R v Caldwell [2005] VSCA 15

9. After a plea, the judge on 17 December 2003 sentenced the appellant to be imprisoned on the count of burglary (count 1) to two years', on the first count of intentionally causing serious injury (count 2) to four years', and on the second count of intentionally causing serious injury (count 3) to 18 months' imprisonment, and on the count of possessing cannabis the appellant was convicted and discharged. With cumulation the total effective sentence was four years and ten months' imprisonment. Her Honour fixed a non-parole period of three years and six months.

12. Arraigned with the appellant was a co-offender, Kevin George Wilkinson, who on 15 December 2003 pleaded guilty before the same judge to count 1 on the same presentment, namely burglary with intent to assault. Wilkinson admitted 53 previous findings of guilt from appearances in the Magistrates' Court in 1991. He was sentenced on the count of burglary to be imprisoned for six months wholly suspended for two years.

15. The appellant originally sought to appeal on the ground that the sentence is manifestly excessive, but today the Court on the appellant's application substituted a new ground, that the sentence is manifestly and unjustifiably disparate from the sentence imposed upon Wilkinson. The appellant had been granted leave to appeal under s.582 of the Crimes Act 1958 on 20 August 2004.

18. The circumstances giving rise to these offences were as follows. The appellant, who is now aged 32, was on 10 June 2001 owed a sum of somewhere between $200 to $250 by the victim, Brett Collins, who lived at 4 Euroka Crescent, Churchill. Collins, and a person with whom he shared the premises, Justin Ahearn, were at home that evening. At about 8 p.m. Ahearn left Collins at that address and walked to a nearby shop, while the latter fell asleep in a lounge chair. Collins's next recollection was sitting on a couch and finding in front of him two police officers, who told him that he had been hit. He was taken by ambulance to hospital where his injuries were found to include a cut to the top of his head requiring five stitches, internal stitches in his mouth and a plate inserted into his jaw in an operation performed on 11 June. Collins has no memory of what happened to him or how he sustained his injuries.

21. Collins's father, William Dunstan, was at his home nearby with his sister-in-law, Pauline Bransgrove, and several others. Shortly after 8 o'clock, Ms Bransgrove went to a nearby shop. As she walked back, she saw a car stop and two persons get out, both of whom went to the front door of Collins's house. The smaller of the two (Wilkinson) banged on the door and the larger (the appellant) kicked the door in. Both entered the house and Ms Bransgrove heard screaming. She immediately ran and told Dunstan, who went towards the source of the noise and walked across the front lawn of Collins's house. Dunstan stepped down from a retaining wall on to the footpath. He then saw the appellant standing over Collins, who was huddled on the ground. Collins was being repeatedly struck by the appellant, and Dunstan saw Wilkinson standing to the left of the appellant. The appellant then struck Dunstan twice with considerable force to the left arm as the latter tried to shield himself with his arms. At this stage Dunstan realised that the huddled victim of the attack was his son, Brett Collins. Dunstan attempted to escape by climbing the retaining wall. However, he was struck on the head by the appellant and fell to the ground, briefly unconscious. Dunstan's injuries included severe bruising and swelling to his left wrist and elbow or upper arm, resulting in considerable pain, a six-centimetre cut to his right forehead and a severely bloodshot right eye.

24. When Ahearn returned to 4 Euroka Crescent, he saw Collins being assaulted as he lay on the ground next to the appellant's car. He saw that the rear passenger door of the car was open, and Dunstan attempting to intervene and the subsequent assault upon him.

27. In a tape-recorded police interview, the appellant admitted that he was owed $250 by Collins as repayment for a loan, and that he was driving his motor car when it started playing up and stopped outside 4 Euroka Crescent. He said he saw Collins poke his head out the front door and that he chased him through the open door and punched him. He denied having a weapon. He said he asked Collins for money, but Collins said he did not have any, so he hit Collins near the doorway. He said he dragged Collins down the stairs and down to the retaining wall intending to take him back to his place. He asked Collins for money. At that point Dunstan came running over and the appellant hit Dunstan, saying that he did not know if Dunstan was intending to assault him. He said that he hit Collins twice, once to the head and once to the chest, and kicked Dunstan to the torso area when he was approached by him. He admitted that he was "pretty pissed" at the time. He denied kicking in the front door of Collins's house or that he had a steel or metal pole with him. He said that after the incident he drove to his parents' home and then to Portland and Mt Gambier as he thought he had "buggered up" and did not want to lose his son.

