R v Close [2004] VSCA 188

9. The trial proceeded, and on 26 November 2003 the jury returned verdicts of not guilty in relation to count 1, and guilty in relation to count 2. The proceedings were adjourned to 2 March 2004 when the judge commenced hearing a plea in mitigation. On 18 March the judge sentenced the appellant on the count of recklessly causing serious injury to three years' imprisonment and on the count of arson to 12 months' imprisonment, of which three months was to be served cumulatively upon the sentence on count 2. The total effective sentence therefore became three years and three months. The judge fixed a non-parole period of 18 months.

12. On 1 July 2004 the appellant was granted leave to appeal pursuant to s.582 of the Crimes Act 1958. He now appeals on the following grounds -

1. The total effective sentences and non-parole period are manifestly excessive;

2. The judge erred in giving no weight to the fact that the degree of injury suffered by the victim was not intended by the appellant;

3. The judge erred in giving no weight to the appellant's severe depression;

4. The judge erred by giving insufficient weight to the ill health of the appellant's partner, and the potential impact of incarceration on the appellant's four young children;

5. The judge erred in consideration of the principle of totality by giving insufficient weight to the appellant's service of a term of imprisonment, including completion of parole, subsequent to the commission of the offences;

6. The judge erred in giving no weight to the delay between the date of offence and the date of sentence.

21. The facts giving rise to the offences were as follows. Late at night on Thursday 27 September 2001, the appellant went to premises at 14 Cornell Court in Frankston which were occupied by Jason Davidson, and the victim, Lindsay McCuddin. McCuddin had for some time been staying at the appellant's house, the latter having taken him in when he was homeless. The three men sat in the lounge room for some time drinking and smoking. Davidson eventually went to bed, leaving the appellant and McCuddin talking in the lounge room. In the discussion which followed the appellant accused McCuddin of having raped the appellant's partner at a time when she was pregnant with their twins, who were now 8 years old.

24. At 3.15 a.m. (on 28 September), the appellant went out and sat in a Peugeot car outside 14 Cornell Court. The car had been driven there by McCuddin, who had been given the use of it by Davidson, the owner, while deciding whether to buy it. The appellant used McCuddin's mobile telephone to call his partner, to whom he spoke at length about the rape allegation. His partner told him to come home, but he responded that it wasn't fair that Lindsay [McCuddin] was "getting away with it" [the alleged rape].

27. At 4.35 a.m. the appellant finished his conversation with his partner and re-entered the house where McCuddin was sitting in the lounge room watching pornographic videos. The appellant again challenged McCuddin about the alleged rape. He later told the police that during this conversation McCuddin taunted him with comments like "probably the best root she's ever had". The appellant then told McCuddin to leave his home and take his possessions with him. As the appellant walked away from McCuddin, he punched the appellant over the ear and the appellant then fell to the ground. As he did so McCuddin then said "If you think that's bad what I did to your missus, wait till you see what I do to your daughter. Your daughter's got a beautiful body, she's got a beautiful arse." The appellant told the police later that he then snapped, that he punched McCuddin in the head, causing him to fall to the ground. The appellant then took a wine bottle from the mantelpiece and struck McCuddin more than once about the head, causing him to lose consciousness. The appellant then went to the bedroom of the house where Davidson was sleeping, and told him what had occurred. He then left the house, taking with him the Peugeot which had been brought there by McCuddin. Davidson went to the lounge room and found the victim lying on the floor bleeding from the head. He was unable to get him off the floor and called an ambulance.

30. Dr Mohan Kamalanathan examined the victim in the emergency department at Frankston Hospital at 6.17 a.m. on 28 September. McCuddin was at this stage still unconscious. A diagnosis of severe head injury was made. A CAT scan of the victim's head revealed fractures at the base of his skull, a depressed fracture of the left frontal bone involving the sphenoid bone causing protrusion of the left eyeball, and a fracture of the left cheekbone. There was marked brain swelling and raised pressure within the brain. Dr Kamalanathan concluded that the victim's injuries were consistent with the application of significant force to the head using a blunt object. The victim now has little or no recollection of the attack. He was in a coma in hospital for nearly three weeks after 28 September. On 14 November 2001 he was transferred to Caulfield Rehabilitation Facility and was later an outpatient at the Alfred Hospital. He now takes medication to control epilepsy, he complains that he cannot work or drink alcohol and that his medication makes him feel "funny". He is now cared for by his sister and brother-in-law. He will need supportive accommodation for the rest of his life. A victim impact statement filed during the plea on behalf of his family asserts that he now has the mind of a five-year-old. The victim was 43 when he was attacked, and as a result of the attack upon him his enjoyment of the rest of his life is, to say the least, gravely diminished.

