R v Virgona [1999] VSCA 213

Court of Appeal (Vic)|1999-12-16|Before: BROOKING, PHILLIPS and BUCHANAN, JJ.A.

The applicant was born on 29 September 1971 and is 28 years old. At the date of the offences he was 26. After a contested committal, the applicant was on 29 June 1998 committed for trial in the County Court. On 28 October 1998 he was arraigned on a presentment containing one count of aggravated burglary (contrary to s.77(1) of the Crimes Act 1958) and one count of recklessly causing serious injury (contrary to s.17). The maximum penalty for the first is 25 years' imprisonment, and for the second 15 years' imprisonment. The applicant pleaded guilty to both counts, admitting 42 prior convictions from 12 Court appearances between August 1989 and 1996. On 13 July 1999, a plea in mitigation was made on his behalf, during which oral evidence was led from one Cindy Tailly (the de facto wife of the applicant), Ms Tailly's mother and the applicant's sister-in-law (his brother's wife). All three gave evidence of an improvement in the applicant's drinking habits and in his family situation, and spoke in particular of the burden now cast upon him in relation to his children because of Ms Tailly's recent illness. On 20 July the applicant was sentenced to be imprisoned for a period of 4 years on count 1 and for a period of 3 years on count 2. No cumulation was ordered and a non-parole period was fixed of 2 years and 9 months. By notice dated 21 July 1999 the applicant now seeks leave to appeal against sentence on grounds substituted by leave of the Registrar on 28 October last.

As for the circumstances of the offending, on 21 January 1998 the applicant lent his car to his aunt, Margaret Woolrich, with whom he regularly kept in contact, sometimes staying at her place. Unfortunately on this occasion Ms Woolrich had had too much to drink and, while driving the car, had an accident, causing it substantial damage. Ms Woolrich was later charged with a drink-driving offence and, because she was affected by alcohol, the damage to the applicant's car was not covered by insurance. It seems on one version that, for the sake of domestic harmony, the applicant may have told Ms Tailly that his aunt had taken the car without his permission.

However that may be, a couple of days after the accident the applicant, in company with Ms Tailly, paid a visit on Ms Woolrich, calling at her home to tell her that the repairs would cost $4,000 and to ask her for the money. She gave the applicant $50 and nothing more. Ms Woolrich subsequently recounted this visit to her boyfriend, one Peter Harper, telling him that she was being "hassled" by the applicant and Cindy Tailly for money for the car. It may be that she also told Harper that she had been only a passenger in the car at the time of the accident.

Wherever the whole truth lay, it seems agreed that some days after the visit of the applicant and Ms Tailly to the Woolrich house, Harper went around to the applicant's home to remonstrate with both the applicant and Tailly about what he saw as their harassing of Ms Woolrich over the damage to the car. Harper spoke to the two of them at their front door and the conversation became heated. According to Harper, Cindy Tailly was actually encouraging the applicant to hit him (Harper) and the two of them were yelling abuse at him as he left. On the other hand, in his record of interview the applicant gave a very different account of the exchange, describing Harper as the verbal aggressor and claiming that, among other things, Harper threatened to kill him (the applicant), his wife and his children.

If the accident occurred as the applicant claimed, one could at least understand it if by this time the applicant was entertaining some sense of grievance at the attitude of his aunt and her boyfriend, Harper. But while that could serve to explain what happened next it could not in any way excuse it. On the night of 13 and 14 February 1998, Ms Woolrich was asleep in her bed when, shortly after midnight, she heard a knock on the front door. Harper was asleep on the couch. Ms Woolrich opened the door (she said) to find the applicant, smelling of alcohol. According to her, the applicant then walked in, saying "Where is he?", meaning Harper. She deposed as follows:-

"Greg started walking into my bedroom, he said `Where is he?' I said, `Who.' I saw Peter who was asleep on the couch and the loungeroom sit up. Greg must have seen him too. All of a sudden I saw a crowbar in Greg's right hand. Greg walked over to Peter. I saw Greg raise the crowbar in the air. Greg said `You.' I couldn't make out what else he said. Greg started to hit Peter in the head with the crowbar. While Peter was sitting on the couch. He had hit Peter so many times I lost count. I was standing in the loungeroom saying `Stop it, don't, stop it Greg, stop it.'"

One Hampson was boarding with Ms Woolrich at the time and he emerged from the back room. Hearing raised voices in the lounge room, he had come discover what was going on. He said that he saw Harper lying on the floor with blood on his head and face; he saw the applicant holding what he thought was a tyre lever and he appeared to be in an uncontrollable rage. According to Hampson, the applicant said: "It's got fuck all to do with you". Ultimately, the applicant left the house through the front door.

