Yassien v The Queen

[2006] NSWCCA 15

CITATION:	Yassien v R [2006] NSWCCA 15
HEARING DATE(S):	03/02/2006
JUDGMENT DATE:	13 February 2006
JUDGMENT OF:	Giles JA at 1; Grove J at 2; Hoeben J at 3
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	Sentence appeal - offence capable of being dealt with summarily - failure of sentencing judge to refer to that fact - whether error - principle of totality.
LEGISLATION CITED:	Crimes Act 1900 Enclosed Lands Protection Act 1901 Drug Misuse and Trafficking Act 1985
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610 R v Crombie [1999] NSWCCA 297 at [16] R v Depoma [2003] NSWCCA 382 at [17] R v Doan (2000) 50 NSWLR 115 R v El Masri [2005] NSWCCA 167 at [30] R v Gent [2005] NSWCCA 370 at [84]-[85] R v Hajjo (unreported, NSWCCA, 31.8.92) R v Holder and Johnston (1983) 3 NSWLR 245 at 260 R v Palmer [2005] NSWCCA 349 at [15]
PARTIES:	Nabil Yassien - Applicant Regina - Respondent
FILE NUMBER(S):	CCA 2005/2537
COUNSEL:	Ms L Flannery - Applicant W Dawe QC - Respondent Crown
SOLICITORS:	S O'Connor, Legal Aid Commission of NSW - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/3007
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ

2005/2537

GILES JA
GROVE J
HOEBEN J

Monday, 13 February, 2006

Nabil YASSIEN v REGINA

Judgment

1 GILES JA: I agree with Hoeben J.

2 GROVE J: I agree with Hoeben J.

3 HOEBEN J:

Offences and sentence
On 20 May and 23 June 2005 the applicant was sentenced in respect of the following charges by Sorby DCJ.

(i) 19 November 2004 assault occasioning actual bodily harm contrary to s59 Crimes Act 1900 (maximum penalty 5 years).

(ii) 19 November 2004, resist police in execution of duty contrary to s58 Crimes Act 1900 (maximum penalty 5 years)

(iii) 19 November 2004, entering enclosed lands contrary to s4(1)(a) Enclosed Lands Protection Act 1901 (maximum penalty $550 fine).

An offence of supply a prohibited drug (cannabis) contrary to s25(1) of the Drug Misuse and Trafficking Act 1985 was taken into account on a Form 1.

4 His Honour imposed the following sentences:

(i) Assault occasioning actual bodily harm, a term of imprisonment of 2 years with a non-parole period of 1 year commencing 9 May 2005 and expiring on 8 May 2006 and with a balance of term of 1 year to expire on 8 May 2007.

(ii) Resisting police in execution of their duty, imprisonment for a fixed term of 3 months to commence on 9 May 2005 and expire on 8 August 2005.

(iii) Entering enclosed lands, a fine of $50.

5 The applicant has served the sentence for the resist police offence. This application concerns the assault offence only.

Background to offences

6 At the time of the assault occasioning actual bodily harm, the subject of this application, the applicant was on bail for the offences of common assault, resist police, assault police and wield knife in a public place. Those offences occurred on 19 July 2004. The applicant was also subject to three good behaviour bonds imposed on 28 June 2004 for three offences of driving while disqualified.

7 The following facts were agreed. The applicant had known the victim for approximately 4 years and had engaged in a brief sexual episode with her on one occasion four months before the offence. After that episode the victim told the applicant that she did not want to see him any more. Since that night the applicant used to visit the victim’s home address every third night wanting to speak to her about leaving her husband for him to which on all occasions the victim responded that she did not want him to visit her home any more. On most occasions the applicant would stay for about five minutes and then leave.

8 At about 8.30 pm on Friday 19 November 2004 the applicant knocked on the door of the victim’s home and when the door was answered said:

“I can’t get you out of my head, I need to talk to you, you don’t know how much I love you.”

The victim responded:

“You know I am married and I have a family, I am happy with my family”.

The applicant forced his way inside the victim’s home by pushing her in the chest causing her to lose her balance and move backwards.

9 The victim yelled out “help, help, help”. The applicant grabbed hold of both sides of the victim’s face with both his hands and said “You don’t know how much I love you”, to which the victim responded “You don’t know how much I hate you”.

