R v Natoli [2001] VSCA 243

Court of Appeal (Vic)|2001-12-21|Before: CHARLES, CALLAWAY and VINCENT, JJ.A.

Criminal law - Sentencing - Serious violent offender - 27 counts, including seven counts of intentionally causing serious injury - Elderly victims - Unnecessary to impose disproportionate sentence to protect the community - Application granted but applicant resentenced to 15 years' imprisonment with non-parole period of 11 years - Sentencing Act 1991, ss.6D, 6E.

The applicant, who is now aged 36, pleaded guilty in the County Court to four counts of theft (counts 1, 18, 22 and 23), two counts of intentionally causing injury (counts 2 and 15), 12 counts of robbery (counts 3, 5, 6, 8, 10, 12, 14, 16, 20, 21, 25 and 27), one count of recklessly causing injury (count 4), one count of common assault (count 7) and seven counts of intentionally causing serious injury (counts 9, 11, 13, 17, 19, 24 and 26). He admitted 40 previous convictions from eight court appearances between 1983 and 1998. After hearing a plea for leniency on his behalf, in which it was conceded that the applicant fell to be sentenced on counts 11, 13, 17, 19, 24 and 26 as a serious violent offender, the learned judge imposed sentences and gave directions for cumulation[1 ]

which resulted in a total effective sentence of 15 years and 10 months' imprisonment. His Honour fixed a non-parole period of 12 years and 10 months and made a declaration regarding 215 days' pre-sentence detention.

The applicant seeks leave to appeal on three grounds: first, that the sentence is manifestly excessive; secondly, that the learned judge erred in applying s.6D(b) of the Sentencing Act 1991; and, thirdly, that his Honour erred in not having regard, or sufficient regard, to the principle of totality.

Before turning to those grounds and counsel's submissions I shall say something briefly about the circumstances of the offences and about ss.6D and 6E of the Sentencing Act.

All the offences were committed between 8th March and 26th April 2000.

Most of the offences, including all the offences of intentionally causing serious injury, were committed against women of very advanced years. It will be sufficient if I refer only to the facts relating to those seven counts and the associated robberies:

Counts 9 and 10 On 20th March 2000 at about 10.45 a.m. Malka Garfinkel, aged 79, was wheeling her buggy home after having done some shopping. She walked along the side of her house towards the back door. When she reached the back gate, she saw the applicant walking towards her. She stated:

"The man was walking quickly towards me. The man then walked up to me and hit me with his fist to the left-hand side of my face. The next thing I remember is waking lying on the concrete path next to my shopping buggy with a sharp pain in my left cheek and chin, and I was bleeding from my left cheek. I think I was unconscious for about 10 minutes and by this time the man was gone ... My handbag with my purse was gone. My purse contained two hundred dollars cash."

She was put in fear, experienced great pain and suffered injury, cuts and bruising to the left side of her face.

Counts 11 and 12 On 21st March 2000, at approximately 10.15 a.m., Hazel Ivy Willsher, aged 83, returned to her house after doing some shopping. The applicant followed her to her back door. When she began to open the door, she was knocked unconscious. Upon regaining consciousness, she found that there was blood running down her face and blood on her hands. Her purse and house keys were missing. She was taken to the Box Hill Hospital where a cut to her lip required suturing.

Counts 13 and 14 On the same day, shortly after noon, Helen Terzis, aged 75, returned home after attending church and doing some shopping. When she reached the front door, she opened her handbag and put her key in the door. She then heard someone's footsteps running up behind her. She stated:

"This man ran right up to me and punched about three times in my face, right on my nose. I started screaming for help, and I fell on to my back. I then kicked him on his legs, near his ankles, above his ankles. When I kicked him he punched me again on the nose. I had blood everywhere. I then saw the man grab my handbag which I had dropped near my feet and he then took my navy blue purse out and then threw my handbag down on the ground, and then he ran to the front of the house. I stood up and had blood all over me like a tap."

She was taken to the Monash Medical Centre, where bleeding was observed from her nose, bruising to her nose, face and cheeks, and later required treatment for minor dental injuries.

Count 17 Jean Pullen, aged 78, had no recollection of the events the subject of this count and count 18. A police member attended on her on 24th March 2000 at approximately 2.10 p.m. He noticed that she was receiving treatment from ambulance officers and observed blood dripping from her nose. Her nose appeared red and swollen. At the Monash Medical Centre Dr Wesley Wong found that Ms Pullen had multiple fractures to her nose and to the bones surrounding her eyes. Fortunately she was able to be treated as an outpatient.

