R v McCorriston [2000] VSCA 200

5. This case has provided such a problem for the sentencing judge. The appellant is a young man who, in company with confederates, committed serious offences involving personal violence against a victim in his own home and in the presence of the victim's three-year-old son and the sister of his de facto wife. As a consequence the appellant, along with his two co-accused, was charged with aggravated burglary and recklessly causing serious injury, offences which carry respective maximum penalties of 25 years and 15 years. The appellant pleaded guilty to these offences and admitted previous convictions imposed in December 1998, that is, some three months before these offences were committed, in respect of which he had been given both an intensive correction order and a community-based order. After a lengthy plea, in the course of which a great deal of material was put before the judge as to the appellant's history of substance abuse and apparent efforts to rehabilitate himself, her Honour, in very careful sentencing remarks, concluded that the seriousness of the offences, which were committed whilst the appellant was bound by both the intensive correction order and community-based order to which I have made reference, required immediate sentences of imprisonment which would not only take account of principles of general and specific deterrence, but would also, hopefully, maximise the appellant's chances of rehabilitation within the prison system. Her Honour imposed, accordingly, sentences of two-and-a-half years on counts 1 and 2 (the aggravated burglary and the reckless causing of serious injury) and ordered that 12 months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1. The total effective sentence was, therefore, three-and-a-half years. Her Honour ordered that the appellant serve a non-parole period of two-and-a-half years, of which the appellant has now served some 15 months.

8. By leave granted pursuant to s.582 of the Crimes Act, the appellant now appeals to this Court on the sole ground that the sentences imposed by her Honour are manifestly excessive. Because his counsel's outline of submissions disclosed an argument based on manifest disparity between the sentences imposed upon the appellant and those imposed upon his co-offender Robertson, we reminded counsel that such an argument is quite discrete from a ground of "manifest excess". I take the opportunity of, once again, referring to Practice Statement C.A.1 of 1996[1], which in my view accurately states the law:

"Manifest excess is not to be used as an umbrella under which to shelter discrete contentions such as that the judge made a mistake as to the facts or that the sentence violates the principle of parity."

Without prejudice to the appellant's right to refer to the sentences imposed upon his co-accused in support of his contention that the sentences imposed upon the appellant were manifestly excessive, we refused his application for leave to amend his grounds of appeal to assert manifest disparity of sentences between them. We did so primarily on the ground that, in the circumstances of this case, no manifest injustice would accrue, because such an argument had little prospect of success. But there were other reasons, including the fact that no application has been made to amend the grounds during the six months which have elapsed since the sentence was imposed, notwithstanding that the application for leave was made to this Court in June.

13. 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.

16. Not surprisingly her Honour regarded these offences committed by the appellant and his co-accused as "appalling". In this respect she was clearly correct.

19. Her Honour, however, had to take account of the considerable volume of material which was tendered upon the plea and which bore upon the appellant's history and his mental state at the time of committing the offences. In this respect her Honour received much evidence concerning the appellant's substance abuse over a period of some two years before the commission of these offences. That evidence came in both written and oral form from doctors, psychiatrists, drug abuse outreach workers, "withdrawal nurses", from family and from friends. Her Honour referred with great care and attention to detail to this evidence in her sentencing remarks. Because, during the early part of the plea, the descriptions given by some witnesses of the appellant's behaviour suggested that he was, or may have been, suffering from a form of psychosis at the time the offences were committed, her Honour was concerned to obtain a medical opinion from a qualified psychiatrist as to whether there was some underlying psychotic disorder, or whether the psychotic episodes were related to his substance abuse. She accordingly adjourned the proceedings to enable such a report to be obtained from a Dr Bell.

22. 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.

25. Against the background of her thorough examination of the appellant's history and Dr Bell's report, her Honour was of the view that the appellant was an appropriate vehicle for general deterrence, to which she gave weight, as I have already said, in the sentencing process. In doing so I am not persuaded that she was in error.

