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[2021] VSCA 179
General information, not legal advice.
Court of Appeal (Vic)
2021-06-23
Priest JA, Kaye JA, Forrest JA
Original judgment source is linked above.
DPP v Longhurst (Unreported, County Court of Victoria, Judge Taft, 13 March 2020)
ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 3I5 OF THE CRIMINAL PROCEDURE ACT 2009
CRIMINAL LAW - Appeal - Application for leave to appeal against sentence - Common law assault - Aggravated burglary - Intentionally causing injury - Threatening to inflict serious injury - Manifest excess - Whether sentence manifestly excessive in view of fresh evidence - Whether extant but undiagnosed medical conditions at time of sentence constitute fresh evidence - Whether events occurring after sentence constitute 'rare and exceptional' circumstances justifying admission on appeal - Whether fresh evidence would have been given mitigating weight had it been before sentencing judge - Crimes Act 1958 ss 18, 21, 77; R v Nguyen [2006] VSCA 184 applied - Application for leave to appeal refused.
2 The sentences imposed are set out in the table below.
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
Section 6AAA Statement:
5 years and 6 months' imprisonment with a non-parole period of 4 years
3 On 27 July 2020, Priest JA refused leave to appeal against sentence.[5] Leave was sought to appeal on a ground that contended that the aggregate sentence imposed on charges 2 and 3 was manifestly excessive. The ground was particularised as follows:
(a) [T]he judge failed to give any or sufficient weight to the conduct of the applicant once released on bail until sentence;
(b) the judge failed to give sufficient weight to the applicant's personal circumstances including his genuine remorse, strong family support, community work, carer for mother (sic), full-time self-employment and good prospects of rehabilitation; and
(c) the judge failed to give any or sufficient weight to the opinions of the mental health experts.[6]
4 In this application the applicant has exercised his entitlement under s 315(2) of the Criminal Procedure Act 2009 to have his application determined by two or more judges of this Court. He has also sought leave to add a ground of appeal. Leave to add this ground was not opposed by senior counsel for the respondent and we granted leave orally at the hearing of the applications. The new ground reads:
As a result of events that have occurred since the sentence was imposed, the Learned Sentencing Judge was unable to give any weight to the Applicant's medical conditions including coronary artery blockages, type 2 diabetes mellitus and left-hand deficit that required surgical intervention and/or rehabilitation during the COVID-19 pandemic.
Circumstances of offending, arrest and interview
5 The circumstances of the applicant's offending were thoroughly canvassed by Priest JA in the initial leave application. It is convenient to set out his Honour's summary of those circumstances:
The applicant owned the Eildon Holiday Resort, which he, along with others, purchased in 2006. Terry Glassborow, who was aged 68 years at the time of the offending, had lived at the resort since 2000. The applicant and Mr Glassborow were friends. Mr Glassborow would do work for the applicant in lieu of site payments. For about six weeks in 2017, Mr Glassborow took over the running of the resort when the applicant was remanded in respect of another matter, and took over the liquor licence at the resort bar when the applicant was no longer permitted to hold a liquor licence. Holly Darby also lived at the resort and was employed in the bar. She was 25 weeks pregnant at the time of the offending.
Charge 1: Common assault
On 31 December 2018, Ms Darby was working at the bar while the applicant was cooking meals and present at the bar drinking beer. Witnesses became concerned about the applicant's level of intoxication and his behaviour towards Ms Darby. Mr Glassborow spoke to the applicant and told him to leave Ms Darby alone.
The applicant approached Mr Glassborow and assaulted him by grabbing him by the arm. He then punched Mr Glassborow to the face. Mr Glassborow defended himself by twice hitting the applicant with the pot glass that he was holding. The two struggled until separated by a witness. Shortly afterward, the applicant struck Mr Glassborow from behind with his right fist. The witness intervened again. Mr Glassborow left the bar and whilst leaving the applicant lunged at him and kicked him from behind. This incident was captured by CCTV footage from the bar.
Charges 2 and 3: Aggravated burglary and intentionally causing injury
Around 15 to 20 minutes after the incident in the bar, the applicant walked to Mr Glassborow's caravan with the intention of continuing the assault on him. When the applicant arrived at Mr Glassborow's caravan he walked through the open front door and opened a second door to the annex with such force that it came off its hinges. The applicant yelled words to the effect 'you fucking glassed me'. Mr Glassborow told the applicant to leave.