30. The appeal now is related solely to the question of disparity. The judge gave careful consideration to the question of parity in sentencing, and her Honour was indeed sentencing the co-offender Wilkinson on the same day. As to parity her Honour said[1] -

"In the particular circumstances of this case and the count which is common to you both, Mr Caldwell, your involvement in the crime of burglary can be distinguished by the following aggravating factors; (1) you and you alone were motivated to commit this crime. It is not apparent that you gave any indication or forewarning to Wilkinson of your intentions in visiting Collins' residence. (2) There is indication in the records of interview that your motor vehicle or one driven by you was used to convey you both to the scene of the crime. (3) You stopped the car outside Collins' residence and approached his house. You also eventually conceded that you broke through his front door and thereupon assaulted and/or dragged Collins outside where you committed a further vicious assault. These factors should properly be reflected in a degree of sentencing disparity in relation to the offence brought against both you and Wilkinson."

34. Mr Boyce for the appellant in this Court said that the appellant and Wilkinson had been jointly charged with burglary. The Crown case against the appellant was that he had a grievance against Collins, and that he and Wilkinson had been drinking together when the appellant decided to visit his brother. They travelled in the appellant's car to the victim's house. Wilkinson knocked at the door. The appellant kicked in the door and both the appellant and Wilkinson entered the house. It was alleged that the appellant entered the house as a trespasser with intent to commit an assault, whereas Wilkinson was said to have aided and abetted the appellant's burglary. Mr Boyce conceded that the appellant had a significantly greater history of criminality than Wilkinson. The appellant admitted the previous convictions to which reference has already been made. Wilkinson on the other hand, while admitting a considerable number of offences, had never previously spent time in custody, and his last recorded offence was on 6 September 1991. The Crown sought an immediate custodial sentence in the appellant's case, but not in the case of Wilkinson.

37. Mr Boyce argued that the judge listed three aggravating factors not present in Wilkinson's case which applied to the appellant. He conceded that the offence was motivated by the appellant without prior warning to Wilkinson and that the appellant's car had been used to convey both offenders to the scene. But as to the factor listed (3) in the passage from her Honour's reasons quoted above, he submitted that it was an invalid point of distinction which offended both the rule in R. v. Newman & Turnbull[2] and the rule against double punishment.[3] He argued that the nature of the assault actually perpetrated upon the victim was not a circumstance of the burglary offence and had in fact been a separately charged offence the subject of separate punishment.

40. Accordingly, it was argued that taking into account all the circumstances relating to the offending and each offender there was no proper basis for the distinction in penalty imposed on the count of burglary. He submitted that the error identified above had contributed to the imposition of manifestly disparate sentences on the count of burglary and that this Court should intervene so as to impose a lesser penalty on the appellant for the count of burglary.

43. An appellate court will intervene on the grounds of disparity where such disparity is manifest and would engender a justifiable sense of grievance or give the appearance to an objective observer that justice has not been done; R. v. Taudevin[4]; Lowe v. R.[5]

46. 15 The appellant is, I think, right to contend that the third factor relied on by the judge to distinguish the appellant's case from that of Wilkinson was an invalid point of distinction, precisely on the grounds argued by Mr Boyce. But it does not follow that there was any error in the ultimate sentence. The roles of the two offenders, as the Director of Public Prosecutions submitted to this Court, were completely different. Wilkinson was only ever part of the enterprise as an assistant to the appellant and his prior criminal history was entirely different from the appellant's. The appellant had a very bad record for violent offending, whereas Wilkinson did not, and was not shown to have offended at all since 1991. Furthermore, only six months of the sentence for burglary was accumulated on the other sentences. The difference between the sentences imposed on the count of burglary in the cases of the appellant and Wilkinson was both understandable and entirely appropriate and there was no error in the order for cumulation of six months of sentence relating to the count of burglary.

49. Given the circumstances of the offence and the appellant's prior convictions, the sentence imposed on the appellant was, I think, lenient. The ground claiming disparity is not made out. The appeal should be dismissed.

61. The formal orders of the Court are as follows:

1. The Court grants leave to the appellant to amend the grounds of appeal in accordance with the notice given on 1 February 2005.

[3] Pearce v. The Queen (1998) 194 C.L.R. 610 at 623-624.

[4] [1996] VICSC 7; [1996] 2 V.R. 402 at 404.

[5] [1984] HCA 46; (1984) 154 C.L.R. 606.