R v Hester [2007] VSCA 298

2 The grounds on which the appellant appeals are that her Honour impermissibly ignored the victim impact statement for sentencing purposes and that the sentence is manifestly excessive. Before dealing with those matters, it is necessary to summarise the circumstances of the offending which are set out with some particularity in the sentencing remarks of the sentencing judge.

3 The offence which is the subject of count 1 was committed on 6 February 2006 and the other two offences on 9 February 2006. It seems that the appellant and the complainant had known each other since about December 2004. They became friends and their friendship developed into what her Honour called 'an intimate relationship which commenced about New Year's Eve 2005'. As to the offending, in general terms, on both occasions the appellant, whilst intoxicated, viciously assaulted the complainant. On the first occasion, at his house in Camperdown, a dispute arose between them, apparently about money. The appellant was drunk and became enraged. He threatened to burn the house down, punched the complainant on the nose, knocked her on to the bed and, notwithstanding that she told him that her nose was broken, began strangling her with some force, before abruptly letting her go. The complainant then left, but the appellant visited her on the next day and apologised for his conduct. According to the sentencing judge, the complainant 'took him back' because she felt sorry for him.

4 On 9 February 2006 the appellant and the complainant were in Warrnambool. They had dinner at an hotel where the appellant drank heavily. Eventually, at approximately 10.30pm, they went back to their motel room. The appellant was in a bad mood and continued drinking in their room. At some stage, the appellant found, on the complainant's mobile telephone, voice-mail messages from her former boyfriend. In the result, he became enraged and jumped on the complainant (who was lying on the bed) and began choking her. She picked up a bong off the floor and hit him on the head with it, smashing the bong. The appellant then took up the broken bong and hit the complainant on the side of the head with the metal part of it, so hard that she commenced to bleed profusely. After punching the complainant on several occasions in the face he stopped and said that he was 'sorry' and told her to clean herself up so that he would not get into trouble. He said that he did not want her to go to the police and that she should not bother suing him. The complainant told the police that the appellant wanted her to clean herself up and just pretend 'it didn't happen'. Despite the fact that the complainant's head wound was bleeding profusely, such that she was covered in blood and one of her teeth was loose in her mouth, and notwithstanding her expressed wish to go to the hospital, the appellant made it clear to her that he would not let her leave the motel room. He grabbed her handbag, took out of it her mobile telephone and purse and then spat into it. The appellant had snibbed the door and locked it and was very threatening in the way he spoke to the complainant, telling her that she 'wasn't leaving'. The complainant said that she realised that if she tried to leave the room the appellant would hurt her again. Being frightened of the appellant, she remained in the room. After about 45 minutes the appellant changed his mind and they went to hospital where her wounds received attention.

5 As a result of these attacks the complainant sustained injuries, as is apparent from the tendered photographs, requiring attention at the hospital. They included bruising to most parts of her body, black eyes, a broken nose, a severe cut to the head that required stitching and injuries to her teeth and gums that required a splint for the front tooth so that it would not fall out. In his record of interview with the police, however, the appellant denied assaulting the complainant on the second occasion, contending that she must have slipped in the spa and hurt herself. Her Honour noted that the complainant had made a comprehensive 11-page statement to the police which described the appellant's vicious attacks on her (not suggesting there that she had provoked the appellant into his conduct or that she was otherwise to blame).

6 At the hearing of the plea in mitigation, a victim impact statement was tendered in evidence in which the complainant relevantly said, first, that she was partly to blame for the second incident because she effectively provoked the appellant by being unfaithful and by hitting him with the bong, throwing his last drink away and locking him out of the motel room; and, secondly, that she and the appellant had resolved their problems and wanted an ongoing relationship.

7 I will now proceed to consider the grounds of appeal.**

Ground 2: alleged disregard of victim impact statement

8 Under ground 2, which was argued first, it was submitted that the sentencing discretion was vitiated because her Honour impermissibly ignored the victim impact statement. In her sentencing remarks, the judge said:

... your counsel ... specifically asked me not to take any account of the victim impact statement. He said that he did not rely on it in his submissions on your behalf, save and except that [the complainant] has expressed her position as to where she sees the relationship with you. Accordingly, I said I would put the victim impact statement to one side and, for the purposes of sentencing you today, I do.

