Melaisis v The Queen

[2018] NSWCCA 184

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Melaisis v R [2018] NSWCCA 184
Hearing dates:	15 August 2018
Date of orders:	27 August 2018
Decision date:	27 August 2018
Before:	Macfarlan JA Hoeben CJ at CL Fagan J
Decision:	1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed in the District Court on 11 August 2017 for count 1 in the indictment, aggravated robbery, is quashed. 4. In lieu thereof the applicant is sentenced to imprisonment for a non-parole period of 1 year and 3 months commencing on 14 June 2017 and expiring on 13 September 2018 and a balance of term of 5 months expiring on 13 February 2019, the overall sentence for the aggravated robbery therefore being 1 year and 8 months.
Catchwords:	CRIME – appeal against sentence – aggravated robbery contrary to Crimes Act 1900 (NSW), s 95 – applicant forcibly seized complainant’s mobile phone during argument in car park – phone discarded by applicant and later recovered by complainant – plea of not guilty to primary charge of aggravated robbery – plea of guilty to alternative charge of assault occasioning actual body harm – where history of steroid abuse – where low risk of re-offending – where offence of short duration and not premeditated – head sentence of 3 years imprisonment with non-parole period of one year and 10 months – whether sentence manifestly excessive – appeal allowed and offender resentenced
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Category:	Principal judgment
Parties:	Nestoras Melaisis (applicant) Regina (respondent)
Representation:	Counsel: Mr Glen Porter/Mr Phillip Butterfield (applicant) Mr Frank Veltro (respondent)   Solicitors: City Legal Solicitors (applicant) Office of the Department of Public Prosecutions (respondent)
File Number(s):	2016/262561
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Not published Date of Decision: 11 August 2017 Before: Herbert DCJ File Number(s): 2015/373069

Judgment

1. THE COURT: The applicant seeks leave to appeal against his sentence for an offence of aggravated robbery contrary to s 95 of the Crimes Act 1900 (NSW). The offence was committed on 19 December 2015. The applicant was found guilty on 17 March 2017 after a five-day jury trial in the District Court at Campbelltown. On 11 August 2017 the trial judge imposed a sentence of 3 years imprisonment with a non-parole period of one year and 10 months. The maximum penalty for the offence is 20 years imprisonment.

2. The grounds of appeal are:

1. The learned sentencing judge erred in failing to have any regard at all to the degree of pre-trial disclosure by the applicant.

2. The applicant was denied procedural fairness by the way in which the learned sentencing judge took into account purported facts from offences committed in 2008.

3. The sentence imposed was manifestly excessive.

Facts of the offence

3. Her Honour’s findings of fact for the purpose of sentencing were based on the evidence given at trial, consistent with the verdict. Most of the following summary is taken from the Remarks on Sentence, supplemented with some details from the trial transcript. Having regard to the verdict there could no longer be any dispute about these facts.

4. The victim of the robbery was Mr Peter Sinclair. On 19 December 2015 he was the passenger in a motor car driven by his wife, Mrs Karen Sinclair, when they entered an underground car park at the Home Hub shopping centre on Victoria Road in Castle Hill. The centre was busy and most parking spaces were occupied. As Mrs Sinclair drove along a lane between rows of parked vehicles she observed a lady return to a blue car parked on Mrs Sinclair’s left. Mrs Sinclair stopped to wait for the blue vehicle to be driven out of its parking bay.

5. Whilst in this position the Sinclairs’ car was overtaken by a Toyota HiLux driven by the applicant. His partner, Ms Nadine Hili, was in the front passenger seat and their young child was in the rear. The applicant stopped his vehicle abruptly some little way ahead of the Sinclairs’ car. He then reversed to a position close to the bay that was about to be vacated. When the blue vehicle drove out Mrs Sinclair drove in. Ms Hili then alighted from the HiLux and approached the Sinclairs’ vehicle aggressively. She said, “You took our fucking car spot”. The Sinclairs got out of their own vehicle and Ms Hili remained in close proximity, gesticulating and shouting at them.

