R v Clark [2007] VSCA 254

2 At a committal mention in the Magistrates' Court, the appellant, Adam Stephen Clark, pleaded guilty to one count of aggravated burglary (count 1), one count of intentionally causing serious injury (count 2) and one count of theft of a wallet (count 3). After hearing a plea in mitigation, a judge of the County Court sentenced him to the following periods of imprisonment:

3 The learned sentencing judge ordered that six months of the sentence on count 1, and the whole of the sentence on count 3, should be served cumulatively on the sentence on count 2 and on each other, resulting in a total effective sentence of four years and six months. His Honour imposed a non-parole period of three years. The appellant was granted leave by this Court to appeal against the sentences imposed on him. This is the hearing of that appeal.

**4 The offences were committed in the following circumstances. The appellant, his co-accused, and the victim of these offences, Stephen Paul Holt, lived in boarding house in Punt Road, Richmond. The appellant and his co-accused, who has not yet been tried for his alleged involvement in the attack, had known the victim, for about 4 months. The victim was aged 27 at the time of the attack.

5 Earlier that day, Mr Holt had borrowed another boarder's ATM card. The appellant and his co-accused questioned him about its whereabouts and were told**

that he had returned it to the owner. Apparently they were not satisfied with Mr Holt's answer and the appellant repeatedly punched him in the head. The victim offered no resistance, but fled to his room and locked the door.

**6 The appellant and his co-accused followed the victim to his room, where they started banging on his door and yelling obscenities. The two men then smashed a hole in the door with a metal baseball bat. Once this hole was created, the appellant put his arm through the hole and unlocked the door and both men forced their way into the room. This was the basis for the count of aggravated burglary (count 1).

7 Once inside the victim's room they resumed their attack. The appellant again repeatedly punched the victim in the head. After the victim fell to the ground the appellant continued to punch and kick him in the head and body. This was the basis for the count of intentionally causing serious injury (count 2). At one point during the attack, the appellant reached into the victim's back pocket and removed his wallet, which contained approximately $100. This was the basis for the count of theft (count 3).

8 Following the attack the appellant and his co-accused went to a nearby hotel and began drinking. Meanwhile, the victim left the boarding house and asked a neighbour to call an ambulance and the police. He was covered in blood and his face was swollen and cut. He was treated at St Vincent's hospital for concussion, multiple soft tissue injuries, a fracture to the floor of his left orbit and a broken nose.

9 The police arrested the appellant later that evening. Although he had the victim's wallet on him, he initially denied any involvement in the attack, stating that he had found the wallet and was merely holding on to it to return it to Mr Holt. As I have said, he later pleaded guilty to these offences.**

Ground 1 - Errors in the Orders for Cumulation

**10 The appellant relied on two grounds of appeal. The first ground was, in essence, that his Honour's orders as to cumulation with respect to count 1 and count 3, were excessive, given that those offences arose out of the same circumstances and were committed against the same victim as the offence covered by count 2. Counsel for the appellant submitted that the cumulation of 6 months of the sentence for aggravated burglary (count 1) was excessive, because of the close temporal relationship between the two offences. Further, he contended that his Honour should not have ordered total cumulation of the six months sentence for theft (count 3) on the head sentence (count 2). In support of those submissions, he relied upon this Court's decisions in R v Madeira[1] and R v VN[2].

11 In my opinion it was well within the scope of his Honour's sentencing discretion to order six months cumulation of the sentence imposed on count 1. Although the offences covered by counts 1 and 2 were close in time they involved two distinct incidents. The victim retreated to his room and had his door broken down. He was then assaulted by the appellant.

12 The cases relied on by counsel for the appellant are of little assistance to the appellant. In Madeira this Court held that his Honour had erred in ordering cumulation of the whole of the sentence imposed for aggravated burglary on the sentence imposed for the offence of intentionally causing serious injury which was committed on the same occasion. In that case, it was explicitly acknowledged by Vincent JA that some measure of cumulation would have been appropriate.[3] That is what occurred in this case. In R v VN this Court held that his Honour should not have ordered that the sentence imposed for indecent assault, which involved kissing of the applicant, be accumulated on the sentence imposed for an act of incest, which occurred on the same occasion. In VN there was a much closer degree of connection between the two offences than was the case here.

13 The submission that only partial cumulation should have been ordered for the sentence imposed on the theft count was, at first sight, more persuasive. However, as Callaway JA recognised in R v Mantini, the sentencing judge has a broad discretion as to the amount of cumulation which should be ordered.[4] The theft of the wallet was an opportunistic act which occurred after, and was not a necessary consequence of, the offence of intentionally causing serious injury.[5] The appellant broke into the victim's room to find the ATM card, rather than to steal his wallet. The order for cumulation reflects the high degree of culpability involved in stealing a wallet from an injured man, whom the appellant had already beaten. In my opinion, it was within the scope of his Honour's discretion to order total cumulation of the short sentence imposed for count 3. Further, any reduction in the order for concurrency on this count would be mere tinkering, given my conclusion that the total effective sentence was not manifestly excessive.**

**14 The second ground of appeal was that the sentences imposed on the individual counts and the total effective sentence were manifestly excessive. In his reasons, the learned sentencing judge took the appellant's early guilty plea into account. His Honour accepted that the appellant was genuinely remorseful for his conduct and considered that the appellant had reasonable prospects of rehabilitation, but said that it was necessary to be guarded about these prospects, because of the nature and extent of the appellant's prior criminal history. He referred to the appellant's long history of substance abuse, to the fact that the appellant had suffered from depression for many years and to the opinion of the forensic psychologist, Ms Matthews, that the appellant had a borderline personality disorder.

