R v M F P [2001] VSCA 96

5. The applicant gave notice of application for leave to appeal upon some five stated grounds. The first asserts that the sentence was "manifestly excessive in all the circumstances". Secondly, it is contended: "That the learned sentencing judge was in error in finding that the offence was aggravated because it occurred in a `domestic context'." Thirdly, it is said that the learned judge made "errors of fact in sentencing the applicant". The fourth ground is expressed in these terms:

"That the learned judge failed to give any or if so adequate weight to: (a) the views of the victim; and (b) the consequences of incarceration of the applicant upon the victim and upon the children of the marriage."

The fifth ground asserts that the learned judge failed "to give any or if so adequate weight to the rehabilitation of the applicant".

10. The facts giving rise to and surrounding the offence to which the applicant has pleaded guilty are of no little consequence having regard, not merely to the seriousness of the offence, but also to the way in which the applicant seeks to challenge the sentence. In the absence of any agreed statement of facts, the judge's task was made difficult by reason not only of the need to make findings based on committal evidence which suggested that the applicant may have been guilty of more serious offences, but also because of the absence of any evidentiary material from his viewpoint, since he had given only "no comment" responses to the police in the course of a record of interview.[1] The complications are added to by reason of the fact that the victim, his wife, expressed a desire in a victim impact statement that no gaol term be imposed on her husband, and thus appeared to downplay the seriousness of the consequences of the attack upon her. Last, but not least, is the need to read the following account of the facts in the light of the plea that the serious injuries to the wife were not caused intentionally but only recklessly, notwithstanding what might appear to be a degree of planning on the part of the applicant. To that extent one might be prepared to accept, as appeared from the history in one psychiatrist's report, that the applicant was not fully in control of himself and that his primary desire was that his wife would do away with herself. To these matters it will be necessary to return in due course.

13. At the time of the relevant events the applicant was aged 39 years and had been married for over 15 years. They had three children, all aged under 8 years old. The applicant was a qualified tradesman and his wife had also been in employment. There had been difficulties in the marriage for some time but there was no suggestion that there had been any previous assaults.

16. On the day in question the applicant had appeared upset for most of the day. Suddenly he came in from the back shed some 50 metres distant from the house and told his wife that he had been standing in that shed with a noose around his neck for the last hour and that nobody cared. He went outside again and nothing occurred until about 8.30 p.m. when he came rushing into the kitchen and, fortunately in the absence of the children, grabbed his wife by her elbows, saying: "You've had your last meal. It's time to die." He then forcibly dragged his wife by her arms out of the house, across the yard and into the shed, while she struggled and attempted to resist. She tried to grab hold of the side of the door of the shed to stop being forced inside but was unsuccessful. The applicant told her that he had everything set up inside for her, whatever that may have meant and whatever it may have conveyed to her.

19. The door was shut behind her and inside she saw a rope, already in place, hanging through a metal pulley attached to the rafters of the shed and tied in the form of a noose. Beneath the rope was a stool. The applicant then told his wife that he had told everyone that she was suicidal and that everyone would believe that she had committed suicide.

22. The applicant then tried to force his wife to stand on top of the stool, but she continued kicking and screaming. Moreover, she managed to kick the stool away, at the same time struggling and trying to talk the applicant into stopping whatever he was trying to do. They then fell to the ground. The applicant tried to place a rope around his wife's neck but she kept resisting and pulling it off with her hands. Then he held his wife on the ground by sitting on her chest and placing her elbows under his knees. In that way he managed to place the rope around his wife's neck and pulled it tight. She said she could not breathe, her eyes felt as though they were bulging and she felt that she was about to die. She managed to say: "Stop, don't let the children see me like this", but then she lost consciousness.

25. The applicant then let go of the rope, but it is not known precisely how long it was before his wife regained consciousness: for present purposes one may assume it was not long afterwards. As she recovered, she found the rope was loose around her neck while the applicant was standing over her saying that he could not go through with it. She then removed the rope from her neck. She then tried to get up, but could only stagger around the shed, unable to focus properly, eventually trying to grab a bench but managing only to pull it over onto her legs. At this stage the applicant simply stood and watched, eventually leaving the shed. From the house the applicant obtained his wife's handbag and keys and took them back to the shed, throwing them at her and telling her: "Get out bitch; just leave".

