Wanat v The Queen

[2018] NSWCCA 219

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Wanat v R [2018] NSWCCA 219
Hearing dates:	3 October 2018
Decision date:	12 October 2018
Before:	Simpson AJA at [1]; Johnson J at [2]; R A Hulme J at [3]
Decision:	Leave to appeal refused
Catchwords:	CRIME – sentence appeal – aggravated break, enter and commit assault occasioning actual bodily harm – sentence not excessive – no point of principle
Legislation Cited:	Crimes Act 1900 (NSW) ss 59(2), 112(2) Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2B)
Cases Cited:	Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
Category:	Principal judgment
Parties:	Martin Wanat (Applicant) Regina (Respondent)
Representation:	Counsel: Applicant (self-represented) Ms C Curtis (Respondent)   Solicitors: Solicitor for Public Prosecutions
File Number(s):	2017/98596
Decision under appeal	Court or tribunal: District Court Date of Decision: 22 March 2018 Before: Pickering SC DCJ File Number(s): 2017/98596

Judgment

1. SIMPSON AJA: I agree with R A Hulme J.

2. JOHNSON J: I agree with R A Hulme J.

3. R A HULME J: Martin Wanat applies for leave to appeal against a sentence imposed in the District Court at Campbelltown by his Honour Judge Pickering on 22 March 2018.

4. There were two offences for which his Honour imposed an aggregate sentence of 2 years 8 months with a non-parole period of 1 year 6 months. The sentence was specified to commence on 31 May 2017 and so the applicant will be released on parole when the non-parole period expires on 30 November 2018.

5. Both offences concerned the same victim and they occurred within a very short period of time. There was an offence of assault occasioning actual bodily harm in company contrary to s 59(2) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment of 7 years. The judge indicated a sentence of 9 months for this offence.

6. There was also an offence of aggravated break, enter and commit serious indictable offence, namely assault occasioning actual bodily harm, contrary to s 112(2) of the Crimes Act for which the maximum penalty is imprisonment for 20 years. There is also a standard non-parole period of 5 years. The judge indicated a sentence of 2 years 3 months for this offence.

7. The applicant was accepted to have entered early pleas of guilty to the offences and so the indicative sentences were each the result of a 25 per cent reduction of the otherwise appropriate sentence.

The offences

8. The victim in the matter was a man who lived in a bed-sit apartment at Ashcroft. The applicant was an acquaintance. On the evening of 28 March 2017 they smoked methylamphetamine at the victim's apartment. There was a discussion about money owing. The applicant's girlfriend, Gracie, was present.

9. The co-offender, Amer Avdic, arrived and asked about money he alleged was owed to him by the victim. Avdic approached the victim and punched him to the face. The applicant joined in and the victim was punched all over his head and body. The applicant picked up a pedestal fan and struck the victim with it. The victim took hold of it and swung it at both offenders. Avdic was struck in the back of the head and he then walked out. The victim yelled at the applicant and Gracie to "get out". They left via the backdoor which the victim then locked.

10. The applicant returned and yelled out, "Give me my phone charger back". Someone threw a rock through a window. Gracie called out, "Can I have my shoes?" The victim saw them and passed them to her through the broken window.

11. The applicant then forced the front door open and entered the apartment holding a 70cm-long piece of wood, similar to a stake. He asked, "Where is my charger?" The victim pointed towards the charger and backed away. The applicant picked up the charger and walked out but he threw the stake at the victim as he did so and it hit him on the left forearm.

12. The victim sustained swelling and abrasions to both sides of the face around the eyes and cheeks. He had a small laceration on the left forearm that was caused by the stake. He also had an abrasion to the lower left leg.

13. The following evening the applicant sent a number of text messages to the victim, threatening him with serious violence and demanding repayment of money.

14. The applicant was arrested on 31 March 2017. He told police that he was "not guilty". He entered a plea of guilty in the Local Court.

15. The foregoing has been derived from a document headed "Agreed Statement of Facts" that was signed by the applicant. There was no dispute about the facts of the offences at the sentence hearing. An issue raised in the applicant's written submissions to this Court about his guilt for the second offence was not pursued.

The applicant's background and personal circumstances

16. The applicant is now aged 34 and he has a long criminal history. It commenced with driving offences when he was aged 18 but soon progressed to dishonesty offences and offences of violence. The initial outcomes were fines and good behaviour bonds. The first custodial sentences were imposed in 2005 when he was aged 21 but they were suspended and there was a condition that he was to engage in drug and alcohol rehabilitation. Thereafter a series of sentences of full-time imprisonment were imposed for assaults, including assaults of police officers; reckless wounding; assaults occasioning actual bodily harm; intimidating a police officer; damaging property; and stalk/ intimidate.

17. A condition of a parole order made in 2006 was that the applicant "remain in full time rehab". A parole order in 2014 included that the applicant "comply with all treatment from a community based mental health service" and "participate in random drug testing as required".

