Picone v The Queen [2015] VSCA 5

2 The appellant's ground of appeal[2] is:

Ground 1: That the sentence imposed was manifestly excessive, in particular that it gave insufficient weight to:

(a) the [appellant's] remorse and acceptance of a large measure of responsibility for the offending as shown by her guilty plea to recklessly causing serious injury;

(b) the very significant additional burden of imprisonment on the [appellant] by reason of the enforced separation from her children and her knowledge of having left them without a parent;

(c) the [appellant's] depression and anxiety, which increased the burden of imprisonment on her;

(d) that the [appellant] suffered from impaired mental wellbeing at the time of the commission of the offence which had resulted from sustained and serious domestic violence;

(e) the fact that the [appellant] had never previously been sentenced to imprisonment.

3 For the reasons that follow, we would allow the appeal, and would sentence the appellant to be imprisoned for five years, upon which we would fix a non-parole period of three years' imprisonment.

4 When arraigned before a jury in the County Court in February 2014 on the charge of intentionally causing serious injury, the appellant pleaded guilty to the lesser alternative offence, recklessly causing serious injury.[3] The prosecution declined to accept that plea, and the jury convicted her on the more serious charge.

5 In his reasons granting leave, Weinberg JA described the appellant's offending as follows:[4]

... The victim, Douglas Farquhar, had, for some time, been in a relationship with a Ms Lincoln, who was a friend of the [appellant]. Her daughter, Chanelle, was a friend of the [appellant's] daughter, Emily. Mr Farquhar was Chanelle's father.

Relations between the [appellant] and Mr Farquhar had been bad for some time. It seems that the [appellant] believed that he had been violent towards Ms Lincoln.

On the evening of Sunday, 30 October 2011, the [appellant] was walking Chanelle home when she learned that Mr Farquhar was present at Ms Lincoln's house. Mr Farquhar did not live at that address. It seems that the [appellant] telephoned her son and arranged with him to come at once to Ms Lincoln's home and to assault and seriously injure Mr Farquhar. Jason Tregenza, the [appellant's] former partner and father of her son, was either with the boy when this plan was hatched, or learned of it shortly afterwards. In either case, he joined in the plot.

The [appellant] attended at Ms Lincoln's home and asked her to have Mr Farquhar come out to the front. He did so. The [appellant] then persuaded him to come further down the driveway. At that stage, Mr Tregenza and the [appellant's] son appeared. She called out to them to 'get him'. Mr Farquhar ran from the scene and was chased into the backyard and then over the side fence into a neighbour's adjoining property. He was there assaulted by the three offenders who punched, kicked and stomped him to the head. In the course of doing so they armed themselves with various items to use as weapons, including a crowbar, and a vacuum cleaner.

Mr Farquhar was taken by ambulance to hospital where he was placed in an induced coma. He received fractures to his nose, right eye socket and jawbone as well as broken teeth. He also suffered multiple bruises and abrasions with one deep laceration down to the bone on his shin. He provided a victim impact statement which, not surprisingly, outlined ongoing pain as well as emotional and psychological trauma.

6 Several particulars are subjoined to the ground of appeal. It is, however, unnecessary to scrutinise each particular in detail, since, to make good the essential complaint embodied in the ground, the appellant must demonstrate that, having regard to all factors relevant to the exercise of the sentencing discretion, the sentence is outside the range of those open in the proper exercise of the sentencing discretion. Manifest excess is a conclusion which does not depend upon attribution of identified specific error. It is a conclusion that ordinarily does not admit of much in the way of argument or elaboration[5] (save to state the respect in which the sentence is excessive). Excess is, or is not, plainly apparent; and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed or, as we have concluded in this case, because the sentence imposed is manifestly too long.[6]

7 Counsel for the appellant sought to place reliance on sentencing statistics and comparative cases in order to contend that the sentence imposed on the appellant is 'high'. In our view, however, the utility of statistics, or so-called comparative sentencing cases, in cases of intentionally causing serious injury generally is limited. We did not find the resort to sentencing statistics in this case particularly helpful.[7] As was said in Nash:[8]

Experience shows that the circumstances of the commission of the offence of intentionally causing serious injury are almost infinitely variable, and thus the sentences commonly imposed widely vary. There are cases which involve protracted savagery, while others are constituted by one punch. Some involve the use of a variety of weapons. Moreover, the injuries caused widely vary, from gross and permanently disabling injuries to others that barely cross the threshold of 'serious'. Accordingly, sentences widely vary, from suspended sentences of imprisonment at the low end of the spectrum, to head sentences of imprisonment in double figures at the high end.