The applicant then ran towards Mr Glassborow, who was sitting on the couch, kneed him in the chest and began punching him to the face with his fists. One witness unsuccessfully tried to get the applicant off Mr Glassborow. A second witness arrived and managed to pull the applicant off Mr Glassborow.
As a result of this attack, Mr Glassborow sustained a fractured eye socket, damage to the eye, 12 stitches to a cut above the right eyebrow, minor scratches to the face and head, bruising and swelling to the left cheek, a swollen right eye, and soreness around the ribs area, forehead and right eye.
Charges 4: Threat to inflict serious injury
After leaving Mr Glassborow's caravan, the applicant went next door to Ms Darby's caravan. He began bashing on the door and said
come out you low life bastards, fucking show yourselves, open the fucking door. Fucking come out you bitch sucking little bitch, I am gunna kick the fuck out of you until that baby inside of you dies. You don't deserve to have fucking kids.
Ms Darby moved from the resort that night in fear.
Arrest and interview
On 3 January 2019, police attended at the resort to arrest the applicant. He was not able to be located and a message was left for him to attend at the police station. On 4 January 2019, the applicant went to Seymour Police Station. He was arrested and interviewed. The applicant stated that Mr Glassborow was intoxicated and had been saying things about him. He told police that Mr Glassborow had pushed him first and 'after that it blanks'. In relation to the incident in the caravan, the applicant said his memory was patchy and [he] only knew what he had been told.[7]
6 The sentencing judge set out the circumstances of offending. He noted the contents of a Victim Impact Statement provided by Mr Glassborow, who at the time of sentence was 68 years old. He was an ex-serviceman and a past president of the Mornington RSL. He had assisted the applicant by accepting an appointment as a director and licensee of the company that owned the resort, and at times had managed facilities at the resort. The judge set out the victim's injuries and noted that he still experienced headaches and was consulting a psychologist. He suffers from depression and anxiety.
7 The judge set out the applicant's personal circumstances. The applicant was raised by his single mother and left school at 13. After a period of farm-type labouring, he completed a specialised diesel mechanic's apprenticeship and remained employed in the industry for many years. In 2006, with two partners, he invested in the Eildon Holiday Resort. The two partners withdrew shortly thereafter and the applicant bought their shares, assuming a significant level of debt. At the time of sentence, the applicant's mother had recently died from liver cancer and the applicant had acted as her carer as her health declined.
8 The judge noted that the applicant married in 1996 and has a daughter who lives with her mother. The couple separated in about 2014. The applicant since about 2015 had maintained a 'casual, intimate' relationship with a woman who worked at the resort.
9 The judge observed that the applicant, who commenced drinking at 13 or 14 years of age, had a history of alcohol-related offending. The applicant's forensic psychologist assessed him to be a moderate risk of reoffending with risk factors being excessive alcohol consumption and anger. The applicant, whilst on bail, had attended 23 sessions with a treating psychologist who was of the opinion that he experienced ongoing anxiety and depression.
10 The applicant's criminal history included multiple appearances in court on charges of assaulting police, assault by kicking, intentionally causing injury, unlawful assaults, using threatening words in public places, behaving in a riotous manner in a public place, hindering police, intimidating conduct, intentionally damaging property and making a threat to kill. Only weeks before the present offending conduct the applicant had been placed on a Community Correction Order ('CCO') at the Mansfield Magistrates' Court. That order arose from his attempts to intimidate a female former bar manager at the resort who had provided a police statement in yet another criminal proceeding concerning the applicant.
11 The sentencing judge set out a number of matters relied upon by the applicant in support of the primary submission that time served (63 days) ought be combined with a lengthy CCO. These included:
12 Whilst some of these factors had force, the primary submission that an appropriate sentence was time served with a CCO was, the judge observed, 'an impossible ask'. The applicant had been treated for anger management for 11 months before the instant offending and his incapacity to control his anger persisted. Further, the judge doubted that the applicant had much insight into his offending, and that any expressions of remorse must be qualified by his insistence to his treating psychologist that he had been attacked first by Mr Glassborow. The judge considered that there was no credible evidence that the applicant's mental health was likely to decline in prison, and that he represented a continuing risk of committing violent offences.
