R v Ziday
[2006] VSCA 163
•9 August 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 381 of 2005
| THE QUEEN |
| v. |
| SLAVICA ZIDAY |
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JUDGES: | CALLAWAY and REDLICH, JJ.A. and COLDREY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 August 2006 | |
DATE OF JUDGMENT: | 9 August 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 163 | |
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Criminal law – Sentencing – Home invasion – Appellant pleading guilty to recklessly causing serious injury, but co-offender pleading guilty to intentionally causing serious injury – Identical sentences imposed – No infringement of parity principle – Further sentences imposed for aggravated burglary and offences committed inside premises involved double punishment – Whether sentence of three-and-a-half years’ imprisonment with non-parole period of 14 months manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S.M. Cooper | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Ms F.L. Dalziel | Victoria Legal Aid |
CALLAWAY, J.A.:
The appellant is now aged 49. She will turn 50 in a few days' time.[1] She pleaded guilty in the County Court to one count of aggravated burglary (count 1), one count of recklessly causing serious injury (count 2), one count of recklessly causing injury (count 3), one count of common assault (count 4) and one count of making a false report to the police (count 5). The first four counts related to a home invasion on 9th December 2003. The false report was made on 31st December 2003. The appellant's daughter also pleaded guilty to five counts relating to the home invasion and the false report. The difference was that, in her case, count 2 alleged intentionally causing serious injury. In addition, the appellant's daughter returned to the site of the home invasion on 12th March 2004, in relation to which she pleaded guilty to a further count of attempted aggravated burglary (count 6).
[1]The reference to her being aged 59 at [16] of the sentencing remarks may be a typographical error. It was not submitted that anything turned on it.
The appellant admitted one previous finding of guilt. On 22nd January 2003 she appeared in the Magistrates' Court on a charge of unlawful assault and was released on an undertaking to be of good behaviour. No previous convictions or findings of guilt were alleged against her daughter.
After hearing pleas for leniency on their behalf, the learned judge sentenced the appellant and her daughter on 15th December 2005. His Honour sentenced the appellant to two-and-a-half years' imprisonment on count 1, 18 months' imprisonment on count 2, six months' imprisonment on count 3, one month's imprisonment on count 4 and two months' imprisonment on count 5. A direction that 12 months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1 resulted in a total effective sentence of three-and-a-half years' imprisonment. A non-parole period of 14 months was fixed. His Honour sentenced the appellant's daughter to the same terms of imprisonment on counts 1 to 5, with the same direction for cumulation and the same non-parole period. A sentence of six months' imprisonment was imposed on count 6, but that sentence was permitted to be served concurrently.
Leave to appeal was granted on 24th March 2006. The judge who granted leave said that, although this was a case of very carefully constructed sentencing remarks by a very experienced trial judge, he was persuaded that there was at least one reasonably arguable ground. On the same morning that leave was granted, in R. v. Raad[2], a Court of five had re-affirmed that that was the correct approach to an application for leave to appeal against sentence heard by a single judge.
[2][2006] VSCA 67.
The sentencing remarks to which reference has just been made contain a summary of the circumstances of the offending and the victim impact statements. Addressing the appellant and her daughter, the judge said:
"3[T]he Crown case was that you, Slavica Ziday, drove your daughter, the co-accused, Rosemary, to the home of Vladimir Rojkovic at 13 Walmer Avenue, St Albans, at about 10.30 p.m. on 9 December 2003. Vladimir Rojkovic was at home with his wife and daughter. You had in your respective possession an axe, a large rolling pin which was approximately one metre in length and syringes containing a mixture of alcohol, crushed sleeping tablets and nail polish remover which had been prepared for this aggravated burglary.
4You, Slavica Ziday, scaled the side fence of the premises to gain entry to the rear yard of the victim's home. You punched a hole in a window fly wire screen, reached through the hole and unlocked a rear door. Once this was done you returned to the front driveway where Rosemary Ziday was waiting for you. Rosemary Ziday at that stage had possession of the wooden rolling pin and you, Slavica Ziday, had the axe and syringes in your possession. You each then entered the house. Vladimir Rojkovic became concerned at hearing noises in the house and went to investigate. He saw you, Slavica Ziday, and challenged you. At that point you, Rosemary Ziday, struck him a number of times to the head with the rolling pin and then you, Slavica Ziday, told the police that at that point: 'He went for the light switch, so I hit him with the axe; not the sharp end, the flat end. I think I hit him on the head'.
5Mrs Rojkovic then entered the room. She saw a female with an axe and a person she believed was a male with a baseball bat fighting with her husband. She tried to intervene and Mrs Rojkovic stated that she was struck to the right side of her face by the person wielding the baseball bat.
