Pantelakis v The Queen

[2019] NSWCCA 78

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Pantelakis v R [2019] NSWCCA 78
Hearing dates:	20 March 2019
Date of orders:	20 March 2019
Decision date:	20 March 2019
Before:	Bathurst CJ at [1]; Hoeben CJ at CL at [2]; Price J at [3]
Decision:	Leave to appeal granted. Appeal dismissed.
Catchwords:	CRIME – appeal against sentence – whether the judge failed to assess the objective seriousness of s 166 offences – whether the judge erred by setting excessive starting points for each offence – whether the judge failed to indicate how the Form 1 was taken into account – whether sentence imposed was manifestly excessive in all the circumstances
Legislation Cited:	Crimes Act 1900 (NSW), ss, 58, 96, 154A Criminal Procedure Act 1986 (NSW), s, 166 Road Transport Act 2013 (NSW), s, 54 Summary Offences Act 1988 (NSW), s, 11C
Cases Cited:	Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 Markarian v R (2005) 228 CLR 357; [2005] HCA 25 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v Sydney [2004] NSWCCA 63 R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 Vaiusu v R [2017] NSWCCA 71 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Yang v R [2012] NSWCCA 49; (2012) 219 A Crim R 550
Category:	Principal judgment
Parties:	Con Pantelakis (Appellant) Regina (Respondent)
Representation:	Counsel: M Phelps (Appellant) K Jeffreys (Respondent)   Solicitors: Nyman Gibson Miralis Lawyers (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2016/201301
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Crime Date of Decision: 23 November 2017 Before: Flannery SC DCJ File Number(s): 2016/201301

Judgment

1. BATHURST CJ: For the reasons given by Price J I join in the orders made on 20 March 2019, granting the applicant leave to appeal but dismissing the appeal.

2. HOEBEN CJ AT CL: I agree with the reasons and analysis of Price J.

3. PRICE J: At the hearing of this appeal on 20 March 2019, the Court granted leave to appeal and dismissed the appeal with the Court’s reasons to be published in due course.

4. The appellant sought leave to appeal against an aggregate sentence imposed on 23 November 2017 by Flannery SC DCJ (“the judge”). He had pleaded guilty to one count of aggravated assault with intent to rob with wounding contrary to s 96 of the Crimes Act 1900 (NSW) (Count 1). The maximum penalty for this offence is 25 years imprisonment. On sentence, he requested that a further matter being an offence of drive conveyance without consent contrary to s 154A of the Crimes Act be taken into account on a Form 1.

5. There were three related matters on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) (“CPA”) being:

1. Assault officer in execution of duty contrary to s 58 of the Crimes Act. As this offence was being dealt with summarily, the maximum penalty is 2 years imprisonment;

2. Custody of a knife in a public place contrary to s 11C(1) of the Summary Offences Act 1988 (NSW). The maximum penalty for this offence is 2 years imprisonment; and

3. Drive whilst disqualified contrary to s 54(10)(a) of the Road Transport Act 2013 (NSW). The maximum penalty for this offence is 6 months imprisonment and/or a disqualification from driving for 6 months.

6. Following submissions by the parties, the judge delivered her ex tempore sentencing remarks during which her Honour indicated the following sentences:

•   Count 1 (including Form 1) imprisonment for 4 years 3 months.

• Assault officer in execution of duty (s 166 CPA certificate) 6 months.

• Custody of a knife in a public place (s 166 CPA certificate) 6 months.

• Drive whilst disqualified (s 166 CPA certificate), disqualified for 6 months.

7. Her Honour discounted the individual sentences by 25% for the pleas of guilty that the appellant entered in the Local Court.

8. The appellant was sentenced to an aggregate term of imprisonment for 4 years 4 months with a non-parole period of 2 years 10 months, commencing on 27 June 2016.

