R v Dyson [2001] VSCA 100

[2001] VSCA 100

Criminal law - Sentencing - Intentionally causing serious injury - Aggravated burglary - Ten other counts arising out of violent rampage with iron bar - Total effective sentence of five years six months, with minimum of three years - Whether failure to take account of "paranoid personality style" - Whether error to accumulate whole of five one month sentences - Not manifestly excessive.

Mr. S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 I will invite Ormiston, J.A. to deliver the first judgment in this appeal.

2 The facts revealed by this appeal show that in March last year the appellant engaged in a terrifying rampage of mayhem and property damage over a relatively short time, a heavy iron bar being used or threatened to be used by him in all but one of the 12 offences in relation to which the appellant pleaded guilty. By leave he now seeks to have set aside or varied the sentences imposed on him in the County Court in respect of the 12 counts, for which he received a total effective sentence of five years six months, of which it was directed that he serve a minimum term of three years before becoming eligible for parole. Of the 12 counts, the two most serious were count 3 for aggravated burglary, on which he was sentenced to three years' imprisonment (the maximum term being 25 years) and count 4 for intentionally causing serious injury on which he was sentenced to four years' imprisonment (the maximum term being 20 years). Of the other counts, four were for making threats to kill (counts 5, 6, 8 and 10), on each of which he was sentenced to three months' imprisonment (the maximum being ten years), five were for common law assault, (counts 1, 7, 9, 11 and 12), on each of which he was sentenced to one month's imprisonment (the maximum being five years), and two counts were for intentionally damaging property, on each of which he was sentenced to one month's imprisonment (the maximum being ten years). The learned judge ordered that one year of the sentence for aggravated burglary and one month of the sentences on counts 1, 2, 5, 7, 9 and 11 be served cumulatively on the sentence imposed for count 4, being the count for intentionally causing injury. The total effective term, as I have said, was five years six months. Apart from fixing the minimum term at three years, his Honour also made a disposal order and directed the appellant undergo a procedure for the taking of an intimate sample.

3 The grounds of the appeal now relied on (as varied by amendment) include, as ground 1, a claim that the "sentence (sic) imposed was manifestly excessive" in all the circumstances. Secondly, it is contended that the judge erred in failing to place sufficient weight on seven mitigating personal circumstances, namely the appellant's lack of a relevant criminal history, the prospects for his rehabilitation, the remorse exhibited by his pleas of guilty, his employment prospects, his personal circumstances relating to his family, and the additional burden he would suffer in prison by reason of his health difficulties. The third ground is that "the extent of accumulation imposed was excessive in all the circumstances of the case". The final ground alleges that the judge failed to place any or any sufficient weight on his psychological condition, insofar as it related to the principles of deterrence and to the burden imposed on him by incarceration.

4 The background to this concatenation of violence is not entirely clear, except that it seems to have been accompanied by the intake of alcohol from time to time. Apparently it was set in train in the first place by a minor dispute over money between the appellant and his former de facto partner, one Debbie Bishop, who sought the support in this dispute of two friends, a neighbour, Tracey Sharp, and her partner, Ronald Pratt, as well as another friend, Troy Castles, each of whom were victims of the various assaults. Two other victims were outsiders to the dispute and were incoming tenants to Ms Sharp's house who seem only to have had the misfortune of being in the wrong place at the wrong time. The fact that Ms Bishop was not a victim, but only those who were her friends, seems to have been partly explained in the course of the plea as being the consequence of the applicant's "paranoid personality style".

5 The facts might best be summarized in the following way. The appellant had been in a relationship with Ms Bishop and on the day in question was visiting her at her home in Monahan's Road, Cranbourne, seemingly to resolve a dispute over a sum of about $100 said to be owing for repairs to her car. The argument got out of hand in the sense that he took the sum from her bag and then threw it on the floor. Ms Bishop then called in her neighbour, Tracey Sharp. She and the appellant exchanged words, but then the appellant grabbed Ms Sharp and punched her several times on the head, with resulting soreness. This was the basis of count 1 for assault. Then there was a good deal of to-ing and fro-ing with the result that the appellant ultimately found his way to his sister's home further along Monahan's Road where he met up with his co-offenders, (although they were co-offenders to a lesser extent), Jason Richards (the de facto husband of his sister), and his own brother, Stephen.