13 As to the applicant's prior criminal history, his Honour considered that the applicant had a history of 'violent, boorish behaviour', with an escalating trajectory of offending. The judge remarked,
Your use of alcohol and its association with your offending in no way excuses your conduct. You attacked a much older man, pursued him, entered his home and fractured his eye socket during the course of your persistent attack upon him. Your rage was still not spent. When bashing on the door of Ms Darby, who was six months pregnant, your threat to kick her until 'that baby inside of you dies' was disgraceful.
14 The judge concluded that the applicant's conduct demanded denunciation and that specific and general deterrence were relevant to the sentencing exercise. He proposed to, and did, pass an aggregate sentence in respect of the aggravated burglary charge and the causing injury charge. The conduct comprising these offences was closely associated in time and represented continuing conduct. The judge then imposed a total effective sentence of imprisonment for four years with a minimum of two years and four months before becoming eligible for parole.
15 In written submissions the applicant contended that the judge:
(a) failed to give any or sufficient weight to the conduct of the Applicant once released on bail and until sentence [approximately 12 months];
(b) failed to give sufficient weight to the Applicant's personal circumstances, including his genuine remorse, strong family support, community work, [role as a] carer for [his] mother, full-time self-employment and good prospects of rehabilitation; and
(c) failed to give any or sufficient weight to the opinions of the mental health experts.
16 In his written submissions, the applicant contended that over the period of about a year after he was released on bail and before sentence he had abided by strict bail conditions with no further episodes of reoffending. In that period he had completed a CCO as well as undertaking significant psychotherapy. The judge 'did not give any or sufficient regard to the effect that imprisonment will have on the Applicant's prospects of rehabilitation, demonstrated by his conduct for 372 days prior to sentence'. This was said to be contrary to the public interest.
17 Further, or alternatively, the applicant contended that the judge did not give enough weight to the applicant's personal circumstances, including remorse, strong family support, history of community work, his conduct in acting as a carer for his mother and his good standing with his former wife and then 11-year-old daughter. The applicant also contended that the judge overlooked or undervalued his full-time employment at the Eildon Holiday Resort as owner and business manager and employer.
18 The applicant further contended that the judge failed to give any, or sufficient, weight to the opinions of the mental health experts, including Heather Marriott and Jeffrey Cummins.
19 The respondent submitted that the gravity of the offences was reflected in their respective maximum penalties, including 25 years for aggravated burglary and 10 years for intentionally causing injury. The applicant's aggravated burglary was premeditated and confrontational. It took place late at night with an intention upon entry of committing assault. The applicant had had 15-20 minutes to cool down after leaving the bar but persevered. The ensuing physical assault was also serious - a sustained physical attack upon a victim 20 years older than the applicant and who was seated and unable to escape. The injuries were significant and the attack occurred shortly after the conduct the subject of charge 1, a protracted common law assault. On the plea, counsel for the applicant conceded that a composite sentence of time served plus a CCO was a 'big ask', and the judge was correct, notwithstanding the factors in mitigation, to reclassify it as an 'impossible ask'.
20 In oral submissions, this ground was but faintly pressed.
21 It is regularly stated by this Court that grounds of manifest excess or inadequacy are difficult to establish.[9] An applicant must demonstrate, in the absence of an identifiable error, that the judge's sentencing discretion has miscarried. It is not sufficient to demonstrate that a sentence is heavy or lenient, or that a different sentence might have been imposed.[10] What must be demonstrated is that the impugned sentence is wholly outside the range available to the judge in the exercise of his or her reasonable sentencing discretion,[11] so as to unmistakeably bespeak error.[12] This ground of appeal confronts this formidable obstacle.
