R v Azzopardi
[2000] VSCA 151
•22 August 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 69 of 2000
| THE QUEEN |
| v. |
| ANTHONY AZZOPARDI |
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JUDGES: | PHILLIPS, C.J., CALLAWAY and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 August 2000 | |
DATE OF JUDGMENT: | 22 August 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 151 | |
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CRIMINAL LAW – Sentencing – Common assault, false imprisonment, indecent assault (three counts), intentionally causing injury, threatening to kill and stalking – Sentence of three-and-a-half years' imprisonment with non-parole period of 18 months not manifestly excessive.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. McArdle, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | In person |
PHILLIPS, C.J.:
The applicant, who is aged 43, pleaded guilty in the County Court at Melbourne on 14 March last to one count of common assault (count 1 on the presentment); one count of false imprisonment (count 2); three counts of indecent assault (counts 3, 4 and 6); one count of intentionally causing injury (count 5); one count of threatening to kill (count 7) and one count of stalking (count 8).
These offences were committed in June and July 1999 at Frankston and, save for count 8, were committed in the home of the victim, a woman, on 16 June. They carried maximum penalties of five years’ imprisonment (count 1), and ten years’ imprisonment for the remaining counts.
After hearing a plea for leniency, the judge sentenced the applicant as follows, three months’ imprisonment (counts 1 and 2); two years’ imprisonment (counts 3, 4 and 6); six months’ imprisonment (count 5); eight months’ imprisonment (count 7) and 12 months’ imprisonment (count 8). His Honour directed that six months of the sentences on counts 4, 6 and 8 be served cumulatively upon each other and upon the sentence on count 3 making for a total effective sentence of three and a half years’ imprisonment. A non-parole period of 18 months was fixed and a declaration made of 75 days pre-sentence detention. The applicant admitted a number of prior convictions incurred between June 1977 and July 1994. Nearly all were drug related and there were none for offences of violence or offences committed against women. In April last the applicant, through his solicitors, lodged notice of application for leave to appeal against sentence pleading the sole ground that the sentence was manifestly excessive.
On 16 June, an application was made to the Registrar to extend the time wherein the applicant might lodge a notice of application for leave to appeal against conviction. The Registrar refused this application. On 22 June, an application was made to this Court pursuant to s.579 of the Crimes Act for bail pending the hearing of the application for leave to appeal against sentence. He also sought an extension of time during which he might lodge a notice of application for leave to appeal against his conviction. The Court, Winneke, P. and Phillips, J.A., refused both these applications.
It is now necessary to set out, in summary form, the facts of the applicant’s case as found by the learned sentencing judge.
Through an introductory service, the applicant met his victim in May 1999 and had some conversations with her in which he offered to assist her with jobs around her home. He did work of this sort for her. On the occasion of the offences the subject of counts 1 to 7, he called without invitation at her home in the early hours. She allowed him to sleep on a couch after he said he felt sleepy and could not drive home. He committed those offences some time after 5.00 a.m. He then approached the victim who was in her kitchen and told her he wanted to make love to her. She told him that she didn’t want to and asked him to leave which he refused to do. He became aggressive, took hold of her and dragged her into her bedroom telling her he was going to “fuck her”. A struggle took place and the applicant slapped her around the face (count 1). At that stage the victim was on or near the bed. He dragged her and forced her into a wardrobe (count 2). He entered the wardrobe and whilst in it indecently assaulted her by taking her pyjama top off and biting her lips and nipples (count 3) He then took her to a bathroom where he assaulted her by holding her head towards his penis (count 4). In the course of that conduct he struck her again several times (count 5).
After these events, the victim kicked him in the groin and after a further struggle she was enabled to leave the bathroom. The applicant then grabbed her by the pyjamas and dragged her into the bedroom where she was placed on top of the bed. He lay on her naked (count 6). The victim tried to ring the police, but the applicant prevented her. The applicant started to cry and said to her that he was going to turn himself in and she may as well call the police, but as he left the house he said to her “you are my woman and nobody else is to have you. If you dare go to the police I’ll kill you” (count 7) .