9. The appellant’s notice of appeal identified the following grounds:

“1. The sentencing judge erred in that she:

(a) Failed to engage in an assessment of the criminality of the offences that were being dealt with under s 166 CPA;

(b) Set a starting point in relation to each of the offences that was erroneously excessive; and

(c) Failed to indicate how she took into account the Form 1 offence attached to the offence of aggravated assault with intent to rob.

2. The aggregate sentence ultimately imposed was manifestly excessive in all the circumstances.”

Facts

10. The agreed facts of the offences are as follows:

Aggravated assault with intent to rob with wounding – Count 1

11. Shortly stated, on 27 June 2016, Mr C caught a bus from Bankstown and got off on Marion Street, Condell Park. He walked along Marion Street and turned onto Wren Street. As he started walking down Wren Street, he crossed the road so that he was walking along the western side of the kerb. He noticed the appellant walking in front of him and realised he had alighted from the same bus.

12. Mr C approached a lane and walked down it towards Allison St. As he reached halfway down the lane, he felt something hit the back of his head. He felt pain and was momentarily stunned. He turned around and saw the appellant, who was standing about one metre away with his fist clenched by his side. The appellant yelled, “I want your mobile phone and your wallet”. The appellant started moving towards Mr C and still had his fists clenched. Mr C yelled at the appellant, “Get back and leave me alone”. The appellant then used his right hand to hit Mr C to the right side of the face leaving him with a split upper lip.

13. Mr C turned towards Allison Street and could see blood dripping from his lip. He turned around again but the appellant was gone. He ran home and a neighbour drove him to Bankstown Hospital where he received seven stitches to his outer lip and a number of stitches to his inner lip.

Drive conveyance taken without consent of owner – Form 1 offence

14. At about 1.20pm on the same day, the appellant took a car from Mr R’s driveway. The vehicle was reported stolen to the police.

15. About two hours later, police saw the vehicle, followed it and stopped it.

16. The appellant was removed from the vehicle, placed on the ground and handcuffed.

Custody of a knife in a public place – s 166 CPA certificate

17. The police searched the appellant and found a small pocket flick knife in his rear pocket.

Assault police officer in execution of duty – s 166 CPA certificate

18. The appellant was taken back to Bankstown Police Station and was read his Part 9 rights. He then asked to speak with a solicitor.

19. While police were attempting to locate a list of solicitors, the appellant stated that he was anxious, walked towards Detective Senior Constable Smith and pushed him to the chest. DSC Smith used his left hand and “check drilled” the appellant backwards in an attempt to avoid a confrontation. The appellant said “come on” and started walking towards DSC Smith who “check drilled” him for a second time. This caused the appellant to take a number of steps backward. The appellant placed both hands in a fighting stance in front of his body, as did DSC Smith. The appellant again said “come on”. DSC Smith and the other officers in the charge room forced the appellant to the ground, handcuffed his hands behind his back and placed him in the dock.

Drive whilst disqualified – s 166 CPA certificate

20. The appellant was disqualified from driving for a period of 2 years between 26 March 2015 and 25 March 2017.

The appellant’s subjective circumstances

21. The appellant was 42 years old when the offences were committed and 43 years old when sentenced. He did not give evidence during the sentencing proceedings; however, a report from Dr Richard Furst, a forensic psychologist, was tendered in his case.

22. The appellant’s background is provided in the psychologist’s report. In summary, he left school in Year 10 and worked as a painter for about 16 years on a full-time basis. He had an apparent onset of psychosis in 2002, hearing voices and having delusional ideation.

23. Dr Furst reported that the appellant had psychiatric admissions since that time and had been treated for schizophrenia with antipsychotic medication when in custody around 2013. Dr Furst understood that the appellant had been under the care of Dr Liber, a psychiatrist at the Bankstown Community Mental Health Team between 2014 and 2015.

24. The appellant told Dr Furst that he smoked cannabis on a regular basis between the ages of 23 and 33 years; that he used amphetamines in his mid-20’s and heroin and cocaine from his late twenties. He had stopped using heroin altogether at the age of 32 years and was not using drugs on a regular basis in the period prior to his arrest.

