R v Formosa - [2005] NSWCCA 363

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Formosa [2005] NSWCCA 363

FILE NUMBER(S):
2005/1172

HEARING DATE(S): 27 October 2005

JUDGMENT DATE: 27/10/2005

PARTIES:
Crown - Respondent
Steven Joseph Formosa - Applicant

JUDGMENT OF: McClellan CJ at CL Simpson J Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/1141

LOWER COURT JUDICIAL OFFICER: Viney DCJ

COUNSEL:
PG Ingram - Crown
A Djemal - Applicant

SOLICITORS:
SE O'Connor - Crown
S Kavanagh - Applicant

CATCHWORDS:
appeal against severity of sentence
maliciously inflicting grievous bodily harm whilst in company
plea of guilty
special circumstances and reduction in non-parole period
favourable subjective circumstances of applicant
subjective factors giving rise to the offence
principles of parity in sentencing co-offenders
co-offender charged with less serius offence
whether parity considerations in sentencing apply to disparities in charging process
whether sentence imposed was manifestly excessive
planned, unprovoked and vicious offence

LEGISLATION CITED:
Crimes Act 1900, s35(2)
Crimes (Sentencing Procedure) Act 1999, s44(2)

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1172
McCLELLAN CJ at CL
SIMPSON J
HOEBEN J
Thursday 27 October 2005

