McLean v The Queen [2018] VSCA 209

1 On 26 February 2017 the applicant and his ex-partner had an argument by text message which culminated in the applicant saying to her by text: 'Addie won't had no mother from today' and 'I'll have the last laugh I promise you that'. The reference to 'Addie' was to their six month old daughter.

2 At approximately 2:30 pm that same day the applicant sped into the driveway of his ex-partner's home and got out of his car holding two beer bottles. He smashed the window of the main bedroom and climbed through, cutting his arms and hands in the process. Once inside he damaged windows, the air conditioner and a television. While inside he was yelling: 'Where are you? Come out you bitch'. The ex-partner had secreted herself in the laundry with their baby where she managed to summon help using her mobile phone. Meanwhile, the applicant turned on all the gas stove hobs and then left. A neighbour came in and took the applicant's ex-partner to her house. The ex-partner's father then arrived with the applicant's mother. The ex-partner's father turned off the gas.

3 When police first attempted to arrest the applicant on 27 February 2017, he fled. On 28 February 2017 police located the applicant. He resisted their attempts to arrest him. They used capsicum spray to subdue him. He was then arrested and taken to a police station where he was interviewed. He was remanded in custody that day. Amongst other things, in the course of the interview the applicant maintained that he had turned the gas on with the intention of killing himself but that he had then 'remembered something' and left the house, forgetting to turn off the gas. He maintained that he did not remember damaging any property once inside and that when he had turned the gas on he did not think that his ex-partner and daughter were there.

4 The applicant was charged with aggravated burglary, in that he entered as a trespasser with intent to destroy property and was reckless as to whether or not a person was present; criminal damage, in that he damaged property once inside; and resisting an emergency worker on duty, in that he resisted the police who arrested him.

5 The applicant pleaded guilty and on 2 February 2018 he was sentenced by a County Court judge as follows:

Aggravated burglary [Crimes Act 1958 s 77(1)]

Criminal damage [Crimes Act 1958 s 197(1)]

Resisting an emergency worker on duty [Crimes Act 1958 s 31(1)(b)]

5 years' imprisonment with a non-parole period of 3 years 9 months

6 The applicant now seeks leave to appeal on the following ground:

The sentencing judge erred by imposing a non-parole period that is manifestly too long, in circumstances where:

(a) the non-parole period is 80 per cent of the total effective sentence imposed; and

(b) his Honour did not explain why it was necessary to impose such a relatively high non-parole period.

The applicant's personal circumstances and prior criminal history

7 The applicant was born in New Zealand. He moved to Australia with his mother and sister when he was 12 years old. The applicant is not an Australian citizen. By reason of the sentence imposed he is liable to be deported under the provisions of the Migration Act 1958 (Cth).

8 The applicant is now aged 30. He was 28 at the time of the offending.

9 According to the history the applicant gave to a clinical psychologist, Alison Mynard, whose report dated 14 January 2018 was tendered on the plea, the applicant was subjected to physical abuse, both as a victim and a witness, at the hands of his biological father from whom his mother separated when he was about 5 years old. The applicant had difficulty at school. He left school at the beginning of Year 11 and commenced a boilermaker's apprenticeship which he did not complete. From the age of 12 he was smoking cannabis and using speed. Soon after, he began using cocaine. He also used methampetamines. He developed a cocaine addiction. He has at times been abstinent but has then relapsed. Ms Mynard suggested that the offences appeared to coincide with a relapse back into substance abuse.

10 Ms Mynard tested the applicant's cognitive functioning which she found to be average overall but with areas of weakness. She expressed the opinion that the applicant's history was consistent with a diagnosis of ADHD which had not been picked up. Her diagnosis was generalised anxiety disorder, major depressive disorder, a provisional diagnosis of ADHD, and stimulant use disorder in remission whilst in custody. She observed that the applicant had poor communication skills and had not coped with stressful circumstances arising as a consequence of the birth of his daughter. She reported that the applicant had low insight into the impact of his offending. She expressed some tentative views as to improvement whilst in custody and said that with therapy she considered that he is likely to become more insightful.