18. On 8 December 2016 the District Court at Wollongong reduced sentences that had been imposed in the Local Court for stalk/intimidate and assault police officer to a total of 12 months with a non-parole period of 5 months. The applicant was thereby released on parole on 21 January 2017. However, he returned to custody on 28 January where he remained until 13 March 2017 serving a 3 month back-dated sentence for assault. He was released at the expiration of that sentence to resume serving the parole period in the community.

19. Parole was revoked by the State Parole Authority after the applicant was charged with the present matters, the balance of parole being 4 months 25 days to be served from 31 March 2017 until 24 August 2017. A Breach of Parole Report of 27 April 2017 included that the applicant's compliance with supervision had been unsatisfactory and there had been two breach of parole notifications already submitted. The sentencing judge noted that the use of drugs would have constituted a breach of parole as well.

20. A Pre-Sentence Report included that the applicant's prior management by Community Corrections had been unsatisfactory because of his poor compliance with his obligations. He had poor familial support in the community. The author contacted his mother who confirmed that she remained a positive support, but said she maintained only telephone contact with the applicant because of his antisocial lifestyle.

21. The applicant was one of four children and described a positive upbringing, although there was some domestic violence attributable to his father's consumption of alcohol. His father passed away in 2014 due to cancer but the applicant claimed he had a good relationship with him prior to his death. He also described his relationship with his mother as good, even though they only had contact by telephone. He has had no contact with his siblings for nine years because his mother would not tell him their contact details.

22. The Pre-Sentence Report included that the applicant had been receiving a disability support pension for some years due to his mental health issues. He was being medicated for Schizoaffective Disorder. The Community Corrections officer indicated that the applicant would need to be monitored by his local Community Mental Health Team upon release.

23. As to the offences, the applicant told the officer that he had relapsed into substance use after being released from gaol in January 2017. He was using about 0.1g of methylamphetamine per day at a cost of about $200 per week. He claimed to have been under the influence of cannabis and methylamphetamine at the time of the offences. He expressed a willingness to be admitted to a residential rehabilitation program. His mother confirmed to the officer that the applicant requires intensive intervention in relation to his entrenched drug dependency issues.

24. The applicant was assessed by the Community Corrections officer as being at a medium-high risk of re-offending. She considered he would benefit from a period of supervision in the community with an emphasis upon drug and alcohol rehabilitation.

25. The sentencing judge also had the benefit of a report by Dr Gerald Chew, a consultant psychiatrist with the Justice Health & Forensic Mental Health Network. The applicant told him that he had been compliant with his medication regime after he was released from custody.

26. Dr Chew's report set out the history of the applicant's experience with mental health issues back to his late-teenage years. His history of substance abuse was of about the same duration. At odds with what the applicant had told the Community Corrections officer, he told Dr Chew that "he had only used once in the short time that he was out of custody"; he had used ice with the victim on the day of the offences.

27. Dr Chew confirmed a diagnosis of chronic Schizoaffective Disorder, which he said was currently well controlled with medication and psychiatric follow up, as well as polysubstance use disorder. Unsurprisingly, Dr Chew considered that if the applicant engaged in psychiatric treatment in the community, complied with his medication requirements and abstained from alcohol and illicit drug use, his risk of recidivism would be lowered.

Some aspects of the sentence judgment

28. The judge recounted the facts and then expressed findings that the objective seriousness of the assault occasioning actual bodily harm offence was "approaching close to the mid-range of such an offence" and the aggravated break and enter offence was "somewhere near the middle of the low range and the middle of the range, but pointing closer towards the low end of the range".

29. His Honour discussed the content of the Pre-Sentence Report and the report of Dr Chew in quite some detail. While being unable to find in the applicant's favour as to an unlikelihood of re-offending and having good prospects of rehabilitation, he said "that is not to say that rehabilitation should not be an important aspect on sentence". Noting the assessment of a "medium to high risk of reoffending", he observed that "a residential rehabilitation program would make an enormous difference to the prospects of the offender".

30. Following a discussion of the applicant's mental health issues his Honour expressed a view that his moral culpability was reduced and less weight would be given to general and specific deterrence.

31. The judge noted that the co-offender, Amer Avdic, had been dealt with in the Local Court. For an offence of assault occasioning actual bodily harm in company he received a good behaviour bond for a period of 18 months. The magistrate noted that Avdic had a bad record in relation to driving whilst disqualified but he did not have any matters of violence on his record. His Honour considered (correctly, with respect) that "parity … plays no real role in the sentencing that I am imposing here".

32. His Honour referred to the principle of totality and indicated there would only be a small degree of accumulation of sentence for the two offences.

33. Special circumstances were found pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for reducing the non-parole period and enlarging the parole period of the sentence to be imposed. This was because:

"I want him on parole for a longer period of time, so that Community Corrections can actually make some effort to see one, if he can get into residential rehab, but even if that is not an option, that he be closely supervised in relation to his mental health and also his illicit drug use, to see if on this occasion he can be successful".

34. Although the judge was not required to make a parole order, after announcing the sentence he said:

"I can only make a recommendation in relation to your parole, but I recommend that Community Corrections look into residential rehabilitation for you and if that is not successful, I recommend that Community Corrections closely monitor your mental health treatment."

