Testalamuta v The Queen - [2007] NSWCCA 258

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: TESTALAMUTA v R [2007] NSWCCA 258

FILE NUMBER(S):
2006/5469 (formerly 2006/2814)

HEARING DATE(S): 18 April 2007

JUDGMENT DATE: 4 September 2007

PARTIES:
Sammy TESTALAMUTA (applicant)
REGINA (respondent)

JUDGMENT OF: McClellan CJ at CL Hidden J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/3200

LOWER COURT JUDICIAL OFFICER: Sides DCJ

COUNSEL:
Mr P Byrne SC (applicant)
Ms V Lydiard (respondent)

SOLICITORS:
G Goold (applicant)
S Kavanagh - Solicitor for Public Prosecutions (respondent)

CATCHWORDS:
CRIMINAL LAW:
Sentence
specially aggravated breaking and entering
maliciously inflicting grievous bodily harm with intent
attempt to intimidate witness in prosecution against applicant
applicant on bail at the time
whether sentence is manifestly excessive
assessment of objective gravity of offences
relationship of sentences to standard non-parole periods

LEGISLATION CITED:
Crimes Act 1900

CASES CITED:
R v Amohanga & Rai (2005) 155 A Crim R 202
R v El-Andouri [2004] NSWCCA 178
R v Fidow [2004] NSWCCA 172
R v Duncan & Perre [2004] NSWCCA 431
R v Kirkland [2005] NSWCCA 130
R v Bobak [2005] NSWCCA 320
Vragovic v R [2007] NSWCCA 46
R v Engert (1995) 84 A Crim R 67
R v Way (2004) 60 NSWLR 168
McArthur v R [2006] NSWCCA 200
Pearce v The Queen (1998) 194 CLR 610

DECISION:
Leave to appeal granted, appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/5469 (formerly 2006/2814)
McCLELLAN CJ at CL
HIDDEN J
ROTHMAN J
4 September 2007

