R v Duncan [2007] VSCA 137

**1 I will ask Nettle JA to deliver the first judgment.

2 This is an appeal against a total effective sentence of four years and six months' imprisonment, with a non-parole period of two years and eleven months, imposed on the appellant on pleading guilty to one count of damaging property (count 1), one count of causing injury intentionally (count 2) and a summary offence of breaching an intervention order.

3 The offences were committed on 28 July 2005. The appellant had known the complainant for more than 20 years before that date, beginning when the appellant had played in a band with the complainant's former husband. When the complainant separated from her husband, the appellant began to telephone her and sought to initiate a relationship with her. She rejected his advances but he would not take no for an answer. Eventually, on 14 January 2005, the Magistrates' Court at Ringwood granted an intervention order on the application of the complainant which prohibited the appellant from contacting the complainant.

4 Despite the intervention order, the appellant continued to stalk and contact the complainant, and on 7 July 2005 he was convicted before the Magistrates' Court at Ringwood of breaching the terms and conditions of the intervention order and of two charges of stalking the complainant. On the charge of breaching the intervention order, the appellant was sentenced to be imprisoned for 218 days, with 180 days partially suspended for 24 months (and after allowing for 38 days pre-sentence detention, that meant he was thereupon released); and on the stalking charges, he was sentenced to undergo a community-based order.

5 Apparently incensed that the complainant had caused him to be punished for his offences, on Thursday 28 July 2005, the appellant drove his car to an area near to the complainant's workplace and parked in a loading bay diagonally opposite, in a position obscured from view by a retaining wall. There he waited for her to leave work for the evening, which she did at between 5.00 and 5.30 pm. After she had walked to her car in the car park and got in and started the engine, she heard a loud crash to her right and saw the appellant smash the windscreen with a metal pole, approximately two feet long and two centimetres in diameter. The appellant's act caused the windscreen and the driver's side window to shatter, resulting in damage worth $405 (count 1).

6 As the appellant struck the windscreen, he also screamed at the complainant and she in fear crossed to the passenger side door of the car and began to run back to her workplace across the car park, calling for assistance as she went. The appellant, however, ran after her, screaming at her that he had spent 47 nights in gaol because of her, and when he caught up with her he began to hit her arms with the metal bar. A struggle followed. She put up her hands to the bar to defend herself. But he broke her grip, and she began to run again towards her workplace. Then she fell, approximately 2.5 metres from the door, and the appellant stood over her and hit her body with the bar. Then, just as he raised the bar again in an attacking motion, one of the complainant's male workmates arrived and tackled the appellant to the ground and held him there until police arrived. Those are the acts which comprised both count 2 and the charge of breach of the intervention order.

"I don't care if you ring the police, I'll go to gaol for three years, three meals a day, I don't fucking care, I got my revenge."

"Did I get her in the head, I hope I fucking did, I bet she's really shaken up now."

"You tell that slut, that when I get out and I get her",

and at the same time he moved his finger across his throat in a "slashing" gesture.

**8 The complainant was taken to hospital and was observed to have suffered bruising to her left wrist, right knee and left knee, corneal abrasions to both eyes, and a small subconjunctival haemorrhage of the right eye. The judge found that the complainant later suffered bruising also to her hip, back, shoulder and neck and that in the nine months which followed the attack she suffered stiffness and pain in both hands.

9 The appellant participated in a record of interview in which he stated that he had consumed ten Valium tablets and half a beer glass of port during the day of the incident. He admitted attending the complainant's workplace and, when asked what had happened, he stated that:**

"Well, I was just stressed and I thought she gonna me in - her and Adam were gonna put me in for some letters from Monday."

He further admitted that he had smashed the front and side windows of her car with a metal bar, which he said was part of the jack from his car, that he had grabbed her and said to her that he had spent 47 days in gaol, that she had fallen, and that he had hit her on the leg with the bar. When asked why he had done that, he said that he did not know.

