Cvetkovic v R
[2013] NSWCCA 66
•03 April 2013
Court of Criminal Appeal
New South Wales
Case Title: Cvetkovic v R Medium Neutral Citation: [2013] NSWCCA 66 Hearing Date(s): 5 March 2013 Decision Date: 03 April 2013 Before: Price J at [1]
McCallum J at [2]
Schmidt J at [90]Decision: Leave to appeal against sentence granted; appeal dismissed
Catchwords: CRIMINAL LAW - Criminal procedure - Appeal - Appeal out of time - Applicant with major depressive illness - Extension of time granted
CRIMINAL LAW - Sentence appeal - Wounding with intent to murder - No error demonstrated or grounds upon which less sever sentence warrantedLegislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
Criminal Appeal Act 1912
Criminal Appeal RulesCases Cited: Christodoulou v The Queen [2008] NSWCCA 102
Cvetkovic v R [2010] NSWCCA 329
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
R v Baker [2000] NSWCCA 85
R v Cool (NSWCCA, 2 June 1994, unreported)
R v Glencourse (1995) 78 A Crim R 256
R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
R v Macadam-Kellie [2001] NSWCCA 170
R v Quach [2002] NSWCCA 173
R v Roberts (NSWCCA 8 March 1994, unreported)
R v Sinclair (NSWCCA, 4 March 1998, unreported)
R v Zegura [2006] NSWCCA 230Category: Principal judgment Parties: Dragan Cvetkovic (appellant)
Crown (respondent)Representation - Counsel: Counsel: - Solicitors: Solicitors:
Director of Public Prosecutions (Crown)File Number(s): 2008/1107 Decision Under Appeal - Court / Tribunal: District Court - Before: Sweeney DCJ - Date of Decision: 07 August 2009 - Court File Number(s): 2008/1107 Publication Restriction: None
JUDGMENT
Price J: I agree with McCallum J.
McCallum J: Dragan Cvetkovic was found guilty by a jury of wounding with intent to murder, contrary to s 27 of the Crimes Act 1900. The maximum penalty for that offence is imprisonment for 25 years. The offence carries a standard non-parole period under s 54A of the Crimes (Sentencing Procedure) Act 1999 of 10 years. The applicant was sentenced to a term of imprisonment with a non-parole period of 13 years and a balance of term of 4 years and 4 months. An appeal against his conviction was dismissed by this Court: Cvetkovic v R [2010] NSWCCA 329. Leave to appeal against that decision was refused by the High Court. He now seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 to bring a separate appeal against the sentence passed following his conviction.
The application was not brought within the period prescribed under regulation 3B of the Criminal Appeal Rules. The applicant was sentenced on 7 August 2009. He did not give notice of his intention to apply for leave to appeal against the sentence passed. Accordingly, the application for leave to appeal ought to have been filed within three months after the date of sentence: reg 3B(1)(b) of the Rules. The present application was filed on 3 September 2012 and is accordingly almost three years out of time. The Crown opposed an extension of time.
The applicant has had no legal representation since before his trial. He appeared for himself at the trial and in the conviction appeal to this Court and represented himself in the application for special leave to appeal to the High Court. Following the jury's verdict, he declined to put any material as to sentence before the Court or to make any submissions on that issue, evidently having a single focus at that time on his proposed appeal against the conviction. When asked by the trial judge whether he had any evidence to tender on sentence, he maintained that he was not guilty and would continue his endeavour to prove that. The judge tried to explain that the matter had to be finalised by passing sentence before any appeal could be pursued but the applicant evidently did not absorb the importance of her Honour's remarks.
In support of his application to this Court for an extension of the time within which to seek leave to appeal, the applicant relies on his affidavit sworn on 22 August 2012. In that affidavit he states that, throughout the trial, he was confident that the jury should acquit him. He further states that he did not appeal against the severity of the sentence as he was expecting that the Court of Criminal Appeal would acquit him or at least order a new trial.
Since his arrest for the present offence, the applicant has been diagnosed as suffering from severe depression. According to his affidavit, the contents of which are not disputed by the Crown, he has also suffered a number of psychotic episodes whilst in custody and has spent a period of time in the acute process management unit of the gaol, which caters for inmates at risk of self-harm.
Since being sentenced and in the various mental states described above, the applicant has evidently remained firmly fixated on the task of challenging his conviction. His appeal to this Court against his conviction was dismissed on 21 December 2010. His application for special leave to appeal to the High Court was deemed abandoned on 11 February 2011 but was subsequently reinstated. The application was dismissed on 8 June 2011. The applicant's affidavit states:
Since September 2011 the Lithgow authorities did not allow me to work on my criminal conviction appeal, claiming it was over after the [High Court's] decision. I told them that I can appeal by way of petition of mercy to the Governor of New South Wales or Supreme Court. I also told them that I can apply to the Human Rights High Commissioner in Geneva, Switzerland. They did not allow me access to a computer or to any of my legal document on criminal case. They required me to work.
His submissions suggest that a petition for mercy was indeed made, and rejected. The applicant's affidavit further states that, on 1 December 2011, he developed his fourth episode of psychosis, which lasted for six months.
