R v Hill [2004] VSCA 116

2 This is an application for leave to appeal against sentence. The applicant pleaded guilty in the County Court on 30 January 2003 on three counts of common assault (which carried a maximum sentence of five years' imprisonment) and one count of arson contrary to s.197(1) of the Crimes Act 1958 (which offence carried a maximum of 15 years' imprisonment).

3 The applicant admitted approximately 165 previous convictions from 17 court appearances. He was on parole at the time of these offences, having been sentenced on 17 December 1999 to a total effective sentence of three-and-a-half years, with a non-parole period of two years, on counts of recklessly causing serious injury, threatening to kill and aggravated burglary. After hearing submissions on sentence the judge sentenced the applicant to be imprisoned for nine months on the first count of assault and six months on each of the second and third counts of assault and for three years six months on the count of arson. Her Honour ordered that two months on the first count of assault and one month on each of the other two counts of assault should be served cumulatively upon the sentence imposed for arson. The total effective sentence was three years and ten months and a non-parole period was fixed of two years six months. There were some complications which arose from the declaration of pre-sentence detention by her Honour, relating to the question of the time liable to be served, on the earlier sentence by virtue of the breach of parole. In due course those problems were resolved and her Honour made a declaration under s.16(3B) of the Sentencing Act 1991 that exceptional circumstances existed and ordered that the sentence imposed by her be served concurrently with any other sentence as from 30 January 2003.

4 The applicant has appealed on six grounds of appeal as follows:

"1. The learned Sentencing Judge failed to have sufficient regard to the Applicant's plea of guilty and as such the sentence is manifestly excessive.

1. 2. The learned Sentencing Judge erred in imposing partially cumulative sentences on Counts 1, 2 & 3 and a total effective sentence which is manifestly excessive in all the circumstances.
2. 3. The learned Sentencing Judge failed to have sufficient regard to the Applicant's efforts at and prospects of rehabilitation and as such the sentence is manifestly excessive.
3. 4. The learned Sentencing Judge erred in failing to give sufficient weight to the Applicant's psychiatric disorder which had particular relevance to the applicant's offending.
4. 5. The learned Sentencing Judge failed to give sufficient weight to the impact the Applicant's psychiatric disorder has on the principle of general deterrence.
5. 6. The learned Sentencing Judge erred in fixing only a sixteen month gap between the head sentence and non-parole period given the express indication that due to the Applicant's unfortunate circumstances and the circumstances of the offence a shorter than normal non-parole period would be imposed."

5 The events arose on 16 December 2001 at Kerang. The applicant, who was aged 34 years at the time of the offences, had been residing at 13 McCann Crescent, Kerang with Kerryn Clarke and had commenced drinking very early in the morning. After attending a barbecue during the day the applicant together with Clarke returned to Clarke's house at about 10 p.m. On his own account he had consumed a very large amount of alcohol.

6 The findings made by the judge as to the circumstances of each of the three assault offences were consistent with the way the prosecutor put the Crown case to her.

7 Ms Clarke observed the applicant acting in a fashion which she described as being "really weird, crying, talking to himself and really upset". The applicant accused Clarke of having stolen his marijuana and money and threatened to kill Clarke. He then punched her to the face with his right fist. The only reference to any injury suffered by Clarke was contained in a statement of Ms Pengally, the second victim, who said that on the night of the assaults she had observed a swollen left cheek to Clarke's face. Clarke said in her statement that she was shocked at what had occurred because the applicant had never before shown aggression or violence towards her.

8 Although that was the basis on which the prosecutor limited count 1, in her statement Clarke had also said that the applicant began trashing the contents of the house, tearing up a phone book and threatening that he would burn the house, and she detailed other incidents, including the applicant pulling her hair very hard, holding a knife to her throat, and then later, after Clarke had left the house and then returned with Ms Pengally, the applicant kicking Clarke in the face with a kick-boxing action. The prosecutor did not however include any of those events as forming part of count 1, and I shall put them to one side, as her Honour has done.

9 When Ms Pengally arrived at the house the applicant abused her, too. He was red in the face and frothing at the mouth. He swung a punch at her, just missing her face. That was count 2. The applicant threatened to start a fire and was holding lit tapers. Mr Beale, the third assault victim, arrived at the house and saw burn marks on the floor and upon remonstrating with the applicant the applicant produced a steak knife and threatened him with it. That was count 3.