6The Crown summary proceeds that Mrs Rojkovic turned on the lights. She said she saw a female holding an axe and a syringe which she believed had blood in it. She said she saw her husband being struck with the axe. Mrs Rojkovic and Slavica Ziday then struggled for possession of the axe. Mr Rojkovic eventually gained possession of the axe and started to swing it in a defensive motion. Rosemary Ziday was still swinging the baseball bat and whilst doing this she was struck with the flat side of the axe on the face. Whilst all of this was occurring the couple's daughter, Genevine Rojkovic, came into the room and saw you, Slavica Ziday, holding two syringes. She retreated to her bedroom and you, Slavica Ziday, tried to force the door open. You told police: 'I saw the door of the second bedroom and his daughter standing inside. I grabbed her hand and she pulled it away'. And whilst this was occurring, according to your account, Slavica Ziday, Vladimir Rojkovic hit you with the axe and struck you on the left shoulder and ear. You two accused were eventually chased from the home.
7Mr Rojkovic sustained three wounds to his head, two three centimetre gashes and one one and a half centimetre gash, and photographs graphically depict these injuries; Mrs Rojkovic suffered a blackened eye as a result of the blow to her face.
8The foregoing is a very brief summary of an audacious and quite brutal late night intrusion into the Rojkovic household. There may be grounds for questioning some of the details provided by the witnesses and which form the basis of the prosecution case. However, the basic ingredients of the charges of aggravated burglary and the respective injury counts are clearly evidenced from the depositional material. And further, what clearly emerges from the evidence is that this was no spur of the moment intrusion. Disguises were used; syringes were filled with potentially toxic material and you each armed yourself with weapons which were capable of inflicting quite serious injuries. In his victim impact statement Vladimir Rojkovic briefly described the assault and he describes an ongoing concern for the safety and integrity of his household. He also describes concern for the welfare of his wife and daughter and overall in addition to his physical injuries he suffered significant emotional trauma as a result of these crimes. Euginia Rojkovic, his wife, speaks of a profound psychological and emotional response. She has ongoing concern for her safety and feels insecure in her home. She describes altered arrangements for her travel and she also speaks of concern for her daughter's response to the incident and she states: 'This is the day that our lives totally changed how we used to live'. And I have considered these victim impact statements in this sentencing process.
...
12The charge of false report to the police appears to be the culmination of your respective efforts to cover up your involvement in the aggravated burglary. You each suffered injury in the clash with Mr and Mrs Rojkovic; each counsel made this point. You, Rosemary Ziday, attended on a general practitioner on 10 December 2003 without indicating how the injuries you suffered had occurred and on 31 December 2003 you each went to police and made a false report that you had been victims of a robbery during which you had suffered these injuries. At this stage police were unaware of the identity of the intruders into the Rojkovic home on 9 December 2003. It was only after you, Rosemary Ziday, were found loitering near the home of Mr and Mrs Rojkovic on 12 March 2004 that police investigation cleared this matter up. On that occasion you, Rosemary Ziday, were wearing dark clothing. Your head was covered with a scarf and stocking. You were wearing latex gloves on both hands and you were carrying a leather bag containing steel bars. You were also found in possession of a liquid filled syringe, a small kitchen knife, a screwdriver, a pillowcase and a blank form. Hence, the charge of attempted aggravated burglary. In relation to this escapade you told police that on the spur of the moment you decided to go to the Rojkovic home to make him admit that 'He had sexually abused me'. It may have been on the spur of the moment but, again, there are indications of preparations for this offence."
The full statement of grounds filed pursuant to Rule 2.09 of the Supreme Court (Criminal Procedure) Rules 1998 (omitting grounds 4 and 5, which were not pursued) reads:
"1.The individual sentences and total effective sentence are manifestly excessive.
2.The learned sentencing judge erred by failing to give sufficient regard to the age and ill health of the appellant.
3.The learned sentencing judge erred (a) in imposing the same total effective term of imprisonment upon the appellant as was imposed upon the appellant's co-accused, and (b) in imposing sentences that otherwise offended the principle of parity in sentencing.
...
6.The learned sentencing judge erred in placing too much emphasis upon principles of deterrence, punishment and denunciation in fixing sentence and failed to place sufficient weight upon the [appellant’s] rehabilitation.
7.The learned sentencing judge erred by doubly punishing the appellant.
8.The learned sentencing judge erred by failing to take into account as a matter in mitigation the totality of the appellant's criminality."
Ms Dalziel argued ground 3 first. She reminded us that the appellant had pleaded guilty to recklessly, not intentionally, causing serious injury and that that had been the subject of discussion at the beginning of the plea. Nevertheless, identical sentences had been imposed on the appellant and her daughter, despite the five-year difference in maximum penalty applicable to the offences of intentionally causing serious injury (20 years' imprisonment) and recklessly causing serious injury (15 years' imprisonment) and the difference in moral culpability between those two states of mind. Further, so the submission proceeded, the appellant's daughter initiated the attack on Mr Rojkovic and was the prime actor in it. In the course of the assault the appellant herself sustained quite serious injuries. Counsel took us to [21] of the sentencing remarks, where his Honour adverted to the difference between the counts to which the appellant and her daughter had pleaded guilty. He expressed the view that, notwithstanding the different counts, no basis existed for the imposition of different penalties. That reasoning also applied, his Honour continued, in relation to counts 3 and 4. Ms Dalziel argued that there was logical inconsistency in that approach. If, which was not conceded, the appellant's blameworthiness was greater than that of her daughter so that she merited the same penalty on count 2, even though that was a count of recklessly, not intentionally, causing serious injury, there should have been a difference in the sentences passed on counts 3 and 4. Why, counsel asked rhetorically, had a higher sentence not been imposed on the appellant on those counts? Finally we were reminded of the additional count applicable to the daughter which had not affected her total effective sentence or non-parole period.
