Pillay v Regina

[2006] NSWCCA 402

Reported Decision: 167 A Crim R 312

New South Wales

Court of Criminal Appeal

CITATION:	Pillay v Regina [2006] NSWCCA 402
HEARING DATE(S):	20 November 2006
JUDGMENT DATE:	15 December 2006
JUDGMENT OF:	James J at 1; Hidden J at 2; Hislop J at 3
DECISION:	1. Grant leave to appeal; 2. Allow the appeal; 3. Quash the sentence and in lieu thereof sentence the applicant to imprisonment for a non parole period of 5 ½ years commencing on 27 February 2004 and expiring on 26 August 2009 and a balance of term of 2 ½ years to commence on 27 August 2009 and expire on 26 February 2012. The earliest date on which the applicant will be eligible for release to parole is 26 August 2009.
CATCHWORDS:	Criminal law - Sentence - Application De Simoni principle - Application standard non parole period - Special circumstances - Sentence varied.
LEGISLATION CITED:	Crimes Act 1900 - ss 27, 33, 35 Crimes (Sentencing Procedure) Act 1999 - Div 1A
CASES CITED:	R v Mirzaee [2004] NSWCCA 315 Regina v Oinonen [1999] NSWCCA 310 Regina v Way (2004) 60 NSWLR 168 The Queen v Shrestha (1991) 173 CLR 48 at 71
PARTIES:	Applicant - Parmod Pillay Respondent - Regina
FILE NUMBER(S):	CCA 2006/1850
COUNSEL:	Applicant - Ms H. Cox with Mr A. Cassels Respondent - Mr W. Dawe QC
SOLICITORS:	Applicant - Legal Aid Commission of New South Wales Respondent - Director of Public Prosecutions (New South Wales)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/0206
LOWER COURT JUDICIAL OFFICER:	Knox DCJ
LOWER COURT DATE OF DECISION:	3 February 2006

- 1 -

2006/1850

JAMES J
HIDDEN J
HISLOP J

15 December 2006

Parmod PILLAY v REGINA

Judgment

1 JAMES J: I agree with Hislop J.

2 HIDDEN J: I agree with Hislop J.

Introduction

3 The applicant was charged on indictment that on 26 February 2004 he:

1. did wound Jogi Naidu with intent to murder him contrary to the Crimes Act 1900 s 27.

2. maliciously did wound Jogi Naidu with intent to do grievous bodily harm to him contrary to the Crimes Act 1900 s 33.

3. maliciously did wound Jogi Naidu contrary to the Crimes Act 1900 s 35.

4 The offences were charged in the alternative. A maximum penalty of 25 years imprisonment is applicable to breach of either section 27 or 33. A standard non parole period of 10 years pursuant to Division 1A of the Crimes (Sentencing Procedure) Act 1999 is applicable to an offence under the Crimes Act 1900 s 27 and 7 years in respect of an offence under the Crimes Act 1900 s 33.

5 On 11 October 2005 the applicant was found not guilty on count 1 but guilty on count 2. No verdict was taken on count 3.

6 On 3 February 2006 the applicant was sentenced in the District Court in respect of count 2 to imprisonment for a non parole period of 7 years commencing on 27 February 2004 and expiring on 26 February 2011 and a balance of term of 2 years and 4 months to expire on 26 June 2013.

7 The applicant has sought leave to appeal against that sentence. The grounds of appeal are:

1. His Honour erred in a finding of fact which amounted to a breach of the principles of De Simoni (1981) 147 CLR 383;

2. His Honour erred in failing to find special circumstances;

3. His Honour erred in imposing the standard non parole period pursuant to Division 1A of the Crimes (Sentencing Procedure) Act 1999;

4. The sentence imposed was manifestly excessive.

8 The sentencing Judge provided a summary of facts and evidence given in the trial in his Remarks on Sentence. In short:

(a) The applicant, who was 22 at the time of the offence, had been brought up in a Fijian Indian community outside Nadi, Fiji. He completed his schooling at age 18 and his studies included English in which he was reasonably fluent.