28. As I have previously stated, the sole ground of appeal is that of manifest excess. Under cover of that ground Mr Simon, on behalf of the appellant, raised a number of points in this Court. Again he emphasised the various mitigating circumstances which included the early plea of guilty, the remorse shown, the youth of the appellant, the lack of relevant prior convictions and the appellant's distorted mental processes. He relied upon the fact that the appellant was, as Dr Bell noted, a vulnerable individual, such vulnerability being accentuated by an assault which had been committed upon him whilst in custody at the Melbourne Assessment Prison in the course of the plea. Mr Simon contended that her Honour, in imposing the sentence, could not have given sufficient weight to these factors which resulted in the appellant serving his sentence in some form of protective custody. Finally, it was put that the sentences imposed were, in their totality, excessive as a result of the degree of cumulation ordered by her Honour; and that this Court should be satisfied that they were excessive having regard to the fact that the same sentences were imposed upon the co-accused Robertson, whom her Honour found to be as much involved in the offences as the appellant but had a far worse criminal history.

31. 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.

38. I agree. I wish to say something on the subject of concurrency and cumulation.

41. Sentencing judges should be allowed great latitude in tailoring an appropriate total effective sentence[2], but there are two errors or dangers that it is easy to fall into. One is to fail to register the seriousness of one or more of the offences, as for example by imposing a series of very short sentences and directing that they all be served cumulatively[3]. Another is to impose a particularly heavy sentence on one count and to allow the sentences imposed on all the others to be served concurrently despite the fact that some cumulation would be justified[4]. Very often it is not, as s.16(1) of the Sentencing Act 1991 and common sense both recognise. But the combined effect of cases such as R. v. Newman and Turnbull[5] and Pearce v. R.[6] is that sentencing judges are sometimes well advised to moderate the sentences they impose on each count[7] and to direct a measure of total, or more often partial, cumulation. That is especially so when offences are committed on separate occasions or against different victims, but those are not the only examples. Failure to moderate and cumulate in an appropriate case is apt to make a sentence unnecessarily (and unmeritoriously) vulnerable to appellate intervention.

44. In the present case each offence represented a distinct invasion of the community's right to peace and order and significantly increased the overall criminality of what occurred[8]. By sentencing the appellant as she did[9], the learned sentencing judge avoided the criticism that was made in R. v. Mai[10] and again more recently in R. v. Bain[11].

48. I agree that the appeal should be dismissed and I concur in the statements made by the President and Callaway, J.A. with respect to the dearth of sentencing options for those whose crimes are due to the use of drugs, the limits of manifest excess as a ground of appeal and the proper use of concurrency and cumulation in sentencing for several crimes

52. After hearing what Callaway, J.A. had to say, I agree with the remarks he has made.

55. The formal order of the Court will be that the appeal is dismissed.

[1] [1997] 2 V.R. 61

[2] R. v. Mantini [1998] 3 V.R. 340 at 348-349

[3] Compare Director of Public Prosecutions v. Grabovac [1998] 1 V.R. 664 and R. v. R.H.McL. [1999] 1 V.R. 745, affd [2000] HCA 46; (2000) 74 A.L.J.R. 1319

[4] Compare R. v. Lomax [1998] 1 V.R. 551

[7] A moderate sentence may, of course, be lengthy: moderation takes its content from the circumstances of the offence and the offender.

[8] Compare R. v. Kostikidis and Mpehelevanas (unreported, Court of Appeal, 12th September 1996) at 14 and R. v. O'Rourke [1998] 1 V.R. 246 at 253 and 255-256

[9] For other examples see R. v. Henderson [1998] VSCA 83; (1999) 1 V.R. 830 at [21] (burglary and theft) and R. v. Pope [2000] VSCA 108 at [30-31] (aggravated burglary and attempted rape)

[10] [2000] VSCA 184 at [12-14] and [20]

[11] [2000] VSCA 199 at [10]