S K v Regina

[2009] NSWCCA 21

New South Wales
Court of Criminal Appeal

CITATION:	S K v Regina [2009] NSWCCA 21
HEARING DATE(S):	11 February, 2009
JUDGMENT DATE:	13 February 2009
JUDGMENT OF:	Grove J at 1; Blanch J at 2; Kirby J at 18
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	Criminal law - Intoxication - Sentence served on protection - Standard non-parole period - Grievous bodily harm
LEGISLATION CITED:	Crimes Act 1900, s33 Criminal Appeal Act 1912, s6(3)
CATEGORY:	Principal judgment
CASES CITED:	Waters v R [2007] NSWCCA 219 R v Mitchell [2007] NSWCCA 296 R v Coleman (1990) 47 A Crim R 306 R v Fletcher-Jones (1994) 75 A Crim R 381 R v Fryar [2008] NSWCCA 171 R v Mitchell [2007] NSWCCA 296 Jones and Kelly (1985) 20 A Crim R 142 R v Harborne NSWCCA unreported 12.10.1994 Carlton v R [2008] NSWCCA 244 R v Way (2004) 60 NSWLR 168 R v Mostyn [2004] NSWCCA 97
PARTIES:	S K (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/14266
COUNSEL:	S J Odgers SC (Applicant) P Miller (Respondent)
SOLICITORS:	S O'Connor, Legal Aid Commission S Kavanagh, Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0527
LOWER COURT JUDICIAL OFFICER:	Hosking SC DCJ
LOWER COURT DATE OF DECISION:	28 February, 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Regina v S K

CCA 2006/14266

GROVE J

BLANCH J

KIRBY J

13 February, 2009

S K v Regina

JUDGMENT

1 GROVE J: I agree with Blanch J.

2 BLANCH J: The applicant seeks leave to appeal against a sentence imposed in the District Court on 28 February, 2008. She entered a plea of guilty to a charge of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm contrary to s33 Crimes Act, 1900. The maximum penalty for that offence is imprisonment for 25 years and there is a standard non-parole period of seven years. She was sentenced to a non-parole period of eight years with a balance of term of four years.

3 The offence occurred on 1 December, 2006. The applicant was then a general support officer with the New South Wales Police Service stationed at The Rocks Police Station and she attended a farewell luncheon for retiring police officers at the Sydney Bowling Club in York Street, Sydney. After leaving that function at about 4.15 p.m. she went with others to The Observer Hotel in The Rocks. She was drinking alcohol at both places and the facts tendered included a number of assessments about her state of sobriety during the course of the day. One of those statements indicated that when she left the hotel at around 8.00 p.m. she “… was a little unsteady on her feet still as she was walking to each person, the accused appeared to be moderately effected (sic) by alcohol at this time.” Another witness said she was talkative and well-affected, she “… was not stumbling or walking into walls but you could see she was affected.” She went to Circular Quay railway station and the sentencing judge set out the facts as follows:

“Mrs Schestopalov, a fifty-nine year old woman, had caught a bus to Circular Quay Railway Station from Martin Place. Mrs Schestopalov intended to catch the 8.25pm train on this Friday night from Platform 2 at Circular Quay to Sydenham. That was also the train the offender intended to catch. Mrs Schestopalov walked to the eastern end of Platform 2 and sat down on a bench seat close to the end of the platform facing the tracks. A few minutes later the offender, having made her way up the stairs to Platform 2, walked along Platform 2 and sat on the same bench seat as Mrs Schestopalov. The offender and Mrs Schestopalov were unknown to one another. The events that I have just described can be witnessed and I have witnessed them on a DVD recording played here in the courtroom the last time the matter was before the court on 15 February by way of CCTV security footage from the Circular Quay Railway Station. That footage shows amongst other things Mrs Schestopalov walking apparently normally up and down the platform before she sat down on the seat that I have mentioned.

