R v Gezim Reci (Appellant) No. Sccrm-98-97 Number of Pages 6 Criminal Law

[1998] SASC 6786

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

MILLHOUSE, PERRY AND NYLAND JJ

CATCHWORDS:

Criminal law - jurisdiction, practice and procedure - judgment and punishment.

Sentence - factors to be taken into account - circumstances of offender - criminal law - jurisdiction, practice and procedure - judgment and punishment.

Sentence - factors to be taken into account - purpose of sentence - relevant principles - appeal against sentence - 39 year old man convicted of murder. Sentenced to life imprisonment with non-parole period of 17 years - appellant diagnosed as HIV positive in 1995 but has not developed full blown AIDS - whether trial judge had enough regard to the appellant's cultural background and HIV status. Held that the appellant's Albanian background had quite sufficiently been taken into account - that HIV does not give a person licence to commit crime in expectation that an otherwise appropriate penalty will be greatly reduced. Later, appellant may apply for exercise of the prerogative of mercy - appeal dismissed. The Queen v Stehbens [1976] 14 SASR
240; The Queen v Thompson [1975] 11 SASR 217; The Queen v Stewart [1984] 35 SASR 477, applied.

(Per Perry, J): Wacyk CCA (Doyle CJ, Millhouse & Perry JJ) 16 May 1997, unreported, judgment S5622.2; Neale (1982) 149 CLR 305; Veen v R (1979) 143 CLR 458; R v Shannon (1991) 57 SASR 14; Juli v R (1990) 50 A Crim R 31; Rogers v R (1989) 44 A Crim R 301; Georgatsoulis (1994) 62 SASR 351, considered.

HEARING:

ADELAIDE, 22 July 1998(hearing), 20 August 1998 (decision)

#DATE nn:nn:1998

APPEARANCES:

Appellant:

Counsel: Mr David Stokes

Solicitors: Nicholls Gervasi & Co

Respondent:

Counsel: Mr Jim Pearce

Solicitors: DPP (SA)

ORDER: order.

Millhouse J

1 A jury convicted Gezim Reci a 39 year old man from Albania of murder. He was diagnosed as HIV positive in 1995 but does not have full blown AIDS. In April 1996 he murdered his good friend Nick Vuksani.

2 It arose out of rumours circulating to the effect that Reci and a woman member of the Albanian community were having an affair. Reci had a wife still in Albania.

3 He and the woman were both upset at the rumours. They decided to confront those whom they believed were spreading them. They called on one or two people. At the house of Mr and Mrs Simoni (Mrs Simoni is the woman's sister) Reci was particularly upset. He had a sheath knife with him and threatened Mr Simoni with it. Reci was heard to say to Simoni "Either you or Nick will be dead tonight."

4 Reci, the woman and their woman friend who was with them, left the Simonis' and went to Vuksani's flat. Reci forced an entry. Just what went on inside is not clear except that Vuksani, after death, was found to have 45 wounds of which 37 were knife wounds including 32 cut or slash wounds: three stab wounds in the chest and neck caused his death. It was a brutal murder. The appellant then, with his friends' help, got rid of the knife and cleaned himself up. He was arrested within a few hours.

5 An appeal against conviction was dismissed by this Court on 1 December 1997 (See R v Reci , (1997) 70 SASR 78). Subsequently, on 11 December 1997, the learned trial judge sentenced the appellant. The present appeal is against that sentence, more particularly, the non-parole period.

6 The learned sentencing judge, having imposed the only sentence open to him on the jury's verdict, life imprisonment, had to fix a non-parole period. Having reviewed the circumstances and having considered the appellant's history, he said that he would have fixed a non parole period of 20 years but for the fact that the appellant is HIV positive. Because of that he reduced the period to 17 years. The information given to the learned judge shewed that the prisoner had, at the time of sentencing, a life expectancy of between four years and six months and eleven years. Much shorter than the non parole period. The learned judge mentioned this in his sentencing remarks:-

"I acknowledge that it is a period which is likely to be longer than your life expectancy. If you should be diagnosed as suffering from an AIDS defining illness, the Executive Government is at liberty to exercise the prerogative of mercy in the light of the then prognosis of your illness."

7 Mr David Stokes, for the appellant, took a number of points: that the learned judge had not sentenced on the basis most favourable to the appellant, that he not given sufficient weight to his cultural background, that the non parole period was too long when compared to the periods set for murders of similar dreadfulness and that he had not sufficiently taken into account his HIV status and limited life expectancy.