Sammy Testalamuta v Regina

Judgment

McCLELLAN CJ at CL: I agree with Hidden J.
HIDDEN J: The applicant, Sammy Testalamuta, pleaded guilty in the District Court to the following charges:
(1) Breaking and entering a dwelling house, knowing there to be a person inside, and being armed with a dangerous weapon, a gun, and committing therein a serious indictable offence, namely, threatening to cause injury to a person to be called as a witness in judicial proceedings, intending to influence him not to attend court as a witness: an offence of specially aggravated breaking and entering under s112(3) of the Crimes Act;
(2) Maliciously inflicting grievous bodily harm with intent to do grievous bodily harm: an offence under s33 of the Act.
Both offences carry a maximum sentence of 25 years imprisonment and a standard non-parole period of seven years. In addition, the applicant asked the sentencing judge to take into account on a form 1 an offence under s93G(1)(c) of the Act, that is, carrying a firearm in a manner likely to endanger the safety of another person.
He had embarked upon a trial on a different indictment, which included a charge of shooting with intent to murder and the charge of carrying of a firearm in a manner likely to endanger the safety of a person. However, on the second day of the trial he pleaded guilty after a fresh indictment was presented containing the two charges I have set out above, and on the basis that the firearm charge would be taken into account on a form 1.
On each charge in the indictment, taking into account the form 1 matter in connection with the first of them, the applicant was sentenced to concurrent terms of imprisonment for fifteen years, to commence on 7 November 2003, comprising a non-parole period of ten-and-a-half years and a balance of term of four-and-a-half years. He seeks leave to appeal against those sentences.
Facts
The sentencing judge summarised the facts in his remarks on sentence as follows:
Prior to the events that give rise to these offences, the victim [Stephen Sheath] and Patricia Mathews had been involved in a de facto relationship. They had two children during that relationship. Those children had resided with the victim since October 2002. It was around that time that Ms Mathews had commenced a relationship with the offender.
On 15 December 2002 the offender was charged with assaulting the victim Sheath and causing him actual bodily harm. This matter arose during an argument over access for Ms Mathews to one or more of her children. The assault occurred whilst the victim was holding one of the children and it was by means of punching and kicking. It was a condition of his bail in connection with that matter that he not approach the victim’s premises. In breach of his bail condition, on the evening of 6 November 2003, the offender went to the victim’s home. The front door was closed. It is clear that he forced it open using the sole of his foot. At this time, the victim and his young son, then aged five, were in the lounge room of the house playing an electronic game. The other child was not there but with the grandmother. When the victim stood up, the offender said to him: “Do you fucking think you’re going to court tomorrow.” Sheath replied: “Yes, I fucking am.” The hearing of the assault charge against the offender was scheduled for the Liverpool Local Court on 7 November, that is the following day. The offender said in response to the victim: “Right, we will see about that.”
At this point, the victim noticed the offender was carrying a silver pistol. He told his son to go out the back. His son complied with that direction and the offender [victim?] ran out after him. When he was near the back door, the victim saw the offender was behind him and still holding the gun. He noticed the offender had transferred it to his left hand and pulled back a lever with his right hand. This appears to have been a cocking mechanism. The offender then said that he was going to kill the victim. The gun went off and the bullet struck the victim in the upper thigh. It apparently passed through his leg. The wound began to bleed.
The victim went out the door and went up to the side of the house to check on his son. Having seen that his son was uninjured and at the front of the house, he returned to the back door to see if the offender had gone. When he looked through the screen door, he was surprised to see that the offender was still in the kitchen. At this time, the offender was standing near the refrigerator. He, that is, the offender, said: “You’re gone mate. You’re fucking gone this time.” The offender then reached into his pocket and pulled out another bullet. The victim tried to lock the screen door and he called out to a passer-by to call the police.
After the offender had kicked the screen door three or four times, he repeated: “You’re fucking gone, mate,” and then discharged the gun. The bullet entered the victim’s hand, as it was against the screen door. When the victim saw the offender trying to reload the gun again, he opened the door, went into the kitchen, picked up a chair and swung it at the offender hitting him on the arm. The offender ran out of the kitchen to the front of the house. The victim went and collected his son.
The offender was seen to enter a white BMW and drive it away. This was seen by a witness, Mr Sinclair, who noted the number plate of the vehicle. When this particular witness glanced at the offender, when the offender was sitting in the car, the offender pointed the gun in the direction of the witness. However it was not discharged.
His Honour went on to record that police and ambulance were called, and the victim was taken to hospital. The gunshot wound to his leg was sutured. The injury to his hand included a fractured left ring finger, which required surgery. However, bullet fragments remained in the hand and the victim was told that it would cause further damage to have it removed. He was in hospital for two days.
Obviously, the offences in the indictment related to the incident in Mr Sheath’s home. The firearm offence on the form 1 arose from the incident involving the witness, Mr Sinclair.