10 After departing the house the applicant started a fire which totally destroyed the house and contents. The house was valued at $100,000. Clarke rented the house, which was a government property, but lost all her possessions.

11 During these events the applicant was behaving in a very erratic manner and was chewing valium tablets like they were lollies. Reports tendered on the plea from psychiatrists Dr Alan Jager and Dr Grant Lester indicate that the offending occurred in the context of significant mental problems suffered by the applicant. Although her Honour concluded that the applicant required ongoing psychiatric treatment, she did not conclude that the applicant suffered psychiatric illness. That was undoubtedly correct. Dr Lester said he suffered from anti-social personality disorder, poly-substance abuse, and post-traumatic stress disorder, but was not schizophrenic, notwithstanding that he described hearing voices. Dr Lester said that last symptom was related to the post-traumatic stress disorder. He concluded that the applicant did not have a psychiatric illness that removed his ability to reason or to have insight into his mental condition or his need for treatment. He had, instead, a psychiatric disorder secondary to a stressful episode in prison where he had been subject to a pack rape under a previous sentence when aged 19 years. His condition was exacerbated by drug use and substance abuse. The report of Dr Jager was consistent with that of Dr Lester. Dr Jager described the applicant as a very troubled man with long-standing emotional and behavioural problems and diagnosed a range of psychiatric disorders suffered by him.

12 The judge appropriately recognised the traumatic history of the applicant, who was aged 35 years at sentencing. He grew up in a violent home environment and was using drugs and alcohol to excess and abusing substances from a very young age. He left home at 16 and fathered a child in a two-year relationship. A second relationship of seven years ended with the death of his partner by a drug overdose. He was in a third relationship at the time of sentencing and a child was due in February this year, and has since been born. He was first in trouble with police at age 15 and has a very long list of prior convictions, being first imprisoned at age 19. He had spent some 71 months in prison for past offences. The applicant has a history of self-harm both while in custody and in the community, and the day before he was arrested for these offences he had been admitted to hospital, having stabbed himself in the stomach some six times. Whilst in custody for these offences he has been prescribed anti-depressants and doxepin for sleep disorders and anxiety.

13 He had been dependent on heroin until age 30 and thereafter continued to abuse amphetamines and other drugs, including valium. On the day preceding these offences he had been hearing voices which, coupled with alcohol and valium abuse, had made him very distressed.

14 Although grounds 1 to 5 were treated as particulars of a complaint of manifest excess, I will briefly give some individual discussion of these grounds.

15 Ground 1 complains that insufficient weight was given to the plea of guilty. It is contended that the limited reference to the guilty pleas reflects that undervaluing. Counsel cited R. v. Gillick[1], but in my view that case may be distinguished from the present situation. Given his extensive prior convictions, it could not be said that the sentences imposed on the applicant in themselves suggest that the guilty pleas were undervalued. Although most of his prior convictions were for dishonesty and drug offences, there were some for violence, that last of which being a conviction for recklessly causing serious injury for which he was sentenced, as I have earlier described, in December 1999. There was also a count of criminal damage in September 1994 for which he was sentenced to four months' imprisonment. Even allowing for the effect of intoxication and drug use, together with his mental condition, it cannot be said that the sentences imposed reflect an undervaluing of the guilty pleas, in my view.

16 Ground 2 of the grounds of appeal complains as to the orders for cumulation. It was contended that the three assaults ought to have been treated as one transaction. Counsel cited R. v. Duong[2]. In my view, however, the three assaults were quite distinct episodes and some cumulation was appropriate. The order made as to the degree of cumulation was very modest. As a ground standing alone this ground, in my view, must fail.

17 Ground 3 is concerned with the weight given to rehabilitation and will be discussed later.

18 Grounds 4 and 5 assert that insufficient weight was given to the psychiatric disorder and its bearing on the factor of general deterrence. Her Honour identified the relevant principles as being those stated in R. v. Tsiaras[3], but said that the principles stated therein had to be modified, because unlike Tsiaras this was not a case of serious psychiatric illness but psychiatric disorders, albeit serious. Her Honour's approach in that respect was quite appropriate: see R. v. Yaldiz[4]. A disorder falling short of serious psychiatric illness might well moderate the need for general or specific deterrence: see R. v. Skura[5].

