R v Droste [2009] VSCA 102

Court of Appeal (Vic)|2009-05-18|Before: REDLICH and DODDS-STREETON JJA

CRIMINAL LAW - Sentencing - Aggravated burglary, destroying property, making threats to kill and common assault - Serious criminal history - Breach of suspended sentence - Further offending whilst on bail - Appellant sentenced for further offences - Whether sentencing judge erred in fixing non-parole period by reference to a date of eligibility - Whether non-parole period may validly be fixed under s 11 Sentencing Act 1991 by reference to a specified date or whether stated period of years, months and days necessary - Whether sentencing judge fixed a non-parole 'period' - Sections 3, 11(1), 13(1) Sentencing Act 1991 discussed Whether specification of date leads to imprecision and uncertainty and is therefore undesirable - Manifest excess - Weight given to general and specific deterrence - Alcohol and substance abuse - Limited prospects of rehabilitation - Appeal dismissed.

1 The appellant, David Droste, appeals from a sentence imposed in the County Court of Victoria at Warrnambool on 26 June 2008, when he was sentenced to a total effective sentence of two years and three months' imprisonment. The learned sentencing Judge ordered that the appellant '... be eligible for release on parole on 30 September 2009'. The principal question raised by this appeal is whether a non-parole period may properly be fixed in those terms pursuant to s 11(1) of the Sentencing Act 1991 ('the Act'), or whether it is necessary to employ the more conventional expression of years, months or days.

2 On 6 June 2008, the appellant pleaded guilty to the following six counts on a presentment (W03241994) arising from an incident that occurred on 30 November 2007:

Count 1 - aggravated burglary contrary to s 77(2) of the Crimes Act 1958 (maximum penalty of 25 years' imprisonment);
Count 2 - destroying property contrary to s 197(1) of the Crimes Act 1958 (maximum penalty of ten years' imprisonment);
Counts 3 and 4 - making threats to kill contrary to s 20 of the Crimes Act 1958 (maximum penalty of ten years' imprisonment);
Counts 5 and 6 - common assault contrary to the common law (maximum penalty of five years' imprisonment contrary to s 320 of the Crimes Act 1958).

3 On 26 June 2008, the appellant was sentenced as follows:

Count 1 - two years and three months' imprisonment;

Count 2 - six months' imprisonment on count 2;

Counts 3 and 4 - 18 months' imprisonment on each count; and

Counts 5 and 6 - six months' imprisonment on each count.

4 His Honour ordered all sentences to be served concurrently, resulting in a total effective sentence of two years and three months' imprisonment. His Honour ordered that the appellant be eligible for release on parole on 30 September 2009 and that eight days pre-sentence detention be reckoned as time already served. He also ordered the appellant to provide a forensic sample pursuant to s 464ZF of the Crimes Act 1958.

5 The appellant, who was born on 31 October 1982, was aged 25 years at the time of the present offences.

6 The appellant had two sons by his former de facto wife, Amanda Deller. At the time of the offending, the boys were aged 6 and 4 respectively. The de facto relationship with Ms Deller had broken down at a certain point and by the time of the offending, Ms Deller (who had a third child by another partner) had formed a relationship with a new boyfriend, Dean Cochran.

7 On 30 November 2007, at 12.45 am, the appellant arrived at Ms Deller's house at Warrnambool. The three children resident in the house were asleep in a bedroom. Ms Deller and Dean Cochran, were in the living room.

8 The appellant knocked on the door demanding admission but Ms Deller (speaking though the locked wire door) refused. The appellant asked if she 'had fucked Dean off yet.' Ms Deller replied 'No he's still here'. At that point the appellant's mother (presumably notified of the fracas) arrived, but the appellant became more incensed. He wrapped his shirt around his hand and smashed the window beside the door, kicking it with his foot to break it further. He repeatedly reached though the broken window in an attempt to seize the latch and open the door.

9 Meanwhile, Ms Deller kept pushing the appellant's hand away to prevent him from unlocking the door. She was fearful as she grabbed his hand. The appellant was yelling at Dean Cochran. He leant through the window and grabbed Dean Cochrane, trying to pull him through the window, causing him to sustain grazing from the door surrounds. The appellant shouted to Dean Cochrane 'You're interfering with my family, cunt, I'm going to slit your throat, you're dead'. The appellant then went around to the rear window of the house, yelling at Amanda Deller 'If I get in there I'm going to stab you. If I get in, there'll be nothing left of you'.

