Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Agius v R [2014] NSWCCA 173 Hearing dates: 18 July 2014 Decision date: 27 August 2014 Before: Gleeson JA at [1]; Fullerton J at [44]; McCallum J at [45] Decision: (1) Application for leave to appeal refused. Catchwords: CRIMINAL LAW - Appeal - Appeal against sentence - Whether trial judge made an erroneous conclusion Legislation Cited: Crimes Act 1900 (NSW) 59(1), 86(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW) s 32 Criminal Appeal Act 1912 (NSW) s 6(3) Category: Principal judgment Parties: Mark Anthony Agius (Applicant) Regina (Crown) Representation: Counsel: D Barrow (Applicant) S Dowling SC (Crown) Solicitors: Legal Aid NSW (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Crown) File Number(s): 2012/52418 Publication restriction: No Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-09-14 00:00:00 Before: Colefax DCJ File Number(s): 2012/52418 Judgment 1GLEESON JA: Mark Anthony Agius (the applicant) seeks leave to appeal against the sentence imposed by his Honour Judge Colefax in the District Court on 14 September 2012. 2The applicant had pleaded guilty to three offences, each committed against the same complainant. First, one offence of detaining for advantage contrary to s 86(1)(b) of the Crimes Act 1900 (NSW), for which the maximum penalty prescribed is imprisonment for 14 years; and secondly, two offences of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act, for which the maximum penalty prescribed is 5 years imprisonment. 3The applicant had also asked that four further matters on a Form 1 be taken into account by the primary judge pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely, the offences of contravening an apprehended violence order (between 8 December 2011 and 14 February 2012), common assault committed against the complainant (between 1 April 2011 and 30 April 2011), possession of a prohibited drug (on 16 February 2012), and assault occasioning actual bodily harm committed against the complainant (between 13 December 2011 and 15 January 2012). 4On 14 September 2012 the applicant was sentenced to an aggregate sentence of 6 years imprisonment with an aggregate non-parole period of 4 years 6 months. 5The applicant filed a notice of application for leave to appeal on 26 February 2014. An extension of time to do so had previously been granted. Grounds of appeal 6The applicant relies upon three grounds of appeal against sentence: (1)His Honour erred in concluding that the applicant had at no time sought any professional assistance for his drug addiction or for his propensity for violence. (2)His Honour erred in failing to find special circumstances. (3)His Honour erred in concluding that, on the state of the evidence and on the balance of probabilities, he did not assess the applicant's prospects for rehabilitation as good. 7In short, the applicant contends that, as a result of his Honour's erroneous conclusion that the applicant had made no attempt to seek professional assistance, he wrongly assessed the applicant's prospects of rehabilitation as not being good and wrongly found that there were not special circumstances which would have warranted a longer period on parole. Circumstances of the offences 8The sentencing judge proceeded on the basis of a statement of agreed facts. 9The uncontested facts are that in 2010 the applicant and the complainant commenced living together at the complainant's home in Cranebrook. They had previously known each other for 26 years. The applicant's violence towards the complainant commenced with the first assault in April 2011 and the final assault occurred in February 2012. 10The first assault in April 2011 is the common assault matter on the Form 1. In September 2011 the applicant and the complainant became engaged. In November 2011 they moved from Cranebrook to Lithgow. 11On 29 November 2011 the complainant made an application to the police for an apprehended domestic violence order. She briefly moved out of the Lithgow house but returned on 4 December 2011. 12On 8 December 2011 an apprehended domestic violence order was made by the Local Court which prohibited the applicant from assaulting, molesting, harassing, threatening, or stalking the complainant. Within days of this order having been made the applicant contravened this order after an argument with the complainant at the Lithgow house. The complainant had attempted to leave and the applicant hit her arms with such force that she dropped what she was holding. This contravention of the apprehended domestic violence order is the second matter on the Form 1. 13When the complainant later attempted to leave the Lithgow house on the same day, the applicant obtained a chain and wrapped it around the complainant's wrists so tightly that it left a mark. The complainant did not struggle as she feared that the applicant would hit her again. The applicant chained the complainant to their bed where she remained for the entire night. The following morning the applicant unwrapped the chains and released the complainant and apologised to her. This kidnapping was the subject of the "detain with intent to obtain advantage" offence. 14Some weeks later, in about late December 2011 or early 2012, the applicant told the complainant to leave the Lithgow house and said that he would not stop her. The applicant then grabbed the complainant by the throat and pushed her back onto the bed. He punched the complainant in the head which caused a graze. He also bit her left pointer finger. He struck her legs with leather shoes so hard that she was unable to walk the next day. During this incident the applicant said to the complainant: "I don't care if I kill you cunt. I don't care if I hurt you." This assault occasioning actual bodily harm is the fourth matter on the Form 1. 