Pali v The Queen

[2013] NSWCCA 65

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Pali v R [2013] NSWCCA 65

Hearing dates:

19 March 2013

Decision date:

27 March 2013

Before:

Basten JA at [1];
Simpson J at [25];
Blanch J at [26]

Decision:

(1) Grant leave to the applicant to appeal against each of the sentences imposed by the District Court on 10 May 2012.

(2) In respect of each sentence, dismiss the appeal.

Catchwords:

CRIMINAL LAW - appeal - sentencing - assault occasioning actual bodily harm in circumstances of aggravation - robbery of victim of assault - whether sentencing judge failed to take into account a mitigating factor that offences not planned or organised - Sentencing Procedure Act 1999 (NSW), s 21A(3)(b) - where not established whether or not the offence was part of a planned or organised criminal activity - where mitigating factor not relied upon by offender's representative in court below

CRIMINAL LAW - appeal - sentencing - whether manifestly excessive - where offences of a like kind attracted lesser sentences - where offender had unfavourable personal circumstances

Legislation Cited:

Crimes Act 1900 (NSW), s 112
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44

Cases Cited:

Bolt v Regina [2012] NSWCCA 50
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Ngati v R [2008] NSWCCA 3; 180 A Crim R 384
R v Terkmani [2009] NSWCCA 142; 195 A Crim R 298
Romero v R [2011] VSCA 45; 206 A Crim R 519
Zreika v R [2012] NSWCCA 44

Category:

Principal judgment

Parties:

Kevin William Pali (Applicant)
Regina (Respondent)

Representation:

Counsel:

Ms H L A Cox (Applicant)
Ms T L Smith (Crown)
Solicitors:

Legal Aid NSW (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s):

CCA 2011/299988

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-05-10 00:00:00

Before:

Conlon DCJ

File Number(s):

2011/299988

Judgment

1. BASTEN JA: The applicant, Mr Kevin Pali, is presently serving a sentence of imprisonment consequent upon his conviction on one count of break and enter and commit a serious indictable offence, namely assault occasioning bodily harm, in circumstances of aggravation and one count of robbing the victim of the assault of an amount of $125 in cash.

1. With respect to the first count, being an offence against s 112(2) of the Crimes Act 1900 (NSW), Judge Conlon SC, imposed a sentence involving a non-parole period of five years to date from 17 September 2011 with an additional term of one year and eight months, to expire on 16 May 2018. For the robbery, the sentencing judge imposed a wholly concurrent term involving a non-parole period of three years with an additional term of one year. The applicant is therefore serving an effective minimum custodial term of five years, which will expire on 16 September 2016. That sentence matched the standard non-parole period for an offence under s 112(2), being five years, with an additional term equivalent to one-third of the non-parole period, in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act").

1. For reasons set out below, no error has been identified on the part of the sentencing judge. The sentences were, however, sufficient to warrant an application for leave to appeal. Accordingly, leave should be granted to appeal against each sentence, but the appeals dismissed.

Circumstances of offending

1. The attack occurred on 17 September 2011, at the victim's unit in Bulli. He was 69 years of age, suffered some paralysis down his right side resulting from polio in his childhood and also a mild intellectual disability. He had been known to the offender for approximately six years and to the offender's mother for a longer period. In the two years prior to the incident, both the offender and his mother assisted the victim with shopping and other errands, for which they were paid. However, requests were made for money for other reasons and on numerous occasions the victim acceded to those requests. According to the trial judge, the victim "tired of being imposed upon in this way". The judge continued:

"On 17 September 2011 at about 10.30am the victim was seated at a small table adjacent to the front window and door of his living room. His life was rather regimented and it was usual for his lunch to be delivered at about that time. Indeed, he had just commenced to eat his lunch when the offender appeared at the front door that was open, but the screen security door was locked. The offender said, 'What's going?' The victim replied with words to the effect, 'Piss off, I don't want to talk to you'." Upon consideration of the victim's evidence, I am satisfied that he took this stance as he did not want the offender to prevail upon him any longer requesting money. The victim said the offender became agitated and demanded to be let in. The victim told him to go away. The offender has then pulled the fly screen from the front window, opened it and climbed through onto the table at which the victim was sitting. He then pushed the victim in the chest area, causing him to stumble backwards. There was a scuffle and the victim was punched to the head area. The victim acknowledged that he threw a couple of punches at the offender attempting to defend himself. The offender has then removed a wallet from the victim's rear pocket, took the $125 in cash out of it and threw the wallet on the table. The offender then left via the front screen door."

1. The victim suffered swelling and bruising to the left side of his face in the course of the incident, which the sentencing judge described as "a cowardly attack on an elderly man with physical disabilities and from my observations of him in the witness box, some mild intellectual deficit."

