R v Mako

[2004] NSWCCA 90

CITATION:	Regina v Keri Damon Mako [2004] NSWCCA 90 revised - 1/07/2004
HEARING DATE(S):	22 March 2004
JUDGMENT DATE:	7 April 2004
JUDGMENT OF:	Studdert J at 32; James J at 33; Dunford J at 1
DECISION:	Leave to appeal granted - appeal allowed - applicant re-sentenced
CATCHWORDS:	Criminal Law - Sentencing - maliciously inflict grievous bodily harm - form of sentence - utilitarian value of plea of guilty
LEGISLATION CITED:	Crimes Act 1900 s 35 Crimes (Sentencing Procedure) Act 1999 ss 3A, 21, 44 Crimes (Sentencing Procedures Amendment (Standard Minimum Sentencing) Act 2002 Criminal Appeal Act 1912 s 6
CASES CITED:	R v Galati [2003] NSWCCA 148 R v Glen (CCA - 19 December 1994) R v Hansen [2002] NSWCCA 321 R v Lloyd at [2003] NSWCCA 49 R v Rowe (1996) A Crim R 467 R v Thomson [2000] NSWCCA 309, 49 NSWLR 383
PARTIES :	Regina v Keri Damon Mako
FILE NUMBER(S):	CCA 60449/03
COUNSEL:	G I O Rowling (Crown) H L A Cox (Appellant)
SOLICITORS:	S E O'Connor (Crown) Legal Aid Commission (Appellant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/31/0034
LOWER COURT JUDICIAL OFFICER :	Cooper DCJ

- 8 -

60449/03

STUDDERT J
JAMES J
DUNFORD J

WEDNESDAY 7 APRIL 2004

REGINA v KERI DAMON MAKO

Judgment

1 DUNFORD J: This is an appeal by Keri Damon Mako against the sentence of imprisonment for 3 years with a non-parole period of 2 years imposed upon him by his Honour Judge Cooper in the District Court at Gosford on 27 March 2003 following his plea of guilty to one count of maliciously inflict grievous bodily harm, contrary to s 35(1)(b) of the Crimes Act 1900 which offence carries a maximum penalty of imprisonment for 7 years. The sentence was backdated to 5 November 2002; to take account of pre-sentence custody.

2 The facts were that on the evening of 4 November 2002, the applicant attended a party at Kincumber with his brother, Paul Mako, and his brother’s girlfriend, Sonja Lewin, where the applicant and his brother consumed a considerable amount of alcohol and smoked marijuana. The three of them left the party at approximately 1:00am the following morning intending to return to the Mako home in Umina.

3 On the way, an argument developed between the applicant and his brother, who was driving, and at one stage, they got out of the car and had a fight. They then resumed their journey, the argument resumed, the brother driving the car, Ms Lewin in the front passenger seat and the applicant sitting behind her.

4 As the argument continued, the applicant picked up a pair of scissors that were on the back seat of the car, put them in front of Ms Lewin’s neck and cut her throat, causing a laceration some 10 centimetres long which required 10 sutures. Although he initially decamped from the scene, the applicant was shortly afterwards arrested, and when interviewed he made full admissions. He stated that he cut the victim’s throat as he was angry with his brother for not taking him home.

5 The applicant was born on 12 April 1977 and was 25 years old at the date of sentence. He was born in New Zealand, one of a family of three boys. His mother separated from his father when he was 8 years old, and shortly afterwards the family came to Australia where his mother subsequently re-married. He had close relationships with his immediate family, his new stepfather and his extended family, and his Honour found that it was a very loving, close and supportive family, and that they were all fine people.

6 He left school at 17 years, having twice attempted to complete Year 9. He commenced using alcohol at age 15 and shortly thereafter commenced using marijuana quite heavily. Prior to the commission of the offence, the applicant had been in a de facto relationship for some 3 years of which union there was a son, 2 years old at the time of sentencing. The relationship had broken down in difficult circumstance, in that his girlfriend left him and subsequently entered into a relationship with a close friend of the applicant, but he continued to see his son and was responsible on his overnight access visits. Prior to the offence, he had been in steady employment as a storeman and a reference from his employer attested to his reliability and conscientiousness.

7 The applicant had prior convictions for break enter and steal, supply cannabis, resist officer in execution of duty, use offensive language in/or near a public place, larceny, 2 convictions for assault occasioning actual bodily harm and 2 convictions for common assault. He had previously received sentences of periodic detention and community service orders, both of which he had failed to complete as a result of which he had served some short periods of imprisonment and he had received a suspended sentence of 4 months for assault occasioning actual bodily harm.

