Cubillos v The Queen
[2011] VSCA 380
•9 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0185 | |
| YACHYN CUBILLOS | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | BUCHANAN JA and T FORREST AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 November 2011 | |
DATE OF JUDGMENT/ORDER: | 9 November 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 380 | |
JUDGMENT APPEALED FROM: | County Court at Melbourne, Judge Tinney, 15 July 2011 | |
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CRIMINAL LAW – Sentence – Convicted of causing serious injury recklessly – Acquitted of 5 other charges – Trial judge entitled to determine that all injuries sustained by victim attributable to charge of causing serious injury recklessly – Sentence of 15 months’ imprisonment with 10 months suspended not manifestly excessive – Application for leave to appeal heard together with appeal – Application for leave to appeal dismissed
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J Wheelahan | James Dowsley and Associates |
| For the Respondent | Mr R A Elston SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I will invite Forrest AJA to deliver the first judgment.
T FORREST AJA:
On 24 May 2011 the applicant was convicted of causing injury recklessly to Ms Salena Salfate on 10 May 2009. He was acquitted by the jury of charges of intentionally causing injury, indecent assault, making a threat to kill Ms Salfate, making a threat to inflict serious injury to her and false imprisonment.
On 15 July 2011 the applicant was sentenced to 15 months’ imprisonment on the causing injury recklessly conviction. Ten months of this sentence was suspended. The applicant will have served the unsuspended portion of his sentence in a little over a month from now. It is for this reason that the application for leave to appeal is to be heard with the substance of the appeal itself.
The applicant seeks leave to appeal against sentence on two grounds:
(a)That the total sentence is manifestly excessive.
(b)That the learned sentencing judge erred in determining that all the injuries sustained by the victim and identified by medical examination were attributable to the conduct covered by the sole charge for which the applicant was found guilty; namely causing injury recklessly.
Factual background
The incidents that gave rise to the applicant’s conviction occurred at around 6.00 am on 10 May 2009. The applicant had encountered Ms Salfate at the Tankerville Arms Hotel at about 3.00 am. They had previously conducted a relationship. They left for the applicant’s nearby flat shortly before 6.00 am. The applicant had invited Ms Salfate to his flat for a coffee. Two other men accompanied them to the flat but left after a few minutes. The applicant initially sat on one couch and Ms Salfate on another. He invited Ms Salfate to sit next to him but she declined.
He grabbed her left arm[1] and he forced her to sit next to him. Ms Salfate sat on the edge of the couch facing away from the applicant. She described being taken in a ‘bear hug’ by the applicant. He said ‘Give me a kiss.’ She declined. The applicant kissed the back of her neck and she pulled away. Ms Salfate then described things getting more aggressive. She said she started to fight the applicant off. She said there was pushing and shoving and then the applicant was on top of her. She said she was partially on the couch and partially on the floor. The applicant called her a ‘fucking whore’ and placed his hands around her throat, choking her. She said there was an extended struggle over perhaps five minutes which temporarily concluded by her twisting away and landing on the floor on her hands and knees.[2] The applicant then grabbed her by the hair and forcibly lifted her to her feet. She was dragged by the waist to the balcony area. The applicant tried to lift her but let go and she fell to her knees. She got up and she walked back inside. She walked towards the corridor. She was dragged back to the lounge area[3] by the arm.
[1]T177.
[2]T185.
[3]T190.
She then sat on the couch. The applicant walked around examining Ms Salfate’s mobile phone for 10 minutes. The complainant then endeavoured to leave. She said he would not let her go out. He pushed her away from the door, bouncing her against the walls.[4] He pushed her again and then she walked out.[5]
[4]T 192.
[5]T194.
The above is a very pithy summary of Ms Salfate’s evidence in chief. It is not intended to be exhaustive. In cross-examination, counsel for the accused advanced the hypothesis that Ms Salfate had become angry at hearing the news that the accused had taken up with a 25 year old, and, so the hypothesis went, made up the story that the accused had attacked her. She falsely ascribed injuries and damaged clothing to this allegation. She then reported the allegation to police in order to have the accused breached on a suspended sentence that to her knowledge he was serving.
I should also add that in cross-examination Ms Salfate said that during the incident described she had suffered injuries: scratches, bruising, bruised hands and soreness.[6]
[6]T219.
