R v Cockerell [2001] VSCA 239

Court of Appeal (Vic)|2001-12-11|Before: WINNEKE, P., BUCHANAN and CHERNOV, JJ.A.

Criminal law - Sentence - Inordinate delay in prosecution of case not attributable to applicant - Rehabilitation during period of delay - Powerful mitigating factors - Failure sufficiently to reflect delay and rehabilitation in sentence.

I will invite Chernov, J.A. to give the first judgment in this application.

This is an application for leave to appeal against sentence. The applicant, who was born on 13 May 1970, was presented in the County Court at Melbourne on 8 October 2001 and pleaded not guilty to 13 of the 14 counts charging him with numerous sexual offences and assaults allegedly committed by him in February and March 1996 upon Tamara Walsh, the 17-year-old child of his de facto wife, Julie Walsh. The applicant pleaded guilty to count 14 which alleged that, in March 1996, he recklessly caused injury to Tamara Walsh. That count was the alternative to count 13 which alleged that the applicant intentionally caused injury to the victim. After a trial lasting two days the jury returned verdicts on 10 October 2001 of not guilty to counts 1 to 12, but a verdict of guilty to count 13. The applicant admitted one finding of guilt and 26 previous convictions from 11 court appearances between 23 October 1987 and 14 December 1992. They include a previous conviction for intentionally causing injury. His previous sentences included periods of detention in a youth training centre, a sentence of imprisonment for six months on a charge of intentionally causing injury in May 1991 and a sentence of three months' imprisonment for driving whilst disqualified on 14 December 1992. After hearing a plea for leniency made on his behalf, the learned sentencing judge sentenced the applicant on 15 October 2001 to be imprisoned for six months. The applicant now seeks leave to appeal on the ground that the sentence is manifestly excessive in all the circumstances.

The facts giving rise to the conviction for intentionally causing injury were as follows. As I have said, the victim was Tamara Walsh, the child of the applicant's de facto wife, Julie Walsh. In February 1996 the applicant was residing with Julie Walsh at premises at Coolaroo with Tamara Walsh and her half-sister, Kirstin, the natural

child of the applicant and Julie Walsh and who was then aged 6 years. Tamara Walsh's evidence was that in March 1996 she was seated on the couch in the loungeroom with Kirstin and they had been eating an apple together. Tamara Walsh said that the applicant came into the loungeroom and accused her of watching Kirstin getting undressed out of her pyjamas. She said that her mother said that this was not true and that Kirstin was already dressed. The victim then said that the applicant turned around and punched her in the eye three times with his fist. She said that the applicant then backed away and she went to the bathroom to look at her face. The victim said that the applicant and her mother came into the bathroom and the applicant asked Tamara what had happened to her face. She then said to her mother, "He just hit me", to which the applicant replied, "I blacked out, I don't remember that". The victim said that her injuries included a black eye, a cut and a broken tooth. She said that her eye remained black for a week. During cross-examination the applicant's counsel put it to the victim that she was "giving cheek" to her mother and the applicant, and it was also put that the applicant hit her only once to the side of her face with what was described as a "backhander". These suggestions were denied by the victim. Later in the year, in August 1996, the victim left the family home, and it was not until about 19 October 1996 that she first approached the police and made a statement of her allegations against the applicant. The applicant was interviewed by the police on 28 October 1996. In response to questioning in relation to these events the applicant volunteered, "I gave her a backhander one day and I believed she was leading my daughter astray and she wasn't listening to me". He said that this was the only time he had ever struck the victim. The applicant heard nothing further from the authorities about the matter until he was charged on summons on 11 January 2001. The committal proceeding in relation to the above mentioned charges took place in June 2001.

The judge said in his sentencing reasons that the jury's verdict indicated that they had accepted the Crown case with regard to this incident, that is, that the applicant struck the victim with a clenched fist to the face at least twice. His Honour considered that the assault was a vicious one made by the applicant on a 17-year-old girl who was his de facto stepdaughter when he was in a position of authority over her. Given in particular the applicant's age, his previous offending, his relationship with the victim and the nature of the assault upon the 17-year-old girl to whom he was a de facto stepfather and the impact of the offending upon her, but having regard, inter alia, to the delay which took place in respect of the charge, his Honour sentenced the applicant to a six-months term of imprisonment. No non-parole period was ordered, nor was any part of the sentence suspended.

