R v Saunders [2000] VSCA 58

Court of Appeal (Vic)|2000-04-04|Before: WINNEKE, P., CHARLES and CALLAWAY, JJ.A.

The applicant, who is now aged 22, pleaded guilty in the County Court at Wangaratta to one count of aggravated burglary, one count of robbery and one count of intentionally causing serious injury. The maximum custodial penalties for those offences are 25 years, 15 years and 20 years' imprisonment respectively. He admitted ten previous convictions, and ten other offences that had been found proven but disposed of without conviction, from nine court appearances in Victoria and Queensland between September 1990 and July 1998. They included numerous offences of dishonesty and several offences of violence, including one of causing injury intentionally or recklessly and another of recklessly causing serious injury.

After hearing a plea for leniency on his behalf, the learned judge sentenced the applicant on count 1 to three years' imprisonment, on count 2 to four years' imprisonment and on count 3 to eight years' imprisonment. Her Honour said, and the back of the presentment records, that one year of the sentence on count 1 and two years of the sentence on count 2 were to be "cumulative with count 3", but her specification of a total effective sentence of 11 years' imprisonment shows that they were also intended to be cumulative upon each other. (There is no copy of a quadruplicate in the Appeal Book.) A non-parole period of eight years was fixed and a declaration made regarding pre-sentence detention.

The applicant originally applied for leave to appeal against sentence on the sole ground that the sentence was manifestly excessive, but three further grounds have been added by leave of the Registrar. They are, and I paraphrase, that the learned sentencing judge failed to give appropriate weight to the applicant's youth, that her Honour failed to give appropriate weight to the principle of totality and that her Honour failed to take into account the stage of the proceedings at which the applicant entered a plea of guilty and the consequences of that early plea.

Before turning to counsel's submissions I shall say something of the circumstances of the offences. In the early hours of 14th August 1998 the applicant entered the home of Mrs Matilda McKibbin by forcing the back door. Mrs McKibbin was 85 and living alone. The form of aggravation charged under s.77 of the Crimes Act 1958 was that a person was present in the building and that the applicant either knew or was reckless to that fact.

He entered Mrs McKibbin's bedroom, placed a hand over her face and demanded money. He punched her in the face when she cried for help. After finding a little money in her purse, he asked for the keys to her cash box. When she said that she did not know where they were, he abused her and punched her in the face again. The victim appears to have lost consciousness and the applicant claims to have no recollection of the events, but her Honour was entitled to be satisfied to the requisite standard that the applicant beat Mrs McKibbin about the head and that she was dragged from the bedroom to the sitting-room and kitchen. She was unable to walk without a walking frame, which was found in the bedroom, and blood was found in the sitting-room and kitchen.

The applicant ransacked the house and eventually took approximately $600 in cash. He then returned to the house where he was living with his girlfriend and their two-month old daughter.

Mrs McKibbin sustained very serious injuries. She was in a critical condition for a time, suffering a cardiac arrest whilst in hospital. A tube had to be inserted in her throat because of difficulties she was experiencing in breathing. Later there was surgical insertion of plates and screws in her face because of bone fractures. She also suffered a fracture of her right wrist and ongoing facial palsy and visual disturbance.

At one stage Mrs McKibbin's family were consulted by doctors at the Wangaratta District Base Hospital as to whether they should disconnect the life-support systems. That course was not followed and the victim, who previously led a happy and independent life, is now confined to a nursing home with permanent injuries to her face and throat, loss of ability to speak properly, loss of sensation, inability to eat hard food, poorer eye-sight, concentration and memory and the need for help in showering and attending to basic daily needs. The gravity of the offences speaks for itself.

As counsel's submissions necessarily focussed on the circumstances of the offender, I shall say something also of his background. He was raised in Shepparton, the child of a Maori father and an Aboriginal mother. He has never known his father but has enjoyed a good relationship with his mother in spite of her previous history of alcohol abuse. He himself was introduced to alcohol at the age of 16. His consumption increased over the next year or two until he was engaging in regular binges with black-outs and intermittent symptoms of delirium tremens. Dr Lester Walton, whose report was in evidence below, described him as not only alcohol-dependent but physically addicted to alcohol.

On the day preceding the offences he had consumed a dozen cans of Victoria Bitter while he was fishing. He returned to his girlfriend's house at about five or six o'clock and drank at least another half dozen cans. He had also ingested prescribed drugs of a kind that he did not ordinarily take. At about 1 a.m. he left the house to buy cigarettes. As he had recently collected his dole cheque and had about $70, there was no immediate motive for the robbery. The offences appear to have been committed out of a combination of greed and pent up violence arising from long-standing emotional difficulties, exacerbated by recent tension with his girlfriend and her mother. A depressive disorder has been diagnosed. As I read the evidence, it had its genesis in his unemployment and family problems and was aggravated by the aftermath of the offences.