The complainant did report the matter to the police on 16 June and the applicant was charged on the following day. He was granted bail with a condition he not contact the victim. Between 15 June and 6 July, he made a number of phone calls to her and save for one occasion did not speak (count 8).
I now turn to events on the applicant’s plea.
As is usual, the Crown Prosecutor opened the case to the learned judge substantially in terms of the judge’s findings recited above making frequent references to depositional material which was before his Honour. The applicant’s counsel did not gainsay the opening address. Referring to a record of interview made by the applicant with the police, counsel said, “The nitty gritty of the record of interview is that he essentially admits those matters that he’s pleaded [to before] Your Honour today … .” Counsel did say that the applicant disputed another count, assault with intent to rape, which was not being proceeded with.
Counsel, in exchanges with the judge, put some of his instructions to his Honour saying that, prior to the events the subject of the presentment, the applicant and the victim had talked about “all sorts of matters of intimacy”. As a result of this, counsel told the judge his client had “expectations”, but not necessarily expectations of sex as such. Counsel allowed that he was “deliberately not saying that the victim has herself done something and therefore fault lies in her in terms of his turning up.” At one point the judge remarked, “She did say no to him when he arrived, that’s the essential evidence”. Counsel responded, “That’s true”. Counsel tendered a report of a Dr Tofler dated 9 March 2000 (Exhibit “1”). In this report, the doctor offered the opinions that the applicant had features of a disordered personality with anti-social traits and traits of an explosive personality. The doctor noted the applicant’s recent attempts at anger management, expression of remorse in the applicant and his stable non-volatile relationship with Ms Tsaousidis. Counsel, again putting instructions, explained to the judge that the reason why the applicant had called at the house was that it had been trashed by the victim’s ex-husband at some earlier date. Counsel remarked “Well, he brought a trailer around”.
Counsel then proceeded to give an account of the applicant’s prior life to his Honour and then turned to the police investigation saying, “It would appear that he admitted it pronto in relation to the questions that were put to him whilst in the car.” Putting his instructions as to the stalking count and the circumstance that the applicant didn’t speak on the phone, counsel told the judge “he was hoping … that she’d realise it was him and … he wanted her to speak first”.
Counsel explained to the judge that after the applicant’s arrest he met a lady named Georgina Tsaousidis who began a relationship with him and, prior to calling this lady to give evidence, counsel informed the judge that the applicant had been seeing a psychiatrist and had attended an anger management group.
Ms Tsaousidis described her relationship with the applicant and expressed the view that in part the case pivoted about the applicant’s anger as to which he had been honest with her. He had also been honest about his past. He had obtained a job. He was enthusiastic about working. She declared that she and the applicant were very close and that she would like to pursue the relationship which was very important to her.
Counsel then called the applicant’s brother, Martin, an architect. He said that his brother had a history of involvement in illicit drugs from a young age, but had freed himself from heroin by going on a methadone programme. He said that his brother who was a “giver” and who did things for people had had a number of relationships. He did get angry, however. He thought his brother and Ms Tsaousidis cared for each and stood by each other.
Counsel then addressed his Honour pointing out the applicant had no prior convictions for violence and, referring to his prior drug involvement, allowed that his personality disorder did not come under the banner of mental illness. Counsel accepted that the applicant had invited himself to the house, had got “carried away with the occasion” and that his telephoning of the applicant had a touch of obsessiveness. Counsel also accepted that the victim had been cross-examined at the committal, but not by way of contradiction of her version.
As his final submission, counsel contended that his client had misunderstood or not appreciated “the realities in terms of this particular female.” Counsel asked that should a custodial sentence eventuate it should be suspended, adding, “So I’m conceding gaol in the sense that violence upon a woman in her own home is not on, grabbing her breasts and so forth, it is – it’s certainly not acceptable.”
Counsel said several times that he conceded a custodial sentence was appropriate but pressed for its entire suspension. He allowed the matters were serious.
While speaking thus to the judge it is of some significance that counsel was quick to correct what he saw as misstatement of the facts. Thus, when the judge referred to “the fact that he locks her up in a wardrobe”, counsel immediately responded, “He’s in the wardrobe with her”.