1. A pre-sentence report prepared on 1 May 2012 described the applicant in the following terms:

"Mr Pali is a 42 year old male who appears to have had a dysfunctional childhood marred by periodic violence during his formative years. It appears that his exposure to violence at an early age has characterised his own behaviours and been a significant factor within his own relationships and his offending behaviour. His transient lifestyle appears to have exposed him to the subculture of illicit substances and anti-social peers.

...

He has openly acknowledged that his epilepsy and illicit substance use has impacted on his ability to maintain employment. Of concern is Mr Pali's denial of the offence and the claims the offence and injuries were fabricated and self-inflicted."

1. With respect to drug use, the sentencing judge made the following findings:

"He commenced using cannabis at age 16, he did not commence using amphetamines until his early 30s. He started using heroin about four years ago. He advised that he had not engaged in any periods of abstinence nor participated in any drug or alcohol interventions."

1. With respect to his continued denial of involvement in the offences, the trial judge expressed concern for his prospects of rehabilitation, describing the prosecution case as overwhelming. He found there was "no contrition or remorse".

1. The applicant had a criminal record for stealing and assaults dating back to 1984, when he was dealt with in the Children's Court. In 2009 he was twice convicted for assault occasioning actual bodily harm and once for assault police in the execution of their duty. In between, there were numerous offences of a like kind, although his record was clear for approximately eight years in the 1990s. The sentencing judge concluded that his criminal record "is not one that would entitle him to leniency."

Grounds of appeal

1. The applicant sought to raise two grounds of appeal: the first asserted that the sentencing judge had failed to take into account a mitigating factor, namely that the offences were not part of a planned or organised criminal activity in the terms identified in s 21A(3)(b) of the Sentencing Procedure Act. The second ground was that each of the sentences was manifestly excessive.

1. The first complaint is without substance. The Sentencing Procedure Act identifies an offence which was part of a planned or organised activity as involving an aggravating factor and one which was not as involving a mitigating factor. On a superficial reading, these appear to be alternative findings, one of which must be made in every case, so that a failure in any case to refer to one or the other must involve error. That would not be correct, for two reasons. The first is that the trial judge might not be satisfied on the applicable standards of proof that either was established. The second reason is that in some cases the factor will be of little if any significance and will therefore not be relied upon by either party. This case at least fell into the latter category, if not the former. Neither in written submissions, nor orally, did the applicant's representative rely on this factor in the Court below. It has been noted on more than one occasion, both in this Court and in the Victorian Court of Appeal, that generally there will be no erroneous failure to take into account a "relevant consideration" in circumstances where it has not been identified and relied upon before the trial judge: Zreika v R [2012] NSWCCA 44 at [77]-[82] (Johnson J, McClellan CJ at CL and Rothman J agreeing); Romero v R [2011] VSCA 45; 206 A Crim R 519 at [11]. In the latter case, Redlich JA stated (with the agreement of Buchanan and Mandie JJA):

"In sentencing appeals, this Court is reviewing the exercise of a discretionary judgment. It is not a rehearing of the plea in mitigation. It is not the occasion for the revision and reformulation of the case presented below. Given the nature of its supervisory role, this Court will not lightly entertain arguments that could have been, but were not advanced on the plea. It will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of the submissions previously made. The revivification of arguments abandoned or eschewed on the plea is highly undesirable and should not be countenanced, save where fresh evidence is adduced, or in the exceptional circumstance where it can be shown that there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence."

1. This statement of principle is not inconsistent with the obligations imposed on the sentencing court by s 21A of the Sentencing Procedure Act. Nor was the principle evaded by the suggestion that the point now sought to be raised was "obvious", on the basis that the evidence supported the inference that the applicant's conduct was spontaneous and impulsive and, in that sense, unplanned.

1. If such a finding of fact were to be relied upon, it should have been sought. Nor was it self-evidently available. The applicant did not give evidence and there was, therefore, no direct evidence to support the inference relied upon. Further, in the case of a person whose drug habits would appear to require access to ready cash, whose state of mind from time to time may have been affected by drugs and who had a criminal record for violent conduct, both the nature of his intentions at the relevant time and the extent to which they mitigated the seriousness of the offending were matters inviting debate.

1. There is no substance in this ground and it should be rejected.

1. The second ground was that the penalties for each offence were manifestly excessive. The offence under s 112(2) carried a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. The sentencing judge fixed a period which conformed to the standard non-parole period. To take that step without regard to the particular circumstances of the case and other relevant sentencing principles would demonstrate error: Muldrock v The Queen [2011] HCA 39; 244 CLR 120. However there was no suggestion that the sentencing judge acted erroneously in that respect. Even absent such an error, and accepting that the objective seriousness of the offence was in the middle of the range for such offences, there may yet be error in imposing a sentence in conformity with the standard non-parole period. Nevertheless, the guidance provided by the standard non-parole period is itself a significant factor to be taken into account in determining, on appeal, whether the sentence imposed fell within an appropriate range.

1. The primary basis for the challenge involved reliance upon the Judicial Commission statistics for offences of a like kind.