6 Apparently Ms Sharp and her de facto partner, Ronald Pratt, had gone to the sister's house to sort the matter out peacefully, but their intentions had been misunderstood, for the appellant's sister said that she had been intimidated.

7 The appellant and his co-offenders seemed angered. They had been drinking and they eventually went outside and up the road to where Mr Sharp, Miss Pratt and their friend, Mr Castles were standing together with their new tenants, John Tipper and Angela O'Grady. Threats and insults were exchanged at a distance, but then the appellant grabbed an iron bar from the back of his brother's car. He ran at the group of five, and one called out, "He's got a gun," and believing that to be so, all five disappeared inside Miss Sharp's house. This behaviour was said to be, in part, the basis of the assault (counts 7, 9 and 11), relating to Tipper, O'Grady and Castles. On his way to Ms Sharp's house, the appellant used the iron bar to damage Ms Sharp's motor vehicle parked outside in the street, and that was the basis for count 2. The appellant and his brother-in-law then forced themselves into the house, clearly intent on attacking at least some of the inmates, and that has formed the basis of the count for aggravated burglary (count 3).

8 Ms Sharp had hidden outside in the back yard and Mr Castles, Mr Tipper and Ms O'Grady had tried to hide in a back room. Mr Pratt was the only person in the front of the house and he was immediately attacked. The appellant struck him three times with the iron bar causing Mr Pratt to fall to the ground. Again the victim was attacked with the bar on the ground where he screamed and tried to cover his head. As a result, he suffered severe lacerations to his face and head. This attack formed part of the events constituting count 4.

9 The appellant was then pulled off by his co-offenders and Mr Pratt tried to hide under a table. The appellant then sought out the other three persons in the rear bedroom using the iron bar to smash his way into the room, or at least to break the door down. (This formed part of count 12.) While outside the room, the appellant and his co-offenders shouted threats to all in the house, and in particular to those inside the room, "We are going to kill youse," and, "We are going to teach you a lesson." those threats formed the basis for counts 5, 6, 8 and 10.

10 It seems the appellant did not effect entry to the bedroom, as the door was propped up by a mattress, but he engendered great fear, Ms O'Grady sobbing hysterically inside. The events also formed part of the assault counts. Thereafter the appellant, still with the iron bar, returned to the living room where Mr Pratt had crawled under a coffee table. However, his legs and feet unfortunately protruded, and these were mercilessly attacked by the appellant, so as to fracture both his legs and cause other injuries, which in all caused him to be confined to a wheelchair for some time and still have residual effects. Despite Mr Pratt's pleas, the attacks continued until again the appellant's co-offenders dragged him away. (All these latter attacks likewise formed part of count 4.) The other blows left Mr Pratt with injuries to his head and his memory and concentration have also been impaired.

11 Throughout the rampage, which in all took little over ten minutes, other damage was caused inside the house, especially to the walls of rooms and to items of furniture, and this damage also formed part of count 12. Two of the other victims have suffered mental distress. The appellant went back to his sister's house and four days later went voluntarily to the local police station. He appears to have recalled little of the incidents, but has expressed some remorse.

12 The appellant was at the time of the offences 37 and is now 38 years old. On his plea he admitted four minor offences committed eight years ago and it was shown that he had had reasonably steady employment over the year. His prospects for rehabilitation were shown to have been good, as was accepted by the learned sentencing judge. His plea was supported by evidence from a forensic psychologist, Mr Cummins, who said that he suffered from a "paranoid personality style", but not from a disorder as such. This conclusion was reached by Mr Cummins, despite the fact that his tendencies seemed to be aggravated by alcohol. Other witnesses described the appellant as having otherwise a non-violent character.

13 Turning then to the grounds argued, counsel commenced with ground 4, which alleged a failure to give sufficient weight to the appellant's psychological condition. He conceded that his client's condition was one which could not "vastly minimise" the application of the principles of deterrence. Nor was it argued that he suffered from a condition which would satisfy the requirements said to have been laid down in cases such as R. v. Tsiaras[1]. Nevertheless, he argued that because the appellant's condition was "suspected" by Mr Cummins as being possibly a "disorder", that condition was a contributing factor to his behaviour and thus, even as a lesser condition, should have been taken into account. He also sought to suggest that any term of imprisonment would likewise be affected, and the service of that term would be affected, by his mental condition. Counsel contended that the judge had failed to take into account in fixing the relevant sentences the appellant's moral responsibility and the relevance of that to deterrence of the appellant and generally.