10 Amanda Deller and Dean Cochran were terrified and ran from the house. The appellant pursued them. There was yelling and screaming. The police then arrived.

11 On 13 February 2009, Buchanan JA granted the appellant leave to appeal against sentence pursuant to s 582 of the Crimes Act 1958, and directed that the appeal be expedited.

12 The appellant's full statement of grounds of appeal filed on 19 March 2009 states:

The learned sentencing Judge erred in the manner of fixing the non-parole period.
The learned sentencing Judge erred in imposing a manifestly excessive sentence, both in terms of the total effective sentence and the non-parole period.

13 The appellant was interviewed abut the incidents by police on 30 November 2007. In his interview, the appellant denied all the allegations, stating that they were 'all false' and 'all fucking bullshit'.

14 At the time of the offending, the appellant had 24 prior convictions and two findings of guilt from seven court appearances between 18 May 2001 and 2 May 2007 as follows:

Criminal damage
Intentionally threaten serious injury

Causing injury intentionally
Unlawful assault
Driving whilst authorisation suspended
Theft
Going equipped to steal
Failing to comply with a Community Based Order

Behaving in an offensive manner in a public place
- Resisting a member of the police force in the lawful execution of their duty

Wilfully damaging property
Assaulting a member of the police force in the lawful execution of their duty
Acting in an abusive manner in a police goal
Being drunk in a public place

Refusing to undergo a preliminary breath test
- Assaulting a member of the police force in the lawful execution of their duty
Resisting a member of the police force in the lawful execution of their duty
Being drunk in a public place
Failing to answer bail

Causing injury recklessly
Breaching an intervention order (two charges)
Resisting a member of the police force in the lawful execution of their duty (two charges)

Causing injury intentionally (the appellant was sentenced to be imprisoned for 15 months, six months of such sentence suspended for two years. A period of 232 days were reckoned as already served).

15 Following his arrest on the present offending, the appellant was released on bail in November 2007. On 15 March 2008, he was arrested following a number of incidents. His bail was revoked on 31 March 2008 and he was returned to custody.

16 On 6 June 2008, he pleaded guilty to a number of offences, described by the prosecutor as including reckless conduct, causing serious injury, breaking intervention orders, driving in a dangerous manner and a minor possession of amphetamines charge.

17 On 6 June 2008, the appellant was sentenced to four months' imprisonment aggregate and 84 days pre-sentence detention was declared His driver licence was cancelled.

18 The matters dealt with on 6 June 2008 and the present matter breached the suspended sentence imposed on the appellant on 2 May 2007. Discussion between his Honour and counsel indicated that the suspended sentence matter would be returned for determination by the original sentencing judge.

If [the appellant's] in custody now on another matter as I understand (I will get the details) my task is to fix an overall non-parole period - well - I don't fix a period, I give a date on which he gets out.

20 In relation to whether there was any pre-sentence detention in relation to the present offences, counsel referred his Honour to s 18(1) of the Sentencing Act 1991 which provides:

Time held in custody before trial etc to be deducted from sentence

(1) If an offender is -

(a) in respect of an offence sentenced to a term of imprisonment or to a period of detention in an approved mental health service under a hospital security order; or

(b) under section 31 ordered to serve the whole or part of a sentence or part sentence of imprisonment held in suspense -

any period during which he or she was held in custody in relation to -

(c) proceedings for the offence referred to in paragraph (a) or proceedings arising from those proceedings; or

(d) proceedings under section 31 -

including any period pending the determination of an appeal, must be reckoned as a period of imprisonment or detention already served under the sentence or restored sentence unless the sentencing court or the court fixing a non-parole period in respect of the sentence or the court making the order under section 31 otherwise orders.

21 Counsel for the Crown submitted that the effect of s 18(1):

... requires the Court to take into account any period that must be reckoned which has been served but subs (2) says that that section does not apply where a period of custody previously was declared.

Unfortunately for this man on 6 June the learned magistrate who imposed a period of four months reckoned 84 days which took into account some of the period of time for which the bail had been revoked in relation to this matter.

