Natano v The King
[2023] VSCA 261
•31 October 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0052 |
| ELIAS NATANO | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 October 2023 |
| DATE OF JUDGMENT: | 31 October 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 261 |
| JUDGMENT APPEALED FROM: | DPP v Natano [2023] VCC 283 (Judge Dalziel) |
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CRIMINAL LAW – Application for leave to appeal – Sentence – Charges of arson, aggravated carjacking with offensive weapon, intentionally cause serious injury, negligently cause serious injury, fail to render assistance, criminal damage, make threat to kill and conduct endangering life – Related summary charges – Total effective sentence of 15 years and 3 months’ imprisonment with non-parole period of 12 years – Whether sentencing judge erred in treatment of remorse as mitigating factor – Whether judge failed to give notice before qualifying remorse – Whether proper weight given to totality – Whether sentence manifestly excessive – Leave to appeal refused.
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| Counsel | ||
| Applicant: | Mr RF Edney | |
| Respondent: | Mr CB Boyce KC | |
Solicitors | ||
| Applicant: | Emma Turnbull Lawyers | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
PRIEST JA
TAYLOR JA:
On 8 February 2023 the applicant pleaded guilty to 16 indictable offences and three related summary charges. The offending occurred in six separate incidents within a four hour period on a single day.
Following the plea hearing, he was sentenced on 3 March 2023 as follows:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Arson | 15 years | 12 months | N/A |
| 2 | Negligently causing serious injury | 10 years | 5 years | 24 months |
| 3 | Fail to render assistance after an accident contrary to s 61(3) of the Road Safety Act 1986 | 10 years | 3 years | 6 months |
| 4 | Damaging property | 10 years | 8 months | N/A |
| 5 | Causing serious injury intentionally | 20 years | 9 years | Base |
| 6 | Make threat to kill | 10 years | 2 years | 3 months |
| 7 | Reckless conduct endangering life | 10 years | 3 years | 6 months |
| 8 | Fail to render assistance after an accident contrary to s 61(3) of the Road Safety Act 1986 | 10 years | 3 years | 3 months |
| 9 | Damaging property | 10 years | 16 months (aggregate) | 4 months (aggregate) |
| 10 | Damaging property | 10 years | ||
| 11 | Damaging property | 10 years | ||
| 12 | Damaging property | 10 years | ||
| 13 | Damaging property | 10 years | ||
| 14 | Damaging property | 10 years | ||
| 15 | Aggravated carjacking — Offensive Weapon | 25 years | 5 years | 18 months |
| 16 | Reckless conduct endangering life | 10 years | 3 years | 9 months |
| Related Summary Offences | ||||
| 34 | Fail to render assistance after accident contrary to s 61(1)(b) of the Road Safety Act 1986 | 8 months’ imprisonment or 80 penalty units | 2 months | 1 month |
| 35 | Resist police officer contrary to s 52(1) of the Summary Offences Act 1966 | 6 months’ imprisonment or 60 penalty units | 3 months | 1 month |
| 36 | Learner driver driving without supervision contrary to r 47(2) of the Road Safety (Drivers) Regulations 2019 | 20 penalty units | Convicted and fined $3000 | N/A |
| Total Effective Sentence: | 15 years and 3 months’ imprisonment | |||
| Non-Parole Period: | 12 years | |||
| Pre-sentence Detention Declared: | 698 days | |||
| Section 6AAA Statement: | 18 years’ imprisonment with a non-parole period of 15 years | |||
| Other Relevant Orders: Disposal order, licence cancellation and disqualification for 60 months from 3 March 2023. | ||||
The applicant seeks leave to appeal against sentence on the following grounds:
1.The sentencing judge erred in the treatment of the applicant’s remorse as a mitigating factor and failed to give proper notice that she would qualify the applicant’s genuine remorse (Reasons for Sentence at [92]‑[100].
