Director of Public Prosecutions v Fraser [2004] VSCA 145

Court of Appeal (Vic)|2004-07-20|Before: BATT, VINCENT and EAMES, JJ.A.

Criminal law - Sentencing - Director's appeal - Recklessly endanger serious injury - Armed robbery - Common assault - Making threats to inflict serious injury - Whether sentences manifestly inadequate - Crimes Act 1958 (No. 6231) ss.21, 23, 75A(1), 320.

I will ask Eames, J.A. to deliver the first judgment.

This is an appeal by the Director of Public Prosecutions brought pursuant to s.567A of the Crimes Act 1958 against sentences imposed on the respondent by a judge of the County Court on 24 February 2004. The respondent had pleaded guilty to seven counts and was sentenced as follows:

Counts 1 and 3, recklessly engaging in conduct placing the person named in each count in danger of serious injury contrary to s.23 of the Crimes Act. Of the maximum of five years' imprisonment, the respondent was sentenced to 18 months on each count.

Counts 2 and 4, armed robbery, contrary to s.75A(1). Of the maximum sentence of 25 years' imprisonment the respondent was sentenced to 18 months on each count.

Count 5 was a count of common assault, a common law offence carrying a maximum sentence of 5 years' imprisonment by virtue of s.320 of the Crimes Act. The respondent was sentenced to six months' imprisonment.

Counts 6 and 7 were counts of making threats to inflict serious injury, contrary to s.21 of the Act. Of the maximum of five years' imprisonment the respondent was sentenced to 15 months on each count.

Her Honour treated count 1 as the head sentence and ordered that six months of each of the sentences on counts 2, 3 and 4 were to be served cumulatively upon the sentence imposed on count 1 and three months of each of the sentences imposed on counts 6 and 7 were to be served cumulatively on the sentence imposed on count 1. The total effective sentence therefore was three years six months and her Honour imposed a non-parole period of 22 months' imprisonment. The Director appeals against the individual sentences, the total effective sentence and the non-parole period on the following grounds:

"GROUNDS OF APPEAL

1. The individual sentences, the total effective sentence and the non-parole period are each manifestly inadequate. 2. In fixing the individual sentences, the total effective sentence, and the non-parole period, the sentencing Judge - (a) failed to adequately reflect the gravity of these offences generally and in this case in particular; (b) failed to take into account or sufficiently to take into account the aspect of general deterrence; (c) gave too much weight to factors going to mitigation, including treating the Respondent as a youthful offender, and prospects of rehabilitation; (d) failed to take into account or sufficiently to take into account the prior convictions of the Respondent; (e) failed to sufficiently take into account the serious effect of the offences upon the victims in this matter."

The offences all arose out of an incident in Frankston on 2 May 2003. The two victims Garen Coleman and Scott Teasdale had attended a party at a home in a suburban street. They were 16 years of age. The respondent and his friend Jason Underwood were at Underwood's home which was in the same street. The respondent and Underwood had been drinking alcohol and at about midnight they walked past the home where the party was taking place. The respondent and Underwood became involved in a verbal exchange with people who were at the party. The respondent and Underwood continued their journey to a local shopping centre and then returned to Underwood's home where they continued drinking. At about 1 a.m. on 3 May 2003 Coleman and Teasdale walked past Underwood's home and became involved in a verbal exchange with Underwood's de facto partner, Nicole Dodd. Dodd returned to her house and told Underwood and the respondent what had occurred. Her altercation with the two young men arose because the noise they had made had woken up one or more of her children who had been asleep.

The respondent and Underwood left their house and approached the two victims. The respondent had filled a bourbon bottle with petrol from a can at the house. Underwood had armed himself with two stainless steel knives that he had taken from the kitchen. The two victims saw Underwood and the respondent approaching and they kept walking, whilst Coleman attempted to ring a friend on his mobile phone to obtain assistance for them in the event of there being a confrontation. Underwood and the respondent caught up to the two victims. The respondent splashed petrol from the bourbon bottle over the victim Teasdale, causing Teasdale's eyes to sting, then he threw some further petrol at Teasdale. The respondent then splashed petrol at Coleman, whose eyes also began stinging. The throwing of the petrol on Coleman together with the use of a lighter (as I shall describe) was count 1 and in the case of Teasdale constituted count 3.

