Borsa v The Queen
[2003] WASCA 254
•24 OCTOBER 2003
BORSA -v- THE QUEEN [2003] WASCA 254
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 254 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:126/2000 | 4 SEPTEMBER 2003 | |
| Coram: | MURRAY ACJ STEYTLER J HASLUCK J | 24/10/03 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal against conviction granted Appeal against conviction dismissed Leave to appeal against sentence granted Appeal against sentence allowed Total of 10-1/2 years' imprisonment for State offences reduced to total period of 5 years and 8 months with 18 months' imprisonment on Commonwealth offence to stand | ||
| B | |||
| PDF Version |
| Parties: | STEFAN VIOREL BORSA THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against conviction Whether applicant's disabilities and lack of fluency in English meant that he was unable to plead properly or give instructions to counsel Turns on own facts Criminal law and procedure Appeal against sentence Whether sentence was excessive having regard to tariff and applicant's guilty pleas Whether sentences imposed were outside the range of sound sentencing discretion having regard to similar cases Whether sentence was manifestly excessive having regard to applicant's disabilities and guilty pleas Turns on own facts |
Legislation: | Sentence Administration Act 2003 Sentencing Legislation Amendment and Repeal Act 2003 |
Case References: | Duffield v The Queen, unreported; CCA SCt of WA; Library No 950065; 14 February 1995 Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996 Lowndes v The Queen (1999) 195 CLR 665 Maxwell v The Queen (1996) 184 CLR 501 Meissner v The Queen (1995) 184 CLR 132 Nobes v The Queen, unreported; CCA SCt of WA; Library No 960486; 26 August 1996 Nutall v The Queen, unreported; CCA SCt of WA; Library No 920090; 26 February 1992 Pilkington v The Queen [1955] Tas SR 144 Pinkstone v The Queen (2000) 116 A Crim R 187 Tihanyi v The Queen (1999) 21 WAR 377 Cameron v The Queen [2002] WASCA 81 Dinsdale v The Queen (2000) 202 CLR 321 Ibbs v The Queen (1987) 163 CLR 447 Pop v The Queen (2000) 116 A Crim R 398 Quach v The Queen [1999] WASCA 210 R v Atholwood (1999) 109 A Crim R 465 R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998 R v Peterson [1984] WAR 329 R v Ruich [2000] WASCA 84 R v Ward (1999) 109 A Crim R 159 Radebe v The Queen [2001] WASCA 296 S v R [2000] WASCA 34 Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998 Veen v The Queen (No 2) (1988) 164 CLR 465 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BORSA -v- THE QUEEN [2003] WASCA 254 CORAM : MURRAY ACJ
- STEYTLER J
HASLUCK J
- CCA 131 of 2000
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against conviction - Whether applicant's disabilities and lack of fluency in English meant that he was unable to plead properly or give instructions to counsel - Turns on own facts
Criminal law and procedure - Appeal against sentence - Whether sentence was excessive having regard to tariff and applicant's guilty pleas - Whether sentences imposed were outside the range of sound sentencing discretion having regard to similar cases - Whether sentence was manifestly excessive having regard to applicant's disabilities and guilty pleas - Turns on own facts
(Page 2)
Legislation:
Sentence Administration Act 2003
Sentencing Legislation Amendment and Repeal Act 2003
Result:
Leave to appeal against conviction granted
Appeal against conviction dismissed
Leave to appeal against sentence granted
Appeal against sentence allowed
Total of 10-1/2 years' imprisonment for State offences reduced to total period of 5 years and 8 months with 18 months' imprisonment on Commonwealth offence to stand
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr B Fiannaca
: Mr H G Dembo
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
: Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Duffield v The Queen, unreported; CCA SCt of WA; Library No 950065; 14 February 1995
Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996
Lowndes v The Queen (1999) 195 CLR 665
Maxwell v The Queen (1996) 184 CLR 501
Meissner v The Queen (1995) 184 CLR 132
(Page 3)
Nobes v The Queen, unreported; CCA SCt of WA; Library No 960486; 26 August 1996
Nutall v The Queen, unreported; CCA SCt of WA; Library No 920090; 26 February 1992
Pilkington v The Queen [1955] Tas SR 144
Pinkstone v The Queen (2000) 116 A Crim R 187
Tihanyi v The Queen (1999) 21 WAR 377
Case(s) also cited:
Cameron v The Queen [2002] WASCA 81
Dinsdale v The Queen (2000) 202 CLR 321
Ibbs v The Queen (1987) 163 CLR 447
Pop v The Queen (2000) 116 A Crim R 398
Quach v The Queen [1999] WASCA 210
R v Atholwood (1999) 109 A Crim R 465
R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998
R v Peterson [1984] WAR 329
R v Ruich [2000] WASCA 84
R v Ward (1999) 109 A Crim R 159
Radebe v The Queen [2001] WASCA 296
S v R [2000] WASCA 34
Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998
Veen v The Queen (No 2) (1988) 164 CLR 465
(Page 4)
1 MURRAY ACJ: I respectfully agree with the reasons of Steytler J and have nothing to add. In my opinion also the appeal against conviction should be dismissed and the appeal against sentence should be allowed to the extent proposed by his Honour The applicant should be sentenced to the terms calculated by his Honour, to date from 21 July 1999, with eligibility for parole.