Steven FORMOSA v REGINA

Judgment

SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court on 14 December 2004 following plea of guilty to a charge of maliciously inflicting grievous bodily harm whilst in company. Pursuant to s35(2) of the Crimes Act 1900 the offence carries a maximum penalty of imprisonment for ten years. Viney ADCJ sentenced the applicant to imprisonment for four years with a non-parole period of eighteen months. In so structuring the sentence his Honour found special circumstances within the meaning of s44(2) of the Crimes (Sentencing Procedure) Act 1999 (as it then stood) justifying departure from the statutory ratio for which that subsection provides. The variation made was a very substantial one. The non-parole period imposed was half what it would have been absent the finding of special circumstances.
facts
The offence was committed in the early hours of 11 January 2003. During the evening of 10 January, in company with another person (Colin Wood) the applicant travelled from his home in Tuggerah Lakes to an address in South Penrith. The premises to which they travelled are located in an industrial site and consisted of an automotive engineering workshop above which is a residential unit. The residential unit was occupied by Wood’s sister, Belinda Wood, and the victim of the offence, Patrick Parry. The business was owned by Mr Parry’s father and operated by Mr Parry.
On route the applicant and Wood met another person, who has not been identified, but who accompanied them to the premises. The three men arrived at about 1.20 am on 11 January. Mr Parry and Ms Wood were asleep in the unit. Colin Wood banged on the door until Mr Parry awoke. Seeing only Colin Wood, whom he knew, Mr Parry let him in. Colin Wood went upstairs to speak to his sister. The applicant and the other man remained downstairs, and immediately launched into an assault upon Mr Parry. He was struck on the head with sufficient force to knock him to the ground, and was beaten with a metal chair, and with a metal pole from a pedestal fan. Mr Parry lost consciousness. He was taken to hospital by ambulance. He suffered facial fractures, a closed head injury, soft tissue spinal injury, lacerations to the face and scalp, soft tissue injuries to the chest, abdomen, right shoulder and elbow, and injuries (which will be permanent) to his eye. He was given emergency treatment and remained in hospital for five days.
The facial injuries are such as to carry significant risk of future morbidity, including eye socket infection, left side blindness and facial weakness or numbness. He already suffers double vision and what is described as “a sunken eye”. Since the attack he has been diagnosed as suffering post-traumatic stress disorder and severe depression. He was 31 years of age at the time of the assault. He had been self-employed as a motor mechanic. After the assault he found attending work extremely difficult, and even after he resumed his regular hours, his productivity remained significantly reduced. He found difficulty communicating with people, including clients and associates. He financial situation was adversely affected. He experienced hyper-vigilance in the work environment. He did not return to live in the unit but moved in with his sister. His social life became extremely restricted and he found it impossible to initiate any social contact. He described himself as being unable to cope without family support.
Mr Parry has a daughter, who was about nine years old at the time of the attack, with whom he had previously had unlimited and frequent access. This access has been dramatically reduced because he feared for her safety.
Mr Parry had undergone many sessions of cognitive behaviour therapy, but, according to a psychological report prepared for the court and tendered in evidence as part of a victim impact statement, 13 months after the assault, he was showing very little amelioration in the severity of his symptoms. This was thought by the psychologist to be, in part, because of the un-concluded court proceedings, a belief he held that the perpetrator would kill him, and his fears for the safety of those close to him. The psychologist believed that it was unlikely Mr Parry would ever fully recover from the trauma of the assault.
The applicant had previously lived with Belinda Wood. They had separated in circumstances shortly to be related. It was Belinda Wood’s relationship with Mr Parry that provided the motivation for the attack.
The applicant was granted bail on the day of his arrest, 5 February 2003, and remained on conditional bail until the day of sentence. From November 2003 the conditions included weekly reporting.
The applicant was not sentenced until December 2004, almost two years after the offence. There is no clear explanation for this, and presumably it occurred for a variety of reasons. The sentencing judge noted that there were no less than four occasions when the case was not reached. It is also the case that the applicant was initially charged with a more serious charge and this was reduced on the day of sentence.
Colin Wood was charged with the offence of being an accessory after the fact, an offence which carries a maximum penalty of imprisonment for five years. He pleaded guilty and was sentenced on 1 June 2004 by Knight DCJ. Knight DCJ’s sentencing remarks were before Viney ADCJ, as they are before this court. The role said to have been played by Colin Wood is set out in Knight DCJ’s remarks on sentence. He was alleged to have been upstairs during the actual assault, but to have called to his sister and advised her to get some help for Mr Parry. He told her not to disclose his presence, not to be smart, and to report “an intercepted robbery” by unknown perpetrators.
It may be observed that Colin Wood was treated generously by the prosecution in the offence with which he was charged. In my view, the facts put before Knight DCJ would manifestly have supported a much more serious charge. However, as is obvious, Knight DCJ could only sentence him in respect of the offence that was before him.
Wood had a criminal history which included offences of assault occasioning actual bodily harm and various drug offences. He was on bail in relation to some of those drug offences at the time of this offence.
