DPP v Sullivan [2014] VSCA 222

Reckless conduct endangering person [Crimes Act 1958] (Vic) s 23]

Making a threat to cause serious injury[Crimes Act 1958] (Vic) s 21]

Contravene Family Violence Intervention Order [Family Violence Protection Act 2008 (Vic) s 123(2)]

2 years or 240 penalty units [Family Violence Protection Act 2008 (Vic) s 123(2)]

Other orders: Disposal order, compensation order and forensic sample order.

(1) That the individual sentences and total effective sentence are manifestly inadequate. It is contended that in fixing the sentence, the judge -

(a) failed to have sufficient regard to the nature and gravity of the offences,

(b) failed to have sufficient regard to the maximum penalties,

(c) failed to have sufficient regard to the impact of the offending upon the victims,

(d) failed to give sufficient weight to the principles of general and specific deterrence, just punishment, denunciation and protection of the community,

(e) gave excessive weight to factors in mitigation including the plea of guilty and potential for rehabilitation.

(2) The judge erred in failing to cumulate any of the sentence imposed on the Summary Charge and Charges 2, 3, 4 and 5 upon each other and upon Charge 1.[1]

3 At the conclusion of argument, and on the basis that we would provide our reasons later, we announced our decision that the appeal be allowed, set aside the orders of imprisonment and ordered that the respondent be sentenced to the following terms of imprisonment -

▪ on Charge 2, to three months' imprisonment,

▪ on Charge 3, to three months' imprisonment,

We ordered that four months of the sentence on Charge 4 and one month on each of the sentences on Charges 2 and 3 be cumulated on each other and on the sentence on Charge 1, being a total effective sentence of 12 months' imprisonment. A non-parole period of six months was fixed. For the avoidance of doubt, the sentence imposed below on the Summary Charge was confirmed. The Court made a declaration of 81 days of pre-sentence detention, and, pursuant to s 6AAA of the Sentencing Act 1991, that if the respondent had not pleaded guilty it would have ordered a total effective sentence of 18 months and fixed a non-parole period of 12 months.

5 In May 2013, the respondent had been living with LM for approximately four years at a property in Wonthaggi.

6 On the evening of 2 May 2013, the respondent and LM were at the property. LM was babysitting her two year old granddaughter who was asleep in the lounge-room. The respondent and LM had been drinking and at one point argued, after which the respondent went to bed. When, later, LM went to bed the respondent pulled the blankets off her and they wrestled aggressively for a short time. LM slapped the respondent and he threw her on the floor. The respondent went to the laundry and returned with a bottle of mineral turpentine and splashed a quantity on LM's stomach and legs and also poured turpentine onto the floor near her and sparked a cigarette lighter (Charge 1 - reckless conduct endangering a person). He said 'You're going to burn bitch, your granddaughter's going to watch you burn' (Charge 2 - making a threat to inflict serious injury). LM ran to the bathroom and cleaned off the turpentine. LM moved out of the property on 4 May 2013.

7 On 5 May 2013, LM's daughter, WM, arranged with the respondent to attend the property later that day to collect some of her mother's possessions and a pool table which had already been sold by LM to a couple, Timothy and Tamara. At approximately 7.25pm, WM returned to the property with Timothy and Tamara (who was pregnant) and their two children (aged 2 and 1 years, respectively) who remained in their car outside. WM and Timothy went to the front door and, after knocking on the door, WM forced the door open, as she did not have the key. As she entered the house the respondent ran at her, swinging a golf club, and said 'That's it, you're fucked, I'm going to kill you cunt' (Charge 3 - making a threat to kill).

8 The respondent, still holding the golf club, chased WM and Timothy back to their vehicles; the respondent swung the golf club twice at Timothy's vehicle, smashing the rear windscreen in two places. Timothy and Tamara's two children were sitting in the back seat of the vehicle and were showered with broken glass (Charge 4 - criminal damage).