2 STEYTLER J: The applicant applies for leave to appeal both against his conviction on various drug-related offences and also against the sentences imposed upon him.
3 His convictions arose out of pleas of guilty to six offences under State law and to one offence under Commonwealth law. The State offences were four counts of selling heroin, one count of possessing heroin with intent to sell or supply to another and one count of bribing a public officer. The Commonwealth offence was one of having under his control a false passport.
4 During September and October 1997 the applicant was the subject of an undercover surveillance operation conducted by members of the drug squad. During the course of that operation an undercover officer arranged several meetings with him in order to purchase heroin. Each of the meetings was arranged by telephone and each sale took place in a secluded area behind the Balga Aquatic Centre. The first sale was one, on 24 September 1997, of 2.89 grams of heroin with a purity of 79 to 81 per cent. The price was $1500. The second sale took place on 1 October 1997 and involved 3.98 grams of heroin with a 75 per cent purity which was sold for $2000. The third sale took place on 7 October 1997 and involved 6.92 grams of heroin with a purity of 78 per cent and a price of $3000. The fourth, and last, sale took place on 10 October 1997 and involved 13.8 grams of heroin with a purity of 80 per cent at a price of $5500.
5 Notwithstanding the fact of these sales, the applicant was not apprehended until 24 June 1998, in the course of a police raid conducted at a time when, the police believed, the applicant was about to sell to others a significant quantity of heroin. As the police approached the applicant, he threw a small item across the road. The item was retrieved and it was found to be a quantity of 27.9 grams of heroin with a purity of 48 per cent, wrapped in a round ball of packaging tape. This gave rise to the charge of possession of heroin with intent to sell or supply to another (count 5 on the indictment).
(Page 5)
6 The applicant was arrested and, a little later, interviewed by a detective sergeant. During the course of the interview he is said to have handed to the detective sergeant a wad of $100 notes amounting, in all, to $5000 and to have offered to pay a further sum of $100,000, if the prosecution against him should prove to be unsuccessful. This gave rise to the charge (count 6) of bribing a public officer.
7 The applicant was then released on bail. He was said, over the ensuing months, to have made detailed plans to escape prosecution by leaving the country on a false passport. He had, by December 1998, been able to acquire a false Macedonian passport which bore his photograph under a false name. Conversations which he had with two acquaintances in respect of the passport were secretly recorded by police and these conversations indicated that he had acquired the passport in Sydney for the sum of $25,000 and that he had paid a courier $3000 to travel to Sydney in order to collect it on his behalf. He was arrested before he could use the passport to flee Australia.
8 In early February 1999, prior to his being convicted for any of these offences, the applicant was assaulted and severely injured, resulting in him being unconscious for a considerable period of time. The assault has left him with severe disabilities, some of these resulting from damage to the frontal lobes of his brain. A report prepared by Dr Kim Fong of Royal Perth Hospital on 31 May 1999 described the applicant's residual problems as encompassing deafness in his left ear, postural dizziness and vertigo, total anosmia and loss of taste, poor balance, some mild upper limb dyspraxia, some mild word-finding difficulties and impairment to his short-term memory. His residual physical and cognitive limitations are said to have been such as to make it very likely that he would remain totally and permanently incapacitated for any reasonable form of employment.
