R v Rae [2001] NSWCCA 3 (12 December 2001)

Last Updated: 21 January 2002

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Stephen John Rae [2002] NSWCCA 3

FILE NUMBER(S):

60022/00

HEARING DATE(S): 12 December 2001

JUDGMENT DATE: 12/12/2001

PARTIES:

Regina

Stephen John Rae

JUDGMENT OF: Giles JA Sully J Levine J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/12/2124

LOWER COURT JUDICIAL OFFICER: Karpin DCJ

COUNSEL:

G. Smith - Crown

P. Byrne SC/M. Marty - Applicant

SOLICITORS:

S. E. O'Connor - Crown

Ross Hill & Assoc. - Applicant

CATCHWORDS:

LEGISLATION CITED:

Crimes Act 1900 (NSW)

DECISION:

Leave to appeal against sentence granted; substantive appeal dismissed

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF CRIMINAL APPEAL

60022/00

GILES JA

SULLY J

LEVINE J

Wednesday 12 December 2001

REGINS v STEPHEN JOHN RAE

JUDGMENT

1 GILES JA: The application, in my view, came down to two points.

2 The first point was that there was sentencing error in that Karpin DCJ took into account the strength of the main case in relation to the plea of guilty in a manner contrary to what was said in R v Thomson (2000) 49 NSWLR 383 at [136-7] in that she took it as qualifying the utilitarian value of the plea of guilty as distinct from, or in addition to, qualifying the extent of genuine contrition. As Sully J has said, any discount for a plea of guilty and what the discount should be depends on the facts, and the facts here did not provide a significant case for a discount. Nonetheless her Honour did make allowance for the plea. I do not read her Honour's remarks on sentence in the way required for the applicant's argument. In my opinion, what her Honour said is quite compatible with regard to the strength of the Crown case only in a permissible way.

3 The other point was that, acknowledging to the full the objective seriousness of the offence, the findings of various matters in favour of the applicant were not sufficiently reflected in the sentence. The matters were set out at length in the remarks on sentence. For the reasons given by Sully J, with which I agree, I consider that her Honour's assessment of the weight to be given to those matters in favour of the applicant was open to her, and accordingly that the sentence at which she arrived was within the range open to her.

4 I agree with the orders his Honour proposed.

5 SULLY J: This is an application by Mr Stephen Rae for leave to appeal against the asserted severity of a sentence of imprisonment that was passed upon him by her Honour Judge Karpin on 23 December 1999 in the Parramatta District Court.

6 On 25 October 1999 the applicant was arraigned before her Honour on an indictment charging that on or about 3 February 1998 at Ashfield, he had caused grievous bodily harm to one Gabriella Mazzali with intent to murder her. Such an offence contravenes s 27 of the Crimes Act 1900 (NSW). It attracts upon conviction a statutory maximum penalty of imprisonment for twenty-five years.

7 The applicant pleaded guilty upon arraignment. In due course he was convicted and sentenced to imprisonment for nineteen years and eight months. A minimum term of fourteen years and nine months was set.

8 In setting that sentence her Honour took into account an additional and related offence of assault occasioning actual bodily harm to one Stephen Swain. Such an offence contravenes s 59 of the Crimes Act and, if charged as a substantive and principal offence, attracts upon conviction a statutory maximum penalty of imprisonment for five years.

9 Prior to 3 February 1998 the applicant and Miss Mazzali had been in a personal relationship for about one year. The relationship had waxed and waned and, by February 1998 the relationship, as far as Miss Mazzali was concerned, was effectively at an end. The applicant would not accept that state of affairs; and it is that disposition on this part that explains the truly horrific events which define the objective facts relevant for present purposes.

10 The relevant sequence is described as follows in the remarks on sentence. It is not contended by the applicant that what is thus stated is incorrect.

"On the evening of 3 February 1998 the prisoner telephoned Ms Mazzali. She told him she was going out. He said, 'Who is this guy you are going out with?' She told him she was attending a Landmark meeting with a woman friend. Landmark apparently being a personal development forum to which Ms Mazzali belonged. When she and her friend arrived at the Landmark meeting the prisoner was there. During the evening Ms Mazzali and her friend went out to eat. They were followed by the prisoner who approached her friend saying that he wanted to talk to Ms Mazzali. She told him that Ms Mazzali did not want to talk to him. The latter told him she would speak to him another night. He did not appear to either woman to be affected by alcohol.

