Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Maglovski v R [2014] NSWCCA 238 Hearing dates: 17.10.2014 Decision date: 29 October 2014 Before: Hoeben CJ at CL at [1] Hidden J at [39] Davies J at [40] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - applicant convicted of murder - alleged error in making non-parole period 80 percent of head sentence and in failing to find special circumstances - no oversight by sentencing judge - considered choice by judge to increase non-parole period beyond statutory ratio - failure by defence counsel to raise special circumstances during sentence proceedings - no error on part of sentencing judge. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 -s44(1), s44(2) Criminal Appeal Act, 1912 - s6(3) Cases Cited: Barton v R [2009] NSWCCA 164 Briggs v R [2010] NSWCCA 250 Clarke v R [2009] NSWCCA 49 Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236 ; 189 A Crim R 178 Edwards v R [2009] NSWCCA 199 Goebel-McGregor v R [2006] NSWCCA 390 Jiang v R [2010] NSWCCA 277 Musgrove v R [2007] NSWCCA 21; 167 A Crim R 424 R v Cramp [2004] NSWCCA 264 R v Dunn [2007] NSWCCA 312 R v Fidow [2004] NSWCCA 172 R v Maglovski (No 2) [2013] NSWSC 16 Wakefield v R [2010] NSWCCA 12 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: Dragi Maglovski - Applicant Regina - Respondent Crown Representation: Counsel: Mr D Dalton SC - Applicant Ms N Williams - Respondent Crown Solicitors: SE O'Connor, Legal Aid of NSW - Applicant J Pheils, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2011/321270 Decision under appeal Citation: R v Maglovski (No 2) [2013] NSWSC 16 Date of Decision: 2013-02-04 00:00:00 Before: Beech-Jones J File Number(s): 2011/321270 Judgment 1HOEBEN CJ at CL: Offence and sentence On 1 November 2012 the applicant was arraigned on an indictment which charged that on 8 October 2011 he murdered Rosa Maglovski, his wife. The applicant pleaded not guilty to murder but guilty to manslaughter. The Crown did not accept that plea and the trial proceeded. On 12 November 2012 the jury returned a verdict of guilty to the charge of murder. 2The maximum penalty for the offence of murder is life imprisonment, with a standard non-parole period of 20 years. The sentence imposed by the trial judge was imprisonment with a non-parole period of 16 years and a balance of term of 4 years, i.e. a total term of 20 years. 3The applicant seeks leave to appeal from that sentence on the following grounds: Ground 1 - His Honour erred in fixing the non-parole period at 80 percent of the overall term. Ground 2 - His Honour was in error in not finding special circumstances. Factual background 4The sole issue before the jury was whether the applicant had made out a defence of provocation. The applicant and the deceased had been married for over 25 years and had lived at the same address in Hurstville for over 20 years with their two adult children. At the time of their marriage, the applicant was aged 30 and the deceased was aged 19. At the time of her death, the deceased was aged 48 and the applicant was aged 59. 5Until approximately a year before her death, the relationship between the applicant and the deceased had been good. The applicant's evidence was that about nine months before her death, his wife told him that she did not want to sleep with him anymore because he was "stinking". He said that this made him feel extremely bad and hurt. It was at this time that the applicant and the deceased commenced sleeping in separate bedrooms. 6The applicant said that within a few weeks of him moving to a separate room, the deceased told him "I can't live with you anymore". When they were arguing she said "I don't want to sleep with you anymore", referring to their sexual relationship. The applicant said that this made him feel humiliated and "like I don't exist anymore". 7The deceased operated a business cleaning offices in the years before her death. The applicant would often undertake work for the business out of hours. The applicant said that about six weeks before the deceased's death, the deceased said to him "You're not going to work anymore. You're too slow and I'm going to employ another man". He said this made him feel "very humiliated". On the long weekend before her death, the deceased went to Canberra and Queanbeyan to work. When asked about this, the applicant said "She wanted to be a man and I a woman". He said that the deceased said "I don't want you to come" and "I don't want you anymore" and she stayed overnight. He described this as a "great humiliation". 8When asked by the Crown prosecutor why he killed his wife, the applicant said: "Because she spat in my face and she didn't want to live with me anymore. I'd been working all my life for that house and all of a sudden it had to be destroyed overnight." 9It was following that exchange, that the applicant said that he pushed the deceased onto the couch and a fight ensued. After the applicant had punched her, he walked about 2.5m-3m into the kitchen, grabbed a knife from the kitchen sink and stabbed the deceased. He then drew the knife away and dialled triple 0. 10When the police arrived, the applicant admitted the offence. Three of the police officers who attended, gave evidence and each described the applicant as being in a very calm state. The most senior of them described him as "Not showing any real emotion at all. Very cold" and that "He seemed very matter of fact, wasn't trying to explain things or move away. Just standing there ...". 