R v Boyd [2002] VSCA 102

9. The appellant admitted 107 prior convictions from 34 court appearances in Victoria and New South Wales between 31 May 1979 and 12 April 2000. Among those convictions were three counts of theft, two of assault, four of malicious injury, six of larceny, two of break, enter and steal, three of illegal use of a motor vehicle, two of unlawful assault, one of assault occasioning actual bodily harm, one of receiving stolen goods, two of burglary, one of malicious damage and five offences relating to possession of firearms in unlawful circumstances. As I will discuss, in addition to those offences the appellant had also been convicted of a number of offences committed in 1995 and 1996 but those were not included in the presentment, because the convictions for those offences were imposed after the offences to which the present appeal relates. In other words, they were not prior convictions for the purpose of sentencing in this instance.

12. Leave to appeal was granted to the appellant on 8 February 2002.

15. The circumstances giving rise to these offences can be briefly stated. All offences were committed at Shepparton on 29 March 2001. At the time of the offences the appellant resided in Finley, New South Wales. He had resided there with his de facto wife Yvette Beare and her three children. He was the father of the two younger children. He and Ms Beare had been in a de facto relationship for some 10 years but it seems that there were significant periods of separation.

18. In November 1995 Ms Beare had obtained an intervention order in the Magistrates' Court at Shepparton pursuant to s.4 of the Crimes (Family Violence) Act 1997. That order prohibited the appellant from attending within 250 metres of any premises where Ms Beare resided or worked. The existence of the order also meant that the appellant was a "prohibited person" pursuant to s.3 of the Firearms Act.

21. The intervention order had remained in force until the time of the present offences, but notwithstanding its existence the couple had maintained contact and had lived together from time to time. At some time prior to these offences the couple had been living together at Finley, but the relationship broke down and Ms Beare moved to her mother's home in Shepparton.

24. Notwithstanding the breakdown in the relationship Ms Beare continued to have contact with the appellant in Finley, regularly visiting the appellant with the children. On 28 March 2001 there was a heated argument between them and the following day, that is the day of these offences, Ms Beare attended the Finley Local Court and registered the Victorian intervention order in New South Wales. The appellant was present when that order was made. Ms Beare then returned to Shepparton.

27. On the same day the appellant stole a van at the Finley Bowling Club and together with a friend drove in the direction of Shepparton. After the vehicle broke down on the way he obtained a lift from a farmer near Numurkah and that person drove the appellant and his friend to Shepparton. During the journey the driver noted that the appellant had what appeared to be a revolver. Whilst being driven from Numurkah to Shepparton the appellant told the driver that he was planning to pick up his four-year-old daughter and to take her around Australia.

30. After dropping the appellant at Shepparton the driver reported to police what had transpired on that journey.

33. At about 10.30 p.m. the appellant climbed over a back fence to the property at which Beare lived with the children. That property was owned by Ms Beare's mother, Joyce Beare, and she and her partner, Ronald Toebelman, were in bed asleep. Ms Beare, who was sleeping in a bungalow with the children at the rear of the premises, was woken by a telephone call from the appellant, who said that he was coming over and who sounded drunk, but not violent or angry. Ms Beare returned to sleep but then about an hour later the appellant entered the bungalow and went to Ms Beare's bed. He held an imitation pistol in his right hand, grabbed her by the hair and shook her violently and said, "Wake up, you bitch. Wake up, you slut" and pushed the barrel of the imitation pistol into her right cheek.

36. Ms Beare was terrified and feared for her life and for the lives of her children. She noted that the appellant was drunk and she knew that he could be very violent when drunk. The appellant repeatedly shook Ms Beare, saying that it was her fault and said to her, "Do you think I'm joking?" In her statement to police Ms Beare said, "I thought my time had come."

39. The 11-year-old child woke up and then the light was turned on, whereupon and the children fled from the bungalow and ran to the house, where the occupants telephoned police. The appellant then told his daughter he was so sorry for what he had done and he sought to depart from the premises, but Ms Beare told him that the only exit was through the house, so, together, they entered the house. Ms Beare was crying hysterically and her mother tried to calm down the appellant, who continued to wave the gun, saying that it was loaded. The appellant said to Ms Beare, "You'll never get your little girl back", and at one point put the barrel of the pistol into his mouth.

42. The appellant asked Ms Beare's mother whether she had rung the police, and she denied it. The appellant then calmed down and handed the gun to the mother and said to Ms Beare's mother, "I'm sorry, Joyce, I'm so sorry, I've lost the plot". It was at that point that the observers noticed for the first time that the pistol was an imitation firearm. The appellant went to the front door, repeatedly saying to the victim, "You'll never get your little girl", and saying, "Are you happy now?" This was a reference to the four-year-old daughter who had been briefly taken by the appellant from her mother on 28 March 2001, in the course of the heated argument between the couple which provoked the registration of the intervention order in Finley.

