R v Davis [2006] VSCA 8

2 The applicant pleaded guilty in the County Court at Melbourne to one count of aggravated burglary (count 1), one count of intentionally causing injury (count 2), one count of making a threat to kill (count 6) and one count of criminal damage (count 7). He admitted four convictions or findings of guilt arising out of three court appearances between 3 October 1978 and 14 August 2002. Of significance in the present context was a finding of guilt on 3 November 1997 on a charge of causing injury recklessly and a similar finding on 14 August 2002. On each of these occasions the proceedings were adjourned on the applicant entering into an undertaking to be of good behaviour.

3 With respect to the matters presently under consideration, after hearing a plea in mitigation of penalty, the learned sentencing judge on 16 March 2005 recorded convictions and sentenced the applicant as follows:

On count 1 - three years' imprisonment;

On count 2 - twelve months imprisonment;

On count 6 - six months' imprisonment;

On count 7 - one month imprisonment.

Her Honour directed that the sentences imposed in respect of counts 2, 6 and 7 be served concurrently and nine months of that sentence was to be served cumulatively upon that imposed on count 1. I would add that, whilst in the present case that form of sentencing has presented no difficulty as the sentences were incorporated within a single sentence, this form of sentencing can pose problems and does not accord with the provisions of the Sentencing Act. In any event, the orders of her Honour created a total effective sentence of three years and nine months' imprisonment, in respect of which a non-parole period of two years was fixed.

4 The applicant now seeks leave to appeal on three grounds, namely:

"1. The sentence is manifestly excessive in all the circumstances.

2. The learned sentencing judge failed to take into account as a matter in mitigation the fact that the victim had denied the applicant contact with his two children and that such denial of contact was a major precipitating factor or the 'catalyst' leading to the commission of the offences.

3. The learned sentencing judge erred by making a factual error that was material to a proper assessment of the applicant's level of culpability, namely, by finding that the applicant sent a text message threatening violence to the victim 'the day before the assault'.

PARTICULARS

This text message was sent to the applicant's father-in-law but was in fact sent on 14 December 2003. The error caused the judge to overlook the submission made by the applicant that the denial of contact between the applicant and his children was 'the catalyst for this whole matter'."

5 A further ground, ground 4, has not been pursued and accordingly need not be addressed.

6 In December 2003 the applicant was aged 43 years. His wife, Tanya Marie Davis, was aged 27 years. They had known each other since she was 13 years old and they commenced a relationship when she was 15. They married in 1997 and had two daughters who were, at the relevant time, aged nine years and four years. The applicant was a qualified house painter who conducted his own business, in which he employed a man named Robert Curran and a 16-year-old apprentice, James Shenton. It was the applicant's practice to pick up these employees, each morning, from their respective homes before driving to the location at which they were to work on that day.

7 On 11 October 2003, the applicant and his wife separated after six years of marriage. Mrs Davis and their daughters moved in with her parents at Mooroolbark. The applicant had at that stage, what were described in the materials with which the Court has been provided, flexible access arrangements enabling him to see the children. However, some time prior to 19 December 2003, Mrs Davis commenced a relationship with Geoffrey McDonald, the victim of the offences involved in this matter. He resided in Grant Street, Ringwood. It appears that the applicant suspected that his wife may have entered into a new relationship by 14 December 2003, as on the morning of that day Mrs Davis's father received a text message on his mobile telephone which read:

"Tell Geoff if he hits on Tanya I will hunt him down like a dog, but if nothing is going on to ring me and tell me. I am waiting."

8 On the night of Thursday 18 December, Mrs Davis visited McDonald at his home and stayed with him overnight. At about 5 a.m. on the next morning, in accordance with his normal practice, the applicant picked up his employees, Shenton and Curran, to take them to a work site in Hawthorn. However, on the journey he detoured into Ringwood, presumably to check whether his wife was there. He saw her car in front of McDonald's home and stopped his van about 30 metres from the residence. Shenton remained in the vehicle whilst the applicant and Curran went into the premises. The applicant walked to the front of the house and knocked on the door. When no response was elicited, he pulled the external screen door off its hinges and kicked down the front door. He then proceeded to a bedroom, in which he found his wife and McDonald in bed. Obviously very angry, he commenced to assault McDonald, pulling him from the bed, hitting, punching and kicking him, whilst threatening that if McDonald called the police he would be killed. During the incident the applicant up-ended a bedside table, throwing it into the ceiling and smashing a drawer.

9 As a result of this assault McDonald received cuts and abrasions, bruising and severe pain and for some time afterwards appeared to pass blood in his urine. He later expressed psychological distress and some anxiety about the possibility of further retribution at the applicant's hands.

10 When subsequently interviewed by the police, the applicant denied making the threat to kill McDonald, but otherwise admitted his actions, indicating that he was angry and upset over the recent separation from his wife, her denial of access to their children, and he was disturbed that she appeared to have taken up with another man within such a short period of time of their separation.

