For the reasons that follow the appeal should be allowed and the respondent resentenced in the manner detailed below.
[2]
Prior to September 2015 the respondent and the complainant, Ashlee Mason[5], were in an intimate relationship. On 26 January 2016 the respondent perpetrated serious family violence against Ms Mason for which he was subsequently sentenced to a term of imprisonment ('2016 offending'). The respondent committed an aggravated burglary whilst intoxicated during which he punched Ms Mason, then heavily pregnant, to the stomach.
On 5 August 2020 an FVIO was made nominating Ms Mason and her four children as the protected persons. The FVIO expires on 31 December 2060. Its conditions preclude the respondent from (amongst other things) committing family violence against the protected persons, intentionally damaging any property of the protected persons, contacting or communicating with a protected person by any means and approaching or remaining within 50 metres of any place where a protected person lives
On the evening of 5 May 2024 Ms Mason was home with her current partner, Nathan Coldsen[6], and two of their children. Ms Mason was 35 weeks pregnant. At about 9:30 pm the couple observed a vehicle loitering in the property west of their house. They then observed the vehicle accelerate and drive through the west boundary fence between the properties before approaching their house. A three-metre section of the fence was destroyed.
Mr Coldsen exited the house via the rear door when the vehicle pulled up behind Mr Coldsen's parked car. On identifying the respondent, Mr Coldsen returned to the house to alert Ms Mason. On observing the respondent approach the house holding a knife, Mr Coldsen armed himself with a cricket bat. Ms Mason climbed out of a window at the front of the house and hid under the front deck. Ms Mason then used her mobile phone to call her mother and request the police be called, which her mother did.
The respondent approached the house and attempted to open the front door. He then walked away from the house before returning and entering through the rear door. The respondent moved approximately six metres into the house through the kitchen to the hallway entrance. There, on seeing Mr Coldsen, the respondent turned and exited the house via the rear door before walking toward his car. He pocketed the knife and entered the vehicle. The respondent drove a distance away but remained in the vicinity of the property (Charge 1 - aggravated burglary, charge 2 - contravention of FVIO intending to cause harm or fear).
On observing that the respondent had not departed, Mr Coldsen entered his vehicle and drove towards him yelling 'come get me'. The respondent followed Mr Coldsen's vehicle as it drove away from the address, travelling east on the Princes Highway towards Orbost. Two police officers observed Mr Coldsen and the respondent travelling at high speeds away from Ms Mason's address, with Mr Coldsen flashing his high beams.
The respondent followed Mr Coldsen closely for approximately five minutes before exiting the highway. Mr Coldsen, on realising the respondent was no longer following him, turned around and soon after located the respondent who was at that time manoeuvring his vehicle back towards the highway. Fearing the respondent intended to return to Ms Mason's address, Mr Coldsen used his vehicle to push the respondent's vehicle into a drain. Mr Coldsen then used his vehicle to prevent the respondent from attempting to drive out of the drain. When the respondent exited his vehicle and approached Mr Coldsen's vehicle holding a knife Mr Coldsen hit him with the bull bar of his vehicle. As the respondent returned to his vehicle Mr Coldsen used his mobile phone to contact family members.
Around 10:15 pm, Mr Coldsen's father attended at the scene. He remained there with Mr Coldsen until police arrived at about 10:30 pm. Mr Coldsen and his father then returned to Ms Mason's address.
A police search of the respondent's vehicle and surrounds found three large knives approximately three metres from the front-passenger door of the vehicle (Summary offence 4 - possess controlled weapon without lawful excuse). The respondent was transported to Bairnsdale Regional Hospital at approximately 11:30 pm. He provided a blood sample at around 1:05 am. Subsequent analysis of the sample found the respondent's blood alcohol concentration to be 0.192 (Summary offence 5 - exceed prescribed concentration of alcohol within three hours of driving).
