R v Fernando

[2004] NSWCCA 147

CITATION:	Regina v Fernando [2004] NSWCCA 147
HEARING DATE(S):	14/04/04
JUDGMENT DATE:	13 May 2004
JUDGMENT OF:	Tobias JA at 1; Kirby J at 2; Bell J at 48
DECISION:	(1) Leave to appeal granted; (2) Appeal dismissed.
CATCHWORDS:	Criminal Practice & Procedure - appeal against sentence - offer of DNA sample - whether need for specific discount - mistake by sentencing Judge in respect of offence - different maximim penalty - mistake corrected by mathematical adjustment - whether error.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Forensic Procedures) Act 2000 Criminal Appeal Act 1912
CASES CITED:	R v Fernando (1992) 76 A Crim R 58 R v Thomson (2000) 49 NSWLR 383 R v Ellis (1986) 6 NSWLR 603 Cameron v The Queen (2002) 209 CLR 339 AB v The Queen (1999) 198 CLR 111 R v Simpson (2001) 53 NSWLR 704
PARTIES :	Regina Steven Rodney Craig Fernando
FILE NUMBER(S):	CCA 60519/03
COUNSEL:	G Rowling (Crown/Appl) C B Craigie SC (Resp)
SOLICITORS:	S Kavanagh (Crown/Appl) Dean Mayr - WALS (Resp)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/61/0217
LOWER COURT JUDICIAL OFFICER :	English DCJ

60519/03

TOBIAS JA
KIRBY J
BELL J

Thursday 13 May 2004

REGINA v Steven Rodney Craig FERNANDO

Judgment

1 TOBIAS JA: I agree with Kirby J.

2 KIRBY J: This is an appeal against sentence by Steven Rodney Craig Fernando (the applicant). Mr Fernando was charged with breaking and entering a dwelling house at Walgett on 22 June 2001, and having committed a serious indictable offence therein, namely an act of indecency, contrary to s112(1) Crimes Act 1900. Mr Fernando pleaded guilty to that offence. He was sentenced by English DCJ on 3 June 2003 to a term of imprisonment of 9-1/2 years with a non parole period of 7 years 1 month and 16 days.

The incident.

3 The complainant is a woman who lived alone in a house at Walgett. At the time of the incident she was 29 years old. On Thursday 21June 2001 she went to bed at about 11.00 pm. Before doing so, she locked the doors and windows of her home. At approximately 3.30 am she woke up as the applicant placed his hand across her mouth to prevent her screaming. With his other hand, he groped for her vagina, later moving his hand towards her buttocks.

4 The complainant resisted as strongly as she was able. She tried to place her attacker in a headlock. She attempted to gouge his eyes and grabbed at his earring. In the course of the struggle she fell off the bed. As she did so she upset a glass of water on her bedside table. The glass fell to the floor and smashed, as did her bedside lamp.

5 The complainant fell onto the broken glass, lacerating her back. Her attacker fell on top of her. He grabbed at her genital area through her pyjama pants. The complainant then took hold of a sliver of glass from the floor and threatened her assailant. He got up and withdrew. She went to the window after he had fled. She saw a pile of her property in the garden. It included her handbag and other personal items. Her attacker had gained entry by forcing a window.

6 The complainant in fact knew Mr Fernando, although not well. In the darkness, however, she did not recognise him. She could only describe her assailant in very general terms. He was thin. He was young. She thought he was 18 or a little older and Aboriginal.

7 She telephoned a friend, who came to her home, having first summoned an ambulance and the police. She was taken to the Walgett hospital where 19 stitches were inserted in the lacerations to her back. There were significant bruises to the genital area and her inner thigh. She has been left with scarring to her back.

8 In the course of the struggle Mr Fernando lost an earring. He also left behind a pair of blue scissors. The police approached two persons whom they regarded as suspects, neither being Mr Fernando. They obtained DNA samples from each. A comparison was made between these samples and the DNA found on the earring. There was no match.

9 In April 2002 the complainant told the police of her suspicion that Mr Fernando may have been her attacker. On 26 April 2002 the police spoke to Mr Fernando at the Walgett police station. He was invited to provide a buccal swab, having been warned (on video) that he was not obliged to do so. He agreed to do so. The sample was then analysed. It matched the DNA obtained from both the scissors and the earring.

