R v Crowley [2009] VSCA 176

2 The appellant has had a disturbed history, which to some extent explains the offences. The appellant has been diagnosed as suffering from depression and has made more than one attempt to commit suicide. His family has a history of psychiatric illnesses. The appellant has abused alcohol and drugs from an early age; alcohol from the age of 12 years, with binge drinking, and later using ecstasy, amphetamine, ice, speed, LSD and ketamine.

3 The appellant had been in a de facto relationship with one Brooke McDonald for some two-and-a-half years. They lived together in a house at Narre Warren. On 20 October 2006, the appellant argued with Ms McDonald, grabbed her and handcuffed her left hand to the right-hand side of the bed (count 1 - false imprisonment). The appellant attempted to handcuff Ms McDonald's left wrist to the bed, but after a struggle desisted and then released her. At a meeting with Ms McDonald and her mother the following day, the appellant became angry and stormed out of the house. During the course of the day, the appellant sent a barrage of text messages to Ms McDonald. That night, Ms McDonald was telephoned by her sister to say that the house at Narre Warren was on fire. The house was gutted by the fire (count 2 - arson). The appellant had stolen property belonging to Ms McDonald from the house and placed it in his car (count 3 - theft). Four days later, police found the car belonging to the appellant on fire on the Princes Highway at Berwick. The property, which the appellant had stolen, which was in the car, was destroyed (count 4 - arson).

4 Early the next day, the police arrested the appellant at Dandenon`g Hospital. He was remanded to appear at the Melbourne Magistrates' Court. In the course of that hearing the appellant was served with an intervention order obtained by Ms McDonald prohibiting the appellant from contacting Ms McDonald or from attending at premises at Langwarrin owned by Ms McDonald's mother. On 21 November 2006, the appellant was released on bail. A condition of the bail was that he was to reside with his mother in Queensland. On 24 November 2006, the appellant left his mother's home and flew to Melbourne. On arrival in Melbourne the appellant rented a car and purchased three pairs of handcuffs, gaffer tape and a large boning knife.

5 On the night of 28 November 2006, Ms McDonald's mother was alone in her unit at Langwarrin. She heard the sound of tiles being removed from the roof and another sound as of a foot coming down on to the beam in the roof of the house. Ms McDonald's mother ran from the house. The appellant was discovered hiding in the roof space, holding the handcuffs, boning knife and gaffer tape (aggravated burglary - count 5).

6 The appellant left the roof and called a taxi. Police officers intercepted the taxi by driving up to it with their emergency lights operating. The appellant pulled out a long knife from his trouser pocket and raised it towards the chest of the taxi driver. The taxi driver said that the appellant told him to keep driving as fast as he could (unlawful assault and false imprisonment - counts 7 and 6).

7 The taxi came upon red lights at an intersection. The appellant raised the knife towards the taxi driver's chest and told him to go through the red light. He did so (engaging in reckless conduct so as to endanger others - count 8). The taxi was stopped by the police. Police officers told the appellant to get out of the taxi, whereupon he slashed his throat with the boning knife twice, suffering extensive bleeding and injury to his throat. The appellant was taken to Frankston Hospital where he underwent emergency surgery and was placed in an induced coma.

8 After a plea, the appellant was sentenced to be imprisoned for a term of six months on count 1, for a term of three years on count 2, for a term of nine months on count 3, for a term of one year on count 4, for a term of four years on count 5, for a term of six months on count 6, for a term of three months on count 7, and for a term of six months on count 8. On each of the summary offences the appellant was sentenced to be imprisoned for a term of three months. With a measure of concurrence, a total effective sentence of six years and six months was announced, and it was ordered that the appellant serve a minimum term of four years' imprisonment before being considered eligible for parole.

9 The appellant is now 27 years old. He has an older brother and sister. The appellant is in poor physical and mental health. He suffers from severe asthma and auxiliary hyperhydrosis. As a result of a motor vehicle accident in 2002, he suffered a fractured sternum and significant back injuries, which require ongoing medication. As I have said, the appellant suffers from depression. He attempted suicide as a result of the breakdown of a previous relationship and was treated at a mental hospital in Queensland. A psychiatrist in a report tendered to the court described a very significant family history of psychiatric illness.

10 The appellant was granted leave to appeal against the sentence by a single judge of this Court. Two grounds of appeal were advanced. The first was that the sentencing judge erred in sentencing the appellant as a serious arson offender on count 2. Counsel for the appellant in a written argument submitted that although the appellant had been previously convicted on five counts of arson and sentenced on those counts to a term of imprisonment which was suspended, he was then a young offender and accordingly the provisions of Part 2A of the Sentencing Act 1991 did not apply to him.

11 Section 6B of the Act defines a serious arson offender as 'an offender, other than a young offender, who has been convicted of an arson offence for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre'. A 'young offender' is one who was under the age of 21 years at the time of being sentenced. The appellant was born on 10 March 1982. He was more than 21 years old when he was sentenced for the offences the subject matter of this appeal. The fact that the earlier convictions for arson were recorded when the appellant was a young offender did not prevent them being taken into account to determine that the appellant was a serious arson offender when he was sentenced on count 2. Counsel for the appellant at the hearing of the appeal effectively conceded the point.