The appellant's case before us was that her Honour erred in failing to have regard to the attitude of the victim of the offending to the incident, given particularly that it is relevant to the question of the effect of the offending upon her and to the appellant's rehabilitation in light of the level of support that he would have on his release from prison. Counsel pointed to her Honour's statement that she would ignore the victim impact statement completely and to the fact that, in her sentencing reasons, her Honour made no reference to the complainant's statement that she and the appellant were reconciled. Thus, it was said, her Honour failed to have regard to the complainant's attitude to the offending by reason of which the sentence is vitiated.

9 It is plain enough that, ordinarily, a sentencing judge is required to have regard for sentencing purposes to relevant contents of the victim impact statement, the essential purpose of which is to assist the court in determining sentence.[1] As is made plain in s 5 of the Sentencing Act 1991, the factors to which the court must have regard in the exercise of the sentencing discretion include the impact of the offence on the victim and the personal circumstances of the victim.[2] Thus, a factor relevant to the impact on the victim is 'any injury, loss or damage resulting directly from the offence'.[3] As Eames JA explained in R v Skura ('Skura')[4]

... the introduction of victim impact statements has served an important purpose of ensuring that sentencing judges have full appreciation of the consequences of criminal conduct to the victims of the crimes, thereby ensuring that judges properly weigh the factors relevant to victims which must be considered by virtue of s 5 of the Sentencing Act 1991.

Clearly, a favourable victim impact statement cannot be used to usurp the function of the sentencing judge, just as an unfavourable one cannot be used to justify a sentence which is not just in all the circumstances.[5] But to the extent that a victim impact statement evidences forgiveness or support for the victim those factors must be given appropriate weight.[6] In particular, a favourable or supportive victim impact statement may bear on the questions whether there has in fact been an adverse impact on the victim and on the offender's prospects of rehabilitation.[7] Thus, as Smith AJA said in Skura, evidence of forgiveness by the victim may indicate that the consequences of the offence on the victim have not been long-term or debilitating, thereby affording some mitigation.[8] Furthermore, particularly '[w]here the offence occurs in a domestic situation, the attitude of the victim may be relevant to the question of rehabilitation'.[9]

**10 It follows that if her Honour totally disregarded the victim impact statement for sentencing purposes, or if she took no account of the complainant's attitude to the appellant notwithstanding the offending, as the appellant now contends, there would be force in the claim that her Honour relevantly erred. But in my view, on a proper analysis of what transpired at the hearing of the plea in mitigation, and on a proper interpretation of what her Honour said in her sentencing remarks, she did not err as is contended by the appellant.

11 It should be borne in mind that the procedure on a plea in mitigation is usually attended with a degree of informality[10] and the reception of a victim impact statement into evidence on the plea is to be approached by the sentencing judge with a degree of flexibility, 'subject, of course, to the overriding concern that, in justice to the offender, the judge must be alert to avoid placing reliance on inadmissible matter'.[11] And as Vincent JA observed in DPP v DJK:[12] -**

Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made.

12 The question of admissibility of the victim impact statement into evidence was not an issue that was before her Honour. But at the hearing of the plea in mitigation counsel for the Crown submitted that no weight should be placed on that aspect of the victim impact statement in which the complainant seeks to assume blame for the incident, given that it contradicted her complaint to police and was inconsistent with photographic evidence of the consequences of the appellant's prolonged assault on her. The informant, said the prosecutor, also did not accept those matters as they appeared in the victim impact statement. He told her Honour to contrast what the victim said in the statement with the whole of the evidence, particularly her statement of complaint. Moreover, the appellant's then counsel essentially told her Honour that the appellant accepted all the blame for the offending conduct and that he would not seek to rely on any acknowledgement in the victim impact statement that the victim was partly to blame for the incident. It was in this context that her Honour said that she would put the victim impact statement to one side. Importantly, however, later in the submissions, the appellant's counsel indicated to her Honour that he would rely, as a matter going to mitigation, upon the victim's intention to resume a relationship with the appellant upon his release from prison. He said:

I am told that the relationship with [the complainant] is still happening, still appropriate. That upon [the appellant's] release from prison, whenever that may be, it is their intention to obtain a house and do so in Geelong. Move away and it is his intention to help her to get her children back. Her intention to help him to endeavour to get his life back.

And in her sentencing remarks, her Honour recognised, as has been noted, that the appellant's counsel relied on the complainant's position as to her relationship with the appellant to which reference has been made.

