R v Hore [2000] VSCA 69

15. It appears that after Catherine and the child left, the applicant telephoned the Halls on 26 June (said to be by coincidence) and Catherine answered the phone. Ultimately they spoke amicably enough. The applicant was then living at his mother's home at which also resided her friend Charles. On that evening, the applicant consumed a substantial quantity of beer at his mother's place. There is a suggestion that it was five to six cans or stubbies although, as will appear, he subsequently told a consulting psychiatrist that he had consumed twelve. Some time in the course of the evening there was a telephone call from Ms Daniel's mother, and possibly Mrs Hall, which aggravated the applicant. He then telephoned Catherine Daniel and was angry, abusive and threatening. He called Catherine Daniel a "bitch" and a "moll". She warned him not to come near her or ring her or she would call the police and take out an intervention order if he did. Being alarmed, she hung up the phone and immediately the applicant rang back, ranting and raving and telling her "You're not going anywhere. You won't be leaving me. You won't be taking Jaiden." Catherine hung up on him and Anne Hall called the applicant's mother, to stop him ringing. Mark Hall was not at home. The applicant, however, armed himself with a piece of wood that looked like a baseball bat but subsequently appears to have been accepted to be the leg of a table. It was about 18 inches in length. He made his way to the Halls' home by bicycle. In the meantime the women there were endeavouring to telephone the police when the applicant arrived and began banging on the front door and yelling loudly "You bitches, where are you, you bitches". In fear, Ms Daniels began dialling 000 and as she was talking to the police the applicant broke into the house by kicking the door open, away from the door plinths. He went in and made Catherine hang up the phone. He had the wooden weapon with him. In fear, the two women, who were alone in the house save for the four children, moved into the loungeroom and sought to prevent the applicant from following behind them by holding the sliding door shut. The applicant's mother then entered the house and endeavoured to pull him away to the front door. He broke away and started walking towards the room where the children were sleeping but his mother succeeded in pushing and dragging him out of the house. Ms Daniels and Mrs Hall then closed the front door and tried to hold it shut. Ms Daniels telephoned the police and the applicant went back to the door, still yelling. He did not attempt to re-enter the house. However, he ultimately left on his bicycle and his mother drove back to her place in the car. The police arrived and then went to the applicant's home and arrested him.

18. The police abandoned an attempt to question him at 1.40 a.m. because of his apparent insobriety but did so shortly after 6 a.m. that morning. In a rather rambling interview the applicant admitted most of the conduct to which I have referred, claiming that he missed Catherine and Jaiden and that he was having anger counselling. Initially he denied being aggressive over the telephone but agreed that he had got a wooden bat which he said he took with him because of claimed death threats from Mark Hall, who, he said, had threatened him with a cricket bat. He admitted kicking the door in and that he knew Catherine and Anne were in there. He admitted hanging up the telephone to stop the police call. When his mother warned him that he would not get to see Jaiden that way he realised his foolishness. He told the police he admitted his foolishness. He told the police he had done the wrong thing and was stupid.

21. The applicant was charged with this serious offence and did not obtain bail for two months. He was represented on the plea by counsel. There was tendered in evidence a report from Dr Bell, the consultant psychiatrist, which had been obtained to support a bail application and on the basis of which he obtained bail. This report was based on an examination in August 1998 when the applicant had settled down to a considerable degree. He admitted to Dr Bell the relationship had broken up over his heroin abuse which had got even worse after the break-up. He admitted to Dr Bell that he had been using cannabis since he was 14, then heavy use of amphetamines, moving on to an intravenous heroin habit of five caps a day. Nevertheless, it appears he worked through all of this period at a tannery where, according to the evidence, he was well regarded. The history he gave Dr Bell revealed a disturbed childhood from a broken home, disfigured by his father's alcohol abuse and violence in it; he had some schooling difficulties and few friends. At that time he appeared remorseful and full of regret about his violent conduct. There was no mental illness detected by Dr Bell. However, his view was that the applicant did not have an entrenched anti-social disposition and that his offence had been driven by his drug habit, so that the risk of re-offending was much reduced if he was drug-free and in employment. That report also described, in the history obtained from the applicant, the break-up of his parents' marriage, largely due to his father's drinking and violence. The report also described the effect that it had on the applicant.