... In those circumstances therefore, my submission would be that your Honour is precluded from formally declaring a period of time served.

22 His Honour indicated that he would not mention pre-sentence detention, but would take it into account as a part of the totality.

It would be necessary to know how long [the appellant] had served and what and how long has he got to go before, well, a head sentence and non-parole because I've got to fix a new non-parole that takes into account overall ...

24 The judge asked the appellant's counsel to state the appellant's current release date.

HIS HONOUR: Four months would be from -

COUNSEL: Well there was 84 days.

HIS HONOUR: 84 days, 6 June for four months.

COUNSEL: It would probably be roundabout 15 July your Honour. If he was in custody from 15 March and he got four months effectively from that date, taking into account time served -

HIS HONOUR: Well, the reality is that it is not going to make much difference. There is only a month in it, really, isn't there. So I will ... I am making an assumption I will have a term of imprisonment and if I have a minimum term, I will just bear that in mind and fix it appropriately. So it really doesn't affect anything.

COUNSEL: I was just going to say your Honour, there is no need for your Honour to worry about multiple non-parole periods. He's got a straight sentence to finish and whatever your Honour does -

HIS HONOUR: It doesn't matter. I make it cumulative or concurrent on the pre-sentence.

Well, if I say nothing it will be ... concurrent.

COUNSEL: And then your Honour just simply decides - And that's only a month.

HIS HONOUR: Correct.

26 At the hearing of the plea, counsel for the appellant emphasised that:

(a) the appellant had been released from gaol in July 2007 and Ms Deller had permitted him to have contact with his children, to whom he was extremely attached;

(b) the appellant also had an older child from a prior relationship to whom he had no access;

(c) the appellant had visited Ms Deller's house several times in the course of the day, had then been drinking and was 'pretty seriously drunk' when he sought entry.

27 His Honour was directed to reports of Dr Graham Ridley, a consultant psychiatrist, dated 26 July 2007. Dr Ridley stated that the appellant told him of significant, long term problems with alcohol and cannabis, the break up of two de facto relationships and his previous imprisonment for assault on Ms Deller and her then boyfriend due to his concern over their perceived poor care of his two children. The appellant told Dr Ridley that he was concerned about Ms Deller's care of his sons.

28 Dr Ridley found no history of major depression or bipolar disorder and no psychiatric symptoms, disordered thought, clinical anxiety, delusions or hallucinations. The appellant stated that his chief concern was to turn his life around as he wanted to get his children back and ensure their safety.

29 His Honour also considered the Forensicare report of Dr Deacon, a psychiatrist, dated 28 July 2006. Dr Deacon repeated the appellant's history, including separation from his children, marijuana use since age 14 and his continued dependence on marijuana for the last ten years. The appellant attributed the 'very angry' side of his personality to marijuana. The report referred to the appellant's extensive criminal history and his acknowledged tendency to become angry and engage in anti-social behaviours. The appellant had found drug and alcohol counselling unhelpful.

30 Dr Deacon concluded that the appellant had difficulty with mood regulation, particularly anger control and a history of anti-social behaviours, possibly accentuated by alcohol and marijuana use. Anti-depressant and mood stabilising medication understandably had produced no obvious benefit.

31 The appellant had improved with withdrawal from marijuana in prison, but had a number of unresolved personal and interpersonal issues. He expressed a wish for a continuing relationship with his children and former partner. Dr Deacon observed that the appellant had pleaded not guilty to recklessly casing injury, so he was 'unable to comment on his risk of any future violence towards his partner. [The appellant] may have minimised his action on this day'.

32 His Honour stated that, despite the lack of direct evidence, he would sentence the appellant on the basis that he has genuine dissatisfaction about the care of the children and had been drinking on the night in question.

33 The appellant's counsel stated that the appellant had attended Warrnambool Regional Association for Alcohol and Drug Dependence in July 2007, but no report was provided as to the appellant's dates of attendance or progress. Counsel informed the sentencing judge that the appellant had made appointments for anger management treatment, which he did not keep.

34 In his reasons for sentence, his Honour stated that the offending was a result of frustration and unhappiness over a domestic break-up and the welfare of the children. He accepted that it seemed that the appellant was affected by alcohol and perhaps cannabis, although the extent of any such effect was uncertain.

