Portelli v The Queen [2015] VSCA 159

Court of Appeal (Vic)|2015-06-22|Before: On P, Maxwell ACJ, Redlich JA, Kyrou JA

CRIMINAL LAW - Appeal - Sentence - Intentionally cause serious injury - Assault police - Sentence of 11 years and 6 months, non-parole period 8 years and 3 months - Plea of guilty - Remorse - Multiple aggravating features - Intention to cause maximum injury - Life-threatening injuries inflicted - Breach of suspended sentence - Drug intoxication - Whether foreknowledge of likely effect of drugs - Whether offending pre-planned - Natural justice - Whether notice given of risk of adverse findings - Crown concessions - Appeal allowed - Resentenced to 10 years, non-parole period of 7 years - applied.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 The appellant (P)[1] pleaded guilty in the Supreme Court to one charge of intentionally causing serious injury ('ICSI') and three charges of assaulting a police officer in the due execution of duty. He was sentenced as follows:

2 P was granted leave to appeal on the ground that the sentence imposed on charge 1 was manifestly excessive. He also sought leave to appeal on two additional grounds, each of which contends that the judge made an adverse finding about the seriousness of the offending without having given him proper notice or a proper opportunity to deal with the point.

3 The first adverse finding concerned P's state of drug intoxication at the time of the offending. The judge found that, because of his prior experience with drugs, P was aware when he ingested drugs on this occasion that he was 'more likely to behave in an abusive, violent manner' towards the victim. The second finding was that there had been an element of planning in the attack on the victim.

4 On the appeal, counsel for the respondent conceded that neither finding had been sought by the prosecutor on the plea and that P's counsel had not been given notice that the judge was considering making such findings. She conceded, moreover, that there was insufficient evidence to establish beyond reasonable doubt that P had relevant foreknowledge of the effect the drugs would have on him.

5 In our view, these concessions were properly made. Because both matters were treated as aggravating the seriousness of the offending, there must be a reduction in the sentence. The sentence on the charge of ICSI will be reduced to 9 years and 6 months' imprisonment, giving a total effective sentence of 10 years' imprisonment and the non-parole period will be reduced to 7 years.

Circumstances of the offending****[2]

6 P had been in a de facto relationship with the victim (C) for a period of eight years prior to the offending. The relationship was volatile and had deteriorated just before the offending.

7 On 9 November 2012, a week before the offending occurred, P attended at C's house. He became enraged and threatened her. Fearful of P becoming violent toward her, C climbed out of a window and then climbed over five fences in the neighbourhood in an effort to escape him. She telephoned the police, who attended the house. P would not leave her house and police intervened.

8 An interim intervention order was applied for, and issued, on 12 November 2012. (P knew that an application had been made, although the order was not served on him). Despite the intervention order, C allowed P to stay at her house during the following week, in order to avoid 'dramas'.

9 On the evening of 16 November 2012, P was at C's address. He was waiting for her to come home. C did not return until around 4:30 am that morning. She was accompanied by P's niece. P was agitated. C reminded him about the intervention order but did not ask him to leave.

10 On P's insistence, C went into the bedroom so that they could talk. After 10 or 15 minutes, C tried to leave. As she got up to leave, P asked for a hug. He put one hand around her waist and the other around her throat. C could see a razor blade in his hand. P cut her throat with the blade.

11 C struggled with P. In order to persuade him to stop hurting her, she said that she was pregnant. She ended up on her knees. P put a pillow over her face and pressed down so she could not breathe. He said to her, 'I'm sorry, I love you'. Whenever P's fingers were close to C's mouth, she would try and bite them.

12 The struggle continued and P grabbed a long serrated knife and tried to cut C's throat again. He 'sawed' at her neck two or three times with the knife. In fighting him off, C sustained cuts to her hand. P let go of the knife and pushed the pillow over C's face again.

