6 I shall first refer to the circumstances of the 24 offences and then to the evidence in support of ground 9. At about 6.45 a.m. on Tuesday 8th May 2001 the appellant drove his car to 9 Griffin Crescent, Port Melbourne. Present at that address were John and Pamela Snowden, their children, Simone and Joel, and Simone's 21 month-old son, Nicholas. Simone Snowden is the appellant's ex defacto partner. Nicholas is the appellant's son. The appellant knocked on the door and spoke to John Snowden. He asked whether Simone was awake as he wanted to take Nicholas for a walk. Mr Snowden went upstairs to see whether Simone was awake. The appellant became agitated and started yelling, "I want my fucking son. Get me my fucking son." Mr Snowden returned to the front door and asked the appellant to leave. He then attempted to show him off the property, but the appellant turned around and said, "That's it. You're gone." The appellant then punched Mr Snowden to the head several times and wrestled him to the ground, before kicking him in the left leg and lower back region, causing bruising (count 1). Mrs Snowden came to her husband's aid and struck the appellant with a baseball bat allowing Mr Snowden to get up off the ground.
7 Simone Snowden then tried to escort the appellant off the premises, but he turned on her and kicked her in the groin (charge 8). The appellant walked across the road to his car, and reached in and took out a black extendable baton. He flicked it open and used it to strike her to the shoulder area several times, causing bruising and welt marks (charge 6). He threatened to return, saying, "You're all gone. I'll be back in the middle of the night." The appellant then got into his car and drove off. Police were called and arrived after the appellant had left the scene. On Wednesday 30th May 2001 he attended the South Melbourne police station and was interviewed in relation to the assaults on John and Simone Snowden. He denied the offences.
8 At around 9.00 p.m. on Tuesday 25th December 2001 the appellant again went to 9 Griffin Crescent. By doing so he was in breach of an intervention order Simone Snowden had taken out on 6th December 2001 (charge 7). She was still living at that address with her parents and brother and the appellant's son. Joel Snowden heard knocking at the front door and saw through the peep hole that the appellant was outside. The appellant smashed a porch light and called out for Simone. Joel opened the front door and spoke to him through the security door. The appellant asked where Simone was and, when Joel said he did not know, the appellant punched the door. He then ran across the road to number 22 Griffin Crescent and climbed a fence into number 24, where Simone's grandparents lived and the family were having Christmas dinner. Joel telephoned his mother at number 24 to warn them.
9 When the appellant knocked at the front door of number 24, it was opened by Michael Snowden, Simone's uncle. The appellant started to push his way in but Simone walked up and asked him what he wanted. The appellant said, "To fucking talk." When Michael Snowden told him not to be abusive, the appellant punched him on the nose. Simone's sister, Julie, then intervened and the appellant told her to get out of the way or he would knock her face. When Scott Fountain, Julie's partner, grabbed hold of the appellant, the appellant said to him, "I know where you live. I'm going to come around and kill you. I've got a gun. I'll shoot you." (count 3).
10 By this time others had come to assist and the appellant was pushed back outside. He pulled a rose bush attached to a garden stake out of the ground and swung it at those around him. Michael Snowden suffered cuts to the face and later had five stitches to his forehead (count 2). Scott Fountain received bruising and pain to his left shoulder (charge 3).
11 The appellant was wrestled to the ground and held until police arrived. He was then taken to St Kilda police station, where he was interviewed. During the interview he admitted that he had attended the two addresses but said that he had been told by Simone that she had revoked the intervention order on the previous Friday. He also denied assaulting anyone, stating that he had knocked on the door and been punched in the head by the person who answered the door. He said he had then been dragged outside and punched and kicked to the head. He denied using the garden stake. He also denied threatening to kill anyone.