9 On 17 November 1999 Dr Zdenek Srna, a consultant psychiatrist, reported that the applicant suffered from dementia due to his head trauma, significant memory impairment, deafness in his left ear, the loss of 20 per cent of the hearing in his right ear, impaired vision and impaired balance. He found it difficult to understand the applicant whose answers to questions were brief and often inappropriate. He noted a significant thought disorder (which he described as "wandering in his topic"). He said that, while the applicant's condition had improved during rehabilitation to the point where he was able to maintain brief conversation appropriately, his insight was reduced and there was a delay in processing information and reduced high-level
(Page 6)
- balance and co-ordination. High level reduction in cognitive function and integration of movement and behavioural difficulties were noted.
10 It was against this background that the applicant pleaded guilty, on 7 October 1999, and again on 31 December 1999, to the passport offence and, on 22 March 2000, to the balance of the offences. He was sentenced, in respect of all of these offences, on 18 May 2000. The sentences imposed in respect of the State offences were sentences of 2 years' imprisonment on each of counts 1 and 2, 3 years' imprisonment on count 3, 4 years' imprisonment on count 4, 6 years' imprisonment on count 5 and 4½ years' imprisonment on count 6. The sentences imposed on counts 1 to 5 inclusive were ordered to be served concurrently, but that imposed on count 6 was ordered to be served cumulatively upon the other sentences, resulting in a total of 10½ years' imprisonment.
11 He was sentenced to a period of 18 months' imprisonment in respect of the Commonwealth offence, with that sentence being ordered to commence at the expiration of the non-parole period in respect of the State offences. The sentencing Judge also directed that, at the expiration of 9 months of that term of imprisonment, he was to be released upon entering into a recognisance in the sum of $5000 to be of good behaviour for a period of 2 years.
The application for leave to appeal against conviction
12 The grounds for the application for leave to appeal against conviction are expressed by the applicant (who appeared in person) as follows:
"1. Mentally impaired, permanent brain damage, deaf and diminished memory have contributed to a miscarriage of justice in that the appellant was not in a position to plead or give proper instructions to council [sic].
2. Miscarriage of justice in that instructions to council [sic] were not in the presence of an interpreter and with the aid of a hearing device.
3. Unable to understand the substantial effects of evidence presented by the prosecution contributing to a miscarriage of justice.
4. Unable to properly make a plea to the indictment.
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- 5. Grossly unfair to be deprived of the right to [sic] going to trial due to lack of understanding and the effects of mental disposition."
13 In order to put these grounds into their context, it is necessary to recite something of the background to the applicant's conviction.
14 He was first arraigned in respect of the State offences on 6 June 1999, at which time he entered pleas of not guilty. He was thereafter remanded on a number of occasions, upon some of which he was represented by counsel. On one of these occasions, on 2 February 2000, his counsel, Mr A J Maughan, informed the Court that the applicant was not, at that time, prepared to provide him with instructions and wanted to take the opportunity of utilising an interpreter in his native tongue in order to assist him in understanding the contents of the Crown briefs. He was remanded, in custody, until 22 March 2000. On that day, the applicant was represented by another counsel, Mr J A Sutherland. He entered pleas of guilty to each of the State offences. The matter was remanded to 24 March 2000 for sentencing.
15 As to the Commonwealth offence, I have mentioned that the applicant pleaded guilty to it on 7 October 1999 and again on 31 December 1999. On the second of those occasions the facts of the offence were read out by the prosecutor. The applicant, who was then unrepresented, told the Court that his previous lawyer, Mr M Bowden, had earlier convinced him to plead guilty to that offence and also that the facts, as read out, were incorrect. He was invited to take this up with his lawyer, the applicant having said that he proposed to obtain alternative legal representation. The matter was then adjourned, ultimately, to 31 January 2000, upon which date the applicant was represented by Mr Maughan, who submitted that the plea of guilty had been entered without the applicant "knowing fully" what the allegations against him were. The matter was again adjourned to enable Mr Maughan to take instructions and to discuss the papers with the applicant. When the matter came on for hearing again on 2 February 2000, the applicant was still represented by Mr Maughan, who informed the Court that more time was needed in order for advice to be obtained with the aid of an interpreter. The applicant and his solicitor were told by the sentencing Judge that his Honour proposed to proceed with sentencing at the next hearing, subject to any application to withdraw the plea.