33. The Peugeot sedan taken by the accused from 14 Cornell Court was kept by him until early Friday morning, 5 October. On that day the appellant drove the Peugeot to Langwarrin, where he cut the car seats and poured petrol inside the vehicle and then sit fire to the car. The vehicle was not in fact owned by the victim but had been lent to him with a view to purchase. The vehicle was totally destroyed by the fire. It was said during the plea (twice) that the car had a value of $200.

36. The appellant was interviewed by police on 26 October 2001. He made numerous admissions in the record of interview including that his intention was to "bash" the victim. He told the police that he was hoping to permanently scar the victim's face with the bottle that he had used to assault him about the head; however, the bottle would not break. He told the police that he burnt the Peugeot in order to get rid of any evidence.

39. It is convenient to take first ground 2. Mr Carter submitted that the judge gave no weight to the fact that the degree of injuries suffered by the victim was not intended by the appellant. There was no question but that the victim suffered severe injuries to the head, although it was put by Mr Carter that the evidence as to the extent of the brain injury lacked clarity. He argued that even accepting that the victim's brain injury was permanent, the verdict of recklessly, rather than intentionally, causing serious injury meant that the appellant could not be sentenced on the basis that he had intended the degree and nature of injuries suffered by the victim. The jury's verdict, so the argument ran, was consistent with the appellant's account in his record of interview that he had suddenly, and under extreme provocation, snapped and punched the victim, before hitting him over the head with a bottle. Reliance was placed on Economedes[1] and on the observations of Crockett and Hampel, JJ. in R. v. Boxtel[2] to the effect that it is of great importance not to allow the effects of an unintended catastrophe to "swamp" all other considerations. The submission was that it was highly relevant to a proper determination of the level of the appellant's culpability to bear in mind that the results of the assault were not intended by the appellant.

42. I would accept at once that the appellant was not to be sentenced as someone who intended the degree and nature of the injuries suffered by the victim. But there can be no doubt that the consequences to a victim are relevant sentencing considerations.[3] The victim impact statement which sets out how seriously the victim had been injured was not challenged during the plea. The sentencing judge set out the consequences to the victim during his reasons and said that "the consequences to the victim of your attack weigh heavily with this court", a statement which represented no less than the judge's duty in sentencing. The judge was, I think, perfectly entitled to make the findings that he did in relation to the extent of the injury caused by the appellant and there is nothing in the reasons given which would suggest that the judge was sentencing the appellant for intentionally causing injury, rather than the offence of which he had been found guilty.

45. I turn to ground 3. During the plea it was put to the judge that the appellant was seriously depressed, as well as being an insulin-dependent diabetic and suffering from epilepsy. He had on 4 May 2001 committed an offence of armed robbery for which he was sentenced by Judge Kelly on 20 December 2001, some three months after the present offence was committed. Judge Kelly imposed a sentence of 18 months' imprisonment, with a non-parole period fixed of nine months. The appellant was released from prison on 29 August 2002, and has since successfully completed his parole. Tendered on the plea was a report from a clinical psychologist, Mr Bernard Healey, which indicated that the appellant was suffering from "depression (for which he is prescribed medication), anxiety and significant social introversion/withdrawal", as well as a report from Dr Robert Weiss which stated that the appellant became severely depressed after his discharge from gaol in September 2002 and his return to his household. It was argued during the plea that although the appellant could not be said to have been suffering chronic depression at the time the present offence was committed in September 2001, it was none the less clear that at least since September 2002, "and probably earlier", he had been seriously depressed. On the basis of this evidence it was argued that general and specific deterrence should be sensibly moderated and that consideration should be given in particular to the additional harshness of any prison sentence for a person suffering from psychiatric illness.