Counts 19 and 20 On 25th March 2000, at approximately 3.50 p.m., Kathy Berkovitz, aged 85, returned home after visiting her doctor. She stated:

"All I remember is walking up to my steps to open my front door, and then I saw someone from my side come to my back and start hitting me in my head and my face. It felt like I was being hit by the person's hand, but it was very hard. I was in shock. I couldn't see because they were at my back. I fell to the ground and then they ran out." Her bag was stolen. She was taken by ambulance to the Monash Medical Centre, where Dr Wong found multiple facial injuries, bruising and swelling to the right forehead, a laceration to the left forehead, bruising and swelling to the left eye, swelling to the left cheek and mandible, a bruise to the left ear and a graze to the right elbow.

Counts 24 and 25 On 12th April 2000, in the early afternoon, the applicant followed Mary Clare Smith, aged 75, along a street in Armadale as she walked to her home. He pushed her in the back, causing her to fall to the ground. He then tried to pull her handbag away. She stated:

"I started screaming `Help! Help!' and the male then kicked me in my upper left leg really hard and then he punched me twice in the left side of my head, near my temple. He then said to me, `Shut up, shut up, I just want your bag.' He wasn't yelling. He was quite calm and that's all he said to me. I kept hanging on to my bag but he was too strong and pulled it from me."

She was later taken by ambulance to the Alfred Hospital, where it was found that she had a dislocated left elbow, a bruise to the left side of the head and a bruise to the left ankle. She was referred to an orthopaedic surgeon.

Counts 26 and 27 On 26th April 2000, in the latter part of the morning, Helena Elizabeth Durkin, aged 72, returned home after doing some shopping. She stated:

"When I got home I got my keys out of my pocket and placed them in the lock. I then felt a blow to the back of the head and immediately turned around to see what it was. ... After I turned around the man struck me repeatedly to the face. I slid down the front of the wall beside the door to try and protect myself. The man kept hitting me and I was calling out, `Stop it!' When the man stopped he said, `All I want is your wallet.' The man then disappeared and I got up as soon as I could."

She later realized that her bag was open and her wallet was missing. She had received severe facial injuries.

In the case of several of the victims we were provided with photographs, which amply illustrated the vicious character of these cowardly attacks.

Section 6D of the Sentencing Act appears in Part 2A, which relates to serious offenders. Section 6A provides, among other things, that Part 2A applies to a court in sentencing a serious violent offender for a serious violent offence. As I have already said, it was conceded that the applicant fell to be sentenced as a serious violent offender on six of the seven counts of intentionally causing serious injury.[2] Accordingly ss.6D and 6E applied to the sentences to be imposed on those counts.

Sections 6D and 6E read:

"6D. If under section 5 the Supreme Court or the County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence - (a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and (b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. 6E. Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term."

The predecessor of s.6D, which was s.5A of the Sentencing Act as then in force, was explained in R. v. Connell[3]. The effect of a prima facie rule of cumulation like that prescribed by s.6E was explained in R. v. Mantini[4].

Ground 2 complains that the learned judge wrongly applied s.6D(b). It is said that the effect of his doing so may be discerned not only in the total effective sentence and the non-parole period but also in the structure of the sentence, so it will be convenient at this stage to set out the sentence in detail. The spacing in the table below indicates the counts relating to each of the 16 victims. The applicant was sentenced as follows:

Count 2 - intentionally causing injury - two years' imprisonment

Count 4 - recklessly causing injury - one year's imprisonment

Count 9 - intentionally causing serious injury - four years' imprisonment

Count 11 - intentionally causing serious injury - five years' imprisonment

Count 13 - intentionally causing serious injury - five years' imprisonment

Count 15 - intentionally causing injury - two years' imprisonment

Count 17 - intentionally causing serious injury - five years' imprisonment

Count 19 - intentionally causing serious injury - five years' imprisonment

Count 24 - intentionally causing serious injury - five years' imprisonment

Count 26 - intentionally causing serious injury - five years' imprisonment

The directions for cumulation were that four months of each of the sentences imposed on counts 1, 3, 5, 6, 8, 16 and 21, 12 months of the sentence imposed on count 9 and 18 months of each of the sentences imposed on counts 13, 17, 19, 24 and 26 be served cumulatively upon each other and upon the sentence imposed on count 11, making the total effective sentence of 15 years and 10 months' imprisonment. As I have already mentioned, the non-parole period was 12 years and 10 months.

It was tacitly assumed that his Honour drew no distinction between the offences the subject of the seven counts of intentionally causing serious injury except in his application of s.6D(b), so that the application of that provision resulted in the increase from four years' imprisonment to five years' imprisonment as between count 9 and the six counts on which the applicant fell to be sentenced as a serious violent offender. The sentence on count 11 was then taken as the base sentence and, when his Honour turned to cumulation, 18 months' rather than 12 months' cumulation was directed in relation to the other five counts to which s.6D(b) applied. On one view, therefore, the total effective sentence had been increased by three-and-a-half years by reason of the application of that provision, but the differences may also be explained, in part, by s.6D(a)[5] and s.6E.