At first glance some of those submissions are attractive, but sentencing is not a mechanical or mathematical exercise. Quite often there are legal differences between co-offenders, such as different maximum penalties, that make no practical difference when all the circumstances of the offences and of the offenders are taken into account. In particular, if such a difference gives rise to a sense of grievance, it is not a justified sense of grievance. In most cases of the kind that I have in mind they do not give rise to a sense of grievance at all. The co-offenders well and truly understand that they were in it together and there is no unfairness in treating them in the same way. That was, I think, the view taken by the judge, who, as we have seen, expressly addressed the issue of parity. Whether or not there is a logical inconsistency in [21], it does not sustain this ground. Concurrency on count 6 may have been merciful, but, given the daughter's background and psychological profile, it was within his Honour's discretion and not such as to offend the principle of parity. I prescind altogether from the question whether a parity argument may be based on count 6, in respect of which the appellant and her daughter were not co-offenders.
Turning to grounds 7 and 8, Ms Dalziel adopted the written submissions that had been filed with the Court. They conceded that it was to be expected that there would be some cumulation as between count 1 and counts 2, 3 and 4. The complaint was that the length of the individual sentences imposed on those four counts disclosed that there had been double punishment. In the words of the written submission, "A comparison of the magnitude of the sentence imposed for the aggravated burglary with the length of the sentences imposed for the appellant's activity once inside the victims' premises reveals that the close connection between these two sets of counts was not taken into account and that the appellant was, effectively, doubly punished". Reference was made to Pearce v. The Queen[3], Mill v. The Queen[4] and R. v. Spero[5].
[3](1998) 194 C.L.R. 610 at 623-624.
[4](1988) 166 C.L.R. 59.
[5][2006] VSCA 58 at [52] - [53].
The principle is not in doubt. It is illustrated by the last case on which counsel relied. There the count of rape was the most serious offence, but the sentence imposed on the count of aggravated burglary was higher than the sentence imposed on the count of rape. In that and the other circumstances of the case, the Court was able to conclude that the sentence imposed for aggravated burglary included a component for the rape and that there had been double punishment. The present case is quite different. The maximum custodial penalty applicable to count 1 was greater than those applicable to counts 2, 3 and 4; but, more importantly, the offence the subject of count 1 was a bad example of aggravated burglary. Far from incorporating a component for any of the offences committed once the appellant was inside the house, the moderation of the sentence imposed on count 1 shows that that was not done. These grounds too should be rejected.
Counsel argued grounds 1, 2 and 6 together. They amounted to a contention that the sentence was manifestly excessive. Grounds 2 and 6 go to weight. Counsel relied on factors personal to the appellant, with particular emphasis on her physical and mental health. It was pointed out, correctly, that psychosomatic illness is genuine illness and the pain is genuine pain. Nevertheless, these were all factors canvassed on the plea, of which the judge was well aware. That is why grounds 2 and 6 are drafted as they are. Ms Dalziel also argued that too much weight had been given to denunciation and general deterrence, and perhaps too little weight to his Honour's finding that there was little risk of re-offending. I am far from saying that I would have imposed a lesser sentence on any of these counts or a lesser total effective sentence but, even if that were the case, it would not make the sentences manifestly excessive. They would have to be shown to be outside the range available to the judge. Notwithstanding the factors personal to the appellant and the sentencing objectives to which Ms Dalziel referred, the sentences are not outside that range. The non-parole period is, of course, lenient.
For these reasons I would dismiss the appeal.
REDLICH, J.A.:
I agree that the appeal should be dismissed, for the reasons given by the learned presiding judge. I would only add this. Where co-offenders cause serious injury to a victim and one is charged with intentionally causing serious injury and the other with recklessly having done so, it does not follow, when all of the circumstances are taken into account, including those personal to each offender, that different sentences should necessarily be imposed on each offender.
COLDREY, A.J.A.:
I also agree with the reasons expressed by the learned presiding judge that the appeal should be dismissed. Particularly in cases of this nature, the circumstances of the offending are important. Although the same sentences were passed on count 2 by the sentencing judge, the facts reveal that the causing of serious injury to Vladimir Rojkovic, albeit recklessly, was occasioned by the wielding of a patently lethal weapon, namely an axe, with which the appellant had armed herself, whereas the injuries, although inflicted intentionally, by the co-accused were occasioned by wielding a rolling pin. This is just to emphasise what Redlich, J.A. has said, that the individual circumstances in these common enterprises are matters which a sentencing judge is entitled to take into account.
CALLAWAY, J.A.:
The order of the Court is:
Appeal dismissed.
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