(b) He had progressed through the ranks of amateur boxing and had taken out a number of title fights in Fiji including one at the Fiji Games in the bantamweight division. The victim, also of Fijian Indian descent, had come to Australia many years previously. He was acquainted with the applicant’s family. On a visit to Fiji, the victim suggested that the applicant come to Australia to further his boxing career and his lifestyle. The applicant, at the victim’s suggestion, borrowed money from friends and relatives and came to Australia on a tourist visa.

(c) The applicant arrived in Australia in October 2003. He stayed with the victim who was a paraplegic. The applicant did not pay any rent to the victim, nor was any rent sought. The applicant had offered to pay the victim money for rent but the victim had told him to wait until he had established himself in Australia. The victim assisted the applicant to find employment in a cleaning business in Australia. The applicant did that job for some weeks.

(d) Their relationship degenerated after it came to the victim’s notice that the applicant had made telephone calls for which he had not paid the victim and the applicant had failed to repay cash advances made by the victim to him. Whilst the amounts of money involved were small, his Honour found they were relatively large to the victim, given his status as a pensioner. The victim left notes in the applicant’s room or around the house, where the applicant could read them. Those notes requested payment of the accounts.

(e) On the evening before the incident (which occurred in the early hours of 26 February 2004) the victim had gone out and had at least one beer. He came home and put on some music tapes.

(f) After about two or three hours the applicant came into the lounge room and asked the victim to turn the music down because he had to work the following day. That occurred at about 3am.

(g) The applicant went into the kitchen and came back with a carving knife. He was wearing dark leather gloves. When the victim said “What are you doing?” the applicant said “Do as I tell you. This is the last day of your living.”

(h) The applicant dictated what was described as a suicide note to the victim who complied. The applicant told the victim to start praying. The victim put some Hindu ash on his forehead. He was told by the applicant that he was going to die and to go to his bedroom and lay on his bed.

(i) The victim went to his bed. The applicant put the carving knife he was carrying on the cupboard and sat on the bed next to him. On the victim’s account the applicant started to choke him. There was a struggle. The applicant then pulled the victim’s left arm and with the carving knife sliced across his hand from the thumb side to his little finger side. There was a deep cut of between 4 and 7 centimetres. The victim felt a warm sensation. He said there was a lot of blood and a lot of pain. He thought he was going to bleed to death.

(j) After about 20 or 30 minutes, there was a further conversation, when it seemed the victim was able to persuade the applicant that he would not tell the police that he had tried to kill the victim. Thereafter, the applicant got the victim some water in a bowl on 2 or 3 occasions and assisted him bandaging the wound to his wrist. The victim asked to be taken to Liverpool Hospital. The applicant and the victim went outside the house and the victim directed the applicant to make contact with a neighbour. That neighbour was unable to assist and accordingly the two of them went to a nearby service station where a telephone call was made and an ambulance attended and took the victim to the hospital.

9 His Honour stated that the applicant’s account of the events was substantially similar to that of the victim. Where there was conflict in the evidence his Honour preferred the evidence of the victim.

10 The Crown case was that there was a plan by the applicant to make it look as though the victim had committed suicide. The applicant admitted in cross-examination that he had read an article in Fiji about a young person who had committed suicide by slicing his wrists. After the incident, the applicant also cleaned up the blood from the mattress, washed the sheets, hung them and the doona cover out to dry in the backyard. He also cleaned the knife and returned it to the kitchen with a group of other similar carving knives. The applicant said he was trying to teach the victim a lesson.

11 His Honour found:

It seems, in the light of the evidence … that considerable bad blood had been built up, although suppressed, for many months and those months while [the applicant] had been living with [the victim] in close quarters. I accept [the applicant’s] evidence that there may have been comments made by [the victim] about [the applicant], his mother and his family which precipitated the eruption of violence in the early hours of the morning of the incident, when taken into account the fact that music was being played which was clearly annoying to the applicant.