[3]
In her sentencing remarks[7] the judge summarised the offending[8] before turning to an assessment of its gravity. The judge termed the offending 'a serious example of the offences'.[9] In forming that assessment the judge had regard to the respondent's possession of a knife, Ms Mason's terror[10] and the presence of her children. The judge also found that the respondent's criminal history, which involved the 2016 offending and a subsequent contravention of the FVIO, heightened the gravity of the instant offending. Ms Mason's fear was greater because like offending had happened before.[11]
The following matters personal to the respondent were considered by the judge.[12] The respondent, 40 years old at the time of sentence, had a positive work history.[13] He had suffered from mental health problems since childhood.[14] He developed symptoms of depression and social anxiety in his teenage years.[15] He completed Year 12 with difficulty due to generalised anxiety.[16] The judge noted that the respondent's alcohol abuse had complicated his mental health conditions.[17]
The judge then addressed the respondent's mental health in some detail.
At about 28 years of age the respondent was admitted to Albert Road Clinic and diagnosed with substance induced mood disorder, bipolar disorder and generalised anxiety disorder .[18] He was prescribed treatment and medications for these conditions, including Quetiapine. His condition deteriorated in 2016, by which time he had begun self-medicating with alcohol and cannabis.[19] That was the background against which the 2016 offending occurred.[20] The respondent understood that more frequent drinking leads to a decline in his mental health. Despite previous attempts at sobriety, his drinking increased in 2024.[21]
In the lead up to the 2024 offending the respondent had been drinking and had not been taking his Quetiapine prescription.[22] A report by Gina Cidoni, a consultant psychologist, was tendered at the plea. Ms Cidoni described the respondent's mental health at the time of the offending as significantly compromised due to the combination of severe alcohol intoxication, untreated bipolar disorder and the destabilisation of the respondent's psychiatric treatment following the cessation of Quetiapine.[23] Ms Cidoni stated that the respondent's memory deficits suggested alcohol-induced cognitive impairment and that his limited recollection and reports of confusion following the offending are consistent with emotionally driven behaviour rather than premeditated intent.[24]
With reference to the matters of Byast v The Queen[25], Bennett v The Queen[26] and R v Sebalj,[27] the judge formed the view that some weight should be given to the respondent's mental state at the time of offending, resulting in sensible moderation of his 'criminal culpability' under limb 1 of Verdins.[28] The judge also found that limbs 5 and 6 of Verdins justified some moderation of the sentence due to the burden of imprisonment being increased by the respondent's mental health condition as well as the chronic pain he suffers from being hit by Mr Coldsen's car.[29] Later in her Reasons the judge said that the respondent was 'not a good vehicle for general deterrence' and that specific deterrence should play a 'lesser role'.[30]
The utility of the respondent's guilty plea[31] was considered by the judge. The judge found him to be remorseful.[32] Based on Ms Cidoni's report, the strong family support he has available, his good work history and his developing insight, the respondent was found to have reasonable prospects of rehabilitation.[33] The judge said that those prospects would be assisted by a relatively long period of parole in which the respondent could spend time being treated in the community.[34]
The judge noted that the sentence for charge 2 was more than half of the maximum penalty.[35] That sentence was said to reflect the seriousness of the contravention of the FVIO.[36] The judge said that only six months of that sentence was to be served cumulatively to reflect the principle of totality and satisfy the need to avoid a crushing sentence.[37]
[4]
Notwithstanding the complaint of specific error in ground 1, the Director made plain at the oral hearing that the gravamen of his contentions is that the sentence for aggravated burglary is manifestly inadequate. In effect, ground 1 was argued as a particular of ground 2.
The Director emphasised the gravity of the offending. It was described as brazen and resolute. The respondent effected a nocturnal invasion, armed with a knife - with other knives in the car - and only desisted when confronted by Mr Coldsen. The knives indicated not only a degree of planning but an intention to assault. He then remained in the vicinity until lured away. The respondent knew himself to be subject to an FVIO. Ms Mason and her children were entitled to feel safe in their home. Further, it was a near 'repeat performance' of the 2016 offending, for which a sentence of five and a half years' imprisonment was imposed. The Director argued that the respondent lacked insight given his observation to Ms Cidoni that the 2024 offending was less serious than the 2016 offending.
