R v Traslavina

[2020] NSWDC 621

District Court

New South Wales

Medium Neutral Citation:

R v Traslavina [2020] NSWDC 621

Hearing dates:

2 October 2020

Date of orders:

16 October 2020

Decision date:

16 October 2020

Jurisdiction:

Criminal

Before:

Judge Weinstein SC

Decision:

I sentence the offender to a term of imprisonment of 24 months, less a 10% discount for his plea of guilty, or 21.6 months (or 21.5 months, rounding down), with a non-parole period of 11 months. For orders see [48].

Catchwords:

Sentence- reckless wounding with a knife- disputed facts hearing - called the ambulance and then absconded – turned himself in the next day– lack of insight - history of alcohol abuse – full time imprisonment – Intensive Corrections Order not appropriate

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Casella v R [2019] NSWCCA 201

Karout v R [2019] NSWCCA 253

Markarian v The Queen [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120

R v Fangaloka [2019] NSWCCA 173

R v Pullen [2018] NSWCCA 264

Stevens v R [2017] NSWCCA 216

Category:

Sentence

Parties:

Regina (Crown)
Felipe Alfonso Traslavina (Defence)

Representation:

Ms K James (Crown)
Mr G Wendler (Defence)

File Number(s):

2018/351374

Judgment

1. The offender Felipe Alfonso Traslavina, born in 1978, is before the court for sentence for one count of reckless wounding, contrary to section 35(4) of the Crimes Act 1900, for which the maximum penalty is 7 years imprisonment and the standard non-parole period is 3 years.

2. There were several disputes about the facts upon which I should sentence the offender which were resolved by me at the hearing. The facts, at sentence, are as follows:-

1. The victim, Adrian Samuel, and the offender have known each other for a number of years. The victim is a self-employed roof tiler who employed the offender to assist on jobs. At the time of the offence, the offender had been employed by the victim for a few days per week on an ad hoc basis.

2. Between 8.00 am and 4.00 pm on Tuesday 13 November 2018, the offender had completed a full workday for and with the victim at Leppington without incident.

3. On returning home the victim assessed his upcoming workload. He then contacted the offender via his mobile phone and advised that he would not be required to work the next day. The offender responded saying 'You stuffed my week up. I had plans to do something with the money.' During the call, the victim offered to transfer two days pay to the offender to assist him.

4. The offender sent a number of abusive texts to the victim who responded, resulting in a heated text exchange between the two men.

5. As the victim owed the offender $500.00 in wages for work completed on 12 and 13 November 2018, he arranged to meet the offender to address the issues raised over the telephone and text messages and to pay the offender the money owed.

6. They agreed to meet at the local shops on Mannix Parade, Warwick Farm.

7. At about 7.30pm, the victim arrived and parked his vehicle at the shops on Mannix Parade. He walked over to Lawrence Hargrave Road and waited a few minutes. He could not see anyone in the area so he turned left into Nicholls Street before turning left into Gallop Street. While walking along Gallop Street, the victim saw the offender.

8. The offender came close to the victim.

9. The offender pushed out his chest and rushed towards the victim. The offender said, 'Where are all your mates?' The victim said, 'I'm here by myself. No weapons. I'm here. Nothing.'

10. The offender approached the victim and the two men engaged in a physical wrestle. The offender pushed him onto the footpath holding his head from behind and told him to 'Settle down. Relax.'

11. The offender managed to move his body around so that he was facing the victim from the side. He stabbed the victim twice with a knife: once in the upper left arm and once under the left armpit.

12. The victim described the knife as having a silver coloured straight blade approximately 15 centimetres long with a handle that had masking tape wrapped around it. He further described the blade as looking like a Stanley knife blade and the handle being about the size of a fist.

13. The victim let go of the offender and said, 'What have you done? You stabbed me.' The offender said, 'I knew it. You're a dog. You're trying to set me up,' The victim said, 'What are you talking about?'

14. The victim who was bleeding from his left side, walked away from the offender holding his body.

15. The victim, struggling to breathe, sat down on a bus stop bench on Gallop Street.

16. He saw the offender walking towards the shops on Mannix Parade and asked 'Where are you going? Call the ambulance. Don't leave me here'. The offender replied, 'Yeah I am. I'm ringing.' The offender then used his mobile phone to dial 000 and asked for an ambulance.

17. The offender spoke to the 000 operator for approximately five minutes. Once off the phone, he said to the victim 'You'll be right for five minutes will ya?' The victim said, 'No, I won't be. Don't go.' The offender replied, 'I should have stabbed you harder to finish you off’ before walking away from the victim and running off towards Gallop Street.