Grounds of appeal

35. The applicant appeared in this Court without the benefit of legal representation. He relied upon two grounds, although the second raises a number of discrete issues which will each be considered.

Ground 1 – "His Honour erred when he failed to consider the full time of back-dating my sentence till 30th March 2017"

36. The Crown representative informed the sentencing judge that the applicant's parole had been revoked and he had been ordered to serve the balance of the prior sentence from 31 March to 24 August 2017. Given that the applicant was arrested on 31 March 2017 that meant that the judge had discretion as to commencing the sentence on any date in that period.

37. Counsel for the applicant submitted that the judge should "consider a start date that either totally or at least partially is cumulative [sic – concurrent] with the balance of the role [sic – balance of parole] being served".

38. The judge responded to that submission by indicating that he was minded, subject to hearing from the Crown, to date the sentence "either actually on 31 March or very close to it". Likely because he was content with that indication, counsel made no further submission on the subject.

39. In his reasons for sentence the judge expressed a view that there should be some accumulation of the sentence upon the balance of parole for the earlier sentence "for the community to see that there was some actual punishment in relation to the breach of parole". He stated an intention "to make it highly concurrent with his term on the breach of parole" and expressly referred to the need not to doubly punish the applicant in taking into account as an aggravating factor that the offence was committed while he was on conditional liberty.

40. The judge ordered that the aggregate sentence date from 31 May 2017 which had the effect that the applicant served a period of 2 months for the balance of parole of the earlier sentence and then the next almost 3 months concurrently with the sentence for the present matter.

41. In his written submissions the applicant simply asked for the sentence to be back-dated to the date of his arrest for the present matters. (He stated that date to be 30 March but it is in fact 31 March 2017).

42. Whether the sentence should date from 31 March 2017, 24 August 2017 or somewhere in between was a matter for the discretion of the sentencing judge: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 at [21]-[22] (Simpson J, as her Honour then was).

43. The manner in which the sentencing judge exercised his discretion in relation to this issue was perfectly open to him. It is notable that he did so in a way that accorded with what was suggested by the applicant's counsel. He can hardly be heard to complain now. This ground must be rejected.

Ground 2 – "His Honour erred when he took into account full time already served & previous 2 x rehab orders which were not followed up by the jail, also his Honour said in court day of sentencing he'll make an example of me. I'm appealing the severity of sentence."

44. The terms of this ground raise three matters and the written submissions raise a further matter.

45. The complaint about the judge not taking into account full-time imprisonment already served appears to relate to the issue raised under Ground 1 and so nothing further needs to be said about it.

46. The complaint about "two previous rehabilitation orders which were not followed up by the jail" was clarified at the hearing. The applicant said he was referring to requests that had been made by magistrates in the Local Court for Corrective Services officers to arrange for assessments of the applicant's suitability for a residential rehabilitation program. Apparently nothing was done despite two such requests. This is not a matter that was raised in the sentence proceedings in the District Court and so it has no relevance now.

47. The complaint about the judge having said that he would make an example of the applicant is not borne out by anything in the transcript of the proceedings on sentence or in the sentence judgment itself. To the contrary, the judge said that he would give less weight to general deterrence (i.e. deterrence of others) because "those who suffer the condition that the offender has are not suitable vehicles for general deterrence".

48. In the written submissions there was included a complaint that the "sentence of 18 months is excessive". He asked that the non-parole period be reduced to 16 months and the parole period extended to 18 months so (presumably with a commencement date of 31 March 2017) his release date would become 30 July 2018. The submissions were filed on 17 July 2018 at which point the applicant may have held hope that his appeal would be determined sufficiently quickly for some practical effect to be given to his wish.

49. The overall sentence of 2 years 8 months was one that was open to be imposed in the exercise of his Honour's sentencing discretion. The length of the non-parole and parole components of the sentence was also a matter for his Honour's discretion and there appears to be nothing in the way in which it was exercised that could be faulted. The non-parole period was reduced from what could be called the statutory default period of 75 per cent of the overall term to 56.25 per cent. In other words, without his Honour having found in the applicant's favour that there were “special circumstances” the non-parole period would have been 2 years, rather than the 18 months that was specified. A more substantial reduction of the non-parole period was not mandated.

50. In the course of his oral submissions the applicant referred to a number of additional matters such as certain difficulties he has experienced in the custodial environment over the past six months or so. He also referred to his completion of the EQUIPS Addiction program a few weeks ago and his continued compliance in taking medication for his mental illness. This Court is, generally, only concerned with questions of whether error has affected the proceedings or the outcome in the court below. There are only limited bases upon which the Court is permitted to have regard to events post-dating a sentence being imposed. No basis is available in this case for the Court to do so. Nevertheless, the applicant is to be commended for continuing with his efforts at rehabilitation.

Conclusion

51. In summary, no error in the manner in which the primary judge exercised his sentencing discretion has been established. The sentence, including the assessment of the minimum period to be served, is quite unremarkable having regard to all of the circumstances including the facts of the offences, the applicant's lengthy criminal history, and also the mitigating effects of his mental illness.

52. I propose that leave to appeal be refused.

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Decision last updated: 12 October 2018