6. Mr Sinclair was concerned as to how this confrontation would develop. He therefore took out his mobile phone and held it up to take a photograph of the applicant’s vehicle, in particular its registration plate. Upon seeing this the applicant alighted from the HiLux and strode up to Mr Sinclair. He shouted repeatedly, “You taking a fucking photo of my car”. When the applicant reached Mr Sinclair he pushed him backwards and with his forearm against Mr Sinclair’s chest briefly forced him against a parked vehicle. Mr Sinclair was holding his phone in his left hand. The applicant attempted to wrest it from his grip. He said, “Give me your phone”. Mr Sinclair held on to the device and offered more than once, “I’ll delete the photo”. The applicant took hold of Mr Sinclair’s right hand and rotated it backwards, twisting his thumb, in a manner which caused pain and resulted in Mr Sinclair letting go of the phone. The applicant then walked back to his vehicle taking the phone with him. He and Ms Hili got in and the applicant drove away.

7. The applicant discarded the phone in some bushes at the side of a road approximately 2 km from the shopping centre. After calling the police Mr Sinclair went into the centre and used an application on a desktop computer to trace where his phone had been taken. When he ascertained that it was no longer moving he drove to the location and was able to retrieve it. It was undamaged. As a result of the applicant twisting Mr Sinclair’s thumb during the struggle over the phone some ligament damage was done. This required several attendances for physiotherapy over approximately two months and resulted in some neck and shoulder dysfunction and discomfort, apparently caused by Mr Sinclair guarding against the use of his right hand during recovery. Her Honour found that Mr Sinclair continued to suffer some pain at the date when sentence was passed. The Crown stated on the hearing of the appeal there was no permanent significant damage to Mr Sinclair’s hand.

8. The circumstance of aggravation pleaded in count 1 of the indictment was that, at the time of robbing Mr Sinclair, the applicant intentionally or recklessly inflicted actual bodily harm: see s 95(2)(b) of the Crimes Act. By count 2 the applicant was charged, in the alternative, that he assaulted Mr Sinclair thereby occasioning actual bodily harm contrary to s 59(1). At the outset of the trial the applicant pleaded guilty to the alternative count, in the presence of the jury. The Crown did not accept this in discharge of the indictment. Thus the applicant put in issue at the trial only the question whether he had intended permanently to deprive Mr Sinclair of his phone. The verdict shows that the jury found this element proved.

9. At the time of the incident the applicant was 27 years old. He was employed as a carpenter and his main hobby was training at a gym. He was of muscular build. There is no evidence or finding regarding Mr Sinclair’s age or physique but clearly the applicant was able to intimidate him physically and to overpower him.

Subjective circumstances of the applicant

10. The applicant had prior convictions for assault occasioning actual bodily harm and for affray, both of these offences having arisen out of a single incident on 17 August 2008. He was 20 years old at that date. The facts of these previous matters were tendered to her Honour, showing that the applicant was the instigator of an unprovoked attack, in company, upon another young male in a bar in King’s Cross. The Local Court imposed a supervised bond of 12 months duration and ordered the applicant to perform 150 hours of community service.

11. These prior offences meant that the applicant was not entitled to lenience when sentenced by her Honour for the robbery. However his subjective circumstances were otherwise favourable. In a pre-sentence report a Community Corrections officer expressed the opinion that the risk of him re-offending was low-level. He was in full-time employment and lived in “a positive family environment”. The applicant agreed to participate in counselling with respect to his significant steroid abuse problem, apparently associated with his bodybuilding activity. The applicant’s lack of full acceptance of responsibility for the offence and his tendency to minimise the wrongfulness of his conduct were the only causes of reservation on the part of the Corrections officer who made the assessment.

12. A report of a forensic psychiatrist, Dr Nielssen, was tendered on the applicant’s behalf on sentence. Therein it was recorded that the applicant gave a history of long-term use of anabolic steroids from which the doctor considered there would be “almost certainly some degree of irritability and increased assertiveness”. However the applicant himself reported that “he was not aware of being more aggressive or assertive while taking anabolic steroids, and instead said ‘when I stopped it I felt really down and moody’”. Unsurprisingly her Honour did “not accept that significant weight can be given to the contribution of his drug usage to the commission of this offence”.

The applicant’s unrelated drug offences

13. The applicant was arrested on 20 December 2015 and charged with the robbery. He was granted bail. Whilst on that bail, on 1 September 2016 he was arrested on three charges of supplying prohibited drugs. These charges involved quantities of methylamphetamine (29.4 g) and MDMA (5.8 g and 3.87 g). The applicant was initially refused bail for these matters and was remanded in custody until 30 November 2016. From the latter date he was released on bail which continued until the verdict was returned at the conclusion of his trial for the robbery. That bail was revoked upon the return of the jury’s verdict on 17 March 2017.