28. For some time after the incident the applicant's wife remained inside the shed, having taken the precaution of locking the shed door. She eventually returned to the house where the applicant was watching television.

31. The next day the victim's physical injuries became evident: her eyes had swollen and became full of blood and she had bruising and abrasions in the area of the neck and left elbow, as well as bruising to the left arm and knee. The applicant expressed some contrition for what he had done, saying to his wife: "Oh, my God, what have I done?" He appeared to break down, saying "I can't believe I hurt you". He then drove her to a doctor for treatment. The doctor advised that the matter should be reported to the police but at that stage the applicant's wife resisted that suggestion. The medical evidence confirmed the bruising as well as severe bilateral subconjunctival haemorrhages and periorbital swelling.

34. At this time, some two days after the attack, the applicant's wife decided to leave the matrimonial home with the three children. They went to live with her parents and the applicant and his wife have not cohabited since. She continued to see a number of doctors, reporting in due course headaches, aching behind the left ear, continued bruising around both eyes, together with severe sleep disturbances and flashbacks about the attack. She also consulted a psychologist who said that she had suffered post-traumatic stress disorder and symptoms of acute stress disorder resulting from the attack. It seems that in due course she responded well to treatment for those disorders.

37. Eventually, about six weeks after the attack, the applicant's wife decided to seek advice from the local police in order to obtain an intervention order against the applicant, thereby disclosing the incident to the police who shortly afterwards interviewed him and then later charged him. In the meantime it seems that he had sought further treatment for anger management, a problem for which he had been already receiving treatment but apparently not on a basis connected with violence inflicted on his wife. He had also been treated for depression and, as well as receiving counselling, had been prescribed the antidepressant Zoloft. It was said that at the time of the incident he had consumed two bottles of port and that the combination may well have been responsible for his mood on the night of the attack.

40. One can see that the account of the relevant events has been largely taken from that given by the applicant's wife for, in effect, there was no contrary version available because of his "no comment" record of interview and because he, through his counsel (who was not counsel who appeared on this occasion), chose not to lead any evidence directly or indirectly from him. If there is any absence of perspective from his point of view, that cannot be blamed on the prosecution. I should add that the somewhat one-sided and inconsistent version of events given to the psychiatrist, Dr Walton, called on his behalf was thought by the judge to contain many inconsistencies and was largely a self-serving statement. He chose not to give it any relevant credence and in that approach his Honour was strictly correct. For myself, however, that history does potentially give some insight as to how the applicant viewed his own responsibility and why he had chosen to plead to recklessly causing serious injury.

43. This should briefly be explained, as, to the uninstructed reader, it might seem strange that the Crown should accept a plea which did not involve any admission that the applicant intentionally caused any injury to his wife. As I would understand the matter, the Crown saw problems in proving any greater intent than that connoted by the term "recklessly", because, though actions often speak louder than words, the applicant's behaviour both before and during the events not only was bizarre but may have been denied significance because of the combined ingestion of Zoloft and alcohol. It seems clear that he attempted suicide himself and his attempts to get his wife to the "scaffold" might have, as a result of some subtle cross-examination of a partly forgiving wife, been reduced to a vague though violent attempt to persuade her to commit suicide.

46. No better interpretation of the applicant's behaviour during this extraordinary episode was put forward in argument. It was accepted that the plea to the count of recklessly causing serious injury implied that the applicant foresaw the probability that serious injury would result from his actions but proceeded to carry them out in reckless disregard of that probability. What is significant for present purposes is that, although the applicant may only have been reckless with respect to causing those injuries, nevertheless, from the perspective of his wife, having regard to the ghoulish scene set for her, she could only have been terrified out of her wits, whether or not that terror arose out of a fear of death or out of a fear, which must here be predicated, that her husband intended to inflict these injuries on her. Although he has pleaded only to a realisation of the probability of the serious injuries occurring, it cannot be unfair to treat him as being likewise aware of the possibility that his wife would see these actions as intended in one way or another to lead to her death, although the judge did not express such a view or rely upon it.