15 Counsel for the appellant submitted that, despite the sentencing judge's allusion to these matters in his reasons, both the sentences on the individual counts and the total effective sentence indicated that his Honour could not have given them sufficient weight.

16 Counsel contended that the head sentence of three years six months imprisonment imposed for the count of intentionally causing serious injury was manifestly excessive, having regard to the victim's recovery from the attack, the appellant's genuine remorse and his guilty plea. Further, counsel submitted that most of the appellant's previous convictions were for driving offences or offences involving dishonesty, rather than for offences involving violence. Although the appellant had previously been convicted of unlawful assaults, assaulting a police officer, causing injury intentionally, causing injury recklessly and threats to kill, these offences were committed in the context of disputes with his father and arose out of the appellant's psychological distress about their troubled relationship.

17 Counsel contended that the sentence of three years' imprisonment imposed on the count of aggravated burglary was also manifestly excessive, having regard to the mitigating factors mentioned above and to the fact that the aggravated burglary and the theft occurred as part of the same events as count 2.

18 It was said that his Honour must have given too much weight to general deterrence and insufficient weight to the appellant's remorse and his prospects of rehabilitation. As I have already discussed, it was submitted that his Honour's orders for cumulation had contributed to a total effective sentence which was manifestly excessive.

19 Counsel for the Crown submitted that the individual sentences imposed for the counts of aggravated burglary, intentionally causing serious injury and theft were well within the range of sentences which could be imposed for these offences, particularly when regard was had to the violence of the attack and the appellant's long history of prior convictions.

20 In my opinion neither the sentences imposed on the individual counts nor the total effective sentence were manifestly excessive. It was necessary for the sentence imposed for the offence of intentionally causing serious injury (count 2) to reflect the violence of the attack, the fact that the initial assault continued after the victim was pursued to his room, and the severity of the injuries inflicted.

21 The appellant had prior convictions for what his Honour described as offences involving 'moderate violence.' On 30 January 2003 the appellant was convicted and sentenced in the Magistrates' Court for offences including one charge of causing injury intentionally, two charges of threat to kill, four charges of unlawful assault and six charges of assaulting the police. The appellant was sentenced to a term of imprisonment of 6 months which was wholly suspended, in addition to being fined and having his driver's licence suspended.

22 After the terms of the suspended sentence were breached the period of six months' imprisonment was wholly restored. On 7 August 2003 the appellant was again sentenced for offences which included one charge of causing injury recklessly, three charges of unlawful assault, one charge of burglary and one charge of resisting a police officer.

23 I do not accept counsel's submission that these prior offences were less serious than those involving assaults on a stranger. Although they were apparently triggered by the applicant's conflict with his father, family members are entitled to be protected by the law from violence.

24 Even having regard to the factors which his Honour took into account, including the appellant's remorse, early guilty plea, history of substance abuse and depression and reasonable prospects of rehabilitation, I do not consider that the sentence of three years and six months which his Honour imposed in relation to count 2, was outside the range of sentences which could be imposed for an offence of this nature and severity. I take the same view in relation to the sentence of three years which his Honour imposed for the aggravated burglary (count 1). Although no victim impact statement was before the sentencing judge, he was entitled to take account of the terrifying nature of the aggravated burglary. Nor is the sentence of 6 months imposed for the theft of the victim's wallet manifestly excessive. For the**

reasons discussed above, I do not consider that the orders for cumulation made by his Honour were inappropriate.

**25 His Honour had to give weight to the appellant's long history of offending- he has previously had 89 convictions from 11 court appearances. As I have said, a number of these convictions were for offences involving violence. The total effective sentence which was imposed by his Honour had to denounce the appellant's behaviour and punish him for the cowardly attack, whilst taking account of the appellant's remorse and the other mitigating factors to which I have referred above. His Honour found that the appellant had exhibited some insight into the effects of drug and alcohol on him and considered that he had reasonable prospects of rehabilitation. In fixing the total effective sentence his Honour was nevertheless required to give some weight to specific deterrence, because of the appellant's recent history of violent offending and an apparent escalation in his use of violence. The need to protect vulnerable people, such as those who live in boarding houses, from physical attack by other residents, also required weight to be given to general deterrence. Having regard to all of the above matters, the total effective sentence was well within his Honour's sentencing discretion.

26 I would therefore dismiss the appeal against sentence.**

27 I agree that the appeal should be dismissed for the reasons stated by Neave JA.

[1] [2002] VSCA 5

[2] (2006) VR 113

[3] [2002] VSCA 5, [32] (Vincent JA).

[4] [1998] 3 VR 340, 349.

[5] Cf R v Musson [1997] 1 VR 656, 660.