12 On Saturday 27th April 2002 the appellant drove with associates Ance Trajkovska, Nigel Wiseman and Colleen Kertland from North Melbourne to an address in Ringwood. Their purpose was to recover a firearm the appellant had previously left with Mr Wiseman, but which had been given to an associate of his called Jesse Baguley. Mr Wiseman also wanted to retrieve some other items of his own. The group arrived at around 7.00 p.m. and Mr Wiseman knocked on the front door. The door was opened by Mr Baguley's defacto partner, Ciel Huntley. The appellant pushed past her and went into the lounge room, where Mr Baguley was seated. The appellant said to him, "Where's my shotty? You fucked with the wrong guy." As he said that, the appellant lifted his top to reveal a firearm secreted in the belt line of his pants. Mr Baguley fetched the sawn-off shotgun from a cupboard and handed it to the appellant (count 7), together with a green army style bag containing ammunition. The appellant then picked up a television from a table in the lounge and told Mr Wiseman to take it out to the car (count 4). The television was the property of the Ministry of Housing.
13 The appellant next approached Ms Huntley, who was holding her one-year-old child. He touched the child's face. She told him not to touch the child. The appellant then lifted his shirt, exposing the handgun to Ms Huntley, and said, "Don't touch me or I'll shoot your kids." When she protested the appellant said, " Shut the fuck up or I'll put a bullet in your head." He then turned to Mr Baguley and said, "Listen man, I've got two kids and I'll put a bullet in both of yours right now." (count 6). The appellant said repeatedly, "Shut the door because what's going to happen in here isn't going to be pretty." Ms Huntley was concerned that the threats would be carried out, so she went out to the back yard with the two children. The appellant took a CD player from the kitchen bench (count 5) while Mr Baguley went to the back yard and helped Ms Huntley pass the children over a neighbouring fence.
14 The appellant returned to the car with Mr Wiseman and instructed Ms Trajkovska to drive back to North Melbourne, where they dropped off Mr Wiseman and Ms Kertland. At about 8.30 p.m. Ms Trajkovska drove the appellant to his home in Flemington, where he took the firearm, television and stereo inside. At around 9.15 p.m., the appellant and Ms Trajkovska returned to the car. The appellant was carrying the green bag containing the shotgun and ammunition. Ms Trajkovska drove the car to an address in Williamstown where the appellant used to live. He instructed her to park the car and wait. He then went to the front door of the house and banged on it until the current tenant, Natalie White, answered it. The appellant entered the house armed with the sawn-off shotgun and proceeded to look inside each of the rooms, while asking the whereabouts of an unknown person (count 8). As he searched, he was saying, "Tell me, you know" and "I don't care who you are. I'm going to kill them." When the appellant reached the kitchen area of the house, he picked up a mobile phone from a bench. He removed the SIM card and the battery but kept the phone (count 9). The appellant then left the house and, upon walking out into the street, he discharged the firearm (charge 19). That caused a car alarm opposite the premises to activate and concerned neighbours came outside to investigate. The appellant got into the car and shouted to Ms Trajkovska, "Don't turn your lights on. Just drive, drive quickly."
15 The appellant directed her to drive the car over the Westgate Bridge and into the Port Melbourne area. At approximately 10.00 p.m. they drove into Griffin Crescent. The appellant asked Ms Trajkovska to slow down. As she did so, he raised the sawn-off shotgun from his left side and aimed it out the window. He then discharged the firearm in the direction of the house at 9 Griffin Crescent (charge 25). By attending at that address the appellant was again in breach of the intervention order (charge 22). At the time of the discharging of the firearm, the premises was occupied by Simone Snowden, her parents and her son, Nicholas. By discharging the firearm in the street, the appellant damaged a Volvo sedan owned by Simone Snowden (count 10). The damage was assessed at $1,083.50. Ms Trajkovska then drove the car out of Griffin Crescent, on to Williamstown Road and towards the South Yarra area, where the appellant directed her to park the car in the carpark of 2 Simmons Street. It was now about 11.00 p.m. The appellant got out of the car and, with the shotgun in his possession, entered the Housing Commission block situated at that address. He proceeded to a flat on the seventh floor occupied by associates of the appellant, Abdul Rizki, Lorna Delainie, Melissa Murphy and Stefano Rizki. Abdul Rizki and Ms Delainie were in one of the bedrooms and Ms Murphy was asleep in the second bedroom. Stefano Rizki was out.
