Luciano v The Queen [2015] VSCA 69

Ms V Anscombe, Acting Solicitor for the Office of Public Prosecutions

1 Following pleas of guilty, the applicant was sentenced on 16 September 2014 by her Honour Judge Hannan in the County Court 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]

6AAA Statement: Pursuant to s 6AAA of the Sentencing Act 1991, but for the plea of guilty, the Learned Sentencing Judge declared that the applicant would have been sentenced to a term of imprisonment of 6 years 10 months imprisonment with a direction that the applicant served 4 years 10 months in prison before becoming eligible for parole.

Other relevant orders: Forfeiture Order pursuant to s 32 of the Confiscation Act 1997; Disposal Order pursuant to s 77 of the Confiscation Act 1997; Compensation Order pursuant to s 86 of the Sentencing Act 1991; Forensic Sample Order pursuant to s 464ZF(2) of the Crimes Act 1958.

2 The applicant now seeks leave to appeal against sentence on two grounds:

Ground 1 - The sentences imposed on the charges of common assault, recklessly cause injury, threat to kill and criminal damage by fire and the orders for cumulation:

(i) were manifestly excessive; and

(ii) outside the range of sentences reasonably open in the circumstances of the offence and the offender;

(iii) resulted in a total effective sentence and non-parole period that were manifestly excessive.

Ground 2 - 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.

3 The circumstances of the offending were as follows. The victim with respect to charges 1 to 3 was the applicant'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 applicant's wife was lying on a bed in their home holding their infant daughter. The applicant entered and then sought to take the baby from her mother. The applicant 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 applicant to stop. The act of lunging constituted the basis of the charge of common assault.

4 The confrontation giving rise to this first charge continued. The applicant'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 applicant said 'not good enough'. At some stage the wife put her foot out to stop the applicant lunging towards her and to protect the child. The applicant then struck her legs with his fist causing bruises. It is this conduct which founded charge 2 - recklessly causing injury.

5 Soon after this incident, the couple separated. On 29 May 2011, the applicant's wife moved to live with her parents in Mount Macedon. Following separation, there was ongoing animosity expressed by the applicant to his wife and in early June when the wife drove off in the family car the applicant 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.

6 Later that day, the applicant 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.'

7 On 6 October 2011, the applicant's wife and daughter were at 'sleep school' and her parents were overseas. At about 7:52 that night, the applicant 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.

8 The applicant suffered significant burns as a result of the fire.

9 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 applicant's parents-in-law and their family.

10 The sentencing judge characterised the seriousness of the offending as follows:

1. Your offending is on any view serious. In relation to the first three charges you attacked your partner in her home and while she was holding her newborn baby (as regards Charges 1 and 2) and you made a threat to kill someone with whom you purportedly were in a relationship and in circumstances where she was the mother of your newborn child (Charge 3). You showed no regard for her welfare or your daughter's welfare. She was entitled to feel safe in her own home and you seriously compromised that right on an ongoing basis. That being said, these offences are nevertheless towards the lower end of the range of offences of these types.
2. As regards Charge 4, that charge is serious in many respects. This was pre-planned and in my view vengeful conduct. It was your intention to place your estranged wife and her family in fear. The damage caused was extensive and in the aftermath you showed absolutely no remorse. This is in my view a serious example of the offence of arson.
3. A number of victim impact statements were tendered upon the plea. Exhibit D is a victim impact statement from Kate Luciano, the victim of Charges 1-3. Your actions have pervaded every part of her life and through her the life of your daughter. She continues to live in fear, which is understandable given your conduct and the fact that you had expressed no remorse to her or her family until today.
4. Exhibit B is a victim impact statement and a supplementary victim impact statement from Valmont Pollard. Exhibit C is a victim impact statement from Ruth Pollard. They are the victims of Charge 4. Both statements were read aloud in court this morning and I have had regard to their contents to the extent that they are relevant and admissible for my purposes in sentencing you. What is contained therein is, in my view, a frank and telling account of the devastation that your offending has caused. The victims endured not only financial loss but ongoing emotional turmoil. 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.[1]

11 Her Honour acknowledged a series of matters relevant to mitigation of sentence:

(a) the applicant had no prior convictions;[2]

(b) the applicant was otherwise of good character,[3] and had a good work record;[4]

(c) some moderation of sentence was called for because of the negative consequences of the burns suffered by him as a result of the arson;[5]

(d) notwithstanding conflicting accounts on the evidence, some reduction of moral culpability and of suitability for general deterrence should be recognised because of ingestion of ice in circumstances where there was no previous history to indicate foresight of its disinhibiting effect;[6]

