R v Cotham [1998] VSCA 111

10. The applicant admitted seven prior convictions from three court appearances. The learned judge also received a victim impact statement declared by the complainant, Marilyn Cotham, who is the former wife of the applicant.

13. On 31 March 1998 the learned judge sentenced the applicant to be imprisoned on count 1 for 18 months, on counts 2 and 3 for six months in each case, on count 4 for nine months, on charges 5 and 6 for two months in each case, on charge 7 for four months, on charge 10 for six months and on charge 11 for 48 hours. The learned judge directed that the sentence imposed on count 4 and three months of the sentence imposed on charge 10 of the summary offences be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence of two years and six months' imprisonment. His Honour fixed a non-parole period of 15 months' imprisonment. The learned judge also ordered that the applicant's motor car licence be cancelled and that he be disqualified from obtaining any driver's licence or permit for 12 months.

16. The applicant now seeks leave to appeal against sentence on the grounds that -

2. the learned judge erred in ordering that all of the sentence on count 4 be cumulative upon the sentence on count 1;

3. the learned judge erred in imposing a total effective sentence and non-parole period which infringed against the principle of totality;

4. the learned judge gave excessive weight to considerations of protection of the community.

23. The facts giving rise to the offences committed by the applicant were as follows. The applicant and the complainant were married in August 1984 and there are two children of the marriage, Joshua born on 26 August 1989 and Elise born on 12 August 1992. The applicant and his wife separated in October 1994 and then, following a brief period of cohabitation, finally separated in May 1996. Both separations were accompanied by the grant to the complainant of intervention orders in respect of the applicant. On 17 August 1997 the applicant and the complainant were divorced. An intervention order dated 23 January 1997 issued in the Magistrates' Court at Dandenong was still in operation on 22 September 1997, the date of the first current offences. Six of the applicant's prior convictions involved an offence committed against his former wife, and, as the learned sentencing judge put it, the underlying cause for the commission of the serious crimes with which he was then charged was his inability or unwillingness to cope with the consequences flowing from the breakdown of his marriage and his subsequent divorce, including an order for settlement of property in favour of his former wife.

26. On the evening of 22 September 1997, at a time when he knew the complainant would be out, the applicant entered the complainant's home through a window after cutting a hole in the glass. He waited for the complainant in the house and revealed himself to her after she had put their children to bed. He told the complainant he had come to see the children. After seeing the children he remained in the kitchen for some 45 minutes without incident, but refused to leave. At the end of that period he produced a roll of brown packing tape, telling the complainant he needed to tape her mouth to stop her from screaming. When the complainant attempted to reason with him, he went to a kitchen drawer and drew out a bread knife. The complainant begged the applicant to call a taxi and leave, but he responded by placing the knife on the bench and stated that he did not want to hurt her but would use the knife if he had to. The complainant then submitted as the applicant led her to the bedroom and taped her mouth and legs. He tied fabric strips around her feet and wrists and tied the strips to the bed end and bed head. He explained that he was not going to hurt the complainant but was binding her so that he could get away. These events gave rise to the count of false imprisonment (count 1). By being at the complainant's home and by assaulting the complainant the applicant breached the intervention order of 23 January 1997 (charge 5).

29. Before leaving the house the applicant returned to the complainant and asked her for her purse. She told him where it was, and the applicant found it and removed the complainant's ANZ credit card, her credit union card, and approximately $50 (count 3). When the applicant first confronted the complainant he had taken her keys from the front security door, and upon finally leaving the premises he used her car key to enter and drive off in her Holden Commodore station wagon (count 2). The applicant was at this time disqualified from holding a driver's licence (charge 11).

32. Hearing the applicant drive off, the complainant freed herself and telephoned the police. She made a statement about the night's events, but remained in the house. At approximately 2.40 a.m. the next morning the complainant awoke to find the applicant again in her room. He told the complainant he just wanted to make sure she was no longer tied up. He then remained in the house for the next several hours, finally leaving between 4 a.m. and 5.19 a.m. By returning to the complainant's home, the applicant again breached the intervention order (charge 6).

35. Following these events the complainant left home with her children to stay with friends. On 26 September 1997 the complainant returned to collect some personal items from the house and upon entering found the applicant who had again entered the house by the window he had previously damaged. The applicant said to the complainant, "I just want to talk to you", but the complainant ran back to her friend's home. At the complainant's request the police then went to the house, by which time the applicant had left. The complainant however found that various personal items were missing including two ANZ passbooks and various items with substantial sentimental value. These events gave rise to count 4, and by being at the complainant's home the applicant again breached the intervention order (charge 7).

