R v Kotevski

[1998] NSWCCA 1

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Kotevski [1998] NSWCCA 1
Hearing dates:	3 April 1998
Decision date:	03 April 1998
Before:	James J at [1]; Hulme J at [34]; Simpson J at [59]
Decision:	Leave to appeal against sentence granted but appeal dismissed
Catchwords:	CRIMINAL LAW AND PROCEDURE – appeal against sentence – malicious wounding with intent to do grievous bodily harm – victim was applicant's estranged wife – applicant lost self control while under stress – whether sentencing judge failed sufficiently to take into account applicant's belief that his wife had treated him unfairly – whether sentencing judge should have entered into a determination of the merits of the matrimonial disputes between the applicant and his wife
Legislation Cited:	Crimes Act 1900 (NSW), s 33 Criminal Appeal Act 1912 (NSW), s 6AA Evidence Act 1995 (NSW) Sentencing Act 1989 (NSW), s 5(2)
Cases Cited:	R v Farroukh (Court of Criminal Appeal (NSW), 29 March 1996, unrep) R v Phelan (1993) 66 A Crim R 446 R v Fernando (1992) 76 A Crim R 58
Category:	Principal judgment
Parties:	Bill Kotevski (Applicant) Regina (Respondent)
Representation:	Counsel: K F Morrissey (Applicant) P G Berman (Respondent)   Solicitors: Stockman & Evans (Applicant) S E O'Connor (Respondent)
File Number(s):	60405/97
Decision under appeal	Court or tribunal: District Court Before: Cooper DCJ

Judgment

1. JAMES J: Bill Kotevski has applied for leave to appeal against a sentence imposed on him in the District Court by Judge Cooper, following a plea of guilty to a charge of malicious wounding with intent to do grievous bodily harm. In sentencing the applicant Judge Cooper took into account a further offence of assault occasioning actual bodily harm. His Honour sentenced the applicant to a term of penal servitude for three years, consisting of a minimum term of two years three months commencing 10 September 1996 and an additional term of nine months. The applicant had been continuously in custody since 10 September 1996, which was the date on which the offences were committed and the applicant was arrested. Under section 33 of the Crimes Act the offence of malicious wounding with intent to do grievous bodily harm carries a maximum penalty of penal servitude for twenty-five years.

2. The application for leave to appeal originally came on for hearing on 30 March 1998 before a Bench consisting of two judges of this Court, Hulme and Simpson JJ, pursuant to a direction given by the Chief Justice under section 6AA of the Criminal Appeal Act. However, as on 30 March those two judges were divided in opinion, the proceedings fell to be re-heard and determined by a Bench constituted by three judges (see section 6AA(5)). Both Hulme and Simpson JJ are on the present Bench and I am the third member.

3. The sentencing judge's statement of the facts of the offences in his remarks on sentence was largely derived from a facts sheet which had been admitted into evidence without objection in the proceedings on sentence. The victim of the principal offence under s 33 of the Crimes Act was the applicant's wife. The applicant and his wife were estranged and living apart and proceedings between them had been commenced in the Family Court. His Honour found that there was bitterness on both sides. Notwithstanding that they were estranged and living apart and court proceedings had been commenced between them, the applicant and his wife continued to work together in a takeaway food business conducted by the applicant's wife in premises at Lidcombe.

4. On 10 September 1996 the applicant and his wife were in the food preparation area in the premises at Lidcombe. On that day there was a dispute between them about whether one of their children should be given permission to build a carport at a property at Auburn where the applicant's wife was living. The sentencing judge found that the applicant "snapped", that is lost his self-control, and, on the spur of the moment, attacked his wife. In this attack the applicant successively used three kitchen implements which happened to be nearby. At first he picked up a scraper, held his wife down and repeatedly stabbed her with the scraper on the back of her head and her neck. A number of persons heard the wife's screams and came to her assistance. The applicant was forced to let go of the scraper, by one of these persons jabbing at him with a shovel and by his wife grabbing his arm.

