R v Foster [2007] VSCA 85

In making orders for cumulation, his Honour made a slip. In his sentencing remarks, his Honour twice stated that the total effective sentence he imposed was two years and six months' imprisonment, and that was also stated in the Return of Prisoner. However, when he made orders for cumulation, his Honour ordered that nine months of each of the sentences on counts 2 and 3 were in effect to be served concurrently with the sentence on count 1, but his Honour failed to state that the periods of cumulation of the sentences on counts 2 and 3 were also to be cumulated upon each other as well as upon count 1. The order, although specifying that it produced a total effective sentence of two years six months' imprisonment, arguably only produced a two years three months total effective sentence, which was plainly not intended by his Honour. I will return to this question later. His Honour ordered that the appellant serve one year before he was eligible for parole, and he declared 241 days pre-sentence detention.

3 These offences occurred at Portland on 23 April 2006. The appellant had previously been in a relationship with Kylie Haymes and that relationship had ceased some two years prior to commission of these offences on 23 April 2006.

4 The victim, as to counts 1 and 2 on the presentment, is Jessica Annett, who is Kylie Haymes' sister. On 13 April 2006, the appellant was sentenced in the Magistrates' Court at Geelong with respect to several offences, including three counts of breaching an intervention order which had been taken out by Kylie Haymes. The appellant blamed, at least in part, Ms Annett, as she had given evidence as a witness in the hearing relating to the three charges of breaching the intervention order. On 23 April 2006, at 6.45 pm, the appellant was driven to Ms Annett's home by his mother. The appellant banged on the door and Ms Annett opened the door, to find the appellant holding a knife in front of him. The appellant leaned forward, with the knife pointed towards Ms Annett, and said, "Where's your fucking sister live?" Ms Annett attempted to close the door but the appellant prevented this from occurring by pushing the door with his shoulder. Part of his body was then inside the door. Both the appellant and Ms Annett pushed on the door, with Ms Annett ultimately succeeding in closing the door. These events constituted count 1, aggravated burglary.

5 In the process of closing the door, one of the four glass panels in the door smashed. Ms Annett screamed for her boyfriend to help her. The appellant then stabbed the door several times with the knife, breaking the glass panels and making the existing holes bigger. Ms Annett's boyfriend, Tyson Wessells, opened the door and, upon observing the appellant with the knife, immediately closed the door again. The appellant kept stabbing the door and said, "You've got no witnesses." As the appellant left the premises he closed the front security door and stabbed the knife through the door, penetrating the security door as well as the top glass panel of the main door. These events constitute count 2, damaging property.

6 The appellant returned to his vehicle and instructed his mother to drive him to the Safeway supermarket at Portland, in an attempt to establish an alibi. The appellant purchased some goods and retained the receipt. The appellant's mother then drove him home at his request. At approximately 8.30 pm, police attended the house of the mother. However, the appellant refused to open the door. His mother sought to open the door but the appellant did not allow her. He then proceeded to assault his mother over the following two-hour period. On an occasion during this period the appellant pushed his mother on to the bed, knelt beside her, put his hand over her mouth and told her to shut up. He then said to his mother, "I don't want to hurt you," grabbed the pillow and forcibly pushed it down on to her face, using his other hand to hold her throat. During the course of this incident he also grabbed his mother by the face, twisted her head and pushed her back into a cupboard. The injuries suffered by the appellant's mother consisted of bruising to her arm and general aches and pains to her body. She also suffered chest pains and anxiety as a result of the incident and was conveyed to Portland Hospital for treatment and observation. These events constituted count 3.

7 Police entered the house forcibly and arrested the appellant, conveying him to the Portland police station for questioning. During the course of the record of interview he claimed that he had done nothing wrong and had simply refused to open the door to police. He denied assaulting his mother and referred to his mother as a dog, stating that she had framed him. He maintained that he was going to fight the charges. He denied the commission of the offences which are the subject of counts 1 and 2 and said that he had been framed.