13 The fight then came to an end, and they lay next to each other. C was bleeding heavily. P made small slashes to the right side of her neck with the razor blade (charge 1 - intentionally cause serious injury).

14 C asked P to 'cuddle' her. She said she was cold and did not want to die alone. P started to slash at himself with a folding knife and the razor blade. He lay on C's arm and dozed for a while, so that she was unable to move.

15 When P woke up, he told C she had to go to hospital. He plugged in the phone and left it for her to use. C called 000 and the ambulance and police attended.

16 Three police officers (R, S and T) approached the door, and saw P with knives in his hand. Officer R asked if everyone was all right. P said, 'The woman is fighting for her life'. R said that the police were there to help them and asked if she could come in. P said the police could shoot him. R heard the door being unsnibbed.

17 Officer S recalled P gesturing by sliding a knife across his throat. He took this to mean that P was going to slit their throats. As P was already covered in blood, this gesture made S very fearful.

18 P burst through the front door and charged at the police. They retreated and stood together in a confined area. P ran at them with a knife in each hand. The knives were around 25-30 centimetres in length.

19 P was about six or seven metres away from the police officers. Officer S believed P was about to 'stab him to death'. While S was retreating, he fired his gun at P, and in doing so fell backwards. P ran at S. When R saw this, she fired her gun at P in order to protect S. Officer T had 'OC' spray but did not use it. He made attempts to get away from P (charges 2, 3 and 4 - assault police).

20 P returned inside, with gunshot wounds to his right bicep and chest and shut the door. He told C that he had been hit, but that it was what he wanted. He started to reheat food in the kitchen and C saw that he had three knives and a frying pan down his pants. He told her the reason for this was so the police would be forced to shoot him in the head.

21 The Critical Response Team arrived at 11:30 am and forced entry to the house. C was found in the bedroom. Although she had been bleeding heavily, the bleeding had stopped by that time. P was found in the kitchen with numerous self-inflicted knife wounds and gunshot wounds to his chest and arm. He and C were both taken to hospital.

22 The victim had five injuries: lacerations underneath her chin; a laceration to the left side of her neck; a deep transverse neck incision; a laceration to the right side of her face; and tendon transections to the palm side of her thumb, ring finger and little finger. The third wound (the deep neck incision) was life-threatening and required surgery. This injury had had the potential to cause catastrophic blood loss and death. Prior to surgery, C lost two litres of blood.

23 P participated in a record of interview. He said he recalled being at the house but did not remember much to do with the offending. He said that, when the police arrived, he had thought it would be a good way to die if the police shot him.

24 P admitted to cutting himself and charging at police. He admitted to having knives on him when the police attended. He admitted cutting C with knives.

25 In Nash v The Queen,[3] Maxwell P set out - descriptively rather than prescriptively - a list of matters routinely taken into account by sentencing judges in assessing the gravity of a particular instance of ICSI, as follows:

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.

26 It was common ground on the plea, and on the appeal, that this list provided an appropriate framework for assessing the gravity of the present instance of ICSI. Approaching the matter in that way, it can be seen that the present case had a number of very serious features. As to intent, counsel for P conceded - properly, in our view - that he had intended to cause C the maximum possible injury short of killing her. That feature alone puts this case into the most serious category of ICSI.

27 Consistently with that intent, P inflicted life-threatening injuries on C. Notwithstanding that she survived and suffered no permanent disability, these must be viewed as extremely serious injuries. On the appeal, counsel for P conceded that the injuries were at the top of the scale of seriousness.

28 Other features of the case which go to seriousness are:

the use of a razor-blade and a knife;
the vulnerability of the victim;
the protracted pain and suffering which she experienced;
the sheer terror of the whole experience for the victim, including her belief that she was going to die and her hours of waiting for help;
the fact that she was attacked in her home by an intimate partner, with whom she was entitled to feel safe and secure;
the prior history of violence by P against C;
P's knowledge that, less than a week earlier, his threats of violence against her had resulted in an application being made for an interim intervention order;
the fact that, knowing she was 'fighting for her life', he prevented her from receiving the medical assistance she needed; and
the fact that this offending breached a suspended sentence which P was serving.