In those circumstances, I am of the view that the time within which the application may be brought should be extended, notwithstanding the lengthy delay involved. Although the applicant's failure to put any evidence or submissions on sentence before the trial judge was due to a choice on his part, it was a choice made without the benefit of legal advice and evidently under the burden of a measure of fixated thinking. The applicant's failure to prosecute the present application within the time allowed under the rules must be viewed in the same context. He is still without legal representation and, in what has often been a fragile mental state, has remained focussed upon having the conviction overturned at the expense of pursuing his right to seek leave to appeal against the sentence passed.
Having finally turned his attention to his sentence, the applicant's submissions in support of the application reveal careful legal argument, notwithstanding his lack of legal representation. The submissions sought to be put before this Court include attention to matters properly raised on sentence which, through the applicant's own choice in the circumstances described, were not put before the learned sentencing judge. He faces a lengthy term of imprisonment for a serious offence.
In those circumstances, I am satisfied that it is appropriate to grant the extension of time sought and for this Court to consider the application on its merits.
Circumstances of the offence
As already noted, the applicant was sentenced after a trial. The trial judge made findings of fact based on the evidence in the trial and consistent with the jury's verdict of guilty on the count of wounding Sladjana Cvetkovic with intent to murder her. The following summary is drawn from her Honour's remarks on sentence.
The victim was the applicant's former wife. Their relationship had a history of domestic violence, including death threats, which had prompted her to leave the applicant several times before. On 31 October 2006, Ms Cvetkovic told the applicant that she was leaving him for good. She rented an apartment and did not tell him the address or the phone number, which was a silent number.
The trial judge found that the applicant could not accept that the marriage was over. He believed that Ms Cvetkovic had formed a relationship with her supervisor at work. He sent her a large number of emails begging her to return to the marriage and to abandon that relationship. He managed to obtain her silent home number and her new address. He called her at work one day to tell her that he was standing in the street where she lived. Evidently in a separate conversation he told her that she had been followed. The sentencing judge characterised the applicant's conduct during that time as stalking.
On 6 June 2007 Ms Cvetkovic and the applicant met at his instigation to discuss the disposal of the matrimonial home. As the applicant was unemployed and Ms Cvetkovic was employed, she had proposed that she would give the house to him and take a loan to pay the mortgage. He had drafted an agreement to reflect that arrangement and wanted her to sign it. They met at her workplace and then drove to a nearby shopping centre where they had lunch at a Macdonald's restaurant.
The sentencing judge said:
Ms Cvetkovic described the lunch as tense. She said the offender kept talking about their past, which she said she did not want to do. He held her hand. She was scared and pulled her hand away after a matter of seconds.
The applicant and Ms Cvetkovic had planned to attend a bank that day to discuss obtaining the loan, but they could not get an appointment and Ms Cvetkovic had to return to work. The applicant's driver's licence was suspended at that time and so Ms Cvetkovic got into the driver's seat of the car. The applicant got into the passenger seat. He placed his briefcase in the passenger footwell, which she thought was unusual. The applicant is tall and Ms Cvetkovic said that he usually put his bag in the back seat to allow himself legroom in the front. The applicant then produced a 30 cm gyprock saw with offset serrated teeth from the rear pocket of the briefcase. As the name suggests, that is a tool for cutting gyprock, the offset teeth enabling it to cut in both directions, that is, on both the forward and backward strokes.
The applicant's evidence at the trial was that he had bought the gyprock saw the previous day in order to prise open the window of the hotel in which he was staying so that he could jump out and kill himself or, if he could not open the window, to use the saw on himself. The sentencing judge did not accept that evidence, finding beyond reasonable doubt that the applicant took the saw to the meeting with his former wife with the intention of harming her.
The applicant stabbed Ms Cvetkovic with the gyprock saw at least 30 times. She had wounds in her neck, chest and back. She lost a substantial amount of blood. She was taken by ambulance to hospital where surgeons spent almost nine and a half hours repairing her wounds. The wounds to her neck involved some nerve damage. She had two complex shoulder lacerations penetrating through muscle and tissue to the bone joint, six wounds to her chest, 21 to her back, one under her left armpit which had penetrated between two ribs, one to the abdomen, a punctured lung, a cut to her left hand and multiple cuts to her right hand involving some tendon damage. The large number of wounds to the back is explained by the fact that the applicant continued repeatedly to stab Ms Cvetkovic as she tried to release herself from the seatbelt to escape. The judge recorded that she was finally able to escape when "horrified" bystanders distracted the applicant momentarily.
Ms Cvetkovic prepared a victim impact statement which the trial judge took into account on sentence. The statement eloquently captures the sheer terror experienced by Ms Cvetkovic during the attack, the vivid pain she endured during its immediate aftermath and whilst recovering in hospital and the ongoing fear and psychological trauma from which she continues to suffer as a result. At the time of the proceedings on sentence, some two years after the attack, Ms Cvetkovic described her condition in the following terms:
Despite my active attempts to recover, I am still not fully recovered. I have permanent numbness in my left arm and hand. During the night I have pain occasionally but every day after a couple of hours of work at my computer, my arm, elbow and hand hurt and become stiff and I have to do some exercise so I can continue. My left index finger is permanently bent, difficult to use despite all the physiotherapy I have had and the only solution is to undergo further surgery. I have decreased sensitivity in my both hands, especially on the tips of my fingers, my entire left arm, my left cheek, ear and left side of my neck. There is still a dull pain in my left breast. I am left with a permanent disfigurement of my skin, horrible scars that will be with me for the rest of my life as a reminder of the time when I was almost killed.