12 The victim’s injuries required surgery. The injuries were described by his Honour as:

… scarring on the wrist from the thumb to the little finger side of about six to seven centimetres in length … The majority of the tendons in the wrist were cut or damaged. Of the ten tendons in that area of the wrist only three were not damaged. There was a deep laceration and the cut to the wrist which may have been stopped by the bones. The lacerations had gone through the skin, the tendons and the artery.

13 In addition the evidence disclosed there was injury to the victim’s median nerve, that the victim’s dominant hand was his left which was the hand which was injured, and that his use of the hand was significantly impaired, a matter of considerable relevance as he is wheelchair bound.

The grounds of appeal

Ground One - His Honour erred in a finding of fact that amounted to a breach of the principles of De Simoni (1981) 147 CLR 383.

14 The High Court in De Simoni held at 389:

… a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

15 The applicant submitted His Honour in his Remarks on Sentence, transgressed the principle in De Simoni when he made the following comments in his Remarks on Sentence:

(a) [The applicant] also gave evidence that while or before the victim was writing the suicide note, he, [the applicant], slapped him across the face a number of times to ensure that [the victim] thought he was serious. I do not accept that evidence. In my view, what was done was done to terrorise [the victim] and to ensure that he, [the victim] wrote the note as it was dictated for the purposes that [the applicant] clearly had.
(b) It was only after [the victim’s] wrist wound did not bleed – it would seem by virtue of the spontaneous closure of the artery – that it became clear to the [applicant] that the [victim] was not going to die. That was evident from the fact that the [victim] was able to continue conversing with the [applicant]. It seems that at that stage, the [applicant] thereafter changed his mind and he assisted the victim to bandage his wrist and travel out of the house, initially to the neighbours and then to the service station, where he was ultimately able to obtain some medical assistance.

(c) In terms of the aggravating factors, in my view, the facts indicate there was a level of pre-meditation and planning of the offence. This included the [applicant] having thought out the plan to have the victim write a suicide note out at the [applicant’s] direction to make it appear that it was a suicide and to intimidate the victim into writing the note as directed.

16 These remarks appear to be consistent only with an attributed intention to murder the victim. Accordingly, notwithstanding his Honour’s referral, correctly, in the Remarks on Sentence to the terms of the jury verdict and his findings consistently with that verdict it does appear that in determining the application of the standard non parole period he had regard to aggravating factors contrary to the principle in De Simoni. Accordingly I uphold this ground of appeal.

Ground Two - His Honour erred in failing to find special circumstances.

17 Notwithstanding an offence under the Crimes Act 1900 s 33 is subject to a standard non-parole period pursuant to Division 1A of the Crimes (Sentencing Procedure) Act 1999 there remains a role for special circumstances under s 44 of that Act. While many of the factors which qualify as special circumstances will be taken into account as factors specifically listed in s 21A in determining the appropriate non-parole period, it does not necessarily follow that its work its fully done at that stage, although caution will need to be exercised to avoid inappropriate double counting - Regina v Way (2004) 60 NSWLR 168 at [109] and [110].

18 His Honour in his Remarks on Sentence said:

I then turn to the question of special circumstances. I was informed that [the applicant] is currently on a criminal justice visa and it is likely that he will be deported from Australia at the end of his sentence and indeed, at the end of his non parole period. The prospect of any supervision in Australia at the end of his custodial sentence is, therefore, non existent. The issue arises as to whether he should receive the benefit of any variation to the statutory ratio and to ensure that he is treated in the same way as any other offender.

19 The applicant submitted in his written submissions that his Honour decided that due to the likelihood of the applicant’s deportation and therefore the absence of the supervision of the New South Wales Probation and Parole Service, there was no basis warranting a departure from the statutory ratio and that such conclusion was contrary to The Queen v Shrestha (1991) 173 CLR 48 at 71 and R v Mirzaee [2004] NSWCCA 315 at [20]-[21].