8 I reject the first three grounds quickly.

9 The learned judge was not obliged to sentence on the basis most favourable to the appellant. The Court in The Queen v Stehbens [1976] 14 SASR
240 @ 245, agreed with Bray CJ in The Queen v Thompson (1975) 11 SASR 217 @ 221:-

" Is the judge in sentencing still bound to act on the view of the facts most favourable to the accused and consistent with the jury's verdict? Or can he act on the version which he himself is satisfied beyond reasonable doubt to be true, provided that it is not inconsistent with the jury's verdict? . . . (W)hen the view of the jury of the particular factual issue in question for the purpose of sentencing is unknown, and the judge is prepared to make a finding on it beyond reasonable doubt based on his own opinion of the sworn evidence before him, I am inclined to think that he is at liberty to act upon it."

10 That is more than sufficient authority to dispose of Mr Stokes' first point.

11 As to the second, it seems to me, reading the sentencing remarks, that His Honour has taken the man's whole background quite sufficiently into account. Neither Albanians nor people from any other country, whatever its culture, can murder others and expect to be treated more leniently because their cultural background is distinct and different from the Australian cultural background (however that may be described).

12 The third point fails too. The non parole period is quite severe but this was a most awful thing to do - breaking into a man's house, attacking him with a knife and killing him because he was thought to be spreading rumours. I certainly am not so bold to say that it is above the top of the bracket appropriate for fixing a non parole period for such conduct.

13 The most significant point argued, and the one which has caused me most concern, relates to the man's HIV status.

14 I accept that because of his anxiety about his health the appellant may do it harder in gaol that a man who is not HIV positive. I accept, too, that it is likely the appellant will be dead within the next 17 years. It is a tragic situation. Yet being HIV positive does not give a man (or a woman) a licence to commit crime, in the expectation that an otherwise appropriate penalty will be greatly reduced because of his or her condition.

15 As King CJ said in The Queen v Stewart [1984] 35 SASR 477:-

" The first question which I think a judge has to ask himself on an application of this kind is: what is the minimum time which the prisoner must spend in prison in order to satisfy the punitive and deterrent and preventive purposes of punishment?

Murder is the deliberate taking of human life and is regarded as the most serious crime known to the criminal law. Any time which a person convicted of murder must spend in prison must be proportionate to the gravity of that crime."

16 The learned judge has made an allowance for the appellant's status.

17 Mr Stokes argued that some greater allowance should have been made, so as not to rob the appellant of hope that through the advances of medical science and therefore a lengthening of his life expectancy, he might yet die out of gaol. It is a vague hope at best.

18 Logically the only way to make sure that the appellant be paroled before his death would be to reduce the non parole period to less than four years: the lower end of the bracket of time within which he is likely to develop full blown AIDS.

19 Bearing in mind the gravity of the crime and the requirement "to satisfy the punitive and deterrent and preventive purposes of punishment" a non parole period of four years or less would be so derisory as to put such a short period completely out of mind. The appellant, despite his HIV status, must suffer a penalty to fit his crime.

20 The problem is we cannot know now when his health will begin rapidly to deteriorate. The only thing is to wait and see and then to take action. The learned judge had in mind the exercise of the royal prerogative of mercy. I suggested during argument not fixing a non parole period at all, thus allowing the prisoner to apply to have one fixed at a time when his life expectancy could be assessed more confidently. On reflection that is less satisfactory than relying on the royal prerogative.

21 The learned judge was quite right. I suggest the appeal be dismissed.

Nyland J:

22 I agree that the appeal should be dismissed for the reasons expressed by Millhouse.

Perry J

1 I agree with Millhouse J that the appeal should be dismissed. I agree substantially with the reasons which he has given.

2 However, I would wish to say something further as to the question of "cultural background".

3 To its great benefit, the Australian community was, after the second world war, enriched by a wave of migrants from European countries ravaged by the horrors of that war.

4 More recently, over the last decade or so, the quality of life in Australia has been enhanced by the great contribution made to it by a second wave of migrants, largely political refugees, from Asian countries.

5 When migrants come before the criminal courts of this country, it is sometimes suggested that allowance should be made for cultural differences, or for the effect upon a particular defendant of harrowing, sometimes shocking experiences endured before migration.

6 Taking the latter point first, as to any such experiences which may serve to explain anti-social behaviour after the defendant has been accepted into the Australian community, appropriate allowances should be made in the sentencing process. To do so is not to impose one system of law for migrants and another for non-migrants.

