after exculpatory police interview and eventual pleas of guilty - benefit to victim not a consideration on that account in any event - remarks relating to mental illness terse but context indicates full consideration - no errors made out Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 R v Benitez [2006] NSWCCA 21; (2006) 160 A Crim R 166 R v Boney [2008] NSWCCA 313 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Chisari [2006] NSWCCA 19 R v Engert (1995) 84 A Crim R 67 R v Halls [2008] NSWCCA 251 The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Category: Principal judgment Parties: Nada Vanja Youssef (Applicant) Regina (Respondent) Representation: Counsel: Mr I McLachlan (Applicant) Ms S Herbert (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2011/76478 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-10-26 00:00:00 Before: Neilson DCJ File Number(s): 2011/76478 Judgment 1HOEBEN CJ at CL: I agree with R A Hulme J. 2BLANCH J: I agree with R A Hulme J. 3R A HULME J: Nada Vanja Youssef ("the applicant") seeks leave to appeal against sentences imposed upon her by his Honour Judge Neilson in the District Court at Sydney on 26 October 2012. 4The applicant had pleaded guilty to offences of wounding with intent to cause grievous bodily harm (s 33 Crimes Act 1900 (NSW) - maximum penalty imprisonment for 25 years - standard non-parole period 7 years) and specially aggravated kidnapping (s 86(3) Crimes Act - maximum penalty 25 years). She also asked that her guilt in respect of an offence of causing a person to take an intoxicating substance with intent to commit an indictable offence (s 38 Crimes Act - maximum penalty 25 years) be taken into account in sentencing for the wounding offence. 5The judge imposed sentences of 6 years and 9 months with non-parole periods of 4 years in respect of each offence. He accumulated the sentence for the kidnapping offence by 6 months upon that for the wounding offence. Accordingly, the total effective sentence is one of 7 years 3 months with 4 years 6 months as the minimum custodial component. 6Four grounds of appeal were notified. One was abandoned but a fifth was added at the hearing. They are, first, that the judge was wrong to take into account in sentencing for the kidnapping offence that the extent of the injuries sustained by the victim was an aggravating factor in that they exceeded what would amount to actual bodily harm. Second, and in relation to both sentences, that the judge was wrong to take into account in assessing the utilitarian value of the applicant's pleas of guilty that they had obviated the need for the victim to give evidence. Third, that the judge failed to give proper weight to the applicant's mental condition. Finally, that there was error in not imposing concurrent sentences. 7I am not persuaded that any of the asserted errors occurred. The appeal must fail. Facts 8An agreed statement of facts was before his Honour. It disclosed that the victim was a 53-year-old woman who was cognitively impaired and had a speech impediment. Her son, Jason, mowed lawns for a living. One of the premises he attended for that purpose was the home of the applicant. The victim usually accompanied him when he went there. 9On 8 March 2011, Jason received a call from the applicant's son to come and mow the lawns at the applicant's home. He and the victim went there in the early afternoon. While Jason was mowing the lawn, the victim went inside where she was offered some wine. She consumed about five glasses. There were some girls present as well as the applicant and her son. 10At some point later in the afternoon, Jason left the premises after he had finished mowing the lawns but the victim, at the applicant's request, remained. 11Sometime thereafter, the victim was dragged into the kitchen where the applicant attacked her. She was thrown to the ground and kicked and punched all over. She felt immediate pain. She was unable to describe her assailants. 12The applicant retrieved a knife from a kitchen drawer and stabbed the victim multiple times. Injuries were caused to the applicant's scalp, shoulder, left breast and arm. 13The victim was then picked up and placed on a chair. Her hands were taped together and tape was also placed over her mouth. Threats of an unspecified nature were made to her whilst she was bound in this fashion. At some point she experienced difficulty breathing and someone took the tape off her mouth. The applicant then forced two tablets into the victim's mouth. After being forced to ingest them she felt "giddy" and her vision became blurred. (Subsequent analysis revealed the presence of diazepam in her blood.) 14Somehow the victim managed to free herself. The applicant and some others then pushed her out the door. She ran across the road and attracted the attention of a householder. He could see that she was in a distressed state and was injured. She said she was scared and expressed a fear that she was going to be killed. She questioned why "they" turned on her; and said that she just wanted to die. An ambulance was called and she was taken to hospital. 15The victim was found to have sustained multiple injuries. There were wounds to the scalp, the left forearm and the left breast as well as lacerations to the left shoulder. Most of the wounds and lacerations were dealt with by way of sutures or dermal glue. Surgery was required to repair a wound to the left eyebrow and forehead which had penetrated to muscle. A wound to the left shoulder was found to have extended deeply through the attachment of the deltoid muscle. Wounds to the left forearm were also found to have extended into muscle tissue. The laceration to the left breast was thought to be the cause of a penetrating wound into the chest cavity. Medical opinion was that "considerable force" was used to cause this wound and that it was potentially life threatening. 