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[2021] VSCA 207
General information, not legal advice.
Court of Appeal (Vic)
2021-07-29
Niall JA, Priest JA
Original judgment source is linked above.
[2019] VCC 1926 (Judge Brookes)
CRIMINAL LAW - Appeal - Sentence - One charge of persistent contravention of a family violence safety notice (12 months) - One charge of aggravated burglary (5 years) - One charge of intentionally causing injury (2 years) - One charge of making threat to kill (3 years) - One charge of damage property (6 months) - One charge of making threat to inflict serious injury (9 months) - Whether total effective sentence of nine years and one month's imprisonment manifestly excessive - Whether directions for cumulation manifestly excessive - Applicability of to be determined by sentencing judges - Appeal allowed - Appellant resentenced - ; applied.
1 I agree with the orders proposed by Niall JA, and with his reasons for them.
2 This appeal, brought by leave, seeks to challenge a sentence imposed by a judge of the County Court following a plea of guilty. In giving leave to appeal, Priest JA set out the details of the offending and the reasons of the sentencing judge ('leave reasons'). The following is drawn from those reasons.
3 On 15 August 2019, the appellant, now aged 35 years,[1] pleaded guilty in the County Court to: persistent contravention of Family Violence Safety Notice[2] ('FVSN') (charge 1); aggravated burglary[3] (charge 2); intentionally causing injury[4] (charge 3); making a threat to kill[5] (charge 4, a 'rolled-up' charge); damaging property[6] (charge 6); making a threat to inflict serious injury[7] (charge 6); and one related summary charge of unlawful assault.[8]
4 Following a plea, on 21 November 2019, the judge sentenced the appellant to a total effective sentence of nine years and one month's imprisonment with a non-parole period of six years and four months, in accordance with the following table:
Persistent contravention of a Family Violence Safety Notice
12 years' imprisonment with a non-parole period of 8 years
On charge 4 sentenced as a serious violent offender, pursuant to pt 2A of the Sentencing Act 1991
5 The appellant relies on two grounds formulated as follows:
1. The orders for cumulation breached the principle of totality and produced a total effective sentence that was manifestly excessive.
2. The learned sentencing judge was wrong not to find that:
(a) The Appellant's anti-social personality disorder and clinical depression meant his sentence of imprisonment would weigh more heavily on him compared to a person in normal health; and
(b) Imprisonment would have a significant adverse effect on the Appellant's mental health.
6 On the plea, the Summary of the Prosecution Opening was treated as an agreed statement of the facts.[9] It described the appellant's offending in the following terms:
7 As a result of the assault upon her, the complainant received a broken nose - which required ongoing treatment and specialist follow-up due to complications with her sinuses - together with a two centimetre laceration between her eyes; two black eyes; and a large number of bruises to her face and body.
8 In his reasons for sentence, the judge described the appellant's offending as 'certainly very serious, inappropriate and beyond the pale'. The complainant suffered 'a vicious assault and a series of vitriolic and threatening text messages over a number of days'. It was 'perhaps more by good luck or good fortune' that on charge 3 the complainant's injuries were not serious. For the purposes of charge 4, the judge said that the text messages and face to face threats were 'chilling' and 'well and truly beyond the pale, being a very serious example of a threat to kill offence'. The judge noted that the persistent and sinister nature of the text messages to the complainant could 'only have left the complainant terrified and in real fear for her safety of her family, the future of her children and her own personal safety'. He also described the offending informing charge 2 as 'confrontational' and a serious example of the offence of aggravated burglary. The appellant had engaged in persistent course of conduct breaking into the house, having tried various doors and searched the house for the complainant.
9 The judge noted that the appellant has 'a significant criminal record for a man [his] age'. He observed that 'peppered throughout [the appellant's] record, are sentences for like offences, including eight breaches of family violence orders, three charges of make threat to kill, two charges of aggravated burglary and four charges of intentionally causing injury'.
10 In her victim impact statement, the judge noted, the complainant said that her children have suffered emotionally and psychologically, and she now suffers from Post-traumatic Stress Disorder, severe anxiety and depression. She also suffered physical trauma and 'a scar on her forehead which reminds her of what [the appellant] did when she sees it'. Her self-esteem, confidence and trust in others has been affected. The judge also considered the contents of several other victim impact statements from KR, SR, SB and CB.