15On 11 February 2012 the applicant argued with the complainant when checking a bank statement. He punched her in the back of her head when outside the Lithgow house. Inside the house the applicant punched the complainant repeatedly in the head. He spoke to her in abusive terms. He also threatened to kill himself and her children if she left him. The complainant was dazed from the beating she had received. The applicant continued with his attack, punching her to the right side of her rib cage causing her pain. The applicant blamed the complainant for his violent behaviour and told her she was a liar. He proceeded to ask her a series of questions. When she gave an answer which he did not like he threw a mug at her. One of the mugs hit her in the chest and another grazed her finger when she tried to defend herself. These events constitute the first offence of assault occasioning actual bodily harm. 16Later in the afternoon of 11 February 2012 the applicant inflicted a further sustained assault on the complainant. This included the applicant hitting the complainant's head (whilst she was in the bath tub) with sufficient force that she hit her head against the bathroom tiles, punching her in the right knee-cap, and repeatedly running a kitchen knife, that he sharpened in front of her, across the complainant's arm, on one occasion leaving a mark and a small cut. The applicant spoke to the complainant in abusive and degrading terms including, when she asked to go to the toilet: "If you want to go, you can go outside like a dog", which is what the complainant was forced to do - she went outside to urinate. The applicant also told her that: "This is the last day you are going to live". He gave her a knife and told her to slit her own wrists, which she refused to do. These events constituted the second offence of assault occasioning actual bodily harm. 17The complainant reported these matters to the police on 15 February 2012. The applicant was arrested the following day. He participated in a record of interview. A search warrant was executed at his Lithgow home and 0.2 grams of amphetamine was located. The applicant told the police that the drugs were his and that he had been using $50.00 of "ice" intravenously. The possession of the prohibited drug was the third matter on the Form 1. The applicant's subjective case 18The applicant was 42 years of age when he offended and 43 years when sentenced. The applicant was married in 2000 but had separated by 2001. His former wife had refused access to their 12 year old daughter because of domestic violence issues. 19The applicant had been employed consistently since he left school at the age of 15. He was self-employed as an arborist at the time of his arrest. 20The applicant has a lengthy history of alcohol and drug abuse from the age of 15, beginning with using cannabis and moving onto cocaine, heroin, ecstasy, LSD, and finally "ice" from about 2006. The applicant had not sought or received assistance in relation to his drug use prior to entering custody. 21An alcohol and other drug report dated 21 May 2012 noted that the applicant had undergone a one week detoxification on being remanded in custody on the subject charges. The report also noted that the applicant had attended interviews, completed a treatment readiness questionnaire, and stated that he was willing to participate in a residential rehabilitation program. The report had been previously tendered on an earlier bail application. The report was again tendered on the sentencing hearing and became Exhibit 1. 22The pre-sentence report (Exhibit B) also noted that the applicant completed a one week period of detoxification when taken into custody in February 2012, and that the applicant "indicated that he had not undertaken any other intervention or treatment for his addictions". The report stated that the applicant wished to complete a period of residential rehabilitation and that his mother, brother, and the complainant "all agree that this outcome would be desirable, as the offender has made no attempt to address his issues to date". 23The pre-sentence report noted that the applicant blamed his offending behaviour on his long-term drug habit and regularly heavy alcohol consumption. Nonetheless, the report also noted that the applicant took full responsibility for the offending behaviour and expressed remorse. The author of the report expressed the opinion that the applicant may benefit from completing a lengthy period of treatment in a residential rehabilitation facility, prior to his release to the community. Reasons of the primary judge 24The primary judge allowed a 25% discount for the applicant's plea of guilty. 25His Honour gave little weight to the applicant's expression of remorse because of his failure to give evidence. 26His Honour found the applicant's statements regarding his wish to undergo rehabilitation to be "self-serving" and that his prospects of rehabilitation were not good. His Honour said (at ROS 10): "Since he was taken into custody Mr Agius has undergone one week of detoxification. At no time has he sought any professional assistance for his drug addictions or his propensity to violence - and in circumstances where his abuse of his partners has been over a significantly extended period. I regard his unsworn statement to the author of the presentence report that he now wishes to undergo rehabilitation to be self-serving. On the state of the evidence and on the balance of probabilities I do not assess his prospects for rehabilitation as good. I do not think they would be enhanced by a longer period on parole." 27His Honour found that the offences and the matters on the Form 1 involved prolonged and degrading abuse of the complainant and that the abuse was not only physical, but also undoubtedly deeply emotional. 28His Honour rejected the submission made on behalf of the applicant that the offences were at the lower end of the range but accepted that they were not the worst type of such offences. His Honour considered that general and specific deterrence required a sentence of imprisonment. 