R v Taborda

[2009] NSWDC 51

CITATION:	R v TABORDA [2009] NSWDC 51
HEARING DATE(S):	12 March 2009
JUDGMENT DATE:	12 March 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to imprisonment consisting of a non parole period of 2 years and 6 months and an overall term of 4 years and 8 months.
CATCHWORDS:	Criminal law - Sentence - Malicious wounding with intent to cause grievous bodily harm - Intoxication
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Heron v R [2006] NSWCCA 215
PARTIES:	The Crown Ruben Taborda
FILE NUMBER(S):	DC 2008/00007924
SOLICITORS:	NSW DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: In recent years the Court of Criminal Appeal has had occasion to comment in adverse terms on the practice of reports being tendered on pleas of guilty, reports from psychologists which express opinions and conclusions where there is no evidence put before the court to establish the material on which the conclusion is based. In those cases the Court of Criminal Appeal suggests that judges should look with scepticism at those opinions. At the very least the Court of Criminal Appeal has suggested that the weight to be given to such opinions should be reduced. This is one such case.

2 The central theme of the plea in mitigation put on behalf of the offender in this case concerned his experiences in Colombia, the reason he left Colombia and what has happened to his family who are left behind. A large part of the reports prepared on the offender on his behalf record various things that he has told the psychologists. The psychologists have accepted those at face value. Sometimes they have spoken to others as well in an effort to clarify or corroborate what the offender has said, but the remarkable thing about the case before me is that there was no sworn evidence from the offender himself to establish much of that which was relied on by the experts in forming their opinion. Quite why that was is, frankly, beyond me. It has affected the weight that I can give to the material put before me and the opinions formed by the psychologists. What could otherwise have been quite powerful evidence in favour of the offender has been left behind.

3 The offender has pleaded guilty to one offence of malicious wounding with intent to cause grievous bodily harm. That is a most serious offence, carrying a maximum penalty of twenty-five years with a standard non-parole period of seven years. The plea was entered at a reasonably late stage in the proceedings but because the intention to plead guilty was advised to the Crown shortly before the trial started, there was a utilitarian benefit to the Crown and the court. In particular witnesses who otherwise would have had to come from Colombia did not need to do so. I will discount the sentence I would otherwise have imposed by fifteen per cent to reflect the plea of guilty and when it was entered.

4 The offence arose in the following circumstances. The offender lived with two other men in a two bedroom apartment. The offender and a Mr Gallo, one of the flatmates of the offender, went out for a few drinks. Whilst they were out an argument started between Mr Gallo and the offender. Mr Gallo left the hotel and got a taxi back to the apartment.

5 He went into the kitchen and started making himself something to eat. The offender arrived a few minutes later. The argument appears to have restarted. At one stage the offender was sitting on the lounge while Mr Gallo was in the kitchen. It was then that Mr Gallo walked towards the offender and started to push him. A scuffle therefore broke out between the accused and Mr Gallo, with them each pushing each other. The third man who lived in the apartment tried to separate them saying “please guys, please respect the house.” The two men continued to abuse each other and Mr Omar, the man who was trying to make peace, sat down at his computer. He then heard the offender yell out in Spanish, “I’m going to kill this motherfucker.” Because of the offence for which the offender is to be sentenced, I must not treat that as a genuine statement of intent. Nevertheless when Mr Omar turned around he saw that the offender was walking towards the victim whilst holding a knife in his right hand. It was a pocket knife with a blade approximately eight centimetres long. The offender swung the knife at Mr Gallo’s body about five times very quickly before he fell backwards onto the floor. Mr Omar bravely intervened and pushed the offender away. Mr Gallo felt pain in his arm just under his left elbow then noticed blood coming from his neck and realised that he had been stabbed.

6 He then went to his bedroom. The offender moved towards the bedroom. Mr Omar heard noises, which he said sounded like someone kicking the door. Mr Omar ran from the apartment to get help. He spoke to a security guard in the building and asked him to call police. When he returned to the level on which the apartment was, he heard the offender yelling out “motherfucker” several times. He went back downstairs and then upstairs again. This time he saw the offender outside the apartment door. He walked past Mr Omar saying “fuck” several times. He then got into the lift and left. Mr Omar went into the apartment and saw Mr Gallo, who appeared to have lost a lot of blood. Mr Gallo asked for an ambulance and also asked Mr Gallo to contact his wife in Colombia. Mr Omar therefore left the building to try and find a public phone to arrange contact with Mr Gallo’s wife.