19 Ground 5 complains that the judge failed to adequately moderate general deterrence, having regard to the psychiatric disorders of the applicant. Although failure to similarly moderate specific deterrence is not expressly mentioned in the ground, that complaint was also made by counsel. If her Honour intended her remarks as to moderation of deterrence to extend to specific deterrence, then, with respect, her Honour did not make that very clear. Reference to general deterrence was made several times, but, save for specific deterrence being mentioned as the fourth of the factors stated in Tsiaras, it was not specifically stated as being moderated. Furthermore, the whole tenor of the sentencing remarks suggests that her Honour regarded specific deterrence as being both relevant and necessary. In this regard, I point to her Honour's reference to the submission made to her by counsel appearing at that time, namely, that "untreated you present as a dangerous and unpredictable individual". That submission was made in the context of a request for a hospital order, but it seems to me that her Honour accepted that as being a reasonable assessment of the situation, hence her later conclusion that the applicant posed "a likely significant risk of re-offending". I note too her Honour's references to the applicant's "aggressive behaviour" and "senseless and unprovoked assaults".

20 Her Honour accepted Dr Jager's opinion that it was likely that the applicant's problems would be resistant to treatment. She also accepted Dr Lester's opinion that the applicant had strong anti-social personality traits, and his opinion that his disorder has not removed his ability to reason, nor reduced his insight into his condition, in particular to the fact that his drug use exacerbated his condition. Those opinions are not inconsistent with there being a place for specific deterrence. But her Honour expressly said that although she regarded the applicant as posing a threat of repeat offending she had "particular regard to the fact that you are suffering a psychiatric disorder which may have been a contributing factor to the circumstances leading to the commission of the subject offences". Thus, although I consider that her Honour probably discounted specific deterrence to a lesser extent than she did general deterrence, I do not conclude that the sentences disclose that she failed to balance that factor appropriately.

21 In my view, her Honour's treatment of the factor of psychiatric disorders has not been shown to manifest error. Indeed, her Honour seems to me to have been very careful in her evaluation of that condition in the sentencing process. That she considered that the factor of public safety remained relevant was a perfectly appropriate assessment.

22 One factor which it is said her Honour did not weigh in the balance was the likely effect of imprisonment on this applicant, having regard to his psychiatric disorder. That factor is the fifth factor stated in Tsiaras. Her Honour accepted the evidence of Dr Lester that the applicant could receive psychiatric treatment in prison, and made a recommendation on the file to ensure that that was so. The impact of imprisonment in the past on this applicant and the difficulties relating to treatment in prison seem to me to have been central to her Honour's consideration of the case, and she set out detailed passages from the psychiatric reports dealing with those questions. Mr Meredith submitted, however, that there was a good deal of material before her Honour which emphasised this factor and which her Honour did not mention at all in the course of her remarks on sentence. He submitted that her Honour's failure to expressly evaluate and comment as to those factors bearing on the extreme difficulties that this applicant might experience in custody demonstrated that her Honour had undervalued the factor itself. In my view, it would have been better had her Honour made express findings as to those matters which had been addressed to her in submissions on sentence. I am not, however, persuaded that there was an error in approach which has been shown in this respect, although it may well be that the weight which was given to those factors might have been greater, and that other judges might have given greater weight to those factors than perhaps her Honour did. It may be thought, however, that if not enough was made of this factor in his favour in sentencing, then, as I will later note, he was fortunate that not more was made of the factor of him being on parole at the time of these offences.

23 On the complaint that the sentence is manifestly excessive, grounds 1 to 5 have been treated as particulars of that complaint. I have already dealt with the grounds individually, but as to the overall complaint, in my opinion the sentence for arson has not been shown, on relevant principles, to be manifestly excessive (although, as I shall state, on re-sentencing I would reduce the sentence on that count in the exercise of my own discretion). A sentence is not manifestly excessive if it is within the range of sentences available to the sentencing judge, even if different sentences might have been imposed by some other judges in the exercise of their own discretion. The sentences on counts 1 and 2 were, however, manifestly excessive. Whether the sentence was within range on count 3 I need not decide, since my conclusion as to the first two counts re-opens the sentencing discretion and in the exercise of my own discretion I would in any event vary the sentence on count 3.

