R v Domarecki

[2016] SASCFC 67

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DOMARECKI

[2016] SASCFC 67

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Lovell)

2 June 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES

Application for permission to appeal against sentence. The applicant was charged with the offence of causing harm with intent to cause harm, pursuant to section 24(1) of the Criminal Law Consolidation Act 1935 (SA). The commission of the offence caused the applicant to breach a bond to be of good behaviour which had been imposed for the offence of driving whilst disqualified. The bond required the applicant to come up for sentence in the event of breach.

On 8 February 2016, the applicant was sentenced by a District Court Judge to three weeks imprisonment for the earlier offence of driving whilst disqualified and two years, nine months and two weeks for the offence of causing harm with intent to cause harm. The sentences included allowances for the applicant’s early pleas of guilty. The Judge ordered that the two sentences were to be served cumulatively, such that the total period of imprisonment was two years, ten months and one week, with a non-parole period of 18 months.

The applicant was refused permission to appeal by an Auxiliary Justice of this Court. The applicant pressed his application for permission before the Full Court on two grounds: that the sentence imposed with respect to the cause harm offence was manifestly excessive; and that the Sentencing Judge erred in not exercising the discretion to suspend the sentence.

Held per Nicholson J (Parker and Lovell JJ agreeing), dismissing the application:

1. Neither the head sentence nor the non-parole period for the cause harm offence, imposed by the Judge, was manifestly excessive.

2. There was no error by the Judge in refusing to exercise the discretion to suspend.

Criminal Law Consolidation Act 1935 (SA) s 24; Criminal Law (Sentencing) Act 1988 (SA) s 10B, s 10C, s 38; Supreme Court Act 1935 (SA) s 48; Supreme Court Criminal Rules 2014 (SA) r 120, referred to.
R v Jongewaard [2009] SASC 346; The Queen v Morse (1979) 23 SASR 98; Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; R v McPhee [2014] SASCFC 107; R v Ireland [2012] SASCFC, (2012) 114 SASR 438; R v McLean [2013] SASCFC 144, (2013) 118 SASR 280, considered.

R v DOMARECKI
[2016] SASCFC 67

Court of Criminal Appeal:   Nicholson, Parker and Lovell JJ

NICHOLSON J.

Introduction

1. Shortly after midnight on 6 July 2014, Maximillian John Domarecki (the applicant) committed the offence of causing harm with intent to cause harm.[1]  The commission of the offence caused him to breach a bond to be of good behaviour and to come up for sentence in the event of a breach.  The bond was imposed on 24 February 2014 for the offence of driving whilst disqualified.

   [1] Contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA).

2. On 8 February 2016, the applicant was sentenced by a District Court Judge to three weeks imprisonment with respect to the drive disqualified offence and two years, nine months and two weeks imprisonment with respect to the cause harm with intent offence, after all due allowances were made for early pleas of guilty.[2]  The two sentences were ordered to be served cumulatively such that the total sentence imposed was two years, ten months and one week.  A non-parole period of 18 months was fixed. 

   [2]    For each offence, the applicant was entitled, according to section 10B and section 10C, respectively, of the Criminal Law (Sentencing) Act 1988 (SA), to a discount of up to 30 per cent. The Judge allowed the maximum discount available.

3. The applicant has sought permission to appeal. An Auxiliary Justice of this Court refused permission but the application, by request of counsel for the applicant, has been referred to the Full Court for determination in accordance with section 48(4) of the Supreme Court Act 1935 and rule 120 of the Supreme Court Criminal Rules 2014.  The applicant seeks permission to appeal on the following grounds. 

   (i)The sentence imposed by the learned Judge was manifestly excessive; and

   (ii)The learned Judge erred in not exercising his discretion to suspend.

   Circumstances of the offending

4. The applicant was at a nightclub on North Terrace.  He admitted to the police in his record of interview that he had consumed two to four alcoholic drinks at the nightclub prior to the incident in question but as many as eight drinks in total over about five hours during the evening.  The victim indicated, in his statement to the police, that he also had consumed about eight alcoholic drinks during the evening in question.  The Judge in his sentencing remarks described the victim as intoxicated but said nothing in this respect about the applicant.  The notion of intoxication can mean many things and it is, of course, a variable standard.  In any event, it is safe to assume that both parties must have been, to some degree, affected by alcohol. 