Before sitting down on the same seat that Mrs Schestopalov was sitting on the offender was seen to be conversing on her mobile phone. Records indicate that she was speaking to her partner. Once seated beside Mrs Schestopalov the offender coughed and spat three or four times in the general direction of but not at Mrs Schestopalov. In response, Mrs Schestopalov said to the offender, “Can you please stop spitting and cover your mouth when you cough, don’t you own a handkerchief?”

The offender responded to that by grunting and grumbling something in reply but Mrs Schestopalov could not understand what the offender said. Mrs Schestopalov described the offender as looking as, “If she had been drinking,” and Mrs Schestopalov said that she could smell alcohol on the offender.

Mrs Schestopalov asked the offender to stopped (sic) coughing as Mrs Schestopalov had had whooping cough some months previously and had spent as a result eleven days in isolation at the St George Hospital as a result. A minute or so later, Mrs Schestopalov saw her train arriving onto the platform and got up and walked towards the platform. She was carrying in one hand a plastic bag and carrying her handbag in her right hand. She walked over and stood facing the tracks behind the yellow line with the writing adjacent, “Please stand behind the yellow line.” This marking was just below the six car marker on the platform which indicated the stopping point for a six carriage train. Mrs Schestopalov estimated that she was, “A good two metres from the edge of the platform,” which in my experience of the line at Circular Quay Station would be about right.

The offender remained seated on the bench seat whilst Mrs Schestopalov moved into the position I have just described but shortly thereafter got up from her seat and walked quickly to where Mrs Schestopalov was standing (a distance of in excess of approximately six metres). The offender walked directly to Mrs Schestopalov who was standing with her back to the offender and placed both of her hands on the middle of Mrs Schestopalov’s back and pushed her off the platform at a time when the train was proceeding from right to left up the platform. As a result of the offender’s push, Mrs Schestopalov was propelled straight down onto the train tracks without touching the platform. She landed face first on the tracks with her head next to the rail and her left leg underneath her. She fell on her left knee and “felt a snap” in her left leg and in her neck. After she fell the front of the first carriage travelled over Mrs Schestopalov and she was found in “the forefoot” of the train being that part in between the wheels and underneath the axle of the train with her head facing back along the train. Mrs Schestopalov was eventually moved onto the platform by Police Rescue and ambulance officers took her to St Vincent’s Hospital.”

4 The effect on the victim was summarised by his Honour as follows:

“As a result of being pushed from the platform and hitting the tracks, Mrs Schestopalov suffered these injuries: A broken left tibia that is to say a fractured leg; a plateau fracture; a cervical spine injury with vertebral fractures and C/1 and C/2. In plain language, Mrs Schestopalov broke her neck. She also suffered what in ordinary English is a blood clot in her broken leg as I understand it at the fracture site apart from multiple contusions. Following her admission to St Vincent’s Hospital, Mrs Schestopalov underwent surgery in relation to her broken leg and emergency surgery to deal with the blood clot at the fracture site. Her leg was set in plaster and she was placed in what is called halo traction for her broken neck. She had to wear a neck brace for a number of months. She remained at St Vincent’s Hospital until 1 February 2007. While in St Vincent’s Hospital she was treated by what is called a fasciotomy to her left lower leg, a debridement and delayed closure to her open leg wounds, a closed reduction and long length plaster of paris to the leg and the application of halo traction to her neck.

An open reduction and internal fixation of her leg proximal tibia that is to say, leg, the lower leg was performed on 15 December 2006. On 1 February 2007 Mrs Schestopalov was transferred to the Balmain Rehabilitation Hospital. On 23 February 2007 she was again re-admitted to St Vincent’s Hospital as a result of complications. After still further surgery to her fractured leg she returned to the Balmain Rehabilitation Hospital on 24 April 2007 where she remained until 8 June 2007. It will be seen, therefore, that as a result of the injuries Mrs Schestopalov sustained she was in hospital one or the other for the better part of six months. She was again admitted to St Vincent’s Hospital on 2 February 2008 and remained there until 10 February 2008 for treatment of a chronic and recalcitrant ulcer which had developed as a result of infection to the wound and fracture site of her left leg. The last paragraph of the statement of facts tendered in the Crown papers reads in this way:

“The victim now mobilises with a rollator frame and wears ankle foot orthoses for her fixed plantar flexion deformity.”