8 There are, however, a number of factors in cases of intentionally causing serious injury which sentencing courts have considered to be pertinent. Several were isolated in Nash,[9] where Maxwell P, having had regard to a table of sentencing cases for the offence of intentionally causing serious injury ('ICSI'), observed:

A review of the cases summarised in the table reveals that the following matters are routinely taken into account by sentencing judges in assessing the gravity of particular instances of ICSI:

• the offender's proven intent: was it to cause serious injury, or really serious injury, or the maximum possible injury?;
• the seriousness of the injury actually caused (both the immediate and the long-term consequences for the victim);
• how vulnerable the victim was;
• whether a weapon was used;
• how long the attack on the victim lasted; and
• whether the offender acted alone or in company.

9 In the present case, the attack on the victim was carried out by the appellant in company. It was described by the judge as 'almost sickening'. There was a degree of premeditation. The victim was outnumbered and unarmed, and thus vulnerable. His ordeal was somewhat protracted. After the victim fell to the ground, his assailants continued to stomp on his head and strike him with weapons (including a crowbar and part of a vacuum cleaner). Quite apart from the immediate physical injuries which we have adverted to, the attack resulted in significant sequelae, which the sentencing judge described:

... Apart from his physical injuries, from which he still suffers unbearable headaches, with the metal plates inserted into his face sometimes aching too, he has also suffered psychologically and emotionally. He feels his personality has changed, he has lost confidence and he has severe anxiety, with nightmares and panic attacks. Mr Farquhar has resumed his relationship with his wife, and he has a 5 year old son who he feels unable to take to and from school because of his anxiety and self consciousness. He says that he has moved interstate because of his fear, and that nothing bad that has happened to him in the past, including being in prison, compares to the assault. He thought he was going to die.

10 The appellant's was a serious example of a serious offence. General deterrence thus was important in sentencing the appellant. Moreover, specific deterrence had to be given some prominence. The appellant had violence-related prior convictions, and sanctions short of imprisonment did not deter her from the present offending. Denunciation was also relevant, as was the need to punish the appellant for her outrageous behaviour. Hence, there can be no cavil with the proposition that a significant sentence of imprisonment was called for.

11 Notwithstanding that a significant period of imprisonment was called for, however, synthesising all relevant factors for ourselves - including features in aggravation, and those in mitigation - we have concluded that both the head sentence and non-parole period imposed by the sentencing judge are manifestly excessive.

12 As we have said, the appellant previously has never been imprisoned. Although, perhaps, limited, she showed some measure of remorse by pleading guilty to recklessly causing serious injury. Moreover, she has two children who lived with her, and who were dependent upon her. The available material suggested that the appellant was a good mother, who would suffer great distress as a result of her 13 year old daughter being deprived of her care for a period of years. She herself had been subjected to violence at the hands of an abusive partner, from whom she had separated. Further, the appellant suffered from 'chronic adjustment disorder with mixed anxiety and depressed mood', resulting from the physical, sexual and verbal abuse perpetrated upon her by her former partner. Although that condition did not reduce her moral culpability, the sentencing judge accepted that this condition would make the appellant's time in prison more burdensome.[10]

13 In those circumstances, we would set aside the sentence imposed upon the appellant in the County Court. In lieu, we would sentence her to be imprisoned for five years, and would fix a non-parole period of three years.

[1] Crimes Act 1958, s 16. The maximum penalty is 20 years' imprisonment.

[2] Leave to appeal was refused on two further grounds. The appellant has not elected to pursue them.

[3] Crimes Act 1958, s 17. The maximum penalty is 15 years' imprisonment.

[4] Picone v The Queen (Unreported, Court of Appeal, 4 September 2014), [3]-[7].

[5] R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12] (Priest JA); Allen v R (2013) 36 VR 565, 573 [51]-[52] (Priest JA).

[6] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J). See also Clarkson v The Queen (2011) 32 VR 361, 384 [89].

[7] That is not, of course, a criticism of counsel.

[8] Nash v The Queen [2013] VSCA 172, [55] (Priest JA); Mogoai v The Queen [2014] VSCA 219, [15] (Redlich and Priest JJA); Tasevski v The Queen [2014] VSCA 135, [54] (Tate JA).

[9] Nash v The Queen [2013] VSCA 172, [10] (footnotes omitted).

[10] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.