7 There is only one system of law in this country. But accepting that there is only one system of law, it is nonetheless part of that system that appropriate allowance be made for the personal antecedents of the defendant. This includes allowing for disadvantages or unfortunate experiences suffered by a defendant where such factors may help to explain the offending. That principle is applied equally to migrants and non-migrants. It is a very important sentencing principle. It is expressly recognised in s10(l) of the Criminal Law (Sentencing) Act 1988 which obliges the sentencing court to have regard to "the character, antecedents, age, means and physical or mental condition of the defendant".

8 In Wacyk , [1] this court dealt with an appeal against sentence for perjury involving a 68 year old Polish migrant who, before coming to this country, was arrested and beaten by the Germans then in occupation of Poland during the second world war, after which he was taken to a forced labour camp in Germany from which he escaped, only to be re-arrested. On top of that, he was later arrested and imprisoned by Russian agents, from whom he escaped to find his way to Australia. I said in that case: [2]

"Courts in Australia must be astute to do their best to understand the effect upon the outlook and sense of values of migrants from central Europe whose lives were scarred in ways which it is difficult for us to understand by the systematic and degrading assault on human life and dignity perpetrated by the Nazi regime." 9 As for cultural differences, they may sometimes and quite properly be taken into account, particularly so as to explain an individual's reaction to situations involving personal relationships involving tension or conflict.

10 In this connection, I refer to the judgment of Brennan J in Neale v R . [3] His Honour there observed that consideration of emotional stress "is commonplace in the exercise of the sentencing discretion". [4] He went on to refer to the "particular example of emotional stress arising from problems existing in Aboriginal communities in North Queensland". He concluded: [5]

"The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice." 11 In some cases, there may be important differences which need to be recognised in the significance attached to maintenance of the extended family unit and perceived obligations arising within that unit. What might be regarded as a personal insult in such circumstances or in other situations, might not be so regarded by members of the community at large who do not share the offender's cultural background.

12 It is right and proper that the criminal law should be sensitive to the subtle cultural factors which may contribute to offending, particularly those which involve violence between individuals, which might otherwise seem inexplicable.

13 In this case, the violence which erupted between the appellant and the victim of the murderous attack which he committed was carried out against the background of a highly charged emotional reaction on the part of the appellant to what he perceived to be the insult to him of the rumour circulating within a small community that, while suffering from AIDS, he was having an adulterous affair. What is more, the suggestion was that he was having such an affair with someone who, in his community, was regarded as a member of his family.

14 It is clear enough on the evidence that when the appellant went to the house of the victim he intended to confront him, believing him to be one of those responsible for the rumour.

15 Of course, notwithstanding those matters of background, nothing can excuse the crime which the appellant perpetrated. Furthermore, there remains the need to send a message by way of general deterrence to the community at large that, whatever the background of the offender, violence of this kind will attract a severe penalty.

16 But even allowing for that, the criminal courts must be astute to remain sensitive to the antecedents of our migrant population and the sometimes subtle cultural factors which may go towards explaining the commission of a particular offence.

17 In some cases, and this is one such case, the allowance to be made for such factors, because of the very nature of the offence, cannot be great. But where appropriate it must always be recognised.

18 Notwithstanding those observations, this was a particularly serious murder. While the fact that the appellant is HIV positive is a complicating circumstance, I agree with the remarks of Millhouse J as to how that aspect of the matter is to be approached.

19 In all the circumstances, I do not think that it could be said that the non-parole period is manifestly excessive. It is consistent with that which was imposed in another multiple stabbing case which was recently before this Court. In that case, Georgatsoulis , [6] a non-parole period of 25 years, imposed before the truth in sentencing legislation, was upheld on appeal.

20 I would dismiss the appeal.

FOOTNOTES:
[1] Court of Criminal Appeal (Doyle CJ, Millhouse and Perry JJ) 16 May 1997, unreported, judgment No S5622.2.

[2] Ibid 3.

[3] (1982) 149 CLR 305.

[4] Citing Veen v R (1979) 143 CLR 458 per Jacobs J at 490.

[5] 149 CLR 326. See also R v Shannon (1991) 57 SASR 14 per Zelling J at 19, and generally Australian Law Reform Commission, Multiculturalism and the Law, Report 57 (Canberra: AGPS, 1992) paragraph 8.13. The need to have regard to the cultural background of offenders has been emphasised in other cases involving Australian Aborigines: see, for example, Juli v R (1990) 50 A Crim R 31; Rogers v R (1989) 44 A Crim R 301.

[6] (1994) 62 SASR 351.