I saw Mrs Schestopalov as she came into court when the matter was last listed before me and she came into court almost doubled over shuffling along on a curved frame in the manner of walking frames usually used by very elderly people. That is by marked contrast to the image that can be seen on the CCTV footage of Mrs Schestopalov walking up and down Platform 2 before she was pushed onto the tracks in what appeared to me to be quite a normal walking manner, the kind of walking manner one would expect of an apparently health fifty-nine year old.

It is quite clear to me that the harm inflected upon Mrs Schestopalov and her ongoing disabilities have had a catastrophic effect upon her well being, her ability to live independently and her enjoyment of life. There is no suggestion in the material before me that as a matter of probability her condition is likely to improve.”

5 The applicant was born on 10 June, 1971 and she was 35 years old at the time of the offence and she is now 37. At the time of sentence she resided on the mid North Coast with her partner of three and a half years and her nine year old son. She separated from her husband, her son’s father, in 2002. That marriage was marred by her husband’s gambling and drug abuse. She is the elder of two adopted siblings. She maintains contact with her adoptive father but not her adoptive mother or brother. Her adoptive parents divorced when she was 13 years of age. She admitted a history of alcohol abuse and said that drinking was an expected part of the culture of her workplace. She has only one prior conviction and that is for mid range PCA in 2004. The pre-sentence report indicated that inquiries showed her behaviour changed markedly when she was intoxicated and she said she acted impulsively and lost control after excessive drinking.

6 The first ground of appeal argued is that the sentencing judge erred in assessing the significance of the applicant’s intoxication. The sentencing judge did find that she was significantly intoxicated but that she “had not lost all powers of rational thought.” When assessing the objective seriousness of the offence he stated “In my view the fact that the offender was intoxicated to a significant extent does not materially mitigate this offence.” He went on to say “In my view people who consume excessive amounts of alcohol particularly when they know they can’t control their inhibitions and become angry or aggressive through alcohol cannot be heard later to say “I should be held less accountable because I was intoxicated at the time”.” The submission is made that this assessment is an error because the fact of the intoxication may be taken into account to mitigate objective criminality and indicate that the conduct was impulsive and unplanned and reference is made to Waters v R [2007] NSWCCA 219 and R v Mitchell [2007] NSWCCA 296.

7 Intoxication may sometimes assist in assessing the degree of deliberation involved in the offence: see R v Coleman (1990) 47 A Crim R 306 at 327. It may also be something which is treated as an equivocal factor which simply explains the context of the crime: see R v Fletcher-Jones (1994) 75 A Crim R 381. It is also something which can be taken into account in assessing the objective seriousness of a standard non-parole period and R v Fryar [2008] NSWCCA 171 is a case where it was suggested the intoxication had been given too much emphasis in assessing the criminality at a lower level: see also R v Mitchell [2007] NSWCCA 296. It should also be noted the applicant knew she had a problem with self-control when intoxicated and she had previously taken steps to correct this.

8 In the sentencing proceedings reliance was placed on the report of Dr Napper who said “… she would not have been in full control of the amount of force that she used to push the victim. This could have resulted in inappropriate force which resulted in the victim going over the platform. Alcohol affected her judgment and reasoning which made it difficult or impossible for her to realise how dangerous it was to push somebody standing close to the edge of a platform.” He went on to say “I do not consider that Ms K intended to bring about the consequences alleged (i.e. to murder or inflict grievous bodily harm)”. That last opinion was obviously not relied on by the applicant and in my view for good reason. The sentencing judge did not accept the version given by the applicant of how the incident occurred. He pointed out she had lied to people about how the incident had occurred. To one of her referees she said she was simply trying to get the woman “out of my face”.