I need to learn to live with the consequences of my physical injuries and try to adapt to changes in my physical performance. However, what I will never be able to learn to live with is the mental anguish I still have. I regularly have nightmares about the attack and cannot stop thinking about the terror Dragan inflicted upon me, on 6th June 2007. I still take pain relief medication and have problems with my arm and hands. I still need to have psychological treatment to overcome the constant fear for my life and my daughter's and my future and constant feeling of tiredness. After two years of psychological treatment I still do not understand why I had to be stabbed, I still cannot come to terms with it and I still do not want to believe that it really happened.
The judge assessed the offence as being in the high range of seriousness, at the higher end of the scale of offences of that kind. Her Honour accepted that the applicant was depressed at the time of the offence and that this seemed "linked to his acting in anger in stabbing her when she told him that their relationship was over". However, her Honour did not consider that the applicant's depression mitigated his conduct to any great degree. The judge considered that the non-parole period imposed must be more than the standard non-parole period of 10 years. As already noted, her Honour sentenced the applicant to a non-parole period of 13 years imprisonment with a balance of term of 4 years and 4 months, giving an aggregate sentence of 17 years and 4 months.
Alleged errors in findings of fact and assessment of objective seriousness
The applicant filed amended grounds of appeal at the hearing, which were not opposed by the Crown. The first ground of appeal is:
The trial judge erred in finding that the objective seriousness of the offence was of high range.
The consideration of that ground is necessarily informed by a consideration of the second ground of appeal, which alleges a series of errors of fact on the part of the trial judge, as follows:
The trial judge erred in fact by:
(a) placing insufficient weight on the fact that the Applicant also harmed himself seriously;
(b) placing too much weight on premeditation, when the premeditation was just background thought, and the Applicant was extensively endeavouring to get on with his life;
(c) placing insufficient weight on the evidence that 30 hours before the incident the Applicant was in 2 states of mind, one thinking of harming himself and his wife and second extensively reorganising his life to get on with it;
(d) placing insufficient weight on the evidence that immediately before the incident the Applicant offered to drive, which is inconsistent with the harm which happened only minutes thereafter;
(e) failing to recognise that the injury, emotional harm, loss or damage caused by the offence was not substantial: the incident with the victim lasted less than 2 minutes, the wounds on the victim, whilst being many in number, the most of them were superficial, scattered at the top left side of the back and the left shoulder. The victim did not sustain any permanent injury, was discharged from the hospital 8 days after the incident, and was back to work 11 days thereafter. The seriousness of the injury and emotional harm is of low to mid range.
(f) placing to much weight on the victim's impact statement and ignoring the fact that the victim did not sustain any permanent injury, was discharged form the hospital 8 days after the incident, and was back to work 11 days thereafter;
(g) placing insufficient weight on the fact that the Applicant did express his remorse for the incident in his interview with police shortly after the incident, using words "/ am really sorry that I caused a public disaster."
(h) placing insufficient weight on the evidence that during the incident the Applicant was in a dazzling state of mind and in shock, barely aware and in control of what was happening;
(i) placing insufficient weight on the psychiatric evidence on depression and that both psychiatrists agreed that it was the depression which caused loss of control and was the underlying cause of the incident.It is convenient to consider each of those contentions in turn, before turning to the judge's assessment of the objective seriousness of the offence.
Ground 2(a) is that the trial judge erred by placing insufficient weight on the fact that the applicant also harmed himself seriously.
The judge noted that, after Ms Cvetkovic was able to escape from the car, the applicant began to inflict stab wounds on himself. Her Honour said (at ROS 11):
The offender had wounds to his neck, chest and abdomen, five to his abdomen and five to his chest, a punctured lung but no damage to his organs or blood vessels. He required exploration of his neck and abdomen and surgery to repair a nerve in his neck. He was discharged from hospital on 12 June. It did not appear during the trial that he had suffered any physical after effects although he gave no precise evidence about that. About three and a half hours after the offence the offender told police that he wanted to terminate "our lives", a reference in the context of the conversation to himself and his wife.
After referring to the decision of this Court in Christodoulou v R [2008] NSWCCA 102, the judge held that the applicant's harming himself while depressed should not reduce his sentence for the serious wounding of his former wife.
In Christodoulou, the applicant pleaded guilty to a series of charges arising from an extremely violent confrontation with his ex-wife, which also involved his children and other members of his family. Following an assault on his ex-wife several nights earlier, the applicant made repeated threats to her including telling her that, since he was not being allowed to see his children, he would inject himself with acid within sight of his family. He did just that. He went to where the family was staying and, during the course of an attack of uncontrolled violence on every person who came near him, including police, he impaled his arm with a syringe, at some point evidently ingesting some of the acid. There was no medical evidence before the sentencing judge but he was informed by counsel, without objection by the Crown, that the applicant had a permanent disability to his arm as a result, in the form of a "crater" where the acid was injected.
Dismissing an appeal against sentence, this Court held (by majority) that the principle of extra-curial punishment should not be extended to self-injury deliberately inflicted during the course of the commission of a crime: at [42] per Grove J; Johnson J agreeing at [45]; Campbell JA preferring to leave the point undecided at [2].