**10 In sentencing the appellant, the judge noted that the offences had been committed against the background of the appellant's protracted stalking of the complainant and his repeated harassment of her and members of her family. The attack itself was premeditated and frightening and had robbed the complainant of her peace of mind and her ability to function freely, and at times effectively, in her personal life, workplace and the community. Nor was she alone. Members of the complainant's family and some of her work colleagues also had concerns for their wellbeing, the result of the appellant continuing to blame others for his predicament.

11 Her Honour further observed that, even after the appellant had been arrested, he had continued to send harassing letters to the complainant and to members of her family, and that, with some limited questionable exceptions, the correspondence was inconsistent with any real sense of remorse or empathy for the complainant or any real progress towards insight or rehabilitation. Indeed, as the judge noted, some of the correspondence suggested an escalation of the appellant's hostility towards the complainant and other recipients of his letters, which, in the absence of any other explanation of his conduct, implied a malicious quest for revenge and a desire to blame the complainant for all that had happened to the appellant in the last two or so years of his life. Her Honour thus reasoned from that and other material, including a psychological assessment of the appellant made by Mr Bernard Healey, consultant psychologist, and a psychiatric assessment by Dr Adam Deacon, consultant psychiatrist, that the risk of the appellant re-offending was high and that the appellant's prospects of rehabilitation were poor. In all the circumstances, the judge considered that the sentence which she was required to impose needed to emphasise considerations of punishment, specific and general deterrence and denunciation of the appellant's conduct, as well as protecting the complainant and other members of the community from the risk of the appellant re-offending.

12 On that basis, her Honour sentenced the appellant on the count of intentionally damaging property (count 1) to six months' imprisonment, on the count of intentionally causing injury (count 2) to three years' imprisonment, and on the count of breaching the intervention order to two years' imprisonment. Her Honour ordered that the whole of the sentence imposed on count 1 should be served cumulatively on the sentence imposed on count 2 and that one year of the sentence imposed on the charge of breaching the intervention order also be served cumulatively on the sentence imposed on count 2, making for the total effective sentence of four years and six months.**

13 In the course of her sentencing remarks, the judge noted that, because the offence of contravening the intervention order was a second offence of that kind committed by the appellant, the maximum penalty was five years' imprisonment. Section 22 of the Crimes (Family Violence) Act 1987 provides:

(1) A person against whom an intervention order or interim intervention order has been made who -

(a) has been served with a copy of the order or has had an explanation of the order given to him or her in accordance section 15; and

is guilty of an offence and liable, for a first offence, to a penalty not exceeding 240 penalty units or imprisonment for a term of not more than 2 years or both and, for a subsequent offence, to imprisonment for a term not exceeding 5 years.

(2) For the avoidance of doubt it is declared that an offence under this section is a summary offence."

14 Under ground 1 of the appeal, however, counsel for the appellant argues that the judge was in error in proceeding on that basis for the reason that, in counsel's submission, the five-year maximum penalty prescribed by s 22 of the Crimes (Family Violence) Act 1987 is overridden by s 113A of the Sentencing Act 1991 and thus limited to a maximum penalty of two years' imprisonment. Section 113A provides:

"113A. Maximum term of imprisonment for summary offence

(1) If a person is convicted of a summary offence punishable, but for this section, by a term of imprisonment of more than 2 years, the maximum term of imprisonment to which a court may sentence the offender in respect of that offence is 2 years.

(2) This section has effect despite anything to the contrary in any Act."

15 Furthermore, in counsel's submission, in passing sentence for the summary offence of breach of the intervention order, the judge's power was limited by s 359AA(3) of the Crimes Act to the power of a magistrate to impose sentence for a summary offence, and so limited to imposing a sentence of no more than two years' imprisonment. Section 359AA(3) provides:

"(e) a Supreme Court or County Court which convicts a person of a summary offence may make such orders in relation to the conviction as might be made by the Magistrates' Court."