(Page 8)
16 On 24 March 2000, the applicant came again before the Court. He was represented by Mr Sutherland. No application was made to withdraw the plea in respect of the Commonwealth offence. The material facts in respect of the State offences were read out by the State Crown prosecutor. The applicant's counsel informed the Court that he was not instructed that he should dispute any of the matters which had been read out in respect of the State offences. However, he went on to say that it had not been easy for him to obtain clear instructions and that he had been at some pains to explain to the applicant that "his plea of guilty must be taken firstly to encompass the elements of each of the offences to which he pleads, that he pleads unreservedly in that fashion and that if there were any aspect of these matters that he wished … [his counsel] specifically to take issue with, then … [his counsel] should be given clear instructions about that". Mr Sutherland went on to say that, given that the facts were such as could objectively be established by independent witnesses, "… it may well be that I am not instructed to take issue with any aspect of it because, as … [the applicant] accepts in discussions with me, the matters really are not difficult to prove …".
17 Counsel for the applicant went on to make a number of submissions relevant to the sentences which might be imposed upon the applicant in respect of all of the offences. Those submissions encompassed the applicant's then physical and mental disabilities. Having heard these submissions, the sentencing Judge remanded the applicant, once again, in order to obtain an assessment of his mental disabilities from Dr Ananth Pullela, a senior consultant forensic psychiatrist.
18 That report was produced on 1 May 2000 and, as I have said, the applicant was ultimately sentenced on 18 May 2000.
19 The five grounds of appeal essentially come down to the proposition that the applicant's disabilities, coupled with his lack of fluency in the English language, were such that he was unable to plead, to give proper instructions to his counsel and to hear and understand the evidence against him.
20 It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. There must be a strong case and exceptional circumstances: Nutall v The Queen, unreported; CCA SCt of WA; Library No 920090; 26 February 1992; Pilkington v The Queen [1955] Tas SR 144 and Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996. Before an
(Page 9)
- appellate court will set aside a conviction of that kind, the appellant must show that there has been a miscarriage of justice: Duffield v The Queen, unreported; CCA SCt of WA; Library No 950065; 14 February 1995 and Nobes v The Queen, unreported; CCA SCt of WA; Library No 960486; 26 August 1996. In Harman, Parker J, at 5, after acknowledging that the circumstances which will amount to a miscarriage of justice can never be exhaustively identified, said that there are three well-recognised circumstances in which a plea of guilty will be set aside. The first is when the appellant did not understand the nature of the charge or did not intend to admit guilt; the second is if, upon the admitted facts, the appellant could not in law have been guilty of the offence; the third is where the guilty plea was obtained by improper inducement, fraud or intimidation and the like. (See, in this respect, Meissner v The Queen (1995) 184 CLR 132 at 157, per Dawson J, Maxwell v The Queen (1996) 184 CLR 501 at 510 - 511, per Dawson and McHugh JJ, at 522, per Toohey J, and at 531, per Gaudron and Gummow JJ, and Tihanyi v The Queen (1999) 21 WAR 377 at 390 - 391, per Murray J).
21 In this case the applicant contends that he was in no position to decide whether or not to admit guilt, for the reasons advanced by him. I am unable to accept that there is sufficient in any of his contentions in this respect. He was, as I have said, legally represented at the time at which he pleaded guilty to the State offences. So far as the Commonwealth offence is concerned, he pleaded guilty to that offence upon the advice of his then legal representative. Dr Srna, in his report dated 17 November 1999, while acknowledging that the applicant was suffering from dementia due to head trauma and also showing other symptoms of frontal lobe pathology, said that he demonstrated a sufficient understanding of the charges and other issues such as to satisfy Dr Srna that he was fit to plead and also to follow the legal proceedings. Dr Pullela, in his report dated 1 May 2000, concluded that the applicant could "follow the court proceedings well" and could "defend his charge". He added that the applicant was able to convince him that he understood the "prosecutor's argument and evidence" and said that the applicant was fit to plead and stand trial.
22 Furthermore, the background, as I have described it, makes it plain that the applicant had a more than adequate opportunity to instruct, and take advice from, the various counsel who represented him. While it is true that Mr Sutherland mentioned some difficulty in obtaining clear instructions, it does appear from what was said by him to the Court on 24 March 2000 that the applicant understood that his plea of guilty
(Page 10)
- encompassed each of the elements of the various offences and was content to accept that the Crown was able to prove each of those elements by the evidence upon which it relied.
23 Also, while the applicant undoubtedly has a significant hearing disability, there was evidence before the Court in the form of a report from Dr Philip Nash, of the Department of Otolaryngology, Head and Neck Surgery at Royal Perth Hospital, to the effect that the hearing thresholds in the applicant's right ear remained reasonably good, with the consequence that there was no need to supply him with a hearing aid for that ear. As to his difficulty with the English language, the applicant has lived in Australia since 20 October 1980. A pre-sentence report prepared in respect of him by a community corrections officer on 14 December 1999 records that the applicant told that officer that he did not need an interpreter as he could speak "fair English".