24. There were tendered a number of other important documents, without objection. One was from his employers at the tannery, the manager of which referred to his employment from two periods, he leaving between of his own accord. The applicant was said to be hard-working and reliable, always helpful and caring to his colleagues. There are a number of reports from Community Health at Eaglehawk, from the drug and alcohol counsellor there, a Ms Helen Clay. The first of these reports, of 13 August 1998, described the applicant's attendance at six counselling sessions from 26 August 1998 to 5 October 1998 to address his heroin use, with a focus upon relapse prevention. At that time he had just started on a methadone program and expressed strong motivation to continue with treatment and counselling. The second report, of 23 March 1999, referred to another ten counselling appointments addressing his substance abuse and use, the applicant claiming to have been successful in abstaining from heroin and diazepams and reducing alcohol.

27. Two other reports of January and March 1999 were also tendered. The first of these, of 22 January 1999, reported good progress on a methadone program with counselling, coming off methadone with no signs of current drug use on examination. He had agreed to urine testing and it was said he was ready to start work. A letter of 4 May 1999 indicated continuing assessment and the commencement of another program to support and educate his focus on drug abstinence. That report was dated the day before the plea.

30. Counsel on the plea emphasised the applicant's successful efforts to eliminate drug dependence and to reduce alcohol intake. He referred to the completion of the methadone program and participation in anger management programs as part of the counselling. It was put to the sentencing judge that he had taken the wooden weapon because of fear of harm to himself. It was put that he should be placed on a suspended sentence, having already been in custody for nearly two months.

33. The prosecutor drew the court's attention to the 1997 increase in the maximum sentence for aggravated burglary to 25 years, submitting this was because of the invasion of homes. He submitted it was a very serious aggravated burglary, although not as serious as many that had occurred. He argued that the so-called exceptional circumstances relied on made it worse because Catherine was in effect seeking refuge and escape from the dangers of the relationship, with its aggression and fear. Thus it was that his excuse for possessing the weapon amounted to no excuse. The women were put in terror and trouble was only prevented by the mother's presence. It was put that there had to be an immediate custodial sentence.

36. In his sentencing remarks the judge summarised the matters to which I have referred. He noted the applicant's aggression, violence to property and abuse at the Halls' house and the fear of the occupants. His Honour accepted that his affection and concern for his young child (to whom he had been devoted whilst he was retained in hospital) and his desire to re-establish the family relationship underpinned his behaviour on the night, although not excusing it. His Honour stated that the phone calls and their varying content aggravated him and that, together with his drinking, triggered his loss of control and the offence. This was due to smouldering discontent, concern and anger which built up and finally erupted. It was not a planned offence. His Honour referred to the prevalence of such offences often involving invasion of premises and putting people in fear. He referred very briefly to general and special deterrence as being prominent considerations but did not develop them beyond that. He noted the distressing childhood, the broken home and the early and progressive use of addictive substances which led to most of his convictions. His Honour also noted that the last offence was six years previously.

39. He also noted that he had taken a number of steps to overcome his problems with some success including the methadone program, counselling and treatment at Community Health in Bendigo and that he had been accepted for a further course to prevent relapse. His Honour stated -

"You have commenced, in other words, your own rehabilitation and for that you deserve credit and as such rehabilitation should be encouraged the sentence should reflect such encouragement. Those aspects of rehabilitation are another sign that you appreciate what you have done and are now remorseful. Other indicia are you waiting for the police, your admissions and the plea of guilty which the law takes into account in reduction of what might otherwise have been an appropriate sentence."

43. His Honour then proceeded to sentence the applicant to a term of imprisonment of three-and-a-half years with a non-parole period of one year and eight months, declaring 60 days of the sentence as already served.

46. The original ground for application for leave to appeal was in the following form -

"The sentence was in all the circumstances of this case excessive, taking into account the nature of the incident, the relationship between the parties and child access dispute, remorse shown by the appellant and rehabilitative behaviour of the appellant since the incident."