About 11.30pm Ms Mazzali's friend drove her home. Shortly after she arrived home she received a series of phone calls but no one answered until finally the prisoner identified himself saying he just wanted to talk. Ms Mazzali said she did not want to talk to him but that they would talk another night. She locked the front door and went to bed.

A short time later she heard a loud noise and immediately got up. She saw the prisoner in her bedroom holding a plastic container from which he threw liquid over her. Ms Mazzali realised instantly that it was flammable liquid. It was petrol. She tried to run past him to get out of the flat. He continued to pour the petrol over her. She became saturated in petrol. She managed to escape from the flat and ran out screaming for help.

Stephen Swain, who lived downstairs, came up the stairs and took hold of the prisoner. Ms Mazzali could see the prisoner attempting to get a cigarette lighter out of his jeans pocket. She yelled out to Mr Swain to hold onto the prisoner because he had the lighter. Unfortunately the prisoner managed to escape Mr Swain's grasp and removed the lighter from his pocket. He ignited the lighter with which he then set Ms Mazzali on fire. She was immediately engulfed in flames. Both the prisoner and Mr Swain were also set alight by the explosion. Each of them managed to extinguish the flames.

Ms Mazzali was not so fortunate. She was completely engulfed in a fireball. She was in agony and believed she was about to die. She threw herself down the stairs in a vain attempt to put out the flames. She felt she was melting. She called out for an ambulance and police. Mr Swain ran down and began to pour water over her. He was joined by other residents. The prisoner went to Ms Mazzali's flat which shortly after was seen to be ablaze. Whilst the victim was being doused with water, firstly in an attempt to put out the flames and then in an attempt to relieve her agony, the prisoner walked downstairs, stepped over the screaming woman and left the building. Police were soon on the scene, followed by ambulance officers. Ms Mazzali was transported to Concord Hospital. Fire services attended and put out the fire.

Approximately 45 minutes later the prisoner attended Ashfield police station where he spoke to Sergeant Burton, to whom it was obvious the prisoner had suffered burn injuries to his arms, legs and face. The prisoner said to Sergeant Burton, 'I have done a very bad crime. I've had a big argument with my girlfriend. I felt suicidal. I wanted to end it.' Sergeant Burton said, 'Did you pour fuel on yourself?' The prisoner said, 'Yes, and on my girlfriend'. Sergeant Burton said, 'Where did you get it?'. The prisoner said, 'I just bought it.' The prisoner had in fact purchased a two litre plastic container of milk which he emptied out. He went to a service station and filled the container with petrol before going to Ms Mazzali's premises where he used considerable force to smash in her front door to gain access to her flat."

11 The learned sentencing Judge described as "appalling" the consequences to Miss Mazzali of this horrendous attack upon her by the applicant. It is pertinent to quote in full the relevant facts as found by her Honour:

"Ms Mazzali's injuries were appalling. She sustained full thickness burns to ninety-three per cent of her body. She also suffered severe internal inhalation injuries. On admission it was not expected she would live. For some time thereafter her condition remained so serious that her treating doctors believed there was a continuing likelihood she would not survive. Although her condition had been stabilised she was subject to life-threatening infections for the first few months of her treatment. Accordingly, on 19 February 1998 at a bedside court a magistrate took a dying deposition from the victim. She was unable to speak but with difficulty was able to write a coherent account of the prisoner's attack upon her.

Over the ensuing three months she underwent ten skin graft operations. By early May she was still in the Burns Unit in a serious but stable condition. She had survived several attacks of sepsis, which were potentially life-threatening, and a bout of pneumonia.

Reading the synopsis of her daily treatment gives some indication of the dreadful suffering endured by this young woman. She had two further skin graft operations before being discharged from hospital in July to return to England where she was again admitted to hospital. She spent thirteen months in hospital. She was obliged to wear a burns pressure suit and when she was required to travel to Australia to give evidence in October this year she was still required to wear a burns pressure suit. She needed a carer to travel with her and she will require a level of care for the rest of her life.