14. The applicant pleaded guilty to the charges of supplying prohibited drugs. They of course have no bearing upon his sentence for the robbery, which had occurred earlier. Her Honour sentenced him for the supply offences and for the robbery at the same time. On account of the above history it was necessary for her Honour to backdate the first sentence she imposed to commence on 14 December 2016. That made allowance for all of the time served on remand prior to the sentences being handed down.

15. For the supply charge concerning methylamphetamine her Honour imposed a sentence of 1 year and 3 months with a non-parole period of 11 months, to commence on 14 December 2016. For the other two supply charges her Honour imposed a single sentence of 1 year and 1 month with a non-parole period of 9 months, apparently intended to be an aggregate for the two counts although not expressly described as such. This second sentence was also ordered to commence on 14 December 2016 so that the effective overall non-parole period for all three drug matters was 11 months expiring 13 November 2017 and the effective head sentence for those matters expired 13 March 2018. There has been no application for leave to appeal from the sentences for the drug offences.

The sentence for the robbery

16. The learned sentencing judge categorised the robbery offence as “in the lower level of objective seriousness”. In more detail, this Court is able to conclude from all material tendered that the offence was spontaneous and unpremeditated. It was a brief outburst of temper with loss of self-control. It was an outrageous reaction to the petty frustration of losing a parking space. No doubt Mr Sinclair was intimidated, his wife was frightened and the several bystanders were, at the least, concerned. On the other hand the applicant’s threatening and physical conduct was short-lived. He wrestled with Mr Sinclair but did not strike any blow. The actual bodily harm had no significant long-term consequences. The taking of the phone was self-evidently not for the applicant’s material advantage and he gained none. The victim did not suffer permanent loss of his property.

17. Her Honour expressly recognised some of these features by way of findings that “the offence was of relatively brief duration”, that it was “unplanned” and that although there was “a degree of violence involved in addition to the actions which caused the infliction of the actual bodily harm … this would be at a very low level”. However these significantly moderating features of the offence, taken together with the reasonably favourable subjective circumstances to which we have referred, are not reflected in the sentence imposed. A head sentence of 3 years was in our view unreasonable and plainly unjust upon consideration of all circumstances relevant to penalty.

18. In view of this conclusion we consider leave to appeal should be granted and ground 3 upheld. It is not necessary for us to consider grounds 1 and 2.

Resentence

19. Her Honour fixed the sentence for the robbery to commence on 14 June 2017, six months into the concurrent sentences for the drug offences. That degree of accumulation was appropriate to reflect the entirely separate offending with which the drug charges were concerned. In our view a non-parole period of 1 year and 3 months is appropriate for the robbery charge, with a balance of term of 5 months.

20. As to the balance of term her Honour adopted a period greater than one-third of the non-parole period which she imposed, on the basis of the following finding, made for the purposes of s 44 (2) of the Crimes (Sentencing Procedure) Act 1999 (NSW):

I find special circumstances due to accumulation and to ensure that the offender is supported and supervised to return to employment in the community following his first custodial sentence.

21. Normally this Court would adopt a sentencing judge’s finding of special circumstances, however we do not feel able to do so in this case. The first reason given by the learned judge, “due to accumulation”, is, with respect, not meaningful. As regards return to employment there was no indication in the material before her Honour that a longer period of parole would be necessary or even useful to this end. There was tendered on the applicant’s behalf a letter from his employer attesting to his value to the employer’s business and stating that his previous position had been kept open for him during his three months remand in late 2016. There was no evidence that a longer parole period would in any way assist his resumption of employment. As to “supervised … return to … the community”, the pre-sentence report included the assessing officer’s opinion that he was unlikely to benefit from a period of supervision due to, inter alia, his assessed low-risk of reoffending. There was no basis for a finding of special circumstances and the balance of term specified upon resentencing the applicant should be one-third of the non-parole period.

Orders

22. The orders of the Court will be:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The sentence imposed in the District Court on 11 August 2017 for count 1 in the indictment, aggravated robbery, is quashed.

4. In lieu thereof the applicant is sentenced to imprisonment for a non-parole period of 1 year and 3 months commencing on 14 June 2017 and expiring on 13 September 2018 and a balance of term of 5 months expiring on 13 February 2019, the overall sentence for the aggravated robbery therefore being 1 year and 8 months.

**********

Decision last updated: 28 August 2018