Luciano v The Queen [2015] VSCA 173

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 On 16 September 2014, the appellant pleaded guilty in the County Court to one charge of assault, one charge of recklessly causing injury, one charge of making a threat to kill and one charge of arson. Immediately following a plea, the appellant was sentenced as follows:

5 years [s 320 Crimes Act 1958]

Recklessly Cause Injury [s 18 Crimes Act 1958]

5 years [s 18 Crimes Act 1958]

Make Threat to Kill [s 20 Crimes Act 1958]

10 years [s 20 Crimes Act 1958]

Arson [s 197(7) Crimes Act 1958]

15 years [s 197(7) Crimes Act 1958]

6 years 10 months imprisonment (NPP: 4 years 10 months)

• Forfeiture Order;
• Disposal Order;
• Compensation Order; and
• Forensic Sample Order.

2 On 15 April 2015, Osborn JA gave the appellant leave to appeal against his sentence on the following ground:

The sentencing discretion miscarried because of the introduction into the sentencing hearing of irrelevant and highly prejudicial material in victim impact statements and a failure by the trial judge to determine what material in those statements was 'relevant and admissible' for the purposes of sentencing.[1]

3 In granting leave to appeal, Osborn JA described the circumstances of the appellant's offending as follows:

The victim with respect to charges 1 to 3 was the [appellant's] estranged wife. He had married her in 2004 and they have one daughter, who was born on 12 May 2011. On a date between 22 and 24 May 2011 the [appellant's] wife was lying on a bed in their home holding their infant daughter. The [appellant] entered and then sought to take the baby from her mother. The [appellant] lunged at his wife several times saying 'give her to me'. Each time this happened the wife rolled to one side to protect the child and told the [appellant] to stop. The act of lunging constituted the basis of the charge of common assault.

The confrontation giving rise to this first charge continued. The [appellant's] wife told him that he was too aggressive to hold the baby but if he went away and calmed down he could spend time with the baby on the bed. The [appellant] said 'not good enough'. At some stage the wife put her foot out to stop the [appellant] lunging towards her and to protect the child. The [appellant] then struck her legs with his fist causing bruises. It is this conduct which founded charge 2 - recklessly causing injury.

Soon after this incident, the couple separated. On 29 May 2011, the [appellant's] wife moved to live with her parents in Mount Macedon. Following separation, there was ongoing animosity expressed by the [appellant] to his wife and in early June when the wife drove off in the family car the [appellant] screamed at her 'you're dead' and made a gesture drawing a finger across his throat. This conduct founded charge 3 - making a threat to kill.

Later that day, the [appellant] told his ex-partner to lock the doors at Mount Macedon. He said 'I am coming for you, watch your back. You're all going to pay, every single one of you.' He later said 'I'll make you know what it is like to lose somebody.'

On 6 October 2011, the [appellant's] wife and daughter were at 'sleep school' and her parents were overseas. At about 7:52 that night, the [appellant] sent his wife a message that said 'game on'. He then made numerous unanswered telephone calls to the Mount Macedon house. At about 9:20 he attended a Shell service station in Lygon Street, Brunswick, and purchased 14.5 litres of petrol which he placed in a jerry can. He then went to the Mount Macedon house belonging to his parents-in-law, where he gained entry to the garage. He set fire to the property using the petrol which he had bought with him as an accelerant. The house and garage were extensively damaged by fire and required demolition. A motor vehicle and other contents of the property were also destroyed. It is this conduct which founds charge 4 - arson.

The [appellant] suffered significant burns as a result of the fire.

An insurance company paid out some $929,696 in relation to the claim for fire damage. As the victim impact statements made clear the arson had substantial ongoing impacts upon the [appellant's] parents-in-law and their family.[2]

4 The sentencing judge commenced her reasons for sentence with a description of the appellant's offending.[3] The judge then stated that, on any view, the appellant's offending was serious. The judge then described in some detail the victim impact statements and the significant consequences of the appellant's offending. When dealing with the victim impact statements, the judge said that she had regard to their contents to the extent that they were relevant and admissible for her purposes in sentencing the appellant.[4]

5 Next, the judge gave a detailed description of the background and circumstances of the appellant and the evidence tendered on behalf of the appellant on the plea.[5]

Your prospects of rehabilitation are in my view positive given your lack of history, but I also think you will need to take a realistic look at your life and take the steps necessary to truly accept your culpability and the damage you have caused to people's lives which I think is yet to be fully achieved. I think the Parole Board will play an important role in your ongoing rehabilitation and reintegration into the community. The steps you have taken in terms of your engagement in counselling are positive and you have shown commitment in this regard attending some 28 sessions.