2.The sentencing judge failed to give proper weight or have proper regard to the principle of totality ([Reasons for Sentence at [128]-[131]).
3.The individual sentences imposed, orders for cumulation, non-parole period and total effective sentence are manifestly excessive.
PARTICULARS
i.Early guilty plea;
ii.Remorse;
iii.Deterioration in mental health prior to offending;
iv.Written letter of apology and viva voce expressions of remorse;
v.Limited prior convictions;
vi.Impressive character references;
vii.Family Support;
viii.First term of imprisonment;
ix.Endured term of imprisonment in COVID-19 conditions;
x.Experience of imprisonment more burdensome because of likely deportation;
xi.Impressive conduct while in custody;
xii.Good prospects of rehabilitation.
For the reasons that follow, leave to appeal should be refused.
Summary of Offending
On Saturday 3 April 2021 the applicant, then 28 years old, woke late in the afternoon. He was alone. He lived with his parents and sister. They were all absent on an Easter break. The applicant consumed several alcoholic drinks before leaving the house in his sister’s car, a black Volkswagen Golf. He took with him a kitchen knife, a jet lighter and a 600 ml water bottle filled with petrol.
At the time the applicant held a learner’s permit and required the company of an experienced driver when driving (related summary offence 36). He was also subject to a nine month community correction order (‘CCO’) imposed 2 months earlier for offences of recklessly causing injury and learner driver driving unaccompanied.
First incident
At about 9:30 pm the applicant drove to the Mickleham home of an acquaintance, Cameron Findlay.0F[1] The applicant had fallen out with him some eight months prior. Mr Findlay was not at home. His mother, Fiona,1F[2] and younger brother, Gavin,2F[3] were.
[1]A pseudonym.
[2]A pseudonym.
[3]A pseudonym.
The applicant poured the petrol from the water bottle onto a plastic chair on the porch and ignited it using the jet lighter (charge 1 — arson). He returned to the Golf, discarding the jet lighter on the way. Smelling the fire, Fiona and Gavin went outside. Gavin extinguished the flames with a bucket of water and moved the chair away from the house and onto the road.
A witness pointed out the applicant to Fiona. She activated the recording function on her phone and approached the applicant to speak with him. The applicant entered the Golf and started the engine. As Fiona was standing on the road holding her phone aloft, the applicant pulled away from the kerb and drove directly at her, striking her with the front centre-left side of the Golf and throwing her into the air (charge 2 — negligently causing serious injury).
The applicant did not slow down, nor stop and render assistance (charge 3 — failing to stop and render assistance).
Fiona sustained significant injuries which, absent medical attention, were life threatening. These included subgaleal hematoma (the accumulation of blood between the skin on the scalp and the skull); abrasions and lacerations to her knees, feet and eyebrows; multiple bone fractures, including four spinal fractures and fractures to her jawbone and breastbone; bone and ligament injuries to her right lower leg and damage to her teeth. She required multiple surgeries.
Second incident
By 10:13 pm the applicant had driven from Mickleham to the Kalkallo home of his younger brother, Madison Natano, his brother’s partner, Dakota Blacker, and their three year old child. The applicant had previously lived in that home, but the arrangement ended over arguments concerning him smoking cannabis in the house.
The applicant parked the Golf on the road before walking to the driveway, carrying the kitchen knife. He slashed the tyres of the car parked there (charge 4 — intentionally damaging property).
As he walked back to the Golf, his brother ran towards the applicant and, recognising him, called to him and asked why he had damaged the tyres. The applicant ignored his brother, entered the Golf and turned on the ignition. His brother jumped on the bonnet of the car and partially shattered the windscreen on the driver’s side. The applicant then exited the Golf with the knife.
The two men then fought in the street. The applicant stabbed his brother in the chest, entering through the right armpit, damaging two veins and causing excessive blood loss. Madison Natano attempted to staunch the bleeding by applying pressure to the wound and said words to the effect of ‘no more, I’ve had enough … why, bro, why?’. In response the applicant twice stabbed his brother in the abdomen, perforating his bowel.
