R v Christopher [2007] VSCA 290

Court of Appeal (Vic)|2007-11-27|Before: CHERNOV, VINCENT and NEAVE JJA

CRIMINAL LAW - Sentencing - Sentenced to 24 months for aggravated burglary (count 1), 18 months for causing serious injury intentionally (count 2), and 12 months for causing injury intentionally (count 3) - Orders for cumulation resulted in a total effective sentence of four years, with non-parole period of two and a half years - Co-offender previously sentenced by another judge to longer individual sentences on count 2 (24 months) and count 3 (18 months), but to the same total effective sentence - Whether sentencing judge offended the principle of parity by cumulating greater proportion of lower individual sentences to reach the same total effective sentence - Appeal allowed - Individual sentences re-imposed, but orders for cumulation decreased - New total effective sentence of three and a half years, with a non-parole period of two years.

2 The appellant, Paul Christopher, pleaded guilty to one count of aggravated burglary (count 1), one count of intentionally causing serious injury (count 2) and one count of intentionally causing injury (count 3). He was sentenced by a judge in the County Court to two years' imprisonment on count 1, 18 months' imprisonment on count 2 and 12 months' imprisonment on count 3. The learned sentencing judge directed that 15 months of the sentence on count 2 and nine months of the sentence on count 3 were to be served cumulatively on the sentence imposed on count 1. This resulted in a total effective sentence of four years. A non-parole period of two-and-a-half years was fixed. On 31 August 2007, this Court granted the appellant leave to appeal against the sentences.

3 The offences occurred in the following circumstances. The appellant was a friend of the victims, Ms Ikram Abadid and her de facto partner, Mr Andrew Fischer. Prior to committing the offences, the appellant lent Ms Abadid and Mr Fischer some money and cigarettes.[1] On 22 February 2005, the appellant telephoned the victims and demanded the repayment of the money. Ms Abadid said she had no money but would pay him back as soon as her Centrelink payment came through. As a result, the appellant became angry and threatened that he would bring his half-brother, Kevin Nuttall, with him to the victims' flat to beat up or even kill both of them. Mr Nuttall grabbed the phone and made similar threats.

4 Shortly after the telephone conversation, the appellant, his half-brother and his half-brother's girlfriend, Charlene Double, caught the bus to the victims' flat.**

Mr Nuttall had with him a billiard ball in a sock, taped to a metal bar, which he had made at the appellant's house. Ms Double had an offensive weapon with her. It appears from the appellant's record of interview that this was a waiter's friend with a small knife attached to it. When they arrived, the appellant knocked on the door and yelled that it was the police. When Ms Abadid saw that the appellant was at the door, she refused to open it. Mr Nuttall then threw a brick through the front window,[2] climbed through it and opened the front door from the inside, allowing Ms Double and the appellant to enter. Upon entering, Mr Nuttall punched Ms Abadid and Ms Double dragged her to the ground while pushing a small knife into her skin.

**5 At the plea, counsel for the appellant said that he was not aware that Ms Double had a knife with her until they got to the flat. In sentencing the appellant, his Honour appears to have taken account of the fact that he was unaware of Ms Double's possession of the knife before they went to the flat.[3]

6 Mr Fischer attempted to escape to his bedroom, where he was again punched and kicked. He locked himself in the wardrobe, but Ms Double dragged him back to the lounge room, while threatening to stab him with a pair of scissors she was waving in his face. Back in the lounge room, Mr Nuttall picked up a plank of wood and hit Ms Abadid several times to the head and upper body. Ms Double then cut off a clump of her hair, threatened to cut off one of her fingers, and stabbed her in the back and shoulder, causing several puncture marks. Mr Fischer escaped through the front door and up the stairs. However, the appellant caught him, and Ms Double, who had followed, threatened to beat him with the piece of wood. Ms Double also cut off some of Mr Fischer's hair, while demanding payment of the debt.

