R v Aquilina [2010] VSCA 6

1 This is an appeal against a sentence of six and a half years' imprisonment with a non-parole period of four and a half years imposed on the appellant on conviction following trial of one count of intentionally causing serious injury.

2 The circumstances of the offence were described by the sentencing judge as follows. The victim of the offence was one Jeffery Neville Watts and the appellant committed the offence against him at the home of one Anthony Sheehan.

3 On Friday 28 October 2005 a number of people were present at Mr Sheehan's home, including the victim, and five other persons who gave evidence below. Between 4.15 and 4.30 pm on that day, the appellant drove to Mr Sheehan's home and went to the front door and asked for 'Tony'. As part of his attempt to speak to 'Tony', the appellant threatened that, 'Someone better open this fucking door or I am going to start smashing some fucking heads in.' The victim responded with words to the effect, 'Fuck off or I'll get the 32.' And with that the appellant went back to his vehicle.

4 At much the same time one Michael Sheehan and his girlfriend were arriving at the house and saw the appellant and his co-accused drive away. But a short time later, they returned armed with metal bars and levers - the appellant with an iron bar about three feet long and his co-accused with a tyre lever - and moved towards the front door of the house.

5 The door was open and the victim saw them approaching. He decided to tackle them, so as to give others inside, including the mother of a young child, the opportunity to shut the door and secure the premises. But the appellant and his co-accused had no difficulty in overpowering the victim and then they began to walk around him hitting him repeatedly with their weapons while he lay helpless on the ground.

6 In the result the victim suffered two lacerations to the right occiput (back of the head); a fractured left cheek bone, the fractured bone was reduced to a number of pieces; contusions to the left posterior chest wall; tender right scapula (shoulder blade); laceration to the right fifth finger with tendon injury; swelling to the right forearm; tender lower left leg and a laceration to the mid calf and big toe; fractured left fibula, the fibula was fractured into a number of pieces; and multiple soft tissue injuries including cuts to the scalp, hand and leg. Upon admission to the trauma unit of the Royal Melbourne Hospital, the victim required suturing, pain management and antibiotics and later plastic surgery. As he stated in his victim impact statement, he has also suffered considerable continuing psychological consequences of the attack.

7 Medical evidence tendered on the plea showed that the victim was a man with a long history of anxiety and substance abuse whose symptoms have been significantly exacerbated by the attack and subsequent process of the case working its way to trial. The symptoms are disabling to the point that the victim is sometimes still unable to leave his home.

8 Five grounds of appeal were advanced. First, it was contended that the judge erred by incorrectly attributing to defence counsel a concession that there should be parity of sentence as between the appellant and his co-offender. Secondly, it was said that the judge erred by treating the applicant's consumption of 'ice' before the commission of the offence as an aggravating factor. Thirdly, it was argued that the judge erred in failing to give full credit for a period of detention which did not count as pre-sentence detention for the purposes of sub-s 18(1) Sentencing Act 1991, but was to be taken into account as a matter of discretion in accordance with reasoning in R v Renzella.[1] Fourthly, it was said that the sentence is manifestly excessive. A further ground of appeal, which concerned the way in which the judge set the non-parole period, was abandoned.

9 I do not consider that there is any substance in the first ground. In dealing with the issue of parity, the judge said this:

Both [defence] counsel accepted that [the two offenders] played an equal role in the offending and that there should be parity of sentence, given that you Hills [the appellant's co-accused] are younger, but have serious prior convictions and that you Aquilina, are older but have no prior convictions. The Crown agreed.

10 Admittedly, at one point during the plea, defence counsel submitted that:

... despite the age difference in light of the criminal history of the co-prisoner here, they probably played an equal role, but this was conduct to which this accused had not exposed himself to previously. Your Honour will see from parents' character reference at least, it is their opinion that he is very easily led and has been a follower throughout most of his life.

Possibly, that was intended to convey that, although both offenders were equally involved in the crime, the appellant could be treated more leniently because he was a first-time offender. But, if so, the point could hardly be said to have been pressed with much conviction.

