R v Harvey [2007] VSCA 127

10 I agree with Redlich JA, for the reasons which his Honour gives, that the appeal should be allowed and the appellant re-sentenced as his Honour proposes.

11 Following pleas of guilty and a plea in mitigation the appellant was sentenced to nine months' imprisonment on one count of criminal damage (count 1), six years on one count of aggravated burglary (count 2); and six and nine years respectively on two counts of intentionally causing serious injury (counts 3 and 5). The sentences were ordered to be served concurrently, resulting in a total effective sentence of nine years' imprisonment. A non-parole period of six years and six months was imposed. The appellant appeals against the sentences imposed.

12 The offences were committed on 19 April 2005 at the home of the appellant's ex-girlfriend, Rebecca Stephenson, where she lived with her parents. The serious injuries were caused to Rebecca Stephenson's mother, Lorraine Farnes and her father, Mark Stephenson. The circumstances of the offences were briefly described by the learned sentencing judge as follows:

"In the early hours of the morning after having first thrown a house brick through a window of the house, you violently broke into the house armed with an axe. Using that weapon, you broke down the front door and attacked the victim, Farnes, hitting her to the head with the axe, causing her serious injury. You then used the axe to chop and seriously damage doors in the house, including the door to the room where Rebecca Stephenson was attempting to hide.

At this point the victim, Mark Stephenson, armed himself with his own axe, and a most violent confrontation and struggle followed. Wood was thrown, and Stephenson too was struck to the head by your axe. Also, in the course of that struggle, you produced two knives and attempted to use them as weapons against Stephenson. You attempted to cut his throat. Fortunately for all concerned, you were eventually overpowered and held until the police arrived.

You were at that time considerably affected by a cocktail of illicit drugs: alcohol; cannabis; amphetamines; LSD and an opiate derivative by the name of MS Contin."

13 During the struggle with Stephenson, the appellant also gouged his eyes, bit his arm and bit part of his ear off. Stephenson suffered a laceration to the forehead of 3 to 4 centimetres; a deep laceration wound in the palm of his right hand and multiple cuts to his left hand. Lorraine Farnes was found to have a deep laceration wound of seven to eight centimetres in length on the left side of her forehead, starting from above the left eyebrow through to the back of the scalp, which required approximately twenty stitches. She also had bruising to the left forearm with swelling and pain. Understandably, as a result of the attack, the victims have suffered ongoing physical and emotional difficulties.

14 The appellant advances three grounds of appeal. First, that the learned sentencing judge erred in imposing a disproportionate sentence on the second count of intentionally causing serious injury without providing adequate reasons for doing so. Second, that the judge erred in failing to have regard to a six month term of imprisonment already served by the appellant when he came to be sentenced for the present offences. Thirdly, the appellant complains that the total effective sentence and non-parole period were both manifestly excessive.

Ground 1 - fixing a disproportionate sentence without giving reasons

15 With respect to the second count of intentionally causing serious injury, the learned sentencing judge recognised that the appellant fell to be sentenced as a "serious violent offender" under Part 2A of the Sentencing Act 1991 (Vic) ('the Act'). Section 6D(a) of the Act mandates that a Court must regard protection of the community as the principal sentencing purpose in sentencing such an offender. Section 6D(b) provides that a sentence longer than that which is proportionate to the gravity of the offence may be imposed in order to achieve the principal sentencing purpose set out in s 6D(a). When sentencing a serious offender, a sentencing judge, having considered each relevant matter set out in s 5 of the Act, and who concludes that a sentence of imprisonment is justified, must then have regard to the matter set out in s 6D(a) in determining the length of the sentence to be fixed. Paragraph 6D(a) does not make protection of the community from the offender the sole purpose for which a sentence is imposed but requires the sentencing judge to regard it as the principal purpose.[2] As protection of the community is one of the most important objectives which the criminal law seeks to secure,[3] this subsection is to be viewed as merely adding "particular emphasis to a factor which was at all times at the heart of the sentencing process."[4]

16 In sentencing the appellant on count 5 as a serious violent offender, his Honour said:

"In sentencing you on that count I am required to regard the protection of the community from you as a principal purpose for which sentence is imposed and I am empowered if necessary, in order to achieve that purpose, to impose a sentence greater than is proportionate.

However, as well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case of this nature. I must also consider, of course, the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act to make manifest the community's denunciation of your conduct and generally to impose a just punishment. The very magnitude of these crimes and the degree of violence involved demand a sentence of some substance. Crimes of this type, home invasions with associated violence, are far too prevalent in our community."

17 His Honour then proceeded to impose the sentences on each count to which I have referred. Based upon these sentencing remarks and the sentence in fact imposed on count 5, counsel for the appellant submitted that it should be concluded that his Honour intended to impose a disproportionate sentence pursuant to s 6D(b) and had in fact done so. The respondent challenges the contention that the sentencing judge intended to impose a disproportionate sentence and submitted that the sentence that was fixed was proportionate to the offence charged.