As I have said, the applicant now seeks leave to appeal against the sentence on the ground that it is manifestly excessive. It was submitted on behalf of the applicant that an immediate custodial sentence was not appropriate in this case and, therefore, the sentence was manifestly excessive. It was also claimed for the applicant that his Honour erred in concluding that the jury's verdict meant that they accepted the Crown case that the victim was struck at least twice by the applicant with a clenched fist. The latter point seems to me to be one that contends for a specific sentencing error and does not merely form part of the argument that the sentence is manifestly excessive. Consequently, as Mr Danos, who appears for the applicant, conceded, it should have been the subject of a separate ground of appeal. Be that as it may, the evidence makes it clear that the applicant viciously struck the victim in the face with a clenched fist, and it was open in the circumstances for his Honour to have concluded on the appropriate standard of proof that the striking occurred on at least two occasions. The injury to the eye and the broken tooth clearly indicate that the victim was struck twice by the applicant. In any event, during the hearing of the plea in mitigation, the applicant's then counsel accepted that the applicant had struck the victim in the face on two occasions. It is true that the applicant interrupted his counsel's submissions to say that he only struck her once, but the judge gave counsel the opportunity to take further instructions on the matter, but counsel did not withdraw the concession.

In my view, given the serious nature of the offence and the circumstances of the offending, I do not consider that, by itself, an immediate custodial sentence would have been manifestly excessive. In this case there are a number of significant aggravating factors that are relevant to the determination of the appropriate sentence to which I have already referred.

It is trite that the ground of manifest excess does not admit of much argument - generally the sentence strikes one as being manifestly excessive or it does not. I recognise that, in considering whether the sentence is manifestly excessive, it is not a question whether this Court would have imposed it had it been in the position of the sentencing judge, but rather whether it is outside the range of sentences properly available to his Honour. It is only when the appellate court finds that the discretion of the sentencing judge has miscarried that it can, by way of re-sentencing, fix what it considers to be the appropriate sentence.

The judge must fix the sentence having regard to the gravity of the offence and of the offending, balancing against that the relevant mitigating factors, including the offender's personal circumstances and paying due regard to relevant sentencing principles. Subject to one qualification, his Honour did just that, as is plain from his sentencing remarks. In my view, however, the learned sentencing judge did not give sufficient weight to two related matters. One is the extraordinary delay in the prosecution of the offence which has not been satisfactorily explained but which, on any view, cannot be attributed to the applicant, and the other is his prospects of rehabilitation. But for that, the sentence was, in my view, well within the range of sentences that were properly available to his Honour.

I turn first to the effect on the sentencing disposition of the delay in the prosecution of the case. Given that the applicant has not offended since the date of the offence in question and has, therefore, gone a long way towards rehabilitating himself, the period of delay is to be reckoned from the date when the offending conduct took place to the imposition of the sentence - R. v. Miceli[1], R. v. MWH[2] and R. v. Todd[3] - namely, from October 1996 to October 2001, a period of some five years. In my opinion this plainly constitutes an inordinate period of delay which, as I have said, has not been satisfactorily explained.

The courts have been recognised that such delay which, as here, cannot be attributed to the offender, constitutes a powerful mitigating factor at a number of levels - see, for example, Miceli[4], Todd[5], R. v. Schwabegger[6], MWH[7], R. v. Blanco[8]. First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her. Further, as Vincent, A.J.A. has pointed out in Schwabegger[9], there is an obvious inconsistency between the claim by the prosecution that the offence is a serious one on the one hand and the seemingly leisurely progress of the prosecution on the other, leading to a justified sense of unfairness in the offender. As Wood, C.J. at CL said in R. v. Blanco[10]:

"... it remains the fact that it is highly desirable that the prosecuting authorities act promptly where they have evidence of serious criminality. If they fail to do so, then they must expect that circumstance to be taken into account in sentencing. It is in the public interest that those who are suspected of serious criminality be brought to justice and be brought to justice quickly, particularly where there is a strong case available against them."