11 As to the relevance of the fact that the appellant is Aboriginal, the judge said (without any further elaboration):[10]
Your counsel submitted that you identify as an Aboriginal and the court must take that into account in this sentencing exercise. I have considered the Court of Appeal decision of Fuller-Cust [2002] VSCA 168; (2002) 6 VR 496. Further, I have considered the decision of the High Court in the case of Bugmy v The Queen [(2013) [2013] HCA 37; 249 CLR 571] in relation to this point and have taken your Aboriginality into the proper consideration of your antecedents.
12 The judge had regard to three psychological reports, including from consultant psychologist, Gina Cidoni, dated 24 May 2019; an addendum to that report, dated 24 July 2019; and a report by Warren Simmons, psychologist, dated 17 October 2017. A number of reports from Bendigo Health were also tendered. Among other things, Ms Cidoni's assessment of the appellant's personality revealed anti-social traits, depression, anxiety, mild psychosis and paranoid ideation that is most likely drug induced, and a primary diagnosis of Substance Use Disorder with Stimulant Intoxication (in enforced remission), Anti-Social Personality Disorder, and Clinical Depression.
13 The judge recognised that in light of the appellant's criminal history, specific deterrence 'looms large'. Whilst the appellant had received non-custodial dispositions in the past, he had repeatedly breached them. Moreover, there had been an escalation of offending as the appellant 'sunk further into [his] use of illicit drugs'. General deterrence, denunciation and community protection also required recognition.
14 As to the appellant's prospects for rehabilitation, the judge remarked:
In assessing your prospects of rehabilitation, it is relevant to consider two matters contained in Ms Cidoni's first report. With respect to your results from the psychiatric diagnostic screening test she writes:
'He endorsed antisocial behaviours such as a likeliness to engage in delinquent acts as well as reflecting a history of excessive use of drugs. Immaturity was reflected and he tends to blame others rather than look inwards. He has impulsive tendencies, a level of hyperactivity and has difficulty planning ahead, or considering the consequences of his actions. He has poor judgement that results in risk-taking behaviour.'
Concerningly, in relation to the violence risk appraisal guide used to predict future violence, you were assigned to the high-risk category with Ms Cidoni writing later in her report:
'He is at high risk of violent reoffending, according to the actuarial scale that produces a static result that is unchanging. His dynamic risk will improve with continued abstinence from substance abuse and the seeking of specialised treatment.'
It is clear that there are significant underlying issues that you will need to address both in custody and upon your release. However, at present in light of what can only be considered a relevant and poor criminal record, the lack of insight that has been identified by Ms Cidoni and your concerning high risk of reoffending, the Court must find that you have considerably limited prospects of rehabilitation at present. With such prospects of rehabilitation it is clear that community protection also must loom large in the court's sentencing discretion of this matter.
16 On charge 4, the judge observed, the appellant was to be sentenced as a serious violent offender, so that 'the court must regard the protection of the community as the principal purpose for which the sentence is imposed' on that charge. The judge said that the 'court may also, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence, considered in the light of the objective circumstances of the offence' (albeit the judge did not say whether or not he intended to impose a disproportionate sentence on that charge).
17 Finally, the judge referred to Hogarth[13] 'in relation to confrontational aggravated burglaries'; and observed that current sentencing practices were only one of the factors he must consider in exercising his sentencing discretion.
19 Counsel for the appellant submitted that whilst the sentencing judge stated that he gave 'considerable weight' to the personal circumstances of the appellant,[14] that was not 'reflected in the orders'. It was submitted that the evidence revealed the appellant's difficult upbringing; being beaten by his stepfather daily; his exposure to drugs and alcohol at a young age; his sexual assault at age 16 and subsequent increase in drug and alcohol intake; and his six suicide attempts resulting in hospitalisations.