49. One should say a little about the evidence called as to the applicant's character and previous history. He had had a happy upbringing and taken on an apprenticeship which led to a stable, well-paid job in which he had a high reputation, as evidenced by several character references by his fellow workers. He had no prior convictions and pleaded guilty at a relatively early stage[2] to the extent that the judge held that his acts signified remorse on his part. Moreover he appears to have been working towards reconciliation with his family, so far as that is practical. There was a volume of evidence, especially psychiatric evidence which suggested that the applicant was neither given to violence nor otherwise aggressive. It seems however that he was subject to depression and unstable moods by which he might have been, and on this occasion obviously was, affected after having two bottles of port to drink on the top of his ordinary but recently increased dosage of Zoloft. One psychiatrist said that, although prone to verbal outbursts, the applicant had sought help in order to control his temper and had participated in an anger management training throughout the year before this attack took place. Dr Walton gave evidence that he had made a diagnosis "of a rather low grade and increasingly chronic depressive disorder", but he expressly said that it was not a serious mental disorder. The applicant's mood disturbance was characterised by depression and lability of mood. A family counsellor gave evidence referring to his remorse and describing the counselling he had undertaken to gain better insight into his behaviour. A psychologist spoke further of the anger management program he had undertaken locally in the preceding year and spoke of his commitment to abstain from alcohol, a commitment which he seems to have failed to observe on the night in question. I would repeat that the victim impact statement from the applicant's wife was not in the customary form, speaking only modestly of the trauma she underwent, and expressing her concern "that if their father has a gaol term imposed as a penalty, this will affect the children and I emotionally, socially and financially". She did not wish her children to become aware of these events and the anonymity of the descriptions in this judgment is intended to ensure, as far as practical, that her wishes are observed.

52. The learned judge in his sentencing remarks paid particular attention to this wish on the part of the applicant's wife, as victim, but he said that it could not lead him to imposing a non-custodial sentence. In the rest of his remarks he carefully examined both the history surrounding the events on the night in question and the psychiatric and psychological evidence relating both to the victim and in particular to the applicant which might bear on his decision. He thought the case a serious example of the offence so that it was necessary to punish him so as to reflect both elements of general and specific deterrence. He nevertheless thought rehabilitation was especially significant in this particular case because of the family circumstances, so that, although he imposed a term of four years for the offence, he deliberately directed a much lower minimum term of one year before the applicant became eligible for parole, in order to permit the continuance of his rehabilitation and resume contact with his family.

55. Although the first ground of the application was a claim that the sentence was manifestly excessive, counsel deferred discussing that ground until after dealing with the specific grounds, saying that it was the combination of those grounds which ought to lead the Court to characterise the sentence as manifestly excessive. Therefore I will turn to that at the end of these reasons.

58. The second ground was that the judge erred in finding that the offence was aggravated because it occurred in a "domestic context". Counsel in the first place accepted that courts could not tolerate violence administered in the context of domestic disputes, but he said that the judge erred here because he found the offence was aggravated because it occurred in that context. What the judge in fact said was that the legislature and the community regarded the offence of recklessly causing serious injury as serious, which was exhibited by the recent increase in penalty to 15 years maximum. Of the community's attitude he said it was correct, "particularly in a domestic context". I can see no error in this characterisation of the offence either generally or in the particular case. It certainly could not be an ameliorating factor, for the courts could not tolerate violence in the home merely because it was perceived to be common or an everyday event.