7 When he got back to the building the security guard asked him to write down his personal details. Whilst Mr Omar was doing that the offender approached and asked him what he was doing. The offender then left the building and met up with two others, Mr Walker and Mr Figuero.

8 An ambulance arrived and Mr Gallo was taken to the hospital. He was treated by a doctor for two serious wounds, one of which, even to an untrained eye, is clearly a very serious stab wound to the very front of Mr Gallo’s neck. It was necessary for doctors to explore that wound in order to exclude life threatening injuries such as an injury to a major blood vessel. Fortunately the injuries themselves were not serious but their potential was of course enormous. As well as the wound to Mr Gallo’s neck, he had a five centimetre laceration, a significant one at that, to his elbow. He was in hospital for about three days before being released.

9 The offender is forty-one years of age and has no prior convictions. He came from Colombia in circumstances I will discuss shortly and sought refugee status, although this has been denied him I understand. He has worked at times, although was not working at the time of this offence. There is nothing to suggest that he was other than a man of prior good character before the events of this morning.

10 One of the issues that was raised concerned the issue of intoxication. Ms David, who appeared for the offender, suggested that it was a mitigating feature, and that the alcohol has caused her client to act out of character. The Crown suggested that it was neither a mitigating nor an aggravating circumstance. In this case there was evidence from a friend of the offender’s, Mr Christian Victoria. He said that he considered that the offender had an alcohol problem. That is not terribly important here but what is important is that Mr Victoria has seen the offender intoxicated in the past and the offender has not previously been violent. In other words, there is nothing to suggest that alcohol causes the offender to act out of character. It may be readily accepted that those who are drunk are not able to reason with the same composure that sober people are. But in this case there is no evidence to suggest that the offender’s level of intoxication was at that level, he does not appear to have been grossly intoxicated. Certainly there is no evidence to suggest it. I am satisfied that given that there is an onus on the offender to establish intoxication as a mitigating feature, that I should regard the matter of intoxication as neutral, as the Crown suggests I should.

11 Linked to what was said to be the offender’s intoxication, is the circumstance I have said that I would come back to, that is what it is that led to the offender coming to Australia. The offender told others, in particular the psychologists, that whilst living in a village in Colombia, he became involved in local politics. He supported one side but those in power came from the opposite point of view. This apparently is not just a matter of a difference of opinion in Colombia but led to kidnappings of government officials and most importantly threats to the offender. It is that the offender told others which prompted him to leave Colombia, leaving behind his wife and then young child. I gather that the offender would much prefer to be living at peace in Colombia but regarded it as important to his safety that he live elsewhere. To others the offender describes specific incidents which would justify the offender’s fears.

12 Some evidence was called in relation to this issue. Mr Victoria spoke about the situation in La Virginia generally. He said that in Colombia there are some areas, and La Virginia is one, which are affected “big time” by guerrilla activity. Mr Flores, who also gave evidence on the offender’s behalf, knew the offender’s family in Colombia but did not know him. Mr Flores supported some of the assertions made in the psychological reports prepared on behalf of the offender.

13 The psychologists, who of course accept what the offender tells them, base their opinions on reports of the offender’s history and also the results of tests which they administer. These tests of course rely on the offender telling the truth. There is no suggestion here that the offender has been other than truthful but it is to be noted that when Dr Pullman spoke about symptoms of hyper-vigilance and overreaction, she was basing these conclusions on responses that the offender gave in a questionnaire. She did not, for example, observe anything of that kind in her examination of the offender.

14 I accept that the political situation in Colombia is as described by Mr Victoria and Mr Flores. I accept that there are threats that have been made to the offender because of his involvement in local government politics in his homeland. I accept that these would have an effect on him and that they may tend to lead to symptoms which are consistent with posttraumatic stress disorder.