10 The police then attempted to locate Mr Fernando. He had been charged in the meantime with other offences and given bail. However, he failed to answer his bail. Ultimately, on 29 June 2002, he presented himself at the Walgett police station and was arrested.

11 The impact upon the complainant of the attack has been severe. A Victim Impact Statement was tendered. English DCJ described the effect upon her in these words:

"His victim has been left physically and emotionally scarred. The scarring to her back resulted from the lacerations sustained during the struggle with the offender, glass remains embedded at the site of the scarring, and she says it is painful. She has been diagnosed with post-traumatic stress disorder. She has received, and requires, ongoing counselling. She has gone from being a financially independent employed young woman to someone in receipt of Government assistance, who is now required to live with her mother. Her social life has suffered as has her capacity for work."

Breach of parole.

12 At the time of the offence Mr Fernando was on parole. This was a serious matter of aggravation. There were also similarities between the offences which were the subject of the parole order and the offence of 22 June 2001, although there were differences. On 10 February 2000 Mr Fernando had pleaded guilty before English DCJ to two counts which were as follows:

" Count 1: On 20 February 1999 at Walgett did, in circumstances of aggravation, break and enter a dwelling house at 104 Arthur Street and did commit a felony therein, namely did steal a pair of scissors, a number of handbags and their contents and a quantity of beer.
Count 2: On 20 February 1999 at Walgett, did break and enter the garage of Terence John Gudgeon situated at 8 Peel Street, and then in the garage did steal two outboard motors, two fuel cans and two spotlights. ..."

13 Her Honour, on that occasion, found special circumstances. On the first offence she imposed a term of imprisonment of 4 years with a minimum term of 1-1/2 years, and on the second a concurrent fixed term of 1 years imprisonment. Mr Fernando was released on parole on 13 October 2000. Within less than a year (22 June 2001) he committed the present offence.

The subjective case.

14 Mr Fernando was born at Walgett on 27 May 1980. He was 21 years when the offence occurred and 23 years when sentenced (3 June 2003). He was the first of ten children of his mother. She was 18 at the time of his birth. She is Aboriginal and his father is Caucasian. Mr Fernando has not met his father. He feels some anger at his father's neglect.

15 Soon after his birth the applicant was given into the care of his grandmother. She brought him up in a small Housing Commission home. She had several other children. There were ten living in the home. He also saw his mother from time to time, as well as his siblings. He witnessed the violence of his mother's relationship with one of her husbands.

16 At an early age Mr Fernando began smoking cannabis and drinking. Although assessed as soundly intelligent, literate and well able to express himself, he left school at an early age. Apart from odd jobs, he has not been employed. Her Honour, in her remarks on sentence, having referred to the principles in R v Fernando (1992) 76 A Crim R 58, said this: (at 5/6)

"I have taken into account his disadvantaged circumstances, dysfunctional upbringing, overcrowded living conditions, exposure to violence, alcohol and drugs, lack of contact with his nature father, and limited education, as I am required to do."

17 Mr Fernando had a long term relationship and a child who, at the time he was sentenced, was one year old. He had been brought before the Children's Court on a number of occasions. Control orders had been made. Having been sentenced by English DCJ on 10 February 2000, and released to parole on 13 October 2001, he committed a number of other offences apart from the offence which is the subject of this appeal. The offences included committing an act of indecency with a person 16 years or over, for which he was sentenced on 7 August 2002 to 3 months imprisonment commencing on 29 June 2002, being the date of his arrest on the present charge.

Remarks on sentence.

18 Having heard submissions on sentence, her Honour reserved her decision. Her remarks are detailed. In respect of the offence, she said this: (at 10)

"The objective facts involve a serious breach of the criminal law. I regard the objective seriousness of the offence as being at the top end of the scale constructed for like offences. There is no need for me further to enlarge upon the seriousness of the offence, so much can be seen from the maximum penalty imposed for like offences by the legislature.
General and specific deterrents are matters which loom large in a sentencing exercise of this offender, and the community has a rightful expectation to be protected from the likes of this offender.
I find the subjective features lose much of their force as this offender has committed a similar serious offence in the not too distant past. The matter is one which calls for the imposition of a custodial sentence."

19 The breach of parole was obviously a serious matter of aggravation. However, it created an issue as to the commencement date of the sentence. The parole was not due to expire until 13 April 2003. It had been revoked after Mr Fernando's arrest on 29 June 2002. As set out above, there was the further complication that on 7 August 2002 he was sentenced to 3 months imprisonment for an unrelated offence, the sentence commencing on 29 June 2002.