18. Police and Ambulance attended a short time later. The victim was treated and then conveyed to Liverpool Hospital where he was admitted and treated for stab wounds to his upper left arm and left side of his chest area. The attending doctor said that the injuries were consistent with penetrating stab injuries to the left chest and left arm, and were potentially life threatening. The victim was hospitalised for a number of days and required surgical intervention for his wounds.

19. The victim was in possession of $395.00 at the time the police arrived.

20. Police canvassed the scene and located a number of blood spots at the bus stop and on the roadway of Gallop Street, Warwick Farm.

21. At about 9.30am on Thursday 15th November 2018, the offender presented at Merrylands Police Station where he requested to speak with police about the incident. The offender was arrested and conveyed to Granville Police Station where he was taken into custody.

22. He was afforded the opportunity to participate in an electronically recorded interview with police during which time the offender, as was his right, declined to answer questions in relation to the incident.

Evidence

3. Before me are 4 exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:

1. Committal documents;

2. Agreed facts (which I have recited above);

3. Marked Facts; and

4. Criminal History.

4. Exhibit 2 is a Sentencing Assessment Report (SAR) under the hand of Sanja Radonic dated 2 September 2020.

5. Exhibit 3 is a victim impact statement written by Adrian Samuel, dated 1 October 2020.

6. Exhibit 4 is a report of Clara Fritchely, psychologist, dated 22 September 2020.

7. I will now summarise some of the documents which have been placed before me.

Exhibit 1

8. The offender has been convicted of several driving offences, including drive with middle range PCA, but they date from the early 2000s. He has a conviction for destroy or damage property in 2009, three charges of contravene AVO for which he was fined or given a bond, and one charge of common assault for which he was given a bond in 2013. He did not offend from 2013 to the date of this incident, and has not offended since.

Exhibit 2

9. The SAR of 2 September 2020 notes that Mr Traslavina resides alone and that his parents have returned to Chile where he was born. He has a 9 year old daughter who lives with his ex-partner, with whom he now has regular contact. The offender is employed as a roof tiler.

10. In Ms Radonic’s opinion, the offender has demonstrated little regard for his offending behaviour. After calling an ambulance, he absconded from the scene and presented himself to the NSW Police the following day. He stated that he does not feel bad about his actions as he was acting in ‘self-defence’.

11. Mr Traslavina has a history of alcohol abuse and stated that he consumed beer prior to the commission of his offence. He believed he was not intoxicated at the time but was affected by alcohol. Mr Traslavina denied problems with anger and aggression but stated he was ‘shocked’ at his own behaviour.

12. In Ms Radonic’s opinion, the offender has showed minimal insight into the impact of the offending on the victim. The offender stated that the victim is a bad person who is involved in the local “Assyrian Kings gang” and has “no conscience”. Mr Traslavina believed that at the time of the offence the victim was recruiting some acquaintances to assault him.

13. The offender was assessed at a medium/low risk of reoffending.

Exhibit 3

14. Mr Samuel addressed the court through a victim impact statement. He wrote that as a result of the offending, he was taken to the intensive care unit at Liverpool Hospital for surgery for a punctured lung. He stated that he has suffered Post Traumatic Stress Disorder symptoms; i.e. he has intrusive thoughts, images, nightmares and distress. He feels detached from his family and friends and avoids going out with them. He suffers insomnia, agitation and irritability. He struggles at work due to uneasy mobility, which has caused financial hardship. He says the physical and mental scars from this incident will be with him for the rest of his life.

Exhibit 4

15. Ms Fritchely spent three hours assessing the offender. She reported that he was born in Chile in what he described as a middle class family with a good standard of living. His mother was previously married with four children, but this had been kept a secret from him as a child. At the age of 9, Mr Traslavina migrated to Australia with his parents and sister. Mr Traslavina described the transition to Australia as “ok.” The offender said his parents were strict and that his mother was emotionally “up and down”. He felt scared of her, as her moods were often unpredictable, and she would use physical punishment to discipline him. He described a closer relationship with his father. About 15 years ago, his parents moved back to Chile. He has regular phone contact with them. He described feeling intense shame at having let them down. He and his sister do not get along and have not spoken in approximately 2 years.

