R v Blick [1999] VSCA 211

2. The appellant, Stephen John Blick, pleaded guilty in the County Court on 25 May this year to six offences. He was ultimately sentenced on 27 August to be imprisoned for three years and a minimum term of 18 months was fixed to be served before he should be eligible for release on parole. There was a declaration of 312 days' pre-sentence detention.

5. The appellant was on 20 November last granted by the President leave to appeal against the sentences. The grounds relied on are two: first, that the overall sentence was manifestly excessive in the circumstances of the case and, second, that the learned sentencing judge failed to give sufficient weight to the factors in the background of the appellant.

8. Mr Wraith, who argued the appeal when it came on this morning, was, as I would apprehend, concerned really to concentrate on the first ground alleging manifest excess. Some of the particulars of that ground, as they might be called, emerged under the second ground of alleged failure to give sufficient weight to mitigating factors in the sentencing process.

11. The six offences may be divided into two groups. The first and second counts alleged stalking by the appellant of his former wife over a period from 31 August 1997 to 28 May 1998. The second count alleged that on 31 August 1997 the appellant was guilty of reckless conduct endangering his wife, Catherine Joan Blick. The third, fourth, fifth and sixth counts all arose from conduct which occurred on 19 October 1998 when the appellant invaded the house of the woman who had by then become his former wife. He was charged with offences of aggravated burglary, intentionally damaging property, theft and causing serious injury recklessly. He was sentenced on the first count (the count of stalking) to be imprisoned for 12 months; on the second count (that of recklessly engaging in conduct endangering his wife) to six months' imprisonment; then, on counts 3, 4, 5 and 6, which occurred in October 1998, he was sentenced on count 3 (aggravated burglary) to be imprisoned for three years; on count 4 (intentionally damaging property) to six months' imprisonment; on count 5 (theft) to three months' imprisonment; and on count 6 (causing serious injury recklessly) to 12 months' imprisonment. The judge directed a measure of cumulation. His Honour directed that 24 months of the sentence on count 3 be served cumulatively upon the sentence of 12 months on count 1. A little consideration will indicate that that direction for cumulation did not have any effect upon the overall duration of the sentence. Presumably his Honour took the somewhat unusual course of directing cumulation in that way in order to mark differentiation in terms of time and in terms of the offences themselves between the offences on counts 1 and 2 on the one hand and counts 3 to 6 on the other.

14. The appellant was born on 23 July 1967 and was therefore aged 30, 31 or 32 at relevant times. He had married in 1990 at the age of about 23 and there were two children of the marriage. The children, boys, were living with the appellant's wife at relevant times. It appears that he has from time to time expressed some reservation about his paternity of the elder of the two. The appellant and his wife separated in February 1997 and at about that time an intervention order - strictly, I suppose, a non-intervention order - was made to get him out of the house in which they had been living. It was during the currency of that order that all of the six offences with which we are now concerned were committed. There were six prior convictions admitted by the appellant. Five of them were for breaching that intervention order and the sixth was for an unlawful assault by him of his wife.

17. I shall not spend a great deal of time in giving particulars of the offences. It is sufficient to say this. The stalking which was the subject of count 1 consisted of a course of conduct that was evidently intended to arouse apprehension and fear in the appellant's estranged wife. He twice scratched messages on her motor car and otherwise damaged her property. He also twice sent her obscene drawings referable to herself. Count 2 (recklessly endangering his estranged wife) was based on his throwing a brick through her bedroom window at half-past-two in the morning. At the time the appellant apparently thought that his estranged wife was sleeping with another man. In fact what she was doing was sleeping with one of the two children.

20. The other offences occurred in October 1998 in this way. At about half-past two in the morning again, of Monday 19 October, the appellant broke into the house in Oakleigh occupied by his ex-wife and the two children. He did so by breaking a side window with his fist, having previously sought unsuccessfully to obtain a sledge-hammer for the purpose. Inside, he assaulted her by slapping and punching her with both hands to the face. When interviewed by the police later on the same day, he admitted that he pulled the telephone "out of the hook", as he said, grabbed his ex-wife by the hair and dragged her into the bathroom and beat her. When the assault occurred she was in the process of summoning police on the telephone for her assistance. He was asked in the course of the police interview when he made the decision that he was going to assault the woman and answered, "Probably when I saw the look on my son's face in the bed". Before very long, the appellant tore his ex-wife's night attire from her and locked her out of the house. In the course of the assault she suffered bruising and a perforated eardrum. They were her physical injuries, but she also suffered the indignity of having to call upon her seven-year-old son for protection. The incident occurred in front of the two small children.