11 Furthermore, after the following further exchange between the judge and counsel, defence counsel did in effect concede that, despite the differences between the offenders' ages, antecedents and prospects of rehabilitation, it was open to the judge to impose equal sentences. Thus:

HIS HONOUR: Look, I have considered the question of parity here in a provisional way. I am interested to hear what any of the parties [has] to submit about it, but it seems to me clearly there was an equality in the role played in the offending and that there shouldn't be any distinction drawn between them in that regard. On the one hand, Mr Hills is a youthful offender whether he is dealt with before or after his 21st birthday or on his 21st birthday, but, on the other hand, he has significant prior convictions which changes the balance. Your client [the appellant], on the other hand, has no prior convictions but he is an older man.

DEFENCE COUNSEL: But he is five years older.

HIS HONOUR: Yes, he is an older person and that changes the balance as well. At the moment I would see them as coming out pretty well equal.

DEFENCE COUNSEL: Well, I wasn't going to make that submission. I was going to be silent on that. I see where your Honour's going. I had turned my mind to these issues. I can see the competing factors that each has.

HIS HONOUR: That's the way I see it at the moment. If you want to submit to the contrary - and you, [the co-accused's counsel], have an opportunity as well - please do.

12 The only other time the matter was mentioned during the plea was at the end, in the following further exchange between the judge and defence counsel:

HIS HONOUR: Just to be quite clear, as I have understood the submissions of both defence counsel, neither of you put any argument against parity generally speaking?

...

DEFENCE COUNSEL: I accepted the roles were much the same in the incident, your Honour. I did make the submission that at 25 (26 now) he is still a very youthful person.

HIS HONOUR: Yes, you did.

DEFENCE COUNSEL: And it doesn't balance out equally when someone is 21 with a long list of priors as opposed to a 26 years old who has no priors, in my submission.

HIS HONOUR: Well, one couldn't engage in that mathematical process.

DEFENCE COUNSEL: That's right.

HIS HONOUR: It is really whether there is something that stands out as justifying a difference of approach and at the moment, as I have said to you both, my inclination is that there isn't, that they end up balancing each other out.

DEFENCE COUNSEL: That is your Honour's task. They are not just driving priors, there are some serious priors there but they are matters for your Honour as to decide as to how it balances.

13 Overall, I take the effect of what occurred to be that, despite being given several opportunities to argue against the proposition, the sentences imposed on each offender should be equal, defence counsel declined to so to argue and thereby conceded in effect that it was open to his Honour to sentence the offenders in that fashion.

14 It follows that, even if the judge were wrong to describe that as counsel accepting that the two offenders should be sentenced equally, it was an error devoid of consequence. Plainly, it was open to sentence the two offenders equally and counsel was right to make that concession. Whether or not the judge mis-described the concession is neither here nor there.

Ground 3 - Consumption of 'ice' as an aggravating factor

15 There is more substance in ground 3. The judge said he was satisfied that the appellant knew from previous experience that his consumption of 'ice' made him prone to chaotic and uncontrolled conduct, and thus that the appellant's consumption of 'ice' before the offence should be regarded as an aggravating factor of the offence. In my view that was an error, as was conceded by the Crown.

16 The circumstances in which voluntary consumption of an illicit substance may or may not be regarded as aggravative of an offence committed under the influence of the substance have been several times discussed in recent decisions of this court.[2] As has been noted in those cases, a sentencing judge should not treat illicit drug consumption as aggravating an offence unless satisfied beyond reasonable doubt that the offender foresaw that consumption of the substance was likely to lead to the offender behaving in the manner he did, or at least in the manner relevantly conducive to the offence.

17 In this case, as the Crown now concedes, there was insufficient evidence to establish beyond reasonable doubt that the appellant knew he would behave in a chaotic and uncontrolled manner or otherwise in a fashion likely to result in the criminal behaviour of the kind he committed.

18 It follows, in my view that it was not open to the judge to treat the appellant's consumption of 'ice' as aggravating his offending.