20 Ms Cidoni diagnosed the appellant with Substance Use Disorder with Stimulant Intoxication, Anti-Social Personality Disorder, and Clinical Depression. With these mental health conditions, Ms Cidoni said, the appellant's prison experience 'was weighing more heavily upon him' and he 'was not receiving mental health support and his coping was poor in custody', further placing the appellant at 'an increased risk of emotional and behavioural deterioration whilst in custody.' Ms Cidoni also concluded that 'Verdins may apply in this case in that his mental health impairment is severe and has reduced his moral culpability'. Counsel submitted that notwithstanding any concessions made on the plea, these factors should have enlivened Verdins limbs five and six, and attracted a lesser sentence.
21 In the respondent's written case, the respondent relied on Sharbell v The Queen,[15] to submit that it is the responsibility of defence counsel on the plea to spell out the applicability of the Verdins principles. In this case, counsel did not spell out how Ms Cidoni's opinion operated to enliven Verdins principles five and six, and therefore it was open to the sentencing judge to find that Verdins had no application.
22 In oral argument, the respondent accepted that Verdins had not been applied by the sentencing judge on an erroneous basis, however, it was submitted that even if Verdins principles had been applied, the overall sentence would not have been different. It also submitted that Ms Cidoni's reports were referred to in detail, and their contents given significant weight in sentencing. The cumulation imposed reflected the seriousness of the offending and the need for community protection.
23 The respondent emphasised that the threat to kill in charge 4 was a rolled up charge that comprised a significant number of texts which contained explicit and grave threats. In the context of family violence and given the operation of s 6E of the Sentencing Act 1991, substantial cumulation was required.
24 In order to address ground 2, it is necessary to refer to the expert evidence tendered on the plea and the submissions that were made in respect of it.
25 On the plea, the appellant relied on the following reports:
(a) Report of Warren Simmons, psychologist, dated 17 October 2017;
(b) Report of Gina Cidoni, psychologist, dated 24 May 2019;
(c) Addendum Report of Ms Cidoni dated 24 July 2019; and
(d) A number of reports from Bendigo Health.
26 Mr Simmons' report, which was first given in respect of earlier offending, records a history of childhood neglect and abuse at the hands of the appellant's mother's partner. A diagnosis of Attention Deficit Hyperactivity Disorder was made at an early age for which the appellant was medicated. The report records a number of hospital admissions for psychiatric illness, a pattern of depressive illness, and a number of suicide attempts. The report also records a long history of polysubstance abuse involving cannabis, alcohol and methamphetamine.
27 In her first report, Ms Cidoni recorded that, on testing, the appellant's cognitive function was in the borderline range and that he demonstrated antisocial traits, depression, anxiety, mild psychosis and paranoid ideation that is most likely drug induced. Ms Cidoni also recorded a history of childhood abuse and neglect, and noted the appellant reported to her an incident in which he was the victim of sexual abuse at the hands of an older male. Ms Cidoni concluded:
The primary diagnosis is Substance Use Disorder with Stimulant Intoxication (Diagnostic and Statistical Manual of Mental Disorders 5) occurring at the time of offending and now in enforced remission. It is suspected his drug use and associated negative experiences then impacted upon his mental health resulting in the disturbance in evidence today. His symptoms included increased autonomic activity, perceptual disturbances and behavioural and psychological changes (psychosis, agitation, affective blunting and impaired judgment). There was no control over use and continuation of use, despite problems arising in his life.
In this state, his judgment and clear thinking was severely compromised. He acted in a disinhibited way and he lost all sight of right and wrong due to being intoxicated all day, every day. This condition affected his capacity to control his behaviour.
He struggles to understand the impact of substance abuse on his decision making and behaviour and he remains vulnerable to relapse in the absence of coping mechanisms.
He meets the diagnostic criteria for ASPD and he presents as clinically depressed. Note was made of adjustment disorder that relates to specific stressors occurring in his life and producing intense responses. This included his daughter being removed from his care and his relationship breakdown and subsequent restriction of time with his son. This in turn can result in disturbance of conduct.
He is at high risk of violent reoffending according to the actuarial scale that produces a static result that is unchanging. His dynamic risk will improve with continued abstinence from substance abuse and the seeking of specialised treatment.