5. The applicant then grabbed an implement similar to a trowel and with this implement began stabbing his wife to the back of her head and her neck. The applicant's wife grabbed the applicant's arm and he let go of the implement. The applicant then picked up a long bladed knife, went over to his wife, grabbed her, rolled her over and lunged at her with the knife. Another person managed to take the knife away from the applicant but in the course of struggling with the applicant this person suffered a number of scratches and lacerations to his hand. The inflicting by the applicant of these injuries constituted the offence of assault occasioning actual bodily harm. The applicant was arrested by police who had been called to the scene. The applicant's wife was taken to hospital, where she was found to have lacerations and bruising to her head. The lacerations were treated by suturing.

6. After the applicant was arrested he was interviewed by police in an electronically recorded interview. An attempted transcript of the questions and answers in this interview was admitted into evidence in the proceedings on sentence. In the transcript there are many rows of dots in the applicant's answers and I infer that many parts of the applicant's answers could not be transcribed. In the interview the applicant admitted that he had stabbed his wife with a scraper but said that he had no recollection of using any other weapon. In the interview the applicant said that he had been married to his wife for many years. In the interview he made a number of complaints about his wife, asserting inter alia that she had "kicked him out" of the take-away food business, which the two of them had jointly owned for many years; that she had claimed that she was the sole owner, to the exclusion of the applicant, of the property at Auburn; that she had taken the keys of the property at Lidcombe and the property at Auburn; that she had claimed that a unit in Greece which belonged to the applicant was owned by her and her brother; that she had in effect adopted a course of seeking to benefit her relatives to the detriment of the applicant and her and the applicant's children; and that after saying that she would not oppose proceedings in the Family Court by the applicant, she had not co-operated in the proceedings which the applicant had brought.

7. In his remarks on sentence the sentencing judge, said that "this was a vicious heated attack on a woman with a number of weapons". His Honour said that the existence of matrimonial disputes between the applicant and his wife and a feeling on the applicant's part that his wife was being unreasonable in those disputes was no excuse for such an attack on her. His Honour accepted that the attack was not premeditated and that the weapons used had been used "opportunistically", that is because they happened to be nearby when the applicant lost his self-control and not because the applicant had formed a plan to use them.

8. The applicant was born in Macedonia in 1927 and was, accordingly, about seventy years old at the time he was sentenced. He had migrated to Australia in 1960. The victim was his second wife, to whom he had been married for many years. He had a history of working hard and he had no previous criminal convictions at all. He had made early admissions and had pleaded guilty. He was contrite. Because of his age and his limited command of English, he was likely to find imprisonment more than usually onerous.

9. There was admitted into evidence in the proceedings on sentence a report by Dr Jonathon Carne, a psychiatrist, who had seen the applicant on 21 May 1997. In his report Dr Carne recorded inter alia that the applicant had told him that his wife's family had refused to allow him to stay in his unit in Greece, that ownership of the interest he had had in the unit in Greece had been transferred from him to his wife's relatives, that his wife had failed to co-operate in the divorce proceedings, that the title deeds to the Auburn property were missing and that his wife had made a false accusation that the applicant had assaulted her. Dr Carne stated that he found that the applicant displayed a number of symptoms of depression and he diagnosed the plaintiff as suffering from an adjustment disorder with depressed mood, that is a depressive illness. Dr Carne recommended that the applicant have regular counselling with a Greek speaking psychiatrist or psychologist. Under the heading "mitigating factors" in his report, Dr Carne said inter alia of the offence:-

"It was an impetuous act and not, in my view, premeditated. The stressors were:

1. Long drawn out divorce proceedings and continuing conflict with his wife.

2. His feeling that his wife had defrauded him of properties, some of which he had planned to be gifts to his children".

10. Dr Carne also referred to some of the applicant's subjective circumstances as amounting to "stressors".

11. An earlier report in 1996 from Dr Corcos, a forensic psychiatrist associated with the Corrections Health Service, which was also admitted into evidence in the proceedings on sentence, was in a number of respects in marked contrast to Dr Carne's report. Dr Corcos concluded that he found no evidence that the applicant was suffering from any mental illness, although he thought it possible that the applicant had paranoid personality traits, "which would tend to colour his judgment of events". In his report Dr Corcos referred to the history of matrimonial disputes between the applicant and his wife, saying:-

"Over the past five years since the separation there have been ongoing conflicts within the marriage based - as Mr Kotevski reports them - on his desire for a divorce and her refusal to grant one, a sense of both wanting ownership of the loyalty of their three sons and major conflict about their jointly owned properties".