He had been sentenced to lengthy terms of imprisonment in respect of those drug offences by the time he came before Knight DCJ.
Taking all these matters into account, Knight DCJ sentenced Wood to (effectively) imprisonment for six months, which he accumulated upon the drug sentences just mentioned.
subjective circumstances
The applicant did not give evidence in the sentencing proceedings. Nevertheless, a powerful subjective case was presented on his behalf. Both he and Belinda Wood wrote letters addressed to the presiding judge. Oral evidence was given on his behalf by his father, by Mrs Ruth Wood, the mother of Belinda and Colin Wood, and by a neighbour. In addition, his Honour had the benefit of a pre-sentence report and a psychiatric report. From all of these the following is disclosed.
The applicant was born on 19 May 1975. He was 27 years of age at the time of the assault. He had never previously had any encounter with the criminal law. He is the younger of two children of a Maltese family and had had a stable and uneventful upbringing. The psychiatrist detected evidence of some abnormality pre-existing the offence (evidenced by episodes, in childhood, of “breath holding”), but these appear to have been relatively minor and not productive of major or noticeable behavioural or other problems. His education was limited and he left school in year nine, having encountered hostility as a result of his ethnicity. He has maintained stable employment, and has been well regarded by his employers.
When the applicant was about 19 years of age, his parents separated as a result of his mother’s relationship with another man. This separation had a significant traumatic effect upon the applicant. He remained close to his father, but somewhat distant from his mother.
The applicant developed a friendship with Colin Wood, through whom, it would appear, he met Belinda Wood. At a time which is not clear on the evidence he entered into a relationship with Belinda Wood who was, at that time, pregnant to somebody else. The applicant and Belinda Wood lived together and he appears to have regarded the child who was ultimately born, in April 2002, as his own. The child died at the age of 12 days from Sudden Infant Death Syndrome. It seems that Belinda Wood responded very badly to this event. The applicant also was very affected. The relationship came to an end in November 2002, and Belinda Wood disappeared for a time. Her mother eventually located her, in circumstances that caused concern, living with Mr Parry, and told Colin Wood where she was.
The psychiatric report, prepared by Dr Roberts, was more than a medico-legal report. The applicant had been attending Dr Roberts for treatment since July 2003, having been referred by a general practitioner who had diagnosed adjustment disorder depression. Dr Roberts made a provisional diagnosis of depression and prescribed medication. He later also diagnosed anxiety.
Dr Roberts considered that the applicant’s conduct in assaulting Mr Parry:
“... appeared to be influenced at least by past experience involving his parents.”
He also considered that the offence was out of character and occurred as a result of strong emotions relating both to the separation of his parents and the applicant’s emotional response to his separation from Belinda Wood. In this respect it is apposite to note that, by the time the applicant came to be sentenced, the relationship between himself and Belinda Wood had resumed; they were living together, and by the time of sentencing, a child had been born.
There was a large body of evidence demonstrating that the offence was entirely out of character. Both his father and Mrs Wood gave evidence of the applicant’s expressed remorse, and their opinion that it was genuine. The neighbour who gave evidence, Mrs Gatt, described the applicant as:
“ ... a wonderful, wonderful young man, as a child and as he grew up. He has always been just hard working, respectful towards everyone, very outgoing. Just a perfect boy to my opinion.”
He was definitely never violent, according to Mrs Gatt.
the remarks on sentence
The sentencing judge carefully recounted both the objective and the subjective circumstances. He (correctly, in my opinion) described the offence as:
“ ... a vicious and savage attack on an unsuspecting man, in the middle of the night, in his own home.”
He correctly characterised it as “a very serious crime”. He found that the applicant’s prospects of rehabilitation were:
“ ... extremely good provided he continues with the support of those around him and his continued treatment by Dr Roberts.”
The sentencing judge, again, correctly in my opinion, considered that the enterprise was planned, as evidenced by the distance travelled by the applicant and Colin Wood, by their collecting the third person, their travelling to the home of the victim, and the presentation only of Colin Wood at the door. He made specific reference to the use of weapons, of gratuitous cruelty, the injury and emotional harm to the victim, the damage to the premises, as shown in photographic material, the premeditation of the offence, that it was unprovoked and prolonged, and the vulnerability of Mr Parry. These were references to sentencing considerations identified in s21A of the Crimes (Sentencing Procedure) Act.
He considered that the lengthy period before sentence was a matter to be taken into account in the applicant’s favour.
He noted the plea of guilty and determined that he would allow a reduction of 20%.
The plea of guilty was entered in circumstances in which the applicant had been charged with a more serious offence (maliciously inflicting grievous bodily harm with intent to do so, carrying a maximum penalty of imprisonment for 25 years). On the day fixed for trial the Crown agreed to accept a plea of guilty to the lesser offence, and, accordingly, the plea appears to have been treated as having been entered at the first reasonable opportunity. In any event, the applicant was given a discount almost at the top of the range provided for in the guideline judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383.
the grounds of appeal