11 The applicant has a number of prior convictions for intentionally destroying property and for assault. In November 2008, when he was 20, he was convicted of offences of making a threat to kill, assault police, threat to damage property, and intentionally destroy property, and placed on a 12 month community based order. In October 2015, when he was 27, he was convicted of unlawful assault, attempted criminal damage by fire, and criminal damage, and was fined. In August 2016, when he was 28, he was convicted and fined for offences of intentionally damage property and criminal damage. On 15 September 2016, five months prior to the offences the subject of this application, he was again convicted and fined for an offence of intentionally damaging property.

12 With what the sentencing judge described as 'considerable reluctance',[1] he ordered a community correction order assessment by Corrections Victoria. The applicant was found to be suitable. Corrections Victoria assessed him as being a high risk of re-offending.

13 In his sentencing reasons the sentencing judge set out the circumstances of the offending, the applicant's prior convictions and personal circumstances, the impact of the offending upon the victim, and the matters put in the course of the plea hearing, in greater detail than we have done. He dealt with all of those matters in a clear and comprehensive way.

14 The sentencing judge concluded his reasons as follows:

In my view, these actions deserve high condemnation and must attract severe punishment. Your prior convictions for previously damaging property only add to the conclusion that you are well used to expressing anger or venting your frustration through destructive means.

I am troubled by the fact that for the sentence I impose, you will face the prospect of cancellation of your permanent visa. It is indeed an extra punishment that you may be deprived of the opportunity to remain in Australia and thereby be deprived of the way of life you have known for so long, to be deprived of your family and access to your daughter. I will reduce the sentence, taking into account these factors and of course, taking into account your plea of guilty, but I will not contrive a sentence to bring the total that I impose under the 12 month period. To do so would be contrary to the proper application of sentencing principles.

Furthermore, I consider your prospects of rehabilitation to be only guarded. After nearly 12 months in custody, you were nevertheless assessed by Corrections as being a high risk of re-offending. In my view, there is nothing about your lifestyle leading up to your arrest, or about your time in custody, as outlined on the plea and in the report of Ms Mynard, to suggest that you have particular insight, or that you have truly started on the road to rehabilitation. I do not consider that at this time, you are an appropriate candidate for a community corrections order, notwithstanding the conclusion reached by the assessing officer that you are suitable for such an order. Accordingly, I have decided to fix terms of imprisonment on each of the three offences.[2]

15 The applicant submits that the non-parole period fixed, representing 80 per cent of the head sentence, invites scrutiny, given the absence of any reasons from the sentencing judge as to why such a high non-parole period was imposed. It is submitted that the non-parole period imposed, once scrutinised, reveals sentencing error, given that:

(a) With a total effective sentence of 2 years 6 months' imprisonment, a non-parole period of 2 years was the maximum non-parole period that the sentencing judge could lawfully impose under s 11(3) of the Sentencing Act 1991.

(b) The applicant had never before served a custodial sentence.

(c) The applicant had previously successfully completed a community based order.

(d) The applicant had undertaken rehabilitation courses whilst on remand.

(e) The applicant's time in custody was made harder by his separation from his daughter and by his genuine concern that he is liable to deportation upon his release.

(f) The applicant has family support.

(g) The applicant has a number of mental health issues, referred to by Ms Mynard, and his risk of re-offending would be lower if he were treated.

(h) The opportunities for rehabilitation in custody are limited.

16 On behalf of the respondent it is submitted that the relatively high non-parole period does not indicate the existence of error, it simply invites scrutiny. It is submitted that when this case is scrutinised the non-parole period is readily explicable by the circumstances of the offending, the need for specific and general deterrence, and the applicant's guarded prospects for rehabilitation. It is submitted that, whilst the sentencing judge had not specifically addressed the length of the non-parole period, he had given detailed and comprehensive reasons as to why he imposed the sentence which he did, including the non-parole period.

17 The respondent places particular reliance upon the sentencing judge's emphasis upon the prospect of deportation. It is submitted that this explains what the respondent characterises as an 'extraordinarily merciful' head sentence. The respondent submits that the non-parole period needs to be assessed in that context. It is submitted that the period of two years is the minimum period justice requires be served by the circumstances of the offending. Reliance was placed upon the fact that the sentencing judge's findings as to the relevance of the applicant's prior convictions, the seriousness of the offending, the need for both general and specific deterrence, the applicant's high level of culpability, his guarded prospects of rehabilitation, and his high risk of re-offending, are unchallenged.