Ms Blacker came into the street. The applicant pointed the knife at her and said ‘you bitch, I’m going to kill you, you’re next’ (charge 6 — threat to kill). He then turned back to his brother and said, ‘I’m going to do what I’ve just done to you to your partner and daughter’.
Fearing for her safety and that of her daughter, Ms Blacker ran back towards her house. The applicant initially ran after her before stopping and returning to his brother, who was then hunched over holding his abdomen. The applicant stabbed him in the neck (charge 5 — rolled up intentionally causing serious injury). The applicant again turned to Ms Blacker, who locked the door to prevent him gaining entry into the house.
The applicant returned to the Golf and drove away, but got lost trying to leave the area. He returned to drive down the street once more. Madison Natano was still then lying on the ground. He saw the car and, thinking that someone had come to help, attempted to wave it down. The applicant drove over his brother’s legs, fracturing his left femur (charge 7 — reckless conduct endangering life).
When police arrived on the scene, one officer was required to pinch Madison Natano’s intestines, which were protruding from his abdomen, and also place three fingers into the armpit wound to stop the bleeding. He underwent an emergency blood transfusion and multiple surgeries to address his wounds.
Third incident
Upon leaving Kalkallo, the applicant returned home. He changed his clothes and washed his brother’s blood from his hands and face.
At about 10:49 pm he purchased whisky from a bottle shop and drove the Golf to the Craigieburn home of the Mammone family. Three years prior the applicant had lived next to that family. They had obtained an intervention order against him.
The family were away for the Easter weekend. Mr Mammone was a mechanic. Parked in the driveway were six vehicles, three belonging to his customers. The applicant used the knife to slash all four tyres on each of the six cars (charges 9 to 14 — damaging property).
Fourth incident
Using back roads to avoid police detection, the applicant drove to a lookout near Melbourne Airport. There he consumed the whisky and called his father. The applicant told his father what he had done. He believed that his brother either had died, or would die. Whilst he expressed remorse, the applicant said that he did not intend to turn himself in to police.
At about 12:28 am the applicant drove home and parked the Golf in the driveway. After exiting he noticed a marked police car nearby. The applicant returned to the Golf, reversed out of the driveway and drove away. The marked police car activated its lights and followed him. The applicant made no attempt to pull over. He reached speeds of 80 kph before reaching Mickleham Road and 140 kph thereafter.
The applicant overtook a car at high speed before braking to avoid another car towing a caravan. He lost control of the Golf, which spun around and hit the guard rail. The pursuing police officers stopped nearby and exited their car. They observed the applicant exit the Golf with the knife in his hand. He approached them yelling ‘you will have to kill me … you’ll have to put a bullet in me’. The officers drew their firearms and repeatedly told the applicant to drop the knife. They retreated as he continued to approach their vehicle. He then entered the police vehicle and drove away (charge 15 — aggravated carjacking).
Fifth incident
The police air wing was deployed to follow the applicant in the stolen police car, which he drove at speeds exceeding 200 kph and otherwise unsafely, including by running red lights at intersections. As the applicant approached the intersection of Sydney Road and Barry Road, he attempted to force the car through a narrow gap of two lanes of traffic stopped at a red light. He collided with four stationary cars.
The damage caused to those vehicles was substantial. One of the drivers needed to be extricated from his vehicle with the assistance of first responders (charge 16 — reckless conduct endangering life).
The airbags in the stolen police car were deployed on impact. The applicant came to a complete stop. He exited the car holding the knife and ran away into a side street, ignoring the demands of police officers to drop the knife (related summary offence 34).
Sixth incident
Police pursued the applicant on foot and deployed a police dog. It took hold of the applicant’s thigh before being shaken off. A marked police car was then used to try to ‘nudge’ the applicant. The first nudge had no effect. The second resulted in him jumping onto and then off the hood of the car. The applicant threatened the police dog’s handler with the knife (related summary offence 35).