25. Dr Furst reported that the appellant had discontinued his prescribed antipsychotic medication Flupenthixol around March 2016. He had relapsed suffering from emotional distress, “hearing a lot of voices”. The appellant said his mood was up and down and that he was also feeling “cranky” about not being paid for painting work he had done for his friend. Dr Furst reported that the appellant “was acutely psychotic after his arrest, spending about 3-months in the MHSU at the MRRC”.

26. The appellant told Dr Furst that he was sorry for what he had done and had never meant to hurt anybody.

27. Dr Furst reported that the appellant has a lengthy history of psychosis, complicated by the effects of non-compliance with his medication, substance use, low intellectual function, and an unstable personality structure, including apparent impulsivity and poor interpersonal relationships. Dr Furst made the following diagnoses (DSM-5):

1. Schizophrenia; and

2. Substance use disorder.

28. Dr Furst was of the opinion that the appellant’s risk of re-offending was probably in the moderate – high range, commensurate with his clinical needs. He opined that the appellant will require assertive psychiatric, psychological and drug and alcohol treatment/management upon release.

29. When the offences were committed, the appellant was on conditional bail for an offence of goods in custody.

30. The appellant’s prior criminal history includes convictions for common assault, possession of prohibited drugs, robbery armed with an offensive weapon, aggravated robbery, damage to property, contravention of an apprehended violence order, entering enclosed lands, driving a conveyance without consent, assault occasioning actual bodily harm, stalking and intimidating. In March 2006, for an offence of robbery armed with an offensive weapon, the appellant was sentenced to imprisonment for 2 years 6 months with a non-parole period of 12 months. In November 2007, for an offence of aggravated robbery, the appellant was sentenced to imprisonment for 20 months with a non-parole period of 10 months. In August 2014, for an offence of driving a conveyance without consent, the appellant was sentenced to 8 months imprisonment with a non-parole period of 5 months. Other sentences of imprisonment include an offence of assaulting a law enforcement officer (not police) inflicting actual bodily harm for which the appellant was sentenced to imprisonment for 9 months with a non-parole period of 5 months on 26 August 2014.

Some findings by the judge

31. The judge said that she took the Form 1 offence into account at arriving at the indicative sentence for the aggravated robbery offence.

32. Her Honour observed that although there was no victim impact statement from Mr C, “…this unprovoked violent attack must have been an extremely frightening and confronting experience for him and one from which, at least emotionally it would be difficult to fully recover”. [1]

    1. ROS, 3.

33. Her Honour accepted that the offence was “…unplanned and committed impulsively for the reason [the appellant] gave Dr Furst, psychiatrist, that is, because he thought [Mr C] was a friend he had done work for but for which he had not been paid”. [2] However, her Honour did not consider the appellant’s reasons for the offence to be a mitigating factor and was troubled by its unprovoked nature.

    2. ROS, 3.

34. Her Honour accepted in the context of wounds, which can include serious stab wounds to major veins and arteries, that what Mr C suffered was less serious. Having regard to that fact, the brief duration of the offence and the unplanned nature of the attack, her Honour assessed the offence to be “…below the mid-range for offences of this kind, noting that it was an attempted offence rather than a completed offence”. [3]

    3. ROS, 4.

35. Her Honour found the offences to be aggravated as the appellant “was on conditional liberty at the time he committed them”. [4]

    4. ROS, 4.

36. The judge agreed with the Crown Prosecutor’s submission that:

“[The appellant’s] record shows that the present offence manifests a continuing attitude of disobedience to the law and so the need for retribution, deterrence and the protection of society all indicate a more severe penalty is warranted proportionate to the gravity of the offences.” [5]

5. ROS, 4.

37. However, the judge accepted that if the appellant’s mental health is stabilised he is much less likely to commit crimes.