The applicant did not submit that Christodoulou was wrongly decided. The sentencing judge was bound to apply that decision. Ground 2(a) is not made out.
Ground 2(b) is that the trial judge erred by placing too much weight on premeditation "when the premeditation was just background thought, and the applicant was extensively endeavouring to get on with his life". Grounds 2(c) and 2(d) raise specific points directed to the same issue. Ground 2(c) alleges that the trial judge placed "insufficient weight on the evidence that 30 hours before the incident the Applicant was in 2 states of mind, one thinking of harming himself and his wife and second extensively reorganising his life to get on with it". Ground 2(d) alleges that her Honour placed "insufficient weight on the evidence that immediately before the incident the Applicant offered to drive, which is inconsistent with the harm which happened only minutes thereafter".
The applicant did not contend that it was not open to the trial judge to be satisfied beyond reasonable doubt that the offence was premeditated. The judge found that the applicant took the gyprock saw to the meeting with his former wife intending to harm her. That finding is not challenged. Indeed it is clear from the applicant's written submissions that he accepts it. The applicant said (writing of himself in the third person, at [16]-[19] of the submissions):
The applicant is not guilty. His case is that had his wife not have grabbed the knife for the blade the incident would not have happened.
The evidence suggests that the applicant premeditated the incident. About 30 hours before the incident he bought a knife for that purpose. The knife was in his briefcase. At the entry in the car, he took that briefcase with him at the front passenger seat. He did this with thoughts of harming his wife and himself.
However, his case is that these thoughts were just background thoughts, without any desire this to happen (sic). He wanted to tell his wife how much he was suffering. He claims that he forced himself to get the knife out of the briefcase. As soon as he took the knife out of the briefcase his wife grabbed it for the blade and started to scream. Since then he was just acting.
He said that everything that happened thereafter was as avalanches. His instant response was by instinct. He struggled to get the knife out of her hand(s). He lifted his legs to get the knife out of her hand(s) than (sic) he plunged into an uncontrollable behaviour which resulted in stabbing his wife first and then himself.
The submissions that follow recite a series of pieces of evidence as to the applicant's conduct in the days and hours leading up to the offence which the applicant submits are inconsistent with his having intended to harm his wife.
Those submissions must be considered in the context that the jury rejected the applicant's defence at trial that he had acted in an automatic state and found him guilty of the offence of wounding with intent to murder. The trial judge was obliged to sentence the applicant on the basis of findings of fact consistent with that verdict. It would not have been open to her Honour, had the submissions set out above been made in the proceedings below, to sentence the applicant on the basis that he did not intend to harm his wife.
In those circumstances, the weight to be placed on the element of premeditation in the exercise of the sentencing discretion was a matter for the trial judge. The circumstances in which this Court will interfere with such assessments are narrowly confined: R v Baker [2000] NSWCCA 85 at [11] per Spigelman CJ; Grove and Hidden JJ agreeing at [22] and [23] respectively. No patent or specific error is identified in the present case. It will be necessary to return to the issue whether error of the kind required to be established can be inferred from the alleged excessiveness of the sentence.
Ground 2(e) is, in summary, that the trial judge overstated the extent of the injury and emotional harm suffered by Ms Cvetkovic as a result of the offence. That ground is related to ground 2(f), which is that the trial judge erred in placing "too much weight on the victim's impact statement and ignoring the fact that the victim did not sustain any permanent injury".
The applicant asserts that the seriousness of the harm caused is "of low to mid range" having regard to the fact that the attack lasted less than two minutes; that most of the wounds were superficial and did not result in permanent injury; and the fact that Ms Cvetkovic was discharged from hospital eight days after the incident, returning to work 11 days thereafter.
In my view, that submission must be rejected. As revealed by the facts recited above, the submission wholly understates the seriousness of the horrific attack to which the applicant subjected his former wife. That the applicant was able to inflict over 30 stab wounds in under two minutes is scarcely the mark of lesser seriousness. It is difficult to imagine any person surviving such an attack at the hands of a former spouse without suffering from lasting emotional trauma. The contents of the victim impact statement were inherently plausible in that respect. The weight to be placed on the statement was a matter for the trial judge, who had had the benefit of seeing the victim give evidence during the trial.
Ground 2(g) is that the trial judge erred in placing insufficient weight on the fact that the applicant did express remorse for the incident in his interview with police shortly after the incident when he said, "I am really sorry that I caused a public disaster". The applicant endeavoured to supplement his evidence as to remorse in his affidavit relied upon in the appeal, where he said at [25]:
I refer to my words that I told to the police few hours after the incident. I have the same feelings and apologies today. I am devastated and terribly sorry that I caused my wife to be scared, for injuries that I [caused] to her and for public disturbance.
The Crown opposed the admission of that material except in the event that this Court came to re-sentence the applicant in accordance with s 6(3) of the Criminal Appeal Act. Paragraph 25 of the applicant's affidavit was admitted on that limited basis.
In her remarks on sentence, the trial judge did not refer to the statement made by the applicant that he was sorry for causing "a public disaster". Her Honour said (at ROS14):
The offender has not accepted responsibility for the offence and has not expressed any remorse or contrition. He showed no sympathy or emotion during the trial when his former wife became distressed while giving evidence about the stabbing or prior incidents of violence. He challenged the extent of her injuries. The only emotion he displayed was for himself because he and the victim had separated. There is no evidence on which I could make any positive forecast of his prospects of rehabilitation. Nor could I be satisfied that the offender will not re-offend in a similar way.