48. In sentencing reasons the judge made reference to the appellant's state of health, and that he had been diagnosed as a diabetic and suffering from epilepsy in the year 2000. Express reference was not made to the appellant's depression, but this is explicable since counsel had conceded during the plea that he could not establish that the appellant was suffering from depression at the time this offence was committed. The Crown prosecutor during the plea conceded that general and specific deterrence might require "sensible moderation"[4].

51. There is, I think, nothing in the point raised by ground 3. The evidence during the plea did not establish that the appellant's depression was present at the time of, or connected with, the offence, nor was it suggested that it affected his mental capacity at the time this offence was committed. The judge was, on the evidence, perfectly entitled to regard the principles of specific and general deterrence as relevant to the sentencing process.

54. It is convenient to deal with grounds 4, 5 and 6 together. It was argued for the appellant that when seen in conjunction with the personal circumstances of the appellant and his partner, and the impact of a sentence of incarceration of the appellant upon his partner and their children, these matters were sufficiently exceptional to militate against actual imprisonment. It was put that the judge had undervalued this evidence and fallen into error in failing to find that these matters should have a real bearing on the duration and type of sentence imposed. It was also argued that a proper application of the totality principle when combined with the implications of delay required a real focus on the fact that the appellant had served a sentence of 18 months since the offences were committed, in the very early stages of which the Crown had rejected his offer to plead guilty to the offence of which he was 22 months later convicted.

57. Mr McArdle for the Crown submitted that insofar as the effect on the appellant's family was concerned this was not one of the exceptional cases considered in cases such as R. v. Holland[5]. He submitted that the existence and effect of the intervening prison sentence had been noted by the judge in sentencing reasons. His Honour said that he had taken account of the issue of concurrency, and had also noted that an offer to plead guilty to recklessly causing serious injury had been made in January 2001.

60. It is well-established, as Mr McArdle contends, that the circumstances must be clearly exceptional[6] before the impact on an offender's family will lead to the imposition of a lesser sentence. But this is not an absolute rule. Exceptional circumstances have been found to exist where, for example, imprisonment will result in children being left to fend for themselves as best they can without parental supervision or support.[7] The judge, however, took the view that the difficulties faced by the appellant's family were not sufficiently exceptional to have any substantial impact on the sentences.

63. The short chronology already mentioned shows that the appellant committed the offence of armed robbery for which he was sentenced in December 2001 by Judge Kelly on 5 April 2001. He committed the present offence on 28 September 2001. He was then incarcerated for the offence of armed robbery from 20 December 2001 until 29 August 2002. On 17 February 2003, the appellant's trial on the present offence was adjourned on the application of the Crown to 17 November 2003 in order to attempt to obtain a statement from the victim and a neuropsychologist.

66. A significant consequence of the foregoing considerations is that the appellant was denied the opportunity of being sentenced for the present offence in such a way as to permit some concurrency to be obtained with the sentence he was required to serve on 20 December 2001 by Judge Kelly. Had the Crown accepted the offer made on 14 January 2002 to plead guilty to recklessly causing serious injury the appellant might well have received a sentence which would have resulted in him being eligible for parole during the year 2003. Instead he was not actually sentenced until nearly 30 months had passed since the offence was committed.

69. I turn, then, to ground 1, the claim of manifest excess. Mr Carter did indeed seek to argue under this ground that the individual sentences and total effective sentence all fell outside the range of a sound discretionary judgment in the circumstances, and that the relevant range had also been exceeded by reason of the specific errors argued by him under the other grounds.

72. Mr McArdle submitted that the sentence was not manifestly excessive, and that the sentence was within the range available to the judge in the circumstances of the case. In addition to the arguments previously mentioned, he put it that while his Honour had made no specific reference to the effect of delay as a sentencing consideration, it would not have escaped the judge's attention insofar as his Honour had noted the offer to plead guilty to recklessly causing serious injury made in January 2001 at the outset of the sentencing reasons. The judge, however, made no reference to the fact that the appellant had successfully completed his period of parole in the sentence imposed by Judge Kelly.

75. The statement of the facts already set out persuades me that the appellant was indeed subjected to provocation of the most extreme kind. The provocation, a rape of his partner, a highly offensive taunt which flaunted the rape, followed by a threat to do worse to the appellant's daughter, would, in my view, have provoked any reasonable person to the most intense anger and likely violent retaliation. There was every reason to accept that the appellant "snapped", as he put it, before commencing his attack on the victim. The judge I think accepted this view of the offence.

