Holland v R [1999] WASCA 43

Court of Appeal (WA)|1999-06-08|Before: Ms P, Kennedy J, Ipp J, Owen J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HOLLAND -v- R [1999] WASCA 43

Criminal law and procedure - Sentencing - Burglary - Being in a dwelling house without consent in circumstance of aggravation - Circumstance of aggravation an assault - That assault an element in two further charges - Failure of sentencing Judge to recognise early pleas of guilty - Effective sentence of 2 years' imprisonment set aside and effective sentence of 18 months' imprisonment substituted - Sentences for offences other than burglary varied

Cox v The Queen, unreported; CCA SCt of WA; Library No 8418; 9 August 1990

Little v The Queen, unreported; CCA SCt of WA; Library No 970041; 3 February 1997

Parfitt v The Queen, unreported; CCA SCt of WA; Library No 960140; 21 March 1996

Pezzino v The Queen, unreported; CCA SCt of WA; Library No 970308; 19 June 1997

R v Thompson, unreported; CCA SCt of WA; Library No 940311; 21 June 1994

Roddan v The Queen, unreported; CCA SCt of WA; Library No 970062; 20 February 1997

Yanko v The Queen, unreported; CCA SCt of WA; Library No 960030; 23 January 1996

1 KENNEDY J: The applicant was presented in the District Court on an indictment alleging that, on 25 June 1998, at Burns Beach, he, being in the place of his wife without her consent, that being a place ordinarily used for human habitation, committed the offence of assault when, immediately before the commission of the offence he knew, or ought to have known, that there was another person in the place. He was charged in addition with breaching a violence restraining order by committing domestic violence against his wife, and with having assaulted his wife. The last mentioned matters came before the sentencing Judge pursuant to s32 of the Sentencing Act 1995. The assault constituting the third charge is that referred to in the indictment. This assault also constituted the breach of the violence restraining order.

2 The facts, taken essentially from the sentencing remarks of the learned sentencing Judge, are as follows. The complainant and the applicant were married, and there were two sons of that marriage. They have lived apart since about November 1996. Prior to that time, they had been living together in Queensland. In 1988, the applicant came to Perth where the complainant and the two boys were then living and, since that time, he has visited the complainant's home on a number of occasions in order to see their children.

3 At about 10.30pm on Thursday, 25 June 1998, the applicant drove to the complainant's home and went to the security door at the rear of the premises. The applicant asked his wife, who had come to the door, if they could talk. She was reluctant to let him in because he appeared to her to be affected by alcohol - as undoubtedly he was. However, in order to avoid a violent confrontation, she unlocked the security door and allowed him into the house.

4 After a short time, the complainant told the applicant to leave the house; but he did not do so. He pushed the complainant onto a lounge chair and then spoke to her as he knelt on the floor in front of her. For approximately the next hour and a half, the complainant attempted to pacify the applicant, until, eventually, he left the house. However, about five minutes later, he returned. He knocked on the front door and the complainant told him to leave. He went away again, but after a further interval of about five minutes, he came back once more and again requested to be let in. He was again told to leave, and, when he refused to do so, the complainant telephoned the police.

5 A short time later, the applicant broke a window near the front door and climbed into the living room. Fearing that she would be assaulted, the complainant ran to the front door; but she was grabbed from behind by the applicant before she was able to unlock the door. The applicant placed his hand around her chest and dragged her towards the bathroom. He placed his arm around her neck, choking her. At this time, the younger son ran out of his bedroom screaming. This distracted the applicant. He proceeded to drag the complainant into the toilet. Then he picked up his son.

6 In the meantime, the elder son, who was aged eight, managed to escape outside through the rear door. He flagged down the police car, which had presumably arrived in response to the complainant's telephone call. The time was then about 1.30am. The police broke open the front door. They heard the complainant whimpering. She was traumatised to the extent that she was shaking uncontrollably and unable to speak when the police found her in the bathroom. She had received a minor laceration to a finger and bruises on one arm and on her legs. She was also sore around her neck and had minor abrasions to her shoulder as a result of the assault on her; but she did not require hospitalisation.

7 Her Honour had the benefit of a pre-sentence report, including a psychological assessment. That assessment was far from positive. The applicant is 34 years of age. He has been married to the complainant for some 12 years, although it now appears that the marriage is to be dissolved. He has an ongoing problem with alcohol and accepts that he has been a heavy drinker since the age of 14. On occasions, he has consumed beer mixed with spirits. He is a regular user of cannabis, having commenced his use of that drug at the age of 17.