His Honour characterised the specially aggravated breaking and entering charge as premeditated, and expressed himself satisfied that the applicant entered the victim’s home to scare him and, if necessary, to cause him serious injury, so that he would not be able to give evidence the following day. His Honour noted that the weapon he carried was easy to conceal, that it was loaded, and that he took more than one bullet with him. While there was no evidence that the applicant knew that the victim’s son would be present, his Honour found that he must have contemplated that the child probably would be. He also observed that the presence of the child did not deter the applicant from carrying out his intention.
His Honour found that the applicant fired the second shot because it was apparent that the first shot had not achieved what he intended. He noted that both shots were fired at close range, and that the shot to the victim’s thigh area had the potential to cause serious injury, and even to be life threatening, because of the proximity of the wound to the femoral artery. In fact, his Honour found, the more serious injury was occasioned to the victim’s hand, for the reasons I have outlined. His Honour concluded that that injury was permanent.
Nevertheless, his Honour found that the injuries, while really serious, fell into the lower end of the range of those characterised as grievous bodily harm. On the other hand, he considered that the major offences were aggravated by the fact that they were committed in the victim’s home, and while his son was nearby. His Honour concluded that the criminality of both offences was towards the upper end of the range, although not falling within the worst class. As his Honour noted in reciting the facts, the offences were committed while the applicant was on bail in respect of the pending assault charge, and one of the conditions of his bail was that he not approach the victim’s premises.
Subjective case
The applicant was twenty-nine years old at the time of the offences and is now thirty-one. He has a criminal record, primarily for driving matters, some of them serious enough to have led to short prison terms. However, the only entry for violence is the assault on Mr Sheath, which was charged as assault occasioning actual bodily harm. He was dealt with for that offence in September 2004 and sentenced to six months imprisonment. That sentence was subsumed within the sentences the subject of this application.
He had a supportive upbringing. However, he has an intellectual deficit, a matter to which I shall return. He left school in year 9, and thereafter worked with his father in a motor vehicle sales business. He was a good worker.
His relationship with Ms Mathews produced a son. The relationship is over, but she and the son have visited him in prison. He had a previous relationship of some years standing, which produced three children. In his later teenage years he was deeply affected by two tragedies, both of which he witnessed. When he was fifteen he saw his grandmother drown in the family swimming pool. He got her out of the pool but was unable to resuscitate her. About three years later his best friend was involved in a car accident. He was informed of the accident, rushed to the scene, and saw his friend die in the vehicle.
Before his Honour were a pre-sentence report and a psychological report, from which it appeared that the applicant had long suffered from dysthymia and elevated anxiety levels. There was also a history of alcohol and drug abuse, commencing after the death of his grandmother at a time when he was associating with inappropriate people of his age. However, to the probation officer and the psychologist he denied having been affected by alcohol or a drug at the time of the offences. In a handwritten statement to the court he described himself as “seriously affected by a drinking problem” at the time, saying that his “addled state” contributed to his “poor decision”. His Honour was uncertain what was meant to be conveyed by that part of the statement, but concluded that there was no credible evidence that he was affected either by liquor or drugs at the time he committed the offences.
As I have said, the respondent has an intellectual deficit, apparently of long standing. The psychologist obtained a history from him and from his parents. He displayed learning difficulties at school, and the psychologist placed him in the below average category of intellectual capacity. That assessment, together with other aspects of his personality, led her to conclude that he was an insecure person, prone to dependency in romantic relationships. In her report she wrote of him:
…it is of note that Sammy did not make friends easily and had a tendency to be quiet, shy and even anxious in his earlier years. Compounding this appears to have been the challenges he faced from his obvious learning difficulties and limited intellectual capacity, which seemed to have made him feel different from others and quite possibly caused him to become marginalised to some degree by his peers.
His Honour referred to this material in his remarks, accepting that the respondent was easily influenced by others, including partners, and that he liked to do things to secure the approval of friends and partners. His Honour found, however, that there was no acceptable evidence that anyone had influenced him to commit these offences. His Honour referred to the assessment of him as being below average intellectual capacity, but added that the evidence did not go so far as to establish that he suffered from intellectual disability.
He expressed remorse in the handwritten statement but, as he did not give evidence and could not be cross-examined about it, his Honour could not determine whether it was genuine. Nevertheless, his Honour found that there was a measure of contrition, albeit belated. He reduced the sentences he would otherwise have passed in recognition of the utilitarian value of the pleas of guilty, although he did not quantify that reduction.
