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7
Court of Criminal Appeal 8 October 2002

R v Mendez

[2002] NSWCCA 415

Assault & violence
CRIMINAL PRACTICE AND PROCEDURE SENTENCE RELEVANCE OF PROVOCATION

Citation: R v Mendez [2002] NSWCCA 415
Court: NSW Court of Criminal Appeal
Date: 8 October 2002
Judge(s): Sully J, Howie J

Background

The applicant pleaded guilty to maliciously inflicting grievous bodily harm, an offence under s 35 of the Crimes Act 1900 carrying a maximum of seven years imprisonment. The offence arose from a violent attack in the early hours of 11 November 2001, when the applicant struck the victim repeatedly in the face and head with a heavy glass ashtray. The victim was the ex-wife of the man with whom the applicant was living, and she had arrived at the residence late at night after drinking.

The applicant, who was naked at the time, pursued the victim to a waiting taxi and continued the attack. The victim sustained a fractured jaw, a shattered cheekbone, a fractured eye socket, and required permanent facial reconstruction using two plates and eight screws.

In the District Court, Judge Ducker sentenced the applicant to four years imprisonment with a non-parole period of two years and three months. The applicant sought leave to appeal, arguing the sentence was manifestly excessive and that insufficient weight had been given to provocation.

  • Whether the sentencing judge erred by giving insufficient weight to provocation, particularly the applicant's claim that she feared the victim when she arrived at the house
  • Whether unsworn statements made to a psychologist, and not tested in evidence, should have been accepted as establishing provocation
  • Whether the sentencing judge erred in his assessment of objective seriousness, including the treatment of the applicant's intoxication as a mitigating factor
  • Whether the overall sentence of four years, with the discount applied for the guilty plea, was manifestly excessive

Decision

The Court found no error in the sentencing judge's treatment of provocation. The applicant had not given evidence at the sentencing hearing despite being invited to do so by the judge. Her account of fearing the victim, relayed only through a psychological report, was inconsistent with the objective facts and carried little weight in the absence of sworn testimony. The Court confirmed the principle from R v Qutami and R v Palu that statements made by an offender to a report writer should generally receive limited weight unless the offender gives evidence.

On the question of objective gravity, the Court upheld the sentencing judge's assessment that the offence fell towards the upper end of the range for s 35 offences. The applicant had armed herself, inflicted serious and permanent injuries on an unarmed victim who was attempting to flee, and showed no indication of stopping the attack voluntarily.

The Court also rejected the submission that intoxication operated as a mitigating factor. Given the applicant's history of violence when intoxicated, her state at the time of the offence did not reduce her culpability in the relevant sense. The sentencing judge was entitled to give weight to both specific deterrence and general deterrence in the circumstances.

The Court described the sentence as sitting at the very limit of the sentencing discretion but found it was not beyond that limit. The twenty percent discount for the guilty plea was not considered inappropriate, given that the applicant could have indicated her willingness to plead to the lesser charge at any point after committal for trial. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Statements made by an offender to a psychologist or report writer carry limited weight at sentencing unless the offender also gives sworn evidence, particularly where those statements are inconsistent with the objective facts.
  • Where a sentencing judge expressly invites an applicant to give evidence and the invitation is declined, the absence of sworn testimony further undermines reliance on self-serving accounts in third-party reports.
  • Intoxication does not automatically operate as a mitigating factor; where an offender has a documented history of violence when intoxicated, the sentencing court may decline to treat that state as reducing moral culpability.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that objective seriousness is properly assessed by reference to the nature of the weapon used, the severity of injuries, whether the victim was able to defend herself, and the pursuit of an injured victim attempting to flee.
  • A guilty plea discount of approximately twenty percent was not considered excessive in circumstances where the applicant had the opportunity to indicate the plea well before the hearing date and had not done so until arraignment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 35

Cases
- R v Qutami [2001] NSWCCA 353
- R v Palu [2002] NSWCCA 381