8 As the learned sentencing judge noted in his sentencing remarks, the appellant had 109 convictions from 19 court appearances. Among them were two convictions for burglary in 1997, two convictions for assault and one of assault occasioning bodily harm in 1998, two for intentionally damaging property in January 2000, one for discharging a missile to the danger of a person in April 2000, three convictions for destroying property and one of discharging a missile in September 2000, a conviction for burglary in May 2001, and also two counts of destroying property with intent in May 2001, convictions for burglary, theft and one of destroying property with intent in October 2001, a conviction for destroying property with intent and convictions for burglary, assault and numerous other offences in March 2002, intentionally damaging property in August 2002, three convictions for burglary and one of reckless conduct endangering serious injury in August 2002, in March 2004, two convictions for destroying property intentionally, plus a conviction for threatening to kill.

9 Then, on 13 April 2006, that is, only ten days before the present offences were committed, the appellant was sentenced to a wholly suspended sentence of imprisonment, together with a community-based order of 18 months, with respect to a raft of convictions including two counts of intentionally damaging property, burglary, theft, assaulting a police officer, unlawful assault and others.

10 As a result of his appearances over the years the appellant has been detained many times in a youth training centre and imprisoned on four occasions.

11 There are five grounds of appeal, but attention primarily focused on complaints that the sentences were manifestly excessive and that inappropriate orders were made as to cumulation. As to the complaint concerning cumulation, Mr Morrissey submitted that it was inappropriate to have cumulated any portion of the sentence on count 2 with that on count 1. He submitted that the offending conduct on both counts was substantially the same and in those circumstances it was inappropriate to order cumulation. He cited R v Mantini[1] and R v O'Rourke[2].

12 There is some uncertainty whether the conduct relied upon to constitute the entry into premises for count 1 was the entry of the appellant's shoulder at the doorstep, or else the insertion of the knife inside the house when stabbing through the door. In my opinion, whichever was the basis on which the sentence was imposed, there was a clear distinction between the conduct constituting counts 1 and 2. The appellant admitted by his plea that he entered the premises with the intention to assault an occupant. That was Ms Annett. Although the assault was constituted by the fear she was placed in upon being confronted with the knife, that was separate conduct from the appellant's use of the knife to damage the doors of the house. It was, in my opinion, entirely appropriate that there be an order for cumulation, and the amount ordered - only three months - was very, very modest, especially when regard is had to the many prior convictions for damage to property which the appellant has. It was also appropriate that count 3, an entirely distinct offence, resulted in an order for cumulation, which again was modest.

13 I would reject ground 2.

14 As to the complaint of manifest excess under ground 1, counsel placed particular emphasis on the contention that his Honour failed to give appropriate weight to the intellectual disability of the appellant and failed to sufficiently moderate factors of specific and general deterrence. It is submitted too that his Honour failed to give appropriate weight to mitigating factors in the background of the appellant. Ground 4 raised the issue concerning intellectual disability.

15 As I held in R v Bux[3], with the agreement of Batt JA and O'Bryan AJA, the principles of general and specific deterrence should be sensibly moderated where an offender suffers significant intellectual disability, but I stressed that the extent of such allowance will depend, among other factors, on the evidence of the extent of the disability.

16 The appellant had limited schooling and, from the age of nine to its completion at the age of 14, it was conducted in a special developmental school. He has poor reading and writing skills. His father walked out of the marriage, leaving the mother to look after the appellant and his siblings. He was placed in foster care at a young age and had been diagnosed as having Attention Deficit Disorder and epilepsy. He commenced drug and alcohol abuse at an early age and by the time of these offences was a heavy user of a multitude of drugs, including alcohol. His Honour took the factor of drug and alcohol addictions into account and set out that history in some detail.

17 In February 2006 the appellant was assessed as having mild intellectual disability and was deemed eligible to receive services under the Intellectually Disabled Persons Services Act 1996. Intellectual testing in 2002 by clinical psychologist Mr Bernard Healey disclosed the appellant to then have a full scale IQ of 76, which is not exceptionally low but none the less placed him in the middle of the borderline range at the fifth percentile, where 95% do better. Dr Danny Sullivan conducted a psychiatric evaluation of the appellant and, in his report dated 13 December 2006, concluded that there was no clear indication of psychiatric illness, although he noted that there were symptoms of depression.

18 An ambitious Justice Plan was designed for the appellant by Corrections Victoria in the event that the court, against its own recommendation, imposed a community-based order. A community-based order had been considered but was not recommended, given the appellant's record of breaching CBOs on many previous occasions. The report deemed the appellant to be at high risk of re-offending. Were the court minded to extend a CBO, however, then it was recommended that he be housed at a residential rehabilitation service, known as Foundation 61. Mr Morrissey acknowledged that such accommodation is now not immediately available to the appellant and to some extent he has lost the chance of rehabilitation that the plan had provided for him, by virtue of his sentence of imprisonment on these offences.