11 I will address grounds 2 and 3 together.

12 In support of these grounds it was pointed out by Mr Gillespie-Jones, who appeared for the applicant, that the sentencing judge erred in finding that his client had sent a text message threatening violence to the victim "the day before the assault", when the text message had actually been sent some days earlier. This error, it was asserted, caused her Honour to fail to take properly into account the significance of the problem that had arisen with respect to the applicant's contact with his children and which, it was contended, was the catalyst for the whole incident. Mr Gillespie-Jones drew attention to the evidence that the applicant was not only a devoted and loving father, but was himself particularly sensitive to such matters as he had experienced the background of a broken home. The applicant, according to the evidence, had in the period of separation commenced to undergo counselling in order to endeavour to deal with his grief at the break-up. He became aware, it was said, of the relationship between his wife and the victim, whom he knew as an acquaintance, and was understandably very upset when he was told on 15 December that the victim and his wife had decided that he was not allowed to have contact with his children. There were further discussions about this matter on 16, 17 and 18 December, however, the position did not change and he was still endeavouring to come to terms with the situation at the time of the offences. This denial of contact against the background of a traumatic break-up of the relationship between the applicant and his wife, precipitated the entire episode and should have been accepted by the sentencing judge as heavily mitigatory in nature. However, this had not occurred, counsel argued.

13 It is clear that her Honour did make the factual error with respect to the time at which the text message was sent, but it is difficult to see how this mistake could have adversely affected the applicant. If anything, the fact that he was threatening violence even before he was certain of the existence of a relationship suggests that only in a limited sense could his subsequent conduct be described as impulsive, or related to the particular matters upon which reliance has been placed before us. That threat was made before any question of denial of access to his children had been raised. In this context, however, Mr Gillespie-Jones drew attention to passages in the applicant's record of interview with the police in which, in response to a threat that he said he had made against McDonald, "I'll get him and bash him," his wife accused him of molesting their eldest daughter. However, the significance attributed by the applicant to this assertion is unclear. It appears, however, not to have assumed much importance and simply formed part of the background of disputation between them that included arguments about a variety of matters, including the disposal of matrimonial assets. I note that very little was said about it in the course of the plea and the absence of a specific reference to it by the sentencing judge was understandable in the circumstances.

14 There is certainly no basis for inferring that inadequate attention was given by her Honour, to the totality of the background circumstances, rather, it is apparent that she had regard to all of the relevant considerations upon which reliance was placed on behalf of the applicant. She specifically referred to the anger and upset which she accepted he experienced in consequence of the then recent separation from his wife, and the short period of time that had elapsed before she entered into another relationship. The judge was conscious of the expressed concern of the applicant about access to his children. With respect to the last matter, there was considerable emphasis placed by counsel, who appeared on his behalf in the court below, upon the significance of that denial to him and the matter was a focus of attention in the report of the psychologist, Dr Janet Hall, which was before her Honour. The judge specifically referred to the applicant's perspective of the situation at that time, saying:

"Whilst one can understand that the early days of separation may well be traumatic, and that these matters were all of great concern to you, none of them can in any way excuse or justify your actions ... ."

There is nothing in her Honour's remarks, nor in the sentences that were imposed by her, that suggests that she may have fallen into error or given inadequate consideration in any of the respects claimed.

15 In my opinion, both grounds 2 and 3 must fail.

16 Counsel for the applicant contended that the sentences imposed upon his client could be seen to be manifestly excessive when regard was had to a number of important mitigatory factors. They were:

(i) The applicant had admitted the commission of all of the offences, save that of making a threat to kill, when initially interviewed.

(ii) He had pleaded guilty and expressed remorse for what he had done.

(iii) He had financially compensated the victim, and, although he had prior convictions, he had not previously been in prison, his criminal history was not extensive, and he could properly be described as a person who was basically honest but with a tendency to erupt under pressure.

(iv) He was 43 years of age at the time of sentencing and had worked hard as a fully qualified, self-employed painter for many years, having taken up the profession after leaving school.

(v) He had been able, since the commission of the offences, to re-establish contact with his children and had undertaken anger management courses. Accordingly, it was said, specific deterrence should not have assumed significance as a sentencing consideration.

17 It is evident from the judge's sentencing remarks that all of these matters were taken into account. She accepted the applicant was a hard working, reliable and honest person and a loving father to his children. She recognised the personal distress that he was experiencing at the time and adverted to his endeavours to deal with difficulties he had encountered in controlling anger. She took into account that at the age of 43 years he had not previously undergone imprisonment and she accepted that the applicant had since that time formed a new relationship and that he had "moved on from the turbulent early days" following the separation from his wife. But, as her Honour quite properly stated:

"Any sentence I impose must therefore not only serve to punish you and act in denunciation of your conduct, but must also seek to specifically deter you from re-offending and seek to deter others in the community so that they will know that violent conduct, even if not especially occurring in a domestic context, will be met with condign punishment."

The sentencing judge then drew attention to the maximum penalties laid down by the legislature for the offences committed by the applicant and the seriousness of his behaviour in forcing his way into the home of another, in the early hours of the morning, with the intention of assaulting the occupant.

18 In my view, the individual sentences, whilst stern, were within the range available in the sound exercise of sentencing discretion. Her Honour, recognising the relationship between the various offences, directed that the sentences for all of those committed inside the house were to be served concurrently, but partially cumulative upon the sentence for aggravated burglary. In so doing, again, she applied normal sentencing practice. Save with respect to the factual error to which I have earlier referred, I am unable to detect any error in her Honour's approach to this matter, either in her sentencing remarks or by inference from the individual sentences, the total effective sentence or the non-parole period fixed by her. In short, none of these could be properly characterised as manifestly excessive.

19 Accordingly, I would dismiss this application.

22 The order of the Court is that the application for leave to appeal against sentence is dismissed.