61. For myself, I believe the judge was entirely justified in seeing it as a factor to be borne in mind, although in the context of the sentence I do not believe he placed especially heavy weight on it. Moreover, I think it can be seen to be aggravating both as to its potential consequences and also inasmuch as a husband (or a wife) is in a privileged position in relation to a spouse. They each know the everyday movements, the habits, the likes and dislikes, the fears and pleasures of their spouse, which might enable them not only to effect an attack more easily on their victim but also to devise the kinds of attack which could more seriously affect their spouse, not merely physically, but so as to cause mental anguish. Now it was not suggested that there were special advantages which the applicant had in the present case, but he was certainly able to know whether the children would be up or asleep and where they would be, and where to take his wife to gain privacy for this cruelly devised attack. The matter need not be examined any further, for in truth the advantages that he had, including that of surprise, justified the judge in holding that it was proper to view more seriously this attack occurring in the domestic context of this family. The consequences for both his wife and children were manifest, as fairly could have been expected.

67. Counsel then turned to ground 3 which asserted that the learned judge had "made errors of fact" in the sentencing of the applicant. Although no particulars were given in the grounds, some five matters were raised in the outline of submissions forwarded to the Court and no objection was made to the adequacy of the ground by the respondent. It seems recently to have become a recurring theme in applications relating to sentence to claim that the judge had made a series of errors in the course of sentencing the offender. It seems to be assumed that some incidental finding of fact, extracted from the judge's attempting to distil the facts appearing in the depositions and elsewhere, automatically provides some basis for setting aside the sentence. Counsel on this occasion sought to explain that what was meant was that the applicant asserted that the judge had wrongly relied on the specific facts in the course of sentencing the applicant. That at least placed some limits on the extent of the ground but of course a mere recitation, in an attempt to present an overall picture, does not necessarily lead to the conclusion that the judge relied on the particular fact or placed reliance on it for a specific purpose. A number of the matters particularised under this ground in argument seemed at the periphery of relevance and hardly likely to have been of great consequence in the exercise of the judge's discretion.

70. It was first said that the judge erred in his findings in relation to the stool. It was argued the judge was in error in saying that the applicant tried to force his wife to stand on the stool in the middle of the shed underneath the rope and that it was she who had the presence of mind to kick the stool away. Apart from the judge's comment, the facts are taken precisely from the wife's witness statement. The best that counsel could say was that, in the course of cross-examination at the committal[3], it was suggested that she was hazy about what her husband actually said. She conceded that she was shocked by that stage, not surprisingly one might add, and she gave an equivocal answer when questioned along the lines that the applicant merely sought to persuade his wife to commit suicide by use of the rope and the stool. Having regard to the wife's ambivalence by this time as to the prosecution of her husband, the judge might fairly have ignored this non-committal answer, especially in the light of the plea. The forcing of the rope around his wife's neck was an essential part of that offence, albeit it was done without intent to kill and recklessly as to the consequences. There is no substance in this objection.

73. The second point counsel took us to was an observation in the course of the judge's ruling as to non-publication of the case. One of the reasons the judge put forward was that publication could distress the children if they thereby obtained "the image of their father preparing the noose for their mother". Counsel had to concede that this description of the preparation of the noose did not even appear in the sentencing remarks and the comment had been made before the plea had even been heard. Moreover it was a perfectly correct way of describing the potential effect on the children, for the impression of the children is hardly likely to be affected by the legal niceties as to the precise charge to which their father pleaded guilty. Of course, the noose had already been prepared and the applicant, as carefully related in the sentencing remarks, had said that he had stood with the noose around his neck before coming inside to fetch his wife. The noose was indeed still there when he forced his wife into the shed and it is more than apparent that he was prepared to use the noose and the stool as a form of exquisite torture of her, at least to the extent that he acted recklessly with full knowledge of the probability that his wife would be seriously injured by his extraordinary conduct in using the noose. There is even less substance in this complaint.

76. It is harder still to see the significance of the third point, having regard to the admitted facts. Complaint was made about evidence relating to the applicant's attendance at the anger management program in seeking assistance in coping with his depression. Counsel asserted that the judge had placed undue weight on the significance of his client's attendance at that program but in truth the judge referred to it only briefly in his sentencing remarks. True it was that he was concerned as to precisely what the circumstances were and asked counsel on the plea hearing to get further instructions about the matter, especially as it seemed that for some reason or another Dr Walton had not been informed of it.