On the strength of the material before this Court, those findings were plainly open to her Honour. I do not consider that the applicant's apology to police for causing a public disaster articulated any remorse for the offence itself or mandated any conclusion on that issue different from that reached by the trial judge. Her Honour's remarks clearly draw on her assessment of evidence given during the course of the trial. It is not the role of this Court to second-guess such judgments on the strength of single items of evidence considered in isolation from the atmosphere of the trial. I would reject ground 2(g).
Ground 2(h) is that the trial judge erred in placing insufficient weight on the evidence that during the incident the applicant was in "a dazzling (sic) state of mind and in shock, barely aware and in control of what was happening". This ground substantially replicates the unsuccessful automatism defence relied upon by the applicant at his trial. Consistently with the jury's verdict, the applicant stood to be sentenced on the basis that his attack on his former wife was deliberate and carried out with the intention of murdering her. Ground 2(h) is not made out.
Ground 2(i) is that the trial judge erred in placing "insufficient weight on the psychiatric evidence on depression and that both psychiatrists agreed that it was the depression which caused loss of control and was the underlying cause of the incident".
The applicant appeared to accept at the hearing of the present appeal that, to the extent that the ground as articulated trespasses on the jury's rejection of the automatism defence and the verdict of guilty, it could not be maintained. He endeavoured to confine his argument to the proposition that, accepting that he is guilty of the offence, the evidence as to his depression informs the measure of his moral culpability and so is relevant on the question of sentence.
As already noted, in contending that the weight placed by the trial judge on any individual consideration was insufficient, the applicant must establish error of such a kind as to indicate that her Honour's exercise of her discretion miscarried.
In her remarks on sentence, the trial judge recorded the evidence given by Dr Westmore on behalf of the applicant that the applicant's depression deprived him of the capacity to know that hurting his wife was morally wrong. The report itself was not in evidence in the present appeal but the relevant conclusions are set out in the judgment of this Court on the conviction appeal, as follows (at [96]-[97]):
96 Dr Westmore's account of the history he was given in September 2007 included:
"At the time of the incident he told me he was in the car with his wife, he reached into his bag to get the document. The saw was in the bag. He said he then went to show his wife the saw and to tell her that he was going to kill herself [sic]. He said his wife grabbed the blade with her hand, he fought to get it out of her hand and she started to scream. He said 'I started to stab her'. I asked him was he angry with her at the time and he said 'No, not at all.'" (tp 1830)
97 After a review of available medical records relating to the Appellant, Dr Westmore's conclusion, in October 2007, was that the Appellant had a defence of mental illness, because he:
"... suffered a depressive illness, probably a major depression, prior to the incident. He may have had paranoid or persecutory ideas towards previous employers but it is uncertain whether these arose from a paranoid personality structure or from his depression. Nevertheless, a history of depression pre-dating the incident with his wife by several weeks or months is consistently given and immediately after the incident he was diagnosed with depression, and later with melancholic depression with psychotic symptoms.
Based on the history provided by Mr Cvetkovic and with the additional material I am of the view that Mr Cvetkovic, on the balance of probabilities, suffered from a major depressive illness at the time the incident occurred. This is a mental illness which would have, on the balance of probability, totally deprived him of the capacity to know that he ought not to do the act. He would have been deprived of the capacity to be able to rationally consider his behaviour towards the victim, probably at the time of the incident both in a moral and legal sense. I believe that the defence of mental illness should be raised on behalf of Mr Cvetkovic on the basis that he was suffering from a major depressive illness at the time he stabbed his wife." (tp 1849)
That report made no reference to automatism.
However, her Honour also recorded the evidence given by the applicant himself that he knew harming anyone was wrong and that his actions could not be attributed to his depression.
Separately, the trial judge recorded the remarks of Dr Nielssen (called by the Crown) that the applicant's depression may have affected his ability to control an impulse. The relevant passage is set out in the judgment on the conviction appeal at [108] as follows:
One of Dr Nielssen's conclusions was:
"... it didn't seem that the symptoms of Mr Cvetkovic's illness affected his awareness of the moral wrongfulness of stabbing his wife. The main area where it may have affected him is in his capacity to control an impulse." (tp 1531)
The judge also recorded Dr Nielssen's opinion that there was a connection between the offender's depression and his wish to attempt suicide but not a connection between the way his illness affected him and what he did to his former wife during the attack.
The judge expressly accepted that the applicant was depressed at the time he stabbed his former wife. As already noted, her Honour found that his depression "seems linked to his acting in anger in stabbing her when she told him that their relationship was over". Her Honour did not consider that the depression mitigated the applicant's conduct to any great degree.
I do not think any specific or patent error is established in the judge's assessment of that issue. It will be necessary to return to the issue whether error of the kind required to be established can be inferred from the alleged excessiveness of the sentence.
In light of the conclusions I have reached as to the specific points raised in ground 2 and the objective circumstances of the offence, I would reject the contention in ground 1 that the trial judge erred in finding that the objective seriousness of the offence was in the high range. In my view, that assessment was well open to her Honour.