12. Also admitted into evidence in the proceedings on sentence was a statement by the applicant's wife. This statement dealt mainly with the attack by the applicant on his wife which was the subject of the charge and contained only a little information about the matrimonial disputes between the applicant and his wife. However, the statement did contain assertions by the applicant's wife that the property at Lidcombe was owned, not by either the applicant or his wife, but by one of their adult sons and, that the property at Auburn was jointly owned by the applicant and his wife and that on 10 September 1996 there had been an argument, between the applicant on the one side and the applicant's wife and one of their sons on the other side, about whether a garage should be built at the Auburn property so that the sons could park their cars at the property.

13. In his remarks on sentence the sentencing judge expressly declined to enter into a determination of the merits of the matrimonial disputes between the applicant and his wife. The sentencing judge said:-

"I do not propose to go into the rights and wrongs of the conduct of the prisoner and his wife in relation to those matrimonial proceedings. Suffice it to say that there is some bitterness between both of them and by that I mean bitterness on both sides".

14. When the application for leave to appeal against sentence came on for hearing on 30 March, the only submission originally made by counsel for the applicant was that the sentencing judge had erred in not finding that there were special circumstances within s 5(2) of the Sentencing Act. In his remarks on sentence the sentencing judge had stated that, having given consideration to whether there were special circumstances, he had concluded that there were not. On 30 March counsel for the applicant expressly stated that he did not challenge the total sentence imposed by the sentencing judge, conceding that the total sentence was "within range". However, in exchanges between counsel and the bench on 30 March, it was suggested to counsel that the sentencing judge might have erred in not taking into account in sentencing the applicant the applicant's belief that he had been unfairly treated by his wife and the applicant's consequential feelings of anger and frustration and in not taking into account the extent to which, on the evidence in the proceedings on sentence, there seemed to be justification for the applicant having a belief that he had been unfairly treated by his wife. It was shortly after these suggestions had been made that the proceedings were adjourned. On the adjourned date submissions were made which were based on the suggestions which had been made on 30 March.

15. In my opinion, there are three questions to be determined in relation to the total sentence imposed:-

1. Whether the sentencing judge erred in not taking into account, or in not sufficiently taking into account, the belief by the applicant that he had been unfairly treated by his wife and the applicant's consequential feelings of anger and frustration.

2. Whether the sentencing judge erred in declining to enter into a determination of the merits of the matrimonial disputes between the applicant and his wife.

3. Whether in any event a less severe sentence was warranted and should have been passed.

16. I will deal with each of these questions in turn.

1. As to the first question:-

17. The Court was referred to passages in the remarks on sentence, including a passage where the sentencing judge stated that the existence of the matrimonial disputes and the feeling on the applicant's part that he had been given "a raw deal" by his wife provided "no excuse" for the attack by the applicant. It was, of course, accepted by counsel for the applicant that the applicant's belief that he had been unfairly treated by his wife and his consequential emotional state did not provide any legal defence to the charge which had been brought against him. However, it was contended that the belief by the applicant that he had been unfairly treated and his consequential emotional state were relevant to assessing the degree of seriousness of his criminality and were consequently relevant to the sentencing of the applicant. It was contended that the passage in the remarks on sentence to which I have referred showed that the sentencing judge had, erroneously, proceeded on the basis that the applicant's belief and emotional state were irrelevant to the sentencing task.

18. I do not consider that the sentencing judge proceeded on the basis that the applicant's belief and feelings about his wife were irrelevant in the sentencing of the applicant. On the contrary, I consider that his Honour took into account the applicant's belief and feelings about his wife, in reaching the findings his Honour clearly made that the attack by the applicant on his wife was not pre-meditated and that the applicant while subject to stress had "snapped" and had "on the spur of the moment' engaged in a "heated" attack. I consider that the sentencing judge should be regarded as having adopted the same process of reasoning as that used by Dr Carne in his report, namely that it should be concluded that the applicant's attack was not pre-meditated but was an impetuous act, which occurred as a result of stresses, including the long drawn out divorce proceedings, the continuing conflict with his wife and the feeling that his wife had defrauded him of properties. I do not consider that his Honour was required to take the applicant's belief and feelings about his wife any further into account, unless the second question is resolved favourably to the applicant.