10 The applicant using a closed fist punched the victim twice, one punch after the other, to her left eye which caused the victim immediate immense pain. The force of the punches caused the victim to fall to the floor in the hallway of her home. While the victim was on the ground in the hallway, the applicant using a closed fist punched the victim in her left eye causing immediate and significant pain.

11 The victim yelled “help, help, help” which caused her four children to run into the hallway. The applicant grabbed the victim around the throat area in a choking motion and picked her off the ground, which also caused the victim pain. The victim said “Get out of my house”.

12 By this time the police seem to have been in the vicinity. The applicant said “If you go to the police I’ll come back and burn your house down”. The victim ran to the front window, opened it and yelled “Help, help I need help”. The applicant opened a back window and said to the victim “the f – coppers are here, shut your mouth, keep your f – mouth shut”. The applicant then ran from the location.

13 The applicant was pursued by the police through some bushland, but not apprehended. He again attended the victim’s house on 20 November. A neighbour called the police but the applicant had left by the time they arrived. The police then went to the applicant’s home address in Villawood. The applicant was arrested in circumstances which led to the charge of resist police in the execution of their duty.

14 At the police station during the record of interview, the police learned that the applicant suffered from the mental illness of schizophrenia. The applicant has been in custody since 20 November 2004.

Subjective matters

15 The applicant was born on 13 October 1980 in Egypt and migrated to Australia with his parents in 1986. His parents separated in 1993. The applicant left school at the age of 16. It was at this age that his mother, according to the Probation and Parole report, first became aware of his erratic behaviour and increasing suspicions of people.

16 The applicant has not had a stable employment record since school and has been on a disability pension for the past 7 years because of his mental illness.

17 The applicant had a relatively long criminal record going back to the Children’s Court in 1994. The offences included assault police. Most of the matters were dealt with under s32 of the Mental Health Act. The balance of offences related to driving matters.

18 On 8 April 2005 the applicant was sentenced to a fixed term of imprisonment of 6 months for the offences referred to in para [4] hereof. That sentence commenced on 9 November 2004 and expired on 8 May 2005.

19 The applicant pleaded guilty to the assault occasioning actual bodily harm at the first opportunity as was found by his Honour.

Remarks on sentence

20 Having reviewed the facts and subjective considerations his Honour directed his attention to the health issues of the applicant. His Honour had specific regard to a report of Dr Jonathon Cann, psychiatrist, of 23 March 2005. That report indicated that the applicant had been suffering from schizophrenia since the age of sixteen and had only intermittently been taking his medication. He was also using marijuana which was known to adversely affect the mental state of persons suffering from schizophrenia. Dr Cann thought that the applicant’s actions at the time of assault may have been influenced by his schizophrenic condition.

21 Because of that report his Honour adjourned the proceedings from 20 May to 23 June in order to allow Dr Cann to consider the applicant’s ERISP and to provide a further report. Unfortunately Dr Cann did not read the ERISP but he did provide another report dated 6 June 2005.

22 In that second report Dr Cann expressed the opinion that at the time of the offence the applicant was “likely to have been affected, possibly profoundly by his mental illness” and that he was “probably unable to reason with any moderate degree of sense and composure about this behaviour at that time.”

23 The applicant did not give evidence in the sentencing proceedings. In reaching his conclusions his Honour was dependent upon the ERISP, the agreed facts and the Probation and Parole report. Using that material his Honour concluded that the applicant had shown no remorse for his actions. The applicant claimed that he had no intention of harming the victim and was only defending himself.

24 His Honour was prepared to find special circumstances in the applicant’s favour because of his need for close supervision in taking his medication. Rehabilitation was only likely to be achieved if the applicant complied with his treatment requirements.

25 When imposing the sentence his Honour had regard to the objective seriousness of the offence and noted that the attack was vicious in that the victim was struck in the eye twice, including one occasion when she was lying on the floor. His Honour did not place significant weight on general deterrence because of the applicant’s mental condition, but did consider personal deterrence as important:

“Specific deterrence however is of importance and the prisoner’s mental state is not such that it should mean specific deterrence should be given less weight.”