14 The short answer to these contentions is that I can see no reason to believe that the learned judge did not take these factors into account to an appropriate extent. He referred in detail to the evidence given by Mr Cummins, without expressing any disbelief in it. The fact that the appellant could not be said to satisfy the test in Tsiaras meant that any error would be hard to demonstrate and there is no other basis for believing that his condition was not given some weight by the judge. As will be seen, it is clear that the judge imposed very modest sentences, so I would think there is no reason to believe that he did not take some account of the appellant's moral responsibility having regard to his mental condition. No argument as to his future in the prison system was put to the sentencing judge, and he cannot fairly be criticized for not giving it weight. This ground must fail.

15 It was next argued that the extent of accumulation was excessive. To a degree, this argument might be seen as part of the general argument as to manifest excess covered by ground 1, but it was taken separately. Complaint was specifically made that there was "full" cumulation of the sentences on counts 1, 2, 7, 9 and 11. Four of those counts were for assault and the fifth, count 2, was for intentionally damaging property. The sting in the criticism is largely taken away when one recalls that the sentences were each for one month, so that partial cumulation in that respect would be unrealistic in practice. This answer seems the more obvious when one notes that counsel conceded that a degree of accumulation was called for having regard to the serious nature of the appellant's offending. It must be remembered that the offences were committed against five different people. Of course, the process of reaching a final conclusion as to concurrency and cumulation involves answering the question whether the principle of totality has been satisfied. The Court has said on numerous occasions that it is preferable to impose proper sentences in the first place and then to see what degree of cumulation is necessary and desirable in reaching an assessment of what is a fair and just overall sentence, but circumstances vary and the approach to fixing sentences in the light of the principle of totality may vary. Here the judge could have approached the matter differently. In the case of several of the assaults and damaging property, it may be that the individual sentences were too light; on the other hand, he could have accumulated one month from the other counts relating to threats to kill. Whichever differences might appeal to other judges, if only one month of rather more appropriate penalties had been imposed, there could have been little complaint in those circumstances, unless it were asserted that they should all have been treated as part of a single episode, to which count 1 in any case might have been an exception. However, a degree of cumulation was conceded and in truth there was only a total of six months' cumulation effected as a consequence of convictions and sentences for some 10 offences other than the two most serious of the counts.

16 In my opinion, having regard to the relevant principle of totality, no error has been here demonstrated. Even if there had been a technical error in any individual case, no other sentences should have been imposed unless the other grounds are made out. Ground 3 should be rejected.

17 As to ground 2, it was argued that the learned judge had failed to take into account a number of personal characteristics which ought to have mitigated the penalties imposed and which I referred to in describing this ground. The difficulty facing the appellant here, as his counsel very fairly conceded, is that each of the matters raised was referred to in one way or another by the judge in his sentencing remarks. It was not possible to show any specific failure by the judge, so that the ground could only be made out by showing that any one or more of the sentences, the process of cumulation, or the minimum term were excessive. That leads one inevitably to the first ground, though it was argued last, that the sentence was manifestly excessive or, as perhaps it should read, that the sentences were manifestly excessive. In my opinion, none of the matters put forward on behalf of the appellant would support either grounds 1 or 2. The sentences, despite the plea of guilty and the other factors relied on under ground 2, and in particular the psychological condition to which I made reference, were, if anything, light and the process of cumulation fair in all the circumstances. The minimum term was very modest, giving good ground for the conclusion that the judge had taken proper account of the relevant mitigating factors, especially as to the appellant's rehabilitation and also as to his psychological condition, if it can be properly so described. As counsel for the respondent succinctly expressed it: "The sentence put at its highest is at the very bottom the of the range". In particular, the sentence of four years for intentionally causing serious injury was very light, far too light for this kind of offending if one were to view it in isolation. Likewise, the sentence for aggravated burglary was very light. These sentences could only be justified by having regard to the way in which the learned judge structured his overall sentence by accumulating part or the whole of the other sentences. Even then, in my opinion, the overall sentence was merciful, from which I would infer that the judge had paid heed to the mitigating factors put

on the appellant's behalf. I would not uphold either of grounds 1 or 2.

21 The order of the Court is that the appeal is dismissed.

[1] [1996] VicRp 26; [1996] 1 V.R. 398.