R v Ross [2001] VSCA 223

10. The applicant now seeks leave to appeal against the sentence imposed upon count 1.

13. Although a number of grounds were set out in this application, it is not, in view of the course which this matter has taken, necessary to address any of them. At the outset of the hearing before us, Mr Tehan of counsel, who had only recently received instructions to appear for the applicant, indicated that he sought leave to

add further grounds. In particular, he drew the attention of the Court to the apparent failure of the sentencing judge to direct attention to uncontested evidence before him that, shortly before the commission of his offence, the applicant had taken a number of Serapax and Temazepam tablets and the opinion of Dr Walton, a very experienced forensic psychiatrist, that these materials were well recognised as having a disinhibiting effect in relation to aggression. This assertion, if correct, had obvious implications as to the question whether possible specific sentencing error had been committed or whether the sentence imposed upon the applicant was manifestly excessive in the circumstances.

17. Ms Pullen, representing the Director of Public Prosecutions, frankly and immediately, conceded that there was no indication in his comments that his Honour did take this evidence into account in his assessment of the applicant's culpability or had regard to its possible significance otherwise in the determination of appropriate sentence. I should add, however, that no concession was made by her that, had the judge appropriately addressed this aspect, a different sentence should properly or may even have been passed.

20. In the particular circumstances of this case, the absence of any reference to what was clearly relevant evidence bearing upon the determination of the appropriate sentence to be imposed upon the applicant constitutes error in the sentencing process, in my opinion. It follows that I would allow this appeal and consider that it is necessary for this Court to re-sentence the applicant. I have accordingly approached the matter on that basis.

24. At this point some reference to the background to and circumstances surrounding the commission of the applicant's offence is required.

28. Emma Morgan, the victim, and the applicant had known each other for approximately 12 years prior to 19 September 2000. They had met when she was 17 years of age and became friends. About four years afterwards they entered into a de facto relationship and a daughter, Brittany, was born in 1994. The couple separated not long afterwards, ending what on all accounts appears to have been an extremely turbulent relationship. After their separation, which seems to have been quite acrimonious, contact between Ms Morgan and the applicant was reduced to a minimum in order to avoid conflict. To this end, arrangements were made for the child, who was in her mother's custody, to be dropped off at the applicant's mother's home in Watsonia, on designated weekends, for access visits.

31. The weekend of 15 September 2000 fell during a period of school holidays, and it had been organised with the applicant's mother, Mrs Ross, that Brittany would stay at her home until Wednesday 20 September 2000, when the little girl was to go to a concert with an aunt and cousins. On the afternoon of Tuesday 19 September, Ms Morgan telephoned the house in order to speak to Brittany. During that call she argued with Mrs Ross about some clothes that had been obtained by purchase through the "lay by" system. A fairly petty, but obviously heated argument developed, in the course of which Ms Morgan said that she would take Brittany home. She then spoke to the child, who became upset about the possibility that she would not be able go to a concert on the following day and whose visit to her father had been cut short. However, Ms Morgan explained that Brittany would be returned in time to go to the concert with the other family members.

34. The applicant then spoke to Ms Morgan on the telephone. He told her that Brittany was crying. Ms Morgan responded that she was not going to permit the child to remain at the house and hear members of his family refer to her in a disparaging fashion. She said that she would come and collect the child but would return her on the following day in time to attend the concert. The applicant responded, "All right, come and get her". Sensing that his tone was threatening, Ms Morgan requested a male friend, Brent Crellin, to go with her. He agreed and they then travelled in Ms Morgan's car to the house of the applicant's mother, arriving at approximately 7.15 p.m. It would appear to be beyond dispute that the applicant was outraged by what he regarded as her quite unreasonable behaviour, which, it must be remembered, was occurring against a background of a long period of hostility between the parties.

37. It was in the period of approximately 20 minutes which elapsed between the telephone call made by Ms Morgan and her arrival at the house that the applicant consumed tablets of Serapax and Temazepam. It would seem to be likely that his resort to these substances reflected both his addiction to drugs and the level of stress that he was experiencing. When she arrived, Ms Morgan parked in the front parking area of the premises and sounded her car horn. On receiving no response, she left the car and went towards the front entrance, passing up some stairs. As she approached the top of the stairs, she heard the click of a gate situated on a landing behind her. She turned and saw the applicant standing at that gate holding an axe in his hand. He rushed at her shouting, "I'm going to fuckin' kill you this time. I'm going to fuckin' kill you." He struck her on the top of the head with the blade of the axe and she started bleeding. He then proceeded to punch and kick her while she tried to escape. He hit her several times with the axe handle as he held her in a headlock. She managed to break free and ran down the stairs. The applicant pursued her and caught her by her arm when she was in the driveway area and he continued to hit her. She broke free again and ran to the house of a neighbour opposite where she fell to the ground.