The respondent continued to enjoy the support of his family, and while in custody he had been working and seeking to address his problem of substance abuse. His Honour assessed his prospects of rehabilitation as reasonable and, as is apparent from the structure of the sentences, found special circumstances.
The application
In written submissions Mr Byrne SC, for the applicant, pointed out an error in the statement of facts which had been presented to his Honour. Those facts recorded that three cartridge cases had been found at the scene of the offences, suggesting that the applicant had fired the weapon three times. There is no doubt that this was an error, apparently arising from some confusion at the forensic ballistics laboratory between this case and another. However, it is clear from his Honour’s recitation of the facts that he sentenced him on the basis that the weapon was fired twice. No submission was made about the error in oral argument and nothing turns on it.
The thrust of the application was that his Honour fell into error in his approach to sentence in several respects, resulting in sentences which are manifestly excessive. It was put that he had erred in placing the offences towards the upper range of objective gravity, in failing to give adequate weight to the psychological material, and in his use of the standard non-parole period as a guide to the determination of the appropriate sentences.
Objective gravity
As to the objective gravity of the offence of specially aggravated break and enter, Mr Byrne acknowledged that it was premeditated but relied upon what he described as a finding by his Honour that the applicant’s “primary intention” was to scare the victim. In truth, as I have said, his Honour expressed himself satisfied that the applicant intended to scare the victim and, if necessary, to cause him serious injury. Consistent with that conclusion was his Honour’s finding that the applicant fired the second shot because the first had not achieved his purpose.
In any event, this was a particularly serious manifestation of the crime for which provision is made by s112(3) of the Crimes Act, that is specially aggravated breaking and entering a dwelling house and committing therein a serious indictable offence. The expression “serious indictable offence” embraces a wide variety of criminality and, obviously, the nature of the serious indictable offence alleged in a particular case will bear upon the gravity of the offence under the subsection.
In the present case the serious indictable offence was threatening to cause injury to a person to be called as a witness in judicial proceedings, intending to influence him not to attend court as a witness. That is an offence under s322 of the Crimes Act, which carries a maximum sentence of imprisonment for ten years. That maximum term reflects the significance which the community places upon a crime which strikes at the administration of justice. Given the facts as he recited them, and the circumstances as he found them, his Honour’s assessment of the gravity of the offence was clearly open to him.
As to the objective gravity of the offence of maliciously inflicting grievous bodily harm with intent, Mr Byrne relied upon his Honour’s finding that the victim’s injuries fell into the lower end of the range of grievous bodily harm. He also noted that his Honour did not find that the applicant intended to inflict more serious injury. He referred to R v Amohanga & Rai (2005) 155 A Crim R 202. In that case the leading judgment was delivered by Simpson J, and in the course of it her Honour referred to other relevant decisions of this Court.
Amohanga & Rai were Crown appeals against sentences passed upon the respondents for armed robbery with the infliction of grievous bodily harm, an offence under s98 of the Crimes Act which also carries a maximum sentence of 25 years. The respondents committed the offence in somewhat sordid circumstances, and the victim was attacked ferociously with a tyre lever, causing very serious head injuries and leaving him with permanent disability. The appeals were allowed. Amohanga’s sentence was increased to imprisonment for twelve years with a non-parole period of eight-and-a-half years, and Rai’s to imprisonment for eleven years with a non-parole period of eight years.
Among the cases to which Simpson J referred were the related matters of R v El-Andouri [2004] NSWCCA 178 and R v Fidow [2004] NSWCCA 172. Those two offenders were jointly involved in an offence under s98 of the Crimes Act, on this occasion robbery in company with the infliction of grievous bodily harm. In reviewing those cases, Simpson J noted at [103] that that offence was well planned and that the victim, a service station proprietor, was subjected to a vicious and brutal attack. Her Honour described him as having suffered “extremely severe and permanent injury”. El-Andouri had been sentenced to imprisonment for sixteen years with a non-parole period of nine years, and Fidow to imprisonment for eleven years with a non-parole period of eight years. Appeals by the two men against their sentences were dismissed.
In Amahonga & Rai Simpson J considered whether the respondents’ offences fell into the worst category of their kind. Her Honour said at [121], “As were the offences in El-Andouri and Fidow, these were among, or close to, the worst of their kind, if only by reason of the injuries occasioned to the victim”.
Her Honour also referred at [135]-[136] to the then recent decision of R v Duncan & Perre [2004] NSWCCA 431, a case of maliciously inflicting grievous bodily harm with intent. She noted that it also involved a brutal attack, causing the victim severe brain damage. Appeals against sentence by those offenders were successful, and in each case their sentences were reduced to imprisonment for thirteen years with a non-parole period of nine years. They had not pleaded guilty, but her Honour noted that they were juveniles at the time of the offence and ”had the benefit of considerably favourable subjective circumstances”.