His Honour also had regard to the fact that the offences had been committed whilst the applicant was on bail. His Honour directed that the sentence was to date from 9 May 2005 being the date when the applicant completed the sentence imposed by the magistrate in respect of the offences of 19 July 2004.

Appeal
Ground of Appeal 1 – his Honour erred in failing to take into account that the offence of assault occasioning actual bodily harm was capable of summary disposal.

26 The argument on behalf of the applicant was developed in this way. The applicant had originally been charged with the offence of aggravated enter a dwelling with intent contrary to s111(2) of the Crimes Act. On 18 February 2005 the applicant’s plea of guilty to the lesser offence of assault occasioning actual bodily harm was accepted by the Crown and the more serious offence was not proceeded with. It was submitted that the only reason that the assault offence was dealt with in the District Court was because the applicant had originally been charged with the more serious offence.

27 It was submitted that not only was the offence of assault occasioning actual bodily harm capable of summary disposal, but that it would usually be dealt with in that way unless the prosecutor elected to have it dealt with on indictment. If the offence had been dealt with summarily, the maximum penalty that could have been imposed was 2 years.

28 Although the applicant’s offence was an objectively serious one, it was submitted that his criminality taking into account his mental illness, did not put the offence into that category of case that would require it to be dealt with on indictment. It was accepted on behalf of the applicant that a District Court judge was not bound by the jurisdictional limit imposed by the Local Court when dealing with an offence on indictment that was capable of summary disposal. Nevertheless it was submitted that this was a factor that a District Court judge should have regard to when imposing a sentence and it was a factor which might properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed.

29 The applicant submitted that the sentencing judge erred in not making any reference to the fact that the offence was capable of summary disposal in his reasons. The applicant submitted that this failure taken with the length of the sentence, which placed it in the top 19% of all penalties imposed by the District Court for the offence of assault occasioning actual bodily harm, suggested that his Honour had not taken this factor into account. The Court was referred to the decisions of R v Crombie [1999] NSWCCA 297 at [16], R v Gent [2005] NSWCCA 370 at [84]-[85] and R v Palmer [2005] NSWCCA 349 at [15].

30 The most comprehensive statement of relevant principle is in R v Palmer as follows:

“[15] The written submissions on behalf of the applicant and those also on behalf of the respondent refer to a number of decisions of this Court. For the purposes of this application, they are stated in short form as a series of propositions or principles as follows:
(a) The first is that a judge in the District Court is not bound by the jurisdictional limit imposed on the Local Court when dealing with an offence on indictment which was capable of summary disposal, but may have regard to that limit when the case is one which could appropriately have been disposed of in the Local Court ( R v Crombie [1999] NSWCCA 297 at [16], R v LPY (2002) 136 A Crim R 237 at 240 and R v El Masri [2005] NSWCCA 167 at [30].
(b) Secondly, the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge: Crombie (supra) at [15].
(c) Thirdly, however, the relevant decisions that establish that principle do not go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Where it appears that that circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal: Crombie (supra) at [16].
(d) Fourthly, the significance of the loss of the chance of the matter being dealt with in the Local Court varies from case to case. In some cases it would contribute to mitigation of sentence. It is a matter to be taken into account, but is not a universal factor for the reduction of sentence: R v Doan [2000] 50 NSWLR 115.
(e) Fifthly, the failure by a sentencing judge to mention the matter in his or her remarks on sentence and the length of the sentence does not necessarily establish that the sentencing judge failed to have regard to the matter. In some circumstances the length of the sentence may not suggest that the matter was overlooked. R v Depoma [2003] NSWCCA 382 at [17].
(f) Finally, in circumstances where a sentencing judge has made no reference to the summary disposal argument in his or her remarks on sentence, it is necessary to consider whether that omission is indicative of error. One way of testing that proposition is to consider whether the sentence itself appears manifestly excessive in all the circumstances of the case – if the factor had been taken into account and given appropriate weight, a substantially lesser sentence was appropriate in the case: El Masri (supra) at [45] per Johnson J (with whom Hunt AJA and Hulme J agreed).”