2. As to the second question:-

19. I have already referred to the passage in the sentencing judge's remarks on sentence where his Honour said that he would not enter into a determination of the merits of the matrimonial disputes between the applicant and his wife.

20. The question of whether the sentencing judge should enter into a determination of the rights and wrongs of the matrimonial disputes had arisen in the proceedings on sentence, in an exchange between the sentencing judge and the applicant's legal representative in those proceedings, Mr Craigie. The transcript of this part of the proceedings on sentence reads as follows:-

"CRAIGIE: Well at that stage in their relationship things had become so impossible, so intractable and the relationship so poisonous that for the two of them to be working together in the one place really did tempt human restraint and whilst what Mr Kotevski did is totally inexcusable, one can see, in the background, how the pressures were building for there to be some sort of potential outburst.

Now your Honour as to who was in the right or wrong is largely irrelevant---

HIS HONOUR: Well I certainly don't propose to sit in judgment on the matrimonial dispute.

CRAIGIE: No your Honour.

HIS HONOUR: It's quite clear that there was a dispute which caused a lot of ill feeling between them. Who was right and who was wrong is irrelevant.

CRAIGIE: Indeed..."

21. It can be seen that in the proceedings on sentence the applicant's legal representative conceded that the question of who was in the right and who was in the wrong in the matrimonial disputes was irrelevant, or at least "largely irrelevant".

22. In my opinion, the concession made by the applicant's representative in the proceedings on sentence was properly made and the sentencing judge was justified in adopting the position that he would not enter into a determination of the merits of the matrimonial disputes.

23. In the first place, it would have been quite impracticable for the sentencing judge to have attempted to make findings on the merits of the disputes, on the limited material available to him and within the confines of a sentence hearing. The matrimonial disputes ranged over many matters, including the take-away food business, the property at Lidcombe, the property at Auburn, the unit in Greece and the proceedings in the Family Court and extended to include the parties' children and the wife's relatives. The material relevant to the disputes, which was available to the sentencing judge, was quite limited. The applicant did not give any oral evidence in the proceedings on sentence. It is true that the sentencing judge had the transcript of the interview of the applicant by the police but this transcript was incomplete and in places incoherent and it is quite apparent from a reading of the transcript that at the time of the interview the applicant was highly emotional and incensed against his wife. The sentencing judge had the history contained in Dr Carne's report but he also had the rather different history recorded in Dr Corcos' report. It is a matter of notoriety that in bitter matrimonial disputes a version of events given by either spouse is likely to be lacking in objectivity and balance, but the sentencing judge had no evidence from the applicant's wife with which to test the applicant's version, apart from what was contained in her statement given to the police, which was mainly concerned with the facts of the offence. Even in that statement there are indications that the applicant's version of the history of the marriage might not be the whole truth, for example in her assertions that the property at Lidcombe was owned, not by either the applicant or the applicant's wife, but by one of their children and her assertion that in the dispute which had occurred on the day the offence was committed one of the parties' children had sided with her and not the applicant. It would have been quite impracticable for the proceedings on sentence to have been enlarged, so that a sufficient body of evidence could be received to enable the sentencing judge to make findings, with any degree of confidence, about the merits of the matrimonial disputes.

21. In the second place, and more fundamentally, even if it had been practicable to determine the rights and wrongs of the matrimonial disputes and even if the sentencing judge had concluded that there was justification for the applicant believing that his wife had treated him unfairly, nevertheless, in my opinion, such a conclusion would have provided little if any mitigation of the applicant's criminality in attacking his wife as he did, over and above the mitigation flowing from the findings his Honour did make, that the applicant's offence was unpremeditated and committed on the spur of the moment as a result of the applicant losing self control while under serious stress.

22. I have accordingly concluded that both of the first two questions I have posed should be answered adversely to the applicant.

3. As to the third question:-

26. In my opinion, the objective circumstances of the principal offence, even after taking into account the applicant's beliefs and feelings about his wife and the applicant's favourable subjective circumstances, were such as to call for the imposition of a total sentence of the order of the sentence imposed by the sentencing judge.