24 Finally, and before leaving the appeal against conviction, I should mention that the applicant appeared to contend, in the course of his submissions (but not in any ground of appeal), that he was not adequately represented by the counsel who advised him. Indeed, he appeared to go so far as to suggest that two of them (Mr Bowden and Mr Sutherland) were parties to a conspiracy against him. It is enough to say, in that respect, that there is nothing in any of the papers before us, including the various transcripts, to lend any support, at all, to his contentions in this regard.
25 It follows, in all of these circumstances, that none of the grounds of appeal can be made out. Consequently, while I would grant the applicant leave to appeal against his conviction, I would dismiss that appeal.
The Appeal Against Sentence
26 The applicant raises five grounds of appeal against sentence, as follows:
"1. The sentence of 4½ years in respect of the charge of bribing a public officer was excessive in respect of all circumstances of the offence and the offender.
Particulars
Failure to take into account:-
I. The appropriate tariff in respect of this offence.
(Page 11)
- II. The Applicants [sic] plea of guilty.
2. The sentence of 1½ years in respect of falsifying a passport was excessive in all the circumstances of the offence and the offender.
Particulars
Failure to take into account:-
I. The applicable tariff.
II. The Applicants [sic] plea of guilty.
3. The learned sentencing Judge failed to apply, or properly apply, the principles of totality to the overall sentence imposed.
4. The learned sentencing Judge erred at law in failing to give any or sufficient weight to the mitigatory factor of the Applicants [sic] psychiatric and mental condition.
5. The learned sentencing Judge failed to apply, or properly apply, the principles of parity to the overall sentence imposed."
27 I will deal first with grounds 1, 2 and 5, before dealing with grounds 3 and 4.
28 There is no merit, in my opinion, in ground 1. The offence of bribing a public officer is very serious. Offences of that kind, if successfully carried out, undermine the very system in which we operate. General deterrence consequently takes on a particular importance and there is a need to severely punish those who seek to corrupt the system for their own benefit. Here, there was an attempt to bribe a police officer in order to affect the outcome of serious charges. The offence carries a maximum period of 7 years' imprisonment and, even given the applicant's plea of guilty, it cannot be said that a sentence of 4½ years' imprisonment was excessive. It should be remembered, in this last respect, that a court of criminal appeal may not, of course, substitute its own opinion for that of the sentencing Judge merely because it would have exercised its discretion in a manner different from that in which the sentencing Judge did so. The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice: Lowndes v The
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- Queen (1999) 195 CLR 665 at 671 - 672, per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
29 Before leaving this ground, I should mention (although this was not raised expressly by any ground of appeal) that the applicant contended that the sentence for this offence should not have been required to be served cumulatively upon the other sentences, as it formed part of one course of events and arose directly out of the prior offending. I am not persuaded that there is any substance at all in this contention. The bribery offence was quite different from the drug offences, and while it might be described as having been related to the drug offences, it was a separate criminal transaction of a very serious kind. I am not persuaded that there was any error in ordering the sentence for that count to be served cumulatively upon the other sentences imposed.
30 As to ground 2, the Commonwealth offence carried a maximum penalty of 2 years' imprisonment. The sentencing Judge said, with some justification, that he considered this offence to be "at the top end of the scale" but that, allowing for the plea of guilty, he would reduce the sentence to one of 18 months' imprisonment. It seems to me that this was a case in which it was open to the sentencing Judge to impose a severe sentence. The applicant had made detailed plans to escape prosecution by means of the false passport and had paid substantial sums to others in order to obtain it. In my opinion, the sentence of 18 months' imprisonment, even given the plea of guilty, is within the range of an appropriate exercise of discretion. I am not persuaded that his Honour made any error in that respect.
31 Before leaving this ground, I should mention that the applicant placed some reliance on the case of Pinkstone v The Queen (2000) 116 A Crim R 187, in support of his contention that the sentence imposed for this offence was excessive. That case, like all such cases, turned on its own facts and circumstances. There, the applicant, who had obtained two false passports, was sentenced to a period of 2 years' imprisonment. On appeal, that sentence was reduced to one of 15 months' imprisonment, with a minimum term of 7 months' imprisonment. However, there was there no involvement of other persons and it was unclear for what purpose or purposes the passports had been obtained. I am not persuaded that anything in that case casts any doubt on the appropriateness of the sentence imposed in this case.