Three grounds of appeal, of which the first two raise the same issue, were pleaded. They are:
“1.His Honour erred by not having any sufficient regard to the sentence imposed by Judge Knight DCJ, on the co-offender when sentencing the applicant.
2.His Honour erred in imposing a sentence on the applicant so disproportionate to that of the co-offender so as to engender a justifiable sense of grievance by the applicant.
3.His Honour erred by imposing a sentence which was manifestly excessive and that some other sentence was warranted.”
grounds 1 and 2: parity
Viney ADCJ expressly accepted a submission made by the Crown that no issue of parity arose. He was conscious that Colin Wood was dealt with as an accessory after the fact, and on a very different basis therefore from the basis on which he was to sentence.
On behalf of the applicant it was submitted that:
“The policy behind the principle of parity is not rendered otiose by the co-offender being sentenced to a lesser charge on election by the prosecuting authority to accept a plea to a lesser offence.”
The decision of this court in R v Gerald Kerr [2003] NSWCCA 234 was cited as authority for that proposition. There, three offenders had participated in a robbery. Kerr was convicted after trial on a charge of aggravated robbery, the circumstances of aggravation being the use of corporal violence and the malicious infliction of grievous bodily harm. That offence carries a maximum penalty of imprisonment for 20 years. A second offender, Oliver, who actively participated in the robbery, was charged with robbery, carrying a maximum penalty of 14 years imprisonment. The third offender, Tickner, who drove the vehicle used in the robbery but did not otherwise actually participate, was charged with concealing a serious indictable offence.
It seems that both Oliver and Tickner cooperated with authorities after their arrest. It also appears that they were sentenced by a different judge, or different judges. Oliver was ordered to perform 500 hours of community service. Tickner was sentenced to 18 months imprisonment, but that imprisonment was suspended. Kerr was sentenced to 13 years and six months with a non-parole period of ten years and six months.
The judge who sentenced Kerr was told by the Crown Prosecutor, as was the sentencing judge in the present case, that no issue of parity arose. This was of more significance in Kerr’s case, because the applicant was unrepresented and could not have been expected to argue against that proposition. In this court Miles AJ, with whom Beazley JA and Adams J agreed, said:
“13However the principle of parity in sentencing, or rather the policy behind it, was not so easily dismissed, in my view. The policy behind the principle is not to be avoided by the prosecuting authority simply charging co-operative offenders with less serious offences. The whole of the circumstances need to be examined.
...
15 There are two aspects to the principle. Like has to be and may only be compared with like and any imbalance must be enough to justify on objective analysis a sense of grievance on the part of the offender who complains of the heavier sentence: Postiglione v The Queen [1997] HCA 26; 189 CLR 295.
19... It is also recognised that the parity principle is of wide application and is not to be applied or withheld in a technical or pedantic way. It is indeed part of or a reflection of the wider principle that consistency in sentencing by the courts overall is to be aimed at as desirable in the public interest. Perfect consistency is a goal that can never be reached because of the infinite variety of the circumstances of offences and offenders. However there is a danger that it may be compromised by the selection of differing charges so that one offender may be charged with a serious offence and given punishment at the top of an acceptable range for that offence, and a co-offender charged with another less serious offence and dealt with at the very bottom of the acceptable range for that other offence. There may be no impropriety in that course, which will often arise from negotiation between co-offenders and law enforcement authorities. Sometimes, however, and it is not necessary to put it higher than that, the result may have the appearance of injustice.
...
26In my view, it was necessary to give proper consideration to the way in which Oliver had been charged and dealt with and it was not enough to say that no issue of parity arose. ... Furthermore it must be concluded that whilst Oliver had to be sentenced for the less serious offence under s94, he received a very lenient sentence on any view, and so lenient that it should have alerted the judge sentencing the applicant to the need to avoid a sentence of gross disproportion. ...”
His Honour also considered that it was a material circumstance that the applicant had been unrepresented at trial and at sentencing. He thought that, had that not been so, the sentencing judge would have been asked to give consideration to the question of parity and that had he done so, it was likely that the sentence imposed would not have been so far towards the top of the range.
It is of some significance, also, that the court held that the sentence imposed was appropriate to the seriousness of the crime on the information available to the sentencing judge. Nevertheless, the court allowed the appeal and substituted a sentence of nine years and eight months with a non-parole period of seven years and three months. This was a very significant reduction. The finding that the sentence as originally fixed was appropriate to the seriousness of the crime shows that parity considerations were the primary, if not the entire, basis for the result.
Consideration of the parity principle in sentencing conventionally begins by reference to the decision of the High Court in Lowe v The Queen [1984] HCA 46; 154 CLR 606. That decision has been overtaken by the more recent decision of the court in Postiglione v The Queen [1997] HCA 26; 189 CLR 295. (I am not suggesting that Postiglione is inconsistent with Lowe; merely that the formulation of the principles in the former is now more frequently cited as expressing the current law on the subject.)