27. In my opinion, the challenges made to the total sentence imposed have been unsuccessful.

28. On the adjourned hearing counsel for the applicant continued to press the submission that the sentencing judge erred in not finding that there were special circumstances and that his Honour should have found that a number of subjective circumstances of the applicant, either singly or in combination, amounted to special circumstances. The circumstances relied on included the early admissions and the plea of guilty, the contrition manifested by the applicant, his age, the absence of any previous convictions, his good character, the diagnosis by Dr Carne that the applicant had an adjustment disorder with depressed mood and Dr Carne's recommendation that he should have regular counselling with a Greek-speaking psychologist or psychiatrist.

29. As regards the diagnosis and recommendation by Dr Carne, I have already indicated that another psychiatrist, Dr Corcos, who examined the applicant, had found that the applicant did not have any psychiatric disorder. The applicant did not give evidence in the proceedings on sentence. Neither psychiatrist was cross-examined. In those circumstances the sentencing judge would have been entitled to discount Dr Carne's evidence.

30. There have undoubtedly been judgments in this Court in which it has been said that some favourable subjective circumstance or some combination of favourable subjective circumstances warranted or required the finding of special circumstances within section 5(2). However, a stricter attitude towards the interpretation and application of section 5(2) of the Sentencing Act has subsequently emerged in cases such as R v Phelan (1993) 66 A Crim R 446 and R v Farroukh (Court of Criminal Appeal (NSW), 29 March 1996, unrep) and has continued to the present.

31. Applying the principles stated in those cases, I do not consider that it could be held that the sentencing judge erred in the exercise of his discretion in not finding there were special circumstances.

32. I propose that leave to appeal against the sentence be granted, but that the appeal against sentence be dismissed.

33. I will call on Hulme J to give the next judgment.

34. HULME J: On 17 July 1997 this applicant for leave to appeal pleaded guilty to a charge that he on 10 September 1996 did maliciously wound Antonia Kotevski with intent to do grievous bodily harm. He asked that there be also taken into account an offence that on the same date he assaulted a further person thereby occasioning him actual bodily harm. The sentence imposed was one of three years penal servitude consisting of a minimum term of two years, three months and an additional term of nine months. The commencement date for the first term was 10 September 1996, when the applicant went into custody. The sentencing judge, Cooper DCJ, concluded that there were no special circumstances.

35. The applicant is aged seventy-one. He has no prior criminal convictions. There had been some Apprehended Violence Orders against him in the past, which the judge did not hold against the applicant, saying that there was none current at the time of his offence.

36. The applicant arrived in Australia from Macedonia in 1960. After he could afford to do so, he brought his first wife and children to Australia in 1969. He met his second wife, the victim of the offence, in 1970; and they have three children, now adults. The applicant has worked hard all his life to support himself and his families.

37. During the course of a number of years prior to the subject offence, there had been matrimonial disputes, proceedings in the Family Court and bitterness on both sides between the applicant and his wife.

38. On the occasion in question they were in the food preparation area of a takeaway food business run by the victim, discussing a proposal for their son to build a car-port in a jointly owned premises. During the course of the discussion the applicant snapped. He attacked his wife by stabbing her with what may be most readily described as a paint scraper, used to scrape fat or items off the grilling plate. When persons nearby intervened and took this, he grabbed an article like a pointed trowel and repeated these actions. When in turn he lost this, he grabbed a knife and did the same. Finally he was restrained by persons who had intervened. It was relatively minor injuries to one of them which formed the foundation for the offence also taken into account.

39. Apart from bruising and abrasions, the applicant's wife suffered four wounds to the face and head, which required in all twenty-two sutures. She lost an estimated five hundred millilitres of blood. She and the applicant were very fortunate that the wounds were not more serious.

40. It is clear that the applicant's offences were not premeditated, although the transcript of the applicant's ERISP is very incomplete and, to some extent, incomprehensible; due, I suspect, to the applicant's pronunciation and other problems with the English language. When one has regard to statements in it and others made to a psychiatrist who furnished a report on his behalf, it is completely clear that the applicant had intense feelings of frustration or anger arising out of a property dispute with his wife and apparent inability to achieve resolution of this, in proceedings which he had instituted in the Family Court and which had stalled, as he saw it, at least in part by conduct of his wife.