Ms Salfate’s account of the incident was the only direct evidence of it. T he applicant did not give evidence.
I have not included in the above summary the various remarks attributed to the applicant which were said to have constituted the threats the subject of two of the charges on the indictment, nor have I included the alleged indecent assault.
A watchhouse attendant at Carlton Police Station spoke briefly to Ms Salfate at about 10.00 am on the morning of the incident and did not notice any injuries. He described her as intoxicated, upset and agitated. Ms Salfate’s daughter Ms Angel said that at about midday on that day she saw her mother with bruising on her face. There was quite dark bruising under one of her eyes and scratches and bruising around the side of her face. She said she saw[7] bruising on her arm as well. She said her mother told her she sustained these injuries at the applicant’s house after going to the Tankerville. She said her mother told her she was physically assaulted by the applicant. He pushed her around, hurting her. Ms Angel’s boyfriend eventually confirmed Ms Salfate’s then appearance.
[7]T264 – T265.
Dr Woo was a registrar at Royal Melbourne Hospital in May 2009. She examined the complainant late on 11 May 2009. On physical examination she observed superficial bruising to the complainant’s forehead and that she was tender to touch on her neck and face. In cross-examination it was established that Dr Woo also saw abrasions or scratches. Senior Detective Lupi said that at 10.20 pm on 10 May 2010 she observed scratches on Ms Salfate’s forehead, her hair line, her neck and under her left eye. She said that there were also buttons missing from her blouse and that she was distressed. Dr Sungaila, a forensic physician, examined Ms Salfate on 12 May 2010. On examination she observed bruising under the right eye, bruising under the left eye, an abrasion on the left cheek, a linear abrasion on the throat, a smaller abrasion adjacent to that linear abrasion, bruising and abrasions on the left hand, two linear abrasions on the inner left forearm, bruising and abrasions on her right hand, a grey circular bruise on her upper chest, two small abrasions on her chest and a bruise on the inner left breast.[8] Ms Salfate also complained of tenderness to the scalp and upper thighs. Photographs were taken of these injuries and tendered without objection. They have been supplied to this Court.
Ground 2 – Determination that all injuries sustained by the victim were attributable to the conduct covered by the charge of causing injury recklessly
[8]T354.
I shall deal with ground 2 first. The applicant contends that his Honour the learned sentencing judge erred in determining that all the injuries sustained by Ms Salfate were attributable to the conduct covered by the causing injury recklessly charge.
It is settled law that it is the duty of a sentencing judge to determine facts relevant to sentencing where that determination involves facts that have emerged in evidence at the trial. The primary constraint upon the power and duty of a sentencing judge in circumstances where an accused has been convicted of some charges and acquitted of others is that the view of the facts adopted by the judge must be consistent with the verdicts of the jury. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.[9]
[9]See for example R v Isaacs (1997) 41 NSWLR 374; R v Cheung (2001) 209 CLR 1.
It follows that in order to make out this ground the applicant must demonstrate:
(a)The judge’s findings of fact were inconsistent with the jury’s verdicts of guilty of causing injury recklessly and not guilty of the other charges set out earlier in this judgment; or
(b)It was not open to the sentencing judge to find those facts beyond reasonable doubt.
It is common ground that the intentionally causing injury count and the recklessly causing injury count were laid in the alternative. It is also common ground that the prosecution case as it went to the jury on the injury counts embraced the injuries sustained in the entire episode from start to finish. In both the opening and closing addresses the prosecutor made it clear that the conduct the prosecution relied upon to support these injury counts commenced with the accused grabbing Ms Salfate’s arm and pulling her towards him, it continued when she resisted his advances, it continued when he pushed her in her back, it continued when he straddled her, it continued when he placed his hands around her throat, choking her, it continued with pushing and shoving, it continued when she was on all fours, it continued when he dragged her to her feet by the hair and it continued when near the doorway she was pushed and bounced off walls.
Mr Wheelahan for the applicant supplied the Court with a chart. It purported to break this continuing episode up into blocks. The charges of intentionally causing injury and recklessly causing injury were said to be underpinned by facts that stopped at the time the applicant choked the complainant. The balance of this episode was said to be inconsistent with the verdicts of acquittal or related to facts that his Honour could not have found beyond reasonable doubt.