16. Mr Traslavina graduated from year 12 and then completed a Certificate 4 in Hospitality at TAFE. After TAFE he gained employment as a roofer which he has been doing ever since. The offender has a daughter with his ex-partner. He described his relationship with his ex-partner as characterised by conflict and intense argument. He described his relationship with his daughter as “ok”, but he was worried about being an inadequate father.

17. Mr Traslavina said that drinking alcohol is “part of the roofing industry” and that he is constantly exposed to alcohol. He concedes that he drinks “more than he should” and he estimated that he consumes approximately 5 longnecks of beers per day. He denied any current drug use. On the night of the offending, Mr Traslavina had consumed approximately 5 standard drinks and his mood was unsettled.

18. In Ms Fritchely’s opinion, the offender presented with depressive symptoms and symptoms of emotional dysregulation. The offender stated that since his adolescence he has experienced periods of low moods and sadness and that he has attempted to suppress his emotions or resort to alcohol. He described feelings of self-hatred. He stated that he was isolating himself from his social networks because of his feelings of worthlessness. His sleep is disturbed.

19. Ms Fritchely is of the view that Mr Traslavina met the criteria for a diagnosis of Major Depressive Disorder. The offender struggles with emotional regulation and impulse control which has led to difficulties in relationships and the problematic use of alcohol. She notes that he has never had treatment for his mental health.

20. Regarding the offence, Ms Fritchely states that in the offender’s state of hyper-arousal, he likely reacted in the moment to a perceived threat with no thought as to the consequences. He then began to panic, and called an ambulance before leaving. Following the incident, the offender felt “overwhelmed and distressed”, he was worried about Mr Samuel and the consequences of his behaviour, and spent the night unable to sleep. The following day he presented to the police station to hand himself in. He described feeling extremely ashamed of his behaviour and remorseful of the impact his behaviour has had on the victim.

21. Ms Fritchely is of the view that the offender has few criminogenic risk factors and is at a low risk of recidivism.

Objective Seriousness

22. The Crown submits that the criminality involved in this matter is objectively serious and sits at the mid-range. While involved in a physical altercation with the victim, the offender used a knife to stab the victim twice, once in the upper left arm and once under the left armpit. The victim was treated for stab wounds to his upper left arm and the left side of his chest area, and the treating doctor believed that the injuries were potentially life threatening.

23. In Stevens v R [2017] NSWCCA 216 at 40 it was stated that the seriousness of the offence will depend significantly on the seriousness of the injury. However the manner in which the injury was inflicted, the reason it was inflicted and the surrounding circumstances are also relevant to the objective gravity.

24. It is submitted by the offender that the offending sits below the mid-range. It could not be proved in the disputed facts hearing that Mr Traslavina brought the knife, which Mr Wendler submits decreases the seriousness of the offending. Furthermore, Mr Wendler said this case is comparatively less serious than a case concerning the use of other weapons, for example guns of all varieties. He also noted that the offender immediately called for aid for the victim and after initially absconding, presented to the police the next day, which I accept shows some insight. Further, he said that while the victim’s injuries may have been life threatening, he survived.

25. Ms James says two aggravating factors are to be taken into account. The first is that the offence involved the actual or threatened use of a weapon, as the offender used a knife to stab the victim twice, once in the upper arm and once in the chest area. So much is true.

26. Second, she submits that the offender has a significant record of prior criminal convictions. After discussion, she withdrew this submission, and both parties agreed that the offender was not entitled to leniency on account of his prior criminal history.

27. I take all these matters into account, including the legislative yardstick of the maximum penalty and the standard non-parole period. In my opinion, the offending sits at just below the mid-range of objective gravity. The offending was opportunistic, and objectively serious.

Subjective Circumstances

Guilty Plea

28. The matter was committed for trial on the current charge, on 12 June 2019. On 2 July 2020, at the first mention in the District Court, a plea of guilty was entered and a disputed facts hearing was requested. The matter was listed, and a disputed facts hearing proceeded on 16 July 2020. The victim was required to give evidence at the disputed facts hearing. The offender was successful in part at that hearing.

29. The Crown submits that a discount of 10% should apply in this matter.

30. Mr Wendler submits that there was real utilitarian value of the guilty plea. While he concedes it was late, it was not so late as to have no merit. The plea was before trial, and he was successful in his disputed facts hearing. He says that a discount of 10% - 12% should apply.

31. I find that a discount of 10% will apply, to what was essentially a late plea, although I note that it had utilitarian value.

Time in custody

32. The offender has not spent any time in custody for this offence.

General Deterrence and denunciation

33. The Crown submits that the community expects a message to be sent to like offenders, that it needs to be protected from such offending and that offending of this nature calls for condign punishment. She says that the seriousness of the injuries inflicted merit a significant sentence.