22 In our view this ground can be readily dismissed. Regrettably, this applicant has a long and violent criminal history, and these serious offences were committed only weeks after he was placed on a CCO for intimidating a potential witness in another of the applicant's litany of interactions with the criminal justice system. It is convenient to quote certain of Priest JA's remarks on the failed leave application:
[G]iven the applicant's antecedents, his resort to violence and threatened violence on the occasion in issue cannot be viewed as a temporary aberration. He has convictions or findings of guilt for offences including common assault (2003); unlawful assault (2005, 2007, 2015 and 2018); assaulting police (2005, 2013); hindering or resisting police (2013, 2017); intentionally causing injury (2007); and making threats to kill (2018). He has also been dealt with (among others) for a host of offences relating to public drunkenness; indecent language in a public place; using threatening, abusive or insulting language; offensive behaviour; riotous behaviour; damaging property; and using a carriage service to menace or offend.
The applicant is not to be punished again for his previous offending, but his prior convictions remain highly relevant to the sentence imposed for the present offences. As Charles JA observed (with the concurrence of Winneke P and Southwell AJA) in O'Brien:
It is of course clear that no principle of sentencing requires that more severe sanctions be administered to those who persist in their criminal behaviour. But an adverse criminal record may impact on the sentencing process in a number of ways; for example, as an indicator of the offender's moral culpability, his prospects of rehabilitation, his dangerous propensity and the community's need for protection, and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence.[13]
23 We agree with these observations. Both Judge Taft and Priest JA were entitled to conclude that the applicant's prior criminal history informed all aspects of the sentencing process, including the weight to be given to general and specific deterrence, denunciation, the prospects (or lack thereof) of rehabilitation, and the need for protection of the community from the applicant and his demonstrated dangerous propensities.
24 The applicant has failed to demonstrate that the total effective sentence imposed, or any of the individual sentences, were manifestly excessive. Indeed, we consider the individual sentences and the overall sentence to be particularly lenient. There is no evidence that the judge failed to take into account, or gave inadequate weight to, any of the factors advanced on the applicant's behalf. The sentence imposed suggests to us that not only did his Honour take them into account, he accorded them weight in a sentence that could easily have been much higher.
26 In an Amended Notice of Application for Leave to Appeal against Sentence filed in January 2021, the applicant notified that he intended to apply to this Court for leave to appeal against sentence on the following ground:
As a result of events that have occurred since the sentence was imposed, the Learned Sentencing Judge was unable to give any weight to the Applicant's medical conditions including coronary artery blockages, type 2 diabetes mellitus and left-hand deficit that required surgical intervention and/or rehabilitation during the COVID-19 pandemic.
27 In written submissions the applicant contended that at the time of the plea hearing the applicant was not aware of certain pre-existing medical conditions that were diagnosed after sentence and, in two instances, were the subject of surgical intervention.[14] It followed that the Court was not made aware of those pre-existing conditions and could not accord them weight in the sentencing calculus.
28 As we have set out, at the oral hearing of this application we granted the applicant leave to add a further ground that alleged that certain health events had become apparent since sentence. These events were said to evidence certain underlying health conditions, and, had the sentencing judge been aware of such existing, though not then apparent, conditions at the time of sentence, he would have accorded them weight in the sentencing calculus.
29 The following particulars are extracted from the Justice Health file exhibited to an affidavit sworn by the applicant's solicitor, and other affidavit material filed by both the applicant and the respondent.
30 In discussion at the oral hearing, the applicant's focus narrowed substantially. He confined argument essentially to establish the following propositions:
31 In written submissions, the respondent contended that leave to appeal ought not be granted under this ground. The principles articulated in R v Nguyen[18] were set out and it was accepted that they may have some application to the coronary artery and type 2 diabetes complaints.
32 To the extent that the applicant relied upon Corrections Victoria's failures to provide adequate medical treatment, it was submitted, these asserted failures did not demonstrate the true significance of any underlying condition in existence at the time of sentence and this evidence was thus inadmissible. Alternatively, there is no medical evidence that any supposed failure to provide adequate medical treatment has resulted in any detriment to the applicant.
33 It follows, the respondent submitted, that the treatment 'failures' raised by the applicant ought to be 'set to one side and the focus should be on the issues raised by the diagnoses'.