29 The sentencing judge described the attack on C as 'extremely vicious and intolerably abhorrent'. It was clear, his Honour said, that C was terrified:

You made her believe she was going to die. To ask you, her attacker, to comfort her after your attack because she thought she was going to die reveals how frightening the experience must have been for her. Yet she was in her home in the presence of an intimate partner and entitled to feel safe and secure. She was doing no more than going about her ordinary life. I do not think that she trusted you; rather, she was in fear of your confrontations when denied what you wanted. Undoubtedly, your vicious attack will be an ongoing nightmare for her. It is clear that the community is intolerant of violent behaviour in such circumstances and expects the courts to send a strong message that behaviour of this kind is totally unacceptable. Women in domestic situations are entitled to feel safe from the violently abusive behaviour of their ex-partners. This circumstance is a significant aggravating feature.[4]

30 We respectfully agree. What his Honour said accords with recent statements of this Court on the subject of violent attacks by men on their current or former domestic partners. In Filiz v The Queen,[5] the Court said:

It is a shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44. It is also sadly true that there are a great number of women who live in real and justified fear of the men who are, or were, their intimate partners.[6]

In Pasinis v The Queen,[7] the Court said:

Historically perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately the criminal law now gives greater recognition to the devastating effects of family violence. It has also been recognised that women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.

...

General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.[8]

Most recently, in Director of Public Prosecutions v Meyers,[9] the Court said:

Violence of this kind is alarmingly widespread, and extremely harmful. The statistics about the incidence of women being killed or seriously injured by vengeful former partners are truly shocking.[10]

31 The injury in the present case had caused 'significant and permanent scarring', his Honour found. Although it was not possible to assess precisely the psychological impact on C, it was 'likely to be significant'. Moreover, his Honour said, P had substantially prolonged C's ordeal

by denying her access to medical assistance in two ways, each of which aggravates the circumstances of your offending. You refused to get help for her, or allowing her to do so, for some time after inflicting the injuries that she suffered. When you relented, she had to call 000 for herself. I do not see any regret or realisation of the seriousness of your behaviour at this time because by confronting the police as you did, you substantially delayed [C's] access to the paramedics that she had summoned. [C] would have known that you had blocked the medical assistance that she needed. Had you any empathy with or concern for [C] you would not have subjected her, so unnecessarily, to a terrifying ordeal of more than seven hours.[11]

32 In relation to the attacks on the police officers, his Honour said:

You clearly put them genuinely in fear for their lives. You chose to arm yourself with large knives. Your weapons were clearly visible. To commit suicide by police shooting, this fear was what you needed to motivate them to actually shoot you. This offending also involved some planning. You wanted to encourage the police to go for a head shot and plainly, you needed to encourage them to actually draw their firearms and shoot at you. You met them at the door armed and you well knew that they would not shoot you on invitation. You chose to arm yourself with large knives. Your weapons were clearly visible. Your offending falls at the upper end of the range for the offence of assaulting a police officer in the due execution of his or her duty.[12]

33 His Honour also found that the seriousness of the offending was aggravated by two other matters, namely, the fact that P was severely affected by drugs at the time and that there was what his Honour described as 'some degree of planning' of the attack on C. As noted earlier, both of these findings were challenged on the appeal.

Aspects of your behaviour were quite bizarre and I accept that you were affected by drugs at the time of the offending. Your counsel urged me to accept that your behaviour was out of character when compared with your prior criminal history. However, there is evidence of a recent history of violent behaviour, not just from your prior criminal history, and you have long term experience in the use of illicit drugs that includes rehabilitation programs. The evidence does not, as your counsel properly conceded, demonstrate that your intoxication has mitigating consequences for the assessment of your moral culpability for this offending.