Mr Byrne also referred to R v Kirkland [2005] NSWCCA 130 and R v Bobak [2005] NSWCCA 320, again related matters. Those two offenders had been sentenced for maliciously inflicting grievous bodily harm with intent, arising from an attack upon the victim with a hammer which left him with extremely serious injuries, having effects on his physical and mental capacity which the sentencing judge described as “profound, pervasive and permanent”. Bobak, whose role in the offence was greater than his co-offender, was sentenced to imprisonment for sixteen years with a non-parole period of twelve years, and Kirkland was sentenced to imprisonment for twelve years with a non-parole period of eight years. Appeals by both men against sentence were dismissed, the Court in each case adopting the sentencing judge’s characterisation of the offence as at the very upper end of the range of seriousness, while falling short of a worst case.
There is no doubt that the nature and effect of the victim’s injuries is an important matter in assessing the gravity of an offence of maliciously inflicting grievous bodily harm with intent and, clearly, the injuries in all the cases referred to are much more severe than those in the present case. However, the seriousness of such an offence must be assessed on the basis not just of the injuries but of all the circumstances of the case.
The Crown prosecutor referred to Vragovic v R [2007] NSWCCA 46, a case of maliciously inflicting grievous bodily harm with intent arising from an attack by the offender upon his former wife. He had broken into the home where she was living with a new partner, and had beaten her with a piece of exhaust pipe and a shortened firearm. The offence was premeditated, and was committed at a time when he was subject to an apprehended domestic violence order protecting her and her partner. He was found guilty after a trial, and an appeal against a sentence of 12 years with a non-parole period of 8 years was dismissed. In delivering the leading judgment, Adams J referred to the circumstances of the offence and at [32], after noting that her injuries were “far from the most serious form of grievous bodily harm which might be suffered”, observed that the “objective gravity of the offence is not determined merely by considering the injuries”.
That observation is apposite in the present case. The offence involved the use of a firearm. As I have said, his Honour noted that, like the other principal offence, it was committed in the victim’s home while his son was nearby. It was well open to his Honour to have assessed the gravity of this offence also as he did.
Psychological report
Mr Byrne acknowledged that his Honour had referred to the psychological material in his remarks, but submitted that he had failed to give it the weight it deserved. From that material it appeared that the applicant’s assault on the victim, Mr Sheath arose from the strained relationship between the victim and Ms Mathews and, in particular, from disputes between those two about access to the children. The evidence conveyed, said Mr Byrne, that the applicant’s reduced intellectual capacity and dependant personality meant that he did not have the maturity to deal with the situation.
That may well afford some explanation for the assault but, of course, that offence is no more than the background to the serious offences with which this Court is dealing. The psychological material provides nothing in mitigation of those offences. Indeed, as I have said, his Honour found that the applicant was not influenced by anyone to commit them and that they were not the product of his need to secure the approval of others.
As I have also said, his Honour found that the applicant’s below average intellectual capacity fell short of intellectual disability. Presumably, that observation amounted to a finding that the case was not one affected by the special considerations governing the sentencing of persons who are mentally ill or intellectually disabled reviewed in cases such as R v Engert (1995) 84 A Crim R 67. Clearly, that was so.
Standard non-parole period