15 The difficulty I have is seeing precisely or even generally how the findings of the psychologists relate to this offence, in the absence of evidence from the offender himself as to what was going through his mind when he stabbed Mr Gallo. It is one thing for the psychologists to speak at a somewhat academic level about how experiences such as those reported by the offender might effect him when he is scuffling and arguing with Mr Gallo. It is another thing for the offender himself to give sworn evidence as to what was going through his mind at the time. I do not wish to suggest at all that I have rejected the conclusions drawn by the psychologists, but I do wish to make it clear that the absence of sworn evidence from the offender has effected the weight that I can give to what they say.

16 Objectively this was a very serious offence. It is fortunate that Mr Gallo has, I expect from the material put before me, been left with physically nothing more than a few scars. There is no victim impact statement and so I do not know whether there have been any non-physical consequences for him. It would be consistent with my understanding of human behaviour if Mr Gallo was left with some psychological consequences as a result of the attach upon him: Their nature and level I cannot be sure of.

17 The seriousness of this offence however is not determined only by the actual consequences to the victim. As I mentioned, Mr Gallo was stabbed directly to the front of his throat. I am satisfied that the nature of the injury inflicted is relevant and that the potential consequences which would flow from an attack of that nature, realised as they must have been by the offender, are to be taken into account. They demonstrate the seriousness of the nature of the attack and the level of harm intended by the offender. Of course as I mentioned earlier, I am not to be thought to have suggested that the offender intended to kill Mr Gallo. In assessing the level of harm he did intend, I take into account the potential consequences to Mr Gallo of being stabbed in the neck.

18 Ms David referred to a decision of the Court of Criminal Appeal called Heron v R [2006] NSWCCA 215. Heron says the potential consequences are not to be taken into account when looking at the mitigating feature set out in 21A(2)(g) of the Crimes (Sentencing Procedure) Act. Heron does not say the potential consequences are completely irrelevant in the sentencing process.

19 This offence was not planned or organised and to a very limited extent, it was provoked by the victim, Mr Gallo. It was he who apparently first used violence when he pushed the offender. However given that what followed was described in the agreed facts as a “scuffle”, the offender’s decision to stab Mr Gallo with a knife was a gross over-reaction and seriously criminal indeed.

20 This offence is aggravated by the circumstance that a weapon was used, although I do have to say that most offences of this type are committed by an offender using a weapon. When I look at this case and compare it with other offences of malicious wounding with intent to do grievous bodily harm, I will take into account that most of the sentences imposed on those other matters would have also reflected an aggravating circumstances; that a weapon was used.

21 The offender has apparently told others that he is sorry: Sorry to his family, sorry to the victim’s family and sorry to the victim himself. Once more he did not say so to me. I accept that the offender has demonstrated remorse, as that term is currently used in the Crimes (Sentencing Procedure) Act, but the extent to which the offender is remorseful is effected by the circumstance that whilst he was prepared to say it to others, he was not prepared to give evidence in this court and expose himself to cross-examination on this aspect of the matter.

22 The offender, given that he is forty-one years of age and has only now committed his first offence of violence, might be thought to have reasonable prospects of rehabilitation. Although therapy has been suggested and it is not certain how he would respond to that therapy, I am satisfied that it is unlikely that an offence of this type will be repeated; if only because of the deterrent nature of the sentence that I will impose upon the offender.

23 The offender or at least one of the witnesses did refer to the circumstance that the offender had been sending money home to his family in Columbia and that they will suffer because the offender is currently in custody and will be for some time. I mention this only to say that such consequences are not exceptional. They are a distressingly common feature of sentencing when breadwinners are sent to goal.

24 The standard non-parole period is one of seven years. It is of course not of direct application in this case because of the plea of guilty, but it remains as a guidepost. Offences of grievous bodily harm can vary enormously in their consequences. Some offences are also planned, organised and done coldly rather than in the heat of the moment. For that reason I will regard this offence as below the middle of the range of objective seriousness for offences of this type. There are clearly special circumstances in this case. This is the offender’s first time in custody and the matters referred to in the psychologist’s report suggest that the offender will benefit from an extended period of supervision on parole.

25 The offender is sentenced as follows. I sentence him to imprisonment. I set a non-parole period of two years and six months to have commenced on 18 November 2007, the day on which the offender went into custody. I set an overall term of four years and eight months. Those who wish to do the maths will realise that absent a fifteen per cent discount, the total term would have been five years and six months. The offender is eligible to be released to parole on 17 May 2010.

**********