29Although it was the applicant's first period in custody his Honour declined to find special circumstances, because he considered there was a greater need to protect the community. 30His Honour imposed an aggregate sentence: 6 years imprisonment with a non-parole period of 4 years 6 months. Had he not imposed an aggregate sentence his Honour's indicative sentences were a term of imprisonment of 4 years for the kidnapping offence, and terms of imprisonment of 2 years 3 months and 3 years respectively for each of the assault occasioning actual bodily harm offences. Ground 1 - Suggested erroneous conclusion that the applicant had made no attempt to seek professional assistance 31The applicant contends that there was an error or oversight by the sentencing judge in concluding (at ROS 10) that at no time had the applicant sought professional assistance for his drug addictions or propensity to violence. Counsel for the applicant submitted that his Honour had overlooked the evidence in Exhibit 1, that, whilst on remand in May 2012, the applicant had sought a drug and alcohol assessment for the purpose of being placed in a residential drug and alcohol treatment program. 32There are two difficulties with this contention. 33The first difficulty is that the contention is not borne out by an analysis of his Honour's findings. The relevant portion of his Honour's remarks on sentence are set out at [26] above. His Honour's reference to the applicant not having sought professional assistance in circumstances where the abuse of the complainant had occurred over a "significantly extended period" - that is, prior to the current charges - makes it abundantly clear that the temporal context of his Honour's finding was the period prior to the applicant entering custody on the subject charges. His Honour's finding was correct. It did not misstate the material in the pre-sentence report, where the following appeared (AB 41): "Mr Agius said that he completed a one week period of detoxification when taken into custody in February 2012. He indicated that he had not undertaken any other intervention or treatment for his addictions. He said that he wished to complete a period of residential rehabilitation in order to break his drug habit and reconcile with the victim." 34His Honour then stated that he regarded the applicant's unsworn statement to the author of the pre-sentence report (that he wished to undergo rehabilitation) to be self-serving. There is no challenge to this finding. It was reasonably open to the sentencing judge to arrive at this conclusion based on the materials before him. In turn this finding reinforced that the temporal context of his Honour's earlier finding - that the applicant had not sought professional assistance - was to the period prior to the applicant entering custody on the subject charges. 35The second difficulty with the applicant's contention is that it misstates the relevance of the material in Exhibit 1 and how this was relied upon by the applicant at the sentencing hearing. Before the sentencing judge the applicant had relied upon Exhibit 1 in support of a submission that he should be given the opportunity to participate in a full-time residential program (AB 55, lines 1-10). The sentencing judge indicated that this was a matter for the Probation and Parole Service to arrange after the applicant's release on parole. Counsel for the applicant agreed (AB 55, lines 12-15), and then formally submitted that any custodial sentence might be suspended or partially suspended. The matter was not taken further by the applicant's counsel in submissions before the sentencing judge. 36In light of his Honour's decision to impose a full-time custodial sentence, as to which no complaint is made by the applicant, it cannot be said that his Honour overlooked the material in Exhibit 1, simply because he did not expressly refer to it in his remarks on sentence. This material was sought to be relied upon by the applicant for a different purpose. 37No error has been demonstrated in his Honour's finding. This ground of appeal is not made out. Grounds 2 and 3 - Suggested failure to find special circumstances and erroneous conclusion that the applicant's prospects for rehabilitation could not be assessed as good 38Grounds 2 and 3 may be dealt with together. The common premise of these two grounds is that the asserted error, which is the subject of ground 1, flowed through to his Honour's negative assessment of the applicant's prospects of rehabilitation and his conclusion that those prospects would not be enhanced by a longer period of parole. 39Counsel for the applicant acknowledged that these two grounds could not succeed if ground 1 was not made out. This concession was properly made. No other basis was advanced for challenging his Honour's finding that the applicant's unsworn statement that he now wished to undergo rehabilitation was self-serving. 40It follows that there was no error in his Honour's finding that the applicant's prospects for rehabilitation could not be assessed as good. In these circumstances there was no error in his Honour declining to find special circumstances because of the greater need to protect the community. 41Grounds 2 and 3 are not made out. Conclusion and order 42For the reasons given above, there is no merit in any of the proposed grounds of appeal. Accordingly leave to appeal against sentence should be refused. 43I propose the following order: (1)Application for leave to appeal refused. 44FULLERTON J: I agree with Gleeson JA. 45McCALLUM J: I agree that leave to appeal should be refused, for the reasons stated by Gleeson JA. The applicant subjected his partner to a series of violent, abusive and degrading assaults. After his arrest, and only then, he professed a willingness to undertake residential drug rehabilitation and sought bail for that purpose. The suggestion that the sentencing judge's scepticism as to the prospects of rehabilitation reveals error is untenable. ********** 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: 27 August 2014