38. Her Honour referred at length to Dr Furst’s report and accepted his opinion that it is more likely than not that the appellant had residual paranoid thinking, was unstable in his mood and was probably also suffering intermittent auditory hallucinations about the time of his offending. [6] Her Honour found that his schizophrenia “did contribute to the commission of the offences in a material way” and was satisfied that his moral culpability was reduced. [7]

    6. ROS, 9.

    7. ROS, 9.

39. The judge found that the appellant was an inappropriate vehicle for the full force of general deterrence and that a custodial sentence would weigh more heavily upon him. However, her Honour was satisfied that the appellant’s illness meant that if he did not remain medicated, he is more of a danger to the community.

40. The judge accepted that once the appellant’s mental health became stable, he felt some remorse for his offending.

41. The judge said that a minor degree of accumulation would be imposed in the aggregate sentence “to reflect the fact that there were two victims”. [8]

    8. ROS, 10.

42. Her Honour accepted Dr Furst’s opinion that the appellant would benefit from a longer period on parole, due to the need for “assertive psychiatric, psychological and drug and alcohol treatment management” and found special circumstances. The non-parole period was varied to be 65% of the head sentence.

Ground 1: The sentencing judge erred in that she:

(a) Failed to engage in an assessment of the criminality of the offences that were being dealt with under s 166 CPA;

(b) Set a starting point in relation to each of the offences that was erroneously excessive; and

(c) Failed to indicate how she took into account the Form 1 offence attached to the offence of aggravated assault with intent to rob.

Argument

43. The appellant submitted that the undiscounted starting points of the sentences for the s 166 offences were excessive. The appellant contended that the judge did not assess the criminality of these summary matters and argued that the judge may have contemplated the wrong maximum penalty for the offences of assault police and custody of a knife. The appellant referred to Judicial Commission Sentencing Statistics for Local Court sentences for these offences.

44. The appellant submitted that her Honour erred in failing to assess the objective seriousness of the summary offences and to articulate the manner in which she took into account the Form 1 offence.

Consideration

45. There is little merit in the appellant’s complaints. As has been frequently stated, the indicative sentences recorded by a judge are not themselves amendable to appeal “but may be a guide as to whether error is established in relation to the aggregate sentence”. [9]

    9. JM v R [2014] NSWCCA 297 at [40] (RA Hulme J).

46. The focus of the sentencing proceedings was on the aggravated robbery offence (Count 1) and the matter on the Form 1. Her Honour had indicated a sentence for Count 1 of 4 years 3 months (51 months) after applying a discount of 25%. The aggregate sentence including the s 166 summary offences was imprisonment for 4 years 4 months (52 months) – an increase of one month on the indicated sentence for the aggravated robbery. In these circumstances, it is difficult to understand how the appellant can complain that his sentences for assaulting police and custody of a knife were unjustifiably excessive.

47. In any event, I am not persuaded that the undiscounted starting points of 8 months for the indicated sentences for the offences of assaulting police and custody of a knife are erroneously excessive. Her Honour was entitled to take into account the appellant’s prior criminal history which included offences of violence and a conviction for assaulting a law enforcement officer as “manifesting a continuing attitude or disobedience to the law” [10] and increasing the weight to be given to retribution, deterrence and protection of the public. A further aggravating factor was that the appellant was on bail at the time of his offending.

    10. ROS, 4.

48. Her Honour’s findings on the appellant’s mental illness included that his moral culpability was reduced; he was an inappropriate vehicle for the full force of general deterrence and that a custodial sentence would weigh more heavily upon him. These findings were favourable to the appellant and consistent with the well-known principles referred to in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.

49. Her Honour’s conclusion that if the appellant did not remain medicated, he was an increased danger to the community was open upon the evidence and enhanced the need to give consideration to the protection of the public.

