Birrell v The Queen [2010] VSCA 262

1 I will ask Neave JA to deliver the first judgment.

2 These appeals concern sentences imposed on the appellant, Jesse Raymond Birrell, by his Honour Judge Pilgrim on 25 June 2009 and by his Honour Judge Leckie on 3 August 2009, in relation to violent offences against two young women. The appellant had been in an intimate relationship with each of them. Although the grounds of appeal were directed solely at the sentences imposed by Judge Leckie, the sentences imposed by Judge Pilgrim are relevant because one of the grounds of appeal against Judge Leckie's sentence raises the issue of totality.

3 Judge Pilgrim sentenced the appellant on two counts of causing injury recklessly. These offences occurred over a two day period between 31 December 2007 and 1 January 2008, that is, after the date of the offences for which Judge Leckie later sentenced the appellant and while the appellant was on bail for the offences for which he was sentenced by Judge Leckie. The appellant pleaded guilty to those counts and was sentenced to 3 years' imprisonment on count 2 and 9 months' imprisonment on count 1, three months of which were to be served cumulatively with the sentence imposed on count 2. This amounted to a total effective sentence of 3 years and 3 months' imprisonment. His Honour ordered a non-parole period of 2 years.

4 Judge Leckie sentenced the appellant after he pleaded guilty to two counts of causing serious injury intentionally (counts 1 and 3) and was found guilty by a jury of one count of false imprisonment (count 7).[1] The offences occurred between May and September 2007. After hearing a plea in mitigation of sentence, Judge Leckie sentenced the appellant to 3 years' imprisonment on each count of causing serious injury intentionally and 12 months' imprisonment on the count of false imprisonment. Twelve months of the sentence imposed on count 3 and 6 months of the sentence imposed on count 7, were to be served cumulatively with the sentence imposed on count 1 and on each other, amounting to a maximum term of 4 years and 6 months' imprisonment. Pursuant to s 6AAA of the Sentencing Act 1991 his Honour declared that, but for the appellant's guilty pleas, he would have sentenced the appellant to a total effective sentence of 5 years' imprisonment, with a minimum non-parole term of 4 years.

5 Judge Leckie ordered that four years of the sentences which he imposed be served cumulatively on the total effective sentence of 3 years and 3 months' imprisonment imposed by Judge Pilgrim on the latter set of offences. The result was that the appellant was required to serve a total maximum term of 7 years and 3 months' imprisonment.

6 As required by s 14 of the Sentencing Act 1991, Judge Leckie ordered a new non-parole period in respect of all sentences imposed of 3 years and 6 months.

7 At the hearing of the application for leave to appeal against sentence on 5 March 2010, the Crown conceded that it was reasonably arguable that the combination of sentences imposed by Judge Leckie and Judge Pilgrim resulted in a manifestly excessive sentence which did not accord with the principle of totality. Accordingly, leave to appeal was granted under s 582 of the Crimes Act 1958.

8 The appellant's grounds of appeal are as follows:

1. The learned sentencing judge gave insufficient weight to the appellant's pleas of guilty.
2. The sentence of three years imprisonment imposed on count 3 on the presentment is manifestly excessive.
3. The total effective sentence is manifestly excessive.
4. The total effective sentence offends the totality principle when considered in combination with the sentence previously imposed on 25 June 2009.

9 Charity Baker, the victim of the offences for which Judge Leckie sentenced the appellant, had entered into a relationship with the appellant in the early part of 2007, when she was 16 and the appellant was 23. She began living with the appellant shortly afterwards. In the middle of May 2007 the victim went to live with her father after an aggressive incident in which the appellant had told her to leave, but she later returned to live with the appellant.

10 The attack covered by count 1, which occurred between 26 May 2007 and 26 August 2007, began when the appellant threw a video cassette recorder at Ms Baker's head after he returned home drunk. A bump appeared above her right eye and a small cut, which began to bleed, was opened. The appellant instructed the victim to have a shower to clean herself up. While she was showering, he entered the bathroom, called her an 'untrustworthy slut' and began kicking her with his steel capped boots. The victim began crying and told the appellant to go away.

11 Once the victim came out of the shower, the appellant recommenced his attack on her by grabbing her throat and forcing her to the floor. He began choking her and she briefly lost consciousness. The victim, who had barely managed to stand up, was then attacked again with a knife. Further harm was prevented by the arrival of another resident of the house. The appellant put down the knife and pushed the victim into the bedroom, where he apologised.