35 His Honour referred to the submissions of and his interchanges with counsel.

36 He referred to the appellant's personal history, 26 prior convictions, including for criminal damage, threatening, causing injury and assault. He observed that punishment had not deterred the appellant in the past.

37 His Honour referred to the psychiatric reports and the appellant's long standing addiction to alcohol and cannabis, which had clearly played a large role in his prior offending. There was no evidence of the success or otherwise of any attempts to cure the addictions and no grounds for optimism as to rehabilitation.

38 His Honour recognised the appellant's early indication of his guilty plea and the benefits it entailed. He accepted that the appellant was regretful, but, on the evidence, was unable to conclude whether or not the appellant had any real remorse.

39 His Honour referred to the principles of general and specific deterrence, protection of the community, the likelihood of re-offending, just punishment and the prevalence of the type of offending, the particular facts of which were 'very serious and unpleasant indeed'.

40 It was accepted by both parties on the appeal that his Honour had wrongly concluded that he was required to fix a new non-parole period because the appellant was still serving his previous sentence and that he was obliged to do so by specifying the date in which he would become entitled to be released on parole. As the sentence the appellant was currently serving was a straight sentence which had no non-parole period, s 14 of the Sentencing Act had no application. His Honour was not required to fix a new non-parole period, but if he was, he would not have been obliged to do so by nominating a specific date on which the appellant should be released on parole. The error made by his Honour requires the sentencing discretion to be re-opened. But in deference to the parties who advanced substantial argument on the primary grounds, we should make some observations in relation to those grounds.

Ground 1 - The learned sentencing judge erred in the manner of fixing the non-parole period

41 The appellant submitted that the sentencing judge erred by not fixing a non-parole period, and instead setting a date for when the appellant would be eligible for release on parole. The order of the Court provides:

Sentencing directions: "Direct that he be eligible for release on parole on the 30th September 2009".

42 The appellant submitted that such a course was not permitted pursuant to ss 11(1) and 3 of the Act. Section 11(1) of the Act provides:

If a court sentences an offender to be imprisoned in respect of an offence for-

(a) the term of his or her natural life; or

(b) a term of 2 years or more-

the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate ...

43 Section 3 of the Act defines 'non-parole period' as follows:

Non-parole period, in relation to a sentence of imprisonment, means a period fixed in accordance with Subdivision (1) of Division 2 of Part 3 during which the offender is not eligible to be released on parole.

44 Section 12 of the Act states:

References to non-parole period

A reference in this or any other Act to a non-parole period includes a reference to a minimum term fixed in accordance with Part 3 of the Penalties and Sentences Act 1985 or any corresponding previous enactment.

Fixing of non-parole period otherwise than by sentencing court

(1) The failure of the sentencing court to fix a non-parole period in accordance with section 11 does not invalidate the sentence but -

(a) the Court of Appeal in respect of a sentence imposed by the Supreme Court or the County Court; or

(b) the County Court in respect of a sentence imposed by the Magistrates' Court -

may, on the application of the offender or of the Secretary to the Department of Justice fix a non-parole period in accordance with that section in any manner in which the sentencing court might have done so.

46 In the appellant's submission, the legislation required the non-parole period to be fixed as a portion of time expressed in years, months and days, rather than by reference to a specific date for eligibility for release on parole. Counsel relied, in that context, on the dictionary definition of 'period', (as defined by the Concise Oxford English Dictionary (11th Ed Rev)) as 'a length or portion of time'.

47 It was not disputed that non-parole periods are usually expressed in the way advocated by the appellant.

48 Section 11(1) does not, however, in terms prescribe any particular form of expression as the sole legitimate means of fixing a non-parole period.

49 The definition of non-parole period in s 3 effectively reiterates the requirements of s 11(1). It also requires the fixing of a non-parole period to comply with subdivision (1) of Division 2 of Part 3 (ss 9-18). Section 12 makes clear that a reference to a non-parole period includes a reference to a minimum term fixed in accordance with previous legislation but similarly, it provides no guidance on how a non-parole period or minimum term must be fixed.