**16 In oral argument, counsel advanced two further submissions. First, he contended that s 113A had impliedly repealed s 22 of the Crimes (Family Violence) Act, and indeed, he submitted, every other statutory provision imposing a maximum penalty for a summary offence of more than two years' imprisonment, and substituted therefor a maximum penalty of two years. Secondly, in the alternative, he submitted that, if s 113A had not so impliedly repealed s 22 of the Crimes (Family Violence) Act and those other provisions to which I have referred, a sentencing judge was required in effect to have regard to two maximum penalties: in this case to the maximum sentence of five years imposed by s 22 of the Crimes (Family Violence Act) and the two-year limit which is, he contended, imposed by s 113A, and then to synthesise both in order to produce the appropriate sentence.

17 In my view, counsel's arguments are misconceived. The judge was right in saying that the maximum penalty for the offence under s 22 of the Crimes (Family Violence) Act was five years' imprisonment. Consequently, in my view, her Honour was entitled, indeed bound, to treat a sentence of five years' imprisonment as "the maximum penalty prescribed for the offence", within the meaning of s 5(2)(a) of the Sentencing Act 1991.

18 As I see it s 113A operates in similar fashion to s 113 of the Act. Section 113 confers jurisdiction on the Magistrates' Court to hear and determine indictable offences, but deprives the Magistrates' Court of the power which the conferring of jurisdiction would otherwise give it to pass a sentence of up to the maximum penalty and limits the power to one of imposing a penalty of up to only two years' imprisonment.[1] In similar fashion, it appears to me that s 113A of the Act confers jurisdiction on the County Court and the Supreme Court to hear and determine summary offences, but deprives each of those courts of the power which the conferring of jurisdiction would otherwise give them to pass a sentence of up to the maximum penalty to a power to impose a penalty of up to only two years' imprisonment.

19 In speaking of the effect of s 113, in Hansford v His Honour Judge Neesham, Brooking J said that:**

"Where a court tries an indictable offence summarily under s.53(1) of the Magistrates' Court Act and convicts the defendant, by s.113 of the Sentencing Act, the maximum term of imprisonment to which the court may sentence the offender for that offence is two years. But this does not mean that two years is "the maximum penalty prescribed for the offence", to which the court must have regard by force of s.5(2)(a). That phrase is confined to the maximum penalty selected by the legislature as that which should be prescribed for a particular crime. Section 5(2)(a) is in no way concerned with the limitation imposed by s.113 upon the jurisdiction or powers of a sentencing magistrate, whereby, whatever the nature of the offence, and whatever the maximum penalty prescribed for it, the magistrate may not impose a term of imprisonment greater than two years for the offence. Section 113 operates indifferently upon all sentences to be imposed for an indictable offence tried summarily under s.53(1). It does not prescribe a maximum penalty for the offence in the sense in which those words are used in s.5(2)(a), the specification of a maximum penalty by the legislature for a particular crime. It leaves the statutory maximum penalty untouched, but imposes upon a particular sentencing court a jurisdictional limit. It imposes its own maximum, not by reference to the nature of the offence and its gravity in relation to other offences, but by reference to the status of the sentencing court...".[2]

**20 Mutatis mutandis, the same reasoning applies to s 113A. Thus, where the County Court or the Supreme Court tries a summary offence under that section and convicts the accused, the maximum term of imprisonment to which the court may sentence the offender for that offence is two years. But that does not mean that the two years is "the maximum penalty prescribed for the offence" to which the court must have regard by force of s 5(2)(a) of the Sentencing Act. The phrase is confined to the maximum penalty selected by the legislature as that which should be prescribed for a particular crime. Section 5(2)(a) is in no way concerned with the limitation imposed by s 113A upon the jurisdiction or powers of the sentencing judge, whereby, whatever the nature of the offence, and whatever the maximum penalty prescribed for it, the sentencing judge may not impose a term of imprisonment greater than two years for the offence. Section 113A operates indifferently upon all sentences to be imposed for an indictable offence tried summarily under s 53(1). It does not prescribe a maximum penalty for the offence in the sense in which those words are used in s 5(2)(a) of the Sentencing Act, the specification of a maximum penalty by the legislature for a particular crime. It leaves the statutory maximum penalty untouched, but imposes upon a particular sentencing judge a jurisdictional limit. It imposes its own maximum, not by reference to the nature of the offence and its gravity in relation to other offences, but by reference to the status of the sentencing court.