12 As a result of this conduct, the victim suffered 'lumps on her head, a cut above her eye, a cut to her wrist, from which she still has a scar, a sore throat, bruises to her legs and soreness over her body'.[2]

13 Unfortunately the victim remained in the relationship despite the appellant's treatment of her. After separating for a short time she went to live with the appellant in a boarding house.

14 Towards the end of August they were on their way home after seeing friends. The appellant accused the victim of sleeping with another man and punched her in the eye when she denied it. She was so frightened that she began to vomit. The appellant told her to go home to clean herself up. Upon arriving home, she saw that the right side of her face was swollen, she had a black and bloodshot eye and a large cut beneath her eyebrow, which was bleeding. These facts gave rise to count 3.

15 Count 7 was committed shortly after these events. His Honour described the circumstances of the offending as follows:

Thereafter, you told the complainant she could not leave. The complainant was understandably terrified and remained at the boarding house with you. You also told her that if she left, and her father, who had been ill, saw her in that condition he would have a heart attack and die and she would be responsible.

The following day your mother arrived at the residence, but you still continued to detain the complainant, and even when your uncle came round to remonstrate with you about holding someone against their will, you did not allow the complainant to leave.

Your motive for this conduct appears to be your fear that if the complainant's parents saw her condition you would be in trouble. So you were holding the complainant until her injuries healed. You also prevented the plaintiff from seeing a doctor during this time, to get treatment for her injuries.

Apart from your violent conduct towards the complainant, you also threatened to stab her and her dad, and to gut her brother if she left. This was obviously to ensure that she did not leave. As a consequence, the complainant remained with you against her will for several days while you visited and stayed with various friends, until finally she summoned the courage to run away one evening while you were asleep. This is Count 7 on the Presentment, False Imprisonment, for which you were found guilty by the jury.[3]

16 The victim was not medically examined until 5 October 2007. The judge said that:

the doctor observed a one centimetre long linear scar just below her right eyebrow, with a small lump, and found tenderness over the lower right side of the jaw and a small lump.

The complainant has suffered considerably as a result of [the appellant's] crimes against her, both physically and psychologically, as evidenced by her victim impact statement, Exhibit 2.

There is no doubt in my mind that she suffered significant pain from her injuries and was placed in great fear by [his] conduct. This trauma continues. As she stated in her victim impact statement, she is always scared of people, she does not like getting close to any male, or [into] a relationship for fear of it happening again.[4]

17 The appellant was aged 23 at the time of committing the offences and 25 at the date of sentencing. He admitted 54 prior convictions from 11 court appearances.[5] The majority of those convictions were for property and dishonesty offences, but eight were for offences involving violence. These included counts of assault in company, assault with a weapon, unlawful assault and causing injury intentionally, and three counts of causing injury recklessly.

18 The appellant's parents were separated and he had a very deprived upbringing. He spent his childhood moving between the home of his mother, who suffered from schizophrenia, and his father, who is a member of the Hell's Angels. He left school in Year 9 to become a labourer.[6]

19 At about the same time, his father was sent to prison. The appellant then moved between his aunt's home and homes of friends in Melbourne and Ballarat and he also lived on the street. From the age of 12 he commenced using cannabis and later began using amphetamine. He often consumed those drugs in combination with alcohol. At the age of 20, he returned to live with his mother.

20 Grounds 1 and 2 are, in effect, particulars of ground 3 and I will therefore discuss these grounds together.

21 Counsel for the appellant submitted that the three year term of imprisonment imposed on count 3 was outside the range of sentences which could be imposed for this offence, which arose out of a single punch resulting in a black eye and some other minor injuries. In support of that argument, counsel relied on the fact that the same argument was imposed on the much more serious instance of the offence covered by count 1.

22 Counsel for the appellant further submitted that the judge erred in allowing only a 10 per cent discount for the appellant's guilty plea. Although his Honour had found that the plea did not evidence remorse,[7] much greater weight should have been given to the guilty plea because of its utilitarian benefit and because it saved the complainant from having to give evidence on counts 1 and 3.[8]

23 The discount for pleading guilty to count 3, it was submitted, should have been regarded as particularly significant because the appellant might not have been convicted on the count of causing serious injury intentionally if he had not pleaded guilty to that offence.[9]

24 In addition to those matters, counsel for the appellant submitted that the total effective sentence was manifestly excessive, having regard to the matters I have already referred to and to the appellant's endeavours to rehabilitate himself in custody, his youth and very deprived upbringing, and the fact that the assaults fell at the lower end of the range of seriousness.[10]

25 Counsel submitted that although the appellant had a number of prior convictions for violence, most of these had occurred when he was young and he was now involved in more strenuous attempts to rehabilitate himself.