40. The applicant walked towards Ms Morgan and re-commenced his assault, hitting her on the head as she crouched down on the driveway. She begged him to stop and grabbed hold of the axe but he refused to let it go. The applicant's mother and Mr Crellin followed, shouting at him to stop. He did not do so, and stabbed Ms Morgan in the right side of her chest with a knife that he had upon him. This caused a deep wound that punctured her lung. Neighbours, whose attention had been attracted by the sounds of screaming and shouting involved, observed the applicant standing whilst Ms Morgan lay on the ground, effectively at his feet. Mrs Ross attempted to pull him away but the applicant remained completely focused on his victim and oblivious to entreaties and demands that he desist. He later told the police that he had "lost it". There would seem to be little reason to doubt that this was the case and I think that it is highly likely that he was affected to some degree by the tablets that he had consumed. One of the neighbours stated that he heard the applicant shout, "But the bitch is still alive". Ms Morgan was taken into a neighbour's home and possession was taken of the axe. At this stage, Ms Morgan was bleeding heavily from a wound in the vicinity of her right breast.

43. The applicant went to her car, in which the keys had been left, and drove away. This action provided the basis for count 2. At about 7.30 p.m. he went to a Mobil service station in Settlement Road, Thomastown, where he placed about $20-worth of petrol into the vehicle and left without paying. This action constituted the basis of count 3.

46. In the meantime, Ms Morgan had been taken to hospital. Her injuries included a five centimetre wound to the top of the head, bruising and tenderness to the face, a four centimetre wound to her right breast which pierced the lung cavity and caused a pneumothorax, another wound to the right lateral chest wall, bruising to the abdomen and extensive bruising to her back and arms. She suffered scratches to both arms and bruising to both legs.

49. Police officers who attended the scene included a Sergeant Geer, who spoke to the applicant on Ms Morgan's mobile telephone that was still in her car when the applicant drove it away. He stated that the applicant appeared to be highly agitated and upset and cried uncontrollably. In due course, at about 11.55 p.m. on that night, the applicant, by arrangement, attended at the Greensborough police station where he was arrested and placed in an interview room. He told the police that he was at that time affected by heroin. The evidence indicated that he had taken this heroin after leaving the scene of the attack. The interview was accordingly suspended until the following morning, at which time the applicant stated that he did not wish to discuss the matter further.

53. Turning to the applicant's circumstances, he was, as I have indicated, at the time of the commission of the offence 34 years of age. He was one of four children. His parents are alive, although separated and, as the sentencing judge accepted, he has continuing strong family support. He had attended Greenwood High School in Victoria until the age of 16 when he left during Year 11. He then worked in several jobs before securing employment as a bricklayer's labourer. After some years of different types of heavy physical activity, he has basically worked as a bricklayer. He appears to have developed a reputation as a conscientious and trustworthy employee. He suffers from no discernible mental disorder and is of normal intelligence, according to Dr Walton, who examined him following the offence. A similar view of his intellectual capacity was formed by the forensic psychologist, Mr Ian Joblin, whose report was also provided to the sentencing judge. Mr Joblin expressed a further opinion that -

"The combination of factors that led to the offending is most unlikely to recur particularly if he remains drug-free and continues to demonstrate the insight and intelligence he displayed at the time of interview."

57. In his submissions before us with respect to the sentence to be imposed, Mr Tehan has drawn our attention to a number of relevant considerations. They include evidence that at the time of the commission of the offence the applicant was in a particularly vulnerable state related to both a drug addiction to which I have adverted, and to which he had been subject for a period of five years, and the emotionally charged situation that existed at the time. The evidence indicated that the applicant had made serious endeavours to desist from drug abuse and for varying periods had managed to do so. However, he had, in the previous May, relapsed into heroin use and in August undertook a home-based detoxification program. Additionally, the applicant was, as I have indicated, on any view of the matter, in a highly distressed and agitated state at the time of the offence. Perceiving that his former partner was behaving in a quite unreasonable fashion, he had, in large measure, lost control of himself. There is, in my opinion, much force in this contention advanced by his counsel, particularly when regard is had to the evidence of the ingestion and disinhibiting effect of the Serapax and Temazepam tablets taken shortly prior to the occurrence of the offence. It was unfortunate, but perhaps not entirely surprising, that the applicant, a person suffering from a drug addiction, resorted to the use of such materials when under extreme stress. Nevertheless, as this Court has made clear more than once, only limited regard can be had to the effect of drug ingestion in the sentencing process. The background of tension and conflict against which the offences were committed was relevant, the submission continued, to the assessment of the degree of culpability of the applicant in the circumstances, which should be regarded as less than would otherwise be the case.