28 In an addendum report Ms Cidoni said:[16]
As indicated in the first report Darren Newton presented with a disturbed psychological presentation with Substance/Stimulant Use disorder, Antisocial Personality Disorder (ASPD) and Depression. ASPD usually develops from environmental factors such as child abuse or other trauma exposure that existed in Mr Newton's case. When faced with stressors in childhood the development of empathy and distinction between right and wrong is compromised. Personal experiences of emotional pain can decrease compassion and empathy where the emotional/psychological pain can be so overwhelming that the focus is on self-preservation, which often the case in victims of child abuse and neglect. Likewise, the development of insight and self-understanding is inhibited.
From childhood, he had diagnoses of ADHD; later he was diagnosed with adjustment disorder in response to his relationship breakdown and ASPD that is an enduring problem. Left untreated, these conditions resulted in depression. Substance abuse began from his teenage years no doubt as a form of escape and self-medication but it also hindered his moral development, insight and coping skills.
With regard to his moral culpability at the time of the offences, the Court of Appeal decision in R v Verdins, Buckley and Vo [2007] VSCA 102; [2007] 16 VR 269; (2007) 169 A Crim R 581 may apply in this case in that his mental health impairment is severe and has reduced his moral culpability in that it would have the effect of impairing his ability to exercise appropriate judgement and to make calm and rational choices (to think clearly), and make him disinhibited. It was inferred he has been in his current mental state for some time, where he has had no treatment.
It is felt as a result of his untreated condition, his prison experience is weighing more heavily upon him. He isn't receiving mental health support and his coping is very poor. Further, this places him at an increased risk of emotional and behavioural deterioration.
29 The appellant's legal practitioner made very little of this material. He said:
Just in relation to Verdins, Your Honour, that the report says, 'May apply', so that I'm not proposing to put it before the court at any higher, at any higher level than that. There's no material that I can present to the court which should say, which says that it should apply but it is something that I would ask Your Honour to take into account. Obviously there are - he's had a very difficult upbringing and that there are people throughout society who have similar upbringings and there are people who have similar upbringings and they have the ability to make the most of their life and they get on with their life and they don't appear before a court at all.
30 That brief, and unhelpful, submission was addressed by the judge as follows:
It was submitted that as the report stated that Verdins 'may apply', your Counsel pointed to the court that he did not put it before the Court at any higher level than that. Further, as there was no material which could be presented to the court that says it should apply, it is only a factor that the court should take into account and I agree. Whilst the court does not find that Verdins principles are directly applicable on the material before it, I have taken into account your circumstances as set out in the opinion of Ms Cidoni, outlined above in my instinctive synthesis and given it considerable weight.[17]
31 In my view, the material filed on the plea raised the question, whether by reason of his impaired mental functioning[18] and his deprived and violent upbringing,[19] the appellant's moral culpability for the offending was reduced.[20] It also raised the question, whether by reason of his compromised mental state, incarceration would be more onerous than compared with a person who did not share that impairment.[21]
32 To use the abbreviations often employed, the material raised the potential application of Verdins principles numbers one, five and six, and the considerations discussed by the High Court in Bugmy v The Queen.[22]
33 It is also appears that the judge did not treat the material in that way. Although not entirely clear, I take the judge's statement that, the Verdins principles 'are not directly applicable', as conveying that he would not treat the expert evidence as providing a basis for reducing the appellant's moral culpability for the offending. Likewise, there is no mention of how the appellant's psychological condition might render his incarceration more onerous or impactful in the way captured by Verdins principles five and six. It must be acknowledged that the judge's further observation, that he would give the material 'considerable weight' shows that the judge did not ignore the material. However, once Verdins was discarded as a frame of reference, it is not possible to discern how the material featured in the sentencing outcome. In saying that, of course I do not suggest that the judge should have attributed a weighting or numerical figure to the evidence.
34 The critical question underpinning ground 2 is therefore, whether, having regard to how the plea was presented, the judge's reasoning and his treatment of Verdins, evidences vitiating error.
