R v McCorriston [2000] VSCA 200

R v McCorriston [2000] VSCA 200 - VSCA 2000 case summary — Zoe

[8]

Before turning to the arguments in support of the grounds of appeal, it is appropriate that I should refer briefly to the circumstances in which these offences occurred. The victim was an acquaintance of the appellant. He lived in a suburb of Bendigo. The appellant claimed that he had been to the victim's home in the morning of 7 March 1999 to buy a "cap" of heroin for which he allegedly paid $45. He apparently obtained no benefit when he injected himself with the contents and claimed to have been deceived by the victim in supplying him with a substance other than heroin. He explained his disenchantment with the victim to his co-accused Robertson and Dutton over a few beers during the course of the day. It seems that a corporate decision was taken that they should all go to the victim's premises to procure some drugs and, if necessary, teach the victim a lesson. Armed with two iron bars, and the appellant disguised in a mask, they gained entry to the victim's house by giving a false name; and having gained entry, set about kicking, punching and beating the victim with an iron bar, in the unfulfilled hope that they might procure some drugs which could be of some use to them. In fact all they got from the victim was some Valium tablets. The assaults which were engaged in were sustained and some of them carried out in the presence of the sister of the victim's de facto wife and his three-year-old son. The victim was beaten upon entry, he was later beaten in the bedroom of his house, and finally he was beaten in the kitchen of the house. He suffered significant injuries, including a depressed fracture of the cheekbone, an open wound to the scalp, a deep wound behind the left knee, and bruising to the left eye and face and right arm. Her Honour found that the appellant was responsible - along with Robertson - for most of the violent assaults and rejected his claims made both in his record of interview with the police and on his behalf upon the plea that his role was a secondary one to the other offenders.

[11]

It is not, I think, necessary to refer in great detail to the volume of material which her Honour had before her about the appellant's problems. Much of the history was captured in a chronology given in evidence by the appellant's father, obviously a man devoted to his son, who is the youngest of his four children, and also obviously an intelligent man whom her Honour accepted as an impressive witness. The history which he gave was a depressing one which indicated the appellant's use and abuse of a variety of substances from the age of 13 or 14. It appeared that the appellant was a "poly-drug user", that is, using on a regular basis a variety of drugs including cannabis, solvents, benzo-diazepines, alcohol and heroin. His father related the escalating progress of this use in late 1998 and early 1999 when the appellant had taken to theft to support his habits. Although the appellant was motivated to free himself from his habits and was receiving assistance and support from psychiatric centres, substance abuse centres and from his family and friends, he was unable to break the cycle. The evidence suggested that by early 1999, when these offences occurred, the appellant was in the grip of an addiction which he could not control. However, it was suggested, and the evidence supported the suggestion, that following his arrest, initial custody and bail he had "turned the corner", willingly participating in therapy sessions, finding comfort in religion and, although not able to tolerate the Odyssey House regime, had been accepted as a suitable candidate for Windana - a prospect which did not eventuate because of the sentences which her Honour imposed. Dr Bell, the consultant psychiatrist, who examined the appellant during the plea and whilst he was in custody, reported that the appellant was not psychotic when he saw him but accepted that he had "a history suggestive of a latent vulnerability to psychosis on the basis of his past episodes and symptoms early in his incarceration". The doctor was unable to make any firm statements or offer any firm opinions regarding the presence or otherwise of the existence of an underlying psychotic disorder - apart from the effects of drug use.

[14]

The real question in this appeal is whether the sentences imposed were manifestly excessive, either as punishment for the individual offences or in totality. Notwithstanding the powerful mitigating circumstances put before her Honour on the appellant's behalf, I am not persuaded that they were outside the range legitimately available to her. The mitigating factors upon which emphasis has been laid in this Court during the course of Mr Simon's able arguments were all before her Honour and carefully considered by her. However, they were only part of the story. Her Honour was justified in regarding these crimes as serious examples of their type and as meriting punishment in which, notwithstanding the vulnerable state of the appellant, general and specific deterrence each had its part to play. After all, the mission upon which the appellant embarked with his co-accused was the result of his complaint against the victim. No matter what their state, they had discussed during the course of the day what steps should be taken to exact retribution upon the victim. In disregard of the rights of the victim and his family to the privacy of their home, they broke into it in company and systematically engaged in a sustained series of brutal assaults, some of which were carried out in the presence of the victim's family. The appellant, as her Honour was bound to find, played a principal role in meting out this violence; and his desire to conceal himself by wearing a mask was evidence of his knowledge of what he was about and his concern not to be recognised. The offences in which the appellant willingly engaged were committed very shortly after he had been granted leniency and placed on an intensive correction order and a community-based order. In these circumstances her Honour was justified, in my view, in imposing sentences of imprisonment to reflect just punishment and denunciation of these crimes, notwithstanding the factors of mitigation that existed. There can be no doubt that she took into account the matters which are now relied upon as suggesting that the sentences are excessive. There is nothing in her careful sentencing remarks which would suggest to me that she did not give them appropriate weight. Having regard to the role played by the appellant, I am not persuaded that the sentences were manifestly excessive, either individually or in their totality. Her Honour was bound, I think, to cumulate some portion of the sentence imposed on count 2, and the degree of cumulation was, I think, quite appropriate. The two offences were quite discrete in their elements and cumulation became necessary for her Honour to demonstrate the total criminality of the appellant in the commission of the crimes.

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