50. Although the judge did not refer in her ex tempore remarks to the maximum penalties for the offences on the s 166 certificate, the Crown’s written submissions detailed the relevant maximum penalties. The judge sentenced the appellant immediately following the sentencing proceedings. There is nothing to suggest that her Honour, an experienced sentencing judge, did not bear in mind those maximum penalties when delivering her sentencing remarks.

51. Another complaint is that her Honour did not articulate how she took into account the Form 1 matter. The judge expressly stated that the Form 1 matter was taken into account when she indicated the sentence for Count 1. Her Honour was not obliged to indicate how, or to what extent, she took the Form 1 matter into account when imposing the sentence for the principal offence. [11] Furthermore, the Crown’s written submissions referred to the guideline judgment in the Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002. [12] I have no doubt that her Honour was well aware of the sentencing principles that applied when taking the Form 1 matter into account.

    11. R v Sydney [2004] NSWCCA 63 at [34] (Beazley JA); Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [14]-[15] (Bathurst CJ)

    12. (2002) 56 NSWLR 146; [2002] NSWCCA 518.

52. This ground of appeal has not been established.

Ground 2: The aggregate sentence ultimately imposed was manifestly excessive in all the circumstances.

Argument

53. The appellant submitted that, there must have been some misapplication of principle, the precise details of which are not apparent from the judge’s reasons. The appellant contended that the principle of totality had been offended by virtue of the notional accumulation of the summary matters.

53. The appellant argued that any degree of notional accumulation was excessive as all offences occurred on the same day and were part of the same course of criminal conduct, he was suffering from mental illness at the time and the indicative sentences for the summary matters were themselves excessive.

54. Particular reference was made in oral argument to the appellant’s mental state at the police station and that he was “floridly psychotic”. [13] The appellant submitted that insufficient weight had been given to his mental health factors relevant to the assessment of objective seriousness, in particular of the summary offences and in respect of the notional accumulation of the penalties when imposing the aggregate sentence.

    13. Tcpt, 20 March 2019, 3(24).

55. The appellant’s counsel accepted that she had not criticised the indicative sentence for the aggravated robbery but submitted there should not have been any accumulation for the assault police as the overriding feature of this offence was that he was suffering from psychosis.

Consideration

57. This Court has often stated that to succeed on a ground where a complaint of manifest excess is made, the appellant must establish that the sentence was unreasonable or plainly unjust. [14] Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for an offence by balancing many different and conflicting features. [15]

    14. Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

    15. Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [27]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34].

58. It follows that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles, and appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. [16]

    16. Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].

59. A significant feature of this appeal is that the appellant makes no complaint about the indicative sentence for the aggravated robbery, the principal offence which includes the Form 1 matter, but founds the argument of manifest excess on the accumulation of the summary matters and the weight given to his mental health.

60. It has often been said in this Court that matters of weight are very much in the province of sentencing judges and the circumstances in which matters of weight will justify appellate intervention are narrowly confined. [17]

    17. Vaiusu v R [2017] NSWCCA 71 at [29]; Yang v R [2012] NSWCCA 49; (2012) 219 A Crim R 550 at [25].

61. The manner in which her Honour dealt with the appellant’s mental health was consistent with principle and open on the evidence (see [39]-[40] above). There is nothing in her Honour’s reasons which justifies appellate intervention.

62. Questions of totality, accumulation or concurrence are discretionary. [18] It is plain from the increase of one month on the indicated sentence for the aggravated robbery (see [47] above) that her Honour gave careful consideration to the principle of totality. The small measure of accumulation for the offences of assaulting police and custody of a knife were well within her Honour’s sentencing discretion.

    18. R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 at [52]; Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41.

63. The judge found special circumstances and reduced the statutory ratio between the head sentence and the balance of term to 65%.

64. The appellant has not established that the aggregate sentence was unreasonable or plainly unjust. Ground 2 of the appeal has not been made out.

65. It is for these reasons that I joined in the orders of this Court that leave to appeal be granted and the appeal be dismissed.

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Endnotes

Decision last updated: 15 April 2019