Edwards-Hayes v The Queen [2022] VSCA 76

1 On 16 September 2021, the applicant pleaded guilty before a judge of the County Court to: one charge of contravening a family violence intervention order intending to cause harm or fear for safety;[1] two charges of causing injury recklessly;[2] one charge of making a threat to kill;[3] one charge of making a threat to damage property;[4] and five related summary charges.[5]

2 That same day, the judge sentenced him as follows:

Contravening a family violence intervention order intending to cause harm or fear for safety

4 years' imprisonment with a non-parole period of 2 years and 6 months

3 The applicant now applies for leave to appeal on the ground of manifest excess.

4 For the reasons that follow, leave to appeal will be refused.

5 At the time of the offending, the applicant was 21 years old and subject to three grants of bail.

6 In January 2019 - more than twenty months earlier - the applicant's relationship with his former partner, CM, came to an end.

7 In September 2020, a family violence intervention order was made and served on the applicant. The order prohibited him from committing family violence against CM and her infant daughter, or coming within specified distances of them or their residence.

8 In early October 2020, the applicant appeared at the house in which CM and her daughter lived. Both CM and her daughter were present. He was verbally aggressive, and entered and searched the residence, over CM's objections. He told her to 'shut the fuck up' and accused her of destroying his life (charge 1 - contravening a family violence intervention order intending to cause harm or fear for safety; summary charge 10 - committing an indictable offence while on bail; summary charge 14 - trespass).

9 CM retreated to the bedroom, where her daughter lay in a pram. The applicant entered the room, seized CM by her hair, and shook her for several minutes. After releasing his grip on her hair, he slapped her left ear with his open palm, which caused barotrauma (charge 2 - recklessly causing injury; summary charge 2 - common assault).

10 After briefly leaving the room, the applicant returned, brandishing a box cutter. He pointed it at CM, and raised it above his head. She shielded herself by raising her left arm. He brought the box cutter down on her left elbow, cutting it (charge 3 - recklessly causing injury). The resulting laceration was around 3 centimetres in length and at least 5 millimetres deep. The elbow required surgery.

11 The applicant's physical and verbal abuse continued, in various parts of the house. At one point, he charged at CM, screamed at her, and kicked her in the leg, felling her (summary charge 8 - common assault).

12 CM attempted to place a phone call to emergency services. The applicant said to her, 'Put that fucking phone down or else I'm going to kill you in front of the coppers. You won't be leaving the house alive' (charge 4 - threat to kill).

13 He remained in the house for a further 20 minutes. When he left, he promised to return in an hour. He warned CM that if she left the house in that time, he would 'burn the house down and smash up all your shit' (charge 5 - threat to damage property).

14 Some days later, police officers attended at the applicant's home, where they located the box cutter. The applicant resisted arrest, and lunged and attempted to break free from the hold of the attending police officers (summary charge 11 - resisting an emergency worker on duty).

15 The applicant was remanded in custody from the time of his arrest. During the intervening period, he served a sentence of 221 days' imprisonment for unrelated offending.

16 The judge described the offending as 'brutal and repulsive'.[6] He characterised it as involving 'serious criminal offences' to which substantial maximum penalties attach.[7] He referred to CM's victim impact statement, which described significant and ongoing emotional impacts, in addition to the physical injuries caused by the applicant.[8]

17 The judge referred to the applicant's prior criminal record, which included multiple convictions for criminal damage and aggravated burglary, as well as individual convictions for contravening another family violence intervention order (also in respect of CM), resisting another emergency service worker, and offending on another occasion while on bail.[9]

18 The judge accepted, in the applicant's favour, that he had had a disrupted and disadvantaged childhood. His parents separated when he was young. Initially, he lived with his father, who abused alcohol, neglected the applicant, and was physically violent. His father died when he was 11 years old. In his early teens, he was sent to live with an uncle, before returning to live with his mother. He did not complete high school, and has never had full-time employment. He used alcohol and cannabis from his early teens, progressing to methylamphetamine in his late teens. Drug use led to symptoms of psychosis.[10]

I do take your troubled upbringing into account in sentencing you. You did not have the guidance and structure in your life that would have helped your development. This disadvantage mitigates your sentence for this offending and reduces your moral culpability.[11]

20 The judge went on to take into account, in the applicant's favour, other mitigatory factors, including:

(a) his youth, and corresponding lack of maturity, judgment and self-control;[12]

(b) his early guilty plea and its heightened utilitarian value during the ongoing pandemic;[13]