16Police attended the applicant's home and forced entry in the early hours of 9 March 2011. The applicant and her son were arrested. Various things were seen in the dining room and kitchen that were consistent with being the location of the attack upon the victim. A knife was found, apparently stained with blood, with strands of hair adhering to it and with its blade bent at the hilt. 17The Crown tendered a report by Professor Susan Hayes who had assessed the victim and found her to suffer from a "serious intellectual disability", functioning in the lowest 0.1% of the population for cognitive reasoning and the lowest 1% for adaptive behaviour. She was described as requiring supervision and social "habilitation" in connection with most areas of daily life activities. Professor Hayes said that the victim's cognitive impairment would be obvious to a reasonable person within a few minutes of commencing a conversation with her. She also has a marked speech impediment. 18The Crown tendered a transcript of the applicant's interview with police following her arrest for the limited purpose of demonstrating her knowledge of the victim's cognitive impairment. When asked to describe the victim, the applicant said, "I think she's mentally slow in the head". 19The motive for this attack was said by the judge to be completely unknown. However, he referred to evidence that the applicant had been drinking and had used cannabis. He said that intoxication would explain the applicant's lack of recollection of what occurred and might also explain why the offences occurred. 20Ultimately, his Honour found that the offences were "in that mid-range of seriousness of crimes of this nature". Personal circumstances of the applicant 21The following matters were included in the judge's review of the applicant's personal circumstances. 22She was the mother of six adult children. Her eldest child, a daughter, had a significant illness and, with her mother in custody, missed her support during treatment which included chemotherapy. 23The applicant was born in Croatia in 1958 and came to Australia with her family at age 11. She experienced sexual abuse by her eldest brother when she was aged 11 to 16. To escape that abuse she married her first husband at age 16 but the marriage did not last. There were two subsequent marriages, the last of which was marked by domestic violence and ended some time ago. 24The applicant had engaged in employment in her teen and early adult years but at the time of the offences she had been on a disability support pension for about 10 years. She had suffered from a depressive illness for many years and started to receive treatment for it in about 2002 after a stillbirth and the end of her third significant relationship. 25There was an admission to a hospital psychiatric unit for a number of days in 2007. On that occasion she gave a history of using cannabis, methylamphetamine and benzodiazepines and feeling suicidal. She displayed symptoms of paranoid delusions. On discharge she was referred to a drug and alcohol recovery service but, as the judge observed, there was no evidence that she attended. 26The applicant's second husband introduced her to heroin and she became dependent upon that drug for a considerable time before withdrawing with the assistance of a methadone program. The history she gave to Dr Richard Furst, forensic psychiatrist, was that she had used cannabis since her twenties and was using about one gram per day at the time of the offence. 27In 2009, the applicant returned to Croatia following the deaths of some family members, including her father. There was a dispute concerning a deceased estate in the course of which an uncle threatened her with a gun. 28She reported being under a lot of stress when she returned to Australia in February 2010. One of her sons, who had been providing care for her, had gone into custody and her mother died after suffering from dementia. 29Dr Furst diagnosed the applicant as suffering from Major Depressive Disorder. The judge said that he could understand that in the light of all of the problems the applicant had encountered but said that it did not explain her criminal behaviour on 8 March 2011. 30The judge also noted that the applicant had developed an epileptic condition. She had experienced seizures with increasing frequency and which had required treatment at hospital. Attempts had been made to manage the applicant's depression and epilepsy with medications that were not compatible, which had caused her to cease taking the antidepressant. 31There was an issue about whether the applicant had experienced an epileptic seizure on the morning of 8 March 2011. Dr Furst's report included that this could have had an influence upon the applicant's subsequent behaviour. The judge considered the evidence relevant to this issue and concluded that he was not satisfied that she had experienced a seizure that morning. 32The applicant has a criminal record but the entries are confined to the 1980's and the penalties involved fines and bonds. The judge particularly noted that there were no crimes of violence. He regarded this aspect of the applicant's history as "of no moment". 33The judge noted that the applicant had been doing well in custody; she was receiving psychiatric care and was attending both AA and NA. He accepted that she was "clearly resolved to rehabilitate herself, to wean herself off her drug and alcohol addictions". 