7 In his opening at the plea hearing, counsel for the Crown said that immediately after entering the flat, the appellant had punched and kicked Ms Abadid before doing the same to Mr Fischer in the lounge room and his bedroom. However, in his record of interview, the appellant denied physically attacking the victims and said that he had tried to stop them from fighting. This position was maintained by his counsel at the plea hearing. However, counsel conceded that:**

The issue of whether or not my client in fact made any contact or not, in my submission, becomes irrelevant because at the end of the day, from his own admissions, he was acting in concert.

In his reasons, the learned sentencing judge said that:

...there is no doubt, with respect to the allegations of [the appellant's] role as the principal, [his] knowledge of what was happening and [his] presence in what was going on, it seems to me, in the ultimate result, therefore, that the application of force would make little or no difference to the sentence which would be appropriate to [his] involvement in the matter.[4]

**8 The appellant's written submissions on the appeal state that, in respect of the circumstances of the offending, the roles played by the appellant and Mr Nuttall were different.

9 It seems that Mr Nuttall, Ms Double and Ms Abadid then left the flat. As the police arrived at the scene, Ms Double and Mr Nuttall were seen punching Ms Abadid in the driveway. Upon seeing the police, they ran away, but were caught and arrested. The appellant used this opportunity to walk away from the scene, but was arrested approximately ten minutes later, wearing a bloody shirt and waiting for the bus.

10 Following his arrest, the appellant was interviewed by the police. He admitted to most of the circumstances of the attack but said when he went there he was hoping that the victims would simply pay him back.

11 The appellant relied on six grounds of appeal, two of which were subsequently abandoned. The remaining grounds of appeal were that the learned sentencing judge erred by:**

imposing individual sentences, a total effective sentence and a non-parole period which were manifestly excessive;
failing to give sufficient weight to the principle of parity; and
failing to give sufficient weight to the appellant's mental illness in the orders for cumulation imposed in relation to counts 2 and 3.

12 I begin by considering grounds 4 and 6 together. In his reasons, his Honour said:**

I sentence you as a principal offender. The commission of the offences was it seems to me ultimately your idea with respect to your debt. However, it was an idea that you and your brother shared and pursued actively with Double, and no doubt an enthusiastic participant. Your co-offenders have pleaded guilty and have been sentenced by Judge Gullaci in this matter. I am bound and do take into account parity of sentence principles as they operate with respect to your co-offenders.[5]

Whatever your role on the day, you were the moving force on this particular issue and the principal offender.[6]

**13 Counsel for the appellant pointed out that, despite the significant differences between the individual sentences imposed for counts 2 and 3, the total effective sentence imposed on the appellant was identical to the total effective sentence imposed on the appellant's half-brother, Mr Nuttall, in other proceedings. The learned sentencing judge noted that the sentence he had imposed put the appellant in the same position as his half-brother, Mr Nuttall. Although his Honour had said that he had taken account of parity of sentence principles, counsel submitted that he could not have done so because the different circumstances of the appellant and Mr Nuttall could not have justified the imposition of an identical total effective sentence. It was submitted that his Honour could not have given sufficient weight to parity, particularly when regard was had to Mr Nuttall's more extensive criminal history, the fact that he was on bail at the time these offences were committed, and to the fact that the appellant had a long history of psychiatric illness.

14 Both the appellant and Mr Nuttall were sentenced to 24 months' imprisonment for the aggravated burglary. However, the sentences of imprisonment imposed on the appellant for counts 2 and 3 were significantly less than those imposed on Mr Nuttall. The appellant received 18 months' imprisonment for the offence of intentionally causing serious injury (count 2), compared with the sentence of 30 months' imprisonment which Mr Nuttall received for the same offence. The appellant received a sentence of 12 months' imprisonment for the offence of intentionally causing injury, compared with the sentence of 20 months imposed on Mr Nuttall.[7]

15 It is not entirely clear why his Honour sentenced the appellant to shorter terms of imprisonment on counts 2 and 3 than the sentences which another County Court judge imposed for the same offences in relation to Mr Nuttall. Although his Honour said that Mr Christopher was the instigator of the home invasion, he may have regarded the appellant as less morally culpable for the injuries which were inflicted on Ms Abadid and Mr Fischer because he was not actively involved in the infliction of those injuries. Alternatively, his Honour may have regarded the appellant's mental illness as reducing his culpability to some extent, although I note that his Honour also commented that the circumstances of the case 'are not of a kind that bring into play the provision of such a case as R v Tsiaras'.[8]

16 Assuming that the differences in the individual sentences were intended to reflect the appellant's lesser degree of moral culpability, his Honour's reasons do not explain why he made orders for cumulation which resulted in both offenders receiving the same total effective sentence of 48 months' imprisonment.