The Director acknowledged the matters upon which the respondent could call in mitigation of penalty, including his guilty plea and the application of some of the Verdins limbs. Relevant to ground 1, the manner in which Verdins had been ventilated before the judge was noted. It was put that the respondent had argued limbs 1, 5 and 6 were relevant whereas the prosecutor had argued that no limbs other than 5 and 6 had application. The respondent had not made any submission with respect to limbs 3 and 4. The Director submitted that while the judge accepted the application of limbs 5 and 6, and appeared to accept the application of limb 1 by the reference to 'criminal culpability', the judge also moderated the application of both general and specific deterrence which implied the operation of limbs 3 and 4 of Verdins as well. While the finding with respect to limb 1 was not challenged, the Director submitted that any moderation of moral culpability could only be limited in circumstances where the respondent had ceased his medication and consumed alcohol. It was also argued that the incorrect application of limbs 3 and 4 of Verdins may provide some explanation for why the sentence is manifestly inadequate.
Further, the Director argued that the 2016 offending was relevant to any assessment of the respondent's prospects of rehabilitation. He noted that Ms Cidoni assessed the respondent's risk of reoffending as moderate-to-high. Protection of the community was said to be a relevant sentencing factor.
In the event that the ground of manifest inadequacy was successful, the Director submitted that this was not a matter in which the Court should exercise its residual discretion to not interfere with the sentence. To the extent that the respondent argued that the prosecutor failed to give sufficient assistance to the judge, the Director argued that the prosecutor gave such assistance as was required in the circumstances.
[5]
The respondent contended that the sentencing judge was not given adequate assistance by the prosecutor on the plea. It was put, particularly, that no submission was made as to current sentencing practices. It was also contended that the Director now sought to advance arguments not made before the judge. These were identified as:
[6]
(a) The respondent made a deliberate choice to cease his medication. The criminal conduct resulted. The respondent had foreknowledge of the risk arising from cessation of medication. Accordingly:
(i) The weight given to limb 1 of Verdins needed to be moderated.
(ii) The need for community protection increased.
(b) Any finding of remorse had to be tempered by the respondent's view that the 2024 offending was less serious than the 2016 offending.
(c) The respondent had high moral culpability.
[7]
The respondent submitted that this Court should not have regard to these arguments and further, in the event that the Court did and found the sentence to be manifestly inadequate, these new arguments, in combination with the lack of assistance by the prosecutor at the plea, are reasons to exercise the residual discretion to not interfere with the sentence.
Turning to ground 1, the respondent argued that once a judge had properly moderated moral culpability under Verdins limb 1, it followed almost automatically that there also needed to be some moderation of both general and specific deterrence under limbs 3 and 4.
With respect to ground 2, the respondent argued that the 2024 offending was less serious than the 2016 offending. Unlike on that occasion, the respondent was not on bail, he was in the house for a very short period of time, there was no violence, injury or threats and there was no punch to the stomach of a pregnant woman.
The respondent noted the matters he could call on in mitigation of sentence including, his plea of guilty made at the earliest opportunity and being of considerable utilitarian benefit, remorse, rehabilitation and Verdins limbs 1 and 3-6. It was submitted that there was also a need to avoid double punishment for the contravention of FVIO charge.
[8]
I will adopt the manner in which the Director approached this appeal. That is, it is immaterial whether the specific error alleged under ground 1 is established as to whether the sentence imposed on charge 1 is manifestly inadequate.
Manifest inadequacy (or excess) is a conclusion
[9]
'... which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.[38]
[10]
The ground of manifest inadequacy, like a ground of manifest excess, is a stringent one, difficult to make good.[39] The Director must demonstrate that the sentence imposed was wholly outside the range of sentencing options available to the judge in the sound exercise of her sentencing discretion.
In this matter I am of the view the Director has done so.