9 The respondent was arrested at approximately 8.30pm that evening and denied all allegations.

10 At 10.30pm, LM reported to police that the respondent had sent numerous threatening and abusive text messages to her and WM since she had spoken to police earlier that day. LM reported that the respondent had threatened harm to each of them, and to himself, and threatened to blow up the Wonthaggi property (Charge 5 - making a threat to damage property). The respondent was re-arrested and remanded in custody.

11 On 9 May 2013, the respondent appeared before a magistrate who granted bail and made a Family Violence Intervention Order precluding the respondent from making any contact with LM.

12 On 28 September 2013, the respondent called LM's phone. When she answered the respondent said 'Please don't call the police'. LM told him he was in breach of the restraining order and hung up. The respondent called back again but LM did not answer (Summary Charge - contravening Family Violence Intervention Order). The respondent later told the police he had been drinking and had 'made a bad decision'.

13 The Summary of Prosecution Opening identified three other instances of contravention of the Intervention Order in May and June 2013, respectively. At the plea hearing, the prosecutor informed the Court that for technical reasons the Crown only proceeded with the Summary Charge in relation to the contact on 28 September 2013.

14 It is to be noted that Charges 1-5 could have been dealt with summarily in the Magistrates' Court. In that event the maximum possible sentence on any of the charges would have been two years' imprisonment. We were told that the prosecution requested that the charges be dealt with in the County Court. Whatever was the course of events, all matters were heard in the County Court.

15 The respondent is aged 45. Since the breakdown of his relationship with LM he has been single. He is the youngest of eight siblings. He was brought up in what a psychologist, David Ball, described as a 'dysfunctional, chaotic and disengaged family'. While he and his siblings shared a biological mother, at the age of 21 he was informed that their father was not his biological father; indeed, he never met his biological father. There was poverty in the childhood, his mother abused alcohol and there were times when there was no food or power in the house.

16 The respondent attended school to Year 9, considering himself an average student and having the ability to make friends. At the age of 16 he left home to live on a friend's farm and thereafter was employed in various unskilled or hospitality positions. Over the years he obtained certificates in first aid, the responsible service of alcohol, and a white card for the building industry. Following the offending and while on bail, the respondent performed some part-time work as well as some labouring work at the residence of his sister and her husband, with whom he resided. We were provided with a letter from the respondents former employer, Longbeach RSL, which advised that the respondent remained an employee and that on his release he will be able to return to work.

17 The respondent married in 1999 and had three children presently aged 16, 12 and eight. The marriage ended with divorce in 2004.

18 The respondent saw Mr Ball on three occasions in June and August 2013. Mr Ball provided a report which was tendered on the plea. Mr Ball recorded the respondent's advice that he commenced drinking alcohol at age 17 and described hazardous levels of consumption 'nearly every day'. The respondent informed Mr Ball that having lost his partner and his house, he has been abstinent from alcohol since the time of the offending. Moreover, he has applied himself vigorously to his rehabilitation and presently attended Dr Andrew Taylor for medical supervision and some counselling. At the time of the consultation, he was prescribed Campral, six tablets daily for alcohol dependence, Pristiq for depression, and Cofen for anxiety.

19 Also tendered on the plea was a report concerning the respondent's involvement in the Credit Bail Support Program.

20 In his sentencing remarks the judge noted that the respondent had informed Mr Ball that he had used cannabis over the last couple of years, and that had now ceased. It is to be noted that this is consistent with the Credit Bail report, although that report indicates a use of cannabis over a much longer period.

21 In his sentencing remarks the judge mentioned the following further matters concerning the respondent and his assessment -

You informed Mr Ball also that you had a 'blurred recollection' of the offences and explained this in the context of being affected by alcohol at the time. You further stated to him that you were experiencing depression and low self-esteem associated with being unemployed for over a year, related to a broken bone in your hand. You described both you and [LM] drinking prior to the offending.

In particular, you assert that you were both under the influence of alcohol and lost control of yourselves and the situation just escalated. You described your actions of splashing turpentine on [LM] as "very stupid". You expressed remorse and regret for your behaviour in relation to the offending and said such behaviour was very much out of character. In particular, you are quoted as saying:

"I'm very sorry for what I said and did. I've never done anything like that before. I will never do anything like that again."