19 The appellant is close to the end of his non-parole period, being eligible for parole as at 22 May 2007. The Parole Board has met to consider his situation but awaits the outcome of this appeal. It is to be noted, however, that the appellant is subject to a warrant for his arrest for failing to attend court in New South Wales on a count of robbery in company. That is not a prior conviction, but his Honour was properly advised of that proceeding.

20 These offences occurred whilst he was subject to a community-based order imposed only ten days before, in response to breaches of an intervention order concerning the sister of the victim in the present case. The conduct here arose out of anger towards both Ms Annett and her sister, the appellant's former partner, Kylie Haymes, who had sought the intervention order. That is a very serious aggravating factor, notwithstanding the fact that the appellant's rage may have been precipitated by an abusive phone call made by Kylie Haymes.

21 It is likely that when the offences occurred the appellant was affected by drugs and alcohol, and he was placed on anti-psychotic medication upon his arrest and detention. However, the doctor who so prescribed the medication and Dr Sullivan are in agreement that to the extent that the appellant claimed to have suffered hallucinations at that time, they were drug and alcohol induced.

22 In my opinion, although the sentencing judge did not adequately spell out the approach he took towards moderation of specific and general deterrence when sentencing the appellant on account of the appellant's intellectual disability, it is clear that those were critical factors in the sentence. Not only did his Honour refer to intellectual disability several times in his sentencing remarks, it was central to submissions on the plea. It is quite plain from the sentences themselves that his Honour must have moderated the sentences for this reason, because the prior convictions and the circumstances of the offences would otherwise have attracted a much heavier sentence.

23 The complaint that the sentences were manifestly excessive cannot be sustained, in my opinion. These were frightening events and merited severe punishment. The sentences imposed were plainly within range. Thus, ground 1 and ground 4 should be rejected.

24 Ground 5 raised a question concerning evidence which had been obtained after sentencing of the appellant had concluded. That evidence related to his being placed on anti-psychotic medication whilst in custody. I do not think it necessary to deal with this ground. Mr Morrissey acknowledged that this evidence might well not fall into the category of fresh evidence admissible to explain facts that were known at the time of sentencing; but, even if it did, in my view it adds nothing to the case, since the matters raised by the new material were already before the sentencing judge through the report of Dr Sullivan, and a later report from him confirms that to be so.

25 I turn then to the complaint made in the written submission under ground 3, but not strongly pressed before us. It was contended that his Honour's failure to order cumulation of three months of each of the sentences on counts 2 and 3 with each other and with that on count 1 constituted sentencing error which re-opened the sentencing discretion. Technically, that may be true, although I find it unnecessary to resolve the issue. What his Honour intended, however, is clear, and Mr Morrissey conceded that his Honour twice stated it to be his intention that the total effective sentence was to be two years and six months' imprisonment. It may be that all that is required to correct the unintended omission in the sentencing orders is that this Court direct that it be noted in the records of the County Court that three months of the sentence imposed by his Honour on count 2 is to be served cumulatively upon the sentence on count 1 and also upon the sentence on count 2, and that three months of the sentence on count 3 is likewise to be served cumulatively on the sentence on count 1 and also upon the sentence on count 2. However, to put the matter beyond doubt,[4] I think it appropriate that the Court quash the sentence and re-sentence the appellant, but only for the purpose of giving effect to what in my view was plainly the judge's intention.

26 Accordingly, in my view it would be appropriate for this Court to order that the sentences below be quashed and the following orders be substituted: on count 1 that the applicant be sentenced to two years' imprisonment, on count 2 that he be sentenced to one year's imprisonment, and on count 3 that he be sentenced to one year's imprisonment. I would order that three months of the sentence on count 2 be served cumulatively upon the sentences imposed on count 1 and count 3, and that three months of the sentence on count 3 be served cumulatively upon the sentences imposed on counts 1 and 2. The total effective sentence therefore would be two years and six months' imprisonment and I would order that, as below, the appellant serve 12 months' imprisonment before being eligible for parole, and that the Court should declare that 350 days have been served as pre-sentence detention.

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