24 My reason for so concluding as to counts 1 and 2 is that in my opinion, having regard to the facts on which the Crown relied before the judge as constituting those offences, her Honour treated the offences as more serious than they were given the bases on which the Crown presented the case to the judge. On count 1 the complainant said that the applicant was behaving abnormally; she did not herself complain of any injury, and such injury as she suffered must have been transient. She considered the assault out of character in their (platonic) relationship. The second assault did not involve any contact at all. Upon re-sentencing, I would also reduce count 3, in the exercise of my own discretion, on the basis that, whilst it was a threat with a knife, we are not told how close the offender was to the victim and the victim was able to leave the house without any difficulty in response to the threat.

25 The applicant has significant prior convictions, but in my view those for violence are relatively few and far between, subject to what I will later say with respect to the last of the offences, for which he was on parole. In my view, having regard to the history of this applicant, and also having regard to his age, it is significant that there are so few prior convictions for violence.

26 Also relevant to the question of the sentences being manifestly excessive, is an issue which is raised by a ground of appeal concerning the non-parole period. Before turning to that ground (ground 6), I will return to ground 3.

27 As to the question of rehabilitation, counsel noted that the applicant had a partner and was expecting a child at the time of sentencing, and that since he had been sentenced the child had been born, and the mother of that child remains, in the sense that that can be whilst they are separated by imprisonment, a partner to the applicant, and visits him regularly. He noted too that the applicant had agreed to treatment and had continued to do so whilst in prison on these offences. In my view, her Honour's treatment of the question of rehabilitation prospects (that issue being raised under ground 3) has not been shown generally to be in error, because her Honour, in fact, accepted that the applicant had good prospects, as indeed she stated to be the case.

28 As to the non-parole period, however, her Honour said that, having regard to mitigatory factors, in particular to rehabilitation and the need to return the applicant to the community in a supervised context as soon as possible, she said she would set a shorter non-parole period than she would otherwise have done in order to permit an extended period of supervision on parole. In the result, however, the non-parole period which was fixed seems, if anything, longer than normal, rather than less. The non-parole period set was two years six months on a head sentence of three years ten months. Assuming that her Honour, but for the special factors in this case, would have fixed the non-parole period at about three years, then it can be seen that the non-parole period would have been very unusual and suggestive of sentencing error.

29 It seems to me that her Honour's sentence did not meet the objective she intended in this respect. That is an unintended error in the sentencing process, but error nonetheless, and on that basis too I would allow the appeal and thus re-open the sentencing discretion.

30 The sentencing discretion having been re-opened, I must consider, then, what in my view would be appropriate sentences to impose on this applicant. In re-sentencing him I would have regard to all of the matters which have been raised in submissions by Mr Meredith, and also by Ms Cannon for the respondent.

31 Although I agree that the appeal ought be allowed and, as I have indicated, I would vary the sentences in favour of the applicant, it ought to be said that in some respects the applicant was indeed fortunate not to have received an even heavier sentence from her Honour than he did. It is somewhat surprising that in the submissions before her Honour no detail was provided to her Honour as to the circumstances behind the December 1999 convictions, for which the applicant received a significant sentence of imprisonment. It is surprising too that, notwithstanding the fact that three psychiatric reports, detailed as they were, were supplied to her Honour, no reference to those offences or that period of imprisonment seems to have been made in them, and therefore neither her Honour nor this Court have any indication as to what terms and conditions of parole may have been fixed, in particular with respect to any treatment regime of the applicant. Having regard to the fact that he was on parole at the time of these offences, then, notwithstanding the manifest difficulties that he faced with respect to his mental condition and other factors, it might be thought he was fortunate that the prosecutor did not place greater emphasis on the fact that parole had been broken in such circumstances as had occurred in this case.

