R v Robertson [2005] VSCA 190

Court of Appeal (Vic)|2005-08-03|Before: MAXWELL, P., CALLAWAY and CHERNOV, JJ.A.

Criminal law - Sentencing - Domestic violence - Possession of three images of child pornography - Whether plea made at earliest reasonable opportunity notwithstanding that it was made on arraignment - Plea of guilty warrants greater that "minimal" sentencing discount - Appeal allowed.

1 I invite Chernov, J.A. to deliver the first judgment.

2 On 4 April 2005, the appellant, Justin Alan Robertson, who is now aged 29 years, was arraigned in the County Court at Warrnambool on a presentment containing ten counts: seven counts of rape, two counts of common assault (counts 2 and 9) and one count of possession of child pornography (count 10). On 13 September 2004, following a contested committal hearing in the Magistrates' Court, the appellant was ordered to stand trial in the County Court on 15 charges, which included two charges of intentionally causing injury and two charges of threatening to cause serious injury. The appellant was granted bail on that date but this was revoked on 12 April 2004 during his trial on count 8, to which reference will be made later. The appellant remained in custody until 24 June 2005, on which date this Court ordered his release on bail pending this appeal. It seems that the appellant was also in custody between 30 April 2004 and 3 May 2004.

3 In the event, the appellant was arraigned on the abovementioned ten counts and pleaded not guilty to counts 1 to 8. He entered pleas of guilty on counts 9 and 10. On 6 April 2005, the learned trial judge ruled that count 8 ― which alleged rape ― be severed and tried separately from counts 1 to 7 and, on 19 April 2005, the jury returned a verdict of not guilty on that count. Not long thereafter, the Crown indicated that it proposed to enter a nolle prosequi in relation to counts 1 to 7.[1] Thus, the appellant fell to be sentenced in relation to counts 9 and 10 only. The maximum custodial sentence for each of the two offences is five years. The appellant admitted three prior convictions from two court appearances but, as the learned sentencing judge said, they were not relevant for sentencing purposes in relation to the two counts in question. After hearing a plea in mitigation made on the appellant's behalf, his Honour sentenced him on 6 May 2005 to three months' imprisonment in relation to each count and directed that the sentences be served cumulatively, thus producing a total effective sentence of six months' imprisonment.

4 By notice of application for leave to appeal against sentence filed on 16 May 2005 the appellant sought leave to appeal against the sentences. On 24 June 2005, the application was granted by a judge of this Court pursuant to s.582 of the Crimes Act 1958 and, as I have said, on that day, the appellant was also granted bail pending the hearing of his appeal. On 18 July 2005, he caused to be filed a full statement of the three grounds on which he relies in support of his appeal. Before considering them, I shall state briefly the circumstances of the offending that are the subject of counts 9 and 10.

5 The assault that is the subject of this count was committed by the appellant on the evening of 27 April 2004 against his de facto wife, SCB ("the complainant"), who was then aged 23. It seems that, for a period of days prior to this, the relationship between them had become tense because, amongst other matters, of the appellant's suspicion that the complainant was seeing another man. On the evening in question, when the appellant and the complainant were in bed, they began to argue. The complainant told the appellant to "leave her alone" and effectively turned her back on him. The appellant, however, pulled the complainant around, shook her by the shoulders and struck her three times on the face and neck with an open hand. Shortly after this, when the complainant asked the appellant to move his arm from her neck because it was sore from the assault, he turned on the light, examined her face and neck, but then turned off the light and went to sleep. The complainant described the appellant's blows to her face and neck as "very hard", being like "a punch but with an open hand". The medical evidence established that she suffered swelling to her left cheek and left ear lobe, superficial lacerations to her neck and significant bruising. As the judge noted, the victim no doubt also suffered considerable emotional distress. One of the two medical practitioners who examined the complainant on the day following the assault said in evidence that significant force would have been required to cause such injuries.

6 On 30 April 2004, the police interviewed the appellant in relation to the incident and other matters concerning the complainant. He made full admissions as to the offending conduct the subject of count 9 and expressed remorse for having committed the assault.