When the petrol was thrown over Teasdale, Underwood had produced the knives from the front of his jacket and put a knife to the throat of Teasdale, threatening that he would slit his throat. Underwood then demanded Teasdale's wallet and searched his clothes for it. The respondent demanded that Coleman hand to him his mobile telephone and the respondent snatched it from Coleman's hand. That constitutes count 2. The respondent threatened Coleman, saying, "I'm gonna fucking light you on fire". He held the lighter close to Coleman and flicked it, causing it to spark. Coleman was very frightened and started to cry. The respondent then flicked the lighter at Teasdale, whilst Underwood was in close proximity and holding a knife at Teasdale's throat. The striking of the cigarette lighter close to Coleman and Teasdale provided the element of endangerment of serious injury relevant to counts 1 and 3. As Underwood held a knife to the throat of Teasdale the respondent ripped a gold chain from Teasdale's neck. That constituted count 4. The respondent then kicked Teasdale in the stomach, that act constituting count 5. Underwood told the two victims to get out of there and they ran off and subsequently reported the incident to Frankston police. The respondent and Underwood returned to Underwood's home.

The respondent still had Coleman's mobile phone and Teasdale's gold chain. The respondent made some telephone calls on the mobile phone, as did Underwood. The circumstances of counts 6 and 7 arose after the respondent and Underwood had returned to Underwood's house and commenced to use Coleman's mobile phone.

At about 1.40 a.m. the telephone rang at the home of Michael and Carolyn Coleman, the parents of Garen Coleman. Either the respondent or Underwood (it was not known which of them) told Michael Coleman that his son was at Frankston police station. That person then said that they had "Gaven". Soon afterwards a telephone call was made to the mobile telephone of Michael Coleman, who hung up the home phone in order to answer that, but then the home telephone also rang and the caller said: "We've got your son. We are fucking him up the arse, we've got our hand up his arse. We've got him locked in the boot of the car." Mr Coleman became very concerned and told his wife what had occurred and Carolyn Coleman then rang her son's mobile phone which was answered by either the respondent or Underwood, saying that they were from Frankston police station and had their son there. Then the speaker told Mrs Coleman that her son was in the boot of the car, covered in petrol, and that he was going to be raped and set on fire. Mrs Coleman was extremely frightened. She could hear laughter in the background. Subsequently, the parents discovered that their son was, in fact, at the police station making a report. Later that morning police attended Underwood's home where they arrested both Underwood and the respondent.

Victim impact statements attested to the anxiety and stress which the two young victims experienced and the continuing impact upon their lives of the events which occurred on this night. For Coleman, the fear of being burnt was particularly significant because he had a previous experience where after a motor vehicle accident involving a petrol tanker his mother had very bravely removed the driver from the cabin in circumstances where there had been a real risk of an explosion.

The parents of Garen Coleman also provided victim impact statements, attesting not only to the shock and fear the telephone calls caused them but also the stress occasioned their relationship with their son by virtue of the trauma which he suffered.

The respondent was 26 years of age at the time of the offences and is now 27. He had absconded on bail to the Northern Territory and was extradited to Victoria in October 2003. He admitted to numerous prior convictions arising out of ten separate court appearances commencing in the Children's Court in 1994 and continuing through to 2002. The offences were predominantly drug-related and offences of dishonesty but they include convictions in both 1994 and 1995 for wilful damage and convictions for an offence of common assault in 1999 and for assaulting a police officer in August 2002. On that latter occasion he was sentenced to an aggregate term of imprisonment of 12 months on a wide range of charges, mainly relating to dishonesty and motor vehicle offences. In September 2002, for offences of aggravated burglary and other matters, he was sentenced to a total effective sentence of 19 months, to be served in part concurrently and part cumulatively on the previous sentence. Thus, at the time of the present offences the respondent was on parole and these offences constituted a breach of parole thereby bringing into effect s.16(3B) of the Sentencing Act 1991. The sentence imposed by the learned sentencing judge was therefore to be served cumulatively upon any period of imprisonment which the respondent might be required to serve in custody upon cancellation of the parole order.

Mr Holdenson, as counsel for the Director, submitted that the sentences imposed by her Honour failed to acknowledge the seriousness of the conduct of the respondent and gave far too little weight to factors of retribution, denunciation and both general and specific deterrence. He submitted that this was an appropriate case for condign punishment. Mr Holdenson pointed to the prior convictions, the fact that the offences were committed whilst on parole, and the impact upon the victims of what was cruel and terrifying conduct. In imposing the sentences which she did her Honour incorrectly treated the respondent as a youthful offender, he submitted, and as a person having reasonable prospects of rehabilitation, when he did not.

In my opinion her Honour gave very substantial and extremely careful and thoughtful reasons for the sentences she imposed. Every factor which emphasised the seriousness of the offending and the blameworthiness of the respondent was identified and weighed by her Honour in the sentencing process. Her Honour recognised that the young victims, and also the parents of Garen Coleman, were deeply affected by the events, and that the conduct was both serious and utterly inexcusable. Although the maximum sentences available on the counts of reckless endangerment for counts 1 and 3 were substantially less than for the counts of armed robbery, her Honour, rightly in my opinion, treated those as the most significant of the offences which occurred. In particular, her Honour concluded that the robbery of the mobile phone and of the neck chain were really incidental to the offending conduct constituted by counts 1 and 3. Her Honour said, however, that she would not overlook the fact that they constituted armed robbery, which was a very serious offence. In my view her Honour correctly placed those offences into an appropriate context.