I am satisfied to the requisite standard that, as a long term addict with experience of rehabilitation programs, you understood the effects on you of the drugs that you ingested that evening and that you were more likely to behave in an abusive, violent manner towards [C] should she fail to succumb to your demands. Your behaviour was not out of character when compared with the whole of the evidence before me. I cannot say whether you took the drugs intending to behave violently as you did or reckless as to whether your behaviour might turn violent, but I have no doubt that you took those drugs intending, as you have on countless prior occasions, to become seriously intoxicated. Self-administration of a cocktail of licit and illicit drugs in the period leading up to your confrontation with [C] is, in my view, an aggravating feature of your offending. I have no doubt that is why [C] was fearful of escalating the confrontation.[13]

35 On the plea, counsel for P had prepared a detailed outline of submissions, setting out clearly the arguments to be advanced. The submission on intoxication relied on the 'out of character' exception examined in Hasan v The Queen[14] and again in Morrison v The Queen.[15] As those decisions made clear, the circumstances must be quite exceptional before intoxication (whether from alcohol or from drugs) at the time of offending can reduce moral culpability.

36 In this case, the submission for P was that he fell within that very narrow exception. It was said that he had

acted in a manner that was different to his prior criminal history and out of character. He has not offended in a similar manner previously.

The prosecutor disputed this contention, arguing that P had

been through this before. He knows what happens when he takes drugs. He then goes and offends and he offends in terms of violence.

I don't ask your Honour to take it down that road of punishing him in terms of aggravation. But we've got to be realistic with respect as to how far Your Honour can be merciful in terms of how the intoxication explains the offending.

37 Where a person knows from past experience that he/she is more likely to behave irrationally or violently when intoxicated, that foreknowledge can be an aggravating factor if the person becomes intoxicated and then offends.[16] The prosecutor's submission made clear, however, that no such argument was being advanced in the present case. The prosecutor was merely seeking to answer the defence submission that intoxication could be seen, in the circumstances of this case, as a mitigating factor. P's prior knowledge of how drugs affected him was plainly relevant to that issue.

38 What appears to have happened, however, is that the prosecutor's assertion of P's foreknowledge was treated by the judge as aggravating the seriousness of the offending. With great respect, no such finding could have been made unless the fact of relevant foreknowledge was established beyond reasonable doubt. And his Honour would have had to make clear to the defence that he considered it necessary to investigate the matter as a possible circumstance of aggravation.[17]

39 Had the question been investigated, the prosecutor would have been bound to concede - as counsel for the respondent properly conceded on the appeal - that there was no evidence before the Court to establish any connection between P's drug taking and any prior instance of violent conduct.

40 This issue having been raised by the Court during argument, counsel for P sought and was granted leave to add an additional ground of appeal. That ground asserts that his Honour erred in finding that P's intoxication was a circumstance of aggravation:

(a) in the absence of evidence to establish that fact beyond reasonable doubt;

(b) in circumstances where the prosecutor expressly submitted that it was not being pressed as a circumstance of aggravation, and where his Honour gave no notice that he was considering making an adverse finding despite the prosecutor's concession.

41 Having had the opportunity to obtain instructions, counsel for the respondent conceded that this ground must succeed. She conceded, moreover, that there was insufficient evidence to establish beyond reasonable doubt that P had relevant foreknowledge of the effect the drugs would have on him. Those concessions were properly made, in our view. Plainly enough, had the prosecutor been able to establish relevant foreknowledge, it would have been a very significant aggravating factor.

42 Even if foreknowledge could not have been established, it might well have been open to the prosecution, in our view, to characterise P's conduct as reckless. Accepting that he did not know what the effect on him would be of the large quantities - and the particular combination - of drugs which he ingested, simply taking the drugs was an act of sheer recklessness. P must have anticipated - may even have intended - that by doing so he was likely to lose rational control of his actions.