11Implicit in the jury's verdict of guilty of murder was a rejection of the applicant's defence of provocation. The jury were either not satisfied that the act of the applicant which caused the death of the deceased resulted from a loss of self-control on his part, that was induced or caused by some conduct on the part of the deceased, or that the conduct of the deceased was such that it could possibly have induced or caused an ordinary person in the position of the applicant to have so lost his self-control as to have formed an intention to kill the deceased. It may have been that the jury was not satisfied that either limb of the provocation defence had been made out. Proceedings on sentence 12At the time of sentence, the applicant was aged 60. After coming to live in Australia in 1984, he had worked for the same carpentry firm making cabinets, office furniture and kitchens until the date of his arrest. On weekends he did cleaning work in the deceased's business. There was no evidence of any disharmony or violence in the relationship between the applicant and the deceased until about a year before the murder. 13The applicant did not give evidence in the sentence proceedings, but a psychologist's report was tendered on his behalf. No psychiatric or psychological illness or disorder was identified as affecting the applicant. 14His Honour accepted the analysis of causation provided by the psychologist as follows: "The incident in question occurred in the context of a very long term, intimate relationship which underwent marked changes that affected the [offender] deeply. His cultural perspectives and expectations made the dynamics of the changed relationship between himself and his wife acutely painful and emotionally distressing and Mr Maglovski appeared to lack strategies for releasing stress and tension or ways of addressing differences and conflict in his marriage. His capacity to control his strong emotional responses to their changed circumstances was overcome by small but highly significant incidents which occurred between them on the morning of [the murder]. The cumulative impact precipitated a sudden and violent outburst by the [offender] which was unprecedented in the history of his marital relationship. His expressions of regret and remorse appear to be sincere and genuine. The likelihood of a similar set of circumstances reoccurring appears to be negligible." 15As his Honour put it: "69 ... Nevertheless, there is no doubt that Mrs Maglovska was an extremely resourceful woman. Over time, her position and the nature of their relationship changed dramatically as she became more independent. Ms Robilliard's description of the offender as someone who had no mechanisms for addressing the difficulties in their relationship strikes me as persuasive. The offender was simply ill-equipped to deal with the changing nature of his relationship with his wife, and could not accept the exercise by her of her right to determine a future without him." 16When considering aggravating and mitigating features, his Honour noted that there was little by way of aggravation except that the offence occurred in the home. In mitigation, his Honour found that the offence was not part of a planned or organised criminal activity and that there was no pre-meditation. His Honour accepted that the applicant was a person of good character and had no previous convictions. His Honour was satisfied that there was almost no chance of the applicant re-offending and that there were good prospects of rehabilitation. His Honour also took into account the applicant's early co-operation with the police. On the basis of what he told the psychologist, his Honour was prepared to accept that the applicant regretted and was remorseful for killing the deceased. 17By reference to the decisions in Goebel-McGregor v R [2006] NSWCCA 390 at 128 and Barton v R [2009] NSWCCA 164, his Honour was not prepared to take into account the applicant's age as a reason for reducing an otherwise appropriate term of imprisonment. Having reviewed all the facts, his Honour was of the opinion that the objective seriousness of the offending was below the middle range of objective seriousness so that the standard non-parole period would not apply. He did, however, take into account as guideposts the maximum penalty for the offence and the standard non-parole period. It should be noted that counsel for the applicant in the sentence proceedings did not submit that his Honour should make a finding of special circumstances. Appeal Ground 1 - His Honour erred in fixing the non-parole period at 80 percent of the overall term. 18The applicant submitted that s44(2) Crimes (Sentencing Procedure) Act 1999 required that after setting a non-parole period, pursuant to s44(1), the balance of the sentence must not exceed one-third of the non-parole period unless the court decided that there were special circumstances for it being more. This had the effect that the non-parole period was 75 percent of the overall sentence unless there was a finding of special circumstances. The applicant submitted that the primary judge imposed a non-parole period which was 80 percent of the overall sentence but did not provide reasons for doing so. 19The applicant accepted that s44(2) did not prohibit a non-parole period being greater than 75 percent but submitted that in the circumstances of this case, his Honour's failure to do so constituted an error particularly when regard was had to the matters which would have allowed a finding of special circumstances. 20In support of that submission, the applicant relied upon the following statement of Grove J (with whom Simpson and R A Hulme JJ agreed) in Wakefield v R [2010] NSWCCA 12 at [26]: 26 No reference was made to the effect of the partial cumulation whereby the balance term then set for count 8 created a minimum custodial term of 80 percent of the total sentence. It is true that, whilst the statute requires reasons to be stated for reducing the non-parole period against the stated formulation, no such requirement has been legislated if it is increased. However it has been stated in this Court more than once that it is expected that in circumstances where there is such an increase some reasons should be provided if only to forestall a conclusion that the specification was the result of error or oversight. In R v Dunn [2007] NSWCCA 312 it was said that this was especially the case where cumulation had taken place. Other examples of intervention by this Court in similar circumstances can be found in R v Lyndon [2003] NSWCCA 152; R v Ibraham [2005] NSWCCA 43." 