Ms Mazzali did survive, but her quality of life has been permanently and severely affected. She underwent months of severe pain. She will continue to experience pain and discomfort and severe limitations on her activities for the rest of her life. Dr Peter Haertsch, an expert in burn surgery, assesses her permanent severe facial scarring and disfigurement as seventy per cent of the worst case scenario, and her bodily scarring and disfigurement as ninety-five per cent of the worst case scenario. Her mobility is severely affected by substantial scar tissue. She has very little original skin left and substantial problems with circulation which will create difficulty in any future operations to improve her condition. The scar tissue which covers most of her body is more susceptible to damage and lacking in the elasticity of normal skin. Consequently she has great difficulty in performing such simple tasks as tying her own shoelaces. Because hair follicles, sweat glands and sebaceous glands have been destroyed, Ms Mazzali has problems with temperature control. It is unlikely, for instance, she could live in Australia again because her body will not readily deal with the heat. She is constantly uncomfortable because of her inability to control body temperature. She suffered severe physical and psychological damage. She has been on anti-depressant medication for a long time. Her levels of depression have been exacerbated by recurrent notice that she was required to travel to Australia to give evidence against the prisoner. She has required continuing physiotherapy and psychotherapy. It is likely she will require such assistance on an ongoing basis. Her psychotherapist notes that she is determined and has made a great effort towards her own rehabilitation.

Despite her own efforts and those of her medical and support team Ms Mazzali will suffer substantially for the rest of her life as a consequence of the horrific injuries inflicted upon her by the prisoner. She is twenty-nine years old. Her prospects for the future are not good when contemplated in terms of the usual and reasonable expectations of an attractive young woman who had established herself in a successful professional life, led a strongly independent existence and enjoyed an active social life. There is little chance that she will have a children which is a source of distress for her. The realities are that someone with her enormous level of disfigurement and disability is doomed to be a prisoner of her appalling physical injuries for the rest of her life. Her chances of normal existence have been ruined forever."

12 It is equally pertinent to set beside this description of Miss Mazzali's situation a description of the consequences to Mr Swain of his courageous and chivalrous attempt to rescue Miss Mazzali. Mr Swain, to quote from the relevant formal schedule,

"received partial thickness burns to ten-fifteen per cent of his body around his elbows, hands, feet and hip area."

13 It needs, surely, no extended analysis in order to justify a conclusion that the given objective facts of the present case were criminally culpable to a very high degree. The attack upon Miss Mazzali was deliberate and vicious. As the learned sentencing Judge observed, and I respectfully agree:

"No one of ordinary intelligence and common knowledge can fail to be aware of the appalling injuries and very high likelihood of death to be caused by pouring petrol over a victim and igniting it. This prisoner has exhibited above average intelligence."

14 Her Honour assessed the applicant's criminal culpability as calling for punishment "at the upper end of the scale, albeit not at the top, namely, twenty-five years as provided by Parliament." In my opinion this assessment is, at least as far as concerns objective criminality, unduly favourable to the applicant. In R v Twala, unreported, NSW CCA 24 October 1994, this Court (Carruthers, Finlay, Badgery-Parker JJ), approved these propositions:

"In order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)."

(see per Badgery-Parker J at 7).

15 It is my opinion that those propositions, if taken seriously and applied fairly, must cause any reasonable assessor to characterise the objective seriousness of the applicant's crimes as "being in the worst case category." In my opinion it defies simple common sense to postulate the contrary conclusion in the case of an offender who deliberately breaks into the home of a young and effectively defenceless woman; douses her in petrol, ignites the petrol; and then leaves her to burn; and all with the admitted intent of killing her. That said, it must be kept in mind that the sentencing Judge found, favourably to the applicant and as I have earlier noted, that the punishment properly called for was at the upper end of the scale, but not at the top, namely twenty-five years, as provided by Parliament.

16 Of course, that is not to say there is no room for the mitigation of the statutory maximum penalty, even in so objectively extreme a case, by reason of subjective matters brought sensibly to account.

17 In the case of the present applicant those features seem to me to be as follows:

(1) The applicant is comparatively young. He was born on 1 September 1964, so that he was aged thirty-three years and five months at the time of his offences. He is now aged thirty-seven years and not quite four months.