50 Granted that a 'period' means a length or portion of time and a non-parole period means a length or portion of time during which an offender is not eligible to be released on parole, the requirements of s 11(1) would, prima facie, be satisfied provided that the length or portion of time is expressed with certainty. A period of time, within the natural meaning of that term, may be and frequently is described by reference to a commencement date and an end date.

Commencement of sentences

(1) Subject to sections 16 and 18, a sentence of imprisonment commences on the day that it is imposed unless the offender is not then in custody in which case it commences on the day he or she is apprehended under a warrant to imprison issued in respect of the sentence.

52 In the present case, therefore, it was clear that the sentence commenced on the day it was imposed. The specification of the earliest date for release thus provided the means for determining with certainty the period during which the offender was not eligible for release.

53 Further, as the respondent submitted, the unconventional mode of expressing the non-parole period did not, in practice, prevent the relevant authorities from calculating the non-parole period of 469 days, or 15 months and 13 days.

54 The appellant submitted that irrespective of the literal breadth of the words of s 11(1), the more restrictive construction was necessary in order to avoid significant inconvenience and conflict with other provisions of the Act and cognate legislation.

55 The appellant's written submissions stated that the fixing of a non-parole period by means of specifying a date:

(i) First, ... makes it unclear as to whether or not pre-sentence detention has been taken into account with regard to the setting of that date, or whether it should be deducted from that eligibility date as set (pursuant to s 18 of the Sentencing Act 1991); and

(ii) Secondly, ... makes it unclear as to whether emergency management days may be deducted from that eligibility date. Pursuant to s 58E(1) of the Corrections Act 1986 such days are determined by the Secretary and may reduce a sentence of imprisonment and the length of a non-parole period due to industrial disputes, emergencies, or other circumstances of an unforeseen or special nature: See Anderson v Pavic [2005] VSCA 244 (Unreported, Warren CJ, Maxwell P and Nettle JA, 4 October 2005).

Before us, counsel for the appellant submitted that the method of specifying a date would also create confusion and uncertainty in relation to the application of s 14 of the Act.

56 The appellant distinguished the non-parole period from the parole eligibility date. He contended that setting a date for eligibility for parole was a function of the Secretary of the Department of Justice, rather than the Court. In the appellant's submission, in the present case the sentencing judge nevertheless consciously set a date for eligibility for parole, as he stated:

... my task is to fix an overall non-parole period - well I don't fix a period, I give a date on which he gets out ...

Emergency management days

(1) The Secretary may, in accordance with the regulations, reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if one has been fixed in respect of the sentence) on account of good behaviour while suffering disruption or deprivation -

(a) during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or

(b) in other circumstances of an unforeseen and special nature.

Parole eligibility date

(1) In this regulation -

non-parole period has the same meaning as in the Sentencing Act 1991; parole eligibility date means the earliest date on which a prisoner may be released on parole if so ordered by the Adult Parole Board.

(2) As soon as possible after a court has set a non-parole period in respect of a prisoner the Secretary must report to the Secretary of the Adult Parole Board the prisoner's parole eligibility date.

(3) As soon as possible after -

(a) a court has further sentenced a prisoner; or

(b) the Secretary has granted any emergency management days to a prisoner -

the Secretary must report to the Secretary of the Adult Parole Board the prisoner's amended parole eligibility date.

(4) In determining the parole eligibility date there must be deducted from the non-parole period the emergency management days granted to the prisoner.

The regulations make clear that the parole eligibility date is reported by the Secretary to the Department of Justice to the Secretary of the Adult Parole Board, taking into account emergency management days granted to the prisoner. The parole eligibility date is not determined by the Court. The legislative scheme evinces a clear distinction between a non-parole period and a parole eligibility date.

60 As the appellant submitted, the non-parole period is not interchangeable with the parole eligibility date, as the former is subject to amendment in order that the latter may be finally determined.

61 Any non-parole period, however expressed and ascertained, is equally subject to the possibility of the deduction of days pursuant to s 58E(1) of the Corrections Act 1986. Provided that the non-parole period may be ascertained with certainty, the deduction of emergency management days presents no greater difficulty because it is from a period expressed by reference to a specific date rather than in more conventional terms. While it might be argued that if a non-parole period is fixed by reference to a particular date it may conflict with the parole eligibility date determined after any required deductions, that is equally true of a non-parole period expressed in the usual way.