35 In a series of cases, this Court has made it plain that where Verdins is to be relied on, it must be based on evidence that is clearly identified, and the sentencing judge should be addressed on how the material supports the application of the principles.[23] Equally, it is plain, that where Verdins is not raised in a proper or adequate way on the plea, this Court will not lightly entertain an argument that the judge failed to have regard to, or properly applied, the Verdins principles.[24]
36 In O'Connor v The Queen,[25] the appellant relied on a psychologist report on a plea to charges of aggravated burglary and recklessly cause serious injury. Weinberg JA described the report as, in part, tendentious and repetitious.[26] The author of the report expressed his opinion that the appellant 'fell within a number of the criteria set out in R v Verdins' and that the appellant's offending 'was casually [sic] linked to his various personality difficulties.'[27] Notwithstanding the report, counsel who had appeared for the appellant on the plea, had specifically eschewed any reliance on the report to engage Verdins. Counsel did, however, submit that the appellant's moral culpability should be treated as having been reduced by virtue of his various disorders and that he would find imprisonment more burdensome. The sentencing judge had said that the expert had gone 'far beyond his charter' in expressing his opinion that Verdins applied, but went on to say that the appellant's culpability was reduced 'by virtue of your past personal history and background.'[28]
37 An application for leave to appeal was brought in this Court on the ground that the judge failed to apply Verdins. The application for leave was refused. In the principal judgment of the Court, Weinberg JA said:
I do not think that this Court should lightly entertain an appeal conducted on a basis that is completely inconsistent with the way in which the case was conducted below. This case is certainly not one of those rare instances where it can be shown that there was 'compelling material available on the plea that was not used or understood which demonstrates that there has been a miscarriage of justice'.[29]
38 Maxwell P agreed with Weinberg JA. The President said that whether there was a factual basis for the application of Verdins depended on expert evidence, but '[w]hether one more of those considerations applies is, however, a matter for the court. It is no concern of the expert witness'.[30]
39 In Sharbell,[31] an expert report stated that the accused was a significant suicide risk in prison because he suffered from Post-traumatic Stress Disorder. Counsel on the plea had made only the barest mention of Verdins principles five and six. The sentencing judge referred briefly to that issue in his reasons for sentence. This Court held that there was no error in failing to deal with the issue in any greater detail. Addressing the obligation to bring the issue to the fore, the Court said:
As this Court has emphasised, where expert evidence is to be relied on in support of a submission that one or more of the sentencing principles identified in Verdins is engaged, it is the responsibility of defence counsel on the plea to be specific about the evidence relied on and to identify the way(s) in which it is said to make those sentencing principles relevant. This Court will not entertain on appeal arguments which could have been, but were not, put on the plea.[32]
..... The principles in Verdins are very well known and this Court has said repeatedly that it is for defence counsel on the plea to spell out, for the assistance of the judge, precisely how it is said that the expert evidence should persuade the judge to view one or other of those considerations as applicable. Counsel will not be permitted to advance new or different arguments on appeal.[33]
41 The potential application of Verdins was raised by Ms Cidoni in her two reports. In her second report, she said that the principles 'may apply' and she explained why that was so. In particular, she referred to the impact that the appellant's impairment may have had on his ability to exercise judgment, make clear and rational choices, and make him disinhibited. That opinion was entirely within the parameters of her professional expertise. The reports disclose a factual basis for the opinion. Her opinion as to the potential impact of his mental health impairment, which she said was severe, on his prison experience, fell into the same category. It was an expert and admissible opinion on a matter relevant to sentence.
42 Of course, as Maxwell P explained in O'Connor,[34] whether the evidence and opinions of Ms Cidoni supported the application of Verdins principles and were to be reflected in the sentence, was a matter for the judge. It was not for a witness to 'apply' Verdins. It might be thought that M_s_ Cidoni's opinion, that the appellant's moral culpability for his offending might be reduced by reason of his mental state, extended beyond the legitimate scope of her professional opinion, but that observation apart, the report was within her expertise, was relevant to sentence and its inclusion did not undermine the report.