5. CCTV security camera footage from the nightclub shows the victim entering the male toilet at a time recorded as 12:37:19 am and the applicant leaving the toilet at a time recorded as 12:38:07 am.  It can be inferred that the victim and the applicant were in the toilet together for approximately 48 seconds.  Soon after the applicant exited the toilet, he left the nightclub premises.  The victim was later found on the floor of the toilet.  The security staff moved the victim to a couch outside the toilet.  He was later found to have suffered severe head injuries.  The victim has no recollection of events during the period between his entering the toilet and his being on the footpath outside the nightclub while being attended to. 

6. The victim’s injuries included multiple facial fractures including to his right eye socket, right cheek, nose and jaw.  The victim required surgery with the insertion of plates and screws.  He was discharged from hospital on 11 July 2014 but has required ongoing out-patient review. 

7. When the police first interviewed the applicant at his home at about 9 am some eight hours or so after the incident, he admitted having been at the nightclub but denied being involved in any fight or arguments.  He said that he had no recollection of going to the toilet. 

8. It was not long before a combination of the security footage and a DNA comparison between the victim’s DNA profile and DNA found in a blood stain on the applicant’s clothing provided the police with a strong case to the effect, at least, that the victim’s injuries had been caused by the applicant.  The applicant was arrested on 15 July 2014 and declined to answer further questions.  However, in time, the applicant acknowledged his involvement.  Once the prosecution agreed to downgrade the original charge of causing serious harm with intent to cause serious harm to the charge of causing harm with intent to cause harm, the applicant promptly pleaded in the Magistrates Court in circumstances which entitled him to a discount of up to 30 per cent with respect to any prison sentence imposed.  In the circumstances, particularly given that the victim had no recollection of the incident, the downgrading of the charge by the Director of Public Prosecutions was, with respect, understandable.  Whilst the harm suffered by the victim was almost certainly to be characterised as serious harm, it is not immediately apparent that the prosecution would be able to prove beyond reasonable doubt an intention to cause serious harm as distinct from an intention to cause basic harm or perhaps recklessness with respect to serious harm. 

9. After his arrest, the applicant was examined by a forensic psychologist, Dr Norman Barling.  The applicant provided Dr Barling with an account of what took place in the toilet.  This account was not challenged by the prosecution and was accepted by the Judge as the factual basis for sentencing.  The account was in these terms.

   He reported that he entered the male toilet which was empty in front of the urinal.  Soon after a man entered the bathroom and stood behind him and to the side, staring at him.

   Mr Domarecki reported that he spoke to the man saying words to the effect “are you right mate?” but received no reply.  He reported that he asked again if the man wanted something.  The man continued to stare so Mr Domarecki turned around and said “have you got a problem?”  He reported that the man mumbled something and moved towards him. 

   Mr Domarecki reported that he felt threatened and moved towards the bathroom exit but the man was between him and the exit.  Mr Domarecki reported that he panicked, thinking the man was going to assault him, so he hit out first punching the man with his right hand and then hitting him twice again as he spun around.  The man fell to the floor and Mr Domarecki exited the bathroom. 

10. As far as the drive disqualified offence is concerned, the applicant had been disqualified from driving for the period between 13 February 2013 and 12 May 2014 as a result of loss of demerit points.  On 19 November 2013, he was stopped whilst driving a vehicle on Military Road, Semaphore.  The applicant told the police that he knew he had been disqualified and that his driving was not on the occasion of any emergency.  His reason for driving was “to drop his friend off at Semaphore”. 

    The applicant’s personal circumstances and background to the offending

11. In addition to counsel’s submissions, the materials before the sentencing Judge included a criminal antecedent report, psychological reports by Ms Karen Gates dated 16 August 2010, Dr Norman Barling dated 9 July and 30 July 2015 and Mr Mark McHugh dated 16 November 2015 (including a supplementary report by email of the same date) and various character references.