62 Section 18(1) of the Act provides that certain forms of detention in relation to a sentence must be reckoned as a period already served under it, unless (in some instances) it is otherwise ordered. The informant or arresting officer must inform the Court of the length of the relevant period or the Court may take other evidence of it.

63 The appellant further submitted that the specification of a date (as opposed to the conventional method of fixing a non-parole period) produced uncertainty as to whether or not pre-sentence detention had been taken into account or whether it should be deducted from the eligibility date as set.

64 That problem, however, would not arise if it be accepted that the Court's specification of a date is simply an alternative means of fixing a calculable non-parole period, as distinct from a parole eligibility date (which the court is not empowered to determine). If so, the period so fixed is subject to s 18 of the Act in exactly the same way as a non-parole period expressed in the conventional manner. Any pre-sentence detention will be deducted from the sentence unless (in an appropriate case) the Court otherwise orders.

65 As the appellant submitted, any days of pre-sentence detention may be relevant to the appropriateness of the specified date, because they will be automatically deducted from the sentence. Therefore, in some cases, the date should not be specified before the pre-sentence detention is ascertained. That, however, would be equally true of a non-parole period fixed in the conventional manner. Any lack of clarity as to whether the date had been specified without taking into account pre-sentence detention could well constitute an independent basis for complaint about the sentence, but one which would apply irrespective of how a non-parole period was expressed. A problem only arises if the specification of a date is viewed as necessarily constituting a parole eligibility date rather than a non-parole period.

66 In the present case (as the interchange between the sentencing judge and counsel set out above reveals) the learned sentencing judge was, in any event, alive to the need to ascertain the pre-sentence detention. He expressly required any pre-sentence detention to be identified beforehand, in order to take it into account for the purposes of totality.[1]

67 The inconvenience and confusion on which the appellant relied depended on acceptance of its antecedent argument that the method would in fact fix a parole eligibility date or would be construed as having that effect. Though the method of fixing a non-parole period by reference to a commencement date and an end date may well be open on the wording of the relevant provisions, the validity of such a method could not, however, be assumed in all cases due to the potential for conflict or unforeseen interactions with various of the complex provisions of Subdivision (1) of Division 2 of Part 3 of the Act, which was by no means exhaustively explored before us. The method is unusual and the potential for invalidity, confusion or complexity renders it generally undesirable.

Section 13(1) of the Act

68 Although s 13(1) of the Act was not raised in written submissions by either party, at the hearing of the appeal we drew attention to that provision, which provides that the failure of the sentencing court to fix a non-parole period in accordance with s 11 does not invalidate the sentence and the Court of Appeal is empowered to fix a non-parole period on the application of the offender or the Secretary to the Department of Justice in accordance with s 11 'in any manner in which the sentencing court might have done so'.

69 If, as the appellant contended, the sentencing judge fixed or purported to fix a parole eligibility date instead of a non-parole period, neither a valid parole eligibility date nor a valid non-parole period would result. The Court is not empowered to determine the parole eligibility date within the meaning of that term in r 82 of the Corrections Regulations 2009. Nor would there be a valid non-parole period. (While the appellant contended that on the sentencing judge's observation set out at para [23] showed that he deliberately determined a parole eligibility date, the likelihood of an experienced sentencing judge purporting to do so appears slight.) Nevertheless, if the sentencing judge did not fix a non-parole period, by s 13(1) the sentence imposed is not invalidated in consequence. Rather, this Court could proceed to fix a non-parole period on the appellant's application.

70 We sought counsel's submissions on the effect of s 13(1) of the Act on ground 1 of the present appeal. In particular, it appeared arguable that the failure to fix a non-parole period was to be addressed only by an application under s 13(1), and may not constitute an error which would reopen the sentencing discretion.

71 The appellant relied on R v Sener.[2] In that case, an offender was sentenced to 15 months' imprisonment, but the judge did not fix a non-parole period under s 11(2), without assigning any reason for it. The Court of Appeal allowed the appeal on the ground that the sentencing judge erred in failing to exercise his discretion under s 11(2) to consider whether a non-parole period should be fixed.