I take into account in sentencing you your plea of guilty which you entered on the day the matter was listed for trial. You have saved the witnesses the ordeal of giving evidence, you have saved the community the time and expense of a trial, you are entitled to the benefit of that plea. I accept that you will experience prison more harshly given your inability to assist in your mother's care and/or have any contact with your infant daughter.

The Crown submits that the only disposition open is an immediately servable term of imprisonment. Your counsel quite properly concedes this to be the case.

As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must take into account other relevant sentencing considerations. General deterrence is in relation to this sort of offending of considerable importance. I must seek to deter not only you but others who would engage in such conduct. I have had regard to your mental state at the time as described in paragraph 50 of the report of Dr Sullivan and moderated the usual application of this sentencing factor by what I would describe as a 'moderate amount.'

Your sentence must manifest the community's denunciation of your conduct and impose just punishment. I must seek to deter you from future offending although this factor can probably be given less weight in light of your prior and subsequent conduct.

In the circumstances I have no option but to impose terms of imprisonment.[6]

7 In R v Swift,[7] Nettle JA (with whom Vincent JA and Habersberger AJA agreed) discussed the purpose and form of victim impact statements in the following terms:

The purpose of a victim impact statement is to give the victim of crime the opportunity to place before the court his or her own statement of the impact of the crime on him or her and his or her family and to ensure that the sentencing judge is informed of the victim's concerns. Moreover, since victims of crime are usually lay persons with little understanding of the rules of evidence, and who are likely to be emotional about the subject of their statements, it is to be expected that they may include inadmissible material. As Vincent JA observed in DPP v DJK:

'The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made.'

Hitherto, counsel appearing before sentencing judges have tended not to say a great deal about the admissibility of the contents of victim impact statements. In effect, they have left it to sentencing judges to work out which parts of a statement are admissible and may be relied upon. Such an approach is to some extent contrary to mainstream criminal practice, where the taking of objections tends to be punctilious. But it has considerable advantages, in the context of a plea, which are likely to appeal to both sides. It also accords with the observations of Charles JA in R v Dowlan and of Vincent JA in _DPP v D_JK that it would be destructive of the purpose of victim impact statements if their reception in evidence were surrounded and confined by the sorts of procedural rules which are applicable to the treatment of witness statements in commercial cases.[8]

8 During the course of the plea hearing, victim impact statements written by the appellant's estranged wife and his estranged parents-in-law were read aloud. It is common ground that, in addition to admissible material in those victim impact statements, they contained material that was inadmissible. A particularly contentious aspect of the victim impact statements, so far as the appellant is concerned, is that each of them quoted from and relied upon a 'Family Court report' that dealt with the prospects of the appellant reoffending.

9 In the course of the plea, the judge said that she would have regard to the statements to the extent that they were 'relevant and admissible' for the purpose of sentencing. In the case of the appellant's wife, her Honour early in the plea also identified the portions of the statement that she regarded as inadmissible and admissible. When the prosecutor in reply sought to rely upon a Family Court report that had been referred to in the statements, her Honour responded that while she had let in parts of the statements 'because that is another process' she was not interested in the opinions of others who have not been cross examined and had their opinions tested.

10 Counsel's obligations include taking objection to those parts of victim impact statements that are said to be inadmissible. A sentencing judge is entitled to assume that objection will be taken to irrelevant or inadmissible material. Counsel do not discharge their obligation by leaving it to the sentencing judge to make that determination. No objection was taken during the plea to the course taken by the judge in the present case. Specifically, no application was made by counsel for the appellant that her Honour 'rule as inadmissible the whole or any part of [any] of the victim impact statement[s]' as contemplated by s 8L(3) of the Sentencing Act 1991 ('the Act').

11 Notwithstanding the absence of objection, the appellant now submits that s 8Q(2) of the Act placed a mandatory obligation on the judge to ensure that only admissible parts of the victim impact statement were read aloud. In making this submission, the appellant relied upon this Court's decision in York (a Pseudonym) v The Queen.[9] Further, it was submitted by the appellant that because this obligation on the judge was mandatory, it could not be waived by counsel who appeared for the appellant on the plea. However, the characterisation of a requirement in a statute as either mandatory or directory says little about the consequences of any alleged non-compliance. As the High Court said in Project Blue Sky Inc v Australian Broadcasting Authority:

In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'.[10]

12 Notwithstanding the appellant's reliance upon York, we should say for the sake of completeness that that case provides little assistance to the appellant in the present case. This is because the victim impact statements relied upon by the sentencing judge in York, which were found to have infected the exercise of the sentencing discretion, contained nothing of relevance and, it was thus held, should not have been relied upon by the judge for any purpose.[11]