7 Following SCB's complaint to police about the appellant's assault upon her, she told them of his predilection for pornography and supplied them with a compact disc that she had located among his possessions. The disc contained over 2,700 pornographic images, three of which were of child pornography. On 24 June 2004, police interviewed the appellant about the matter. He agreed that he had possession of the offending images but explained that they were part of a large file that he had downloaded from the internet and that he had not obtained them intentionally. He accepted that possession of child pornography was wrong. The learned judge, however, noted that the appellant had made no attempt to delete the images once he had discovered them.

8 Briefly, the appellant's personal circumstances were these. He had a difficult upbringing in the sense that his parents separated when he was six months old and each formed a new relationship with the result that the appellant went back and forth between his parents. Consequently, he attended 13 different primary schools. Moreover, in the course of his young years, the appellant was subjected to, and witnessed, numerous scenes of domestic violence in the homes of his respective parents. The appellant was educated to Year 9 and has sought to support himself since he was 14 years of age. Notwithstanding that he changed employment frequently, the learned sentencing judge accepted that the appellant had a sound work history.

9 Following the offending conduct, the appellant's relationship with the complainant came to an end and he later formed an association with the daughter of a policeman who apparently supported him at his trial and at the time of the hearing of the plea in mitigation. He also enjoyed the support of his sister, who is now 30 years of age. In light of the offences with which the appellant was charged, he had been designated a protected person, so that he has experienced some additional hardship during the time he spent in custody.

10 It is plain from his Honour's sentencing remarks that he recognised the appellant's personal circumstances that I have just described and accepted that he was remorseful for his offending conduct and that he had made full admissions to the police in relation to it. Amongst other matters, his Honour highlighted the seriousness of the domestic violence which the appellant inflicted on the complainant and, in relation to count 10, noted, as I have said, that the appellant did not delete the offending images, notwithstanding that he realised it was wrong for him to have them. Of particular relevance to this appeal, his Honour said that, because the appellant's pleas of guilty were made at "a very late stage, ... at the time of his arraignment", he was entitled only to "a minimal sentencing discount" for those pleas of guilty.

11 The appellant relies on three grounds of appeal but, as will become apparent, it is necessary to consider only ground 1. Under cover of that ground, Mr Dann for the appellant submitted that his Honour erred by applying only a minimal sentencing discount in recognition of the appellant's pleas of guilty and the Crown agreed that his Honour so erred. In my view these submissions should be accepted for the following reasons. First, his Honour sentenced the appellant on the false premise that his pleas were made at a "very late stage". In the circumstances, I consider, these pleas were made at the first reasonable opportunity. The appellant was not charged with the offence which was the subject of count 9 until 4 April 2005 when he was arraigned. The corresponding charge that was presented at the committal proceeding was that of intentionally causing serious injury ― that is plainly a more serious charge than common assault, carrying a higher maximum penalty and requiring proof of additional elements. Moreover, prior to the appellant's arraignment, the charges preferred against him (other than that which became the subject of count 10) involved allegations of rape, assault and intentionally causing injury, in respect of which the appellant had consistently said he would plead not guilty. As I have noted, in relation to most of those counts, the Crown entered a nolle prosequi. Given this context, it is not surprising that, at the committal, he was concerned that he not be forensically prejudiced by pleading guilty to count 10. In the circumstances, therefore, it cannot reasonably be said, in my view, that the appellant did not plead at the earliest reasonable opportunity in relation to the two counts in question.[2]

12 Secondly, and in any event, the appellant was plainly entitled to a sentencing discount for his pleas of guilty that was greater than "minimal". Given his full and frank admissions to the police about the offending conduct, I think that his pleas of guilty evidenced genuine remorse, his acceptance of responsibility for the offending conduct as well as a willingness to facilitate the administration of justice. I consider that these factors justify, in this case, a sentencing discount that is considerably greater than "minimal".[3] But, even if it could be properly said that the pleas of guilty did not demonstrate genuine remorse and acceptance of responsibility by the appellant, they do nevertheless show a willingness on his part to facilitate the course of justice and, for that reason alone, a discount greater than "minimal" would have been warranted in this case.[4] On either basis, the sentencing discount should not be illusory but should be seen to be reflected in the sentence imposed.[5]