17 As counsel for the appellant conceded in his written submission, his Honour did not err in ordering some degree of cumulation of the sentences imposed on the two counts. Counts 2 and 3 involved offences against separate victims. Although the individual counts arose out of a single event, counts 2 and 3 occurred after, and were distinct from, the aggravated burglary (count 1).[9]

18 The Crown's written submission conceded there was a disproportion between the orders for cumulation imposed in relation to counts 2 and 3 when the appellant's sentence was compared with that of Mr Nuttall. However, counsel for the Crown contended that the Court should not uphold an appeal against sentence which was based solely on the structuring of the total effective sentence if the individual sentences, the total effective sentence and the non-parole period were not manifestly excessive. Counsel submitted that his Honour could justifiably have sentenced the appellant to 30 months' imprisonment for the aggravated burglary, or, indeed, to a higher sentence for the aggravated burglary, treated this as the head sentence and made orders for cumulation resulting in a total effective sentence of four years. On that basis, it was said that the total effective sentence did not infringe the parity principle.

19 In my opinion, this Court should not take account of the fact that his Honour could have arrived at the same total effective sentence by imposing a longer term of imprisonment on count 1. In my view, neither the individual sentences nor the total effective sentence imposed on the appellant was outside the range of sentences which could be imposed for offences of this nature and severity. In R v Ash, Eames JA said that: [10]**

If neither the sentences as imposed individually nor the total effective sentence and non-parole period which were arrived at appear to be outside the appropriate range it might not be necessary to set the sentences aside simply because the process in which they were determined did not conform in all respects with a model sentencing approach.

**20 However, in the circumstances of this case, I do not accept the submission that there was simply an error in the structuring of the total effective sentence. That sentence does not reflect the fact that his Honour regarded Mr Christopher as less culpable in relation to the individual offences than Mr Nuttall. His Honour's reasons do not explain why it was appropriate to impose different sentences on counts 2 and 3 on the appellant and his co-offender but to impose the same total effective sentence in relation to Mr Christopher as had been imposed on Mr Nuttall.

21 Mr Nuttall had not previously been convicted of any crimes involving violence, although he had 100 prior convictions from 13 court appearances between 1994 and July 2003. In February 2002, he was convicted of possession of a controlled weapon, and after these offences he was again convicted of the same offence. His extensive criminal history could well have provided further basis for differentiation between the total effective sentences imposed on the appellant and his co-offender. I note also that, though both Mr Christopher and Mr Nuttall pleaded guilty, in sentencing the latter the learned judge 'was not persuaded on the balance of probability that he was remorseful for his criminal conducted and regarded his prospects of rehabilitation as bleak'.

22 In R v Goodwin, Eames JA said that: [11]**

Equal justice is said to require an identity of outcome in cases that are relevantly identical and to require different outcomes in cases that are different in some relevant respect: see Wong v The Queen.[12] Where such disparity was disclosed the Court may intervene even though the sentence does not otherwise disclose error in the sentencing process: see R v Wilson.[13]

**23 In my opinion, the total effective sentence imposed on the appellant was such as to 'engender a justifiable sense of grievance or give the appearance in the mind of an objective observer that justice has not been done'.[14]

24 For these reasons, I consider that grounds 4 and 6 are made out and that the appellant must be re-sentenced. It is therefore unnecessary to consider the remaining grounds of appeal against sentence.

25 The appellant was aged 40 at the time of the offences and 42 at the time of sentence. As the facts set out above indicate, counts 2 and 3 involved significant violence. The appellant knew that Mr Nuttall had a weapon with him when they went to the flat. Although he was unaware that Ms Double was carrying the knife, his Honour found that 'whether or not the appellant actually inflicted physical harm upon the victims, the fact is that he admitted to knowing the inevitability of it happening and must have contemplated the possibility that the victims would be injured'.