78. The report of Dr Weiss stated that if the appellant were gaoled, "there will be serious adverse effects on his children and wife as evidenced from his previous incarceration. These behavioural issues are already serious and will no doubt be exacerbated in his absence." The reasons for this opinion were elaborated in Dr Weiss's report where he said -

"Whilst he was in gaol his wife Colleen was unable to cope with the four children whose behaviour deteriorated dramatically with Mr Close out of the house. Mrs Smith has severe asthma and has been admitted to the ICU at Frankston Hospital over six times in the past two years due to life-threatening episodes of asthma. She cannot manage the children alone and has had to have children in foster care or boarding with relatives while her husband was in gaol. The children had become abusive, defiant, absenting themselves from school, and generally losing their boundaries as there insufficient discipline or guidance [sic]. Before Mr Close had been in gaol, the children had much fewer problems. Despite having major issues with depression and poor control of his diabetes, Mr Close was able to slowly improve the children's behaviour and general welfare, as well as support his wife during her frequent illnesses with asthma, both while she was in hospital or at home in bed."

The effects on the children are also described in a report provided by Ms Carole Reed, the principal of the Frankston Heights Primary School.

83. To these factors should be added that, as I have already observed, the appellant lost some prospect of concurrency in the imposition of sentence in consequence of the delay in bringing this matter to trial, for which he bore no responsibility, delay which might have been greatly reduced had his offer to plead guilty to the offence of which he was later convicted been accepted when it was offered.

86. In the all circumstances I am persuaded that error has been established under ground 1 in the sentence imposed on count 4, and in the non-parole period. In my view a sentence of 12 months' imprisonment is manifestly excessive having regard to the value of the car. I would substitute a sentence of three months' imprisonment on this count, and order that it be served concurrently with the sentence imposed on count 2. I would leave standing the sentence of 3 years' imprisonment imposed on this count. The total effective sentence would therefore become 3 years' imprisonment. Having regard to the various matters discussed above, I would regard the non-parole period fixed of 18 months as excessive, and would substitute a new non-parole period of 12 months.

90. I agree that the appeal should be allowed, substantially for the reasons which have been given by Charles, J.A., and I agree that the sentences which he proposes should be imposed. The sentence of three years which was imposed for the recklessly causing serious injury is one which I think was open to the judge in all the circumstances, even though I think that his Honour might well have given some consideration, in the special circumstances of this case, to the consequences of the incarceration to the family of the appellant. Nevertheless, it seems to me that the sentence of three years for the recklessly causing serious injury was one which, as I have said, was open to him. However, I think the sentence imposed on count 4 was manifestly excessive having regard to the low value of the car.

94. I am not persuaded that the judge erred in imposing a sentence of three years on the count of recklessly causing serious injury and I am not satisfied that that sentence was manifestly excessive. However, I agree with Charles, J.A. and Winneke, P. that, having regard to the small value of the car, said to be no more than $200, the sentence which was imposed on the count of arson was excessive, and I agree with the sentence and non-parole period which they propose.

100. The formal orders of the Court will be that the appeal against sentence is allowed. The sentences imposed below are set aside and in lieu thereof the following sentences will be substituted:

Count 2 (recklessly causing serious injury) - three years' imprisonment;

The total effective sentence will therefore be one of three years.

The Court orders that the appellant serve a minimum term of twelve months before becoming eligible for parole.

The Court declares that the appellant has already served a term of 242 days of the sentences imposed. We make that declaration pursuant to s.18 of the Sentencing Act and the Court directs that that declaration and its details be noted in the records of the Court.

[1] (1990) 58 A.Crim.R. 466 at 469.

[2] [1994] VicRp 54; [1994] 2 V.R. 98 at 103.

[3] Mallinder (1986) 23 A.Crim.R. 179 at 180; Econemedes at 468.

[4] R. v. Yaldiz [1998] 2 V.R. 376 at 381.

[5] [2002] VSCA 118.

[6] Carmody (1998) 100 A.Crim.R. 41 at 46.

[7] Boyle (1987) 34 A.Crim.R. 202 at 205; applied in this Court in Yates (1998) 99 A.Crim.R. 483 at 486.