21The applicant also relied upon the observation of Fullerton J (with whom Hodgson JA and Price J agreed) in Briggs v R [2010] NSWCCA 250 where her Honour said: "34 However, and despite the clarity of his Honour's sentencing remarks and his express finding that the non-parole period should be 8 years, his silence as to the reason for increasing the proportion of the minimum period in custody relative to the total term above 75 per cent leaves me with a sense of disquiet that he may have overlooked giving appropriate focus to the statutory ratio provided for in s 44 of the Crimes (Sentencing Procedure) Act. In the result, I am persuaded that error is demonstrated in this limited respect and that an adjustment to the non-parole period should be permitted." Ground 2 - His Honour was in error in not finding special circumstances. 22The applicant submitted that there should have been a finding of special circumstances, given that this was the applicant's first time in custody, his age and his cultural background. 23The applicant accepted that it has been held that an appeal court will be reluctant to find error in this regard where there was no submission made upon sentence for a finding of special circumstances (Edwards v R [2009] NSWCCA 199 at [11]). Nevertheless, he submitted such a finding should have been made in the circumstances of this case. 24In the alternative, the applicant submitted that if Ground of Appeal 1 was made out and this Court decided to re-sentence the applicant pursuant to s6(3) of the Criminal Appeal Act 1912, then in the exercise of its discretion it should make a finding of special circumstances in favour of the applicant. Consideration Ground 1 25In considering this Ground of Appeal, two of the specific findings by the primary judge are of particular importance: "53 In the end result I am satisfied beyond reasonable doubt that the offender made a deliberate decision to attack his wife. He intended to kill her. However his actions were not premeditated. His anger rose up on 8 October 2011 after she made it clear that their marriage was over and he realised she was determined to finally leave. After he started attacking her he had the ability to stop, but instead stabbed her while she begged him to stop. ... 91 In the end, I am required to sentence a man who violently killed his wife because he could not cope with her decision to leave him. Her death was violent, but unplanned. She was slain in her own home after spending the morning with her daughter and with her son nearby, both innocent in every sense of the word. Until the breakdown of his marriage the offender had lived an exemplary life and still had much to look forward to, even if his marriage had not survived. In this case considerations of general deterrence and the need for the sentence to reflect notions of retribution and denunciation are highly significant. Married women have the right to choose their own destiny. Significant punishments will be imposed upon those who inflict violence on them for exercising that right. That said the offender does not represent a danger to society and his imprisonment is not necessary for its protection." 26It is clear from his Honour's sentence judgment that the non-parole period which he set was carefully considered by him to be "the appropriate term of imprisonment to be served" [90]. In that regard, it should be noted that this was a sentence imposed after trial and was not subject to any discounts. Had his Honour considered that any other non-parole period was appropriate, it would have been a simple matter on the figures to substitute 15 years (being 75 percent of the head sentence). In that regard, it is not without significance that his Honour specifically referred to s44(2) (at [96]) when setting the non-parole period of 16 years. 27Because his Honour specifically referred to s44(2), I infer that the setting of 16 years as the non-parole period did not involve an error or oversight such as was referred to in Wakefield and Dunn. Those were cases where more than one sentence was imposed and questions of cumulation and concurrency arose. That is not the case here. Unlike the situation in Briggs, the analysis of his Honour in this case does not leave me with any sense of disquiet that the terms of s44(2) might have been overlooked. 28As the applicant fairly conceded, the language of s44(2) does not require that the balance of term must not be less than one-third of the non-parole period: Musgrove v R [2007] NSWCCA 21; 167 A Crim R 424 at [27]; Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236 ; 189 A Crim R 178 at [17], [19] and Wakefield to which the applicant has referred. What has developed is a rule of practice where because of the particular facts of some cases, this Court has said that it is advisable for a sentencing judge to explain why a ratio in excess of 75 percent was selected. Such cases usually involve facts where it could be inferred that an oversight might have occurred. 