72 As there was no complaint about the 'virtually impregnable' head sentence, it was unnecessary to consider the authorities[3] on whether the entire sentence, including the head sentence was vitiated as the Court concluded that no different head sentence should be imposed. Instead, the Court of Appeal fixed a non-parole period. It did not refer to s 13(1) of the Act.

73 Callaway JA discussed the problems and questions arising from relevant authority, but concluded that it was unnecessary to pursue the matter further, as the applicant had 'wisely disavowed a submission that the discretion was reopened with respect to the head sentence by the judge's failure to consider exercising the discretion given him by s 11(2)'.[4]

74 In R v Arnold,[5] Phillips JA (with whom Winneke P and Kenny JA) agreed set out a detailed history of s 13(1) of the Act, including its legislative precursor, s 537A of the Crimes Act 1958. His Honour considered that s 537A was directed at the neglect of default to fix a non-parole period according to s 534 of the Crimes Act (the provision then equivalent to s 11 of the Act) which like s 11 of the Act, was partly in mandatory terms and partly permissive. Phillips JA relied on R v Governor of Her Majesty's Gaol at Partridge; Ex parte Cusmano,[6] in which the Full Court held that s 537A 'was obviously designed to meet irregular application of s 534' (now s 11).[7]

The expression 'the failure of the sentencing court to fix a non-parole period in accordance with section 11' extends therefore, not only to a purported fixation which is not in accordance with s. 11 (in the sense of authorised by s. 11), but also to a failure of the court to fix a minimum term 'in accordance with section 11' (again in the sense of authorised by s. 11).[8]

76 Phillips JA considered that s 13(1) was not concerned with every failure to fix a non-parole period but only with a failure amounting to non-compliance with s 11. For example, s 13(1), would not apply if the sentencing court did not fix a non-parole period under s 11(1) because it considered that the nature of the offence or the offender's past history rendered it inappropriate, or if, under the permissive provision in s 11(2), the sentencing court in the proper exercise of its discretion determined not to fix one.

77 Thus, Phillips JA concluded that s 13(1) was only concerned with non-compliance with s 11 and:

... not otherwise with the particular manner in which a discretion conferred by s. 11 may have been exercised in a given instance. The manner in which the discretion has been exercised is of course called in question generally on an appeal against sentence. Commonly the offender has such a right to appeal (if sometimes only by leave) and there seems no reason to suppose that s. 13(1) was intended to provide an alternative remedy in every such case (although, as the court observed in R. v Zarb (1996) 88 A. Crim. R. 55 at 62, nor should s. 13(1) be taken to limit the otherwise ample jurisdiction to review error on an appeal).[9]

...

Accordingly, I would conclude that s. 13(1) is indeed concerned only with irregularity, and in particular a failure on the part of the sentencing court to fix a non-parole period in accordance with the provisions of s. 11.[10]

78 His Honour therefore concluded that the failure of the sentencing court in R v Arnold to consider whether to fix any non-parole period under s 11(2) (thus disregarding the implied requirement to do so), enlivened the jurisdiction conferred by s 13(1).[11]

79 In the present case, if, as the appellant submitted, the sentencing judge failed to fix a non-parole period in accordance with s 11(1) but merely purported to comply, as he instead set a parole eligibility date, s 13(1) of the Act would apply. Ultimately, it is unnecessary finally to resolve whether s 58E(1) of the Corrections Act 1986, pre-sentence detention or the application of s 14 of the Act presented insuperable impediments to fixing a non-parole period by reference to a specific date or whether the adoption of such a method is 'in accordance with s11. The appellant has, as we have already said, demonstrated error which would require the appellant to be re-sentenced were we of the view that a different sentence should have been passed.