26 Counsel for the Crown submitted that when the overall seriousness of the offending and the appellant's significant number of prior convictions were taken into account, the individual sentences, head sentence and non-parole period were appropriate and within range, even when regard was had to the fact that the appellant had pleaded guilty.[11] She also relied on the fact that the appellant fell to be sentenced as a serious offender and that his Honour was required by s 6D(a) of the Sentencing Act 1991 to 'regard the protection of the community from the offender as the principal purpose for which the sentence is imposed'.

27 In my opinion, grounds 1, 2 and 3 are not made out. In R v Burke,[12] this Court described the approach to be taken in dealing with complaints about sentence discounts or guilty pleas as follows:

A complaint about the sentence discount ... is a complaint about the weight attributed to one particular sentencing consideration. As with any argument about weight, the question for the appeal court is whether, taking into account all the relevant sentencing considerations, the sentence imposed was within range.[13]

28 More recently, in Diver v The Queen,[14] Ashley JA said that there is 'no arithmetically correct discount. The discount allowed in any particular case is a part of the overall sentencing synthesis'.[15]

29 It is therefore necessary to consider the discount for the guilty plea in the overall context of the sentences imposed on the individual offences and the total effective sentence. The maximum term of imprisonment for the offence of causing serious injury intentionally is 20 years. The assault which gave rise to count 1 was a vicious and sustained attack on a young girl who was in a domestic relationship with the appellant. She was entitled to expect that he would treat her kindly and not abuse her. The sentence of three years' imprisonment imposed on that count was a merciful one, even when the appellant's guilty plea and other mitigating circumstances are taken into account. The sentence imposed on the false imprisonment count, which was also a serious example of the offence, was also lenient, having regard to the length of the period during which the victim was prevented from leaving the house, the appellant's failure to accede to the pleas of his mother and uncle to let the victim go and the terror experienced by the victim.

30 I consider that the sentence imposed on count 3 was stern but it was not outside the range of sentences which could be imposed for this offence. The injury was not inflicted in the course of a fight between two people of roughly equal strength, but was a cowardly attack on a victim who was young, small and defenceless. The victim had previously been subjected to a violent attack by the appellant and was so frightened that she vomited after the assault. As the appellant must have been aware, the assault would have had the affect of further subduing her and making it difficult for her to leave him, so as to escape further violence.

31 In R v Grabovac[16] this Court recognised that the sentencing judge has a discretion to 'tailor and mould sentences, by making orders for cumulation and concurrency or both, so as to produce an overall appropriate sentence' although this approach would amount to error if it resulted in the imposition of 'quite inappropriate individual sentences'.[17]

32 The offender's conduct was appalling and it has had lasting affects on the victim. Despite the mitigating factors which his Honour was required to take into account, neither the individual sentences nor the total effective sentence were manifestly excessive. Because the appellant fell to be sentenced as a serious violent offender, the presumption of cumulation applied to the sentences imposed by Judge Leckie. The amount of concurrency ordered meant that the level of cumulation between the individual sentences was relatively modest. Moreover, even if the individual sentence imposed on count 3 was too high, I would not be inclined to impose a different total effective sentence.

33 The judge recognised that the appellant's guilty plea entitled him to some discount because it saved the time and expense of a trial on those counts (though not of a trial on count 7). However, he was unable to find that the plea indicated any real remorse. Further, there was no utilitarian benefit to be taken into account in relation to count 7.

34 Ground 4 alleged that the total effective sentence offended the totality principle when considered in combination with the sentence previously imposed by Judge Pilgrim. Counsel for the appellant conceded that his Honour was mindful of the issue of totality,[18] but submitted that the same factors that had led the judge to fix what was described as a 'lower than normal' non-parole period (ie the appellant's relative youth and prospects of rehabilitation)[19] should also have led to a greater degree of concurrency being ordered with the sentences imposed by Judge Pilgrim.

35 Counsel submitted that Judge Leckie should have either reduced the individual sentences which he imposed, in light of the sentences imposed by Judge Pilgrim, or alternatively, ordered a greater degree of concurrency.