45. Having been called to the scene, four police officers arrived as the appellant was departing the premises. He turned and cocked his right hand in the shape of a pistol, pointing at one of the police officers. The police had been advised that he was armed, and a violent struggle ensued whereupon the appellant was restrained and handcuffed. In a later interview with police the appellant said that he believed that he had pointed his hand in that way because he wanted the police to shoot him.

48. The appellant was very drunk during these events.

51. In his interview with police conducted on 30 March 2001 the appellant eventually admitted the theft of the motor vehicle. He said the imitation pistol had been found in the van which he had stolen. He said that he was planning to give it to his children as a gift.

54. The appellant agreed with the police that he knew there was an intervention order against him but said that he wasn't thinking about that when he attended Ms Beare's residence and that his judgment was affected by alcohol. He said that he knew that the children were in the bungalow when he entered there and he agreed that Ms Beare had been very frightened when he confronted her. He agreed that the gun looked very real and that the children were probably scared. He agreed that he had placed the gun in his mouth as though threatening to shoot himself.

57. There are two grounds of appeal in this case, as follows:

1. In all the circumstances the sentence is manifestly excessive, the head sentence with respect is outside the normal range of a partially suspended sentence for a first instant guilty plea -

(a) the learned sentencing judge erred in failing to place sufficient weight to the appellant's first instant guilty plea;

(b) the learned sentencing judge erred in failing to place sufficient weight to the appellant's psychological report (and that) the appellant was so intoxicated with alcohol that he could not be questioned until the next day; and

(c) the learned sentencing judge erred in failing to place sufficient weight to the appellant's self-motivation in the Bendigo Prison drug and alcohol programs.

2. The learned sentencing judge erred in not taking into account when passing sentence the period the appellant had been in custody prior to being sentenced.

65. As argued before us, there were two issues raised by the grounds of appeal. The first concerned the question of totality in sentencing and the second issue was whether the sentence imposed was manifestly excessive. There is obviously some overlap as between those issues.

68. The question whether his Honour failed, appropriately or at all, to apply the principle of totality was primarily concerned with the fact that when his Honour sentenced the appellant on these offences the appellant was then in prison undergoing sentences which had commenced after his arrest on the present offences. It was submitted that his Honour, although being aware of the fact that the appellant was already undergoing sentences on other offences, failed to have regard to those sentences when determining the proper sentence that should be imposed on the present offences. In so doing, it was submitted, his Honour did not have regard to the principle of totality as it was to be applied to an offender being sentenced when subject to an existing sentence[1].

71. Having been arrested on the present offences it was quickly discovered that a warrant was outstanding with respect to a sentence of imprisonment of six months which had been imposed in 1995, but stayed upon the appellant appealing the sentence to the County Court. He failed to attend for the appeal, which was struck out and a warrant had been issued. In addition, the appellant had a number of other outstanding charges from 1995 for offences of dishonesty, and driving while disqualified. For those offences, on 2 April 2001 he was sentenced to an aggregate of seven months' imprisonment of which five months were to be served concurrently with the sentence of six months which he had commenced to serve on 30 March 2001. On the same day he was sentenced to one month, cumulative on the other sentences, for a separate offence of escape custody, which occurred in March or April 2001.

74. Thus on 24 August 2001, when the learned sentencing judge came to deal with the appellant on the present offences, he had already served five months and had a further four months to serve on the existing sentences. The complaint about totality is that the effective sentence of four years really should have been treated as a sentence of four years five months, and the non-parole period should have also been treated as, in effect, five months longer. Viewed in that light, the principle of totality, so it was submitted, would have required that the sentence be lower than that which was in fact finally imposed.

77. As to the complaint that the judge failed to have regard to the principle of totality, no error was identified in anything his Honour said which reflected that he failed to give proper weight to the principle. Although it was submitted that his Honour might have said expressly that he was applying the principle of totality, it was conceded, as I understood it, that his Honour had made express enquiries as to the sentence which the appellant was undergoing, which enquiries were consistent with his Honour having the principle in mind. It was not contended that any form of words was required to have been uttered by his Honour if he was applying the totality principle. In the end the complaint on this ground came down to the question whether the sentence itself demonstrates by its severity or its structure that the principle could not have been properly applied.

80. I am not persuaded that any such error has been demonstrated. His Honour was not concerned with the question of time served awaiting sentence for the purposes of s.18 of the Sentencing Act 1991, so his Honour's enquiries and discussion about the length of time to be served, and which had been served, must have been with respect to the question of totality, and nothing in the sentence suggests to me that his Honour did not have proper regard to that principle. The complaint that principles of totality were not properly applied as is raised by ground 2 is not made out, in my opinion.

83. I turn then to the ground asserting that the sentence was manifestly excessive.

86. In sentencing the appellant the learned sentencing judge took into account the fact that he had pleaded guilty and that his pleas of guilty reflected true remorse on his part. He considered that the appellant's numerous prior convictions for violence were highly relevant, as was the fact that the appellant had an alcohol problem. A report from a psychologist was tendered, as was a letter from a representative of Alcoholics Anonymous and a note from the Bendigo Prison Drugs and Alcohol Program.