20 Her Honour, in these circumstances, appropriately, recognised the potential for double counting. She said this: (at 10)

"As his breach of parole has been taken into account, as an aggravating circumstance, the sentence to be imposed will be backdated to take into account the time spent in custody after the commission of this offence, so the offender is not being punished twice for breach of parole."

21 When dealing with the subjective material, her Honour drew attention to her concerns in respect of rehabilitation. She said this, referring to a report of Ms Robilliard, psychologist: (at 8)

"Following personality testing Ms Robilliard expresses concern at his test results, results which indicate deeply entrenched psychopathology in several areas. His attitude is according to Mr Robilliard that he will only undergo sex offender therapy 'if he has to'. I infer from the report that he is well aware of the need to be motivated to undertake such therapy before the therapy has any prospects of success."

22 Her Honour referred to the leniency extended to Mr Fernando when he was sentenced by her in February 2000, and the lengthy period of parole. She added: (at 9)

"I have no confidence that he will undergo rehabilitation, either voluntarily or forcibly. As he clearly knows rehabilitation is only successful if the offender is motivated. He has acknowledged that to Ms Robilliard during their sessions together. One thing is certain he has continued to re-offend. Not only did he commit this offence whilst on parole, but he has committed further offences. Those are not matters which I have taken into account on sentence, but rather are referred to, to demonstrate why I have little confidence in his prospects of rehabilitation."

23 Her Honour did not accept that Mr Fernando felt contrition. She said this: (at 8)

"I am not satisfied that this offender is either remorseful or contrite. His plea of guilty, once confronted with the DNA evidence, is in my view on his part merely an acknowledgment of the inevitable irrespective of how the sample came to be provided. It is of very great concern that he will only attempt rehabilitation if forced to do so."

24 Her Honour did not, as such, quantify the discount for the plea of guilty.

25 When she began her sentencing remarks her Honour mistakenly described the offence as arising under s112(2), being an aggravated form of breaking into a house and committing a serious indictable offence. The matter of aggravation was not identified (cf s105A(1) Crimes Act 1900). The maximum punishment under s112(2) is 20 years imprisonment (cf 14 under s112(1)). Her Honour sentenced Mr Fernando upon that basis to 13-1/2 years imprisonment with a non parole period of 10 years 1 month and 16 days. The Crown then rose and drew her Honour's attention to the error. He said this:

"Your Honour it has become apparent to me since your Honour dealt with the matter earlier today, that I unintentionally misled your Honour in relation to the earlier course of the proceedings. What I had said to your Honour was this. I led your Honour to believe that what had happened was this. That in March, when Mr Fernando was arraigned he was arraigned on one count of break, enter and commit a serious indictable offence in circumstances of aggravation. To that end I gave to your Honour a bundle of papers including what I thought was a copy of that document. It transpires that I was incorrect. What in fact had happened in March was that he was arraigned on one count of break, enter and commit a serious indictable offence in its simple form. For your Honour's purposes the significant difference is this. The maximum penalty for the thing that I told your Honour he pleaded guilty to was 20 years. What he in fact pleaded guilty to was an offence carrying 14 years as a maximum penalty. ..."

26 The Crown then made application under s43 of the Crimes (Sentencing Procedure) Act 1999 to correct the error. Counsel for Mr Fernando joined in that application. Her Honour corrected the error at once. Having described what had happened, and the difference in the maximum penalty, her Honour said this: (at 12)

"I therefore correct the sentence entered by me by setting that part of it aside. I made reference to the remarks delivered by me to the aggravating circumstances which would have applied, had the charge been brought under s112(2) and those remarks are to be corrected to reflect the offence for which the offender is now facing sentence, that is not an aggravated offence, and that portion of the judgment is to be edited accordingly."

27 She added: (at 12)

"This does not mean, however, that the matter does not remain a serious breach of the criminal law and it continues to fall at the top end of the scale for such offences, and the offender is of course entitled to the discounts which were previously applied."

28 Mr Fernando was then sentenced to 9-1/2 years imprisonment with a non parole period of 7 years 1 month and 16 days.

The Amended Notice of Appeal.