12. The applicant was 21 at the time of the offending.  He had previously committed some relatively minor criminal offences, the most serious of which would appear to have been the drive whilst disqualified offence already mentioned and a basic offence of theft which was dealt with without conviction and a fine of $200.  The cause harm with intent offence was committed whilst the applicant was subject to and in breach of a bond to be of good behaviour with respect to the drive whilst disqualified offence; an aggravating feature.

13. In February 2009, when the applicant was 15 years old, he was the victim of a vicious assault which led to his suffering, over the years, psychological sequelae, including high levels of anxiety, flashbacks, sleep difficulties, loss of self-confidence, decreased motivation, increased anger and aggression and social withdrawal.  In her 2010 report, the psychologist, Ms Karen Gates, recommended that the applicant undertake regular (approximately weekly) psychological treatment.  It was her expectation that the applicant would make a good psychological recovery should he receive appropriate treatment and support. 

14. As it happened, the applicant did not seek any psychological treatment or assistance until after he was arrested and charged with the offending now under consideration.  Some treatment has now been provided by the clinical psychologist, Mr Mark McHugh, to whom the applicant was referred in March 2015.  The applicant failed to attend the first appointment.   In all, he attended six scheduled appointments between 19 March 2015 and 7 July 2015 but failed to attend seven scheduled appointments.  Both Dr Norman Barling and Mr Mark McHugh are of the view that the applicant continues to suffer from a chronic post-traumatic stress disorder which Mr McHugh described as severe and that, as a consequence, the applicant has an increased level of hypersensitivity, hyperarousal and hypervigilance.  According to Mr McHugh, these features of his current presentation may well predispose him to “an immediate reactive response to arousal of threat”. 

15. Mr McHugh expressed the opinion, as his treating clinical psychologist, that whilst the applicant would benefit from psychological treatment he has been resistant to it.  Both Dr Barling and Mr McHugh were of the view that a custodial sentence would exacerbate the applicant’s psychological problems because of the constant exposure to a threatening environment. 

16. It can be accepted that the applicant is in need of continued psychological therapy along the lines recommended by Ms Gates and Dr Barling and offered by Mr McHugh.  It can also be accepted that the type and frequency of therapy said by those professionals to be indicated is unlikely to be available to the applicant whilst in custody.  Left untreated, the applicant may well be a continuing danger to members of the community. 

17. As such, it is in the long term interest of the general community that steps are taken to assist with the treatment and rehabilitation of the applicant.  This is plainly an important consideration when it comes to determining the appropriate sentence for what was undoubtedly very serious offending.  It is a consideration that was front and centre before the sentencing Judge and strongly pressed by the applicant’s counsel on appeal. 

18. However, the weight to be given to this consideration, the applicant’s prospects for rehabilitation generally and how best to achieve that rehabilitation, must be tempered by the facts that he did not seek any psychological treatment until after he had been arrested, some five years after Ms Gates had made what can only be described as a strong recommendation, and that when he did seek assistance, no doubt driven to some degree by the parlous position he had found himself in following arrest, he did not pursue the treatment offered with diligence. 

19. Another consideration before the Judge was that the applicant, after having been assaulted in 2010, became interested in and undertook training in martial arts.  Indeed, earlier in the evening only hours prior to the incident, the applicant had performed in a Muay Thai demonstration performance and sparred for about 15 rounds.  He told Dr Barling that he didn’t really want to go to the nightclub because he was tired but had been persuaded by a friend to go.  Dr Barling expressed the opinion that, as a result of this recent sparring, the applicant was “more ‘attuned’ to facial cues and body cues of threat and that he perceived them in the face and stance of the person who was threatening him in the toilet”.

    The Judge’s approach to sentencing

20. The considerations taken into account by the Judge, as disclosed in the sentencing remarks, included:

    (i)the maximum penalty for the offence of causing harm with intent to cause harm - imprisonment for ten years;

    (ii)the circumstances of the offending as described to Dr Barling;

    (iii)the nature and seriousness of the injuries caused to the victim and the circumstances in which the offence came about as earlier outlined;

    (iv)the fact that the applicant fled from the nightclub so as not to be detected and made early denials of any involvement;

    (v)the fact that assaults in licensed premises, with the now well understood consequential danger of persons hitting their heads and suffering severe brain damage or even death, are becoming more prevalent;