38. On 9 October 1997 the applicant telephoned the complainant at work, seeking to persuade her to drop the charges against him and the intervention order, and to allow him access to their children. When she refused these requests he told her that he was going to get rid of the property he had stolen from her and that he was going to come after her. He intended her to believe this, although he later claimed he had no intention of carrying out the latter threat. By telephoning and threatening the complainant, the applicant again breached the intervention order (charge 10).

41. On 20 October the applicant was arrested in possession of the stolen car, and was interviewed and made substantial admissions to the above offences. He denied using the knife as alleged, but admitted to being aware in the course of his offending that his wife had been in fear. He said he had gone to the house to see his children and discuss access issues with his wife, and that he had stolen the various items for leverage in negotiation. He had later destroyed most of the property with sentimental value, the theft of which the learned judge properly described as mean and heartless.

44. Mr Gurvich, who appeared pro bono for the applicant in this Court, argued under ground 1 that the learned judge had failed to give sufficient weight to the applicant's early plea of guilty, the absence of relevant prior convictions until 1997, and the applicant's good employment record. He accepted that the learned judge had expressly referred to these and various other mitigatory factors in his reasons for sentence, but submitted that his Honour insufficiently took those matters into account. Under ground 2, Mr Gurvich argued that the total sentence resulted in a punishment that was too severe for the offences because of the direction as to cumulation. He submitted that the prima facie rule as to concurrency in s.16(1) of the Sentencing Act 1991 had not been properly applied, and that although it was appropriate for the learned judge to make some order for cumulation to recognise the different episodes of offending, his Honour should have made concurrent substantial parts of the individual terms. Under grounds 2 and 3, Mr Gurvich submitted that the sentences offended the principle of totality and that the overall sentence exceeded that which could be justified as appropriate or proportionate to the gravity of the crimes considered in the light of their objective circumstances. Under ground 4, his submission was that, although the protection of the community is one of the most important things the criminal law is designed to secure, nevertheless the learned judge had attributed too much weight to the protection of the community and the sentence was excessive on this ground also.

47. Notwithstanding Mr Gurvich's clear and forceful submissions, I do not think that any of the grounds in the application has been made good. Grounds 2, 3 and 4 are, it seems to me, really particulars of the submission that the sentences are manifestly excessive, an issue I shall defer until after I have dealt with Mr Gurvich's other arguments. The learned judge made express mention of the applicant's early plea of guilty, the absence of relevant prior convictions before 1997 and his good employment record. These and other mitigatory factors were referred to in his Honour's reasons in terms sympathetic to the applicant. In so far as complaint is made that the sentence was too severe because of the direction as to cumulation, the circumstances of the offences already set out show that there were separate and repeated episodes of offending which plainly justified - indeed required - a degree of cumulation of sentence. The victim impact statement made by the complainant was admitted without objection by the applicant's counsel and without any request being made for the complainant to be cross-examined. That statement amply justifies the learned judge's comment that the feelings of terror the complainant experienced due to the applicant's conduct come through very strongly in a reading of the statement. Having regard to the circumstances of the offences, and the frequency with which the applicant was prepared to disregard the intervention order, with little or no concern for the effect of his actions on his former wife and their children, it cannot be said that the principle of totality was offended either by the degree of cumulation ordered, or by the total effective sentence and non-parole period which his Honour imposed. Furthermore, I can find nothing in the reasons for sentence to suggest that the learned judge gave excessive weight to considerations of protection of the community. Intervention orders must be strictly adhered to, and it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders. The applicant's actions suggest that he believed he could breach the intervention order with impunity. Only by appropriately severe penalties can the courts make clear to the applicant and the broader community that such conduct will not be tolerated.

50. In the present case specific deterrence is particularly relevant to the question of manifest excess. Dr Lester Walton's report, which was in evidence before the learned judge and to which his Honour referred in his sentencing reasons, makes clear that he found the applicant "less than profoundly remorseful for his actions", and that while Dr Walton believed that the applicant would eventually "get the message regarding [his] failed marriage and desist from this behaviour", Dr Walton said he could not state with confidence that the applicant had yet reached that state.

53. In all the circumstances I cannot say that the sentences imposed were beyond range. As the judge said, the applicant had committed serious crimes which had adversely affected his former wife and children quite significantly. The applicant was, as his Honour found, contemptuous of the intervention order, disregarding it and its terms as and when he pleased. He had been before the court on two previous occasions for breaching that same order and deliberately flouted the law in acting as he did. In all the circumstances I think the sentences imposed cannot be said to be manifestly excessive, or indeed other than merciful.

56. In my view all the grounds urged by Mr Gurvich fail, and I would dismiss the application.

71. The order of the Court is that the application is dismissed.