I have referred to the conduct of the applicant’s counsel on the plea in the above detail because at various times in addressing this Court the applicant said of his counsel that he “didn’t know the full story” (17) and “only browsed through it” (17) and alleged that he, the applicant, “wasn’t given the opportunity” to discuss the count of false imprisonment (26), adding that his counsel “hardly gave me any chance to speak at all” (27) and that counsel “did all the talking and reading” (27 - 28). I am obliged to say that I can find nothing in the transcript of the plea to support these allegations.
My second reason for descent to detail as to events on the plea lies in the circumstances that at intervals during his address the applicant referred to “the lies” (4) “exaggeration [or] misinformation” that the judge was given (5), “falsehood” (5), “falsehoods” (8) and declared “she [the victim] had exaggerated and lied throughout this thing” (45).
At other points in his address the applicant denied that the victim had been in the kitchen (6), alleged he had spoken to the complainant about sexual matters before 16 June (10), alleged that after the events at the house there was an understanding between them that the victim would not go to the police and that he had no intention of having sex with her (12 and 13). He denied that he said he was going to “fuck” her (14) and alleged that it was she who first made contact on that night (14). He also denied locking her in the cupboard, holding her head to his penis, biting her on the nipples, indecently assaulting her on the bed (23) and dragging or forcing her into the wardrobe (26). He denied making any threat to kill or that she kicked him trying to get away (34 - 35) and denied that he brought a trailer to her home (36).
The transcript of this application, which we shall direct be kept unrevised on the Court file, shows that on a number of occasions it was conveyed to the applicant that he had pleaded guilty and that, save as indicated above, the evidentiary material which gave rise to the judge’s findings of fact had not been challenged in the Court below. I believe he was given very considerable licence.
In so far as the applicant spoke relevantly to the proceedings before the Court, I take him to be inviting the Court to identify the circumstances relevant to his case and then examine his sentence in order to determine whether ground 1 is made out. In the resolution of this application, I have taken into account the transcript of the plea, the exhibits which included a psychiatric report by Dr Tofler and a reference favourable to the applicant (Exhibit “2”). I have also taken into account the victim impact statement read by the judge and a reference supplied to this Court by Ms Tsaousidis dated 16 August 2000 in which she describes the applicant and their relationship in very favourable terms. If I may say so, she is obviously a loyal and loving companion of the applicant. I have also taken into account a report of Dr Walton, a consultant Psychiatrist dated 6 September 1999, (46, 50).
Dr Walton doubted the applicant was suffering from any formal mental illness, but felt he had a personality disorder. He thought that the applicant had a past history of substance abuse which had led to a diagnosis that he was psychotic, but found no evidence of any substance related mental disorder relevant to his instant offences.
He thought the applicant able to make some expression of remorse and, noting his lack of similar prior convictions, found this reassuring in terms of his re-offending in a precisely similar fashion.
It is for the applicant to show that the sentence imposed fell altogether outside the range properly available to the learned judge. I am unpersuaded that it did, giving full weight to matters personal to the applicant. With the exception of the last count, these were offences committed on a woman in her own home and in my view the learned judge inevitably described the applicant’s behaviour as “audacious, cruel and degrading”, adding that it “paid no respect to the dignity of [the] victim”.
In my opinion, this application should be dismissed.
CALLAWAY, J.A.:
The circumstances in which this application came before the Court are described by the learned Chief Justice in his Honour's reasons for judgment. I listened carefully to the points made by the applicant and asked questions with a view to discovering whether there was a complaint that a lawyer would have made on his behalf. Like the other members of the Court, I was acutely conscious of his being unrepresented. Nothing was said, nor have I detected anything myself, that would warrant appellate intervention. The starting point must be that the applicant pleaded guilty to these offences and that the learned sentencing judge properly had regard to the depositional material. I, too, would dismiss the application.
BUCHANAN, J.A.:
Having heard the applicant and examined the transcript of the plea, the documents tendered during the course of the plea and the materials provided to this Court, I can detect no error in the reasons of the sentencing judge. I agree that the application should be dismissed.
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