On 14 April this year the following ground was substituted -

"The sentence is manifestly excessive in so far as:

(a) excessive weight was given to general deterrence;

(b) excessive weight was given to specific deterrence;

(c) insufficient weight was given to the applicant's plea of guilty combined with admissions in his record of interview;

(d) insufficient weight was given to remorse;

(e) insufficient weight was given to the applicant's efforts to rehabilitate himself and the general prospects of reform."

55. When the matter was called on today, at the Chief Justice's invitation Mr McArdle, senior counsel for the Director, referred to a number of matters, including matters in mitigation, but also aspects of the seriousness of the offence. As it seems to me, he also indicated that it might well be that the proper view to be held is that the sentence may have strayed beyond what was appropriate in the circumstances.

58. Mr Hartnett for the applicant had filed substantial written submissions but was not required by the Court to address those. He did draw the Court's attention to some matters related to events which had occurred in the meantime. He indicated that during the period of incarceration since the sentence was imposed, urine testing and other matters indicated the applicant to be drug free. His written submissions had been, however, that the sentence was manifestly excessive. He argued that the offence was really one of common law assault by inducing fear. This is, I daresay, another way of saying that the applicant was over-charged when presented on the count of aggravated burglary. There may be some substance to that complaint. Nevertheless he pleaded guilty to aggravated burglary. Mr Hartnett also emphasised many of the matters to which I have already referred as having been under the notice of the sentencing judge: the want of premeditation, the combination of alcohol and personal crisis following on the breakdown and separation from the mother and child. It was put that he had virtually immediately desisted under his mother's influence and his moral culpability was thereby diminished, so that the case was hardly an appropriate vehicle for general deterrence to be a major factor in sentencing. The matters referred to by the sentencing judge - the early plea of guilty, co-operation with the police, full admissions, remorse, acceptance of responsibility and, thus far, successful rehabilitation from drug dependence - were all relied upon as indicating the likelihood that the sentence was excessive and that the sentencing discretion had miscarried.

61. Although specific error was not capable of being identified, essentially the argument was put that the discretion miscarried by giving too much weight to the factors of general deterrence, retribution and denunciation.

64. It is not necessary to elaborate the well known principles applying with respect to sentence appeals, nor to cite authority about them. Courts of Appeal are not entitled to interfere with the exercise by the sentencing judge of his sentencing discretion merely because the appellate court might itself have imposed, or preferred, a different sentence. Nevertheless the duty to correct error arises if error occurs. I note that in his list of authorities counsel for the applicant reminded the Court of what had been said by the Full Court of this State in the case of R.v. Okutgen 8 A.Crim.R.262 as long ago as 1982. That case emphasises the principle (see Starke, J. at 265) that although specific error in the sentencing process cannot be detected or identified, if the sentence is manifestly excessive, there must be some error in the exercise of the sentencing discretion.

67. Frequently, the sentencing judge's reasons do not articulate the process by which the sentence was arrived at, the so-called intuitive synthesis. That process is not, however, a licence for individual and unchecked sentencing preferences that do not accommodate the sentencing necessities, either in aggravation or mitigation.

70. Appeals on the ground of manifest excess are frequently founded on the inferential process. This may mean, as it does here, that the error is to be detected or discovered, not in any specific mistake or misconception of law or fact, but in the ratiocination that the ultimate sentence could not have been reached without too little or too great weight having been given to some feature or features of the case in the sentencing process. This is such a case.

73. In my view, the ground of appeal is made out, i.e., the sentence is manifestly excessive.

76. It should first be said that his Honour rightly focussed on the applicant's bringing into the house aggressive, violent and abusive behaviour and his possession of the weapon, all of which produced fear in the female occupants. His Honour's own findings were that the applicant's conduct was driven by concern for his son to whom he was devoted and his desire to re-establish the lost relationship. There can be little doubt that the applicant's behaviour was certain to produce consequences the opposite of those he desired, nor is it much to be doubted that the drinking and the telephone calls bred in the applicant a slow burning anger which, as his Honour noted, ultimately erupted.