Having, in some detail, identified all of the aggravating features of the offences her Honour also identified a number of mitigating factors which her Honour, rightly again in my opinion, regarded as significant factors in this case. A report by forensic psychologist Mr Ian Joblin disclosed that the respondent had an extremely troubled childhood, his parents separating when he was seven or eight years of age. He remained with his father who then went overseas leaving the respondent and his brother to fend for themselves. He had limited schooling, and began smoking cannabis at a very early age. Upon his father's return and commencement of a new relationship, the respondent did not get on with his stepmother. After a brief time the respondent moved to join his mother in Alice Springs. His mother was then living with another man to whom the respondent also did not well relate, and in the course of his time in Alice Springs, and after serious drug use, he was admitted to a psychiatric unit at Alice Springs Hospital. Thereafter he commenced a relationship with a woman who bore his son. The respondent came to Melbourne and was in gainful employment as a plasterer but his business partner committed suicide. At this time the Department of Human Services had been concerned about his relationship with his partner and gave her an ultimatum to move out of the relationship or lose the custody of the child. She then separated from the respondent. He has not seen her or the baby in the five years that followed that event. After the separation from the mother and child the respondent's lifestyle deteriorated badly and his prior convictions reveal that spiral. The respondent has a long history of alcohol and drug abuse, including use of heroin and amphetamines. He had been diagnosed in 1997 at Alice Springs Hospital as having a borderline personality disorder and had been placed on anti-depressants whilst in custody in Victoria.

One factor upon which Mr Joblin reported, and upon which her Honour acted, related to his status as a prisoner under protection. The Crown accepted that the facts which gave rise to him being in protective custody as asserted by his counsel were basically correct. Whilst he had been imprisoned for his previous offences he was the subject of a sexual attack by fellow prisoners, which event he reported. As a result of reporting those offences it became necessary for authorities to place him in protective custody, as a result of which he was locked down for 23 hours per day. Mr Joblin reported that the respondent had made numerous attempts at suicide and confirmed the diagnosis of the respondent having a borderline personality disorder. He said the respondent's prognosis was difficult. Mr Joblin reported that, in his opinion, the respondent upon his release needed as much stability and supervision as he could get.

The fact that imprisonment for the respondent was going to be much more difficult by virtue of his protective status was a relevant factor for her Honour to take into account on sentencing.[1] The pleas of guilty also entitled the respondent to a discount on his sentence. Furthermore, there was evidence of genuine remorse disclosed in the character references tendered to the judge, and that material also supported the view that he was not by nature a violent person.

Her Honour took into account, as she was entitled to do, the fact that the respondent made full admissions and offered to assist the police and the Crown by giving evidence against the co-accused Underwood, who at that stage had pleaded not guilty to the charges. Underwood has subsequently pleaded guilty to the same counts but is yet to be sentenced. The Crown did not accept the offer for the respondent to give evidence since there was ample evidence against Underwood, but in my view it was quite appropriate for her Honour to discount the sentence for that reason, and the prosecutor did not contend otherwise.

Her Honour recognised, too, that as difficult as was the prognosis for the respondent, and as isolated as he appeared to be within the community, he was not without support. Her Honour observed that a number of what she described as "very good references" which had been tendered with the material for the plea had been received from people who clearly cared about the respondent and had been impressed by him in the past. In particular, she commented that the respondent's father had written a letter strongly supporting his son, notwithstanding the difficulties between them over the years. Her Honour noted, too, that there had been periods where the respondent had shown a capacity to work hard and to remain out of trouble, but his efforts had failed due to substantial and unexpected circumstances, such as the separation from his child and life partner, and the death of his partner in business.

Her Honour concluded that to enhance the prospects of rehabilitation of the respondent it was appropriate to provide for a significant period of supervision by the Parole Board, coupled with such professional psychiatric or psychological counselling as might be appropriate.

As has repeatedly been noted with respect to Crown appeals against sentence,[2] it should only be in rare and exceptional cases, in order to establish some point of principle, that such an appeal should be advanced. The fact that judges on appeal might have imposed a different sentence is not sufficient reason to allow Director's appeals. Error must be disclosed either by virtue of the sentence being manifestly inadequate or by virtue of some discrete sentencing error. In this case no discrete sentencing error is asserted.