20 This submission in my opinion is misconceived. His Honour’s remarks are to be read as raising two matters, firstly the issue whether there should be any variation of the statutory ratio at all and secondly to ensure the applicant was treated in the same way as any other offender notwithstanding that it was likely that he would be deported from Australia. That this was his Honour’s position is made clear from the exchanges during the sentencing hearing see (Transcript 11 October 2005 at 5/35):

His Honour: … his criminal justice visa will come to an end and he will be deported immediately, but he is entitled to be considered for the provisions of the adjustment to the statutory ratio as would any other person in his position regardless of the impact of that matter. See also (Transcript 11 November 2005 page 28/50)

21 The reason his Honour refused to make the finding of special circumstances was not that there was a likelihood of deportation but because:

… in the circumstances, particularly in the absence of any available evidence, I do not see any basis on which I can make a finding that special circumstances exist which would warrant a departure from the statutory formula.

22 However, there was evidence of factors which could be regarded as constituting special circumstances. These were referred to in the applicant’s submissions on sentence and comprised special hardship to the applicant in custody given he was a foreign national who has few friends and no family in the country; that this was his first prison sentence; his minor criminal record; his relative youth; his good prospects of rehabilitation; his low to moderate likelihood of re-offending; degree of remorse; and co-operation within the gaol system. The fact that the applicant provided some assistance to the victim after the event was, his Honour said, to the applicant’s credit, presumably evidencing some contrition. However his Honour had found the assistance followed the victim agreeing he would not tell the police the applicant had tried to kill him.

23 His Honour’s statement that there was an absence of any available evidence to provide a basis for a finding of special circumstances was erroneous.

Ground Three - His Honour erred in imposing the standard non parole period pursuant to Division 1A of the Crimes (Sentencing Procedure) Act 1999.

24 As previously stated, the statutory non parole period for an offence under Crimes Act s 33 is 7 years. This represents the non parole period applicable to an offence in the middle of the range of objective seriousness.

25 In Regina v Way (2004) 60 NSWLR 168 at 191-2 this Court held:

117 In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: “are there reasons for not imposing the standard non-parole period?”

118 That question will be answered by considering:


(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;

(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1).

119 Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply.

120 Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period.

121 If the question, which we consider should be posed, is answered in the affirmative, then it seems to us that the Court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in sections 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act .

26 The Court in Way construed “objective seriousness” at [85] –[93]. His Honour held as to the objective seriousness of the offence that the offence was at least at the mid range scale of gravity. The applicant, in his written submissions, stated:

His Honour determined the offence fell into the mid range of objective circumstances and no challenge is made to the finding.

27 However the applicant submitted there was error by his Honour in his consideration of the matters referred to in paragraph 118(ii) of Way’s case by reason that his Honour failed to take into account the matters referred to in [22] above.

28 His Honour held in that regard:

The accused is a relatively young man. He has got no offences in this country, at least of a relevant nature, but nothing else that was put to me – and I take into account the submissions that were made – that seems to me to be sufficient to warrant a departure from the guideline established by the legislature which has been the subject of various Court of Criminal Appeal decisions in this State.

29 I respectfully disagree with his Honour that such matters did not warrant a departure from the standard non parole period. The issue was compounded by his Honour taking into account aggravating features which implicitly involve an intention to murder.

30 A further basis for departing from the standard non parole period was put. This was the applicant’s second trial for these offences, the first trial not having completed. The applicant apparently had made an offer to plead guilty before the first trial to the offence of which he was ultimately convicted. The applicant submitted that the offer of a plea of guilty should have been taken into account by his Honour in determining whether there were reasons for not imposing the standard non-parole period. The applicant relied upon Regina v Oinonen [1999] NSWCCA 310 where this Court held:

[15] … There has been a long practice, however, in this court and in trial courts to take into account the offer of a plea of guilty which matches the crime for which a person is ultimately convicted.