79. The sentencing judge referred to the matters which he took into account in arriving at his sentence. The first of these were the two aspects of deterrence, general and special. He did not identify the role of those principles in the context of the facts of this case. He paid regard to the applicant's own fractured family life which led on to his commencement of use of marijuana and then on to harder drugs the use of which led to the convictions. He noted that there had been no conviction for six years and the applicant had successfully undertaken treatment of drug addiction by engaging in counselling and treatment in Bendigo, that his rehabilitation should be encouraged and the sentence should reflect that encouragement.

82. His Honour referred to a diminution of the sentence that would otherwise have been imposed. He mentioned the plea of guilty, waiting for the police to come, and the admissions that were made. His Honour did not give any indication of the sentence that he would have imposed had he not taken into account, in diminution of the appropriate sentence, all of the matters to which he referred and to which I have now referred. He was not bound to do so, although it would seem to follow that his Honour must have had in mind a sentence of something like four years as a head sentence, but for the mitigating circumstances.

85. But in my view a head sentence of three-and-a-half years cannot be supported as a just sentencing disposition nor one that was within the range of sentencing options in this case. The same is true of the minimum sentence as well. To say that is not intended in any way to countenance the applicant's behaviour or do anything other than condemn it. But it is still a question whether the sentence was so excessive that it betokens error. Whilst the conduct of the applicant was deplorable and totally unjustifiable, with both women being put in fear in their dwelling, it cannot be overlooked that the harm done was relatively transitory. There was no evidence that the applicant threatened them with violence at the time or physically attacked them. Beyond the fear and terror of that night, the consequences do not appear to have been harmful. Ms Daniels was in court during the plea and obviously gave instructions to the prosecutor that she would not be resuming life with the applicant. No victim impact statements were filed and there is no basis on which it could be concluded (nor did the sentencing judge conclude) that any lasting harm has been done. It should not be overlooked that the incident probably occupied no longer than three or four minutes, by which time his mother induced him to leave. Serious as this intrusion was, it seems to me it is impossible to conclude that it was open to the sentencing judge to impose a head sentence of three-and-a-half years and a minimum of 20 months in gaol for it. Many domestic disputes heard at the Magistrates' Court are worse. Moreover, the sentencing judge (who may well have been over-influenced by the 25-year maximum which he was bound to consider in his approach to sentencing) detailed all of the mitigating factors but does not appear to have afforded them potent diminutory effect. When one considers the apparently successful efforts made by the applicant thus far to address substance abuse and eradicate it from his life, that view is reinforced. Of course, it is true to say that the ultimate result of all that is not yet known. Nevertheless, the sentencing judge purported to sentence him on the basis that he was substantially rehabilitated and was continuing the process.

88. It must be concluded that the sentencing judge gave too much weight to general and specific deterrence and too little weight to the mitigatory features which he identified. Moreover, since his Honour stated that he had taken them into account in diminution of the sentence that might otherwise be imposed, one must conclude that their potent aggregation might account for about 12-18 months.

91. When one considers and brings to account, as his Honour did when detailing his findings - the plea of guilty; the spontaneous, unplanned features of the incident; the applicant's remorse; the applicant's full admissions; the applicant's efforts at rehabilitation which thus far have freed him from the incubus of drug dependence; his employment prospects; his devotion to his son; and the lessening of moral culpability by reason of his anxiety coupled with alcohol - there was a strong case for a lenient disposition. It seems almost perverse to have detailed the reasons for leniency and then abandoned them in the next breath.

94. In my view the appeal should be allowed. There should be substituted for the sentence imposed a sentence of two years' imprisonment with a non-parole period of 14 months. The applicant has served 403 days' detention, so we were informed this morning, including 60 days' pre-sentence detention.

110. The application for leave to appeal against sentence is granted, the appeal treated as instituted, heard instanter and allowed.

113. The sentence imposed on the applicant in the court below is quashed and in lieu thereof he is sentenced to be imprisoned for two years. The Court fixes a non-parole period of 14 months.

116. The Court declares that the period of 403 days is the period of pre-sentence detention already served by the applicant as part of the said sentence and directs that the making of this declaration and its contents be entered in the records of the Court.