41. However, as Cooper DCJ said at the time of imposing sentence, "the fact that there have been matrimonial disputes over prior years, the fact that the applicant felt that he had been given a raw deal by his wife, and that is wife was being unreasonable, is no excuse for an attack on her of this nature" and "Unfortunately, attacks by frustrated husbands, estranged from their wives, are becoming all too common in this community and citizens do look to Courts to impose sentences which will be a deterrent...".

42. Initially the only ground of appeal advanced in this Court was that his Honour erred in finding that there were no special circumstances and in not holding that a greater proportion of the total sentence imposed should have been by way of an additional term. Reliance was placed on the applicant's age, his past record, his co-operation with the police, his guilty plea, the marital dispute and the opinion of a psychiatrist, whose report was tendered before the sentencing judge, that the applicant was suffering from a depressive illness which should be treated by regular counselling with a psychiatrist or psychologist who spoke the applicant's native language.

43. A difficulty with this last matter is that the conclusion that the applicant was suffering from a depressive illness was directly contrary to the opinion of another psychiatrist, neither of whom was cross-examined, and the applicant himself gave no evidence. I do not see that in these circumstances this Court could never reach a conclusion on such an issue, but in the instant case neither the material in the reports nor other evidence enables me to do so; and when regard is had to the purpose behind the concept of special circumstances in section 5(2) of the Sentencing Act and the other matters referred to, do not, in the circumstances of this case, constitute or contribute to constituting special circumstances.

44. In significant measure the submissions advanced on behalf of the applicant ignored the principles for which R v Phelan (1993) 66 A Crim R 446 and R v Farroukh (Court of Criminal Appeal (NSW) 29 March 1996, unrep) are authority, that generally what constitutes a matter of special circumstances within the meaning of section 5(2) is its provision of the need or desirability of an offender being subjected to an extended period of conditional release subject to supervision on parole; and that factors which do no more than argue for a shorter minimum or total term do not constitute special circumstances for the purposes of the sub-section.

45. Although Wood J in R v Fernando (1992) 76 A Crim R 58 would seem to have adopted a less restricted view of what might constitute special circumstances, the later cases constrain this Court.

46. In further supplementary submissions counsel for the applicant widened his attack upon the sentence imposed to contend it was, in totality, excessive and that the sentencing judge had failed to give proper weight to a number of the matters to which reference has already been made, and to the applicant's background. There was, in my view, more substance in this ground.

47. His Honour was, as I indicated, correct in his remarks to the effect that the applicant's matrimonial disputes and any feeling that he had been given a raw deal by his wife was no excuse for an attack on her. However, in his desire to stress both passages which I have quoted and others that, "The message has to be sent out to those who are estranged from their spouses that the Courts will not tolerate the resort to violence, particularly violence where weapons are used", his Honour in my view overlooked the fact that matters which do not excuse the commission of an offence may be very relevant to the magnitude of an offender's criminality and the appropriate sentence to be imposed. It could, for example, hardly be suggested that a woman who attacked her husband in response to, or in retaliation for, his treatment towards her could not pray, in aid of a plea for a reduced sentence, the nature and history of the relationship and disputes between them. The fact that the offender is a man and the victim is his wife does not make irrelevant factors which would be taken into account if the roles were reversed or in other relationships.

48. His Honour's concern with matters other than those before him is apparent also in another passage in his reasons, where he said:

"There is no doubt that women generally, and estranged wives in particular, are concerned that the Courts impose a sentence which sends out a message to the community that they are not to be assaulted merely because they do not comply with their estranged husband's wishes."

49. There was nothing before his Honour to suggest that the applicant's attack on his wife was merely because she would not comply with her estranged husband's wishes.

50. Although his Honour said at one time that the applicant had become frustrated, he said he did not propose to go into the rights and wrongs of the conduct of the applicant and his wife in relation to the matrimonial proceedings and nowhere in his reasons is there any recognition that the stresses or strains on the applicant, whether due to his wife or not, may have been such as to reduce the applicant's criminality. Yet, the evidence suggested that the applicant had been subjected to considerable stresses and strains by the victim of his attack. It is true that the evidence came almost exclusively, directly or indirectly, from the applicant. It was contained in his ERISP, and in the history which he had given to the psychiatrist, Dr Carne. The first of these documents was tendered by the Crown. The Crown did not call any evidence to suggest that those matters were in dispute.