43 Given the state of the evidence, the appellant's submission on the plea on Verdins was fundamentally flawed. It seems plain from what he said that the appellant's legal adviser did not rely on Verdins because he did not have a report that said it applied, but only one that said it 'may' apply. The premise of the submission was that it was necessary to have evidence that says that Verdins applies in order to rely on it. That reveals an important misconception. It was a misconception that the judge acted on when he said that there was no material 'which could be presented to the court that says that [Verdins] should apply'.[35]
44 Informed by the erroneous submission, the judge was led into error in thinking that for Verdins to apply, there must be evidence that says it 'applies'. To reiterate, whether any of the Verdins principles applied to mitigate sentence was a matter for the judge to determine on the basis of the evidence. I am persuaded that the judge failed to find that Verdins was engaged because he considered that he was precluded from so finding due to the equivocal conclusion of Ms Cidoni and not because the evidence relating to impairment was itself inadequate. That was an error: the relevant facts and conclusions contained in the reports were not equivocal and their significance was a matter for the judge. The qualified language used by Ms Cidoni in relation to the application of Verdins reflected the demarcation between her evidence and the role of the judge. Flagging the potential operation of Verdins was not to trespass impermissibly on questions that were for the judge alone to determine.
45 This is a case where the material tendered on the plea was misunderstood, and is therefore unlike O'Connor and Sharbell. Although the misunderstanding arose from the submissions that were made on behalf of the appellant, it would be unfair to hold the appellant to the way the plea was conducted. The plea was very short, gave little assistance to the judge and was, in this important respect, inaccurate.
46 The error is a specific error which vitiates the sentence. I am also persuaded that a different sentence should be imposed.
47 Leave to appeal should be granted on ground 2, the appeal allowed and the appellant resentenced.
48 Given my conclusion, it is not necessary to consider ground 1, however, as will appear, it is useful to refer to the parties' submissions on ground 1 as they relate to the gravity of the offending, the need for community protection and cumulation.
49 The task confronting the sentencing judge was by no means an easy one. This was serious offending, committed by a person who has a poor criminal record and very poor prospects of rehabilitation.
50 There were six charges on the indictment, four of which were committed on 1 May 2018 at the home of the complainant's sister within a temporally confined, but no doubt terrifying, encounter.[36]
51 The offending on 1 May included the appellant ripping a flyscreen from a window and climbing through it into the house. There were three adults and two infants in the house at the time. When he arrived at the property, he ran to the back door and began violently kicking the rear door in order to obtain entry. He then ran to the front door and assaulted one of the occupants, the complainant's sister, KR, who was by then standing in the front yard. He ran at her and pushed her to the ground causing grazing. She was able to retreat into the house when the appellant returned to the rear of the house.
52 The occupants had good reason to be afraid of the appellant and his forced entry into the home must have been terrifying. He had earlier sent threatening texts to the complainant and KR, and the complainant had obtained a FVSN in order to protect herself. The judge correctly described the texts as 'vitriolic and threatening', and the appellant's forced entry in that context would have added to the terror.
53 The home of the complainant's sister should have afforded physical protection from the appellant and been a place where the complainant and her extended family felt safe. The violent intrusion by the appellant would have shattered those feelings of security and it constituted a grave invasion.
54 Once in the house, the appellant damaged property and told the complainant's sister in law that he would cut off the complainant's head, while holding two knives.
55 Having disposed of the knives, the appellant came upon the complainant and viciously assaulted her. The assault involved punching her around eight times to the head, placing both of his hands around her neck to choke her, and repeatedly smashing her head into the floor. The complainant was then thrown into the back of a cupboard.
56 The assault broke the complainant's nose, caused a facial laceration and black eyes. Counsel for the respondent submitted that the assault was a sustained attack upon the primary victim which included punching, choking, smashing her head into the floor and lifting her by her neck before throwing her against a wall with such force that her head went through the plaster. Although the injuries could have been far worse, they were by no means insignificant.
57 As he left the house he told the complainant's sister in law, 'we are going to get our guns and coming back'.
58 All of the offending at the house on 1 May occurred in a context where the complainant had sought the protection of a FVSN, was in the safety of her sister's home and was entirely unprovoked. The aggravated burglary, which entailed forcibly entering the house with intent to assault one or more of the occupants, was a serious example of the offence. The cowardly attack that followed was also reprehensible.