18 There is no 'usual' non-parole period for an offence or category of offence.[3] Nor is there a 'mathematically calculated, relationship between the time to be served in custody and the head sentence'.[4] The fact that there is no 'usual' non-parole period does not mean that regard should not be had to the range of non-parole periods commonly or 'usually' imposed.[5] Employing such a range is a means of promoting consistency in sentencing.[6]

19 The 'range' of non-parole periods may be expressed in the form of a ratio which the non-parole period bears to the head sentence. In Kumova v The Queen Redlich and Osborn JJA observed: 'While there is in law no correct ratio, in the majority of cases the proportion is between 60% and 75%, but both longer and shorter periods are found'.[7]

For offences that do not attract the sort of sentences reserved for murder and other very serious crimes, non-parole periods between 60 and 66% and up to 75% of the head sentence are not regarded as uncommon. Where the ratio of the non-parole period to the head sentence exceeds these figures, the absence of an explanation may invite appellate scrutiny. Even then, the fact that the non-parole period exceeds 80% of the length of the head sentence does not inevitably lead to the conclusion that the sentencing judge made an error, because there is no set formula or fixed standard that applies to the fixing of a non-parole period.[8]

21 Given the nature of the offending, and the applicant's criminal history, the sentences imposed by the sentencing judge (leaving to one side the non-parole period) are not in any sense excessive, and the applicant does not suggest that they are. In our view, the sentences imposed are very modest. It seems to us that the explanation for that moderation is, in large part at least, the importance placed by the judge on the prospect of deportation.

22 Because a sentence of more than 2 years' imprisonment was imposed, the sentencing judge was required by s 11(1) of the Sentencing Act to fix a non-parole period unless he considered that the nature of the offence or the offender's past history made the fixing of a non-parole period inappropriate. Clearly, the judge did not determine that it was inappropriate to fix a non-parole period.

23 Pursuant to s 11(3) of the Sentencing Act the non-parole period fixed was required to be at least six months less than the term of the sentence. In that sense, the non-parole period fixed here was the 'maximum' period that could be fixed.

24 In fixing the non-parole period the judge was required to have regard to the purpose of parole, which is to provide for mitigation of punishment in favour of rehabilitation once the offender 'has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence'.[9]

25 The non-parole period fixed by the sentencing judge in this case was 80 per cent of the head sentence. In those circumstances it would have been prudent for the sentencing judge to refer to the fact that the non-parole period was a high proportion of the head sentence and to briefly state the reasons why. Having said that, in our view, the reason is readily apparent. The seriousness of the offending was such that justice required that a period of at least two years be served before the offender should become eligible for parole.

26 Further, in our opinion the high ratio between the head sentence and the non-parole period is explicable by the very modest sentences imposed (and cumulation ordered) for the offences, rather than any error in fixing the non-parole period.

27 The high ratio between the non-parole period and the head sentence was such that leave to appeal will be granted, but the appeal will be dismissed.

[1] DPP v McLean (Unreported, County Court of Victoria, Judge Lyon, 2 February 2018) [39] ('Reasons').

[3] DPP v Josefski [2005] VSCA 265; (2005) 13 VR 85, 94 [43] (Callaway JA, with whom Maxwell P agreed, in relation to the applicable principles, not the outcome) summarising the principles set out in R v VZ [1998] VSCA 32; (1998) 7 VR 693 by Callaway JA. See also Kumova v The Queen [2012] VSCA 212; (2012) 37 VR 538, 545 [26] (Redlich and Osborn JJA).

[4] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 533 [38] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[5] Kumova v The Queen [2012] VSCA 212; (2012) 37 VR 538, 547-8 [33]-[35] (Redlich and Osborn JJA).

[6] Kumova v The Queen [2012] VSCA 212; (2012) 37 VR 538, 541 [11] (Nettle JA), 546 [30] (Redlich and Osborn JJA).

[7] Kumova v The Queen [2012] VSCA 212; (2012) 37 VR 538, 545 [27]. See also Nettle JA at 541 [11].

[8] [2011] VSCA 45; (2011) 32 VR 486, 493 [25] (citations omitted).

[9] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 629 and see also R v Krasnov (1995) 125 FLR 120, 126-7.