(2) He pleaded guilty as charged, but not until after a fairly tortuous plea history as outlined by her Honour through passages 13-45 of the remarks on sentence. Her Honour, correctly in my opinion, gives the applicant some reduction in sentence notwithstanding that history. Submissions have been addressed in support of the present application, and based upon the decision of this Court in R v Thomson; R v Houlton (2000) 49 NSWLR 383; the submissions being directed to the proposition that there was a sentencing error on the part of the primary Judge in connection with the approach taken by her Honour to the discount properly to be allowed in accordance with the guidelines established by that decision in consideration of the applicant's plea of guilty. It is, I think, sufficient to say that if one thing is made completely clear by the guideline judgment, it is that circumstances alter cases; and that, as is pointed out by the Chief Justice in terms, - see pars 157-158 of his Honour's judgment, - there are, for example, circumstances in which the protection of the public requires a long sentence to be imposed such that no discount is appropriate; and that there are sometimes crimes that so offend the public interest that the maximum sentence without any discount for any purpose is appropriate. I am not suggesting that this case, on a proper view, is to be fitted precisely within either of those categories. The point I seek to make is that the guideline judgment itself recognises the almost infinite variety of particular facts and circumstances to which the general guidance given by the judgment has to be applied in particular cases. I am myself not persuaded anything said by her Honour showed a sentencing error of the kind that would warrant interference by this Court on this particular account.

(3) The applicant had no criminal antecedents.

(4) There is some evidence supporting the finding made in fact by her Honour of limited remorse.

(5) The applicant is highly intelligent and accomplished. His vocational record is one of substantial achievement.

(6) The applicant's present custody is his first experience of full- time imprisonment. To a man of the applicant's intelligence, capacities and personal background, that custody will be very burdensome, as her Honour accepted.

(7) The applicant's emotional condition was the subject of considerable evidence and debate at the proceedings on sentence. It suffices for present purposes to say that her Honour found: first, that the applicant's "level of emotional disturbance" at the relevant time had been such as to warrant some mitigation; and, secondly, that the attack on Miss Mazzali was "an isolated incident of violence in the (applicant's) life"; and, thirdly, that the appellant ought not to be sentenced upon the basis that he was so emotionally dysfunctional as to be a source of future danger to other members of the public. In my opinion it cannot be said these findings were not open on the evidence before her Honour.

18 The thrust of the submissions put for the applicant is very much powered by the decision in Twala. It is contended that the applicant's case is sufficiently similar to that of Mr Twala to warrant a comparison of the two respective sentences; and that such a comparison suggests appellable excess in the applicant's sentence.

19 It is true that this Court, as then constituted, substituted in Mr Twala's case a sentence of twenty years with a minimum term of fifteen years, for a sentence of imprisonment for life. It does not seem to me to follow as a matter of correct principle that such a sentence ought to be simply transposed to the different facts of the applicant's case. Mr Twala stabbed his estranged wife to death. The applicant immolated his former lover, condemning her to a lifetime of unimaginable pain, anguish and loss, all of it a living reality day after day for as long as she lives. One of the written submissions of the applicant puts that "the nature of the offence committed by Mr Twala was significantly more serious than that committed by the applicant." It seems to me that, on the given facts of the present case, such a submission is unacceptably artificial and unreal.

20 The end result of her Honour's balancing of the relevant objective and subjective features of the applicant's case is, undoubtedly, a very severe sentence. I am, however, wholly unpersuaded that the sentence fell outside the sentencing range properly available to her Honour. The enormity of what was done to Miss Mazzali is, in my opinion, so great that the available subjective considerations cannot have the mitigating effect that they might have had upon a less appalling objective criminality.

21 The Courts, including this Court variously constituted, have tried to make it clear beyond any doubting that the breakdown of personal relationships, marital and extramarital alike, cannot be allowed to justify vengeful violence of any kind, let alone extreme violence of the kind here relevant. The facts of this present case require, sadly from the points of view of all concerned, that the principles be reaffirmed with all proper resolve.

22 Those considerations, concentrating as they do upon Miss Mazzali, need to be supplemented by a proper calibration of sentence, albeit within the statutory maximum, in order to punish properly the additional and serious offence involving Mr Swain; which offence the applicant asked to be taken into account.

23 For the whole of the foregoing reasons I would grant leave to appeal against sentence; but I would dismiss the substantive appeal.

24 LEVINE J: I agree with Mr Justice Sully and the Presiding Judge.

25 GILES JA: The orders of the court will, therefore, be as proposed by Mr Justice Sully.

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LAST UPDATED: 21/01/2002