A police officer was eventually able to tackle the applicant from behind. Several other police officers assisted in subduing him before he finally released the knife.
A blood sample collected from the applicant at 3:33 am indicated he had a blood alcohol concentration of .06 percent. No other drugs or illicit substances were detected.
Record of interview
The applicant participated in a record of interview in which he was asked about all incidents except the third, as police were then unaware of its occurrence.
The applicant made full admissions to the offending in the first incident. He said he assumed the woman he struck was Mr Findlay’s mother, thought that she was expecting him to stop but he drove into her because he did not want to stop. The applicant said that he intended to stab Ms Blacker during the second incident, but gave up when he could not get into the house. He also said that he did not intend to drive over his brother, he was not watching where he was driving. The applicant said that during the fourth incident he wanted to provoke the police to shoot him. When he realised they would not, he stole the police car hoping that would be sufficient provocation. He also said that even after he had been subdued by police officers during the sixth incident, he still wanted to provoke the police to shoot him. The applicant said that during the fifth incident he was travelling at about 80 to 90 kph when he hit the cars in the intersection.
Sentencing reasons
In her sentencing reasons, the judge commenced with the background to the offending behaviour as told by the applicant to Dr Adam Deacon, a consultant psychiatrist who prepared a report tendered on his behalf.3F[4] The applicant was a regular smoker of cannabis. Its effect was to make him feel paranoid and that people might be laughing at him. In the days prior to the offending he had been drinking heavily as he had been unable to obtain cannabis. In the hours before the offending commenced, the applicant drank about 600 ml of whisky and developed an angry mood in which he decided to ‘do something’.
[4]DPP v Natano [2023] VCC 283 (‘Reasons’), [2]–[8].
The judge then detailed the circumstances of the offending4F[5] before summarising the applicant’s personal circumstances.5F[6] In brief, the applicant was aged 28 years at the time of offending and 30 at the time of sentence. He is the eldest of three children born to his parents, who are of Maori and Samoan backgrounds. The applicant’s family, both immediate and extended, was loving and supportive. He was brought up in the Christian faith. At school, the applicant was a shy, anxious child who lacked self-confidence and was bullied. The family moved to Australia when he was 12 years old. He finished his schooling in Brisbane and thereafter worked in a variety of unskilled labouring jobs. The applicant said he was a lazy employee, a trait exacerbated by his cannabis use. That use began when he was about 17 years of age. He commenced drinking alcohol at 18, used ketamine for a period in 2020 and also once tried LSD.
[5]Reasons, [9]–[67].
[6]Reasons, [68]–[77].
Turning to the applicant’s mental health, the sentencing judge noted the applicant’s mother’s observation that he became anxious as he grew older and isolated from his friends and family as a result of drug use.6F[7] In March 2021 the applicant was prescribed antidepressant medication and melatonin to assist sleep.7F[8] Dr Deacon stated that the applicant did not present with a psychotic disorder. The applicant reported that he had had ‘dark devilish thoughts’ but had never considered such extreme behaviour as involved in the offending, but alcohol ‘opened the doorway’. Dr Deacon considered that alcohol consumption had likely compromised the applicant’s mental state at the time of the offending, but it was not submitted on the plea that this was a mitigating factor.8F[9]
[7]Reasons, [78].
[8]Reasons, [79]–[81].
[9]Reasons, [82]–[86].
The sentencing judge accepted that the offending was out of character, but not that it was inexplicable.9F[10] The judge noted that the applicant was entitled to a ‘significant discount’ by reason of his pleas of guilty, being early and of utilitarian value, particularly as the courts were still impacted by the COVID-19 pandemic.10F[11]
[10]Reasons, [87]–[89].
[11]Reasons, [90]–[91].