Ground 3 alleges that the trial judge erred in not allowing a discount to the sentence for a series of alleged mitigating factors. The matters relied upon by the applicant invoke the language of s 21A(3) of the Crimes (Sentencing Procedure) Act, which lists a series of mitigating factors the Court must take into account in determining the appropriate sentence for an offence, to the extent that any such factor is relevant and known to the Court. Having regard to the mandatory terms of that section, the Crown very properly acknowledged that, although the applicant chose not to put any submissions on those matters during the proceedings on sentence, if any of the matters identified was in evidence before the sentencing judge and otherwise properly falls within the section, its impact should be considered by this Court, if not adverted to by her Honour. It is necessary to consider each of the factors identified in turn.
Ground 3(a) alleges that the injury, emotional harm, loss or damage caused by the offence was not substantial: cf s 21A(3)(a) of the Crimes (Sentencing Procedure) Act. For the reasons already stated in respect of grounds 2(e) and 2(f) above, I do not accept that was the case.
Ground 3(b) alleges that the offence was not part of a planned or organised criminal activity: cf s 21A(3)(b) of the Act. I would also reject that as a mitigating factor. For the reasons explained above, the trial judge was correct to sentence the applicant on the basis that the offence was premeditated.
Ground 3(c) alleges that the applicant was acting under duress: cf s 21A(3)(d) of the Act. There is nothing before the Court to suggest that he was. To the extent that he was acting under the pressures of facing the end of the relationship with his ex-wife and the pressure of litigation in which he and his ex-wife had been involved, the impact of those matters was considered by the two psychiatrists, whose conclusions were taken into account by the trial judge as set out above.
Ground 3(d) relies upon the fact that the applicant does not have any record of previous convictions: cf s 21A(3)(e) of the Act. Her Honour had regard to that factor (at ROS13).
Ground 3(e) alleges that the applicant was a person of good character: cf s 21A(3)(f) of the Act. The applicant was anxious to place some emphasis on that consideration. He said:
"As to the Applicant's wife, the Applicant was with her for 27 years. She was his first, last and the only love and sexual partner. As to the Applicant's daughter, she gave evidence to the District Court: that since 1991, whilst living in Sweden and Australia, the father was teaching her Swedish and English languages, mathematics, computers, software; how to organise and keep her things tidy; helping her in assignments; taking her for tennis and swimming lessons; together they were jogging, cycling, playing tennis, walking around or going shopping..."
The trial judge did not expressly refer to any such consideration, for the obvious reason that it was not urged upon her Honour at the proceedings on sentence. However, the evidence of the daughter was before the trial judge. It was a matter for her Honour what weight to give to that evidence in the context of all of the evidence at trial. The matters concerning the applicant's former wife confuse mitigation with pathos. Neither an enduring relationship nor the love the applicant had, and may still have, for the victim can sensibly be regarded as being of any mitigating effect when viewed in the context of the ferocity with which he attacked her on the day of the offence.
Ground 3(f) alleges that the applicant is unlikely to re-offend: cf s 21A(3)(g) of the Act. The trial judge considered whether that was so and expressly rejected the proposition. Her Honour said (at ROS14) that she could not be satisfied that the offender will not re-offend in a similar way. On the strength of the material before this Court, in my view it was plainly open to her Honour to reach that conclusion.
Ground 3(g) is that the applicant has good prospects of rehabilitation: cf s 21A(3)(h) of the Act. The trial judge also rejected that proposition. In my view, it was open to her Honour to do so. The trial judge had the benefit, where we have not, of seeing the applicant cross-examine the victim and give evidence himself. The judge's findings on the issues of remorse and rehabilitation evidently drew on her Honour's observations made during the trial, which should not be disregarded by this Court.
Ground 3(h) relies on the remorse allegedly shown by the applicant. For the reasons explained above in respect of ground 2(g), I would reject that as a mitigating factor.
Ground 3(i) alleges that the applicant was not fully aware of the consequences of his actions because of his major depressive illness. As explained above in respect of ground 2(i) it is clear that her Honour had regard to the relevant evidence on that issue. Whether it may be inferred that her Honour had inadequate regard to those matters is considered below in the context of ground 5.
Ground 3(j) is the degree of pre-trial disclosure by the applicant and assistance to law enforcement authorities. The applicant relied upon the fact that he made confessions to police as to what had happened. In particular, he relied on the following statements he made to police:
"It was nothing to live. My wife was drop the house so I wanted to cut pain and suffering that we exposed for years and terminate our lives."
and:
"I am really sorry that I caused a public disaster."
and:
"I do realise that this is probably from someone else perspective wrong but I felt that is only option for my life. I wish to ask these people to terminate my life. That's all I wish to say."
I do not think the degree of assistance provided by those admissions mandated any reduction in the sentence imposed. They were made in the context of an offence committed in broad daylight before five eyewitnesses. The applicant was stopped by witnesses from driving out of the car park and arrested by police at the scene. In that context, his acknowledgment to police of his involvement was of scant assistance.
Although s 21A was not expressly addressed at the proceedings on sentence (for the reason already explained that the applicant chose to make no submissions), in my view each of the mandatory considerations under that section either was not established or was taken into account to an appropriate extent by the trial judge. I would reject ground 3.