18 If the sentencing judge had intended to impose a disproportionate sentence pursuant to s 6D(b) of the Act, he was required to be satisfied the offender would remain a danger to the community beyond the period of a proportionate sentence of imprisonment[5] and to give reasons for so concluding. That the learned sentencing judge expressed no such conclusion is not in dispute. The sentencing judge, whilst adverting to the power that existed to impose a disproportionate sentence "if necessary", did not, in my opinion, seek to impose a disproportionate sentence on count 5. Although his Honour was bound to regard the protection of the community from the appellant as the primary purpose for which the sentence on count 5 was to be imposed, it was not necessary, in order to achieve that purpose, that the sentencing judge impose a sentence that was longer than that which was proportionate to the gravity of the offence. The objective set out in s 6D(a) was capable of being achieved by the fixing of a sentence which was proportionate to the gravity of the offence.[6] I see no reason to conclude that the sentencing judge considered it necessary to exercise the power conferred by s.6D(b). In the context in which his Honour referred to "the protection of the community" it is clear that his Honour was referring to his obligation to have regard to the protection of the community from the offender as the principal sentencing purpose in fixing the length of a sentence in the case of a serious offender.

19 In the alternative, counsel for the appellant argued that even if his Honour had not intended to impose a disproportionate sentence pursuant to s 6D(b), the sentence of nine years' imprisonment for intentionally causing serious injury to Mark Stephenson was disproportionate to the gravity of the offence and bespoke error; no reasons being advanced by the sentencing judge which could possibly support a sentence so different to that imposed on count 3. This argument was also relied upon in support of the ground that the sentence was manifestly excessive.

20 Counsel for the appellant referred to statistics on sentencing in relation to the offence of causing serious injury intentionally[7] and submitted that those statistics and comparable sentences in other cases[8] provided further support for the submission that the sentences imposed upon the appellant, and in particular count 5, were manifestly excessive. The sentencing statistics indicate that the offence embraces a wide variety of conduct, varying greatly in degree of seriousness. Between 2000 and 2005, terms of imprisonment for the offence ranged between 3 months and 16 years.[9] As the learned sentencing judge rightly observed, the appellant committed two grave examples of the offence of intentionally causing serious injury. The sentence imposed on count 5 was a very high sentence falling at the very upper end of the range of sentences that have been imposed for such offences.

21 It was submitted on the appellant's behalf that as the severity and consequences of the assault upon Ms Farnes were more serious than the assault upon Mr Stephenson, Ms Farnes having sustained permanent loss of taste and smell, a term of imprisonment three years longer for the assault on Mr Stephenson was disproportionate and manifestly excessive. Counsel for the respondent sought to demonstrate that the sentence imposed on count 5 was not disproportionate to the gravity of the offence, submitting that there were adequate grounds to distinguish the offending conduct in count 5 from that relating to count 3. He drew attention to the circumstances that the offence was committed in the course of a violent house invasion with an axe, in breach of an intervention order relating to the same victims and whilst the appellant was on bail. But these factors applied to both counts. Significantly, counsel for the respondent fairly conceded that the sentence of six years' imposed on count 3 could not be said to be inadequate despite these aggravating circumstances. Ultimately counsel for the respondent relied upon the nature of the assault upon Mr Stephenson and its duration, together with the fact that the appellant was to be sentenced as a serious offender on that count, to justify the differential of three years between counts 3 and 5. Particularly in light of the concession made by counsel for the Director as to the adequacy of the sentence imposed on count 3, this contention cannot be sustained.

22 I consider there to be considerable force in the submission that neither the nature and duration of the assaults the subject of counts 3 and 5 or the fact that the appellant fell to be sentenced as a serious offender under s 6D(a) could justify the difference of three years' imprisonment between the two counts.

23 While the latitude of sentencing judges to tailor an appropriate total effective sentence should not be unduly circumscribed, it has been said on a number of occasions that errors may arise where a sentencing judge, as is here the case, fails to moderate the sentences imposed on each count of a multiple count presentment and direct a measure of cumulation between counts.[10] One error, which is likely to have occurred in the present instance, is to impose a particularly heavy sentence on one count and to allow the sentences imposed on others to be served concurrently despite the fact that some cumulation is justified.[11] The sentencing structure adopted could not accommodate an order for partial cumulation of the sentence on count 3 for the victim of the separate serious assault.[12] The appropriate approach which should generally be adopted in the case of multiple victims is for a judge to impose a moderate sentence[13] on the most serious offence, lesser sentences for others and orders for cumulation on those counts where cumulation seems appropriate.[14] Failure to do so leaves a very heavy sentence imposed on one count vulnerable on appeal, the sentencing discretion being reopened simply because the sentence imposed on that count was manifestly excessive when considered on its own.[15] For these reasons the sentence imposed on count 5 is suggestive of error notwithstanding the very serious nature of the offending.