23. After he had locked his ex-wife out of the house, the appellant remained there for some seven hours with the children. His conduct was bizarre. He destroyed two photographs, one of which showed his ex-wife in an advanced state of pregnancy. He cut the depiction of the abdomen out of the photograph and burned it. He also destroyed one of the children's toys, a teddy bear, by inserting a knife into it. At length the appellant arranged for the elder of the two children to get dressed and sent him off to school with some money. The appellant stole $60 from the house and, after the siege, as it has been called, of some six or seven hours, eventually gave himself up to police who had been in attendance for much of the time.

26. During a long interview the appellant made full admissions as a result of which he was charged with the four offences of 19 October. I shall not refer in any detail to the record of interview. Some of the attitudes and answers which one detects in it indicate that he was clearly psychiatrically disturbed, at least at the time of the October 1998 offences. It is indeed common ground that he was suffering a psychotic episode at the time.

29. The task with which the sentencing judge was presented had an added degree of difficulty by virtue of the appellant's psychotic state. His Honour went to a good deal of trouble with a view to fathoming the appellant's mind. His Honour heard a plea on 25 May this year and adjourned it for the purpose of obtaining further psychiatric material and pre-sentence reports. There was accordingly a considerable gap between the time that the appellant pleaded guilty and the time that he was sentenced.

32. There was ultimately a wealth of material placed before the judge referable to the appellant's psychiatric state. Again I shall not canvass this in any degree of detail. Suffice it to say that the material made it clear that the appellant had had for many years - perhaps in excess of ten - a psychiatric history. He began drinking to excess as an early teenager. He had used marijuana plentifully over the years and, latterly at least, was engaged in the use of heroin. He told the police that at the time of the incidents in October 1998 he was to some degree under the influence of heroin. The appellant certainly was not unintelligent. He had had many forms of employment over his turbulent married life. It was said in one of the psychiatric reports, by Dr Vine, that the appellant suffered grandiose and persecutory delusions and ideas of reference. They were sometimes consistent with drug-induced psychosis for which he had in the past had some treatment. There was no evidence, however, that the appellant, at the time he was seen by the psychiatrists, suffered from schizophrenia. It was evident to those who interviewed him about his psychiatric condition that he had a degree of insight into the effects of his drug use and into the appropriateness or otherwise of his actions. The judge placed particular store on two reports from Dr L.A. Walton, consultant psychiatrist. His summarised opinion was, in part, this: that the appellant has an accumulating history of recurring psychotic episodes over some years; but that he retained a level of insight and absence of more generalised symptoms to suggest that he was actually suffering from schizophrenia. It appeared to Dr Walton that the appellant was prone to what he described as "relatively brief reactive psychotic episodes at times of intense stress for him, no doubt aggravated by his drug and alcohol use".

35. It was as a result of the psychiatric reports put before him that the judge found - and indeed it was, as I say, common ground - that during the time of the episodes of 19 October 1998 the appellant was psychotic. What is not clear from these reports, or from any other evidence, is whether he could properly have been described as psychotically motivated over the period from August 1997 until May 1998 during which the conduct founding the first and second counts occurred. The learned judge noted in his sentencing remarks the substance of what I have endeavoured to summarise with respect to the appellant's psychiatric condition. His Honour accepted as a correct analysis on the material that was before him that the appellant was psychotic at the time of the assault, and in particular, as his Honour said, counts 3 through to 6. His Honour stated further, however, and with this I would respectfully agree from my own reading of the reports, that essentially the behaviour which gave rise to these offences appears to have been an expression of anger. It was that expression of anger, as the learned judge noted, that needed treatment. Belatedly, the appellant had received some psychiatric treatment. The judge, referring to Dr Walton's report, noted that he (Dr Walton) was of opinion that the appellant's disturbance "was such at the time that what might otherwise clearly be activities that required a sentence which primarily demonstrated deterrence, is not appropriate in this case".

38. I do not myself derive from Dr Walton's remarks, or from any other source, an indication justifying a conclusion that specific deterrence was not to be taken into account in this case or, indeed, that general deterrence was to be wholly forgotten in the sentencing process. It is clear enough that there are cases in which a prisoner is so psychiatrically disturbed or diseased that general deterrence simply should not feature as an ingredient of the sentencing discretion. Sometimes, too, it would be appropriate that specific deterrence should be placed very largely to one side. The learned judge obviously did not regard the present case as one in which no specific deterrence should be measured in the sentence. Nor, I think, was it clear that general deterrence played no part at all.