Ground 4 is:
The trial judge erred in including, or not excluding, general deterrence as it has little, if any, weight, as the Applicant was suffering from the major depressive illness at the relevant time and as such was not an appropriate medium for making an example to others.
It is well established that the existence of mental illness is a factor that may be relied upon as indicating that a particular offender is not an appropriate vehicle for general deterrence. It is equally well recognised, however, that the existence of such illness does not mandate a reduction in the sentence that would otherwise be appropriate for an offence. Mental illness attending unlawful violence gives rise to myriad, complex legal and social questions that cannot surrender a single, correct sentence.
As set out above, the judge considered the psychiatric evidence as to the major depressive illness from which the applicant suffered. Her Honour also considered the competing consideration that offences of domestic violence require attention to general and personal deterrence and denunciation. In that context, her Honour referred to the judgment of this Court in R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179. The judgment of Johnson J in that case, with which the other two members of the Court agreed, provides a lucid analysis of the role of the sentencing judge in such matters. His Honour said (at [77]):
An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control.
A careful consideration of those social observations and of a series of previous decisions led the Court to reaffirm that, in sentencing a domestic violence offender, specific and general deterrence are important factors. The trial judge had regard to those statements in the present case. I do not consider any error is revealed in her Honour's approach.
It remains to consider ground 5, which is:
The sentence imposed by the trial judge was manifestly excessive and unduly harsh. The trial judge erred in ignoring or not considering length of sentence given in other similar cases ranging from full term 7 to 10.8 years, non-parole 5 to 8 years. The applicant relies on 6 such cases.
In considering that ground, it is important to bear in mind the proper use to be made of so-called comparable cases. The correct approach to such material was identified by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 (in remarks approved by the High Court in Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [54]) as follows:
303 A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.
304 But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. In this case, that range is from 0 to 25 years. Of course, it is well established that the maximum sentence is reserved for the most serious cases. It is equally well established that it would be an extraordinary proposition that a person convicted of an offence of importing prohibited drugs would escape any custodial penalty. The point I am making is that the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned: Wong and Leung, at [59].
305 In the end, the sentencing discretion is individual: it must be exercised by the individual judge, in respect of the individual offender...
The six cases identified by the applicant in support of this ground must be considered with those principles in mind. Each was a case of wounding with intent to murder, carrying a maximum penalty of 25 years imprisonment. It may be noted, however, that five of the six were determined prior to the introduction of standard non-parole periods, which came into force on 22 November 2002: Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, schedule 1[4]. The standard non-parole period of 10 years for the offence of wounding with intent to murder now stands as a second legislative guidepost (in addition to the maximum penalty of 25 years) to which the court must have regard among the full range of factors to be taken into account in determining the appropriate sentence for the offence: Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [27].
The earliest case relied upon by the applicant was R v Roberts (NSWCCA 8 March 1994, unreported). The offender in that case tried to murder his wife while she was asleep by stabbing her repeatedly. She sustained 4 stab wounds including one which penetrated the lung, causing it to collapse. He was sentenced to a minimum term of 5 years with an additional term of 4 years. In dismissing an appeal against the alleged harshness of the sentence, this Court described it as "rather lenient": per Gleeson CJ; Smart and Studdert JJ agreeing.
In R v Cool (NSWCCA, 2 June 1994, unreported), the offender stabbed a stranger who was asleep on a train. The knife penetrated the victim's neck, narrowly missing his jugular vein. The offender was sentenced to a minimum term of 7 years with an additional term of 3 years. The case does not fall in the category of serious domestic attacks of the kind in the present case.
R v Sinclair (NSWCCA, 4 March 1998, unreported) is distinguishable on the same basis. That was a case in which the offender stabbed a person known to him after an argument at a pub about an alleged debt. The offender was sentenced to a minimum term of 5 years with an additional term of two years.
In R v Glencourse (1995) 78 A Crim R 256, the offender and the victim had been in a relationship which was in the process of breaking down. There had been some earlier incidents involving violence. On the evening of the offence, the victim allowed the offender to stay at her house but refused his sexual advances and went to sleep. Her next recollection was of waking up to find the offender straddled over her holding a knife to the side of her neck. He stabbed her in the stomach and neck a number of times. He then held her on the floor with a pillow over her face, following which he threw her back on to the bed and stabbed her further. He was found guilty by a jury. The trial judge sentenced him to a term of imprisonment of 10 years and 8 months with a minimum term of 8 years. By majority, the Court reduced the minimum term to 7 years but did not interfere with the total sentence: at 258 per Hunt CJ at CL; Simpson J agreeing at 260. Bruce J (dissenting) would not have reduced the minimum term: at 267 to 268. The Chief Judge at Common Law described the sentence of 10 years and 8 months as one which was undoubtedly severe, but within the limits of the trial judge's wide sentencing discretion.