59 The other offences caught by charges 1 and 4 also involved significant offending. The persistent breach of the FVSN extended over a number of days and comprised vitriolic and threatening texts. The threat to kill, which consisted charge 4, would have been extremely unsettling and instilled fear in the complainant. I agree with the judge that the threatening text messages were 'persistent and sinister' in nature and 'in such graphic terms [that] can only have left the complainant terrified'.[37]
60 An assessment of the appellant's moral culpability for the offending is not straightforward. The offending arose in the context of a failed family relationship and long standing antagonism. The appellant was the aggressor and his appalling conduct escalated over a number of days, giving him an opportunity to desist which he failed to take.
61 On the other hand, the psychological evidence and his blighted upbringing combined to significantly impair the appellant's ability to regulate his own behaviour. That impairment arose through no fault of his own. According to Ms Cidoni, his condition and lack of treatment, has compromised the development of empathy and the distinction between right and wrong. These factors, and the other matters identified by Ms Cidoni, served to reduce his culpability for the offending and provide some context for what was, taken as a whole, an escalating violent rampage against his former partner and her family.
62 Although these matters call for some moderation, they cannot be taken too far and, at the same time, they highlight the need for community protection. As the High Court explained in Bugmy v The Queen:
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[38]
63 In the circumstances, protection of the community, and of the complainant must feature prominently in the sentencing process. Self-evidently, neither the making of a FVSN, nor the physical boundary of the home, protected the complainant and her family from the intrusion, physical assaults, and threats.
64 In cases such as this, it is important for a sentencing court to give proper weight to general deterrence. Given the appellant's very poor criminal record, specific deterrence is also a matter that requires close attention. The material does not suggest that the appellant's mental health is such that either general or specific deterrence should be downplayed to any significant degree.
65 In accordance with the settled and orthodox approach, it is necessary to arrive at the appropriate sentence for each charge. Taken in isolation, and with the possible exception of the sentence on charge 4, the sentences imposed on each of the charges by the judge were not particularly remarkable. However, it is important to recognise that there are a number of matters that overlap. That is relevant for two reasons. First, it is important to be mindful of the risk of double punishment, where the same conduct is relevant to the gravity of more than one offence. Second, having arrived at the appropriate sentence for each charge, it is important to stand back and ensure that the total effective sentence and the non-parole period reflects the overall criminality. These matters call for a greater degree of moderation on charges 2 and 4 than the judge was willing to give.
66 The question of cumulation occupied some time in oral argument and is difficult. Addressing charge 4, the appellant submitted:
• the prosecution did not call for a disproportionate sentence with respect to charge 4;
• charge 4 represented offending spanning only seven days (including on 1 May which is when the majority of the other offending occurred);
• the offending was via text messages and not in person;
• it is impossible to tell how many threats were made given the indictment simply refers to 'numerous' threats; and
• on each occasion the threats were of a similar type and made to the same victim (his ex-partner).
67 Counsel for the respondent submitted that the offending on each individual charge was objectively serious. The offending occurred in the context of domestic violence - and in contravention of a FVSN - in circumstances where there had been multiple prior instances of offending involving the same primary victim. It was submitted that the orders for cumulation and the resulting total effective sentence arrived at by the judge remained appropriate, in that, they reflected the total criminality of the appellant's conduct, given that, there were two victims; the offending informing charge 1 occurred over a number of days immediately following the service of the FVSN; and charge 4 was a rolled-up charge, for which the appellant fell to be sentenced as a serious violent offender.
68 Citing Gordon v The Queen,[39] the respondent's counsel submitted that the sentencing judge (and this Court on resentence) was obliged to regard community protection as the principal purpose of the sentence on charge 4, and, by reason of s 6E of the Sentencing Act 1991, the sentence on that charge attracted a presumption of cumulation.
69 Although the charges were, taken individually, serious, many of the factors that made them serious were common and called for a significant degree of cumulation. In my view, although the threats that made up charge 4 were appalling, there remains a need for significant cumulation having regard to the overall criminality involved in the offending. Section 6E impacts but does not fully negate the operation of the principle of totality or obviate the need for the sentencing court to stand back and ensure that the total effective sentence is appropriate.[40] As Ashley and Weinberg JJA said in Bogdanovich v The Queen:[41]
The totality principle requires that where an offender is sentenced for a number of separate offences, the judge must ensure that the total effective sentence does not exceed that which is a 'just and appropriate measure of the total criminality involved'. The totality principle is said to 'defy precision either of description or implementation'. Sometimes it is described as a requirement of 'just deserts', and whether the total effective sentence offends that principle is often a 'matter of impression'. A convicted offender should be sentenced not simply and indiscriminately for every separate criminal act, but for what in the broad sense can be characterised as his or her overall criminal conduct.