Failing to make orders as to concurrency where sentencing an offender for offences committed whilst on bail; and when sentencing a serious offender

24 There are other aspects of his Honour's approach which reveal error. In imposing the terms of imprisonment on each of the four counts his Honour said:

"Those crimes were committed in the one course of criminal conduct and I see no reason to make any order altering that which follows according to law, namely that all sentences be served concurrently."

25 His Honour sentenced upon the presumption that the sentences on each count would be concurrent by virtue of s 16(1) of the Act. As the offences were all committed whilst the appellant was on bail that subsection did not apply: see s 16(1A)(e). Such an approach was also inconsistent with the mandate of s 6E which required that every term of imprisonment imposed on a serious offender must be served cumulatively on any other sentence imposed on that offender, unless otherwise directed by the court. [16] His Honour failed to recognise that concurrency is treated as the exception rather than the rule and that both ss 6E and 16(1A)(e) of the Act require specific directions as to concurrency so as to overcome what otherwise is the prima facie cumulation of sentences of this kind.[17] As concurrency would only arise in either circumstance if it were ordered, the sentence on count 5 and arguably all of the other sentences would be cumulative upon each other. This plainly unintended result would require the re-opening of the sentencing discretion, it not depending upon whether the error produced a higher or lower sentence than should have been imposed.[18] Moreover, the error as to the presumption of concurrency may explain why the sentencing judge imposed the sentence that he did on count 5.

Time served on another sentence whilst on remand

26 Under ground 2 complaint is made that the sentencing judge failed to take into account the time served by the appellant in relation to other offences whilst on remand in relation to the charges presently before the Court.

27 Prior to the imposition of the sentences with which this Court is concerned, the appellant served a sentence of six month's imprisonment which was imposed by the Magistrate's Court on 15 August 2005 for a variety of offences, some of which related to the present victims. The appellant argues that this sentence should have been taken into account by the judge in giving effect to the principle of totality. The respondent submits that there was no need for his Honour to have taken account of the sentence.

28 A brief chronological summary of events is necessary to consider this ground. The appellant was remanded in custody on the present offences on 29 April 2005. On 17 May 2005 he was further remanded in custody after appearing at the Ballarat Magistrates' Court on other charges some of which related to the present victims. On 15 August 2005 the appellant was sentenced to six months' imprisonment at the Ballarat Magistrates' Court in relation to those other charges. Not allowing for pre-sentence detention, that six months sentence expired on or about 23 October 2005. Thereafter the appellant remained on remand in relation to the present offences until he was sentenced on 8 May 2006. Following the imposition of the sentences the subject of the present appeal, the County Court at Ballarat heard an appeal on 17 May 2006 in relation to the six month sentence that had been imposed at the Ballarat Magistrates' Court in relation to the other offences. The County Court allowed the appeal and re-sentenced the appellant to eight months' imprisonment.

29 Counsel for the appellant submitted that the six months' imprisonment which the appellant had served for other matters should have been taken into account by the sentencing judge in considering the totality of the appellant's time in custody.[19] There are a variety of circumstances in which time spent in custody which cannot be declared as pre-sentence detention within the meaning of s 18 of the Act may be treated as time served, in a general sense, awaiting trial on the charge on which the offender is about to be sentenced and which is time that ought to be taken into account in the exercise of the sentencing discretion.[20] One such circumstance is where a sentence has been imposed whilst the offender is on remand and that sentence has been served prior to the time that the offender falls to be sentenced.[21] If it had been uncompleted at the time of sentence the principle of totality would require it to be taken into account.

30 Although the sentencing judge was informed as to the sentence which had been imposed at the Ballarat Magistrates' Court, no submission was made that the sentencing judge should in a general way take such a sentence into account. The six month sentence served by the appellant during the period of his remand denied him a declaration of pre-sentence detention on the present matters for that period. In most circumstances, had the other charges been dealt with at the same time as or after the sentence imposed in the present matters, it is likely that they would have been served concurrently with the present sentence. But as the sentences on the present matters were all sentences imposed in relation to offences which had been committed whilst the appellant was on bail, s 16(3C) of the Act would have come into operation with the result that the present sentences would have been cumulative unless otherwise ordered. Even in such circumstances a sentencing judge would be required to have regard to the principle of totality.[22] Where there has been established failure to take a relevant matter into account, it is not to the point that it may have made no difference to the sentence that was imposed. For this and the other reasons expressed, I have concluded that the sentencing judge fell into error in a number of respects and that the sentencing discretion must be reopened. I am also satisfied that the sentence imposed on count 5 is manifestly excessive. I consider that the sentences on each count should be varied, orders for cumulation made and the total effective sentence and non-parole period varied.