9 I believe the sentencing judge’s analysis of the material was both careful and accurate. The evidence indicated that in spite of the intoxication the actions of the applicant were quite deliberate, she was seen to be walking normally on CCTV footage before the push and she ran down the platform afterwards. She made a phone call on her mobile phone while sitting on the platform and she rang the police at The Rocks Police Station after the event. She was able to give an account of what occurred to a witness at the scene and to the police when they arrived. As the cases make clear, the relevance of intoxication is a question of fact and degree in each case. In this case the seriousness of the offence clearly called for a sentence such as that imposed in spite of the intoxication and the other subjective material.

10 In this case it is clear the judge did give some weight to the applicant’s intoxication but he said it did not materially mitigate the offence. How much weight was given to this factor is not quantified but one way to determine if any error exists is to assess the matter myself giving due regard to the fact the applicant was intoxicated and that she more readily gave way to an impulse. Having done that I do not believe any lesser sentence would be justified and accordingly I don’t believe any error exists.

11 A second ground of appeal has been added asserting an error “in failing to properly take into account the fact that the applicant was employed by the NSW Police Service.” It is the fact that the sentencing judge did not advert to the fact that the applicant will need to serve her sentence on protection because she was employed by the New South Wales Police Service. The sentencing judge was clearly aware of the fact that she was employed by the New South Wales Police Service but made no mention in his remarks on sentence of the difficulties prisoners may have serving a sentence on protection. In this regard reference is made to a number of authorities such as Jones and Kelly (1985) 20 A Crim R 142, R v Harborne NSWCCA unreported 12.10.1994 and Carlton v R [2008] NSWCCA 244. In the last case it was pointed out that the fact of protection may impact on both the head sentence and the issue of special circumstances.

12 It was pointed out in R v Way (2004) 60 NSWLR 168 at 176-177 “The fact of protection has been taken into account as a special circumstance in the case of such offenders subject to the court being satisfied that the sentence will in fact be served in conditions which are more onerous – a circumstance that is no longer necessarily the case for all such offenders, in the light of the current arrangements which exist for their alternative accommodation and special management.”

13 In R v Mostyn [2004] NSWCCA 97 the Court sounded a warning about discounting sentences because a prisoner was on protection unless this would lead to the sentence being served under more onerous conditions. In the instant case there was no evidence of any hardship arising from protective custody. It cannot be said that there was any error by the sentencing judge. Indeed where the sentencing judge is as experienced as this judge was it is difficult to imagine he was not alerted to the fact that the sentence would be served in protective custody simply because the applicant worked for the Police Service.

14 Nevertheless the fact the judge did not mention it in his remarks on sentence must raise a question about this issue and it would be appropriate for this Court to look at the material which has been tendered in order to determine whether it would justify any variation in the sentence which was imposed. The material includes an affidavit by the applicant. In that affidavit she says that access to programmes in the protection area of the gaol is much more difficult although she has had some access to programmes. She says there are 28 inmates in the protection area of the gaol and they have fewer work opportunities, an inability to attend the library and more frequent lockdowns. She also says that in the future she can only be held at Mulawa and Dilwynia and that limits her ability to access in custody child interaction programmes. She does see her son on regular visits.

15 On the other hand there is an affidavit from the Senior Assistant Superintendent at Silverwater Women’s Corrections Centre which states the applicant asked to be placed on protection. He states that she is now classified into the special management area placement where she is housed with other like-minded offenders who feel threatened in the mainstream of the gaol and there are 30 such offenders. He states that there are programmes available to her including those relating to alcohol, physical fitness, organised activities and education by correspondence. He also says that such inmates have access to work in various sections of the gaol and the applicant is presently employed as a domestic cleaner in the visiting section. He says she has access to the library and lockdowns for her are no greater than for any other prisoner.

16 In my view this material would not justify any reduction in either the non-parole period or the total sentence. The offence is an extremely serious one and it requires a sentence to be imposed which reflects the principle of general deterrence in the clearest terms. In order to reduce this sentence this Court would need to be satisfied that a less severe sentence is warranted in law: see s6(3) Criminal Appeal Act, 1912. I do not believe any less severe sentence is warranted.

17 Accordingly, I would propose that leave to appeal be granted and the appeal be dismissed.

18 KIRBY J: I agree with Blanch J.