    (vi)the post-traumatic stress disorder suffered by the applicant as described in the psychological reports and the potential this had to contribute to or explain the offending – “I accept Mr McHugh’s evidence that that post-traumatic stress disorder left you in the situation of generalised anxiety, hypersensitive to conflict and thus more likely to feel threatened or ill at ease in the presence of a large number of persons”;

    (vii)the applicant’s record of attendance at scheduled treatment appointments with Mr McHugh;

    (viii)the applicant’s training in martial arts – “Your apparent ability in the martial arts and your mental condition, which makes you more likely to respond to moments of anxiety inappropriately, makes you a greater danger to the public than ordinary persons”;

    (ix)that the available evidence suggests that a period of incarceration is unlikely to assist with the applicant’s mental health rehabilitation;

    (x)the applicant’s good character references;

    (xi)the importance of general deterrence in this area; and

    (xii)the need to fashion a sentence that provides encouragement and assistance to the applicant upon re-entering the community.

21. Ultimately, the Judge expressed the view that conduct of the type in question had to be deterred by condign punishment and that, in all the circumstances, an immediate custodial sentence should be imposed. 

    Consideration

22. There is no complaint that the Judge committed any specific error in the sentencing process.  The applicant’s complaint is that the Judge committed an outcome error in the sense that the prison term imposed was manifestly excessive in all the circumstances; a sub-set of which is the failure to suspend the prison sentence.

23. In R v Jongewaard,[3] Doyle CJ (with whose reasons Layton J and Kourakis J (as his Honour then was) agreed) said this.

    The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence.  This Court does not substitute its opinion as to an appropriate sentence.  The Court will intervene only if error is established.  As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:

    As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".

    As the former Chief Justice also indicated in Jongewaard,[4] the argument that a sentencing Judge has erred in failing to suspend a prison sentence “will succeed only if this Court is persuaded that it was not open to the Judge to find that there was not ‘good reason’ for suspending the sentence, in exercise of the power conferred by ss 38(1) of the Sentencing Act”.

    [3] [2009] SASC 346 at [40].

    [4] At [42].

24. The Judge clearly regarded the offending conduct as very serious, as indicated by his Honour’s starting point of four years imprisonment, together with the observation that he was prepared to impose a lesser penalty than normally would be imposed in the circumstances “due to [the appellant’s] diminished responsibility as a result of [his] own mental condition causing a hypersensitivity to potential conflict”. 

25. It may be debatable whether or not the notion of “diminished responsibility” is appropriate in this context.  Nevertheless, the same result, a justification for leniency, can be arrived at by considering the applicant’s account as disclosing a genuinely perceived threat calling for, in the applicant’s mind, a measure of self-defence.  However, even if so, the applicant responded in a grossly excessive and inappropriate manner.  Even on this analysis, the offending can only be seen as extremely serious calling for a sentence that would serve a significant personal and general deterrent effect.  It is completely unacceptable and frightening to the community that an entirely innocent visitor to a nightclub in the city should be assaulted in this way, whether or not the offender suffers from post-traumatic stress disorder. 

1. The issue of whether or not the sentence imposed was manifestly excessive requires consideration of whether the Judge’s starting point was “unreasonable or plainly unjust” in all of the circumstances such that it fell outside the sentencing discretion available to the Judge.  It also requires a consideration of whether or not the decision to suspend fell outside the discretion available to the Judge.  In The Queen v Morse,[5] King CJ indicated that the factors to be considered when addressing the question of manifest excess are:

   (i) the maximum sentence prescribed by law for the offence;

   (ii) the standards of sentence customarily observed for offences of the kind in question;

   (iii)the seriousness of the offence committed when compared to other offences of its kind; and

   (iv)the personal circumstances of the offender.

   [5] (1979) 23 SASR 98 at 99.

2. The maximum penalty for the offence of causing harm with intent is imprisonment for ten years.[6]  The maximum penalty is a yard stick with reference to which the worst possible example of the offence in question and the case under consideration can be compared.[7]  Here the Judge’s starting point of four years represented 40 per cent of the available maximum penalty, suggesting, correctly in my view, that this was by no means the most serious example of an offence of this type but, nevertheless, a very serious example. 

   [6] Section 24 of the Criminal Law Consolidation Act 1935 (SA).