26 Ms Abadid suffered a number of stab wounds and was hit over the head with a piece of wood. Her victim impact statement made in January 2006 indicated that she was terrified as a result of the attack and continued to be fatigued, stressed and fearful. At that time she was seeing a psychologist and a counsellor for support. She said she had had to move out of the flat because of the attack. She could not afford to move her possessions and had to leave her furniture, electrical appliances and clothes behind.

27 The appellant admitted to eight previous appearances resulting in 24 prior convictions between 3 June 1989 and 15 May 2002.[15] The majority of those appearances were in the Magistrates' Court in South Australia and Victoria. Although a number of the convictions were for traffic offences, he was convicted in February 2000 of causing injury intentionally, in February 1998 of unlawful assault, in December 1994 of causing injury intentionally and in November 1990 of common assault. In his previous County Court appearance in 2002, he was convicted of various drug and driving offences which resulted in a total effective sentence of 15 months' imprisonment with 11 months of that period being partially suspended for a period of 18 months. At the plea hearing, counsel for Mr Christopher submitted that his client had little or no recollection of a number of these previous appearances because at the time of committing the offences he was 'off the rails and not on medication'.

28 The appellant's personal circumstances were described by his Honour as follows:[16]**

You are aged 42 years, having been born on 7 February 1965. You currently receive a disability pension on the basis of what was described to me as your bipolar condition, and also as a result of anxiety you suffer. Certainly Exhibit C, which I received from Dr Erica Wills sets out that you have been a patient of hers for eight years, and that you are being treated for "Bipolar and anxiety disorder". That report was dated 11 January 2007. I was told that you were born and raised in England, that your parents separated when you were aged 7. Your mother then re-married and a child of the new marriage was the co-accused, Nuttall, who is eleven years younger than you. The family then moved to New Zealand. You were not successful at school, and left in Grade 9 and took up an apprenticeship as a jockey. At aged 18, you returned to the United Kingdom and worked as a jumps jockey and as a stable manager.

Your passion for music involved you in the drug culture, which some associate with that industry. As it was said, your life spiralled downwards from the age of 21, and thereafter you had numerous problems which resulted in you being both an inpatient and an outpatient in various institutions. I was told that you had Lithium as a medication and also electric shock therapy.

**29 The evidence in respect of the appellant's mental illness is as follows. The appellant was examined by Dr Vine, consultant psychiatrist, in May 2005 following his arrest for these offences. Dr Vine said that during the examination the appellant stated he was being currently treated for a bipolar affective disorder, that he was 'coping reasonably well in the prison and denied any significant problems at this time.' The report also noted the appellant's view that on the day of the offences he 'did not believe his mood was different from other days and indeed stated it had been a normal up to that time'.

30 Following a second examination some seven months later, Dr Vine reported that the appellant had 'largely remained stable while in prison'. Dr Vine further noted that the appellant had:**

... a very significant psychiatric history including prolonged in-patient admissions associated with diagnoses of hypomania or mania occurring as a component of bipolar affective disorder. However, he has not had any significant psychotic episodes for a number of years and has remained stable on psychotropic medications.

31 A report of Dr Cedoni, a forensic psychiatrist, prepared after the appellant's release on bail but prior to the sentencing, was consistent with these findings. It concluded that:

Whilst Mr Christopher's past psychiatric history supports a diagnosis of bipolar disorder, there is no clear evidence that this disorder has been significantly active in recent years, including at the time of the offence... The mood instability that Mr Christopher may demonstrate may at times be related to his personality rather than to a disorder.

**32 A very short letter from Dr Wills dated 11 January 2007 said that the appellant had been a patient of hers for eight years and that he was being treated for bipolar and anxiety disorder. He was compliant with his medication and was keen to rehabilitate and stabilise.

33 On the basis of the above reports, the learned sentencing judge found that since the appellant had been taking into custody he had been free of drugs, his moods had stabilised and he was compliant with medical treatment. He also found that the appellant was suffering from, and being treated for, bipolar disorder, but that his behaviour at the time of the offences was not linked to that disorder.