With due respect to the considerable work and ingenuity that has gone into the preparation of this table, I consider that it paints an entirely artificial and unreal picture of what actually occurred at this trial. I am unable to understand why it is that acquittals on the two making threats charges could, in any way, be said to subsume some of the injuries that his Honour found and acted upon. Those making threat offences do not involve any element of physical injury whatsoever.
I do not consider that there is any inconsistency between the false imprisonment acquittal and that part of the continuing cause injury recklessly conviction that is said to have occurred near the doorway. A simple explanation for the verdicts is that the jury were not satisfied beyond reasonable doubt that the accused had the necessary mental element for the common law false imprisonment charge.
To the extent that the prosecution relied on the same facts to endeavour to prove different charges, there is no error in that, provided those charges are sufficiently different in form and substance. Causing injury recklessly is both elementally and substantively different to the offence of false imprisonment. I consider that there is no tension or inconsistency between the verdicts.
Similarly I consider there is no tension or inconsistency between the indecent assault acquittal and the causing injury recklessly conviction. Although the prosecution went to the jury arguing that the bruise on the left breast could ‘support’ the indecent assault charge, it may simply have been that the jury were not satisfied that the assault occurred in circumstances of indecency. Notwithstanding this lack of inconsistency, his Honour took pains not to incorporate the physical activity alleged to comprise the indecent assault as a factual finding relevant to sentence. At page 74.42 of his sentence his Honour said this:
It is easily possible that in the way the evidence relied upon for the indecent assault panned out, involving as it did touching on the outside of the clothing in the currency of a struggle on the floor, that a jury were not prepared to view it as an indecent assault. In any event of course I do not sentence you for that physical activity alleged given the acquittal in relation to that count.
The only direct account of this entire episode came from the complainant Ms Salfate. The applicant did not give evidence and there were no other witnesses. For the reasons I have stated, in my view there was no inconsistency between the verdicts and, on the uncontradicted evidence, his Honour was entitled to be satisfied beyond reasonable doubt that all the injuries that he found were attributable to the conduct covered by the causing injury recklessly charge.
For my part I consider that this ground fails.
Ground 1 - Manifest Excess
The applicant is now 42 years’ old. His Honour accepted that the applicant had had a very traumatic early life in Pinochet’s Chile. His Honour heard a full and detailed plea that included character references, two psychological reports which dealt with the psychological sequelae of his earlier life, and a comprehensive account of various attempts that the applicant has made to deal with his heroin addiction. It is not hard to feel sympathy for Mr Cubillos’ predicament. He has been the victim of torture himself and has lost his father and uncle to Chilean political turmoil.
The fact remains however that this was a protracted episode of violence committed upon his former partner. The complainant’s contemporaneous and subsequent distress was observed by various witnesses. It is true that, distress aside, there were no injuries beyond bruising, abrasions and musculo-skeletal soreness.
The applicant’s offending was viewed by the learned sentencing judge against a significant prior history of assault. He has prior convictions for assault-type offences in 1999, 2001, 2006 and 2007. The 2007 conviction was for the serious offence of intentionally causing serious injury. He was serving a suspended sentence for that offending when the offending the subject of this appeal occurred, although, for reasons that are unclear, he was not dealt with for breaching that suspended sentence. A number of these convictions relate to assaults upon women – former intimate partners of the applicant. His Honour remarked ‘…and so it is then that Ms Salfate joins the line of female victims from your past.’ In my view his Honour was correct in viewing the applicant’s prior history seriously. He placed emphasis on both specific and general deterrence as important sentencing considerations. I can discern no error in this. Counsel for the applicant on the plea conceded that a term of imprisonment was appropriate. He made this concession in the context of arguing for an Intensive Corrections Order but it was appropriately made nonetheless.
I consider that the sentence of 15 months’ imprisonment, 10 of which was suspended for 2 years, to be comfortably within the range of sentences available to the sentencing judge in the exercise of sound sentencing discretion having regard to both the circumstances of the offence and the offender. I do not consider that this ground has been made out. It follows that I would not grant leave to appeal in this matter.
BUCHANAN JA:
I agree. The order of the Court is that the application for leave to appeal against sentence is dismissed.
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