(e) the applicant had family support;[7]

(f) there was some evidence of expressions of remorse;[8]

(g) the applicant had received extensive counselling and there were positive prospects of rehabilitation;[9]

(h) the plea of guilty entered on the date the trial was listed (nearly three years after the offending) had a utilitarian benefit;[10]

(i) experience of prison will be more harsh given the applicant's inability to assist in his invalid mother's care and/or have any contact with his infant daughter.[11]

12 Notwithstanding the matters urged on his behalf and acknowledged by the sentencing judge, I am not persuaded that it is reasonably arguable any of the sentences were manifestly excessive, or that the total effective sentence was manifestly excessive, or that the non-parole period fixed was manifestly excessive. The offending raised significant issues of general and specific deterrence and the need for denunciation and punishment.[12] In my view, the sentences imposed were squarely within the appropriate range.

13 The second matter raised on behalf of the applicant is, however, more difficult to dispose of. Three victim impact statements were tendered on the plea and the sentencing judge granted application made by the authors to read the statements aloud. The applicant submits that by permitting each victim to read certain parts of the statements the judge's sentencing discretion miscarried because:

(a) the judge failed in accordance with s 8Q(2) of the Sentencing Act 1991 to ensure only relevant and admissible aspects were read aloud; and

(b) inadmissible aspects of the victim impact statements infected the sentencing discretion.

14 The Crown acknowledges that the obligation to confine victim impact statements under s 8Q(2) is 'mandatory'.[13] It also concedes that each of the victim impact statements included inadmissible matters which were read out as part of the sentencing hearing.

15 A particularly contentious aspect of the victim impact statements is that each of them and in particular that of the applicant's former wife, quoted from and relied upon a 'Family Court report'. This report dealt in part with the prospects of the applicant reoffending.

16 The Crown points to the fact that during the course of the hearing the sentencing judge indicated she would not have regard to this material because it comprised untested opinion, despite the fact that she had received it as part of the victim impact statements.[14] More significantly, perhaps, I doubt that it could ultimately be concluded that the procedural irregularity which occurred resulted in a miscarriage of the exercise of discretion by reason of the judge's consideration of irrelevant material for the following reasons:

(a) the sentencing judge required partial redaction of the wife's victim impact statement insofar as it set out 'belief in relation to the history of offending';

(b) there was no objection by the applicant's counsel to the course followed during the sentencing hearing, despite the fact s 8N of the Sentencing Act 1991 facilitates such objection where appropriate;

(c) the sentencing judge stated that she would take the victim impact statements into account only insofar as they were relevant and admissible for sentencing purposes;

(d) there is nothing in her Honour's sentencing reasons which indicates that the exercise of her discretion was improperly infected by irrelevant matters;

(e) the sentences ultimately imposed by her Honour do not provide a basis for inference that she had regard to irrelevant considerations.

(f) Insofar as the issue of the prospect of re-offending specifically is concerned, her Honour in fact held that the applicant had positive prospects of rehabilitation.

17 Particular reliance was placed in submission by the applicant on two aspects of the sentencing reasons. First, the sentencing judge found that the applicant's former wife 'continues to live in fear' and that was related to the applicant's conduct, and the fact that the applicant had 'expressed no remorse to her or her family until today'.[15] Secondly, the finding by the sentencing judge 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.'[16]

18 Neither of these statements bears the inference for which the applicant contends, namely that the sentencing judge had regard to irrelevant considerations. Indeed, the second statement directly responds to language used on the plea by counsel for the applicant.

19 More fundamentally, her Honour was entitled to address the evidence as to the impact of the offending upon the victims.[17] Nothing said by her reflects other than the overwhelming probabilities with respect to the facts in this connection.

20 Furthermore, the characterisation of relevant procedural provision as mandatory is not resolutive of its significance for present purposes.[18]

21 Nevertheless, as counsel for the applicant submits, it remains reasonably arguable that the sentencing hearing sufficiently miscarried so as to involve an error in the sentence first imposed.[19] Moreover, despite my conclusion as to manifest excess, it cannot be said that there is no reasonable prospect that lesser sentences would not be imposed if the Court of Appeal regarded the sentencing judge's decisions as vitiated by error.[20]

22 In the circumstances, I would grant leave to appeal on proposed ground 2.

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

[12] DPP v Derby [2007] VSCA 92.

[13] York (a pseudonym) v R [2014] VSCA 224 [20].

[17] Sentencing Act 1991, s 5(2AC)(daa), s 8L(1).

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

[19] Criminal Procedure Act 2009, s 281(1)(a).

[20] Ibid s 280(1).