Mr Ball was of the opinion that you suffer from low self-esteem and see yourself as inadequate or unworthy. Furthermore, he considers that you maintain a pessimistic view of the world where other people are typically portrayed as cold and rejecting. In particular, Mr Ball could find no evidence of explosive violence, episodic dyscontrol or intermittent explosive disorder in your history, medical records, psychometric testing or during the course of your clinical interviews.

In particular, Mr Ball states:

"Mr Sullivan is conflicted in his interpersonal relationships and is afraid he may be seen in a poor light. He associates interpersonal relationships with having to take considerable emotional risks. His conflict in relation to whether he should form meaningful relationships causes him to be moody and resentful. He may be friendly and cooperative at times, but may become negativistic or hostile, only to feel guilty later and behave contritely. This becomes cyclic in its manifestation and to a large extent underpins his repeated alcohol abuse as he attempts to self-medicate dysphoric (sad) mood that accompanies this conflict."

Mr Ball considered that you satisfied the diagnostic criteria for alcohol use disorder in early remission and that you had taken full advantage of opportunities provided to you to overcome your alcohol problem. Although medical records suggested that you had been treated for depression, Mr Ball found no significant symptoms of depression.

I refer to the progress report in relation to The Bail Support Program dated 3 June 2013. You were originally assessed on 8 May 2013, at which time you were deemed suitable for the CISP Program. Such report confirmed that to date you have complied with attending the various assessments and counselling sessions.[2]

22 In view of some unusual circumstances it is necessary to refer to the respondent's criminal history.

23 Passing over charges of handling stolen goods (1992); unlawfully on premises (1995); and drunk in a public place (1994); on 3 March 2005 the respondent was convicted of three charges of assault with a weapon and fined an aggregate amount of $1,000.

24 On 22 June 2006, at the Dandenong Magistrates' Court, the respondent was convicted of two charges of driving while disqualified, two charges of refuse to accompany to station for a breath test, and a charge of exceeding the speed limit. On each of the first four charges he was sentenced to one month's imprisonment, making a total term of four months. His licence was cancelled and he was disqualified for five years. On the speeding charge he was fined $500.

25 On 12 July 2007, at the Korumburra Magistrates' Court, on a charge of driving while disqualified, the respondent was convicted and sentenced to two months' imprisonment to be served by way of an Intensive Corrections Order. He was also convicted and fined on charges of forging a vehicle identification number and using an unregistered motor vehicle.

26 On 12 October 2007, at the Wonthaggi Magistrates' Court, the respondent was convicted of charges of theft and driving while disqualified, and sentenced to two months' imprisonment, wholly suspended.

27 Finally, on 28 April 2011, at the Korumburra Magistrates' Court, the respondent was again dealt with on charges of driving while disqualified and using an unregistered motor car. Again, he received a two month wholly suspended sentence. Counsel informed us that this offending occurred in 2006. It was said to be part of a course of offending related to alcohol abuse in the period 2006/2007.

28 At the outset of the plea hearing, the prosecutor filed the indictment, and then tendered the Crown opening (Exhibit 1) and the respondent's criminal history (Exhibit 2). The judge asked if the respondent 'has been taken through his record'. The following exchange then occurred.

[Respondent's counsel]: Prior matters, Your Honour?

His Honour: Yes.

[Respondent's counsel]: Yes, and they're admitted.

29 The prosecutor then took the judge through the Crown opening.

30 At the outset of the respondent's submissions, his counsel referred to 'the prior history', saying that there was 'only one matter in there that could really be considered a prior for violence'. That matter, as became clear, were the three convictions for assault with a weapon. Counsel referred to these later in the plea.

31 The essence of what was submitted for the respondent on the plea may be stated as follows. The intention to plead guilty had been stated to the magistrate on 9 May 2013, at the hearing at which bail was granted. The respondent had a long history of alcohol abuse and it was his excessive drinking that was the cause of his problems. He was submitted not to be a man of violence, notwithstanding the incidents in question. While it was true that in March 2005 he was convicted of three charges of assault with a weapon, the offences were said to have been constituted by the waving of a jemmy bar at people, and did not involve actual physical violence. Other offences for which the respondent had been convicted did not involve personal violence.