34Reference was made to a report by a Justice Health psychiatrist which included that the applicant, because of her age, lack of significant criminal history and personality traits of being shy and unassertive, had found adjustment to prison life particularly difficult. She had difficulty protecting herself from other inmates. The judge also referred to a passage in the report by Dr Furst where he offered the opinion that a custodial sentence would likely weigh more heavily because of her epilepsy and depression. 35In relation to the last aspect, his Honour considered that the applicant's psychiatric condition and her epilepsy seemed to be better controlled since her admission to gaol. Nevertheless he considered that her "age and lack of any significant criminal background would cause her difficulty in being a prison inmate". 36The judge found that the applicant had good prospects of rehabilitation and a low chance of recidivism. Although it was expressed belatedly, a finding of "true remorse" was made as well. Other aspects of the sentencing decision 37Towards the end of his sentencing judgment his Honour expressed the view that the applicant's personal circumstances were favourable to her "in many ways". But he also observed that it was still necessary to concentrate on the seriousness of the offences which he reiterated were each in the "mid-range". He observed: The crimes are serious ones. Not only must the offender be punished for her completely unacceptable and inexcusable and unexplained conduct, but there must be general deterrence for and denunciation of the crimes committed; of restraining, against her will, an intellectually disabled woman of mature years and exposing her to gratuitous, unnecessary violence which had the potential of causing much more serious injuries than were actually inflicted. (ROS 24) 38After reference to the principle of totality for his decision to partially accumulate the sentences, and to some sentencing statistics, the judge indicated that the starting point for each of the sentences would be 9 years which would be reduced by 25 per cent for the utilitarian value of the pleas of guilty. He continued: Such is conceded by the Crown in this particular case, and such conduct is of great utility because it stops the victim having to re-live the offence by giving evidence and to allow an intellectually disabled lady to do that causes her great relief. 39Special circumstances were found which led his Honour to reduce the non-parole period of each 6 year 9 month sentence from 5 years to 4 years. Ground 1: With respect to Count 2 the sentencing Judge erred in finding that insofar as "... the injuries sustained by the victim went beyond actual bodily harm, the infliction of the wounds ... should be seen as being aggravated pursuant to s 21A(2) [of the Crimes (Sentencing Procedure) Act 1999]" 40In the course of reviewing matters that he considered relevant to the seriousness of the kidnapping offence, his Honour said: The final element in the offence under s 86(3) is the infliction of actual bodily harm. Here, the bodily harm inflicted was much greater than actual bodily harm. It was wounding which itself could amount to grievous bodily harm. In so far as the injuries sustained by the victim went beyond actual bodily harm, the infliction of the wounds as far as the s 86(3) offence is concerned should be seen as being aggravated pursuant to s 21A(2). (ROS 13) 41It was submitted that "it is an error to treat the injuries sustained as an aggravating factor where, as in this case, injury is an element of the offence". Primary support for this submission was suggested to lie in the final sentence of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW): The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. 42The short answer to this complaint is that the judge did not have regard to actual bodily harm as an element of the offence and "additional regard" to it as an aggravating factor. What he took into account as aggravating the seriousness of the offence was such harm that was over and above that which constituted an element of the offence: see, for example, R v Chisari [2006] NSWCCA 19 at [22]; R v Boney [2008] NSWCCA 313 at [42]; and R v Halls [2008] NSWCCA 251 at [35]. 43At the hearing of the application it was virtually conceded that there was no merit in this ground. But an additional aspect was raised which prompted the applicant's counsel to formulate a new ground of appeal (see Ground 5 below). Ground 2: With respect to both counts, the sentencing judge erred in taking into account, as part of the utilitarian value of the applicant's guilty pleas, the fact that the complainant would not need to re-live the offence by giving evidence. 44The written submissions for the applicant referred to the passage from the remarks on sentence that I have extracted above (at [38]). It was submitted that saving witnesses from giving evidence is irrelevant to the utilitarian value of a plea of guilty: R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1. 45The judge allowed a discount at the top of the usual range for the utility of the applicant's pleas of guilty. So the applicant's complaint has nothing to do with the benefit she received on that account. 46It was, rather, contended that saving witnesses from giving evidence is relevant to remorse. By regarding it as relevant to the discount for the pleas, his Honour had denied the applicant a more favourable finding as to the extent of her remorse. 47The submissions failed to recognise that the applicant obtained the benefit of a finding of "true remorse", albeit something his Honour felt only arose at a relatively late stage. I cannot imagine that if his Honour had considered that the applicant was "truly remorseful" as early as the time she entered her pleas of guilty there would have been any difference in the result. What she said in her police interview following her arrest was highly critical and derogatory of the victim and she completely denied any involvement in the offences. The pleas of guilty were entered in the Local Court some 13 months later. 