31 I would therefore impose the following sentences:

Count 1 3 months

Count 2 51/2 years

Count 3 61/2 years

Count 5 61/2 years

I would order that 12 months of the sentence on count 2 and 12 months of the sentence on count 3 be served cumulatively upon each other and upon the sentence on count 5 making a total effective sentence of 8 years and six months. I would order that the appellant serve a period of 6 years and 3 months before being eligible for parole. I would seek counsel's guidance with respect to the time the appellant has already spent in custody pursuant to s 18(4) of the Sentencing Act 1991.

- - -

[1] Crimes Act 1958, s 16.

[2] R v Dunne [2003] VSCA 150 [24] (Batt JA); R v Barnes [2003] VSCA 156 [30] (Callaway JA).

[3] R v Connell [1996] VicRp 30; [1996] 1 VR 436, 441.

[4] R v McManus, (unreported, Victorian Court of Criminal Appeal, 17 February 1998) 15 (Charles JA with whom Batt JA agreed).

[5] R v Connell [1996] VicRp 30; [1996] 1 VR 436, 443 (Charles JA).

[6] R v Robertson (1995) 82 A Crim R 292, 298.

[7] See Sentencing Snapshot No 12: "Sentencing Trends for Causing Serious Injury Intentionally in the Higher Courts of Victoria", Sentencing Advisory Council, September 2006.

[8] DPP v Ross [2006] VSCA 223; DPP v Giffen [2006] VSCA 219; DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125; R v Sa [2004] VSCA 182; DPP v Zullo [2004] VSCA 153; R v Huynh [2004] VSCA 156; R v Nazeer [2005] VSCA 81; DPP v Doncon [2003] VSCA 103; DPP v Fevaleaki [2006] VSCA 212.

[9] Sentencing Advisory Council, Sentencing Snapshot: Sentencing trends for causing serious injury intentionally, September 2006, No 12.

[10] R v Izzard [2003] VSCA 152; (2003) 7 VR 480, 484-6 [20]-[23] (Callaway JA, Winneke P and Vincent JA agreeing); R v McCorriston [2000] VSCA 200.

[11] R v McCorriston [2000] VSCA 200 [13] (Callaway JA, Winneke P and Buchanan JA agreeing); R v Ash [2005] VSCA 43 [22] (Eames JA with whom Callaway and Buchanan JJA agreed).

[12] DPP v Grabovac [1998] 1 VR 664, 680; R v Lomax [1998] 1 VR 551; R v Kerbatieh [2005] VSCA 194, [126]; Victorian Sentencing Manual (2nd ed) [24.103].

[13] The length of the sentence does not determine whether it was moderate. As Callaway JA said in R v McCorriston, "moderation takes its content from the circumstances of the offence and the offender" footnote 7.

[14] R v Ash [22]; R v Mai [2000] VSCA 184 [12]-[14] (Charles JA); R v Wilhelm [2005] VSCA 192 [14] (Callaway JA, with whom Maxwell P and Chernov JA agreed); R v Sa [2004] VSCA 182 [50] (Eames JA with whom Callaway and Buchanan JA agreed); R v Alimic [2006] VSCA 273 [24], [31]; R v Van Boxtel 11 VR 258; R v Bain [2000] VSCA 199 [10].

[15] R v Izzard [23] (Callaway JA); R v Ash [22] (Eames JA).

[16] DPP v DCR [2004] VSCA 103 [40] (Ormiston JA, with whom Winneke P and Vincent JA agreed).

[17] R v Natoli [2001] VSCA 243 [9] applying R v Mantini [1998] 3 VR 340, 346-8; R v D'Aloia [2006] VSCA 237 [33].

[18] R v Tutchell [1979] VicRp 24; [1979] VR 248, 252.

[19] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 308; Mill v The Queen (1988) 166 CLR 59, 63; R v Gordon (1994) 71 A Crim R 459, 466.

[20] R v Renzella [1997] 2 VR 88, 96; R v Stares [2002] VSCA 70; (2002) 4 VR 314; R v Watts & Ors [2007] VSCA 81; R v McMahon [2006] VSCA 240 [17]-[22] (Vincent JA).

[21] R v Ali (No. 2) [2005] VSCA 302; (2005) 13 VR 257, 273-4 [59]-[60] (Charles JA); R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123, 137 [42] (Callaway JA); R v Beck [2005] VSCA 11 [18]-[19].

[22] See R v Hunter [2006] VSCA 129 concerning an offender who committed offences whilst on parole thus attracting the provisions of s 16(3B). See R v Piacentino; R v Ahmad [2007] VSCA 49 [32]-[37] (Eames JA).