The primary offences in this case were the two counts concerned with the throwing of petrol and the striking of the cigarette lighter. The maximum penalty for counts 1 and 3 was five years' imprisonment. Her Honour allowed some cumulation as between those two offences and in all the circumstances the penalty fixed on each count has not in my opinion been shown to be manifestly inadequate or otherwise to disclose error. The orders of cumulation made with respect to the other offences also appear to me to be appropriate and to have been carefully thought out. Mr Holdenson submitted that whilst the proportionate relationship between the head sentences and orders for cumulation was appropriate, the inadequacy of the head sentences meant that, as each of those sentences was appropriately increased, then, he submitted, so too should the length of the cumulation of sentences be correspondingly increased. In my opinion, however, the total effective sentence which was arrived at has not been shown to be outside the range that was available to the sentencing judge. Nor, in my view, have the orders as to cumulation been shown to disclose error. The sentences imposed both individually and with respect to the orders of cumulation, as I have said, have not been shown to be erroneous.

As to the complaint under both grounds that the non-parole period was too low, in my opinion her Honour was entitled to take the view that she did that this was an unusual case calling for a longer than normal non-parole period. That conclusion was open to her Honour.

Ground 2 amounts to a list of particulars of the complaint of manifest inadequacy made under ground 1. The overriding complaint of the Director was in fact that the end result of the sentencing process was a wholly inadequate sentence being imposed, having regard to the level of seriousness of the offences committed.

It is not necessary to deal with each item separately listed under ground 2. In my opinion, although the sentences imposed here were undoubtedly merciful, neither as to the weight given to any of the sentencing factors listed in ground 2 nor overall has the sentence been shown to be manifestly inadequate. Having regard to the pleas of guilty and to the other matters in mitigation that were identified by her Honour, I am not persuaded that the sentences imposed in this case justify intervention by this Court.

The offences of recklessly engaging in conduct that placed the two youths in danger of serious injury (counts 1 and 3) and the offences of making threats to inflict serious injury (counts 6 and 7) were serious examples of those offences. The same is true of the armed robbery committed upon Scott Teasdale (count 4), for it was effected by holding a knife to his neck and threatening to slit his throat. It was correctly conceded for the respondent on the plea that the offending by him and his co-accused, who acted in concert, was serious and that what was done was terrifying for the two 16-year-old victims. The threats made to each of Garen Coleman's parents were also terrifying as well as being foul and cruel. The victim impact statements show how seriously the offending affected all four victims.

General deterrence was the primary sentencing purpose applicable. In addition, the respondent's bad record and the fact that the offences were committed while he was on parole show that specific deterrence was also of importance. Contrary to what her Honour said, the respondent did not fall to be sentenced as a youthful offender. This error no doubt affected her Honour's approach . The sentence is in my view extremely lenient. Whilst allowance had to be made for the respondent's difficult background and the principle of totality had to be observed, I have come to the conclusion that the total effective sentence for this episode of serious criminality is so manifestly inadequate as to show error in principle. I

consider that this results in part from inadequate individual sentences and in part from inadequate cumulation. Whilst the low maximum penalties applicable to counts 1, 3, 6 and 7 meant that the sentences for those offences had to be lower than they might otherwise have been, they were not required by the maxima to be nearly as low as those in fact imposed.[3]

Although I consider this sentence manifestly inadequate, as a matter of discretion but not without some doubt I would not intervene to re-sentence the respondent. This is because, after allowing a discount for so-called double jeopardy, as is required by authority binding this Court, the sentence I would arrive at is not sufficiently disparate from that imposed in the County Court to warrant intervention. It is for this reason and this reason alone that I agree that the appeal should be dismissed.

The characterisation by Batt, J.A. of the conduct in which the respondent engaged, with respect to his various victims as terrifying, foul and cruel, was in my opinion entirely appropriate in all the circumstances. I have little doubt that had I been the sentencing judge, sentences of a significantly greater length than those actually imposed would have been handed down upon him for that conduct. But it is not the function of this Court simply to substitute its views for those of the judge to whom the sentencing discretion has been entrusted; nor, indeed, is it sufficient to justify intervention that the members of the Court regard the sentence as manifestly inadequate. It is only when it can be seen that there has been error in principle resulting in or manifested by a clearly inadequate sentence that the intervention of the Court is permissible.

29 Having regard to the principles of law which govern Crown appeals and bearing in mind the necessity to exercise restraint in such matters, I am not satisfied that the Director has satisfied this test. I also would dismiss this appeal.

A certificate is granted to the respondent under s.15(1) of the Appeal Costs Act 1998.

[2] See R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520, at 522.

[3] R. v. Taylor [1999] VSCA 206 at para.[13]; R. v. Truelove [2001] VSCA 78 at para.[20]; and R. v. Hilton [2001] VSCA 134 at para.[14]. Compare R. v. Robson (unreported, Court of Criminal Appeal, 24 June 1993) at pp.18-19. See also Fox and Freiberg, Sentencing - State and Federal Law in Victoria, 2nd ed. s3.605, pp.236-237.

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