8 After his arrest for this offence, the applicant was refused bail and so had spent more than 4 months in prison by the time he appeared for sentence. During that time, he had apparently accepted that in reality, he had a drug and alcohol problem, and had been assessed as having the necessary motivation to undertake the Salvation Army Bridge Programme and a place in that program had been offered to him.

9 The applicant gave evidence that all his contact with the criminal justice system had been related to his use of alcohol and, although he had not previously sought specific help for his problem, he now realised that he needed to deal with his drug and alcohol problems in order to make a proper life for his son. Accordingly, he had been seeing a drug and alcohol counsellor at Long Bay and had attended a number of sessions of the stress management course.

10 In giving evidence the applicant acknowledged responsibility for what he had done and expressed his remorse. He had also written a letter of apology to the victim who had been visiting him in prison and had also written a letter to the Court supporting his admission to the Salvation Army Bridge Programme.

11 In sentencing the applicant, his Honour referred to the plea of guilty and noted that such plea demonstrated remorse and contrition, that he was accordingly entitled to a discount from what would otherwise be an appropriate penalty, and noted that he pleaded guilty at the earliest opportunity. His Honour then had regard to ss 3A and 21 of the Crimes (Sentencing Procedure) Act 1999 and found that there was a chance that at the age of 25 years, given the opportunity and the inducement, he could overcome his drug and alcohol abuse and thereby facilitate his rehabilitation, and that this constituted “special circumstances”, as that term was used in s 44 of the Act.

12 His Honour then sentenced the applicant to imprisonment and set a non-parole period of 2 years and a balance of the term of 1 year making a total of 3 years imprisonment, and made consequential orders for his release on parole at the expiration of the non-parole period.

13 The first ground of appeal relied on was that his Honour failed to comply with s 44 of the Crimes (Sentencing Procedure) Act 1999 in that he failed to firstly set the full term of the sentence, and secondly to set a non-parole period.

14 Section 44 as it stood prior to the amendments effected by the Crimes (Sentencing Procedures Amendment (Standard Minimum Sentencing) Act 2002 and in the form which applied in respect of offences committed before 1 February 2003 was as follows:

(1) When sentencing an offender to imprisonment for an offence, a court is required:
(a) Firstly, to set the term of the sentence, and
(b) Secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record for its reasons for that decision.

15 In respect of offences committed on or after 1 February 2003, the Act now provides:

(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

16 It follows that his Honour used the terminology appropriate for offences committed after 1 February 2003, in respect of an offence committed prior to that date and should have first fixed the total sentence followed by a non-parole period. It is apparent that his Honour clearly intended to impose a head sentence of 3 years, but having found special circumstances, intended to fix a non-parole period of 2 years instead of the 2 years and 3 months which would otherwise have been required by s 44(2).

17 However, I can see no difference between a head sentence of 3 years with a non-parole period of 2 years and a sentence consisting of a non-parole period of 2 years with a further term of one year however expressed; both amount to the same period of time in custody and the same period of time on parole.

18 In R v Hansen [2002] NSWCCA 321, a similar problem arose where the learned Sentencing Judge had erred in fixing the non-parole period first, followed by the “parole period” contrary to the Act as it stood at the date of sentencing, following the replacement 3 days earlier of the Sentencing Act 1989 by the current Act. This Court held at [21] it had power to re-adjust the sentence pursuant to s 43 of the Act and/or pursuant to s 6(3) of the Criminal Appeal Act 1912 to rectify any errors in the manner in which the sentences were expressed, but also held at [25] that by doing so it exercised a re-sentencing of the applicant, so that the Court could have regard to matters occurring since the original sentence was imposed.

19 Similarly in this case, the following of the wrong procedure in pronouncing the sentence constituted an error which enables this Court to re-sentence the applicant, and I deal with this aspect later.

20 The second ground of appeal was that the learned Sentencing Judge erred in failing to discount the sentence imposed on the applicant by reason of the utilitarian value of the plea of guilty.