1. Of the precedents relied upon by the applicant, three should be addressed. Most recently, the Court interfered with a sentence which, once allowance is made for the fact that a discount was given for an early plea of guilty, was in the same range as that in the present case: Bolt v Regina [2012] NSWCCA 50. The error identified in that case, which was determined before judgment was delivered in Muldrock in the High Court, was the adoption of a two-stage process which gave undue weight to the standard non-parole period. However, the basis for imposing a lesser sentence involved an assessment of "the circumstances of this particular offender" at [39] (McCallum J, Beazley JA and Harrison J agreeing). The applicant was aged 19 at the time of the offence, had a life described as one of "abject grief, hardship and deprivation", had become a father as a teenager "when substance abuse and mental illness were already substantial problems for him", but who had "good prospects of rehabilitation": [40]-[41]. The inference to be drawn is that, absent those circumstances, the Court would not have intervened. Those factors were not replicated in the present case.

1. R v Terkmani [2009] NSWCCA 142; 195 A Crim R 298 involved a frightening incident in which two men came to the door of the victim's home, looking for another occupant, who was away. Despite being repeatedly advised of that fact, the offender threw a brick through the window of the house, produced a knife and climbed in. He then demanded that the victim open the door for his accomplice. Both men started punching the victim with their fists; they continued to assault him when he fell to the ground.

1. The offender was found guilty by a jury. He was sentenced to four years imprisonment with a non-parole period of two years. The prosecution appealed against the inadequacy of the sentence. Again there were factors personal to the offender which appeared to have weighed strongly in his favour. Like Mr Bolt, he was 19 years of age; he also enjoyed considerable family support, a good employment history and strong work and family ethics, which led to a finding that he had good prospects of rehabilitation: at [41]-[42]. Although the Court did not interfere, Price J (with whom Grove and Buddin JJ agreed) noted that "the sentence imposed by the judge was lenient and was probably influenced by his Honour's misunderstanding of the maximum penalty", described the sentence as one which he would not himself have imposed at first instance, but was not persuaded that it was "definitely outside" the appropriate range: at [47]. Again, it is tolerably clear that the Court would have intervened to increase the sentence, absent the personal circumstances of the offender noted above.

1. The third case relied upon by the applicant involving a jury verdict after a not guilty plea was Ngati v R [2008] NSWCCA 3; 180 A Crim R 384. The victim of the attack was a woman who lived with her family in a house at Airds. She had apparently exchanged words with a child who had spoken to her in an insulting way and had then spoken to the child's mother. The child was a friend of one of the offender's children. The offender and his family came around to the victim's house, entered by kicking out the glass in a window and the offender's wife and one or other of his children assaulted the victim. The case against the offender was not that he struck the victim, but that he was present, encouraging or assisting or standing by ready to assist those members of his family who did assault the victim. The primary appeal was against conviction, the issue for the jury having been whether the offender entered the house of the victim. That appeal was rejected. The offender had been sentenced to a term of three years and nine months imprisonment, with a non-parole period of two years. The appeal against the harshness of the sentence was dismissed as being of "no substance": at [42] (Barr J, Tobias JA and Hidden J agreeing). The principal basis of challenge appeared to have been a question of parity, but the offender's wife had pleaded to a much less serious offence and other members of his family were dealt with in the Children's Court, removing any real basis for that ground. The fact that the appeal was dismissed gives little basis for comparison with the present case.

1. Despite the large number of charges laid under s 112(2), virtually all of which have resulted in guilty pleas, there is little assistance to be derived from the statistics or specific precedents. In particular, the unfavourable personal circumstances of the applicant removed a basis for leniency of the kind reflected in the cases set out above. The challenge to the appeal against the sentence for the offence under s 112(2) must be rejected.

1. The sentence for the robbery received limited attention in the applicant's submissions, no doubt because it was wholly absorbed within the concurrent sentence imposed under s 112(2). It was not suggested that a non-custodial sentence should have been imposed, but that a four year sentence with a non-parole period of three years was excessive. The offence carried a maximum penalty of 14 years, but was clearly not a serious offence of its kind. That fact was, arguably, reflected in the sentence being less than 30% of the maximum, despite the applicant's lengthy record of offences of stealing and other unfavourable personal circumstances.

1. It may be accepted that the statistics indicate that this is a sentence towards the top of the range of sentences imposed for this offence, but the specific examples provided for the applicant all involved pleas of guilty, with no indication as to the discount given. These statistics alone do not provide a basis for concluding that the sentence was manifestly excessive. The appeal against the sentence imposed on the robbery count should also be rejected.

Conclusion - orders

1. The appropriate orders are:

(1) Grant leave to the applicant to appeal against each of the sentences imposed by the District Court on 10 May 2012.

(2) In respect of each sentence, dismiss the appeal.

1. SIMPSON J: I agree with Basten JA.

1. BLANCH J: I agree.

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Decision last updated: 27 March 2013