Mr Dann developed a thoughtful series of submissions based on the following passage in the leading judgment of Charles, J.A. in R. v. Connell[6]:

"Section 5A does not oblige a sentencing judge to ignore proportionality when sentencing a serious sexual offender. Rather the section requires the sentencing judge to regard the protection of the community, which was already `one of the most important results that the criminal law is designed to secure' (Pedder, supra, per Gibbs, J.) as the principal purpose. Proportionality remains, in my view, a very important consideration for the judge; but, where the judge is satisfied by acceptable evidence that a serious sexual offender is so likely to commit further crimes of violence (including sexual offences) that he constitutes a danger to the community, the judge may impose a sentence longer than that which would be justified by the principle of proportionality. In that sense, the judge has, I think, a discretion to be exercised, and one to which the judge's mind must clearly be directed, before the judge imposes a sentence of imprisonment which could not be justified as proportionate to the gravity of the crime considered in the light of its objective circumstances. If the judge decides to act under s.5A(b) and deprive the prisoner of the benefit of the long-established and entrenched principle of proportionality, the judge should provide adequate reasons for so doing: see R. v. Iddon and Crocker (1987) 32 A.Crim.R. 315 at 325-6; R. v. Giakis [1988] VicRp 88; [1988] V.R. 973 at 977-8; R. v. West and Ede (unreported, CCA(Vic), 2 September 1988), reasons for judgment, at 6-7. For it must have been established, to the satisfaction of the judge, that the prisoner will remain a danger to the community beyond the period that the principle of proportionality would permit his detention to last."

The essence of the submissions was that his Honour had not addressed, as a discrete issue, the question whether the applicant would remain a danger to the community beyond the period that the principle of proportionality would permit his detention to last; that that period meant the total effective sentence that would be consistent with the principle of proportionality and not simply the individual sentences imposed on counts 11, 13, 17, 19, 24 and 26; that, if his Honour had addressed that question, he could not have been satisfied to the requisite standard[7] that the applicant would remain a danger to the community beyond a proportionate total effective sentence; and that his Honour had not given reasons for, as opposed to stating his conclusion that, it was necessary to impose a disproportionate sentence in order to achieve the purpose of protecting the community.

With great respect to the learned judge, I think that some of those criticisms may be justified, but, more fundamentally, I do not think that it was open to his Honour to consider that it was necessary to impose a disproportionate sentence.

Section 6D(a) is mandatory. In sentencing the applicant on each of the counts on which he fell to be sentenced as a serious violent offender, his Honour was obliged to regard the protection of the community from the applicant as the principal purpose for which the sentence was imposed, but it was not being imposed in isolation from the other sentences or the total effective sentence that would result. As Vincent, J.A. pointed out in the course of the argument, it is the latter, in a case like this, that ultimately protects the community.[8] Section 6E established a prima facie rule of cumulation in relation to those six counts. Section 16(1) established a prima facie rule of concurrency in relation to the other counts. There were 27 separate offences and 16 victims. A significant measure of cumulation could be justified by reference to s.6E or just on ordinary principles. [9] Resort to s.6D(b) was not necessary and, it goes without saying, that provision should not be applied unless it is necessary to do so.

The second ground of appeal must therefore be upheld and it falls to this Court to resentence the applicant. What, if anything, can be said in mitigation?

The judge was driven to the conclusion that the applicant's prospects of rehabilitation and reformation were limited. In particular there was little cause to expect that he would be able to overcome the addiction to heroin that had provided the motivation for the offences. We must bear in mind, however, the caution that attends long-term predictions. A psychiatrist who examined the applicant expressed the view that the repetitive nature of the assaults and the age of the chosen victims were indicative of a lack of remorse prior to apprehension and total disregard for the emotional and physical harm inflicted on the weakest members of society. His Honour evidently concurred in that assessment. There is no reason for us to depart from it.[10]

Mr Dann emphasized that the applicant had not only pleaded guilty at the earliest opportunity but had also given what counsel described as an extraordinary level of co-operation to the authorities. His record of interview was full of admissions in relation to offences that might otherwise have been difficult to prove. In a careful submission counsel related relevant questions and answers to the offences. He demonstrated that there was, at that stage, virtually no identification evidence in relation to counts 9, 10, 11, 12, 17, 18, 19, 20, 22, 23, 24 and 25; that, with the exception of counts 1, 13 and 14, the identification evidence in relation to the other counts was open to challenge; and that, on a number of occasions, the applicant had volunteered his guilt.