34. There is no doubt that such offending need to be denounced.

Personal Deterrence and Prospects of Rehabilitation

35. The Crown submits that the offender’s prospects of rehabilitation are, at best, guarded. While the Crown concedes that the offender has not re-offended since the offending, she submits that he has been on bail and therefore has lacked any opportunity to re-offend. It is further submitted that specific (or personal) deterrence is relevant, as the evidence discloses a history of alcohol abuse and (some) non-compliance with court orders.

36. Mr Wendler submits that the offender has reasonable prospects of rehabilitation, so long as he avails himself of professional assistance. Furthermore, he states that this offending occurred in unusual circumstances, and that the offender is not a threat to the community. Rather, Mr Wendler submits that he is a threat to himself.

37. The evidence discloses, in my opinion, that the offender has only limited, although perhaps evolving, insight into his offending. The statements to Ms Radonic, for example, demonstrate this situation, i.e. that he did not feel bad about his actions, but was shocked by his behaviour. I am optimistic that with assistance, his insight will improve.

38. Nonetheless, taking all matters into account on the evidence before me, I cannot find that the offender’s prospects of rehabilitation are good and that he is unlikely to re-offend. On the other hand, I do not believe him to be irredeemable. There is evidence that should the offender seek professional assistance, that he may be rehabilitated. The court hopes that ultimately the offender achieves rehabilitation and makes a positive contribution to society. Although I remain optimistic, in my opinion, his current prospects of rehabilitation are guarded.

Threshold

39. Having considered all the possible alternatives, I am satisfied that the section 5 threshold of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) has been crossed. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

Special Circumstances

40. Having regard to the offender’s need for prolonged and intensive counselling toward his rehabilitation and the fact that this will be Mr Traslavina’s first time in custody, I make a finding of special circumstances. I observe that the Crown does not disagree that I should make such a finding, and these are my reasons for deviating from the standard non-parole period: s54B of the Sentencing Act.

Sentence

41. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions – especially given in my opinion the offender’s need for counselling and ongoing rehabilitation.

42. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

43. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).

43. As I have said, in determining an appropriate sentence I have kept in mind the legislative guidepost, the maximum penalty of 7 years and the standard non-parole period of 3 years. I sentence the offender to a term of imprisonment of 24 months, less a 10% discount for his plea of guilty, or 21.6 months (or 21.5 months, rounding down), with a non-parole period of 11 months.

44. The offender’s counsel cavilled for an Intensive Corrections Order (ICO) in all of the circumstances. An order is prima facie available if the sentence is two years or less for one offence. Mr Wendler submitted that community safety would be better protected if the offender served his sentence within the community, as this would enable him to continue work and commence counselling. Discussion was had with counsel as to possible appropriate conditions, which included a rehabilitation condition and an abstention condition, considering the offender’s struggles with alcohol. I have concerns about the offender’s insight into his behaviour, and therefore the protection of the community.

45. In R v Fangaloka [2019] NSWCCA 173, the court discussed the effect of the competing purposes of sentencing on the consideration of whether a sentence of imprisonment should be served in custody or by way of an ICO. It was observed, at [67] that:

There will remain cases in which the significant element of leniency contained in an ICO is inconsistent with the imposition of an adequate penalty, so that an ICO is an unacceptable form of imprisonment.

47. Community safety is the paramount consideration when determining whether to impose an ICO (s66(1) of the Sentencing Act), and I have had regard to the recent decisions of R v Pullen [2018] NSWCCA 264, R v Fangaloka, Casella v R [2019] NSWCCA 201 and Karout v R [2019] NSWCCA 253).

48. In all the circumstances of this particular case, I am not satisfied that the purposes of sentencing under s 3A and the paramount consideration of community safety pursuant to s 66 of the Sentencing Act are best achieved by the imposition of an ICO, in particular because of my view of the offender’s current lack of insight into his offending.

Orders

49. Mr Traslavina, please stand.

50. You are convicted of one count of reckless wounding, contrary to section 35(4) of the Crimes Act 1900.

51. You are sentenced to a term of imprisonment for 21 months and fifteen days.

52. I impose a non-parole period of 11 months.

53. Your sentence will commence today 16 October 2020 and will expire on 30 July 2022. You will be eligible for release on parole on 15 September 2021.

54. Mr Traslavina, do you understand the orders I have made?

**********

Decision last updated: 19 October 2020