His Honour expressed himself to have determined the appropriate sentence for each offence in the light of the prescribed maximum sentence and the standard non-parole period, guided by the decision of this Court in R v Way (2004) 60 NSWLR 168. As I have said, the standard non-parole period for each of the principal offences was seven years and for each offence the sentence imposed was imprisonment for fifteen years with a non-parole period of ten-and-a-half years. Mr Byrne submitted that, in the light of the applicant’s pleas of guilty, a non-parole period which represented an increment of the standard non-parole period by fifty per cent was manifestly excessive (as was the head sentence associated with it). He argued that such a marked increase of the standard non-parole period demonstrates that his Honour did not adopt the approach endorsed in Way and a series of subsequent decisions of this Court which followed it.
As to the offence of specially aggravated break and enter, I have already referred to the broad range of criminality encompassed by the term “serious indictable offence” in s112 of the Crimes Act. No doubt, it is for that reason that a relatively moderate standard non-parole period is prescribed for specially aggravated offences under s112(3). The serious indictable offence in the present case, as I have said, is one of particular gravity. In all the circumstances, his Honour was justified in fixing a non-parole period significantly higher than the standard non-parole period, notwithstanding the plea of guilty.
The same non-parole period for the offence of maliciously inflicting grievous bodily harm with intent, after a plea of guilty, is undoubtedly high. However, in the light of all the circumstances which I have outlined, I cannot say that it was outside the bounds of his Honour’s discretion. Moreover, the fact that the sentence for that offence is wholly concurrent with the other sentence cannot be ignored.
Manifestly excessive?
Allied to Mr Byrne’s argument about the non-parole periods was his submission that the sentences are, in any event, manifestly excessive. As to the sentence for the grievous bodily harm charge, he relied on the other cases to which I have earlier referred. He noted that the only two cases in which sentences higher than the applicant’s had been passed were El-Andouri and Bobak, in both of which sentences of sixteen years were upheld (although in El-Andouri’s case the non-parole period was lower than that of the applicant, nine years). Otherwise the sentences ranged between eleven and thirteen years. To those cases should be added McArthur v R [2006] NSWCCA 200, in which the Court upheld a sentence of twelve years with a non-parole period of nine years for an offence of armed robbery with the infliction of grievous bodily harm, in which the victim had suffered injuries which the sentencing judge described as ”catastrophic”. In all of these cases except Duncan & Perre, there had been pleas of guilty.
The sentences passed on this applicant were severe but, given the gravity of the circumstances surrounding them, appropriately so. Such pattern as emerges from the cases involving grievous bodily harm referred to does not demonstrate that the sentence for the grievous bodily harm charge in the present case is manifestly excessive. As I have said, the applicant has the benefit of complete concurrence of the sentences on the two principal charges, in a case where it would have been open to his Honour to have accumulated partially. Moreover, the criminality of the offence on the form 1 had to be reflected, and all the offences were committed while the applicant was subject to conditional liberty of particular significance, that is, bail which prohibited him from approaching the victim’s home.
Before parting with the matter, however, I should add this. The fact that his Honour passed the same sentences, to be served concurrently, for both of the principal offences suggests that he may have had an eye only to the aggregate sentence, without considering the appropriate sentence for each charge in accordance with the principles enunciated in Pearce v The Queen (1998) 194 CLR 610. One might have thought that a distinction in sentence was called for, given the different nature of the criminality of the two offences and, particularly, the fact that the form 1 matter was taken into account in sentencing for the aggravated break and enter offence. However, this point was not taken in the application. In any event, as the sentence for the aggravated break and enter is to stand, any adjustment of the sentence for the grievous bodily harm offence would be of no practical effect.
Conclusion
I am not persuaded that any of the challenges to the sentences has been made good. I would grant leave to appeal but dismiss the appeal.
ROTHMAN J: I agree with Hidden J.

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LAST UPDATED: 5 September 2007