12 Another ground of appeal was that the sentence was manifestly excessive. Under this ground, counsel for the appellant contended that the sentencing judge's orders for cumulation failed to achieve the total effective sentence which he announced. His Honour said that on count 1 the appellant was to be sentenced to a term of six months' imprisonment to be served concurrently with the sentence imposed on count 5. He said that on count 2 the appellant was to be imprisoned for a term of three years and one year of that sentence was to be served concurrently with the sentence imposed on count 5. On count 3, his Honour said that the appellant was to be sentenced to be imprisoned for a term of nine months to be served concurrently with the sentence imposed on count 5. He said that on count 4 the appellant was to be imprisoned for a term of one year, nine months of that term to be served concurrently with the sentence imposed on count 5. On count 5, the appellant was sentenced to be imprisoned for a term of four years. His Honour said that on count 6 the appellant was to be sentenced to be imprisoned for a term of six months, to be served concurrently with the sentence imposed on count 5. His Honour said that on count 7 the appellant was to be sentenced to a term of three months, two months of which were to be served concurrently with count 5. On count 8 the appellant was sentenced to be imprisoned for a term of six months, four months of that sentence to be served concurrently with count 5. The sentencing judge apparently took the sentence on count 5 as the base sentence.

13 It does not appear that the orders in respect of the sentences passed on counts 4, 7 and 8 could increase the total effective sentence beyond a period of six years. I think the error should be corrected by re-sentencing the appellant.

14 As to manifest excess, the offending conduct was indeed serious. The appellant terrorised his de facto wife, her mother and the taxi driver. He set fire to a dwelling house and caused extensive damage to it. He destroyed Ms McDonald's personal belongings by setting fire to his car. He placed members of the public in danger of serious injury when, at knifepoint, he ordered the taxi driver to drive through a red light. He committed the offences the subject matter of counts 5 to 8 whilst on bail. He telephoned Ms McDonald and committed the aggravated burglary in defiance of the intervention order. He broke into Ms McDonald's mother's house with a set of handcuffs, tape and a boning knife.

15 The sentencing exercise was difficult. On the one hand, there were the circumstances of the offending which I have described. Clearly, the aim of protection of the community was a relevant sentencing consideration. The sentence of four years' imprisonment imposed in respect of the count of aggravated burglary was singled out by counsel for the appellant for particular criticism. The offence was committed seven days after a grant of bail and in breach of the intervention order. On the other hand, the appellant could rely on mitigating factors of some significance. He pleaded guilty, he was relatively young, he had suffered from an itinerant lifestyle in his early years, he had serious health problems, and in particular psychiatric illness, which did apparently bear upon his offending. He also provided assistance to the authorities in respect of a homicide investigation by providing statements and giving evidence, which resulted in him being placed in protective custody. It appears that one result of being in protective custody is that the appellant is denied psychiatric and psychological counselling.

16 Balancing these largely incommensurable factors presented the sentencing judge with a task of some difficulty. I think that the individual sentences and the total effective sentence which his Honour imposed were appropriate. I would not impose different sentences. I would, however, reduce the non-parole period slightly because of the lack of psychiatric counselling available to the appellant.

17 For the foregoing reasons, I would allow the appeal, set aside the sentence passed below and in lieu thereof re-sentence the appellant. In re-sentencing the appellant I shall express myself in terms of cumulation rather than concurrence, although I am conscious of the terms of s 6E of the Sentencing Act 1991. I would re-sentence the appellant to be imprisoned for a term of six months on count 1, for a term of three years on count 2, for a term of nine months on count 3, for a term of one year on count 4, for a term of four years on count 5, for a term of six months on count 6, for a term of three months on count 7, for a term of six months on count 8, and for a term of three months on each of the summary offences. I would cumulate two years of the sentence on count 2, three months of the sentence on count 4, one month of the sentence on count 7 and two months of the sentence on count 8 on each other and on the sentence on count 5. The total effective sentence is six years and six months' imprisonment. I would fix a term of three-and-a-half years' imprisonment before the appellant is to be eligible for parole. I would confirm the orders made below as to the provision of a forensic sample, confiscation and the appellant's status as a serious offender.

18 I agree with his Honour the presiding judge. In my opinion, the total effective sentence passed below of six years and six months and the non-parole period of four years, albeit the expression thereof was flawed, was an appropriate, indeed moderate, disposition, given the extremely grave nature, extent and circumstances of the appellant's offending, together with his troubling antecedents. There were powerful mitigating factors which his Honour the sentencing judge in my view weighed properly and wisely in what was, as the presiding judge has acknowledged, a difficult balancing exercise. In the absence of those mitigating factors, a significantly longer sentence would have been called for. Nevertheless, it is troubling that the protective custody regime applicable to the appellant has seemingly operated to deprive him of counselling and psychiatric treatment which we were informed he wishes to have and was said in the available psychiatric and psychological reports to require, very credibly in the light of his history of psychiatric illness, grave self-harm and extreme conduct. That consideration persuades me that in re-sentencing the appellant, the moderation of his non-parole period is justified in order to facilitate his more timely access to counselling and treatment under appropriate supervision.

19 I agree with the disposition of the appeal proposed by the learned presiding judge.

The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of six months on count 1, for a term of three years on count 2, for a term of nine months on count 3, for a term of one year on count 4, for a term of four years on count 5, for a term of six months on count 6, for a term of three months on count 7, for a term of six months on count 8, and for a term of three months on each of the summary offences.

Two years of the sentence on count 2, three months of the sentence on count 4, one month of the sentence on count 7, and two months of the sentence on count 8 are to be cumulated on each other and on the sentence imposed on count 5.

The total effective sentence is six years and six months' imprisonment.

A term of three-and-a-half years' imprisonment is fixed before the appellant is to be eligible for parole.

The orders made in the County Court as to the provision of a forensic sample, confiscation of property and the appellant's status as a serious offender are confirmed.

It is declared that the period of 1008 days are to be reckoned as already served under the sentence and it is ordered that the fact that that declaration was made and its details be entered in the records of the Court.