Mr Dann's submissions may be grouped under three main headings, namely the applicant's youth and related factors, his plea of guilty and remorse and the questions that were said to be raised by ground 3, the ground touching totality. I do not overlook that it is said that the sentence is manifestly excessive, but most, if not all, of the factors bearing on that contention were mentioned in the course of exploring the three topics that I have identified.

The applicant was 21 at the time of the offences and 22 at the time of sentence. Counsel, understandably, relied on the authorities relating to the sentencing of youthful offenders and, in particular, on the statement of general principles and discussion in the judgment of Batt, J.A. in R. v. Mills [1998] 4 V.R. 235 at 241 to 242. In the case of a youthful offender, it is well-established that rehabilitation is usually more important than general deterrence. That proposition is not automatically excluded in the case of a crime of violence or by violent antecedents, but the word "usually" is not to be overlooked.

Mr Dann also reminded us that the applicant had not previously been incarcerated. This is not a case where imprisonment can be avoided, but counsel submitted that a shorter period of imprisonment may still be justified having regard to the applicant's age and prospects of reformation.

There is evidence both of rehabilitation achieved and rehabilitation in prospect. Mr Joblin spoke of the applicant as a young man of good intellect and good insight and reported that, since being taken into custody in September 1998, his case had changed dramatically. Mr Joblin went so far as to say that the applicant had "reversed his life". He was not using drugs or drinking alcohol in prison. He was involved in sporting activities and gardening and also in helping other Aboriginal prisoners who were distressed or potentially suicidal. He has also participated in a large number of programs conducted at Port Phillip Prison by Moreland Hall. They are programs concerned with drug and alcohol awareness and have included extensive one-to-one counselling.

Her Honour accepted the applicant's positive prospects of rehabilitation, but Mr Dann submitted that the sentences imposed and the total effective sentence revealed that insufficient weight had been given to youth and reformation.

By way of background to counsel's submissions on the plea of guilty, I mention that the applicant did not come forward of his own volition. He was arrested as a result of a police investigation based in part on footprints that he had left and his cigarette lighter, which was found in the victim's bedroom. Thereafter he made admissions in his record of interview but, as I have said, claimed to have little recollection. He pleaded guilty, or intimated his intention to do so, at a sufficiently early stage to spare Mrs McKibbin the ordeal of giving evidence: not only to spare her, but other witnesses such as the relative who found her at half past eleven on the morning following the attack.

The learned judge said that the applicant's plea of guilty was a matter on which counsel on the plea particularly relied. There is little evidence of that in the transcript. It is clear, however, and Mr Dann properly conceded, that her Honour would have known that there had been no contested committal and that there would be no trial. She would have had present to her mind the authorities explaining the significance of an early plea of guilty, of which I refer only to the decision of the High Court in Siganto v. R. [1998] HCA 74; (1998) 194 C.L.R. 656, especially, but not only, at [22]. Both consequences of an early plea of guilty were present in this case. I have already mentioned one of them. Another is the plea as evidencing remorse. Mr Joblin and Dr Walton also spoke of the applicant's remorse. It is apparent from the record of interview. It was accepted by her Honour.

There were two distinct branches of the argument counsel sought to advance under the rubric of totality. The first was a submission that the individual sentences violated the principle explained in Pearce v. R. (1998) 194 C.L.R. 610. Strictly speaking, that argument was not available to the applicant under ground 3 or any other ground. Totality is not concerned with double punishment. A successful argument founded on Pearce's case implies that at least one of the individual sentences should be reduced, irrespective of cumulation and concurrency. Be that as it may, it was contended that there was double punishment in the sentences imposed, especially those imposed on counts 2 and 3.

In my view, the applicant was not punished more than once for the same act or acts. Each sentence that was imposed reflects elements distinct from those comprised in the others. As the Director said, this case involved three distinct heads of criminality. The aggravated burglary involved the entering of a private dwelling by night with an intent to steal at a time when the applicant either knew of, or was reckless to, the presence of an occupant. The robbery involved the use of force to demand money from the victim from her handbag and her cash box. It was cruel and frightening and it took the burglary beyond a simple theft. The intentionally causing serious injury went well beyond the ambit of the other two offences. It was a vicious and sustained attack on a frail and vulnerable person and has ruined her enjoyment of life.

The second branch of the argument related to totality proper. There is a sense in which these offences involved a single criminal episode, but it is also true, to adopt well-worn language, that they involved at the very least two separate invasions, not only of Mrs McKibbin's rights, but of the community's right to peace and order: see, for example, R. v. O'Rourke [1997] 1 V.R. 246 and R. v. Mantini [1998] 3 V.R. 340.