13 It follows that I consider that the appeal must be allowed, the sentence below set aside and the appellant re-sentenced by this Court. For the latter purpose, I agree with the learned sentencing judge that the assault on the complainant was serious and was an example of domestic violence, which must be, and must be seen to be, condemned by the courts. The appellant plainly resorted to violence to vent his frustrations on the complainant and to impose his physical superiority over her. Parliament has recognised the seriousness of such an offence by prescribing in relation to it a maximum custodial period of five years. As to count 10, it is true that, as his Honour noted, the appellant did not delete the offending pornographic material from his disc, notwithstanding his recognition that it was wrong for him to possess it. As against these aggravating factors there are the mitigating circumstances to which I have referred, including the appellant's entitlement to an appropriate sentencing discount for his pleas of guilty. In this context, it should also be borne in mind that the appellant did not download the offending images intentionally and, in the circumstances, did not relevantly facilitate the distribution of child pornography. For completeness I mention that, in my view, the principles of specific and general deterrence are relevant considerations in the sentencing disposition. I also note that Mrs Quin for the respondent conceded that the sentence on count 10 is manifestly excessive.

14 In all the circumstances, I would re-sentence the appellant to a term of imprisonment of three months in relation to count 9 and one month in respect of count 10. I would order that the sentences be served cumulatively, thus producing a total effective sentence of four months' imprisonment. I would suspend the whole of the sentence other than the period which the appellant has already served in prison for a period of two years. Such a proposed disposition is, I note, consistent with the parties' respective submissions in that regard.

16 I agree with Chernov, J.A. I wish to add only this. In my opinion, Mrs Quin was right to concede that the sentence of three months' imprisonment on count 10 was manifestly excessive. There were only three images, unintentionally downloaded. True it is that the appellant did not delete them, but his conduct was low on the scale of offending.[6]

17 I agree with Chernov, J.A. and I also agree with the additional remarks of Callaway, J.A.

1 Mr Robertson, as you have heard from the reasons of Justice Chernov, we propose to suspend the sentence. The effect of the order will be to reduce your sentence and to suspend all but the 78 days you have served for an operational period of two years. The suspended part of the sentence will hang over your head for two years, beginning on the date on which you were sentenced in the County Court. That is the operational period that will be referred to in the order. If you commit another offence punishable by imprisonment during that period of two years, you will be brought back before the County Court. It does not matter whether you commit the offence in Victoria or outside Victoria. It does not matter whether you are in fact imprisoned for that offence or not. If you commit another offence that could be punished by imprisonment, you will be brought back before the County Court. That court may punish you for breach of the suspended sentence, but far more importantly, you will almost certainly be ordered to serve the rest of the four months sentence of imprisonment imposed by this Court. You only get one last chance. Do you understand that?

APPELLANT: Yes, your Honour.

18 The formal orders of the Court will be as follows:

The appeal is allowed.

The sentences of imprisonment imposed below and the direction for cumulation are quashed.

In lieu thereof the appellant is sentenced to three months' imprisonment on count 9 and one month's imprisonment on count 10.

The Court directs that the sentence imposed on count 10 be served cumulatively upon the sentence imposed on count 9, making a total effective sentence of four months' imprisonment.

The Court orders that all but 78 days of that sentence be suspended for an operational period of two years. The sentence is deemed to have been imposed and the operational period to have begun on 6 May 2005.

It is declared that the period of 78 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

I certify that the preceding 108 pages are a true copy of the reasons for judgment of Maxwell, P., Callaway and Chernov, JJ.A. of the Court of Appeal of the Supreme Court of Victoria delivered on 3 August 2005.

DATED the day of 2005.

[1] This was done on 28 June 2005.

[2] See Atholwood v. The Queen (1999) 109 A.Crim.R. 465 at 468 per Ipp, J., a decision that was approved by the High Court in Cameron v. The Queen (2002) 209 C.L.R. 339.

[3] See, for example, Cameron v. The Queen (2002) 209 C.L.R. 339 at 345 to 346 per Gaudron, Gummow and Callinan, JJ.; R. v. Duncan [1998] 3 V.R. 208 at 214 to 215 per Callaway, J.A.; and R. v. Brazel [2005] VSCA 56 at [21] to [22] per Callaway, J.A.

[4] See, for example, Cameron at 345 to 346.

[5] R. v. Ly [2004] VSCA 45 at [22] per Coldrey, A.J.A.

[6] See and compare R. v. Coffey [2003] VSCA 155; (2003) 6 V.R. 543 at 552 [30].

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Judgment (16 paragraphs)

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