43 But that argument was not advanced on the plea either. Counsel for the respondent quite properly conceded that, it not having been raised on the plea, the Crown could not raise it on the appeal.

It is clear that you have engaged in some degree of planning when at her home. You waited for her to come home; you drew her away from her companions behind the closed door of a bedroom. It is relevant that weapons were used. You chose a razor blade as the weapon with which to slit her throat. It was not of a kind used for shaving, being one sided and with an edge that could be gripped. By choosing that razor blade, you selected a very effective household weapon for such an assault. You surprised her from behind with the razor and it is clear that before your attack on [C] you had chosen your weapon and the manner of your attack. Your assault was not a spontaneous reaction to rejection. These circumstances too are significant aggravating features.

45 The relevant ground of appeal contends that his Honour failed to afford P procedural fairness by making this finding without giving any notice that such a finding was in contemplation. Counsel pointed out that, on the plea, his written outline contended that the offending was not premeditated. The prosecutor took no issue with that contention. Just as importantly, the Crown opening did not suggest premeditation, either expressly or by implication.

46 In those circumstances, in our view, defence counsel had no reason to anticipate the making of an adverse finding on premeditation. That being so, his Honour needed to give notice to defence counsel if he was considering rejecting the unchallenged defence submission that there had been no planning. Counsel for the respondent conceded on the appeal that this was so. No such notice having been given, this ground must succeed.[18]

47 Error having been established, the question for the Court is whether a different sentence should be imposed.[19] That question must be approached on the basis that neither of the aggravating factors found by the sentencing judge can be taken into account.

48 We have already referred to the gravity of the offence. There was also an obvious need for specific deterrence, both because of the incident the previous week and because this was the second occasion on which P had breached a suspended sentence. The previous breach had also involved violence.

49 Moreover, defence counsel conceded on the plea, and again on the appeal, that general deterrence was an important consideration, because of the need to send a message about both:

(a) the community's abhorrence of domestic violence; and

(b) the dangerousness of drug 'cocktails' like this, which are 'regularly seen in incidents where people do the most horrific things to each other'.

50 The mitigating factors relied on in oral argument were:

P's remorse;
his rehabilitation (which depends on his remaining drug-free); and
the added difficulty for P in prison as a result of his post-traumatic stress disorder ('PTSD').

51 This last matter was of particular significance, as follows. While in Marngoneet prison during early 2012, P had suffered very serious injuries as a result of an attack by a fellow prisoner, which required surgery. As a result, he suffered from PTSD, major depressive disorder, agoraphobia and a panic disorder. Despite counselling, it was submitted, P was unable to overcome these problems.

52 Following this attack, P had relapsed into drug use, specifically heroin and ice. He resumed his relationship with C and moved into the house where the offending occurred. His family were unhappy with this decision and cut off contact with him. It was in that context that his mental health and his relationship with C had deteriorated. C had noticed that P had changed since the prison attack, and needed help for anxiety and depression.

53 Defence counsel identified relevant background circumstances. P's parents had separated when he was 10 years of age, due to his father's serious gambling and alcohol-related problems. His family home was violent. P lived with his mother after his parents separated, and the two moved from hotel to hotel for a number of years to avoid his father. His mother's new partner, P's step-father, was abusive and would regularly assault P and his sister.

54 P began to use heroin at 18 years of age in the context of this family background. He started offending at this time. The majority of his offending was property-related, in support of his heroin addiction. This offending continued until April 1986, when P was sentenced to a short period of imprisonment. That had been a 'wake-up call' to him.

55 P's father died in a car collision around this time, while driving from Western Australia to Melbourne for P's 21st birthday. These events had led to P engaging in an extended period of constructive, lawful behaviour. This was said to demonstrate that P had a capacity to be a productive member of the community, particularly when he refrained from taking drugs.

56 In 1988 P started full time work, stopped offending, and became the manager of a plumbing store. He married in 1993 and had two children. From this time until 1999 or 2000 P had led a very productive life. In 1999 or 2000, however, he began to relapse.