13 Accepting that s 8Q(2) of the Act imposed a mandatory obligation on the judge to ensure that only admissible parts of the victim impact statements were read aloud does not determine the result of this appeal. A failure to object to the material will ordinarily carry with it the consequence that it must then be shown on appeal that its introduction was productive of unfairness in that it wrongly infected the sentencing process. Nettle JA made these further observations in Swift:

Of course, it remains incumbent on counsel for a prisoner on a plea to take objection to those parts of material known to be before the judge which counsel wishes to have treated as inadmissible against the prisoner. Otherwise, as Murphy J said in R v Halden (in another but related context), if it does not appear that a sentencing judge has necessarily relied upon material to which objection might successfully have been taken, counsel cannot hope to succeed in a submission on appeal that the judge in fact relied upon inadmissible material.[12]

14 The reading out of inadmissible material, if that is what occurred, does not inform the question whether the impugned course materially affected the sentencing judge's approach to her task or the sentence that was imposed. While Swift was decided before s 8Q of the Act was enacted, it remains for an appellant who complains about the reading or reception of inadmissible material in a victim impact statement to establish that the judge in fact relied upon that inadmissible material; otherwise there can be no error in the sentence imposed.[13]

15 The appellant submitted that a close examination of the judge's reasons for sentence disclose that she did in fact rely upon inadmissible material in the victim impact statements. Particular reliance was placed by the appellant on two aspects of the judge's reasons. First, the judge said that the appellant's former wife 'continues to live in fear' and that was related to the appellant's conduct, and the fact that the appellant had 'expressed no remorse to her or her family until today'.[14] Secondly, the judge said that 'it is to be hoped for all three victims, that the conclusion of these proceedings, will assist all of them to achieve some closure, peace and security'.[15]

16 In our view, neither of these statements bears the inference for which the appellant contends, namely that the judge had regard to inadmissible material in the victim impact statements. Indeed, the judge's second statement directly responds to language used on the plea by counsel for the appellant when counsel said:

He's hoping that through the resolution of these matters and his plea today that there will be some finality for [the victims] and some closure and they may eventually find some way of forgiving him, if that can be expressed in that way.

17 More fundamentally, the judge was entitled to address the evidence as to the impact of the offending on the victims.

18 In Arthars v The Queen,[16] the very same arguments as are here raised were rejected. There the sentencing judge was said to have erred in sentencing on the basis that both the applicants had been involved in retributive abuse of the victims. The sentencing judge was not satisfied that their pleas of guilty amounted to any great expression of remorse as they were made very late in the piece and in the face of a strong prosecution case and where both applicants were involved in nasty retributive abuse of the victims. The statements are used in the present case in much the same way. In Arthars the victim impact statements were said to have been impermissibly relied upon to support the judge's sentencing remarks. Both statements had been tendered on the understanding that any inadmissible sections would not be taken into account. The inadmissible content was not explicitly identified. Their content was said to not comply with the terms of s 8L(1). The objections there pursued are largely the same as those raised in the present appeal. In Arthars the Court concluded that even if the sentencing judge had improperly relied upon inadmissible material it would not constitute a material error, as the material in question was treated as evidence bearing upon remorse which did no more than reinforce a conclusion that the sentencing judge would otherwise have reached on material admissible on the plea. The same form of reasoning is apposite to the present case. Even if the judge did take into account inadmissible material, which we doubt, there was ample admissible evidence and material introduced on the plea, including such parts of the victims statements as were admissible, that led inexorably to the conclusion that each of the victims were traumatised by the appellant's conduct which he belatedly acknowledged on the plea was driven by a desire for revenge and that they lived in continuing fear of the appellant, partly because he had shown them no sign of contrition or empathy.

19 In our view, the findings by the judge reflect the overwhelming probabilities with respect to the facts of the case.

20 The appellant having failed to establish that there was any error in the sentence imposed, the appeal must be dismissed. For the sake of completeness, we should say that even if error had been established, in our view, no different sentences, orders for cumulation, total effective sentence or non-parole period should, in any event, be imposed. In our view, the individual sentences, orders for cumulation, total effective sentence and non-parole period were all entirely appropriate in the circumstances.

[1] Luciano v The Queen [2015] VSCA 69 ('Leave Reasons').

[3] DPP v Luciano (Unreported, County Court of Victoria, Judge Hannan, 16 September 2014) ('Reasons') [2]-[12].

[7] [2007] VSCA 52; (2007) 15 VR 497 ('Swift').

[8] Swift [2007] VSCA 52; (2007) 15 VR 497, 498-99 [6]-[8] (citations omitted).

[9] [2014] VSCA 224 ('York'), [20].

[10] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 390 [93] (McHugh, Gummow, Kirby and Hayne JJ).

[11] York [2014] VSCA 224, [23]-[27].

[13] Cf s 281(1) of the Criminal Procedure Act 2009.

[16] (2013) 39 VR 613 ('Arthars').