32 Nonetheless, having said all that, I regard the matters put today by Mr Meredith as to the current prospects of rehabilitation as being persuasive and as matters to which I should, albeit with some caution, give weight. It seems to me that, having regard to the very unfortunate history of this applicant, where there are positive signs of rehabilitation, in particular the indication of support from his current partner and her child, those are matters where the Court, in the community's interest, ought to exercise some leniency in sentencing, in the hope that rehabilitation will produce effective results.

33 In all of the circumstances, in my view, when exercising my own discretion, I would re-sentence the applicant on the first count of assault to three months' imprisonment. I would sentence him to one month's imprisonment on the second count and to three months' imprisonment on the third count. On the count of arson, I would sentence the applicant to three years' imprisonment. I would direct that one month of each of counts 1 and 3 should cumulate upon the sentence on count 4. That would produce a total effective sentence of three years two months' imprisonment, and I would direct that the applicant should serve two years before being eligible for parole.

35 I agree that, given that the Crown presented at the plea only limited circumstances of the applicant's offending conduct, the sentence imposed by her Honour on count 1 is manifestly excessive, for the reasons given by Eames, J.A. This re-opens the sentencing discretion.

36 I differ, however, from the other members of the Court as to the sentences that should be imposed. I would re-sentence the applicant as follows: on count 1 - three months; on count 2 - one month; on count 3 - four months; on count 4 (the arson count) - three years and six months. I would cumulate one month of each of counts 1 and 3 on count 4, thereby producing a total effective sentence of three years and eight months. I would fix a non-parole period of two years and three months. Since I am in the minority on this issue, it is only necessary for me to state my conclusions and reasons shortly.

37 I have taken into account, in reaching my conclusion, the applicant's psychological disorder, including his traumatic experience in prison when he was approximately 19 years of age, and the effect this has on the operation of the relevant sentencing principles and the sentencing disposition. These matters were dealt with by her Honour in her comprehensive sentencing remarks, in which she explored with particular care the applicant's psychological disorder. But, in the end, I found that the aggravating factors and applicable sentencing principles, balanced against the mitigating circumstances, required the imposition of sentences that are no less than those I have stated. The aggravating matters include the following. First, as Ms Cannon correctly pointed out, the applicant's mental state and behaviour were, to a material extent, self-induced by the intake of alcohol and drugs, and the assaults were committed in a context where the applicant terrorised the victims. Moreover, the offences were committed while he was on parole, and his long and serious criminal history must be balanced against the matters put on his behalf going to rehabilitation. I consider that the offence that is the subject of count 3, which involved the use of a knife, was a serious offence which warrants a sentence greater than that imposed on count 1. Arson is obviously a very serious offence attracting, as it does, a maximum penalty of 15 years' imprisonment. The circumstances of the offending were also very serious. The consequences of it were that the house was destroyed and the victim, who had befriended, and given shelter to the applicant, lost all her possessions in the fire. In the circumstances, I have concluded that a sentence of imprisonment of not less than three years and six months is appropriate for that offence.

The appeal is treated as instituted and heard instanter and is allowed.

The sentence below is set aside. In lieu thereof the appellant is sentenced as follows: on count 1 - to three months' imprisonment; on count 2 - to one month's imprisonment; on count 3 - to three months' imprisonment; on count 4 - to three years' imprisonment. The Court orders that one month of each of the sentences imposed on counts 1 and 3 be served cumulatively upon each other and upon the sentence imposed on count 4.

The total effective sentence therefore becomes three years and two months' imprisonment. The Court directs that the appellant serve a minimum of two years before becoming eligible for parole.

The Court finds, pursuant to s.16(3B) of the Sentencing Act 1991, that exceptional circumstances exist and that this sentence be served concurrently and effective from 30 January 2003 with any sentence then currently being served.

The Court declares that as at this date the appellant has served the period of 505 days pursuant to this sentence and directs that this declaration and its details be noted in the records of the Court.

The Court confirms the recommendation made by her Honour for psychiatric treatment.

[1] [2001] VSCA 201; (2001) 125 A.Crim.R. 395, at [22]-[24].

[2] [2000] VSCA 213 at [7].

[3] [1996] VicRp 26; [1996] 1 V.R. 398.

[4] [1998] 2 V.R. 376, at 383.

[5] [2004] VSCA 53, at [8] and the cases cited therein.