79. In my opinion there is nothing in the reasons for sentence, or in those earlier discussions, which showed that the judge placed undue weight on the significance of his attendance at an anger management program. Inasmuch as he was concerned that the attendance might suggest a history of previous violence against the applicant's wife, it seems clear at the end of the day that he proceeded on the basis that attendance at that program was not related to any troubles with his wife. There is nothing in this complaint.

82. A variation on this appears in the next point taken inasmuch as it was said that the judge found that the applicant had failed to disclose his attendance at the program to Dr Walton. Certainly the material suggested that it was not disclosed but it seems clear that in the end he thought nothing rested on that fact. Again, counsel suggested that thereby it affected the judge's assessment of the statement of events given by the applicant to Dr Walton. There is no doubt that the judge commented unfavourably on that version but in my opinion that had nothing to do with whether or not he had disclosed his attendance at the anger management program. Rather a reading of it would disclose that his statements to Dr Walton were inconsistent with the plea he had made to the Court. Whatever the applicant had in mind at the time, he was certainly attempting to downplay the significance of the event in a manner which was inconsistent with his ultimate decision to plead guilty, albeit to one of the lesser charges against him. There is nothing in this complaint.

85. The fifth group of errors said to have been made by the learned judge related to the circumstances surrounding the committing of the offence. In truth, all of the facts referred to appeared in the depositions (especially in the victim's statement) and none was denied by the applicant, unless it be said that his plea of the lesser count implicitly amounted to a denial. Rather it was said that the judge should not have made the findings or recited them in his sentencing remarks, as that led to the inference that he was sentencing for a more serious offence, contrary to principle. So reliance was placed on the judge's setting out the applicant's comment to his wife that "it's time to die", that he had set up the shed, that everyone would think she had committed suicide, his attempt to force his wife onto the stool and that he could not "go through with it". Finally complaint was made that the judge said that the applicant had tried to hang his wife. In my opinion there was no such finding, unless again it is to be implied from the general statement of the facts which clearly included references to the wife's injuries and more importantly her reaction to the attack. As I said earlier, however, it was not unimportant to show how the victim might have reacted and did react to this terrifying ordeal, albeit that the applicant's intent must, by his plea, be confined to recklessly causing serious injury. The nature of the injuries suffered must always be relevant to a proper exercise of the sentencing discretion on a count such as the present, though tempered to the necessary degree by a consideration of the offender's intent and other criminality.

88. As was said in answer, these all were only concomitant facts designed to describe the surrounding circumstances and the learned judge, several times in the course of the plea and explicitly in his sentencing remarks, emphasised that he was sentencing the applicant only for the crime of recklessly causing serious injury. That is clear from the fact that the sentence was well below that appropriate for attempted murder. The difficulty often arises in cases such as the present because no agreed statement of facts is prepared by the parties. One cannot criticise the parties here because reaching an agreement is frequently difficult. The judge was left to do the best he could with a large volume of material. It would have been very difficult to give a coherent description without including most of the items now criticised. The fact is, however, that the judge neither misstated nor misused them in determining the sentence.

94. The fourth ground asserted that the learned judge failed to give any adequate weight to his wife's views or to the consequences of his imprisonment on her or their children.[4] As can be seen, the learned judge did refer to this factor and, certainly to some extent, took it into account. Indeed, it was the balancing of this factor and the seriousness of the offence which he last turned to in his sentencing remarks. The issue was whether he should impose sufficiently low a sentence as to enable it to be fully suspended. For good reason, as he carefully explained, he saw this offending to be too serious to permit such suspension. It was not a private prosecution, to be waived in whole or in part by the victim; and this kind of factor can only have significant bearing in exceptional circumstances. Counsel for the applicant indeed conceded that the relevant law, as appearing in the cited cases, had been properly applied by the judge: cf. Roosmalen[5] and R. v. Hodder[6]. Whether those cases can strictly be said to lay down principle may be doubted, although that need not here be finally decided. It is sufficient to say that, on the widest and most generous view of them, the judge was not obliged to conclude that it was inappropriate to impose an

immediate custodial sentence. This was far too serious a case. In any event, his Honour imposed an exceptionally low minimum term of one year. The ground must be rejected.