16 Upon entering the premises via the unlocked front door, the appellant proceeded to the first bedroom, where Mr Rizki and Ms Delainie were sitting (count 11). He immediately produced the sawn-off shotgun and began to connect the stock to the barrel of the firearm. He removed a shotgun shell from a belt bag he was wearing and began to load the firearm. The appellant then turned and locked the door, which prevented his victims from leaving the bedroom (count 15). As he did so, the appellant began to ask Mr Rizki why he had "caused trouble with his wife" or what he had done to his wife. The appellant's wife, or ex defacto wife (Simone Snowden), was not known to Mr Rizki.
17 The appellant then removed two shotgun shells from the belt bag. He threw one of the shells on to the floor of the bedroom and said to Mr Rizki, "What did you do to my wife? I'm going to clean you up today. You're finished. I've already seen two people today." He kicked over a small table and moved towards Mr Rizki in a threatening manner. With the firearm pointed at the victim and his finger on the trigger, the appellant said "This is it." (count 14). In fear of his life, Mr Rizki grabbed at the firearm in an effort to deflect it. As he struggled with the appellant, the firearm discharged (count 12). The projectile lodged in a wall between the chair that Mr Rizki had been sitting on and a cupboard.
18 In fear of her life Ms Delainie ran to the door, unlocked it and retreated into Ms Murphy's bedroom. Mr Rizki continued to struggle with the appellant. As the struggle progressed, the appellant freed the firearm from Mr Rizki's grip and began to strike him with the butt of the gun. The blows with the firearm struck the back of Mr Rizki's head. He was struck with such ferocity that the butt of the firearm broke off. The victim was forced on to his hands and knees, at which time the appellant struck him with the steel barrel of the shotgun (count 13) and said, "I'm going to finish you." The appellant then hit him with such force that Mr Rizki "saw stars", but he was able to observe the appellant leave the bedroom and the flat and proceed down the access stairs.
19 A short time later the appellant returned to the vehicle, where Ms Trajkovska was waiting. He had retained possession of the barrel of his firearm, but the butt had been left in the bedroom. As he entered the car, the appellant told her to "drive, drive as fast as she could." When she missed a turn, the appellant punched the windscreen of the car in anger, causing it to shatter (count 16). That damage was assessed at approximately $200. Ms Trajkovska drove the appellant to his home, where he told her, "I don't mean you no harm." At about 4.00 p.m. on Sunday 28th April 2002 the appellant telephoned Ms Trajkovska and told her to come over to his house to be compensated for the damage he had caused to her vehicle the night before. Once there, he handed her the mobile phone that he had stolen from the premises in Williamstown. The appellant and Ms Trajkovska then drove to Chapel Street, Prahran, so that the appellant could explain the events of the previous evening. At 6.34 p.m., when he was seen by police getting out of the car in Chapel Street, he was arrested and was formally interviewed. The appellant denied all of the allegations.
20 On Wednesday 22nd May 2002, whilst on remand at the Melbourne Assessment Centre, the appellant wrote a letter addressed to Simone Snowden. In it the appellant asked her to visit him and send photos to him of herself and their child. The letter was received in the mailbox of 9 Griffin Crescent on Thursday 23rd May 2002. The appellant was again in breach of the intervention order by sending the letter (charge 39). Ms Snowden was frightened by the efforts of the appellant to contact her.
21 Ground 9 is supported by three affidavits, two sworn by the appellant's solicitor and the other affirmed by the appellant. The solicitor's affidavits exhibit a report from Dr Eugenie Tuck, Director of Medical Services, St Vincent's Correctional Health Service, dated 25th March 2004, a further report from Dr Tuck dated 26th May 2004 and a report from Associate Professor Richard Stark dated 7th March 2005. They relate to the effects of an assault on the appellant in prison on 21st March 2003, the consequences of which did not become fully known until after he was sentenced.