29That was the kind of circumstance to which I adverted in R v Dunn [2007] NSWCCA 312 where I said: "40 The submission in relation to s44 is, however, in a somewhat different category. I appreciate that the section does not create a statutory norm in relation to the proportion of the non-parole period as against the total term of the sentence and that special circumstances are required only where the proportion is to be less than three-quarters. Nevertheless general sentencing principles suggest that where there is a departure from the statutory ratio there should be some reason provided. It is not clear here that his Honour appreciated that the combined effect of the sentences was to produce a non-parole period in excess of 80% of the head sentence. If he did he failed to indicate why he thought such a departure from the statutory ratio was appropriate. 41 It has been held by this Court that where one or more sentences are made cumulative upon another sentence so as to produce a non-parole period which is in excess of the statutory ratio that of itself may amount to special circumstances. On the facts of this case that consideration and the absence of an explanation as to why the non-parole period has been increased beyond the statutory ratio, lead me to conclude that this Court ought intervene so that the combined effect of the sentences conforms with the statutory ratio. A reduction of 4 months in the non-parole period in respect of count 3 would substantially achieve that result." 30This ground of appeal has not been made out. Ground 2 31This Court in recent times has stated with increasing force that a failure by defence counsel in sentence proceedings to make submissions on a particular topic will usually not give rise to error if the sentencing judge does not take that particular matter into account. This has particular applicability to a complaint that a sentencing judge failed to make a finding of special circumstances (Johnson J in Zreika v R [2012] NSWCCA 44 at [80] (with whom McClellan CJ at CL and Rothman J agreed)). There Johnson J reiterated the proposition that in applications for leave to appeal against sentence, applicants are usually to be bound by the conduct of their counsel. His Honour said that there is a "practical expectation that an offender's legal representative will make submissions to the sentencing judge at first instance, by reference to the particular factors which are sought to be taken into account in mitigation of the sentence in the case at hand". At [81] Johnson J said: "81 ... The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea. ..." Observations to similar effect were made in relation to special circumstances in Edwards v R. 32In this case, the rationale for the application of special circumstances is somewhat problematic. The fact that a person is being imprisoned for the first time as a basis for a finding of special circumstances is controversial. In Clarke v R [2009] NSWCCA 49 at [12] McClellan CJ at CL said: "12 ... Reservations have been expressed in this Court as to whether the fact that a person will be in custody for the first time is capable of constituting special circumstances R v Kama (2000) 110 A Crim R 47 (per Spigelman CJ at [10]); R v Kaliti [2001] NSWCCA 268. I have similar reservations. There will be many persons facing a court for sentence who will receive a custodial term for the first time. No doubt where appropriate that fact will be reflected in the sentence which is imposed. But whether for that reason alone a finding of special circumstances is appropriate is doubtful. Most people who have been incarcerated for any period will need assistance in re-establishing themselves in the community and it may be that a repeat offender is in greater need than some one incarcerated for the first time." 33 Insofar as the applicant's age is concerned 60 is not by reference to contemporary life expectancies, to be regarded as a particularly old age. In some circumstances, age may provide a basis for a finding of special circumstances but this is not one of them. The findings by Ms Robilliard as to the applicant not having any psychiatric or psychological illness and that he was not experiencing any particular difficulties with incarceration would also not constitute a basis for a finding of special circumstances. 34As has been often said by this Court, a ground of appeal which asserts a failure to adjust a sentence for special circumstances raises so many matters of a discretionary character that this Court has been reluctant to intervene. As a practical matter, the Court will only intervene if the non-parole period is manifestly inadequate or manifestly excessive: R v Cramp [2004] NSWCCA 264 at [31]; R v Fidow [2004] NSWCCA 172 at [19]; Jiang v R [2010] NSWCCA 277 at [83]. 35It is not to the point that some lesser non-parole period may have been imposed. What the applicant must establish if this Court is to intervene is that the primary judge erred in not finding special circumstances and that in the result, a non-parole period of 16 years is excessive. I am not persuaded that such is the case. I do not consider that his Honour was obliged to find special circumstances or that his discretion in fixing the non-parole period of 16 years miscarried for that reason. 36This ground of appeal has not been made out. 37Although the above is sufficient to dispose of the appeal, I make one further observation. Had either ground of appeal been made out, it would have been necessary for this Court to re-exercise the sentencing discretion pursuant to s6(3) Criminal Appeal Act 1912. In view of the comprehensive analysis of the objective seriousness of the offence and the applicant's subjective circumstances made by the primary judge had it been necessary to re-exercise the sentencing discretion, I am not satisfied that any lesser sentence is warranted and I would not have interfered with the sentence imposed by his Honour. 38The orders which I propose are: (1)That leave to appeal be granted. (2)Appeal be dismissed. 39HIDDEN J: I agree with Hoeben CJ at CL. 40DAVIES J: I agree with Hoeben 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: 29 October 2014