29 An Amended Notice of Appeal was filed in these terms:

Ground 1: Her Honour erred in not allowing a sufficient discrete allowance for the utilitarian value of the applicant's plea of guilty, irrespective of the strength of the Crown case.
Ground 2: Her Honour erred in failing to give an appropriate allowance for the applicant's assistance to authorities by way of the supply of a DNA sample.
Ground 3: The sentence imposed is manifestly excessive.

30 However, in argument, the grounds were, to some extent, refined and in other respects, broadened. Without abandoning the first ground, most of the argument was directed to the second. On the third ground, complaint was made concerning the adjustment undertaken by her Honour once the error had become manifest. The adjustment was mathematical. No attempt had been made to re-evaluate the appellant's criminality in the light of the actual offence to which he had pleaded guilty, that is, under s112(1) of the Crimes Act.

The discounts on sentence.

31 It is convenient to deal with grounds 1 and 2 together. In respect to the plea of guilty, and the provision of the DNA, her Honour said this: (at 9)

"The offender is, of course, entitled to the benefit for his plea of guilty in having utilitarian value. He is also entitled to a further discount as he chose to present himself at the police station and to undergo DNA testing voluntarily. I have had regard to the fact that he was not one of two suspects initially under suspicion, although the complainant did attend at the Walgett Police Station and nominate the offender as her possible attacker prior to his arrest. His partner, Edna Gibbs, made a statement in which she stated she saw the offender in June 2001 with a swollen, bleeding ear. He also had a swollen and bruised hand at the time. She was able to confirm that the offender wore an earring in his right ear, although she could not identify the earring shown to her by police as being an earring worn by the offender during the time they were together."

32 Her Honour, as mentioned, did not quantify the discount for the plea of guilty. It would have been helpful had she done so (R v Thomson (2000) 49 NSWLR 383, per Spigelman CJ at 418/419 paras 157, 158 and 160). However, she was not obliged to do so. No error has been demonstrated.

33 Counsel for Mr Fernando made the following submission:

"Her Honour placed no significance on the way that the DNA was volunteered, notwithstanding that this was evidence bearing on contrition and afforded utility to the investigation of the offence in circumstances where it was by no means certain that a sample could be compelled."

34 In argument, counsel went further. He asserted that there was error in not quantifying the discount in respect of the provision of DNA.

35 Under Part V of the Crimes (Forensic Procedures) Act 2000, the police may make application to a Magistrate for an order that a defendant supply a sample of DNA (s25). A Magistrate may make an order when satisfied that there are reasonable grounds for suspecting that the person, the subject of the application, has committed an offence.

36 Counsel for Mr Fernando analysed the information available to the police at the time his client was asked to provide a DNA sample (26 April 2002). Mr Fernando's appearance conformed to the very general description the complainant had provided of her attacker. He had also been behaving oddly, and somewhat suspiciously, in the vicinity of the complainant, after the offence. Information, mainly hearsay, had been passed to her concerning the suspicions others entertained in relation to Mr Fernando. The complainant passed that information to the police. It was not until some months after Mr Fernando had voluntarily provided a DNA sample that rather more concrete information was provided to the police by his former partner, the mother of his child. She made a statement on 29 June 2002 which included the following:

"4. I remember about June last year Steven came home to 86 Peel Street and told about a fight he had with Lucas Fernando. I saw his ear was swollen; it was bleeding and looked like it was getting infected. His hand was also swollen and bruised. I don't know what the fight was over and I don't know if he went to see a doctor, he doesn't go to doctors. I remember it being his right ear."

37 I am prepared to assume that an application by the police in April 2002 for an order that Mr Fernando should provide a DNA sample was certainly not assured of success. Should the provision of DNA in such circumstances be reflected in a specific discount? Can it be said that there was error in not doing so?

38 Counsel for the applicant was unable to point to any authority which directly supported his contention. Reference was made to R v Ellis (1986) 6 NSWLR 603 and the statement of principle by Street CJ (at 604) where a person voluntarily discloses his involvement in a crime otherwise unknown to the police. Counsel also referred to Cameron v The Queen (2002) 209 CLR 339, where the majority of the Court spoke of a willingness to facilitate the course of justice as a matter in mitigation. In AB v The Queen (1999) 198 CLR 111, Gummow and Callinan JJ referred to the waiver by the defendant of extradition rights. Having been extradited on certain offences, the accused confessed to other offences which were not part of the extradition order. In respect of the same aspect, Kirby J said this: (at 148)

"However, there was one further and particular consideration, additional to the foregoing, that was not given any attention at all. This was that, had the appellant not waived his privilege under extradition law to insist on the speciality, it would have been effectively impossible, or certainly extremely difficult, to try and punish him for the thirty-nine offences which he disclosed after his extradition. The appellant's confessions exposed him to additional punishment for the thirty-nine offences which he acknowledged against nine additional pupils. It also resulted in judicial castigation for the number of victims and the duration of his offences which could not have been prosecuted without evidence that the appellant did not object on the basis of speciality and without the consent of the United States. Without such evidence, it would have been extremely difficult or virtually impossible to obtain that consent."