22 Dr Tuck said that, as a result of the assault, the appellant suffered a laceration of his scalp, which was sutured. He complained of neck pain and an inability to move his neck, although examination revealed little in the way of disability. An x-ray did show a spinal injury, but it was thought to be old. By the time he was sentenced on 10th July 2003 the appellant appeared to have recovered, but the next day he experienced neck pain, arm pain and an inability to lift his shoulders. A CT scan on 5th August 2003 revealed an unstable fracture involving the C5 vertebra. The appellant then underwent a cervical discectomy and cervical fusion. The operation was successful, so that the injury has not resulted in any serious permanent disability, but the appellant continues to suffer neck pain and stiffness.
23 Professor Stark examined the appellant on 7th March 2005. He thought it very likely that the appellant did sustain a fracture to his C5 vertebra as a result of the assault in March 2003. The appellant's situation at the time of examination was that he had an apparently stable and technically satisfactory cervical fusion, but there were a number of ongoing symptoms, including restriction of the range of cervical movement. The appellant also reported ongoing neck pain and headache which, Professor Stark said, were consistent with the history the appellant gave him. The appellant's symptoms were credible, his presentation was very straightforward and there was no suggestion that he was exaggerating or magnifying the effects of his injuries. Professor Stark endeavoured to make a "whole person assessment" in accordance with the American Medical Association Guides. He concluded that it was more likely that the impairment would be 5% than 15% on the limited information that was available to him.
24 The appellant's affidavit is consistent with the foregoing. He adds that he was not aware that he had suffered any lasting injury until August 2003, after he had been sentenced. He does not depose to any specific way in which the residual symptoms impact on service of his sentence.
25 Apart from arguments based on the structure of the sentence[1], Mr Boyce put ground 9 at the forefront of his submissions. He contended that the evidence in support of that ground should be received either as "evidence of events occurring prior to sentence, as to which it has been held by courts of criminal appeal that, even though the new evidence is not fresh evidence, it may be received on appeal in order to avoid a miscarriage of justice".[2] Alternatively, counsel said, it should be received as evidence of subsequent events "showing the true significance of facts which were in existence at the time of sentence".[3] Reference was also made, in the course of argument, to the possible application, directly or by analogy, of cases where imprisonment has, or is very likely to have, a gravely adverse effect on an offender's health.[4] None of those submissions need be considered in the light of the conclusion that I have reached.
26 Where more than one sentence is imposed, it is preferable to cumulate upon the longest sentence.[5] Where there is no base sentence at all, that error reopens the discretion.[6] In other cases, it depends on whether the sentence works arithmetically and, even if it does, whether the structure impugns the judge's instinctive synthesis. In the present case, subject to one exception, I should have thought that his Honour's failure to cumulate upon the sentence imposed on count 11 did not vitiate the sentence. The sentence works arithmetically and is carefully structured, distinguishing between the different episodes of offending but permitting most of the sentences to be served concurrently in order to comply with the principle of totality.
27 The exception is that the structure of the sentence denies any concurrency to the sentence of 12 months' imprisonment imposed on count 1. That would have become immediately apparent had the judge made the sentence imposed on count 11 the base sentence. His Honour might still have directed that six months of the sentence imposed on count 2 and 12 months of each of the sentences imposed on counts 6 and 8 be served cumulatively, but he is unlikely to have directed total cumulation in respect of the sentence imposed on count 1, notwithstanding the two charges (charges 6 and 8) relating to the same incident. Only one month's imprisonment was imposed on each of those charges. A sentence of 12 months' imprisonment on count 1, in effect wholly cumulative, is clearly inappropriate.
28 We must therefore look at the case afresh, but it by no means follows that a different result will ensue. The evidence in support of ground 9 is admissible for that purpose because we should have regard to the facts as they exist now[7], but we need to consider the way in which the evidence is relevant. Is it that the appellant's residual disabilities will be more burdensome in prison or is it that the burden of serving a prison sentence will be greater for a person with those disabilities?
29 As Coldrey, A.J.A. said in R. v. Boyes[8], the seminal statement on the impact of an offender's ill health upon the duration of a prison term was made by King, C.J. in R. v. Smith[9]. That, too, was a case where it became necessary to reconsider the sentence imposed below in the light of fresh knowledge about the appellant's medical condition. In a judgment in which Cox and O'Loughlin, JJ. concurred, his Honour said[10]