Where a number of technically separate offences have been committed, but they can fairly be described as 'parts of a multi-faceted course of criminal conduct', it will often be appropriate to order substantial concurrency.[42]
70 Taking these matters into account I would resentence the appellant as follows:
Persistent contravention of a Family Violence Safety Notice
71 For the purpose of s 6AAA of the Sentencing Act 1991, had the appellant not pleaded guilty, I would have imposed a sentence of 9 years' imprisonment with a non-parole period of 6 years.
72 I would allow the appeal, and resentence the appellant in the manner indicated above.
[2] Family Violence Protection Act 2008 s 125A. The maximum penalty is five years' imprisonment.
[3] Crimes Act 1958 s 77. The maximum penalty is 25 years' imprisonment.
[4] Crimes Act 1958 s 18. The maximum penalty is 10 years' imprisonment.
[5] Crimes Act 1958 s 20. The maximum penalty is 10 years' imprisonment.
[6] Crimes Act 1958 s 197. The maximum penalty is 10 years' imprisonment.
[7] Crimes Act 1958 s 21. The maximum penalty is five years' imprisonment.
[8] Summary Offences Act 1966 s 23. The maximum penalty is three months' imprisonment.
[9] See also DPP v Newton [2019] VCC 1926, [2]-[18] ('Reasons for Sentence').
[11] R v Verdins (2007) 16 VR 269; [2007] VSCA 102 ('Verdins') (Maxwell P, Buchanan and Vincent JJA).
[13] Hogarth v The Queen (2012) 37 VR 658; [2012] VSCA 302 (Maxwell P, Neave JA and Coghlan AJA).
[15] [2018] VSCA 324 (Maxwell P and Niall JA).
[18] Verdins (2007) 16 VR 269; [2007] VSCA 10 (Maxwell P, Buchanan and Vincent JJA).
[19] Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ) ('Bugmy').
[20] DPP v Herrmann [2021] VSCA 160 (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
[21] Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32]; [2007] VSCA 10 (Maxwell P, Buchanan and Vincent JJA).
[22] Bugmy (2013) 249 CLR 571; [2013] HCA 37 (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ).
[23] Brown v The Queen (2020) 62 VR 491, 493 [6]-[7] and [61]; [2020] VSCA 212 (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA); Haberman v DPP [2020] VSCA 286, [34]-[35] (Kaye and T Forrest JJA).
[24] Romero v The Queen (2011) 32 VR 486; [2011] VSCA 45 (Buchanan, Redlich and Mandie JJA); Tran v The Queen (2012) 35 VR 484; [2012] VSCA 110 (Maxwell P and Neave JA); O'Connor v The Queen [2014] VSCA 108 (Maxwell P, Weinberg and Priest JJA) ('O'Connor'); Sharbell [2018] VSCA 324 (Maxwell P and Niall JA).
[25] [2014] VSCA 108 (Maxwell P, Weinberg and Priest JJA).
[31] [2018] VSCA 324 (Maxwell P and Niall JA).
[34] [2014] VSCA 108, [63].
[38] [2013] HCA 37; (2013) 249 CLR 571, 595 [44]; [2013] HCA 37 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (citations omitted).
[39] [2013] VSCA 343 (Ashley and Redlich JJA and Lasry AJA).
[40] Zhao v The Queen [2018] VSCA 267, [94] (McLeish, Niall and Weinberg JJA).
[41] [2011] VSCA 388 (Ashley and Weinberg JJA).
[42] Ibid [63]-[64] (citations omitted).
Newton
The Queen [2021] VSCA 207
(2012) 37 VR 658
(2013) 249 CLR 571
(2020) 62 VR 491
(2011) 32 VR 486
(2007) 16 VR 269
(2002) 6 VR 496
(2012) 35 VR 484