98. Ground 5 claimed that the learned judge failed to give any or any adequate weight to the rehabilitation of the applicant. As argued, it was also said that the judge failed to give sufficient weight to the effect of Zoloft and the drinking of alcohol on the applicant's conduct, and, upon the basis that he had addressed this "problem", to his consequential prospects for rehabilitation. To this was added in argument a failure sufficiently to take account of his plea, his remorse, lack of prior convictions, his good character and future employment prospects.

101. The short answer to this is that it is apparent that the judge had concluded, after reviewing these facts, that rehabilitation was especially significant and that the applicant had "shown a serious attempt to understand [his] conduct". Moreover, his Honour had imposed the modest head sentence and consciously determined to fix a very short non-parole period. There is no basis for upholding this ground.

104. Finally, one must return to ground 1, that the sentence was manifestly excessive. As I have said, no separate argument was directed to the ground, but the answer is clear. The learned judge expressed his sentencing remarks in considerable detail and with great care, outlining almost everything that could be said in the applicant's favour. It was a horrific crime, howsoever the intent be expressed. Both maximum and minimum terms were well within, indeed towards the bottom of, the available range. His Honour very fairly took account of the particular effect on the applicant's family by choosing a very short non-parole period.

112. As so often happens in the common law tradition of an oral hearing, the real issues had been identified and peripheral questions disposed of by the time the

Court announced that it would reserve its decision. (We did so to give the applicant an opportunity to place evidence of his medical condition before us, but that evidence was not forthcoming.) It was my understanding that nothing at all was left of ground 3. The impugned findings were either open to the judge or of no consequence or both. Accordingly there is no occasion to consider what is meant when it is said that a sentencing judge "mistakes the facts,"[7] but I agree with the learned presiding judge that it is not every mistake that reopens the discretion. The mistake must be material.[8]

116. I also agree, substantially for the reasons his Honour gives, that none of the other grounds is made out. The head sentence was not outside the range: the learned judge was not in error in taking into account the domestic context in which the offence was committed: he was not bound to have further regard to the views of the victim or to give more weight to the consequences of incarceration upon the victim and the children of the marriage: inadequate weight was not given to the applicant's rehabilitation. In so concluding, I do not overlook that, notwithstanding the anger management course, this was relatively aberrant behaviour by a man of 41 with no previous convictions or the need to factor rehabilitation and its prospects into the head sentence.

119. The grounds of appeal as argued do not require us to consider the relationship between the head sentence and the non-parole period and I have not done so.

124. This is a sad case because of the consequences of the offence for all of the family. But, for the reasons given by Ormiston, J.A., the application must be

dismissed, though I would place the head sentence considerably higher in the range than his Honour does. With regard to ground 4 it is significant that this is not a case where cohabitation had been resumed.

[1] There was also available a "history", given by the applicant to a forensic psychiatrist, to which the judge said he ought not to pay regard: see below and at para.[13].

[2] Nevertheless his wife was subjected to a relatively vigorous cross-examination at the committal hearing.

[3] It should be noted that this is not a case where the applicant can say that he did not put the witnesses through the burden of cross-examination, albeit that there was no trial on the presentment.

[4] The ground also asserted the judge failed to give any weight to these factors, that this was not pressed in argument, for good reason.

[5] (1989) 42 A.Crim.R. 358.

[6] (1995) 15 W.A.R. 264; 81 A.Crim.R. 88. See also Fox & Freiberg: Sentencing: State and Federal Law and Practice in Victoria (2nd ed.) paras.3.629 and 3.904.

[7] See, for example, House v. R. [1936] HCA 40; (1936) 55 C.L.R. 499 at 505 and R. v. Taylor and O'Meally [1958] VicRp 46; [1958] V.R. 285 at 289.

[8] See R. v. Cardona [1998] 2 V.R. 126 at 133 and 137-138 and compare the emphasis on sentencing issues as opposed to sentencing facts in R. v. Storey [1998] 1 V.R. 359 at 372 and 374.