(Page 13)
32 As to ground 5, the issue sought to be raised by the applicant is not really one of parity. There was no parity issue in this case. Rather, the applicant's contention appears to be that the various sentences imposed upon him were outside the range of a sound sentencing discretion, given sentences which have been imposed by the Court in respect of other offenders in similar circumstances.
33 That contention has no substance at all and each of the sentences imposed in this case was within an appropriate range. I have already referred to the appropriateness of the sentences imposed in respect of the offence of bribing a public officer and that of having a false passport. So far as the drug offences are concerned, the terms of imprisonment imposed ranged between 2 and 4 years. There is no basis, at all, for suggesting that those terms were not open to the sentencing Judge, given the serious nature of the offences and, in particular, the fact that the drug sold was heroin. In imposing those sentences, the sentencing Judge took into account, also, the fact of the applicant's prior criminal record, including convictions in 1986, 1989, 1990 and 1991 on drug charges.
34 I should add that the applicant also contended (although this was not covered by any ground of appeal) that, because there was some measure of entrapment in respect of the various drug offences, and because this offending was allowed to continue for a period of time, there should be some discount in the sentences imposed in respect of those offences. I am not persuaded that that is so. It seems plain that the police officers concerned preferred to keep the applicant under observation for a considerable period of time and that the undercover operative who purchased drugs from him, having started with the purchase of a relatively small amount, wanted to test the capacity of the applicant to provide larger amounts over a period of time.
35 As to grounds 3 and 4, the applicant's contention is essentially that, given his disabilities and the fact of his pleas of guilty (although they are not expressly mentioned in these grounds), the overall sentence imposed upon him was too great.
36 Dealing, first, with the pleas of guilty, the applicant contended that the reductions allowed by the sentencing Judge in respect of those pleas were, in some cases, greater than others and, generally, inadequate. It is true that there was some variation, but it is plain that the sentencing Judge did not approach this issue with any mathematical formula in mind. Rather, he approached it by way of a general assessment of what
(Page 14)
- was appropriate in each case, given that the final sentence imposed had to reflect the applicant's criminality as his Honour saw it. I am not persuaded that he made any error in the exercise of his discretion in this respect.
37 That leaves only the question whether the applicant's residual disabilities were sufficiently taken into account by the sentencing Judge. That his Honour did take account of them is apparent from the following extract from his sentencing remarks. He said:
"I have a psychiatric assessment, which was conducted by Dr Pullela within the prison system at my request and I note Dr Pullela's opinion, that you have a history suggestive of probable frontal lobe pathology. You have organic brain damage, secondary to head injury that you sustained in February 1999 which has had significant effects on your personality and behaviour. You also have memory impairment and radio imaging investigations indicate possible frontal lobe involvement with possible disinhibition, impulsivity to impair social judgment and emotional inability. Dr Pullela states that from a psychiatric point of view you have no ongoing or any existing treatable psychiatric disorder.
After the head injury you appear to have developed a personality, behavioural and an emotional change with possible disinhibition and impulsivity and proclivity to alcohol and, in Dr Pullela's opinion, these features will put you at risk of reoffending in the future. Dr Pullela notes that with head injured and personality disordered individuals the risk of reoffending in future will always be high and he considers that you need a structured rehabilitation program and require to be monitored."
38 His Honour also referred to a number of other factors which, he said, worked against the applicant. One of these was his significant criminal record, to which I have earlier referred. In 1986 he had been sentenced to a period of 18 months' imprisonment in respect of charges of cultivating cannabis and possessing cannabis with intent to sell or supply. In 1989 he was sentenced to periods, respectively, of 18 months' imprisonment and 2 years' imprisonment on counts of possessing cannabis with intent to sell or supply and of selling cannabis. In 1990 he was sentenced to 18 months' imprisonment for selling heroin
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- and in 1991 he was sentenced to 3 months' imprisonment for selling cannabis. The sentencing Judge said that his involvement in the drug trade was motivated solely by commercial gain and that he could fairly be described as a hardened offender who had shown no remorse.