In R v Quach [2002] NSWCCA 173, the offender began to suspect that his wife was having an extra-marital affair. He attacked her in their bedroom with a bottle. He struck her several times on the head, saying that he wanted to kill her because she did not respect him. She struggled and tried to escape but he gagged her with a rag, tied her legs and hands and held her captive in the bedroom for several hours. She lost a great deal of blood and lapsed into unconsciousness at some stage. He refused to obtain medical assistance for her until their children returned from school. Even then, it evidently took the children some time to convince him to call an ambulance. She sustained a fractured skull and other injuries. He was convicted by a jury and sentenced by the trial judge to a term of imprisonment with a non-parole period of 5 years and a balance of term of 4 years. The judge found special circumstances such as to warrant the imposition of a balance of term exceeding one third of the non-parole period, as required under s 44(2) of the Crimes (Sentencing Procedure) Act. In rejecting an appeal against severity, the Court described the sentence as falling towards the lower end of the scale considering the seriousness of the circumstances in which the offence was committed.
The only case relied upon by the applicant that was decided after the introduction of standard non-parole periods was R v Zegura [2006] NSWCCA 230. The offender in that case pleaded guilty. Following the breakdown of a relationship, and in the face of some reluctance on the part of the victim to see the offender (owing to her fear of him), the offender visited the victim in the company of his sister and invited her to go out for a coffee with them. Taking comfort from the presence of the sister, the victim agreed. She went into her bedroom to get changed. The offender followed her and stabbed her in the stomach about ten times. She tried to protect herself and so was also stabbed in the hand. He also punched her to the head and face several times and bit her on the shoulder. The victim managed to escape and the offender remained in her house for approximately five and a half hours. After police surrounded the house, the offender lit a number of fires. In addition to the offence of wounding with intent to murder, he pleaded guilty to maliciously destroying property by means of fire. He was sentenced for the wounding offence to a term of imprisonment with a non-parole period of 6 years and a balance of term of 2 years and 6 months. For the offence of maliciously destroying property by fire he was sentenced to a fixed term of 18 months accumulated by 6 months, giving a total sentence of 9 years.
In a Crown appeal, the Court described the sentence passed in respect of the wounding with intent to murder as lenient but still within the range. The Court interfered with the sentences to the limited extent of increasing the degree of accumulation between the two terms of imprisonment, giving an aggregate non-parole period of 7 years and 6 months with a head sentence of 10 years.
It may be accepted that, by comparison with those six decisions, the sentence imposed upon the applicant was extremely stern.
The Crown relied on the decision of this Court in R v Macadam-Kellie [2001] NSWCCA 170. That was also a matter determined prior to the introduction of standard non-parole periods. The offender and his estranged wife were due to appear in the Family Law Court on the day of the offence. There was an apprehended violence order in place. The offender waited near the Court and, when the victim arrived, approached her and produced a knife. He later told a psychiatrist that his intention was to persuade her to come back to him. He denied planning to kill her. The victim ran screaming from the offender and he ran after her, caught her in the middle of the road and stabbed her in the right arm and in her back. She fell to the ground where he stabbed her a further three times in the stomach. He then dropped the knife and fled. He pleaded guilty to the offence of wounding with intent to murder. He was sentenced to a term of imprisonment for 16 years with a non-parole period of 12 years.
Finding that the trial judge had erred in rejecting a link between the offender's major depression and his offending conduct, the Court of Criminal Appeal reduced the sentence to a term of 15 years imprisonment with a non-parole period of 11 years: at [64] per Greg James J; Wood CJ at CL agreeing at [1]. The reduced sentence reflected a discount of 15% for the plea of guilty, giving a starting point of 17 years and about 7 months for the head sentence and almost 13 years for the non-parole period.
The applicant submitted that the offending conduct in Macadam-Kellie was "outrageous" and not comparable with his own conduct. He noted that the offence in Macadam-Kellie was committed whilst there was an apprehended violence order in place. That was certainly an aggravating feature of the offence which did not exist in the present case (there had been a history of domestic violence, including death threats, in the present case but evidently no protection order was sought).
The applicant also relied on the fact that, in Macadam-Kellie, the offender ambushed the victim and ran after her when she tried to escape. Those circumstances are indistinguishable from the present case, in my view. The applicant effectively ambushed Ms Cvetkovic, producing the gyprock saw only after she had seated herself in the driver's seat of the car and fastened the seatbelt. He had no need to run after her because she could not escape. He continued to stab her in the back many times whilst she tried to do so. He ignored her pleas for him to stop. The Court of Appeal described the conduct of the offender in Macadam-Kellie as falling "little short in culpability of the completed crime" (at [42]), a finding echoed by the trial judge in the present case (at ROS12).
As found by the trial judge, this was a very serious offence falling little short in culpability of the offence of murder. A severe sentence was warranted. Although I would regard the sentence passed on the applicant as being stern, to a degree perhaps reflecting the absence of any persuasion in favour of the applicant at the proceedings on sentence, I have ultimately not been persuaded that the sentence falls outside the proper range or that the trial judge's sentencing discretion otherwise miscarried.
In particular, I am not persuaded that the alleged excessiveness of the sentence reveals error in placing excessive weight on the element of premeditation or inadequate weight on the applicant's depressed mental state. The trial judge had the benefit of hearing all of the evidence and absorbing the atmosphere of the trial. The advantage enjoyed by a trial judge on that account in assessing the appropriate weight to be given to the various factors relevant to the determination of an appropriate sentence is jealously guarded by this Court and should not lightly be overridden. On a principled approach, that is so whether a sentence appears, upon review, to be stern or lenient. In the absence of error, the sentence should stand.
For those reasons, I would grant leave to appeal but dismiss the appeal.
Schmidt J: I agree with McCallum J.
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