31 I am not persuaded that absent the more serious charge, this offence of assault occasioning actual bodily harm would have necessarily been dealt with summarily in the Local Court. The objective seriousness of this offence was significant as his Honour recognised. It involved multiple, closed fist blows to the victim’s eye resulting in severe bruising as the photographs displayed. The assault took place at night in the victim’s home and in the presence of the victim’s young children. The offence was committed whilst the applicant was on conditional liberty for other offences and subject to good behaviour bonds.

32 The objective seriousness of the offence is not significantly reduced by reference to the applicant’s mental condition. The applicant pleaded guilty to the offence. His threats to the victim upon the arrival of the police indicate a lively awareness of his wrongdoing. Despite the opinion of Dr Cann the delusional aspects of his condition do not seem to impact directly upon the nature of the offence.

33 His Honour gave a great deal of consideration to the applicant’s mental condition and was not persuaded that it significantly impacted on the offence from a personal deterrent point of view. The objective seriousness of the offence, as his Honour correctly appreciated, remained.

34 It is true that his Honour did not specifically mention that the offence could have been dealt with summarily. This is not surprising since his Honour had formed the opinion that it was an objectively serious example of that class of offence. In any event there is nothing, in my opinion, in the length of the sentence imposed by his Honour which would suggest that his Honour failed to take this matter into consideration. With a maximum penalty of 5 years imprisonment, the sentence ultimately imposed of a 1 year non-parole period with a balance of term of 1 year was in all the circumstances comparatively light.

35 Applying the test suggested in R v Palmer (factor (f)) his Honour’s failure to refer to the fact that the offence was capable of being summarily disposed of is not indicative of error. Even if that factor had been taken into account expressly by his Honour, the sentence imposed was not manifestly excessive in all the circumstances of the case nor would a substantially lesser sentence have been appropriate.

36 This ground of appeal fails.

Ground of Appeal 2
His Honour erred in failing to apply the principle of totality

37 It is trite law that when sentencing an offender for more than one offence a judge should fix an appropriate sentence for each offence but as a final step, should consider the question of totality so as to arrive at an aggregate sentence which is “just and appropriate” (Pearce v The Queen (1998) 194 CLR 610). The principle of totality applies not only in circumstances where a judge is sentencing for two or more offences but it also applies where a judge is called upon to impose a sentence upon a person already serving a sentence (R v Hajjo (unreported, NSWCCA 31.8.1992).

38 In that regard the well-known statement of principle in R v Holder and Johnston (1983) 3 NSWLR 245 at 260 per Street CJ remains valid:

“The principle of totality is a convenient phrase, descriptive of the significant practical consideration fronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

39 The applicant’s submission under this ground of appeal is that when sentencing the applicant for assault occasioning actual bodily harm, his Honour failed to apply the principle of totality in that he failed to have adequate regard to the fact that on 8 April 2005 the applicant had been sentenced to imprisonment for 6 months in respect of the offences of 19 July 2004 and that these sentences commenced on 9 November 2004 and expired on 8 May 2005.

40 It is submitted that his Honour’s failure to refer specifically to the principle of totality meant that he did not have regard to it and accordingly his Honour fell into error.

41 It is true that his Honour did not specifically refer to the principle of totality. His Honour, however, was clearly aware of the offences of 19 July 2004 and the fact of the sentence of imprisonment expiring on 8 May 2005. It is for that reason that the sentences imposed by his Honour commenced on 9 May 2005.

42 There was, of course, no obligation on the part of his Honour to specifically refer to the principle of totality when setting out his reasons. In carrying out the sentencing function a judge is not required to enumerate in some rote like fashion all sentencing principles for fear that a failure to do so will indicate that he or she did not take that principle into account. It is sufficient if the reasoning process exposed by the judge’s remarks on sentence makes it clear that at least implicitly, regard has been had to such principles.

43 I can see no error in the application of the principle of totality in the sentence imposed by his Honour for the assault inflicting actual bodily harm. Given the objective seriousness of the offence, there was nothing disproportionate in his Honour taking as his start point the cessation of the earlier sentence. In any event the offences of 19 July were themselves serious and entirely unrelated to those of 19 November. The overall criminality involved did not require any reduction in the sentence imposed by his Honour.

44 This ground of appeal fails.

Conclusion

45 The orders which I propose are:

(1) Leave to appeal granted.
(2) Appeal dismissed.

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