There is no doubt that the applicant's plea of guilty and his co-operation were entitled to great weight. The principles are well established: it is sufficient to refer to such cases as R. v. Donnelly[11], R. v. Duncan[12] and Siganto v. R.[13] Counsel also relied on the observations of Street, C.J. in R. v. Ellis[14] as to the leniency that may be extended to a person who discloses his otherwise unknown guilt of an offence. The present case is distinguishable from Ellis's case, where the offender was smitten by conscience and took the initiative in making a clean breast of his offences, but it does serve to remind us of the importance of the applicant's having been so open with the police. What he did was of very considerable utilitarian value even if the admissions themselves evinced only limited remorse.

The applicant's plea of guilty and his co-operation were as Mr McArdle pointed out, the only significant mitigatory factors.[15]

For these reasons I would grant the application and allow the appeal. I would set aside the sentences imposed on each of counts 11, 13, 17, 19, 24 and 26 [16] and substitute sentences of four years' imprisonment. I would also set aside the

directions for cumulation and direct in lieu that six months of each of the sentences imposed on counts 1, 3, 5, 6, 8, 16 and 21 and 15 months of each of the sentences imposed on counts 11, 13, 17, 19, 24 and 26 be served cumulatively upon each other and upon the sentence imposed on count 9, making a total effective sentence of 15 years' imprisonment.[17]

In fixing a non-parole period all the relevant factors are taken into account again but they may be differently weighted.[18] I have given great weight, in the head sentence I propose, to punishment, denunciation, deterrence and the protection of the community. That has limited the scope for mitigatory factors to be taken into account. I do not shy from the implication that, if the applicant had been found guilty after a trial, the head sentence would have been substantially greater than 15 years' imprisonment. It cannot be sufficiently emphasized that these were very serious offences indeed, in respect of which, quite apart from the provisions of Part 2A of the Sentencing Act, the community is entitled to see the courts mete out condign punishment. Turning to the non-parole period, the Court is able to give greater weight to mitigatory factors and especially to the applicant's plea of guilty and co-operation. I would therefore fix a non-parole period of 11 years.

I agree for the reasons advanced by Callaway, J.A. in his judgement.

2] He qualified as a "serious violent offender" by reason of his conviction, and the sentence imposed, on count 9. Intentionally causing serious injury is a "serious violent offence" within the meaning of the legislation. See s.6B.

[5] Compare R. v. R. [1999] VSCA 101; (1999) 106 A.Crim.R. 288 at 293 and 297.

[7] See R. v. MAS (unreported, Court of Appeal, 29th April 1998) at 8 and R. v. Pickard [1998] VSCA 50 at [3]- [4] ; cf. R. v. Wu [1999] VSCA 209 at [12]- [15].

[8] To take that view is not inconsistent, in this special context, with cases like R. v. Lomax [1998] 1 V.R. 551 and Director of Public Prosecutions v. Grabovac [1998] 1 V.R. 664.

[9] See, for example, R. v. O'Rourke [1997] 1 V.R. 246 especially at 253-254 and 256. O'Rourke was not a serious sexual offender.

[10] A suggestion of mental illness was not pressed on the plea or repeated in this Court.

[11] [1998] 1 V.R. 645 especially in the judgment of Charles, J.A. at 648-649 but also, as I pointed out in R. v. Duncan, infra, at 215 lines 47-51, in the judgments of Winneke, P. and Hedigan, A.J.A. at 650.

[13] [1998] HCA 74; (1998) 194 C.L.R. 656 especially at [21]-[23], [30]-[31] and [34].

[15] I do not overlook the fact that the applicant is serving his sentence in protection and have taken that into account.

[16] There should be entered in the records of the Court in respect of those offences the fact that the applicant was sentenced for them as a serious violent offender: see s.6F. I shall speak for convenience of directions for cumulation, but the formal order of the Court should make it clear that there is a "direction otherwise" in terms of s.6E.

[17] The considerations militating against increasing a sentence on appeal, unless it is manifestly inadequate, do not apply to directions for cumulation unless they would result in a longer total effective sentence: see, for example, R. v. Connell at 445, Director of Public Prosecutions v. Bulfin [1998] 4 V.R. 114 at 142 and R. v. Djukic [2001] VSCA 226 at [48]- [49].

[18] Bugmy v. R. [1990] HCA 18; (1990) 169 C.L.R. 525 at 531, 537 and 539. The sentence imposed by this Court in R. v. Connell was 13 years' imprisonment with a non-parole period of nine years.

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