51. Nor was there any order made by his Honour under the Evidence Act to limit the weight or operation to be given to the history recounted to Dr Carne. Although, of course technically, his Honour may not have been required to accept what the applicant has said, in circumstances where much of which was tendered by the Crown, where there was no suggestion by the Crown that it was in dispute, it was wrong in my view for his Honour not to accept it and certainly wrong to take the stance he did that he would not go into the rights and wrongs of the matters in dispute in matrimonial proceedings.

52. His Honour recorded that over his lifetime the applicant had worked hard. In his ERISP he stated that he had and, one may infer with the help of his wife, acquired or acquired an interest in three assets. One was a unit in Greece, for which the applicant said he had paid $44,000; a second was a house property in Auburn in the joint names of the applicant and his wife; and the third was some interest in the property at which the assault occurred. This property consisted of a shop, a residence above and a two roomed residence at the back. Although there was evidence from Mrs Kotevski that this was owned by a son, the applicant said that he and his wife had owned the business for twenty-one years and had lived there, upstairs. Among his answers in the ERISP were the statements,

"I no have key for nothing property, take me key from the property at Lidcombe, take me key from the property in Auburn."

and that his wife "kick me out from everything" and, "You can't get nothing property, you losing everything". He said also that his wife had told him that the property in Greece was not his, but that it belonged to her and her brother.

53. The applicant commenced proceedings in the Family Court for divorce and property settlement. As I read what he said, this was with the agreement of his wife. The Court apparently requested more evidence, the applicant looked to his wife to co-operate in attending, but she failed to do so on more than one occasion. The proceedings languished.

54. As I have said, there was nothing before his Honour to suggest this evidence was not, in substance, correct. If it was, the applicant, after a lifetime of work, had its product substantially taken away from him by the victim. He did what he could by legal means to redress what he saw was the wrong done and was again frustrated. While this does not excuse the applicant's conduct, I find it impossible not to regard it as relevant to his criminality on two counts: the first is the applicant's perception of events; the second is the history of the events themselves.

55. With respect to those who may take a contrary view, I regard the frustration apparent in the ERISP and the events there detailed as very relevant to any judgment of the applicant's criminality and, as I have said, it is I think clear that his Honour refused to consider probably at all, but certainly to any significant degree, this issue. It is, I think, appropriate to record that he was encouraged and certainly not dissuaded from this approach by counsel who appeared for the applicant in the sentencing proceedings.

56. Both the sentencing judge and counsel expressed themselves as saying who was right and who was wrong was irrelevant; his Honour also said that the background of a longstanding dispute did not help the applicant. It follows that, in my view, the sentencing of the applicant miscarried and unless the view is taken the sentence was in any event correct, this Court should re-sentence the applicant. There can be no doubt that a custodial sentence was called for but, on the evidence before the sentencing judge and that which is before us, the appropriate terms are less than what was imposed.

57. Three factors in particular lead me to that conclusion: the first is that during a lifetime of seventy years, and with the possible exception of the Apprehended Violence Orders which his Honour regarded as irrelevant to his task, the applicant had not come into adverse contact with the law. The second is the extent of the stresses imposed upon him. I would apprehend that at his age to see what may have seemed the product of a lifetime taken, would be very, very stressful to most people. The third factor is that the applicant would seem to have done what he could to sort out, by legal means, his difficulties.

58. I am of the view that a total sentence of two years, consisting of a minimum term of eighteen months and an additional term of six months would have been apposite. Having regard to the fact that the applicant has already served more than eighteen months, it might be necessary to hear the parties on matters of detail attendant on those terms; but that topic may be left for the moment.

59. SIMPSON J: I agree with the orders proposed by the presiding judge for the reasons he has given.

60. JAMES J: The orders of the Court are the orders proposed by me. Those orders are that leave to appeal against sentence be granted, but that the appeal against sentence be dismissed.

**********

Decision last updated: 31 March 2017