41. This case seems to me to be in many respects akin to that in R. v. Lewis, an unreported decision of this Court delivered on 20 April 1998. As Charles, J.A., delivering the principal judgment, observed, there are many cases in which general deterrence, although it is not to be treated unrelieved as a sentencing ingredient, is yet not to be eliminated but should still operate, sensibly moderated. This was such a case, in my opinion, and I am satisfied that the learned sentencing judge, though he did not refer by name to Lewis or to R. v. Tsiaras [1996] VicRp 26; [1996] 1 V.R. 398, endeavoured to apply the proposition for which those cases stand. See also R. v. Attard (1999) 105 A.Crim.R.431, at 433-4. The judge acknowledged that his task was difficult, as it was. Specific deterrence in this case was also, I think, a proper ingredient of the sentence. There was a very considerable degree of admitted nastiness in the appellant's conduct towards his former wife. He did what he did on 19 October, as he told the police, in order to teach her a lesson. I am afraid to say that in taking that approach he himself needs, to some extent, to be taught a lesson.

44. Mr Wraith said, if I may so observe, all that could reasonably be said on behalf of the appellant this morning. There was very little, however, upon which to found a formidable argument that the learned judge erred in pronouncing a sentence which was beyond the bounds of that which was open to him. In particular, I think the judge was concerned to indicate that these two sets of offences needed to be recognised as having a separateness. That might account - it probably did account - for the cumulation which his Honour ordered. Different judges might have given recognition to the circumstance differently, but there was nothing addressed to us this morning to submit that the judge was necessarily wrong in ordering the cumulation as he did. It has not been shown that, in reaching the sentence he did impose, the judge gave insufficient weight to any of the circumstances personal to the appellant. The overall sentence was within the range available and it seems to me, therefore, that the grounds relied on are not made out.

52. Section 582 of the Crimes Act 1958 ultimately derives from s.17 of the Criminal Appeal Act 1907 (Eng.). It has counterparts in most of the other Australian States, including two of those which have adopted a criminal code: see s.671L of the Criminal Code (Qld.), s.702 of the Criminal Code (W.A.) and s.367 of the Criminal Law Consolidation Act 1935 (S.A.) and compare s.22 of the Criminal Appeal Act 1912 (N.S.W.). Section 418 of the Criminal Code (Tas.) does not extend to leave to appeal.

55. This is the first occasion in Victoria, at least in recent times, when leave to appeal against sentence has first been granted by a single judge and then the appeal has been heard separately. In granting leave to appeal against sentence, Winneke, P. said:

"On an application of this nature, as I have said before, the question for this court is whether the grounds of appeal ... are reasonably arguable. If one or more of the grounds satisfy that test then, generally, leave should be granted."

59. I set out his Honour's words not only because they will afford guidance to single judges in future cases but also because they emphasise the difference between the role of the single judge considering the application for leave and the role of the court of three hearing the appeal. It would, for example, be quite wrong for a single judge to refuse leave solely because, although there was a reasonably arguable ground, he or she considered that it would probably not be made out when it was fully argued or that the court of three would think that no different sentence should be passed. That would be to pre-empt the appeal and to deny the applicant due process.

62. Those remarks are by no means irrelevant to the present case having regard to the disposition that I consider appropriate.

65. There were two distinct groups of counts. They were separated in time and the appellant's mental illness was much more relevant to the second group than to the first. The straightforward solution would have been to direct that part or all of the longer sentence imposed on the first group of counts be served cumulatively upon the longest sentence imposed on the second. I find it unnecessary to decide whether a sentence of three years' imprisonment on count 3 was, on account of the appellant's mental illness, manifestly excessive, for counsel for the appellant did not ask us to restructure the sentences if the total effective sentence would be the same. If the sentence on count 3 were reduced, I would direct an equal measure of cumulation on count 1.

68. An excessive sentence cannot be justified because only part of it is directed to be served cumulatively, but the unusual direction for cumulation that the judge gave shows, I think, that his essential reasoning was not at fault. His Honour considered, as I do, that a penalty should be imposed in respect of each of the two groups of counts. His intention was that the first 12 months' imprisonment should be served in respect of counts 1 and 2 and the balance of the term in respect of counts 3 to 6.

71. For these reasons and for those given by the learned presiding judge I, too, would dismiss the appeal.

76. I agree that this appeal should be dismissed for the reasons given by the other members of the Court.

81. The judgment of the Court therefore is that the appeal is dismissed.