**13 In the circumstances, I consider there was no error by her Honour in not taking into account that part of the victim impact statement in which the complainant assumed blame for the second offending and, as I understand it, the appellant's counsel before us did not contend to the contrary. And I also consider that there is no substance in the claim that her Honour failed to have regard for sentencing purposes to the complainant's attitude to her relationship with the appellant. The mere fact that she did not specifically say in the sentencing remarks that she did so is not determinative of the matter.[13] Furthermore, in the passage of sentencing remarks to which reference has been made, her Honour specifically recognised that the appellant's counsel was relying on the complainant's attitude towards the appellant, as was made plain at the hearing of the plea in mitigation as earlier noted. Hence, read in context, her Honour's statement in the sentencing remarks that she would put the victim impact statement to one side meant no more, I think, than that she would disregard that part of it in which the complainant assumed blame for the second offending. Moreover, that her Honour had the relationship between the complainant and the appellant present to her mind for sentencing purposes is apparent from her reference in her sentencing remarks to the report of Dr Deacon, a psychiatrist, which was before her. Amongst other matters, Dr Deacon noted that the appellant considered that he was 'still' in a relationship with the complainant.

14 In the circumstances, I consider that ground 2 must fail. But even if her Honour did err as the appellant now contends, I consider that there was no miscarriage of justice because, even if one took that aspect of the victim impact statement into account for sentencing purposes, it would not produce a lesser sentencing disposition.**

**15 Under cover of ground 1, the appellant contended that the sentence of three years' imprisonment imposed on count 2 is plainly excessive, with the consequence that the total effective head sentence and the non-parole period must fall. In the alternative, it was submitted, the non-parole period, being 75 per cent of the head term, is manifestly excessive. The other sentences that were imposed by her Honour were 12 months' imprisonment on each of counts 1 and 3. Her Honour directed that six months of each of the sentences imposed on counts 1 and 3 be served cumulatively upon the sentence imposed on count 2 and upon each other, thereby imposing a total effective sentence of four years' imprisonment. The non-parole period was, as I have said, three years.

16 Whilst acknowledging that the violence in this case should be abhorred, the appellant's counsel argued that the injuries sustained by the complainant, although serious, were not as serious or life threatening as injuries often are when this offence is committed. It was said that the appellant had no real history of violence and that, notwithstanding that he was at risk of re-offending, he exhibited some degree of remorse, pleaded guilty and had the support of the victim. In the circumstances, it was said, the impugned sentence is plainly beyond the relevant range.

17 Her Honour's task was to impose a sentence that reflected the gravity of the offence and the offending conduct and the applicable sentencing principles, having regard to the appellant's personal circumstances and other mitigating factors. As to the appellant's personal circumstances, it is apparent enough from the material before her Honour that he had a very difficult childhood and few advantages in life. He is the only child of his biological parents, but his mother was a prostitute with a drug dependency and he lived with her for his first five years before being moved to the care of his maternal grandmother. He had no contact with his father until he was aged seven and shortly thereafter lost contact with him until recently. Throughout his life with his mother he was constantly worried that he would be physically abused and he suffered emotional distress by reason of her behaviour towards him, which included her telling him that she wished he had never been born. The appellant performed poorly at school and his behaviour deteriorated in secondary school. In the result, at the age of 15 he was placed in foster care and moved between families, mixed with placements in residential care.

18 The appellant has had one prior long-term relationship that lasted for nine years and is the father of a ten-year-old son who lives in New Zealand with his mother. He has a limited work history and started smoking marijuana at the age of 15, apparently maintaining a dependency on it. He became dependent on heroin at the age of 20 and is also alcohol dependant. According to Dr Deacon, the appellant had limited mental health problems, however. He had been admitted to a psychiatric inpatient unit for only a short period on two occasions over ten years, following attempts of suicide. On one occasion he walked in front of a train and on the second he jumped in front of a motor car.

19 The offences to which the appellant pleaded guilty, particularly that which was the subject of count 2, intentionally causing serious injury, are very serious offences. As I have said, the maximum custodial penalty prescribed by Parliament for the offence which is the subject of count 2 is 20 years. The offending here was also grave. It was a savage, brutal and cowardly attack on a victim who was very much physically weaker than the attacker. I reject entirely the submission of the appellant's counsel that somehow, relatively, the injuries inflicted by the bashing were anything but very serious. As I have said, one only has to look at the photographs of the injuries taken shortly after the assault to realise the severity of the attack and the seriousness of the injuries. The Courts has said on many occasions that such domestic violence will not be tolerated and that general deterrence is a very important sentencing principle in the sentencing disposition.[14]**