In DPP v Meyers, this Court identified the following factors as relevant to the assessment of the gravity of an instance of aggravated burglary:
the offender's intent at the point of entry (whether to steal or commit assault or cause damage);
the mode of entry (eg, by forcing a door or breaking a window);
whether the offender was carrying a weapon;
whether the offender was alone or in company;
the time of day at which the burglary took place;
what the offender knew or believed about who would be inside and/or about where the person(s) would be; and
whether the offender was someone of whom the victim was particularly frightened.[40]
In this case the respondent was armed with a knife and entered Ms Mason's home at night with intent to commit assault. The respondent believed that she and her children would be at home. He knew her to be particularly frightened of him. He had previously invaded her home and assaulted her whilst she was pregnant. Ms Mason had obtained a decades-long FVIO which required him to keep away from her home and not commit family violence against her. While the respondent is correct that care is required to avoid double punishment with charge 2, the family violence context and the existence of the FVIO remain relevant to the assessment of gravity of the aggravated burglary. As this Court has made plain:
[11]
... in assessing the totality of the circumstances that pertain to any offence committed in the context of family violence, the surrounding behaviours of the offender must be considered to assess the true gravity of the offending and for 'the sentence to vindicate the dignity of [the] victim'.[41]
[12]
Further, the respondent had ceased taking Quetiapine and was intoxicated. Whether he had simply 'run out' because he had not had a prescription refilled or had decided to cease taking the medication is somewhat beside the point. Even if he had 'run out', the period for which that state of affairs endured was unknown and there was no evidence of any steps by the respondent to remedy the situation. He was significantly intoxicated. He had been significantly intoxicated during the 2016 incident. He was aware of the effect alcohol had on his mental health. That necessarily limits the weight that can be placed on the causal connection between the respondent's bipolar disorder and the offending, and therefore his moral culpability (potentially affecting weight to be given to both general and specific deterrence).
The matters upon which the respondent could rely in mitigation of penalty were modest. Apart from the limited application of the Verdins limbs, there was his early plea of guilty and some evidence of remorse. The judge found his prospects for rehabilitation to be reasonable only if the respondent were to have structured psychiatric support, intensive drug and alcohol treatment and was compliant with medication. Given the respondent's history of failed attempts at sobriety, his (at best) lackadaisical attitude towards taking Quetiapine and that a significant gaol term for serious offending against Ms Mason had not deterred him from offending again in a like manner, the subjunctive nature of that assessment must be emphasised.
The sentence on ground 1, the resulting total effective sentence and the non-parole period imposed are erroneously lenient. Ground 2 must succeed.
[13]
In my view it is not appropriate in this case to exercise the residual discretion to dismiss the Director's appeal notwithstanding the manifestly inadequate sentence.
The majority in Karazisis identified a non-exhaustive list of factors that may be relevant to the exercise of this Court's residual discretion. These are delay, parity, the totality principle, rehabilitation and fault on the part of the Crown.[42]
In this case the respondent primarily argued that insufficient assistance to the judge was provided by the prosecutor on the plea and also that the Director has advanced arguments on this appeal that were not advanced before the judge. While some of the submissions made to the judge by the prosecutor were devoid of elaboration, they were nonetheless adequate to properly articulate the Crown position and found the arguments pressed on appeal. In this case the conduct of the Crown is not a sufficient basis to exercise the residual discretion. Rather, the interests of justice are best served by allowing the appeal.
[14]
I would set aside the sentence of 3 years' imprisonment on charge 1 and impose a term of 5 years and 6 months' imprisonment. Leaving all other sentences and orders for cumulation as originally imposed, that makes a total effective sentence of 6 years and 2 months' imprisonment. I would order that the respondent serve 4 years' imprisonment before becoming eligible for parole.
Pursuant to s 6AAA of the Sentencing Act1991, but for the pleas of guilty I would have imposed a total effective sentence of 7 years and 6 months' imprisonment with a non-parole period of 5 years.
[15]
I also have had the advantage of reading in draft the reasons for judgment of Taylor JA. I agree, for the reasons expressed by her Honour, that the appeal should be allowed and the respondent resentenced in the manner proposed.
[22] Reasons, [25]. It was put by the respondent at the oral hearing of this application that he had run out due to a recent doubling of his prescribed dosage which resulted in faster-than-usual consumption of the medication.