34 In R v Verdins, the Court[17] re-stated the Tsiaras[18] principles as follows:[19]**

Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:

The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.

35 Having regard to the medical reports mentioned above, and to his Honour's finding that the appellant's bipolar disorder was not linked to the commission of these offences, the appellant's psychiatric condition does not significantly reduce his moral culpability. There is no evidence that the sentence will weigh more heavily on him or have any significant adverse effect on his mental health. I agree with the learned sentencing judge's view that some weight must be given to specific deterrence, particularly in light of the appellant's prior convictions for offences involving violence. In my opinion, this is not a case in which general deterrence should be significantly moderated because of the appellant's psychiatric condition.

**36 The factors which must be taken into account in the appellant's favour include the remorse indicated by his guilty plea and the fact that his Honour regarded the likelihood of his re-offending as 'limited in the circumstances so long as [he] remains drug free'. I also accept that the appellant does not have a significant history of violent offending.

37 Having regard to all of the above matters and to the issue of parity, I would not alter the sentences imposed by his Honour in relation to the individual counts, but I would make different orders for cumulation.

38 In my opinion, the appellant should be re-sentenced as follows:**

Count 1 (aggravated burglary) - 24 months' imprisonment;
Count 2 (intentionally causing serious injury) - 18 months' imprisonment; and
Count 3 (intentionally causing injury) - 12 months' imprisonment.

**39 I would direct that 12 months of the sentence imposed on count 2 and six months of the sentence imposed on count 3 be served cumulatively on each other and on the sentence imposed on count 1. That results in a total effective sentence of three years and six months. I would fix a non-parole period of two years.

40 I also am satisfied, for the reasons given by Neave JA, that the learned sentencing judge did not exercise sound discretionary judgment on the matter of cumulation, notwithstanding that the individual sentences and the total effective sentence are not necessarily outside the relevant range. It was no mere structural error by his Honour. In the circumstances I consider that the appeal should be allowed and the appellant re-sentenced as her Honour proposes.**

41 I agree that this appeal should be allowed, for the reasons given by Neave JA, and I also agree in the disposition of the matter proposed by her.

The sentences below are set aside and in lieu thereof the following sentences are imposed:
- count 1 - 24 months' imprisonment;
- count 2 - 18 months' imprisonment;
- count 3 - 12 months' imprisonment.
The Court directs that 12 months of the sentence on count 2 and 6 months of the sentence on count 3 be served cumulatively on each other and on count 1, making a total effective sentence of three years and six months' imprisonment.
A non-parole period of two years is fixed.
It is declared that the period of 682 days of pre-sentence detention is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that the declaration was made and its details.

[1] The Crown opening described the debt as $50 and two packets of cigarettes, but elsewhere the appellant said the debt was around $500.

[2] In his record of interview the appellant said that Double had done this.

[3] R v Christopher (Unreported, County Court of Victoria, Parsons J, 6 March 2007), [15].

[7] Ms Double was aged 18 at the time of the offences and had only one previous court appearance which was not regarded as significant by the judge who sentenced her. She received a total effective sentence of 36 months' imprisonment which was wholly suspended for a period of three years. No reliance was placed by counsel for the appellant on the sentence imposed on Ms Double.

[8] His Honour also remarked that he took account of the matters referred to in the psychiatric reports of Drs Vine, Wills and Cidoni.

[9] On the breadth of the discretion to order total or partial cumulation, see R v O'Rourke [1997] 1 VR 246, 253.

[10] [2005] VSCA 43, [31]. See also R v Albanus [2004] VSCA 236, [9] where Callaway JA said that 'structural arguments are to be discouraged'. However in the present case the argument is not purely structural.

[14] R v Goodwin [2003] VSCA 120, [21]. See also R v Taudevin [1999] 2 VR 402, 404 (Callaway JA).

[15] Two other prior appearances, on 1 October 1990 and 18 June 1993, were presented by the Crown, but were not admitted by the applicant. The Crown did not seek to prove the three convictions flowing from those appearances.

[16] R v Christopher (Unreported, County Court of Victoria, Parsons J, 6 March 2007), [19].

[17] Maxwell P, Buchanan and Vincent JJA.

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