21 In the guideline judgment of R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 at [160] sentencing judges were encouraged to specify the discount allowed for the utilitarian value of any plea of guilty as opposed to its relevance as evidence of remorse and contrition, and the saving of the requirement for vulnerable witnesses to give evidence, but it was further said at [113] that in appropriate cases it may be appropriate to specify a single discount to cover all aspects of the plea of guilty, and the failure to specify the amount of discount for the plea of guilty did not necessarily constitute error: at [72]. In all cases the important consideration is to expose the transparency of the process so that it can be seen that an appropriate discount has been allowed: at [162]. The utilitarian value of a plea is to be assessed by reference to the stage at which the plea is entered and the complexity and length of the trial in the absence of such a plea: at [154].

22 In R v Lloyd at [2003] NSWCCA 49, a 2 judge bench held that notwithstanding a reference by the Sentencing Judge to the fact that the pleas of guilty were entered in the Local Court, as there was no express reference to the utilitarian value of the plea, and having regard to the length of the sentence imposed, they were satisfied that the Judge had failed to give effect to the utilitarian value of the pleas and allow an appropriate discount.

23 On the other hand, in R v Galati [2003] NSWCCA 148 (another decision of a 2 judge bench) the Sentencing Judge had begun his Remarks on Sentence with a reference to the fact that the pleas were entered before the Local Court and so should be regarded as entered at the earliest opportunity, but made no further reference to their utilitarian value or any specific discount. It was submitted that these factors together with the fact that the sentences were expressed in round figures, suggested that no discount had been allowed for the utilitarian value of the pleas of guilty and that R v Lloyd should be followed with a similar result.

24 However at [23] James J (with whom Smart AJ agreed) rejected that submission, stating that whilst it would have been desirable for the Sentencing Judge to have quantified the discount he was allowing for the utilitarian value of the pleas, his Honour was clearly mindful of the pleas of guilty and that they had been entered at the earliest available opportunity, and concluded that, having regard to the objective seriousness of the offences and a number of negative subjective circumstances, the sentences imposed by their leniency did disclose that a significant discount had been allowed for the pleas of guilty.

25 In my opinion, similar considerations apply in the present case. His Honour in his Remarks on Sentence not only noted the plea of guilty, observed that it demonstrated remorse and contrition, and that the applicant was entitled to a discount on penalty on account of that, but went on to observe that he pleaded guilty at the earliest opportunity. Again later in his Remarks, he again referred to the fact that he had pleaded guilty at the earliest opportunity.

26 This was a very serious offence. Not only did the victim require 10 sutures to her throat leaving her with some disfigurement, but having regard to the location and size of the laceration, she was lucky that her injury was not more serious or possibly even fatal.

27 Having regard to his Honour’s vast experience in sentencing matters, the two references to the plea being entered at the earliest opportunity, and the comparatively lenient sentence imposed for an offence of this seriousness in the light of the applicant’s prior record, I cannot conceive that his Honour failed to take into account the utilitarian value of the plea of guilty or failed to allow a discount in respect of it within the range indicated in R v Thomson.

28 Moreover, I consider that the sentence imposed by his Honour, effectively a head sentence of 3 years with a non-parole period of 2 years, was such that for an offence of this seriousness, no lesser sentence would have been appropriate. I also note that, having regard to the circumstances and prior record of the applicant, it is well within the middle range of the statistics for this offence maintained by the Judicial Commission of New South Wales.

29 However, because of his Honour’s error in relation to s 44, it is necessary to re-sentence the applicant. This renders admissible the affidavits that have been filed which set out the progress made by the applicant whilst in prison, and the fact that he has undertaken with the victim’s family the “Closure Conference”, and that the victim has forgiven him.

30 The progress made by the applicant whilst in prison is only such as his Honour anticipated at the time of sentencing, as is the forgiveness by the victim who had written a letter to the Court prior to sentencing supportive of the applicant, and in any event forgiveness by the victim is only of limited relevance: R v Rowe (1996) A Crim R 467, R v Glen (CCA – 19 December 1994) The only matter that is really fresh is the Closure Conference. This is significant and I have taken it into account, but in all the circumstances, having regard to the seriousness of the offence, I am not satisfied that this is a case where a lesser sentence should now be imposed.

31 It is however necessary to re-sentence the applicant in accordance with the Act as it stood prior to the 2002 amendments. Accordingly, I would grant leave to appeal, allow the appeal, quash the sentence imposed by the District Court, and in lieu thereof sentence the applicant to imprisonment for 3 years to date from 5 November 2002 and fix a non-parole period of 2 years expiring on 4 November 2004, and I would confirm the order for his release on parole at the expiration of the non-parole period subject to the conditions specified by the District Court.

32 STUDDERT J: I agree.

33 JAMES J: I agree.

*******

Last Modified: 07/02/2004