   [7]    Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

3. It also is important, as King CJ observed, to have regard to the standard or level of sentence customarily imposed for offences of the kind in question.  However, as I observed in R v McPhee,[8] such a comparison typically will only be of limited utility.  There are so many variables involved in the sentencing process that a comparison, ordinarily, will only provide an appellate court with a feel for the prevailing range of sentences in generally like matters. 

   [8] [2014] SASCFC 107 at [28].

4. The third factor identified by King CJ in The Queen v Morse is the seriousness of the offence as committed when compared with other offences of its kind.  This was a very serious example of this type of offence.  The applicant reacted to minor, at worst, provocation and took barely 48 seconds to cause significant injuries to the head and face of the victim. 

5. The fourth factor referred to by King CJ is the appellant’s personal circumstances.  I have already referred to aspects of the appellant’s background which suggest some scope for leniency together with aspects of his personal circumstances that tend to suggest caution when considering whether to extend leniency.

6. When consideration is given to the applicant’s personal circumstances, a starting point of imprisonment for four years might be seen by some as severe.  However, a severe sentence is not, for that reason alone, a manifestly excessive sentence.  I am not satisfied that the head sentence imposed in this case was unreasonable or plainly unjust.  A non-parole period equivalent to approximately 53 per cent of the total head sentence was not, in the circumstances, manifestly excessive.  Furthermore, whilst there are a number of considerations that would tend to a favourable exercise of the discretion to suspend, I cannot say that the failure to suspend fell outside the Judge’s discretion.

7. There is no challenge to the sentence imposed for the drive disqualified offence, nor to the decision by the Judge to accumulate the two sentences. 

8. During the argument on appeal, it was submitted that the Court should exercise the power available, in appropriate circumstances, pursuant to section 38(2c) of the Criminal Law (Sentencing) Act 1988, to suspend any sentence of imprisonment and to impose a condition subjecting the applicant to home detention for a period of not more than 12 months.  Subsection (2c) is in the following terms.

   (2c)If the court suspends a sentence of imprisonment under this section on the ground that, because of the defendant's ill health, disability or frailty, it would be unduly harsh for the defendant to serve any time in prison, the court may, in addition to any other conditions included in the bond, include a condition (a home detention condition) requiring the defendant to reside in a specified place and to remain at that place for a specified period of no more than 12 months, not leaving it except for one of the following purposes:

   (a)     remunerated employment;

   (b)     necessary medical or dental treatment for the defendant;

   (c)     averting or minimising a serious risk of death or injury (whether to the defendant or some other person);

   (d)     any other purpose approved or directed by the community corrections officer to whom the defendant is assigned,

   (and if the court includes a home detention condition it must also include a condition requiring the defendant to be under the supervision of a community corrections officer for at least the same period).

9. This Court has recently considered the availability, ambit and proper application of this discretion.[9] It is unnecessary in this case to traverse those matters again. On any analysis, the discretion available pursuant to subsection (2c) can only arise if the Court suspends a sentence of imprisonment “on the ground that, because of the defendant’s ill health, disability or frailty, it would be unduly harsh for the defendant to serve any time in prison”. There is evidence in this matter that the applicant would not be well served by going to prison and, indeed, that his future rehabilitation with respect to his psychological conditions may well be hindered by spending time in prison. Unfortunately, this is a reality for many, perhaps most, persons who are sentenced to imprisonment and it will be incumbent on the applicant, upon his release, to pursue such psychological assistance as may then be available to him with diligence. However, the evidence before the Court in this matter does not approach that necessary for a finding that, because of the applicant’s ill health or disability, it would be unduly harsh for the defendant to serve any time in prison. The applicant’s supplementary argument in support of suspension based on section 38(2c) must fail.

   [9]    For example, R v Ireland [2012] SASCFC 120; (2012) 114 SASR 438 and R v McLean [2013] SASCFC 144; (2013) 118 SASR 280.

   Conclusion

10. I would dismiss the application for permission to appeal.

    PARKER J.

11. I would dismiss the application for permission to appeal. I agree with the reasons of Nicholson J.

    LOVELL J.

12. I agree that the application for permission to appeal should be dismissed and with the reasons of Nicholson J.