48It should also be noted that the idea that the utilitarian value of the applicant's pleas of guilty was enhanced by saving her unfortunate victim from having to give evidence was a matter suggested to his Honour by the applicant's counsel in his submissions on sentence. 49There is no merit in this ground. Ground 3: With respect to both counts, the sentencing judge failed to give proper weight to the applicant's mental condition (including giving too much weight to the issue of general deterrence). 50Having reiterated that "the crimes are serious ones", his Honour referred to some of the purposes of sentencing provided in s 3A of the Crimes (Sentencing Procedure) Act. He referred to punishment, denunciation and also said "there must be general deterrence". 51There was a considerable body of evidence before the judge concerning the applicant's mental condition. The representatives of both parties addressed his Honour as to its significance. The complaint is that the judge "failed to properly address (or at all) the issue of whether or not the applicant was in fact a suitable vehicle for general deterrence". 52It was submitted that if the issue had been "properly considered", the only finding available was that the applicant was an inappropriate vehicle for general deterrence, or at least that less weight should have been given to this factor, and that the result would have been the imposition of lesser sentences. 53This was not a clear cut case in which an offender's mental condition mandated less (or no) emphasis being given to general deterrence: cf Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [53]-55]. As counsel for the Crown in this Court pointed out, the onus of establishing this matter in mitigation lay with the applicant: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281; [27]. The Court was also reminded of the statement of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 69: [I]t is erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances such as a mental disorder. 54A causal link between a mental condition and the offending is not a precondition for finding general deterrence is of less significance: R v Benitez [2006] NSWCCA 21; (2006) 160 A Crim R 166 at [36]-[38] per Simpson J. But the sentencing judge did not decline to find that less emphasis should be given to general deterrence for that reason. 55I accept that the judge expressed no reason for declining to find there should be less emphasis on general deterrence. His reasons were delivered at the conclusion of submissions with only a luncheon adjournment intervening. His Honour cannot have been expected to refer to each and every point that had been raised on the applicant's behalf. The submissions that were made by counsel for the applicant are recorded over more than 20 transcript pages. His submission on the current issue was, in that context, exceedingly brief: [T]he fact of her mental illness makes the subjective factors, also her age, makes the subjective factors and the rehabilitation something that would be given more weight than usual, than matters of denunciation and deterrence. 56His Honour appears to have accepted that submission; at least to the extent that he said that the applicant had many personal factors in her favour and amongst the favourable findings of mitigating features there was a finding of good prospects of rehabilitation and low prospects of recidivism. 57It is not the case that the judge overlooked the applicant's mental condition; indeed, he made extensive reference to it as my earlier summary of the applicant's personal circumstances, drawn from the sentencing remarks, hopefully makes clear. 58One of the matters his Honour found in relation to this topic was that the applicant's depressive disorder appeared to have been brought under control through the treatment and medication regime she had received since going into custody. 59Having regard to all of these matters I am not persuaded that, whatever weight his Honour gave to general deterrence, it was excessive. 60I would not uphold this ground but, given the difficulties with his Honour's lack of express attention to the topic in his sentencing remarks, I would favour a grant of leave. Ground 4: The sentence imposed for count 2 was otherwise manifestly excessive. 61This ground was abandoned. Ground 5: His Honour erred in applying the principle of totality in that he erred in imposing sentences that were not entirely concurrent 62This was the new ground added without objection and by leave at the hearing. In essence, it was contended that the factors relevant to sentencing for both offences were so common that complete concurrency was called for. I respectfully disagree. 63The s 86 offence included the element of detaining the victim. This was not a factor relevant to the s 33 offence. It increased the applicant's total criminality. That is particularly so given most of the considerable period of the detaining occurred after the wounding and it included restraining the victim with tape. 64The extent of the harm caused to the victim was taken into account by the judge in sentencing for both offences. But the s 33 offence included the additional element that the applicant intended to cause grievous bodily harm. That also increased the applicant's total criminality. 65Accumulation of the sentences was called for. The degree to which the judge did so was modest. Orders 66I propose the following orders: 1. Leave to appeal granted. 2. Appeal 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. 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: 10 December 2013