The applicant is now 39. He has a good work record and no previous convictions. On the hearing of the plea much was made, and on the hearing of this application something was sought to be made, of the background, or suggested background, to the offences, a matter also explored at the committal, and something must now be said about this. The applicant is married and there are apparently four children of the marriage. He has been separated from his wife for ten years now; she has for some years lived in Echuca. One of the children of the marriage, Kylie, was born in 1980. In the middle of 1996 Kylie, discontented with life in Echuca, came to live with her father and his de facto wife. Soon she had a boyfriend, Scott Berry, whom she had met at school. A few months after coming to live with her father, that is, in November 1996, she left her father's home and went to live at the home of Scott's father, Stephen Berry, where she remained until June 1997. She then moved out, evidently because her relationship with Scott was at an end. By this time she was estranged from her father and when she left the Berry home she did not return to her father's home. This move took place about six months before the offences were committed. The father had no contact with his daughter between the time when she left the Berry home and the commission of the offences.
[2]
As mentioned earlier, part of the material put before the judge on the plea was a report from Mr Joblin. In quite a lengthy report he expressed the opinion that the applicant "visited the house on that night and demonstrated his anger" because of "the concern which he felt for Kylie". In particular he described as the "catalyst" the applicant's "belief that Kylie had been invited to have sexual relationships with Mr Stephen Berry". But, as the judge pointed out, the great difficulty about Mr Joblin's report is that he proceeds, by clear implication, on the basis that Kylie was, at the time her father invaded the Berry home, still living there. In fact she had moved out six months before, according to the evidence given at the committal by Stephen Berry in assenting to a leading question put to him in cross-examination. Moreover, Mr Joblin was not aware of the fact that, after Kylie left the Berry home (something which became known to the applicant within about a month of her leaving), he did not know where she was living and did not make any attempt to have a reconciliation with his daughter.
[3]
At no stage did the applicant offer any explanation of his offending behaviour to the police. That was, of course, a consequence of his professed inability to remember anything. As regards his behaviour on the night of the offences, the explanation which he gave to Stephen Berry was that Stephen had "shit canned" him at school. He gave no evidence on the plea of the motivation which underlay the offences. The judge took the view that both the applicant's brother and his de facto wife were exaggerating in the evidence which they gave on the plea of the applicant's concern for his daughter. His Honour found it unnecessary to determine the precise circumstances in which Kylie had left the applicant's own home. His Honour expressed himself as satisfied beyond reasonable doubt that the applicant had decided to seek revenge on or punish Stephen Berry for what he perceived to be "his wrongful activities concerning Kylie". So far as the actual facts are concerned, as opposed to the applicant's perception of them, I should mention that not only was there no evidence that Stephen Berry had ever had any kind of sexual relationship, however brief, with Kylie, or even made advances to her, but no suggestion was put to him of this in his cross-examination at the committal. All there is is an allegation evidently made by the applicant to the psychologist that Stephen Berry had invited her to have a sexual relationship with him. The applicant did not establish, and did not even set out to establish, either at the committal or on the plea, that there had been any actual or attempted sexual misconduct on Stephen Berry's part.
[4]
Mr Tehan in the end placed little reliance on his initial suggestion that the applicant was motivated by a desire to protect his daughter from Stephen Berry. He relied on ten matters in support of his contention of manifest excess:
[5]
(1) The absence of prior convictions in a man who had reached 37 by the time of the offences.
[6]
(3) The evidence of what Mr Tehan described as "good works", the applicant's tending his diabetic mother, who had become a double amputee.
[7]
(4) The good work history of the applicant and his being a good provider for his family.
[8]
(5) The family situation, there being a child of the relationship and a stable relationship for some ten years.
[9]
(6) The absence of evidence of aggression in the past or of any problem with liquor in the past. I shall say something in a moment about the latter suggestion.
[10]
(7) The applicant's appreciation of the seriousness of what he had done. As to this, I agree with the view expressed by the judge that there is no suggestion in the present case of remorse and that there is conduct indicative of an absence of remorse.
[11]
(8) The improbability of the applicant's offending again. I shall say something about this matter in a moment.
[12]
(9) The relative gravity of the offending, the offences being, it was said, a good deal less serious than a number of others which have come before the courts.
[13]
The judge thought that not only just punishment and general deterrence but also specific deterrence were important considerations, the applicant having, as he said, taken the law into his own hands. As to this it should be noted that Mr Joblin's own prognosis was somewhat guarded, his report including these statements:
[14]
"I would be surprised if this man had further dealings with the police. It is important, however, that he maintains a somewhat circumspect attitude to alcohol and that the deterrent value from his dealings with the criminal justice system remain operative for him."
[15]
In his record of interview the applicant said things suggesting that the quantity of alcohol he had drunk on the night in question was not by his standards unusually large, in that he drank that amount two or three times a week.
[16]
I do not think any of the individual sentences here or the total effective sentence or the non-parole period can be regarded as manifestly excessive, notwithstanding the applicant's previous good character, his plea and the other matters relied on by Mr Tehan. Some might regard the sentence as stern, but I do not think it can be said to fall outside the permissible range. There was a terrifying nocturnal invasion of a home by a man armed with a very dangerous weapon.
[17]
I agree. There was no doubt an explanation that could have been given for the applicant's deplorable behaviour that gave rise to these offences. It may be that the explanation could have demonstrated some extenuation of the applicant's conduct. It may even be that the explanation, being properly investigated, could have elicited some understanding of, if not sympathy for, the impugned conduct. It is notable, indeed remarkable to my mind, that no acceptable evidence of any such explanation was ever given. As Brooking, J.A. has pointed out, none was given to the police. Upon the plea reliance was placed before the judge on what were, at best, second and third-hand statements made known to the court through a psychologist's report (the psychologist himself not having been called) and the applicant's twin brother and his de facto spouse. The judge was evidently moved by the oblique nature of this material and its concomitant uncertainty and unreliability, for his Honour noted that the applicant was not called to give evidence about matters in issue which were well within his personal knowledge. The fact is that such explanation as might have been given was withheld. In the circumstances it seems to me that several of the matters which were relied on this morning by Mr Tehan simply did not have a factual basis to support them.
[18]
I also agree that the application should fail, for the reasons given by the learned presiding judge.