(c) the increased custodial burden because of the restrictions to visits and other prison programs during the pandemic;[14] and

(d) the applicant's remorse, as evinced by his guilty plea.[15]

21 Of the mitigatory factors, the judge gave the applicant's disadvantaged background and his youth particular weight, explaining that those factors served to 'significantly' reduce the sentence to be imposed.[16]

22 The judge described the applicant's prospects of rehabilitation as 'clearly guarded', and contingent on the applicant's ability to remain drug free, and develop maturity and insight into his behaviour.[17] The judge referred to a report of a forensic psychologist tendered on the applicant's behalf in which the applicant was said to be at least a 'moderate risk of future violent offending', and a higher risk if he reverted to drug abuse.[18]

23 The judge concluded that the seriousness of the offending brought specific and general deterrence and denunciation to the fore as sentencing considerations, and precluded anything but a custodial sentence.[19]

24 As mentioned, there is a single proposed ground of appeal:

The sentence on charge 1, orders for cumulation, total effective sentence and non-parole period are manifestly excessive in light of the significant matters in mitigation, including the applicant's youth and disadvantaged childhood.

25 The issue between the parties is whether the sentence exceeded the range available to the judge, given the applicant's childhood disadvantage and youth. It is common ground that the judge took account of both factors, and expressly moderated the applicant's moral culpability, and the sentence, as a result.

26 The applicant submits that the sentences imposed - particularly the base sentence - indicate that this moderation was inadequate. In his written case, he refers also to the need to apply the principle of totality, having regard to the sentence of 221 days' imprisonment served while the present charges were pending.

27 The respondent contends that the sentence reflects adequate moderation, but also emphasises the relevance of other matters, including:

(a) the serious nature of the offending, being terrifying and controlling family violence committed in breach of a protective order and while on bail, and in the presence of an infant;

(b) the applicant's lengthy criminal history, which included another contravention of a family violence intervention order against CM;

(c) the applicant's at least moderate risk of future violent offending, and guarded rehabilitative prospects.

Analysis

28 In my opinion, it is not reasonably arguable that the sentences imposed in this case were manifestly excessive in any respect. It is true that the applicant could point to his youthful age, his very disadvantaged background, and his diminished capacity for insight, judgment and self-control.[20] He was also entitled to the benefit of his early plea of guilty, especially in the context of the ongoing pandemic, and to recognition of the fact that imprisonment during the pandemic is more burdensome than it would otherwise be.[21]

29 But the case is a sorry example of the scourge of family and domestic violence which this Court has been at pains to denounce.[22] The applicant subjected his former partner to a violent and terrifying ordeal in her home and in the presence of her infant. It was aptly described by the judge as 'brutal and repulsive'.[23] He was on bail at the time, and had an extensive criminal record, including criminal damage, aggravated burglary and dishonesty offences, as well as previous instances of offending while on bail and contravening a family violence intervention order respectively. The judge rightly described general and specific deterrence as predominant sentencing considerations and noted the applicant's guarded prospects of rehabilitation. The judge referred to the intervening term of 221 days' imprisonment, and was plainly aware of the need to apply the principle of totality in that context.[24]

30 In all the circumstances, a total effective sentence of two years and six months' imprisonment was well open. The individual sentences, the highest of which was 18 months, were likewise unobjectionable.

31 The judge recognised the possibility that the applicant might develop maturity and insight into his behaviour if he can remain free from drugs. That recognition is reflected in the non-parole period of 20 months.

32 The sentences and orders for cumulation were plainly within the available range. Leave to appeal should be refused.

[1] Contrary to Family Violence Protection Act 2008 s 123A.

[2] Crimes Act 1958 s 18.

[3] Ibid s 20.

[4] Ibid s 198.

[5] Two charges of common assault (Summary Offences Act 1966 s 23), one charge of committing an indicatable offence while on bail (Bail Act 1977 s 30B), one charge of resisting an emergency worker on duty (Summary Offences Act 1966 s 51(2)), and one charge of trespass (Summary Offences Act 1966 s 9(1)(e)).

[6] DPP v Edward-Hayes (Unreported, County Court of Victoria, Judge Chettle, 16 September 2021) [30] ('Sentencing Remarks').

[13] Ibid [25]-[27]; Worboyes v The Queen [2021] VSCA 169.

[20] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

[21] Worboyes v The Queen [2021] VSCA 169.

[22] Pasinis v The Queen [2014] VSCA 97, [57] (Neave and Kyrou JJA).