All the above factors to which I have referred operated in this case and, therefore, the delay in this case was a powerful mitigating factor that had to be given due recognition in the sentencing disposition.

Moreover, as I have said, the applicant's rehabilitation has progressed since the offending and there seems to be a real prospect that, with time, he may be fully rehabilitated. This is a very important factor that must be properly reflected in the sentence.

In my view, however, the sentence that was imposed by his Honour does not sufficiently give recognition to these matters. In particular, although his Honour gave some recognition in his sentencing remarks to the delay, he does not seem to have given sufficient recognition to the length and nature of the delay or to the applicant's rehabilitation during that period. I note that in terms, his Honour said nothing in his sentencing remarks about the applicant's rehabilitation during this period. Had these matters been given due weight, the sentence would have been structured in a more lenient way. For that reason, the sentence is, in my view, manifestly excessive. This conclusion entitles the applicant to have the sentence set aside and a fresh sentence imposed by this Court. In my opinion, the undue and extraordinary delay in this case and the applicant's prospects of rehabilitation and the other sentencing considerations to which I have referred would be appropriately recognised and given effect if the applicant were to be re-sentenced to a period of imprisonment of six months with four months of it being suspended on the usual terms.

Consequently, I would allow the application for leave to appeal and re-sentence the applicant as I have indicated.

I agree, for the reasons given by Chernov, J.A., that the application ought to be allowed and the applicant re-sentenced in the manner which his Honour proposes.

1. The application for leave to appeal against sentence is allowed. The appeal is treated as having been instituted and heard instanter; it too is allowed.

2. The sentence imposed below is set aside and in lieu thereof the Court orders that the applicant be sentenced on count 13, that is, the only count upon which he was convicted, to a term of imprisonment of six months.

3. Order that four months of that sentence be suspended for a period of six months from today's date.

4. Declare that the period of 61 days be reckoned as time served pursuant to the sentence imposed and that that declaration and its details be entered in the records of the Court.

Port Phillip, but I'm actually at Beechworth. I came to Port Phillip for the - -

We have set aside the six months' imprisonment imposed on you below, but what we have done is to impose the same nominal term but we are suspending four months of that term. That is, that suspension will effectively operate as from tomorrow, I think. Two months will be up tomorrow. Do you follow?

What this Court has to explain to you is this. The term of four months, that is, the remaining four months of your sentence, has been suspended for a period of six months. What that means is this. You will go out into the community, but the suspension will be hanging over your head. Do you understand that?

But you will need to be on your best conduct for the period of suspension, which is six months from tomorrow. For six months you have to be on your best behaviour, because the law says a man who is on a suspended sentence for the period of that suspension, which in your case will be six months from today's date, if he commits an offence during that time punishable by imprisonment - you understand what that means?

If you commit any offence punishable by imprisonment while the suspension is operative, that is, for six months from today's date, you will not only have to go back and serve the remaining four months of this sentence, but you will have to serve the sentence for whatever offence you commit. Do you follow that?

You have to be of good behaviour for the next six months. Do you understand that?

Please understand it because I am being very serious. There are many cases where we give suspended sentences but people do not abide by them, and then they come back to suffer the consequences. Do you understand that?

[1] [1997] VSC 22; [1998] 4 V.R. 588 at 591 per Tadgell, J.A. with whom Winneke, P. and Charles, J.A. agreed.

[2] [2001] VSCA 196 at [18] per Callaway, J.A.

[3] [1982] 2 N.S.W.L.R. 517 at 519-520 per Street, C.J.

[6] [1998] 4 V.R. 649 at 659 per Vincent, A.J.A.

[8] [1999] NSWCCA 121; (1999) 106 A.Crim.R. 303 at 306 per Wood, C.J. at CL with whom Bell, J. and Smart, A.J. agreed.

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