21 The argument that s 113A worked an implied repeal of s 22 of the Crimes (Family Violence) Act is untenable. As counsel in the end conceded, it would be one of the most indirect and difficult means of effecting repeal that might be imagined, and it would also mean that, without so much as a reference to the many other statutory provisions which prescribe maximum penalties of more than two years for summary offences, they had been abolished.

22 The alternative argument, that a sentencing judge should somehow regard an offence of the kind for which s 22 of the Crimes (Family Violence Act) provides as having two maximum penalties for the purposes of s 5(2)(a) of the Sentencing Act, and to synthesise them, is plainly wrong. It was rejected by all members of the Appeal Division in Hansford's Case.

23 In arguing against the appellant's submissions, counsel for the Crown submitted that, whilst in effect Hansford might be said to apply in the sense that the maximum penalty for an offence like that created by s 22 of the Crimes (Family Violence) Act is five years for the purposes of s 5(2)(a) of the Sentencing Act, in the case of a second or subsequent offence, the limitation of the jurisdiction of a sentencing judge to the imposition of a penalty of no more than two years must be taken impliedly to have been repealed; for otherwise, he contended, it would mean that, despite express provisions for maximum penalties of more than two years in the case of a number of summary offences, there could never be a penalty of more than two years imposed.

24 I reject that argument too. Although one may wonder whether Parliament had in mind provisions like s 22 of the Crimes (Family Violence) Act when it enacted s 113A, it is necessary to judge Parliament's intent primarily by reference to the words in which it chooses to express itself, and in this case those words are so clear as to leave no doubt. They convey plainly that it was the intention that, whatever penalty might otherwise be provided in another Act for a summary offence, if the offence is to be dealt with under s 113A the maximum penalty to be imposed cannot exceed two years.

25 Possibly - I put it no higher than that - it would be open to argue that, in the case of penalties of more than two years for summary offences enacted after the passage of s 113A, the court could impose a penalty of more than two years. The argument would be that, because the subsequently passed legislation was inconsistent with the prior passed s 113A, it should be taken impliedly to have repealed, or at least modified, s 113A to the extent necessary to enable the latter expressed provisions to operate according to their terms. But as at present advised, I doubt that is so and in any event, s 22 of the Crimes (Family Violence) Act was passed before s 113A. There is no room in this case for the idea that subsequently passed legislation is so inconsistent with s 113A as in effect to override it.

26 The argument based upon s 359AA of the Crimes Act is in my view equally inefficacious. Section 359AA confers power on a sentencing judge. It does not restrict the powers which a sentencing judge has at his or her disposal. But even if it were to be construed as having that effect, and so limiting the power of the judge to impose a sentence to the power of a magistrate to impose a sentence of up to only two years' imprisonment, it would not mean that the maximum penalty for the offence in question is anything other than the five years which s 22 of the Crimes (Family Violence) Act prescribes. Just as with s 113A, the maximum penalty for the purposes of s 5(2)(a) of the Sentencing Act would remain the five years which is prescribed.**

**28 Under ground 3 of the appeal, counsel for the appellant argued that in imposing the sentence the judge failed to have sufficient regard to the need to avoid double punishment and thus imposed individual sentences which were, at least in some respects, excessive. The submission was based on the principle of double jeopardy explained by the High Court in Pearce v The Queen,[3] in terms that, where two offences of which an offender stands convicted contain common elements, it is wrong to punish the offender twice for the commission of the elements that are common. Subject to contrary legislative intention, the punishment to be exacted should reflect what the offender has done and it should not be affected by the way in which the boundaries of particular offences are drawn. If then the boundaries are drawn in a way which means that offences overlap, to punish an offender twice in respect of conduct which falls in the area of overlap would be to punish offenders according to the accidents of legislative history, it was said, rather than according to their just deserts, and in order to avoid that result a sentencing judge must moderate one or more of the individual sentences so as to exclude from all but one of the individual sentences any increment of punishment which is relevant to the area of overlap.