89. His Honour accepted that the appellant was remorseful and concluded that, notwithstanding the appalling record of the appellant, and also his alcohol and drug addiction, there was some sign that his rehabilitation might yet be possible. His Honour accepted that the appellant wanted to overcome his addiction but considered it would be difficult for the appellant to succeed in that ambition.

92. No victim impact statement was filed in this case. His Honour had regard to matters personal to the appellant including his prospects of rehabilitation but held that he must also take into account the question of general deterrence, as his Honour said, "which is of considerable importance in cases of this sort". His Honour also considered protection of members of the community to be important.

95. In fixing sentence his Honour noted that he imposed a shorter non-parole sentence than would otherwise have been appropriate. He did so "because I see some hope for your rehabilitation and because you will undoubtedly need some help and supervision if you are going to get your life in order as you hope to do".

98. It is apparent that the learned sentencing judge had some sympathy for the circumstances of the appellant. A report by a psychologist indicated that the appellant had left school at the age of 14½, had literacy difficulties and was subject to violence from his father. Notwithstanding his father's violence the appellant was shocked when his father died when the appellant was 13 and the appellant started drinking soon after that event and throughout his life thereafter had an alcohol problem. The appellant had, however, made a strong attempt to avoid alcohol and for four years prior to these offences, with the support of Alcoholics Anonymous, had not been drinking alcohol. He had, however, been using marijuana and amphetamines to a point where he developed a dependence. As the appellant's record indicates he had had a long career in crime and described himself to the psychologist as having been institutionalised until he met Ms Beare. Since meeting her he had not been in gaol after 1993.

101. The psychologist assessed the appellant as having a potentially serious level of depression with a history of suicide attempts. The psychologist, Ms Lorna Atkinson, reported however that the appellant was highly motivated to do something about his drug and alcohol problems and he had asked to be sent to Bendigo Prison because that prison had a drug and alcohol program. A psychological report showed him to be a person of below level intelligence who had difficulty thinking logically about cause and effect of his behaviour. On the night of these events the appellant had mixed alcohol and drugs and at the time of these offences he was in a highly emotional state.

104. As is frequently said, a complaint that a sentence is manifestly excessive does not admit of much argument. It either appears to be so to the observer or it does not. Factors which should have led the learned sentencing judge to take into account and to mitigate the sentences which were imposed were said to have been as follows:

(a) the style and nature of the offences for which the appellant was already serving a sentence; (b) the appellant's genuine remorse for his offending, and his plea of guilty; (c) his efforts at rehabilitation prior to his conduct on 29 March 2001; (d) the circumstances of the offence arising out of intoxication and a situation of crisis following the breakdown of his relationship; (e) the fact that the victim had declined to lodge a victim impact statement and had been corresponding with the appellant since his incarceration; (f) the efforts made by the appellant since being imprisoned to rehabilitate himself from drug and alcohol addiction; (g) the last prior conviction for violence had occurred some fifteen years previously.

108. It seems to me that all of those factors, either expressly or by implication, were taken into account by the learned sentencing judge, and he said that he was fixing a non-parole period which was slightly shorter than might otherwise be appropriate. That reflects the fact that his Honour was giving full weight to mitigatory factors.

111. This was however a case where a substantial sentence was inevitable. I understand the force of the submission made by Ms Dixon that the effect of this intervention order may have been diminished in some ways by virtue of the fact that notwithstanding its existence the victim continued a relationship with the appellant which was not contemplated by its terms. But the events which happened here arose not in the context of a stale order which had been disregarded by mutual agreement, but in the context of an order which had been made in Finley the very day of the offences, after a serious altercation between the parties and the removal of a child. This was an extremely serious aggravated burglary in those circumstances, and would have been so even if one did not have regard to the very poor record of prior convictions of the appellant, including prior convictions for violence.

114. The victim and her children were terrified by these events, not surprisingly so. They did not know the gun was a replica, and the fear that she would be killed which the victim expressed to police is entirely understandable.

117. In many ways the appellant is an unfortunate person who has battled many disadvantages in life, and had made real efforts to overcome his addictions.

120. In my view, however, his Honour recognised that to be so and gave what mercy might properly be allowed to the appellant in these circumstances.

123. I am not persuaded that the sentence imposed was manifestly excessive, and in my opinion, both grounds having failed, the appeal should be dismissed.

131. I also agree. I would add that, if his Honour did take into account the stale nature of the offences for which the appellant was already serving a sentence, that was a fact which in my opinion, in the circumstances of this case, was not entitled to any weight.

138. The order of the Court therefore will be that the appeal be dismissed.

[1] See Postiglione v. The Queen [1997] HCA 26; (1997) 189 C.L.R. 295, at 308, 340; R. v. Harrison (1990) 48 A.Crim.R.197, at 198-199_._