**20 Her Honour concluded, as it was open for her to do, that although the appellant pleaded guilty at an early opportunity and thereby demonstrated some remorse, as he did by leaving some money and a short note, 'Jason says peace', for the complainant when she was in hospital being treated for the injuries inflicted by him, his demonstration of remorse was limited. Her Honour also noted that the pre-sentence report assessed the appellant as being in the high risk category of re-offending and this conclusion has not been challenged before us. Moreover, his prior criminal history, some of which involved use of violence, confirmed the conclusion of the sentencing judge that the appellant had doubtful prospects of rehabilitation and that specific deterrence was not irrelevant to the sentencing disposition. And, as I have said, her Honour took into account that the complainant and the appellant intend to resume their relationship upon his release, although, as the appellant's counsel before us has, responsibly and properly, brought to our attention, that relationship has come to an end.

21 In the circumstances, I consider that the impugned sentence of three years' imprisonment imposed on count 2 is properly balanced, if not lenient.[15] It is certainly not outside the relevant range.

22 As to the non-parole period, given particularly the appellant's doubtful prospects of rehabilitation as I have noted, I consider that it cannot be sensibly said that it is plainly excessive or that it otherwise demonstrates discretionary error.

23 Consequently, I think that ground 1 should be rejected.

24 It follows from what I have said that, in my view, the appeal should be dismissed.

26 I agree with Chernov JA, for the reasons that he gives, that the appeal should be dismissed.

27 I wish only to add the following comments. It is a common pattern of behaviour for perpetrators of domestic violence to express penitence and persuade their victims to reconcile. For a number of complex reasons which have been discussed in the social science literature dealing with this issue,[16] many victims are assaulted on several occasions before they summon the courage to leave an abusive relationship. Often they require considerable support in order to do so. In my view, these are matters which should be given considerable weight by a judge who is considering the weight that should be given to a victim impact statement made by a person who has been the victim of domestic violence. I therefore agree with the comments of Simpson JA in R v Glen[17] that evidence of forgiveness of the victim of domestic violence should be treated with extreme caution.

28 Like Chernov JA, I consider the sentence imposed by the learned sentencing judge balanced, if not lenient, having regard to all these matters.

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

[1] See s 95A(1) of the Sentencing Act 1991.

[2] Sections 5(2)(daa) and (da) of the Sentencing Act 1991 respectively.

[3] Section 5(2)(db).

[4] [2004] VSCA 53 [12].

[5] See, eg, Skura [2004] VSCA 53 [12] (Eames JA); R v Dowlan [1998] 1 VR 123, 139-40 (Charles JA).

[6] Skura [2004] VSCA [13] (Eames JA).

[7] Skura [2004] VSCA 53; R v Wise [2004] VSCA 88; R v Rowley [2007] VSCA 94.

[8] Skura [2004] VSCA 53 [48].

[10] See, eg, R v Storey [1998] 1 VR 359, 366-71 (Winneke P, Brooking and Hayne JJA and Southwell AJA); R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 290 (Kirby J).

[11] R v Dowlan [1998] 1 VR 123, 140 (Charles JA). See also R v Swift [2007] VSCA 52; (2007) 15 VR 497, 498 (Nettle JA). See also s 95B(2) of the Sentencing Act that enables the court to 'rule as inadmissible the whole or any part of a victim impact statement, including the whole or any part of a medical report attached to it'.

[12] [2003] VSCA 109 [17]. See also DPP v Toomey [2006] VSCA 90 [21].

[13] See, eg, State of Victoria v Bacon [1998] 4 VR 269, 282 (Winneke P, with whom Ormiston and Phillips JJA agreed); R v Brooks [2000] VSCA 188 [12]-[13] (Callaway JA); R v Gillick [2001] VSCA 201; (2001) 125 A Crim R 395, 398 (Buchanan JA).

[14] See, eg, R v Jojanovic [2002] VSCA 467 [31] (Coldrey J); DPP v Smeaton [2007] VSCA 256 [21]-[22] (Dodds-Streeton JA).

[15] I note that in Smeaton this Court increased the sentence on the Director's appeal on the count of intentionally causing serious injury in a domestic context to five years' imprisonment.

[16] For an overview see the Victorian Law Reform Commission, Review of Family Violence Laws Report (2006) 32-36; and Shirley Patton, Pathways: How Women Leave Violent Men (2003) 36.

[17] (Unreported, NSW Court of Criminal Appeal, Grove and Simpson JJA and Loveday AJ, 19 December 1994) 4.