34 The respondent then submitted that the evidence as to the existence of coronary artery disease and type 2 diabetes, as at the time of sentence, was vague and thus insufficient to constitute the 'rare and exceptional' circumstances contemplated by Nguyen.[19]
35 In oral submissions, senior counsel for the respondent submitted:
36 In Nguyen the principles upon which the applicant sought to rely, in order to advance this ground, were set out at [36]:
It is common ground that this Court may, in limited circumstances - sometimes described as 'rare and exceptional' - permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
_(i) the new evidence must relate to events which have occurred since the sentence was imposed;
(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.[20]_
37 We are prepared to infer that at the time of sentence the applicant was suffering from underlying but undiagnosed coronary occlusions and from, at the least, an undiagnosed pre-diabetic condition.
38 Clearly enough, the proposed fresh evidence relates to events which have occurred since the sentence was imposed - namely the development of cardiac symptoms, the subsequent diagnosis of cardiac occlusions and the subsequent triple bypass graft surgery. The diagnosis of type 2 diabetes is also an event which has occurred since sentence was imposed. We are also prepared to accept that the evidence demonstrates the true significance of those underlying conditions which (we have inferred) were asymptomatic but nonetheless in existence at the time the sentence was imposed.
39 Without determining that this evidence comes within the 'rare and exceptional' category set out in Nguyen and R v Orbach,[21] for the purposes of this analysis we are prepared to assume it does. The question relating to admissibility of this evidence then devolves to an analysis of whether, on all of the material now before the Court, any different sentence ought be substituted to avoid a miscarriage of justice. We are not satisfied that the applicant has demonstrated this. First, we are not satisfied that the treatment that the applicant has received in custody is in any respect inferior to treatment that he would have received within the community. He has had access to a cardiologist and to a cardiac surgeon. He has received an ECG test at Dhurringile Prison Medical Unit, a heart exercise stress test and an angiogram at St Vincent's Hospital Melbourne. Within weeks of his cardiac condition being diagnosed, a triple bypass operation was carried out at St Vincent's Hospital, as was his initial post-operative recovery. True it is that the capacity to attend to his every post-operative need may have been affected in the prison system by the measures necessary for the safety and health of all prisoners (including the applicant), however, in light of the strictures imposed by the COVID-19 pandemic, we do not consider that his inventory of complaints are a reliable indication of any significant shortcomings in the management and care of his physical health.
40 Secondly, as we have observed in argument, it is our considered opinion that the total effective sentence and the individual sentences imposed in this matter are particularly lenient. We have expressed our reasons for this conclusion at para [24] of these reasons. We are not satisfied 'on all the material now before [this] Court, [that] any different sentence should be substituted to avoid a miscarriage of jus[22]ce'.22 The applicant has an appalling history of violent behaviour, seemingly escalating in seriousness. He has little apparent regard for court orders and his offending conduct in the present case was deplorable. To lower the sentence, as it is submitted we should by the applicant, would result in a miscarriage of justice. Leave to appeal under this ground must be refused.
[1] Contrary to common law. The maximum penalty is five years' imprisonment: Crimes Act 1958 s 320 ('Crimes Act').
[5] Longhurst v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 27 July 2020) ('Leave Reasons').
[8] DPP v Longhurst (Unreported, County Court of Victoria, Judge Taft, 13 March 2020) ('Sentencing Reasons').
[9] See, eg, Atem v The Queen [2020] VSCA 35, [48] (Tate, McLeish and Weinberg JJA).
[10] R v Pham [2015] HCA 39; (2015) 256 CLR 550, 568 [56] (Bell and Gageler JJ).
[11] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
[12] Hanks v The Queen [2011] VSCA 7, [22] (Bongiorno JA).
[13] Leave Reasons [35]-[36], quoting R v O'Brien and Gloster [1997] 2 VR 714, 718 (Charles JA).
[14] At the oral hearing the applicant abandoned any reliance on the left hand injury or any subsequent surgery.
[15] Cardiothoracic Care Centre, St Vincent's Hospital Melbourne, 'Going Home After Heart Surgery'.
[17] The applicant relied on Reivers v The Queen [2010] VSCA 159 and Teryaki v The Queen [2019] VSCA 120 to advance these propositions.
[18] [2006] VSCA 184, [36] (Redlich JA) ('Nguyen').
[21] [2007] VSCA 166, [40] (Kaye AJA).
[22] Nguyen [2006] VSCA 184, [36](vi) (Redlich JA).
Longhurst
The Queen [2021] VSCA 179
(2015) 256 CLR 550
(2011) 32 VR 361