8 The applicant joined the workforce when he was 14. Notwithstanding his persistent alcoholism, his work record appears to have been surprisingly stable. He is a qualified crane driver and a rigger and he has had numerous jobs in Queensland and in Western Australia. Before his arrest, he was earning $600 per week.

9 The applicant clearly has an anger management problem, and he has conceded that his marriage breakdown has come about as a direct result of his alcohol use and his uncontrolled anger and violence towards his wife. The psychological report described the applicant as appearing to be dominated by personality traits of a narcissistic, dependent and avoidant nature. His excessive use of alcohol and cannabis only serves to exacerbate his already severe emotional problems. The narcissistic trait has developed from his underlying sense of insecurity and emotional weakness rather than from genuine feelings of high self worth. The applicant impressed the psychologist as having some insight into his personality problems, but with little or no ability at that time to enable him to address them successfully. He reported a history of intimidating and physically violent behaviour towards his wife, including an incident when he held his wife's head under the water in a spa. The assessment indicates that the applicant is unlikely to face up to the matters which have been raised in the report.

10 The applicant's offences, which were committed in the early hours of the morning, were aggravated by the involvement of the applicant's children, and the assault was further aggravated by the fact that it was committed in breach of the restraining order. Such an order is not to be disregarded at will. Her Honour rightly regarded imprisonment as the appropriate disposition of the matter and she sentenced the applicant to 2 years' imprisonment, with eligibility for parole, with respect to the burglary charged in the indictment. For each of the two additional charges, her Honour imposed sentences of imprisonment of 6 months, and properly directed that those sentences be served concurrently with the previous sentence.

11 The applicant, who appeared before us in person, prepared his own application for leave to appeal against his sentences. His application for leave to appeal was filed out of time, but the Crown not objecting to it, an extension of time to the date of filing the application was granted. The grounds upon which he seeks to appeal are expressed as follows:

"Because I did not believe I was represented properly, as I only had 10 minutes with a lawyer I had only met on the day of sentence. The breach of restraining order sentence was wrong. I was invited in. And the aggravated burglary was not intentional, smashing the window was an accident and the assault was only taking my wife to the bathroom so as not to wake the children. I admit I was wrong on every count but this is my first sentence in gaol in my nearly 34 years of life and I feel this gaol sentence is very severe as my wife didn't want me to go to gaol. I have had very good access to my boys and have been paying money for maintenance and have been working since I was 14 years of age. And problems I have with my alcohol addiction and depression are being addressed and gaol just hurts my family more because they are on their own."

12 The applicant complained of his representation, and it is true that each counsel who appeared for him admitted to not having had sufficient time fully to prepare herself or himself for making submissions. Nevertheless, considered in the light of the applicant's own submissions to us, I am not at all persuaded that there was any failure on the part of his counsel to place before her Honour anything of substance. The applicant's counsel clearly had instructions from him regarding the essential aspects of the case. Furthermore, the sentencing was adjourned on the morning of 12 January 1999 until the afternoon in order to enable counsel to seek further instructions from the applicant, which he clearly gave her. Counsel for the applicant, after the adjournment, sought to have a pre-sentence report obtained, and indicated that, if this were accepted, it "would perhaps enable some more information to be put before [her] Honour". The request was acceded to, and the matter was brought on again before her Honour on 29 January 1999, when another counsel appeared on behalf of the applicant, with the same solicitors continuing to act. It is apparent that he had secured additional instructions from the applicant, and that he conveyed those instructions to her Honour. They largely concerned the provision of maintenance by the applicant for his wife and children.

13 It is important to observe in this context that a number of the facts outlined by the Crown prosecutor were challenged by the applicant's counsel. In particular, there was a denial that the applicant had allowed the complainant to slip out of his grip and to fall onto the floor, as she claimed, while she was being propelled towards the bathroom. Counsel advised her Honour that as soon as the younger son appeared, the applicant simply let the complainant go and picked up his son. He denied dragging the complainant to the bathroom, saying that he had just pushed her. Her Honour was also informed that the complainant and the applicant were not living in the same house, but that there were attempts being made for a reconciliation. It was claimed on the applicant's behalf that he had given the complainant as much maintenance as he could possibly pay, and that in some months it had amounted to $2500. It was also said he had given her each of his last three taxation refunds. They amounted to $7500, $6500 and $5500 respectively. This was disputed by the complainant. It was further said that the complainant had made attempts with the investigating officer and with the Director of Public Prosecutions to have the charges withdrawn. The complainant, however, denied having sought to withdraw the charges. The applicant claimed that he had not broken the window in order to gain entry, but that it had been broken by him out of frustration. Nevertheless, he made use of the broken window to gain entry to the house. He claimed that he had taken the complainant into the bathroom for the specific purpose of trying to avoid the children being involved. The possibility of that being avoided was minimal, and if the applicant did hold this belief, it said more about his state of intoxication than anything else.