57 In 2001 P divorced. He met C in 2007. He continued to battle his drug addiction, meanwhile offending in a manner that supported his drug use. In 2011 he received a term of imprisonment for 18 months, with nine months suspended over two years. The current offending breached that suspended sentence. It was conceded that this aggravated the current offending.

58 It was conceded that P had a relevant prior history of offending and inflicting injury upon other people. He had never previously used bladed weapons, however, or offended against his partner or any other female. P's current offending should be seen in the context of the issues arising from drug use, the assault in Marngoneet, and the volatile nature of the relationship. It was, accordingly, to be differentiated from the previous offending.

59 His prospects of rehabilitation were said to be reasonable. He was medicated with antidepressants and antipsychotics in prison. He had wholeheartedly participated in opportunities afforded to him in custody. He had been appointed to a peer support role as a billet, and there have been no incidents in prison. His urinalysis tests had all tested negative to illicit substances, save for methadone which was prescribed, and he had completed various courses.

60 Counsel relied on a letter written by P to the Court. It was submitted - and we accept - that the letter expresses P's remorse and is a positive sign of his prospects for rehabilitation. P obviously recognises that he needs help and recognises the damaging impact of heroin and combinations of drugs.

61 The Court sought supplementary submissions on whether, if the sentencing discretion were reopened, the sentences imposed on P for the assaults on the three police officers should be reconsidered. Counsel were asked, in particular, to address the question whether

the small amount of cumulation on the assault charges should be viewed as reflecting the constraints of totality.

62 P contended that his criminality with respect to each of these charges was 'founded on the same conduct'. We are not persuaded by that submission. Whilst P's assault upon each of the police officers could be described as part of a continuing course of conduct, each of those assaults was a discrete, violent and frightening act. Each officer was a separate victim of a very serious assault whilst discharging his/her sworn duties. Quite apart from the psychological trauma they sustained, deterrence and the proper protection of police officers were paramount sentencing considerations.

63 In the circumstances, in our view, the sentences were extremely lenient, if not inadequate. The Director has not, however, made any challenge to the adequacy of the sentences.

64 The submission for P was that the amount of cumulation was appropriate, as adequately reflecting the fact that the officers were additional victims subjected to distinct acts. Counsel for the Director conceded that the order for cumulation was appropriate and supported P's contention that there should be no change to the sentences imposed. In our view, higher sentences and a greater measure of cumulation would have better reflected the principle of totality but, as the Director advances no such contention, we will give no further consideration to those sentences.

65 The sentencing judge viewed the seriousness of P's offending as aggravated by two significant factors which, for the reasons we have given, ought not to have been taken into account. The sentence imposed doubtless reflected that view. In the circumstances, justice requires that there be a reduction in the sentence, notwithstanding the objective seriousness of the offending.

66 We would therefore resentence P on the charge of ICSI to 9 years and 6 months' imprisonment. We would not interfere with the other sentences or with the orders for cumulation. The total effective sentence will be 10 years. We would fix a non-parole period of 7 years.

67 In accordance with s 6AAA of the Sentencing Act 1991, we declare that, but for P's plea of guilty, we would have imposed a total effective sentence of 12 years' imprisonment and we would have fixed a non-parole period of 9 years.

[1] The abbreviation is used for ease of reference only.

[2] This description of the circumstances is taken from the Registrar's Neutral Summary, which was in turn based on the Amended Summary of the Crown opening.

[3] (2013) 40 VR 134, 137 [10] (citation omitted).

[4] DPP v Portelli [2013] VSC 588, [22] (Dixon J) (emphasis added) ('Reasons').

[13] Ibid [19], [20] (emphasis added) (citations omitted).

[16] R v Martin [2007] VSCA 291; (2007) 20 VR 14, 28 [49]-[50], 29 [53].

[17] Humphries v The Queen [2010] VSCA 161.

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