32 As to the offending on 2 May 2013, the respondent and LM had been drinking. Counsel described the incident involving turpentine as 'appalling', but submitted that the offending was not at the very high end of the scale of that type of offending, although neither was it at the low end of the scale. It was conceded that LM would have been terrified and that the presence of a child in the house was an aggravating factor.

33 As to the offending on 5 May 2013, it was said that the respondent had little recollection of anything he did; he had been drinking heavily. He did not know there were children in the car.

34 As to the summary matters, they were breaches at the lower end of the scale. They occurred in the context of a property settlement between LM and the respondent when the situation got the better of him and he tried to contact her. The respondent now accepted that they were not going to get back together.

35 Emphasis was placed on the respondent having made progress over the preceding 12 months; his commitment to the Court Integrated Services Program (CISP) had been outstanding, he had applied himself to his own rehabilitation and, with the exception of the summary matters, had not come under police attention. Further, he had cut ties with friends with whom he used to drink or use cannabis.

36 Finally, it was submitted that a very lengthy Community Corrections Order or, alternatively, the imposition of a three month term of imprisonment followed by a community corrections order upon release would be an appropriate disposition.

37 It is convenient, and important, that we interpolate this: immediately after the respondent's counsel urged that a lengthy Community Corrections Order was appropriate, the following exchange occurred -

His Honour: Yes, I understand your submission. Other than the four days where he was detained before bail was granted, any of those previous offences, of driving offences, caused him to go to prison?

[Respondent's counsel]: No, Your Honour. They have all been suspended terms.

This seems an extraordinary answer by the respondent's counsel, as it is plain on the face of the criminal history that on 22 May 2006 the respondent was sentenced to a term of imprisonment.

38 We should say at once that we have no evidentiary explanation for counsel's statement. It was sought to be explained by counsel in this Court on the basis that, as we refer below, by administrative oversight, as it were, the sentence was not served. It was said that in the circumstances it was a correct answer to the judge that the respondent had not been 'to prison'. But it was not correct to say that they had 'all been suspended terms'. It was suggested that the respondent had forgotten about the fact of the sentence, and thus, inferentially, it was to be understood that counsel on the plea was instructed to the effect that the respondent had not been to prison. Yet, on its face, the statement was false and misleading, and must have misled the judge if he acted upon it, that is, without reading the history and perceiving the error. Of course, the understanding that the judge would have gained from counsel's statement could only have been of benefit to the respondent in the consideration by the judge of appropriate penalty.

39 In this respect, we note that in his sentencing reasons the judge made no reference to the four months' sentence of imprisonment. All that his Honour said in relation to the respondent's criminal history was this -

The prosecution also tendered your Victoria Police criminal history report (Exhibit 2) and I note that the vast majority of offences are related to driving and, perhaps more particularly, related to driving and excessive alcohol. I do note that on 3 March 2005, you were convicted of three counts of an assault with weapon and fined an aggregate sum of $1,000.[3]

40 Returning to the submissions, the Crown submitted that general deterrence loomed large, that while alcohol seemed to be the catalyst in most of the respondent's criminal history and in the present case, the Court of Appeal had repeatedly stated that wilful intoxication is not a mitigating factor. In short, an immediate term of imprisonment was the only applicable and proper sentence.

41 Having referred to the matters concerning the respondent and what was put on his behalf, the judge concluded as follows. He accepted that alcohol had been a substantial cause of the respondent's past offending and played a significant role in the subject offending, and continued:

It is to your credit that you are seeking to overcome this problem and it is to be hoped that in the future you will continue the progress that you have made in overcoming your alcohol addiction.

However, I do consider several aspects of your offending to be very serious. First, to pour turpentine over your then partner and to go so far as sparking a cigarette lighter and advising your partner that she was going to burn and that her two year-old granddaughter was going to watch her burn is a particularly frightful episode of domestic violence. One can only speculate as to the fear that was experienced by your partner, not only for her own safety but no doubt for the safety of her granddaughter sleeping on a couch nearby.