19 I should mention that Ground 4, which was the contention that the judge erred in exercise of the discretion adumbrated in R v Renzella[3] was ultimately abandoned in the course of oral argument.

20 The sentencing discretion is, however, re-opened because of the way in which the judge regarded the appellant's drug consumption as aggravating his offending, and thus it is necessary to re-sentence the appellant.

21 As the judge rightly said, this was a serious offence which resulted in serious lasting consequences. The attack was unprovoked, committed by the appellant in concert with his co-offender with fearful weapons and caused mid-range physical injuries and continuing mental trauma. As such it calls for a strong sentence to express the Court's denunciation and to provide adequate general and specific deterrence and community protection. As has been said repeatedly in this Court, persons who commit offences of this kind must expect that they will receive a condign sentence of imprisonment.

22 As against that, as counsel for the appellant argued, there are a number of mitigatory considerations, which include the appellant's lack of prior convictions, a relatively sound work history, strong family support and good prospects of rehabilitation based in the appellant's commitment to remaining drug-free. There is also the nine months' detention which the appellant spent on remand in relation to other offences which is once again to be brought to account in the exercise of the Renzella discretion.

23 In this case, it is also necessary to take into account some developments which have occurred since the appellant was first sentenced. On 8 October 2009, the appellant and his co-offender Hills were sentenced by Judge Hicks for further offences; in the case of the appellant, on a first presentment, on counts of reckless conduct endangering life, to four years' imprisonment; and, on a second presentment dated 19 November 2006: on a count of aggravated burglary, to one year and three months' imprisonment and, on a count of recklessly causing serious injury, to nine months' imprisonment, producing a total effective sentence of six years (of which it was ordered that three years be served cumulatively on the sentence imposed in this case). Judge Hicks further ordered a new non-parole period of five years, which he said would be effective from 8 October 2009. In order that a new single non-parole period may now be set, we grant leave to the appellant to appeal from Judge Hicks' order that the new non-parole period set under s 14 of the Sentencing Act 1991 should commence on 8 October 2009.

24 There is also a further psychological report of Mr David Ball, consulting forensic psychologist, dated 11 September 2009, which demonstrates that since being imprisoned, the appellant has made significant progress towards rehabilitation. According to Mr Ball, he exhibits good insight into his offending and psychological functioning generally, and he has adopted strategies to maintain a drug-free and offence-free lifestyle. He has also continued his training as a chef, having begun an apprenticeship as such shortly before being sentenced. He has completed certificates in commercial cooking and also courses in drug rehabilitation and other related disciplines. Mr Ball recommends that, in view of the very significant progress of the appellant to date, he receive support and supervision in the community over an extended period.

25 In my view that implies the need for a significantly shorter than usual non-parole period.

26 Having regard to all the evidence which is now before the court, while at the same time bearing in mind the need to retain substantial parity as between the appellant and his co-offender, I would re-sentence the appellant to six years'

imprisonment with a non-parole period of four years. I would also allow the appeal against Judge Hick's order setting a new non-parole period in respect of all offences of five years to commence on 8 October 2009. Pursuant to s 14 of the Sentencing Act 1991, I would set a new single non-parole period in respect of all offences of four years and six months beginning on 21 December 2007.

1. In this matter, the appeal is allowed, the sentence passed below is quashed and in lieu thereof the appellant is re-sentenced to six years' imprisonment; and

3. In the appeal from the orders of his Honour Judge Hicks of 8 October 2009, the appeal is allowed; and

4. The orders made by his Honour Judge Hicks are varied by substituting for the new single non-parole period of five years set by his Honour pursuant to s 14 Sentencing Act 1991, a new single non-parole period of four years and six months beginning on 21 December 2007.

29 It is declared that the number of days already served under the sentence is 945 days not including this day and it is directed that the fact of the declaration and its details be entered in the records of the Court.

[1] [1997] 2 VR 88.

[2] See, for example, DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125; DPP v Smeaton [2007] VSCA 256 [14].

[3] [1997] 2 VR 88, 96-7.