36 The offences for which the appellant was sentenced by Judge Pilgrim occurred shortly after the appellant committed the offences against Charity Baker and involved assaults on another young woman with whom he had been in a brief relationship. The count of causing injury recklessly occurred when the victim was knocked to the ground by the appellant and suffered substantial soft tissue injuries to her arm. The count of causing serious injury recklessly occurred when the victim was knocked unconscious by the appellant. When she awoke she discovered she had been severely beaten. Judge Pilgrim described these offences as 'particularly nasty'. The appellant was drunk when he assaulted the victim and was apparently enraged because the Department of Human Services had said that her children might have to be removed if she continued to live with him.

37 In relation to the offences against Charity Baker, Judge Leckie said that he had exercised his discretion toward some concurrency in order to avoid the imposition of a crushing overall sentence.[20] However, his Honour ordered only 6 months concurrency between the sentences which he imposed and the sentences imposed by Judge Pilgrim. The effect of that order was that the appellant's maximum term of imprisonment was 7 years and 3 months. Despite the gravity of the offending overall, I consider that this sentence indicates that his Honour gave insufficient weight to the principle of totality. In my opinion, this sentence could not be justified by reference to the whole of the appellant's offending.

38 For that reason I would order that 2 years and 6 months of the sentence imposed by Judge Leckie be served concurrently with the sentence imposed by Judge Pilgrim. This will result in a maximum term for the offences for which the appellant was sentenced by Judge Pilgrim and Judge Leckie of five years and three months.

39 I declare that if the appellant had not pleaded guilty to counts 1 and 3, I would have imposed a total effective sentence of 5 years and 3 months' imprisonment for the offences for which he was sentenced by Judge Leckie and ordered that 3 years of that sentence be served cumulatively with the sentences imposed by Judge Pilgrim.

40 His Honour fixed a non-parole period of 3 years and 6 months to run from the date of Judge Pilgrim's sentence, 25 June 2009. His Honour said he had fixed a relatively short minimum term because he was 'persuaded that [the appellant has] some prospects of rehabilitation, based on his attempts in prison to change [his]

conduct' and proposed to 'encourage this by setting a lower than normal minimum term'.[21]

41 I would not alter the new non-parole period fixed by Judge Leckie. If the appellant had not pleaded guilty to counts 1 and 3, I would have fixed a new single non-parole period of 4 years and 6 months.

1. The appeal against the sentence imposed by Judge Leckie on 3 August 2009 is allowed in part.

2. The order made by Judge Leckie with respect to the concurrency of the sentence he imposed with the sentence imposed by Judge Pilgrim on 25 June 2009 is set aside and in lieu thereof it is ordered that 2 years and 6 months of the sentence imposed by Judge Leckie are to be served concurrently with the sentence imposed by Judge Pilgrim, thereby creating a total effective sentence for the offences for which the appellant was sentenced by Judge Pilgrim and Judge Leckie of 5 years and 3 months' imprisonment.

3. Otherwise the sentences and orders passed and made below are confirmed.

44 It is declared that a period of 963 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

[1] The jury acquitted him of two counts of rape (counts 4 and 5). The presentment also contained two counts of causing injury intentionally (counts 2 and 4), which appear to have been alternative counts. The appellant was not convicted of these counts.

[2] R v Birrell (Unreported, County Court of Victoria, Judge Leckie, 3 August 2009) ('Reasons'), [9].

[5] He also appeared before the Children's Court on four occasions. The prior convictions arising from those appearances have not been taken into account. Even though he had already been sentenced for the counts of causing injury and serious injury recklessly on 31 December 2007 and 1 January 2008, respectively, the judge did not take account of them because they were committed after these offences: cf ibid [36].

[6] In R v Birrell (Unreported, County Court of Victoria, Judge Pilgrim, 25 June 2009) the appellant was said to have left school in Year 7 (at [18]).

[8] R v Howard [2009] VSCA 281, [9], [12] (Buchanan JA), [15]-[16] (Nettle JA); cf R v Burke [2009] VSCA 60; (2009) 21 VR 471, 467-7 (Maxwell ACJ, Redlich JA and Vickery AJA).

[9] R v Ly [2004] VSCA 45, [34].

[11] R v Burke [2009] VSCA 60; (2009) 21 VR 471, 477.

[14] [2010] VSCA 254.

[16] [1998] 1 VR 551.