Ground 2 - The learned sentencing Judge erred in imposing a manifestly excessive sentence

80 The appellant submitted that the sentence was manifestly excessive, as general and specific deterrence were weighed disproportionately to the gravity of the offending, in circumstances where:

(i) The offending took place during one incident;

(ii) The Crown submitted that the circumstances of entry were "... at the lowest end of aggravated burglary";

(iii) It was accepted that the threats to kill were made in circumstances of recklessness rather than with a genuine intention to kill;

(iv) While Mr Cochran suffered some grazing, there was no injury suffered by the victims within the meaning of the Crimes Act 1958;

(v) The learned sentencing judge accepted that while the appellant was affected by alcohol, the offending conduct was not motivated out of jealously or antipathy towards Mr Cochran but primarily due to concern over his children;

(vi) There was no existent intervention order in place;

(vii) The fact that no victim impact statement was made: s 5(2)(daa) and (da) of the Sentencing Act 1991; and

(viii) At time of sentence, the appellant was already undergoing a sentence of four months' imprisonment, which made the principle of totality of particular importance: R v Breen & Ors [2008] VSCA 178 per Osborn AJA at [22-3].[12]

81 The offending was, however, very serious, as reflected by the maximum sentences prescribed.

82 Further, although the Crown submitted that the circumstances of entry were at the lowest end of aggravated burglary, the sentencing judge (correctly, in our view) rejected that proposition on the ground of the terror engendered in the victims. Further, while the sentencing judge accepted without direct evidence that the offending was motivated by the appellant's concern for his children, the undisputed facts, including the police interview and the observations of the attending police officers, indicated considerable antipathy towards Mr Cochran.

83 While the appellant is relatively, albeit not extremely, youthful the offences were serious and his disturbing history of prior convictions indicated an escalating pattern of violent offending.

84 As the psychiatric reports considered by his Honour revealed, the appellant's offending was associated with uncontrollable anger, particularly in relation to the problems of his family breakdown and was fuelled by long-standing abuse of alcohol and cannabis. There was no evidence of any sustained or successful attempt to deal with those problems.

85 Neither doctor found any evidence of psychiatric illness or related conditions and Dr Deacon was unsurprised that anti-depressant and mood stabilising medication had no obvious benefit.

86 Dr Deacon, in his report dated 28 July 2006, was not prepared to comment on the risk of the appellant's future violence towards his partner. His Honour correctly observed that there were no evidenced grounds for optimism about the appellant's prospects for rehabilitation.

87 There is, in our view, no basis on which to conclude that the sentencing judge failed to accord due weight to the appellant's early guilty plea.

88 In support of this ground the appellant submitted that the sentencing judge wrongly took into account 'that crimes of this type have become far too prevalent in our community' when considering deterrence and denunciation and drew attention to the fact that the issue was not raised on the plea. When facts which aggravate an offence are a matter of notoriety, counsel should know, without being told, that such an adverse factor is likely to be taken into account.[13] Thus in R v Downie and Dandy the judge was not obliged to invite submissions as to the prevalence of armed robbery.[14] No procedural unfairness arose when the judge, without warning, took into account in sentencing that aggravated burglaries of this type had become increasingly prevalent, they being so commonly before the courts.[15]

89 The appellant complained, in that context that the sentencing judge failed to find whether or not the guilty plea indicated real remorse. His Honour's inability to make a finding on whether the appellant had real remorse was, in our view, entirely explicable, given the evidence before him, including the appellant's record of interview. While the appellant also complained of his Honour's failure to expressly state a reason for his inability to make a determination of whether there was or was not true remorse, the reasons were manifest from his discussion of the relevant material and an express explanation was unnecessary.

90 His Honour took full account of all mitigating factors. The sentence is within the range and in view of the need for general and specific deterrence and community protection, correctly recognised by his Honour, may be considered merciful. In our view we do not consider that a different sentence should have been passed.

[1] Before us, however, counsel for the appellant submitted that the declaration of eight days of pre-sentence detention was erroneous, as the appellant was not in fact entitled to it.

[3] R v Zarb (1996) 88 A Crim R 55, 62-3; R v Iddon and Crocker (1987) 32 A Crim R 315, 328.

[7] Ibid 586 (Winneke CJ, Smith and Gowans JJ).

[13] R v Li [1998] 1 VR 637 (Winneke P); R v Downie & Dandy [1998] 2 VR 517 (Callaway JA); R v Sa [2004] VSCA 182, [29] (Eames JA); R v GMT [2006] VSCA 13 (Charles JA).

[14] R v Downie & Dandy [1998] 2 VR 517, 523 (Callaway JA).

[15] See, for example, R v Marinus [2000] VSCA 205.

At a glance

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Judgment (132 paragraphs)

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Legislation Cited (1)