Turning to remorse, the judge found that the applicant was not ‘immediately’ remorseful for his actions.11F[12] Nonetheless, the judge said
I accept that you are now indeed very sorry for what you did on this night. In your letter to the court you say that you are sorry and hope that the people you hurt can move on. In your oral evidence you took responsibility for your own actions, and did not seek to excuse yourself based on your drinking that night. Your letters to Ms Findlay and your brother and his family also express remorse.12F[13]
[12]Reasons, [92].
[13]Reasons, [100].
The sentencing judge noted that the applicant had used his time in custody productively13F[14] and that the conditions of remand had been made more difficult by the pandemic.14F[15] The judge also considered the effect the applicant’s likely deportation to New Zealand at the conclusion of his sentence would have on him in custody.15F[16]
[14]Reasons, [101].
[15]Reasons, [103].
[16]Reasons, [104].
After noting the applicant’s prior court appearances, particularly the imposition of a nine month CCO in February 2021, still extant at the time of the offending, the judge accepted that the applicant’s prospects of rehabilitation were good.16F[17]
[17]Reasons, [105]–[108].
After describing the offending as ‘egregious’,17F[18] the sentencing judge assessed the gravity of offending with respect to each incident.18F[19]
[18]Reasons, [108].
[19]Reasons, [110]–[126].
The judge then referred to current sentencing practice19F[20] before turning to the principle of totality and stating:
The offending against Fiona Findlay, your brother, and the aggravated car‑jacking of the police vehicle are individually very serious charges. The motivation for the offending against your brother in particular was malice. In the course of just over 3 hours you seriously injured two people, put others at risk and caused damage in many places.
In the face of the numerous serious offences by you in these few hours, it is not an easy task to ensure that the combined sentence captures the totality of your offending, but no more. Your counsel accepted that the totality of the offending was significant, but urged me to take care not to impose a crushing sentence.
The application of this principle means that the orders for cumulation I will make are significantly moderated, and on some charges there is no cumulation ordered. 20F[21]
[20]Reasons, [127].
[21]Reasons, [129]–[131].
After pronouncing sentence, the judge made ancillary orders as well as a finding pursuant to s 89C(1) of the Sentencing Act 1991 that the offences subject of charges 2, 7, 15 and 16 were each committed whilst under the influence of alcohol which contributed to the offence.21F[22] The judge also recorded that the applicant was sentenced on charge 6 as a serious violent offender. Although treating the protection of the community as the principal purpose for which sentence was imposed, the judge noted that she would not impose a sentence longer than would be proportionate to the gravity of the offending considered in light of its objective circumstances.22F[23]
[22]Reasons, [135].
[23]Reasons, [136].
Ground 1 — remorse
The applicant argued that it was not open to the sentencing judge to qualify his expression of remorse as lacking immediacy. Upon arrest he co-operated with police by participating in a record of interview. The evidence before the judge in Dr Deacon’s report, character references, letter by the applicant and his oral evidence was plentiful and powerful evidence of contrition.
The respondent submitted that the judge made the obvious point that the applicant was not remorseful for his actions immediately after performing them and that this did not prevent the judge finding that he subsequently demonstrated genuine remorse.
Analysis
The applicant’s offending occurred in a series of incidents that took place in different locations over a period of hours. The judge was correct to observe that however genuinely remorseful the applicant became after it had all concluded, he was not spontaneously so at the time of his offending. The point may be simply illustrated. Had the applicant been immediately remorseful for his actions in driving into Fiona Findlay, for example, he would have paused to think and desisted from then driving to his brother’s house and stabbing him multiple times with a knife.
The sentencing judge’s observation of the lack of immediacy in the applicant’s remorse did not prevent her finding, as set out in paragraph 38 above, that he was genuinely sorry for his offending. Nor is there anything in the sentences imposed that suggest that the judge failed to give this genuine contrition appropriate weight.
Ground 1 is without merit.