The frequently cited passage from Postiglione is taken from the joint judgment of Dawson and Gaudron JJ and is as follows:
“The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.” (internal references omitted)
In both Lowe and Postiglione the co-offenders whose sentences were in question had been charged with identical offences with that of the appellant. Nothing the High Court said was directed towards the application of the parity principle in cases where offenders were charged with different offences carrying different maximum penalties.
The decision in Kerr is capable of being read as extending the principle so that it applies even where co-offenders are charged with different offences. I do not wish to be taken as entirely rejecting the proposition that the principle can be so applied, but here, with the extremely wide divergence between the nature of the crimes charged against the co-offender and against the applicant it is difficult, if not impossible, to see how that principle can be applied.
The effect of the submissions made on behalf of the applicant (and the decision in Kerr is at least capable of giving them some support) is that the principle of parity in sentencing is broad enough to extend to redressing disparities or discrepancies in the charging process as well as in the sentencing process.
In Kerr, there were marked parallels with the present case. The facts suggested that both the applicant and Oliver had been actively involved in the actual assault, and, so far as the facts are recited in the judgment, to a comparable degree. Yet Kerr was charged with a significantly more serious offence than was Oliver. Quite apart from any other differences, which were recognised in the passage quoted in Postiglione as justifying different sentences, that alone imposed demands upon each sentencing judge that were different.
In the present case the divergence was even greater. While Colin Wood does not appear actively to have participated in the assault, he was undoubtedly present for the purpose of supporting the applicant. That he was charged only with an accessorial offence is mysterious and unexplained.
I do not understand either Lowe or Postiglione to suggest that the parity principle extends to correcting any imbalance in the manner in which co-offenders are charged. I would be very cautious before proposing or adopting any such principle.
Counsel who appeared for the applicant in this court urged that the sentencing judge ought to have had regard to the sentence imposed upon Wood. He placed considerable emphasis upon the known facts including what was know to be the participation of Wood in the entirely of the applicant’s offence.
Wood could not properly have been sentenced on the basis of any fact which suggested he was guilty of participation in the assault – The Queen v De Simoni [1981] HCA 31; 147 CLR 383. Nor has any suggestion to that effect been made, indeed, it was expressly accepted by counsel for the applicant that he could not have been so sentenced.
What appears to be suggested on behalf of the applicant is that, because Wood was charged with a more minor offence, then the applicant should also have been sentenced proportionately to the sentence imposed upon him. In my opinion this is a distortion of the parity principle and, if adopted, would give rise to a distortion of the sentencing process. Reliance was also placed upon the decision of this court R v Ziggy Hauser, unreported, 11 December 1997. There, Dunford J, with whom Gleeson CJ and Barr J agreed, said:
“However, a justifiable sense of grievance may arise, not only because all the sentences are not equal but may also arise in cases where, even though the co-accused is sentenced on a different factual basis so as to justify unequal sentences, the sentences are disproportionate to the difference that is appropriate.”
Again, in that case, both offenders whose sentences were in question had been charged with an identical offence, although the offender whose sentence was relied upon for parity purposes had also been sentenced in relation to a second offence. (Hauser had also been sentenced in respect of other offences, but of a different kind.)
As I understand what Dunford J was saying, it was no more than this: that, where it is not appropriate to sentence co-offenders equally by reasons of relevant differences in their circumstances, nevertheless the differences in sentences should properly reflect and be proportionate to the differences in circumstances. There is nothing novel about that proposition.
Here, the main reason for the discrepancy in sentences on the two co-offenders derives from the difference in the charges they faced. The applicant may have a sense of grievance, even a legitimate one, about that difference; but it is not a legitimate sense of grievance in the Lowe or Postiglione sense, concerning the sentences imposed; it is a sense of grievance engendered by the prosecutorial decision making process. That is not something over which this court has supervisory jurisdiction, even by the backdoor method of supervising sentencing.
In any event, there were other significant relevant differences. No finding was made that either of the offenders was the instigator of the offence, although there are hints that it might have been Colin Wood. Certainly it was the applicant’s grievance about the end of his relationship with Belinda Wood that was the precipitant for the offence. It is true, also, that Colin Wood had a relevant criminal record, which the applicant did not. This would ordinarily give rise to a more severe, rather than less severe, sentence. However, Colin Wood had also been sentenced on additional and different charges and the sentence imposed had to have regard to the principle of totality.
In my opinion the principles of parity not only do not require, they would not permit, this court to intervene as suggested on behalf of the applicant.
ground 3
A further submission was made that the sentence imposed was manifestly excessive, and it was suggested that this came about by the failure of Viney ADCJ to give due weight to the applicant’s subjective case. Initially this was sought to be demonstrated by identifying the starting point for the sentence, by reference to the 20% discount for the plea of guilty. It was not suggested that there was any error in the quantification of the discount; the suggestion was that, when an additional 20% is factored in, the starting point was approximately five and a half years for the head sentence, and that this was excessive. In fact, as was acknowledged in oral argument on behalf of the applicant, where the head sentence of four years (48 months) equals 80% of the starting point, then the starting point was five years or 60 months.
I am unable to conclude that this was an excessive starting point. I have not overlooked the applicant’s prior clear history, nor his manifestly favourable subjective circumstances, nor the unusual subjective factors that were said to have given rise to the offence. Nevertheless, it was planned, unprovoked and vicious. Its consequences have been dire for Mr Parry. I do not think a sentence of five years imposed after trial could have been set aside as excessive; accordingly I do not think a sentence of four years, imposed after a 20% discount for a plea of guilty, can be said to be excessive. Further, the applicant was given a very generous variation on the statutory proportions. As I have observed above, the non-parole period imposed is only half of that which would have been imposed had special circumstances not been found.
I would grant leave to appeal but dismiss the appeal.
McCLELLAN CJ at CL: I agree with Simpson J.
HOEBEN J: I agree with Simpson J.
McCLELLAN CJ at CL: The orders of the court will be as indicated by Simpson J.

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LAST UPDATED: 02/05/2006