39 His Honour added: (at 148/149)

"Unless the sentencing judge were to mark in a specific and express way the credit to which the appellant was entitled for having surrendered his privilege to insist on the rule of speciality under extradition law, the outcome of this case would not encourage others, in a like position, to act as he did (cf R v Winchester (1992) 58 A Crim R 345 at 350). "

40 The matter was returned to the Court of Criminal Appeal for further determination (Spigelman CJ, O'Keefe and Barr JJ). The head sentence was reduced by 25 percent. Barr J (with whom Spigelman CJ agreed) said this: (para 97)

"97. ... It was conceded by counsel for the Crown that the utilitarian value of the appellant's pleas of guilty, his voluntary co-operation and his waiver of his extradition rights concerning the post-extradition offences entitled him to a reduction of twenty-five percent from the sentence which would otherwise apply. I think that the concession was appropriate and I would make such an allowance."

41 Here there was no justification for a specific discount. Mr Fernando did not give evidence. It is not known, for instance, whether Mr Fernando appreciated that the police had his earring, although he presumably knew he had lost an earring. His motivation in providing the sample was unknown. In some circumstances co-operation with the police may signify contrition, especially where admissions are made after arrest, and more especially made in respect of matters completely unknown to the police (as in R v Ellis (supra)). Contrition may justify more lenient treatment, although the degree of leniency is not usually quantified. Where an offender unwittingly assists the police, whether by making statements which he does not recognise as incriminating, or providing a sample of his handwriting or DNA, not fully appreciating its evidentiary significance, it is difficult to see why any discount is justified unless it can be seen as evidence of contrition.

42 Her Honour, in this case, acknowledged Mr Fernando's co-operation and said that she took it into account. Her failure to elaborate, or quantify the discount does not, in my view, amount to error.

Was the sentence manifestly excessive?

43 There was no specific challenge to the characterisation by her Honour that the offence was at "the top end of the scale". The challenge, rather, was to the mathematical adjustment of the sentence, once the error had emerged.

44 It is clear from an examination of her Honour's remarks, including those made immediately after the error came to light, that she did mathematically adjust the sentence. The proportions between the maximum penalty under the statute, the term of imprisonment imposed and the non parole period, remained constant once Mr Fernando was re-sentenced under s112(1). The applicant submitted that his criminality, in the light of the elements of s112(1), was not reconsidered. To only adjust the sentence mathematically, it was suggested, was too crude an approach, and signified error.

45 The Crown acknowledged that the approach of her Honour was mathematical and, as such, too crude. Ordinarily such an approach could be expected to produce error. However, as it happened, the sentence finally imposed, given the serious nature of the crime, and specifically the breach of parole, was, in the Crown's submission, appropriate. According to the Crown, no lesser sentence was justified (s6(3) Criminal Appeal Act 1912); R v Simpson (2001) 53 NSWLR 704, paras 79-80 per Spigelman CJ, and para 100 per Sully J.

46 The adjustment by her Honour was crude. However, her Honour, once the error became known, did to a limited degree revisit the issue of Mr Fernando's criminality. She should perhaps have recomposed her remarks so that they unmistakeably addressed s112(1). However, the result, I believe, would have been no different. The crime by Mr Fernando was very serious. It was at the top end of the scale. It had been committed in circumstances of a breach of parole. Mr Fernando had been given the benefit of leniency in the past and failed to take advantage of it. Deterrence, both personal and general, was important. The sentence was appropriate. I am not persuaded that any lesser sentence was warranted in the circumstances.

Order

47 The orders I propose therefore are as follows:

1. Leave to appeal should be granted.

2. The appeal should be dismissed.

48 BELL J: I agree with Kirby J.

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Last Modified: 05/14/2004