Secondly, swinging a golf club at [WM] the following day, threatening to kill her and then following her to the car and striking the back window of the car in which two children were sitting in the back seat, would also have been a frightening episode, not only to the adults but to the hapless children who were sprayed with glass as a result of your actions.

I have already referred to the Victim Impact Statements, which give some indication of how your actions have impacted on the victims of your offences.[4]

42 Earlier in the sentencing remarks, the judge referred to the Victim Impact Statements made by LM, WM, and Tamara and summarised them as follows:

[LM] described that when the incident first occurred she and her family all went into hiding as she feared what you would do next. In particular, she described how she was scared for her safety, resulting in stress, constant nightmares, loss of eight kilograms in weight, the advent of panic attacks and crying episodes. She also describes how she mixes less and avoids large groups or places where people are drinking alcohol heavily.

Contained in the statement is a medical report from Dr Rohini Wickramaratne, dated 19 June 2013, describing how [LM] presented to the doctor on 16 May 2013 with anxiety and stress due to domestic violence and, as at the date of the report, was still being prescribed medication and having ongoing counselling together with a referral to a psychologist.

Her statement also contains a report from the psychologist, Ms Joan James, dated 6 September 2013 wherein Ms Jones opines that "[LM] has been suffering from a Post-Traumatic Stress Disorder together with depression and anxiety resulting from your offending."

In her statement, [Tamara] describes that her children have been scared to get into any car and scream every time they go near a car. [Tamara] at the time of the statement was 21 weeks pregnant and she was concerned whether the stress surrounding this incident may have an effect on her pregnancy. In particular, she describes how the children in the back seat were covered in glass and it took two hours to clean all the glass out of their hair and off their clothes. Because of your offending, they were left with no car, which makes family life particularly difficult.

In her statement, [WM] describes how she was worried about you approaching herself or Holly (her daughter). She describes that she has ongoing issues about trusting people and leaving her daughter around people who appear to be intoxicated or indeed leaving her daughter with anyone.[5]

43 Having referred to these matters, the judge noted that denunciation of this type of offending, and specific and general deterrence were particularly relevant. He considered too that it was appropriate that the early plea of guilty and the respondent's potential for rehabilitation be taken into account in mitigation of sentence. The plea of guilty had saved the cost of a trial and relieved the victims of the burden of giving evidence. The judge also considered that the respondent had shown some remorse for the offences as demonstrated by his comments to Mr Ball. As to rehabilitation, the respondent had made real progress in overcoming his problem with alcohol, although it had been conceded that alcohol explained his calling LM on 28 September 2013 in breach of the Intervention Order.

44 Taking all matters into account the judge considered that, given the gravity of the offending, the only appropriate sentence was one of immediate imprisonment, and he sentenced as stated earlier.

45 Shortly before the Court was due to hear this appeal on 3 September 2014, it came to light that the respondent had not served the four month sentence imposed on him in May 2006.

46 When the appeal came on, we were informed of the following matters by counsel and an officer from Central Records. On the day when the respondent was convicted in the Magistrates' Court, he appealed and was granted bail. In consequence, Central Records was not advised of the sentence. The appeal was struck out due to non-attendance. However due to administrative oversight a warrant did not issue for the respondent's arrest. As a result of this coming to light, on 29 August 2014 a warrant to imprison was issued and executed. The consequence, pursuant to s 17(1) of the Sentencing Act 1991, was that the respondent commenced to serve the four month sentence on 29 August 2014. The requirement of concurrency meant that the sentence was being served concurrently with the three month sentence imposed by his Honour for the 2013 offences. On this scenario the respondent's release date was 28 December 2014.

47 However, counsel informed us that the respondent intended to apply to reinstate his appeal in the County Court and requested an adjournment to enable that to happen before the hearing of the appeal from the 2013 orders. It being appropriate to do so, the Court adjourned the hearing of the appeal to 10 September 2014.