39 It is consequently plain enough that his Honour did take into account the disabilities suffered by the applicant, but considered that the sentences imposed by him were nonetheless appropriate, given the other matters to which he referred. However, the question remains whether the total sentence imposed by the sentencing Judge is such as to reflect a failure to give sufficient weight to the ongoing effect of the applicant's residual disabilities.
40 Those disabilities are very substantial indeed. The applicant has, as I have said, entirely lost the hearing in his left ear and has lost 20 per cent of that in his right ear. His other physical disabilities, including his poor balance, upper limb dyspraxia and some impairment of his vision are significant. His mental disabilities are even more significant. I have mentioned that Dr Srna has reported that he suffers from dementia due to his head trauma. In his report dated 17 November 1999 he also referred to personality change as a consequence of the head injury, psychotic disorder with hallucinations and possible paranoid delusions, impaired social judgment, lack of concern for his safety, temper outbursts, poor impulse control, antisocial conduct, impaired foresight and a generally impaired judgment. While Dr Pullela, in his assessment of the applicant, appeared to be somewhat more sceptical in some of these respects, he, too, concluded that Mr Borsa presents with features suggestive of a frontal lobe syndrome, with significant personality changes and impaired cognitive functioning. He identified possible disinhibition, emotional changes, memory impairment, impulsivity, impaired social judgment and emotional inability.
41 When all of these factors are taken into account, it seems to me to be plain that the applicant is not, in many respects, the person he was prior to these injuries and that he will find, as he told us he does, imprisonment to be particularly difficult. In those circumstances, in my respectful opinion, the total period of imprisonment imposed upon the applicant was too great. I would consequently give the applicant leave to appeal against sentence and allow that appeal.
42 I would have reduced the total period of imprisonment imposed in respect of the State offences by a period of 2 years, but leave that
(Page 16)
- imposed in respect of the Commonwealth offence intact. I would have done that by reducing the term of imprisonment imposed in respect of count 5 to one of 4 years' imprisonment, but otherwise leaving undisturbed the disposition ordered by the sentencing Judge. That would have meant that the applicant would be required to serve a total of 8½ years' imprisonment in respect of the State offences, backdated to commence on 21 July 1999, with eligibility for parole in each case. However, because the applicant must now be re-sentenced under the new sentencing regime which followed the coming into force of the Sentencing Legislation Amendment and Repeal Act 2003 and the Sentence Administration Act 2003, by virtue of s 29 of the first-mentioned Act, read with Sch 2 thereof, each of the sentences which I would have imposed is required to be reduced by one third. In those circumstances, it seems to me that, so far as the State offences are concerned, the applicant should be entirely re-sentenced and that, in lieu of the sentences imposed by the sentencing Judge, he should be sentenced to periods of imprisonment of 16 months on each of counts 1 and 2, 2 years on count 3, 32 months on each of counts 4 and 5 and 3 years on count 6, with the sentences to be served on counts 1 to 5 inclusive being served concurrently with each other, but cumulatively upon that imposed in respect of count 6, making up a total of 5 years and 8 months' imprisonment, being two-thirds of the period of 8½ years to which I have earlier referred. The applicant would be eligible for parole in respect of the sentences imposed.
43 The sentence of 18 months' imprisonment imposed in respect of the Commonwealth offence would stand and, as directed by the sentencing Judge, that sentence would commence at the expiration of the non-parole period in respect of the State offences. The direction that, at the expiration of 9 months of that term of imprisonment, the applicant is to be released upon entering into a recognisance in the sum of $5000 to be of good behaviour for a period of 2 years would also stand.
Conclusion
44 It follows, from the aforegoing, that I would give to the applicant leave to appeal against his conviction, but refuse that appeal. So far as the appeal against sentence is concerned, I would give to the applicant leave to bring that appeal, allow the appeal, and substitute, for the sentences imposed by the sentencing Judge in respect of the State offences, the sentences to which I have referred and which would be imposed under the new sentencing regime, resulting in a total period of
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- 5 years and 8 months' imprisonment commencing on 21 July 1999 (the date upon which the applicant was taken into custody), to the non-parole period of which should be added the sentence imposed by the sentencing Judge in respect of the Commonwealth offence. The applicant would be eligible for parole in respect of each of the sentences imposed.
45 HASLUCK J: I agree with the reasons for judgment of Steytler J and with the orders proposed whereby the appeal against conviction is refused but the appeal against sentence is allowed. I agree that the substituted sentences referred to by Steytler J should be imposed upon the basis that the applicant would be eligible for parole in respect of each of the sentences imposed.
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