60. Next, it was emphasised that, although the victim had suffered psychological damage, fortunately she had made a substantial physical recovery from the injuries sustained. With respect to this submission, I should point out that the sentencing judge made the finding that Ms Morgan had suffered and continued to suffer considerably as a consequence of the applicant's action. That consideration must also be taken into account.

63. The applicant, it was said, had pleaded guilty to the offences and had indicated his preparedness to do so at an early stage. He evidenced this, Mr Tehan argued, by surrendering himself to the police on the night of the offences.

66. Further, as earlier indicated, there was evidence that, in spite of his problems with drugs, the applicant had managed to retain regular and good employment for a lengthy period prior to the commission of the offences.

69. It was apparent, Mr Tehan submitted, that the applicant had a close and loving relationship with his young daughter that had now been lost. This in itself constituted a significant penalty, it was submitted.

72. Since the commission of the offences, the applicant can be seen to have made significant endeavours to rehabilitate himself, particularly in relation to his drug addiction, it was said. In this context, attention was drawn to the evidence of Detective Adrian Sinclair and the various reports that were tendered in the course of the plea. Although it was apparent that the applicant had a significant criminal history, his involvement with the law was related essentially to the abuse of drink and drugs from an early age. His prospects for successful rehabilitation, it was pointed out, were regarded as reasonable by the sentencing judge and, it was contended, should be so viewed by this Court.

75. In my view, as I have indicated, each of the matters to which reference has been made must, of course, be taken into account in the determination of an appropriate sentence in this case.

78. On the other hand, it cannot be forgotten that the applicant, armed with an axe and a knife, lay in wait for Ms Morgan with the intention of attacking her when she arrived to collect the young child. He may well have felt an understandable sense of anger at the conduct of his former partner. Be that as it may, however upset he may have been, his response was extraordinarily violent. When she approached the entrance of the house the applicant came up to her from behind and rushed at her, striking her on the head with the axe. Altogether, he attached her on three separate occasions, calling out, when he was finally pulled away from her, "But the bitch is still alive".

81. It is of considerable significance that the applicant acted with premeditation and determination.

84. Whilst there is evidence that indicates that the applicant regrets, and probably deeply regrets, his actions, particularly in view of the effective severance of his relationship with his young daughter and the impact upon his own family, there is little to suggest that he experienced any significant degree of remorse for his actions. That factor cannot be seen to operate to any significant extent in his favour in the

88. Giving full weight to the factors that operate in mitigation of penalty, it is evident that the proper exercise of sentencing discretion requires the imposition of a substantial sentence of imprisonment. As the judge in the court below pointed out, principles of both general and specific deterrence assume significance as sentencing considerations in the present context. Specifically, I endorse his statement that:

"There is ... the need to discourage others in the community from contemplating or engaging in violence in general and especially as a means of dealing with tensions concerning children."

92. In all of the circumstances, then, I propose that this application should be disposed of as follows - that the application for leave to appeal be granted, the appeal allowed, and that the sentence imposed in the court below be set aside. I propose that in lieu thereof a sentence of imprisonment for a period of five years be substituted and in respect of which a non-parole period of three years should be fixed. I would also vary by reduction the period during which the applicant is disqualified from obtaining a further driving licence from five years to three years.

95. These orders would have no impact on the sentences imposed on the other counts that were not the subject of the application.

107. The order of the Court is that the application for leave to appeal against sentence is granted. The appeal is treated as instituted and heard instanter and is

allowed. The sentence imposed on count 1 is set aside. In lieu thereof the applicant is sentenced on that count to five years' imprisonment. The sentences on counts 2 and 3 are confirmed, leading to a total effective sentence of five years' imprisonment.

The Court declares that 316 days be reckoned as the period of imprisonment previously served up to today's date under the sentence and directs that it be noted in the records of the court that this declaration was made and its details.

In lieu of the order for cancellation of the applicant's licence to drive a motor vehicle the Court orders that any licence to drive a motor vehicle held by him be cancelled and that he be disqualified from obtaining any such licence for three years from 8 March 2001.