14 The contention that the sentence for the breach of the restraining order was wrong because the applicant was invited into the house is without substance. He pleaded guilty to the breach and, in any event, the relevant entry came after he had smashed the window. The contention that his wife did not want him to go to gaol has not been substantiated; but, in any event, her wishes, although relevant, could not determine the outcome of this matter. There is a general public interest in, and concern with, incidents of domestic violence, which remain all too prevalent. The fact that violence occurs in a domestic setting does not diminish its significance. Indeed, the contrary will usually be the case.

15 The applicant claimed that the severity of the sentence suggested a premeditated act on his part, rather than what he described as "a spontaneous emotional outburst" on his part. Accepting that the applicant did not deliberately set out to smash the window, it cannot be accepted that when he saw his wife becoming distraught, he had stepped through the broken window in an attempt to console her before the children could wake up. Nor can it be accepted that he "guided" his wife to the bathroom with his arm over her shoulder and his hand on her chest. The injuries which she sustained, and which have never been denied, are inconsistent with his story. He did nothing to console his wife.

16 The essential facts remain that the applicant called on his wife, uninvited, at 10.30pm, showing signs of intoxication. His wife reluctantly admitted him into the house. He forced her to listen to him for some one and a half hours before she asked him to leave. Having at last left the house, he returned five minutes later. His wife, who had already obtained a violence restraining order against him, told him that she would call the police. In what he described as his frustration, he struck a window alongside the front door, breaking the window. He entered the house and propelled his wife, with some degree of force, towards the bathroom. While he was doing this, one of his children ran outside and flagged down the police car. When the police arrived on the scene, the complainant was obviously distressed, a matter which the applicant appears at all times to have ignored.

17 Although the effective head sentence could be regarded as being at the higher end of the scale, I am of the opinion that it fell within the range of her Honour's discretion, save only for the fact that no allowance was made in terms for the applicant's early plea of guilty to the major offence. The record of proceedings in the Court of Petty Sessions indicates that, on 16 October 1998, the applicant pleaded guilty to the charge of burglary pursuant to s 101 of the Justices Act 1902 under the fast track system, and he formally requested the District Court to deal with the remaining charges pending in the Court of Petty Sessions, on the basis that he would plead guilty to them, as, indeed, he did. No reference either by counsel or her Honour was made to the applicant's early plea of guilty and it should, I consider, be assumed that no allowance was made by her Honour for that early plea or for the early indication of his intention to plead guilty to the two charges pending in the Court of Petty Sessions - see the Sentencing Act 1995, s 8(4). In my opinion, a reduction in the sentences should have been made on this account. In this case, a deduction of 25 per cent would have been appropriate.

18 There is another aspect of the matter to which reference should be made, although it has no practical impact upon the outcome of this appeal. That is that the assault committed by the applicant upon his wife was a common element in each of the three charges. To the extent to which the three offences of which the applicant stands convicted contain that common element, it would be wrong to punish him three times. As McHugh, Hayne and Callinan JJ said in Pearce v The Queen [1998] HCA 57; (1998) 72 ALJR 1416, at [40], in considering a situation where the prisoner had been charged with maliciously inflicting grievous bodily harm with intent to do his victim grievous bodily harm, and with breaking and entering the dwelling house of the same victim and, while therein, inflicting grievous bodily harm upon him, said:

"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done : it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."

In these circumstances, in my opinion, the sentences for the two offences the subject of the s 32 application should be reduced from 6 months to 1 month in each case.

19 I would grant leave to appeal and I would vary the sentences imposed by the learned sentencing Judge by reducing the penalty of 2 years for the offence in the indictment to one of 18 months, the order for eligibility for parole standing, and I would reduce the sentences for the other two offences from 6 months to 1 month, those sentences to be served concurrently with the previous sentence.

20 IPP J: I have read the reasons to be published by Kennedy J. I agree with them and his Honour's conclusions. I have nothing further to add.

21 OWEN J: I have read the reasons to be published by Kennedy J. I agree with those reasons and have nothing further to add.

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