R v Mendez

[2002] NSWCCA 415

CITATION:	R v Mendez [2002] NSWCCA 415
FILE NUMBER(S):	CCA 60513/01
HEARING DATE(S):	08/10/2002
JUDGMENT DATE:	8 October 2002
PARTIES :	Regina v Priscilla Ingrid Mendez
JUDGMENT OF:	Sully J at 21; Howie J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/52/0044
LOWER COURT JUDICIAL OFFICER :	Ducker DCJ

COUNSEL :	D. Woodburne - Crown C. Craigie SC with C. Loukas - Applicant
SOLICITORS:	S.E. O'Connor - Crown Sydney Regional Aboriginal Corporation Legal Service - Applicant
CATCHWORDS:	Criminal Practice and Procedure - Sentence - Relevance of provocation
LEGISLATION CITED:	Crimes Act 1900 - ss 33, 35
CASES CITED:	R v Qutami [2001] NSWCCA 353 R v Palu [2002] NSWCCA 381
DECISION:	Leave to appeal granted, appeal dismissed.

60513/01

SULLY J
HOWIE J

TUESDAY 8 OCTOBER 2002

R v Priscilla Ingrid MENDEZ

Judgment

1 HOWIE J: On 23 July 2001 the applicant pleaded guilty when arraigned on an indictment containing a count of maliciously inflicting grievous bodily harm. This is an offence contrary to s 35 of the Crimes Act and carries a maximum penalty of 7 years imprisonment. On 27 July 2001 Judge Ducker sentenced the applicant to 4 years imprisonment to date from 21 May 2001 with a non-parole period of 2 years and 3 months to expire on 20 August 2003 the date upon which the applicant will be eligible for release to parole. She seeks leave to appeal against that sentence.

2 The applicant was initially committed for trial on the more serious offence under s 33 of the Act, alleging that she acted with intent to do grievous bodily harm. But she offered to plead guilty to the less serious offence and the Crown accepted that offer. From the date that she pleaded guilty, the applicant was remanded in custody. She had previously been allowed on bail except for a period of 67 days. His Honour backdated the sentence he imposed to take into account this earlier period of custody.

3 The facts can be briefly stated. In the early hours of 11 November 2001, the victim, having consumed about 8 middies of beer at a hotel, caught a taxi to the residence of her ex-husband, Phillip Hansen. While the taxi waited for her, she knocked on the door and called out asking whether Mr Hanseon was all right. The applicant, who was living with Mr Hansen at the time, opened the window adjacent to the doorway and began to argue with the victim. The applicant suddenly leaned out of the window and swung a heavy object, probably a glass ashtray, into the face of the victim. The victim ran away from the house toward the taxi. The applicant, notwithstanding that she was naked at the time, pursued her.

4 As the victim attempted to get into the taxi, the applicant repeatedly struck at her head and body with the object she was carrying. While she was attacking the victim, the applicant said, “Leave us alone. I’m pregnant. We don’t want anything to do with you.” When he saw that the victim was bleeding from the mouth, the taxi driver called the police and drove her to hospital.

5 The next morning, the applicant said to Mr Hansen, “Your slut of a girlfriend came around early this morning and we had an argument.” Mr Hansen noticed that one of his circular, glass ashtrays was missing.

6 The victim suffered a fracture to the lower left jaw, a shattered left cheekbone and a fracture of the left eye socket. She required reconstruction of the left side of her face involving the permanent use of two plates and eight screws. She is likely to recover well but with scars and possible left facial numbness. In a victim impact statement, she complains of disfigurement and constant pain. She states that she is depressed by her looks and in fear of the applicant.

7 The applicant did not give evidence before Judge Ducker, but a psychological report was tendered which set out the background of the applicant and her version of the events giving rise to the offence. The applicant told the psychologist that the victim would constantly come to the house where the applicant and Mr Hansen lived, especially when she was drunk. At the time of the offence the applicant believed that she was pregnant to Mr Hansen and the victim was constantly abusing her and “playing with her head”. She said that she was in fear for herself and Mr Hansen when the victim was at the door. She struck her at the taxi because she thought that the victim was going to get out and attack her.

8 The applicant is now aged 23. She has a criminal record which includes offences of violence. In 1992 she was before the Children’s Court in Victoria for offences including intentional or reckless causing injury. In July 1997 she was sentenced to perform community service for an offence of recklessly cause serious injury. At the time of the commission of the offence, for which Judge Ducker sentenced her, she was on bail for an offence of violence against Mr Hansen. That offence is described in the psychologist report as a drunken fight that occurred two weeks before the present matter and during which the applicant threw a television at Mr Hansen.

9 The psychologist described the applicant as a “very damaged young woman”. She reported to him that her father was an alcoholic who was frequently violent to her mother. After her parents separated, she and her brother were placed in a foster home until, at the age of 9 years, she returned to her father to care for him. From the age of 11 she lived “on the streets” and abused alcohol continuously thereafter. The report continues:

She attributes the violence of her offences to knowing nothing but violence in her life, both in her childhood and on the streets, and to alcohol intoxication. At the time of these offences she acknowledges drinking heavily and says that she had ceased to use heroin and was on the methadone program. This woman has many visible scars on her head and face and her report of a lifetime of violence both given and received is likely to be true. It is also quite possible that she has some degree of acquired brain injury which would contribute to the loss of control and level of her violence and an over-reaction to the effects of alcohol. The whole presentation as well as her thinking is variable. I think there is probably a co-morbidity of substance abuse, mental disorder and some degree of acquired brain injury.