[16] The offer of that plea of guilty or, in usual circumstances, the actual plea of guilty, is of benefit to the person charged broadly in two ways: It is taken as an indication of remorse and contrition for the offence committed and, second, there is what is described as the utilitarian value of the plea; this includes the relief of the State from having to call witnesses and, indeed, the reliefs to the various witnesses of the burden of having to give evidence and potentially being cross-examined.

31 His Honour said as to this matter:

…However, [the first] trial terminated for other reasons and on the second trial there was no similar plea made along those lines. It has been put on behalf of the [applicant] that was an ongoing situation. Nevertheless, the clear option available to those representing the [applicant] in those circumstances was to enter that plea before the jury on that second occasion … What was also clear was that all counts were in issue on the second trial and that what was also run was a defence of self defence in those circumstances. It was also an aspect of the conduct of those proceedings that the [applicant’s] evidence (and case) was to be that he was, essentially, brought to Australia and he was, if not in a situation of being trapped, certainly subject to enormous pressure by an arrangement by [the applicant] and others.

32 His Honour concluded:

I have considered this matter, particularly as it does seem to me to be one of the few relevant mitigating factors available to the offender, but it does not seem to me that there has been any real benefit to the total criminal justice system. I include in that, not only the Court and the jury, which had to go through a full trial, but also to the police, DPP and the Crown and the calling of all witnesses. Relevantly also [the victim] had to give evidence which was the source of some considerable discomfort and angst to him.

33 In the present case it is not possible to conclude from the available facts that the offer remained outstanding at the time of the second trial. The legal representatives who made the offer had ceased to represent the applicant during the running of the first trial. His Honour made no finding that the offer was outstanding at the time of the second trial. The absence of satisfactory evidence that the offer of a plea of guilty to count 2 remained open up to the time of the second trial distinguishes this case from Regina v Oinonen.

34 Additionally whether a discount is given for a plea of guilty is discretionary. In the circumstances his Honour’s decision not to allow a discount was within the bounds of a sound discretionary judgment and does not demonstrate error. I would reject this ground of appeal.

Ground Four - The sentence imposed was manifestly excessive.

35 The applicant’s written submission in this regard was that:

taking into account the matters argued in support of the previous grounds of appeal, overall his Honour, notwithstanding the seriousness of the offence, imposed a sentence, which was manifestly excessive in the circumstances.

36 At the hearing reference was made to a table of cases and Judicial Commission statistics. The statistics establish that since 1 February 2003 5 out of 11 cases of breach of the Crimes Act 1900 s 33 have resulted in a sentence of a non parole period of 7 years imprisonment or greater. In my opinion this evidence did not materially assist the argument that the sentence imposed upon the applicant was manifestly excessive or such that some other, less severe, sentence was warranted in law and should have been passed.

37 As I have upheld some of the previous grounds of appeal it is unnecessary to separately consider this ground.

Conclusion

38 In my opinion there was evidence which his Honour could and should have taken into account in relation to the application of the standard non parole period and special circumstances. That evidence is outlined in paragraph [22] above. His Honour also on occasions erred in implicitly ascribing an intention to murder to the applicant contrary to his and the jury’s findings. The matters referred to at [22], properly considered, should have resulted in a reduction of the standard non parole period.

39 In my opinion a sentence less severe was warranted in law. The sentence which should have been passed was a non parole period of 5 ½ years with a balance of term of 2 ½ years.

Orders

40 I propose the following orders:

1. Grant leave to appeal;

2. Allow the appeal;

3. Quash the sentence and in lieu thereof sentence the applicant to imprisonment for a non parole period of 5 ½ years commencing on 27 February 2004 and expiring on 26 August 2009 and a balance of term of 2 ½ years to commence on 27 August 2009 and expire on 26 February 2012. The earliest date on which the applicant will be eligible for release to parole is 26 August 2009.

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