48 On Tuesday, 8 September, the respondent's appeal was reinstated and heard with the result that the orders of the Magistrates' Court were set aside, and in their stead it was ordered as follows:

(1) an aggregate sentence of two months was imposed on the offences of refusing to accompany to the station for a breath test, being a total effective sentence of two months, the sentence to be wholly suspended with an operational period of 12 months;

(2) an aggregate fine of $800 was imposed on the offences of driving while disqualified;

(3) a fine of $200 was imposed on the speeding offence; and

(4) the order of disqualification from obtaining any licence was reimposed.

49 The net result of these orders was that the respondent's release date was 20 September 2014.

50 The submissions of the Director in support of the appeal were pithy and pointed. Noting the judge's acknowledgement that the offending was 'very serious', counsel referred to the frightening and appalling nature of the offending on 2 May and 5 May 2013 respectively. Counsel emphasised that there were three incidents: the assault and turpentine incident on 2 May; the golf club incident and threats on 5 May; and the later threat to blow up the home on 5 May. Further, there were three primary victims, LM, MW and Timothy, and several secondary victims, LM's granddaughter, Tamara and her children in the car.

51 Counsel referred to the victim impact statements and submitted that the sentences imposed reflected that inadequate weight had been given to the impact of the offending upon the victims. It was further submitted that the individual sentences and the total effective sentence failed to reflect the seriousness of the offending and did not properly allow for considerations of general and specific deterrence, just punishment, denunciation and protection of the community. Further, it was to be inferred that excessive weight was given to the mitigating factors. The individual sentences were very low when regard is had to the seriousness of the offending and the maximum penalty. Further, considerations of totality did not require complete concurrency. The failure to order cumulation resulted in a sentence that was not just or appropriate in all the circumstances. Finally, that the offending was constituted by several acts on days subsequent to 2 May indicated a failure of the respondent to reflect on the seriousness of his conduct on 2 May.

52 In a sense the submissions speak for themselves. Little elaboration is necessary or possible.

53 On the other hand, the respondent's counsel submitted that the sentence of three months reflected the unusual circumstances of the case, as to which he sought to somewhat minimise the seriousness of the respondent's conduct by emphasising the causative effect of the alcohol abuse and the actions of LM and WM. He submitted that the judge was entitled to consider that three months was an appropriate penalty, having regard to all relevant sentencing considerations. How was this so? First, the offending involved two (or three) short out of character episodes where the respondent was affected by alcohol, no physical injury was inflicted and the offences did not occur in a context of other uncharged acts of violence. Further, in considering the seriousness of the offending, mitigatory matters personal to the respondent were to be considered and given due allowance. Secondly, the judge was aware of the maximum penalties and made detailed reference to the impact of the offending on the victims. Thirdly, the judge referred to the various sentencing considerations and it was up to him to determine the weight to be given to them in all of the circumstances.

54 Regarding the matter overall, and having regard to all that was submitted, it became clear that in sentencing as his Honour did, and in particular in allowing for total concurrency, the mitigating factors had been accorded a disproportionate weight. It is true that there was an early plea of guilty, remorse was shown, and there are apparently good prospects for rehabilitation. But the offending occurred on separate occasions and involved different victims. The effect of the sentences imposed was, as it were, to merge the offending and victims as though there were one episode. Moreover, the offending involving the turpentine and the striking of the lighter within close proximity (of two metres) exposed a very particular risk of the endangerment of life, and the offending on the second occasion was of a particularly violent and dangerous nature. Then there was the threat to blow up the home. The overall impression is that his Honour unduly focussed his attention on the respondent and his prospects of rehabilitation. The consequence was a total effective sentence on Charges 1-5 that was truly to be characterised as manifestly inadequate.

55 It was for these reasons that we allowed the appeal and made the orders stated earlier.

[1] Notwithstanding the reference to the Summary Charge, the appeal was confined to the sentences on Charges 1-5.

[2] R v Sullivan (Unreported, County Court of Victoria, Judge Parrish, 25 June 2014), [19]-[25] ('Reasons for sentence').

[5] Reasons for sentence [7]-[11] (emphasis in original).