10 The psychologist noted that the applicant expressed some regret and personal distress over the extent to which she hurt others and that she believed her first priority was to deal with her alcohol problem which she saw as the most important factor in her violent behaviour. The psychologist was also of the view that alcohol rehabilitation would be the first step towards the applicant's rehabilitation and that she should remain on the methadone program. He believed that she might well need psycho-active medication should she stop drinking alcohol and that she would benefit from a personal development programme as part of her alcohol rehabilitation.

11 Notwithstanding the psychologist’s conclusions, which the sentencing judge accepted, and the compassion that his Honour expressed in respect of the applicant's background, Judge Ducker formed the view that the offence was towards the top of the scale of seriousness for offences under the section and, therefore, that a substantial sentence was called for. His Honour found that there were special circumstances by reason of the need for prolonged counselling of a psychological or psychiatric nature and for the applicant to undergo an intensive alcohol rehabilitation programme as soon as she is released to parole.

12 The first ground of appeal is that Judge Ducker erred in assessing the objective gravity of the offence by giving insufficient weight to provocation from the victim. It is submitted that this is evidenced by his Honour’s failure to refer to significant factual matters during the course of his remarks. In particular, it is complained that his Honour did not take into account a version given by the applicant to the psychologist to the effect that the victim had made threats to the applicant and Mr Hansen, and that the applicant was in fear of the victim when she arrived at the house on the night of the offence. In my view there was no obligation on his Honour to either refer to, or accept, that part of the applicant's version which was on the one hand inconsistent with the objective facts of the matter and on the other merely a statement made by the applicant to a psychologist.

13 It has been held by this Court that statements made by an offender to a person preparing a report should generally be given little weight in the absence of evidence from the offender during the sentencing proceedings; see R v Qutami [2001] NSWCCA 353, and R v Palu [2002] NSWCCA 381. In the present case the applicant was not called to give evidence even though his Honour indicated to her solicitor that he was not prepared to take account of matters going to the facts and circumstance of the offence from the bar table.

14 The sentencing judge accepted that the victim was intoxicated; that she lied to the police about her reason for going to the house that night; and that there was an argument at the window between the applicant and the victim. But it did not follow from these matters that his Honour had to find that such provocation as there might have been from those facts themselves or when taken with the prior history, resulted in any significant mitigation of the offence. His Honour's failure to refer to any argument at the taxi that the time that the victim was being assaulted there, is quite explicable in light of the fact that he had found that the applicant had pursued the victim to the taxi even though she had already injured the victim at the house. The solicitor appearing for the applicant before the sentencing judge conceded that the applicant had no reason to leave the house in order to pursue the victim.

15 In respect of the second assault at the taxi his Honour stated:

This was an extremely brutal, determined and vicious attack upon a woman who, by the reason of the earlier assault, was in no condition to resist being battered around the head in a way that could have proved fatal to the victim. This was, in short, an extremely violent attack. It showed a complete lack of restraint on the part of the offender.

In my opinion there was no error in his Honour coming to that view.

16 Further, Judge Ducker was entitled to consider the response of the applicant to such provocation as there was in light of her previous history of violence. In any event, the conduct of the applicant was so far out of any reasonable proportion to the behaviour of the victim that it was well within his Honour’s discretion to determine that there was no mitigation arising from that circumstance.

17 It was also submitted in the written submissions on behalf of the applicant that, in light of the provocative conduct of the victim and the findings of the psychologist as to the mental state of the applicant, she was not a suitable vehicle for general deterrence. It is well-recognised that a person who suffers from some form of mental impairment will not, generally speaking, be an appropriate person upon whom to impose a sentence which is designed principally to act as a general deterrent. But there was no evidence before his Honour that the applicant did suffer from any mental abnormality or impairment. The psychologist merely indicated that there was the possibility of an acquired brain injury. Although the applicant’s behaviour might have been explained by her abuse of alcohol, it did not follow, having regard to her history of violence when intoxicated, that this was a mitigating factor. It was not incumbent upon his Honour, in my view, to determine that no or little regard should be had to general deterrence in the present case. In any event, the most important factors in determining the appropriate sentence were to denounce the applicant's use of a weapon to the face and head of the victim in circumstances in which the victim had no opportunity to protect or defend herself and specific deterrence in relation to the applicant's repeated use of violence.

18 It is submitted that the sentence imposed was manifestly excessive having regard to the maximum penalty available, the plea of guilty and the applicant's subjective circumstances. It has not been suggested that the sentencing judge omitted to refer to any relevant matter in the subjective circumstances of the applicant. As I have already indicated, his Honour came to the view that the criminality involved was towards the upper end of seriousness for an offence under s 35. In my opinion he was entitled to come to that conclusion. The applicant used a weapon to inflict serious and permanent injuries resulting in a significant deterioration in the victim's enjoyment of life. The applicant obviously armed herself with a weapon capable of inflicting serious injuries and pursued the unarmed and injured victim when she attempted to flee. The applicant's criminal record and the fact that she was on bail for an offence of violence at the time were matters that deprived the applicant of leniency notwithstanding her young age and unfortunate background.

19 Judge Ducker indicated that he had reduced the sentence that he would have imposed by one year to reflect the applicant's plea of guilty, in effect a discount of twenty percent. In my opinion it was not inappropriate to his Honour to determine on that discount having regard to the fact that the applicant could have indicated a plea to the less serious offence at any time after she was committed for trial. The non-parole period fixed by his Honour was one that gave proper effect to the finding of special circumstances and resulted in an appropriate parole period to address the applicant's rehabilitation.

20 The sentence is a high one and at the very limit of his Honour’s discretion. In that case I would grant leave to appeal but dismiss the appeal.

21 SULLY J: I agree. The orders will be as suggested by Howie J.

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