Counsel did not dispute those propositions but submitted that, in addition to what he said was the excessive length of the individual sentences, the total effective sentence was outside the range and could properly be described as crushing. (I interpolate that a short sentence that on no view is crushing may infringe the principle of totality. Per contra, there are cases where a crushing sentence is unavoidable and betokens no error, as in the case of a brutal murder committed by a man in his sixties with few circumstances of mitigation or offences where the appropriate disposition is life imprisonment without parole.) In the present case Mr Dann asked the Court to beware of a sentence which destroys hope and, in the case of a youthful offender, prevents the rehabilitation which is in his and the community's interest.

In support of the more general submission that the sentence was manifestly excessive, counsel reminded us of the mitigating factors that had been urged on the plea. I have mentioned them all in one context or another in what I have said thus far.

I have also mentioned one of the submissions made by the Director. He emphasised the objective gravity of the offences. The photographs show the terrible injuries sustained by the victim, as well as the bloodstains to which I have referred and the disarray of her bedroom, indicative of a purposive ransacking. The Director conceded that the Court must be concerned with the applicant's youth and prospects of reformation but submitted that her Honour had given due weight to those matters, especially when it is recalled that it is not only the intentionally causing serious injury which is a grave example of the offence. All the relevant custodial penalties were increased by Parliament in 1997 and particular attention was directed by the legislature to the form of aggravated burglary to which the applicant pleaded guilty.

The Director acknowledged, and I agree, that the learned judge was confronted with a peculiarly difficult sentencing task. Different factors pointed strongly in opposite directions. As her Honour said in the course of her sentencing remarks, "There is a need for this Court to confirm that such offenders will receive condign punishment to ensure the safety of other innocent members of the community and to reflect the community's abhorrence at these offences. The elderly must feel safe and protected in their own homes, particularly those who live alone, and general deterrence is a significant aspect of this sentence." So, too, are the consequences of the offence the subject of count 3 for the victim and so, too, is denunciation.

The applicant is, nevertheless, a young man who has not previously received a custodial sentence of any kind. He does not come before us as a first offender, but he has demonstrated not passing but deep remorse and made not casual but serious efforts towards rehabilitation. There is reason to think that he may yet become a useful member of society. A sentence destructive of those prospects should be avoided, but only to the extent that that is possible having regard to the gravity of the offences and all the sentencing objectives that must be served.

The only ground that I would uphold is ground 3 and only to the extent of setting aside the second direction for cumulation. If the other members of the Court concur in that disposition, the total effective sentence would be nine years' imprisonment.

It has often been said that the fixing of a non-parole period requires discrete consideration. It has also been said, and it is perhaps worth repeating, that it is not to be fixed unthinkingly by some such method as taking two years or one-third or one-quarter off the head sentence. Just as there may be factors pointing in opposite directions in deciding on an appropriate head sentence, so, too, such factors may impinge on an appropriate non-parole period. The applicant's youth and the question of reformation are no less relevant at that stage of the sentencing process, but the non-parole period cannot be so short as to undermine the punitive and denunciatory purposes that the sentence is designed to serve.

In the circumstances of the present case, I would fix a non-parole period of six years.

For the reasons which have been given by Callaway, J.A., I agree that this application should be allowed, only to interfere with and remove the period of cumulation ordered by the sentencing judge in respect of two years of the sentence imposed on count 2 upon the sentence imposed upon count 3. I therefore agree with his Honour that the appropriate result of this application should be that the total effective sentence to be served by the applicant is one of nine years and I agree with Callaway, J.A. that the appropriate minimum term to be served is one of six years before he becomes eligible for parole.

The formal order of the Court will be that the application for leave to appeal against sentence is allowed. The appeal is treated as having been instituted and heard instanter and it too is allowed. The individual sentences imposed by the sentencing judge on counts 1, 2 and 3 on the presentment of three years' imprisonment, four years' imprisonment and eight years' imprisonment respectively will remain undisturbed, but the orders for cumulation made by her Honour and thus the head sentence and minimum terms fixed by her Honour will be set aside. In lieu thereof, we will direct that one year of the sentence on count 1 is to be served cumulatively upon the sentence imposed upon count 3.

The total effective sentence is therefore one of nine years' imprisonment. We order that the applicant serve a minimum term of six years' imprisonment before becoming eligible for parole.

We declare that a period of 581 days is to be reckoned as time served pursuant to the sentence. We direct that the terms of that declaration and the fact that it has been made be entered in the records of the Court.

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