Grounds 2 and 3 — totality and manifest excess
In oral submissions the applicant argued these grounds compendiously. We adopt the same approach.
The applicant argued that given his background, the offending behaviour was most unusual and occurred against a background of long-term resentments. It was confined to a single transaction of some hours and began with an intention to damage property. Notwithstanding the objective seriousness of the behaviour, the individual sentences imposed and orders for cumulation gave insufficient weight to the subjective factors in mitigation and have produced a sentence that is crushing.
The respondent submitted that the judge correctly articulated and applied the principles relevant to totality. In particular, the periods of cumulation were moderate. The offending was, as found by the sentencing judge, serious. The individual sentences for each offence were, when considered separately, also moderate. This again demonstrated the correct application of the principle of totality. Both the total effective sentence and non-parole period were, in all the circumstances, within the appropriate range.
Analysis
That the sentencing judge appropriately applied the totality principles may be demonstrated by examining the individual sentences imposed on the two most serious charges and, separately, the orders for cumulation.
The offence of causing serious injury intentionally in charge 5 carries a maximum penalty of 20 years’ imprisonment. In this instance of that offence, being a rolled-up charge, the applicant first stabbed his brother in the chest through the armpit causing excessive blood loss. In response to his brother saying, effectively, ‘no more’, the applicant stabbed him twice to the abdomen, perforating his bowel. After then threatening to kill his brother’s partner while holding the knife the subject of charge 6 and chasing her towards the house, the applicant returned and stabbed his brother to the neck, a deliberate wound to a part of the body that can only be intended to cause (really) serious injury. In short, it was a very grave example of the offence. Giving full weight to all of the matters available to the applicant in mitigation of sentence, the sentence of 9 years’ imprisonment imposed is, in isolation, very lenient.
Similarly, the offence of negligently causing serious injury in charge 2 carries a maximum penalty of 10 years’ imprisonment. This instance of that offence falls at the very top of the range of objective gravity. The CCTV footage shows that the applicant swerved the Golf towards Fiona Findlay. The applicant told police that he thought that she would have assumed that he would stop, but he did not do so because he did not want to. Again, according full weight to the matters in mitigation, the sentence of 5 years’ imprisonment is, in isolation, extremely lenient if not bordering on inadequate.
These two examples show that the judge moderated the individual sentences in consideration of totality. Further, the offending occurred in distinct episodes and it was appropriate for that fact to be reflected in the partial cumulation of the already moderated individual sentences imposed. The orders effecting that partial cumulation were, in all the circumstances, modest.
It follows that none of the individual sentences, orders for cumulation, the non-parole period or total effective sentence are manifestly excessive.
As is often stated, an appeal against sentence on the basis of manifest excess requires more than that the appellate court would have imposed a different sentence. Rather, the sentence under consideration must be one that is ‘wholly outside the range of sentences available to the sentencing judge in the reasonable exercise of the sentencing discretion.’23F[24] Absent specific error, the sentence on its face must reveal underlying error. This sentence does not.
[24]Osman v The Queen [2021] VSCA 176, [97] (Priest, T Forrest and Emerton JJA).
At the risk of repetition, the offending was grave. Two people were seriously injured, more were frightened and still more put at risk. There was a significant amount of damage to property. The offending was motivated by long-standing grievances. There were many instances at which the applicant could have desisted from further offending. And, whilst he had a low mood, the applicant did not suffer any mental illness and the Verdins24F[25] principles were inapplicable. Further, the applicant was subject to a CCO at the time of the offending. His moral culpability was high.
[25]R v Verdins (2007) 16 VR 240 (Maxwell P, Buchanan and Vincent JJA).
The judge balanced these matters against the subjective matters in mitigation including the applicant’s pleas of guilty, remorse, family support and good prospects of rehabilitation. The sentences imposed were well within the range available to her.
Conclusion
Leave to appeal against sentence must be refused.
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