29 Despite counsel's argument, however, I am unable to discern any degree of double punishment in the individual sentences. In point of fact, there was next to no overlap between the offence of intentionally causing damage to the complainant's motor car and the offence of intentionally causing her bodily injury. The only possible overlap I can see is the corneal scratching which the complainant suffered possibly as a result of breaking glass, but, even if so, the sentence of six months for the criminal damage of the kind which was inflicted was in my view well within the range, excluding any possibility of injuring the complainant, and thus it appears to me that the judge has come to the sentence of six months on that basis.

30 In the case of the offence of breaching the intervention order, there is of course a more significant degree of overlap with the offence of intentionally causing injury. But the sentence of only two years for a second, and very serious, breach of intervention order appears to me to reflect a judicial recognition of the overlap and the selection of a relatively moderate individual sentence in order to avoid risk of double punishment.**

31 Under ground 4, counsel for the appellant argued that the judge failed to have sufficient regard to the principle of totality and thus cumulated too much of the sentences imposed on count 1 and the offence of breaching the intervention order on to the sentence imposed on count 2. The argument was put on the basis, already rejected, that the maximum sentence for the offence of breaching the intervention order was two years' imprisonment, and also on the alternative basis that the sentence imposed on count 1 was made wholly cumulative on the sentence imposed on count 2, notwithstanding that they both occurred on the same day and in the course of the one single episode of criminality.

**32 The first part of the argument in my view fails altogether. The maximum sentence for the offence of breaching the intervention order was five years and only one of the years of the sentence of two years which was actually imposed on that charge was cumulated on the base sentence. In my view the result is plainly consistent with careful moderation and cumulation to accord with the principle of totality.

33 The second aspect of the argument is perhaps more persuasive. It is open to take the view that the offence of intentionally causing damage to the car and the**

offence of intentionally causing injury were part of one continuing episode of criminality, but that is not the only way in which the matter may be seen. In many respects, this matter is analogous to Shaw v The Queen,[4] where an indecent assault on the victim and an offence of causing her bodily harm when she attempted to escape from the accused's car were treated as sufficiently disconnected to warrant a cumulative sentence.[5] Furthermore, the mere fact that a number of offences occur in the course of the one continuing transaction does not necessarily mean that the judge is prevented from cumulating individual sentences. Each case must always depend upon its own facts.[6] In this case I am not persuaded that the judge was in error in taking the view that the two offences were sufficiently separate in character and seriousness as to warrant total cumulation.

**34 Finally, counsel for the appellant submitted that what counsel contends were errors as to the maximum penalty, double punishment and totality had combined to produce a situation where the total effective sentence and non-parole period were manifestly excessive. I disagree. For the reasons already given, I reject the idea that the judge was in error as to the maximum penalty, or in failing to avoid double punishment, and I do not consider that the sentence for an offence or series of offences as serious as these can be viewed in any way as crushing. The nature and effect of the appellant's offending, combined with the lack of insight and remorse, and the high risk of re-offending which was identified, in my view compel the conclusion that the total effective sentence and non-parole period were, if anything, very lenient.

37 I also agree that this appeal should be dismissed, and I do so for the reasons given by Nettle JA. I would add that the sentencing judge was clearly correct in attributing a high level of seriousness to the appellant's conduct and reflecting that in the sentences imposed. Not only did the appellant's conduct involve a savage and sustained attack upon his unfortunate victim but, it must not be forgotten she had sought the protection of the law against his continued and frightening criminal harassment. He responded to her endeavours, and to the imposition of a sentence of imprisonment upon him, by seeking to punish her and damage her property. Obviously the community cannot accept that those who avail themselves of its protection may be subject to revenge or retribution if its structures and that protection are to possess credibility and operate to deter potential offenders.

38 The order of the Court is that the appeal is dismissed.**

[1] Hansford v His Honour Judge Neesham [1995] 2 VR (Appeal Division) 233, 237 (Brooking J).

[4] (1989) 39 A Crim R 343.

[5] R v Rule (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, Gray, Gobbo JJ, 7 April 1989).

[6] R v Rourke [1997] 1 VR 246, 253.