At that point an ambulance was called and it soon arrived, as did numerous police. Harper was conveyed to the Box Hill Hospital where he remained until later that day. According to the doctor, Harper suffered a fractured nose, a 1.5 centimetre cut above the left eye, a left periorbital haematoma, and bruising to the area of the left scapula, right side of the back and the left leg. Apparently the police tried to find the applicant that night, but were unsuccessful.

On Sunday 15 February the applicant, finding that the police had called at his home, contacted police and in due course went voluntarily to the Glen Waverley police station where a tape-recorded interview was conducted. Essentially, the interview contained admissions to the police in relation to both the entry on the premises and the assault on Harper, though in the course of the interview the applicant claimed that what he had used in the attack was a stick, not an iron bar. He said that he had found the stick in the front yard of the house as he approached the front door, had carried it inside and had thrown it away into the neighbour's front yard as he left the house. He also denied hitting Harper to the head with the stick, saying he punched and kicked him to the head, but had used the stick only on Harper's body. (When the applicant was later taken by the police to the scene of the crime and the neighbour's front yard was searched, a stick answering the description given by the applicant was located, although he could not confirm that it was the stick that he had used.) In his record of interview the applicant claimed to have been drinking before the offences, celebrating the birth of a relative's baby. He estimated that he had had "about nine or ten beers", of full strength. It was claimed on his behalf during the plea in mitigation that alcohol was the key to the applicant's offending on this occasion - and alcohol certainly figures in his previous convictions.

On this application, five grounds were argued. Ground 1 was that the judge had made certain material findings of fact adverse to the applicant, without sufficient evidence: first, that an iron bar had been the weapon carried by the applicant and used to attack Harper and, secondly, that Harper had not threatened to kill the applicant, his wife and his children.

I deal first with the alleged death threats, which though made some weeks before the assault on Harper were relied upon by applicant's counsel on the plea in mitigation as the catalyst for his offending that night. The applicant made more than one reference in the course of his record of interview to Harper's threatening to kill; for example at questions 47, 48 and 49 this is recorded:-

48 What did he say? He said I was going - `I'll kill you.' He said to me - he said, he goes - as he was - as he was walking away I said - I said, `Next time you come down and do this' - I said - I said - `You won't be standing up.' And as he went he goes, `I'll kill you, mate' I said - he goes, `I'll kill you and your family' - he goes, `I'm your worst nightmare.' 49 Did you threaten him at all? No, I just - that's what I said to him - I said - I said, `Don't come down here and do this again because you won't be walking away.'"

In her evidence on the plea, Ms Tailly, too, mentioned Harper's threats but not in the same context as the applicant. She said:-

"I heard a banging at the door, it sounded like somebody kicking the door. I opened the door. I had all the kids around me because I thought it was one of their friends and this man I had never seen before was ranting and raving at me, saying - swearing and saying `I'm going to kill Greg if he doesn't get out here now', and to leave Margaret alone, and I didn't know who he was, he was kicking the door and carrying on, the kids were crying because they didn't' know what was going on and sort of Greg came out and I was more angry than Greg, he was sort of calm and just told the guy to basically nick off and he sort of said, `I know where you live now. Don't start any trouble because' - you know all that sort of stuff."

It is not clear to me whether this last was a reference to what was said by Harper or by the applicant. The applicant had agreed during his interview that in the course the altercation he too had threatened Harper, albeit by way of response.

The judge dealt with the question of threats quite shortly in his sentencing remarks. He said:-

"In late January, Mr. Harper visited you and your wife at the place where you were then living and asked you to stop `hassling" your aunt. It appears that the discussion became quite heated but did not erupt into violence. You, in your record of interview and your wife in evidence, have alleged that Mr. Harper made threats of death to you, your wife and children on that occasion. I note that when Mr. Harper was cross-examined at the committal hearing on this issue it was put to him that he had threatened you, which he denied, but it was not put to him that he had made death threats against you, your wife and your children. In the circumstances, I accept that he made no such threat."

Mr. Priest who appeared on this application for the applicant submitted that there was no obligation on an accused to put anything at the committal and therefore it was not appropriate for the judge to find that no death threats had been made because (even if it was only one of the reasons) it had not been put to Harper in cross-examination that he had made death threats against the applicant, his wife and his children.

But the point is more apparent than real. It was not put to the judge on the plea, nor could it have been, that such threats, if made, amounted to provocation. Rather, if established, they were relied upon to mitigate the applicant's offending and as such they were for the applicant to establish. The judge expressed himself, in effect, as not satisfied in that regard and certainly it was difficult to be clear about the verbal exchanges that occurred. In the end what was important, more than the actual words that flew, was the bad blood that was engendered between the two men over repairs to the car, when Harper paid his visit to the applicant's house. On that aspect the judge can have been left in no doubt, and I can see no relevant error in the judge's failing to be satisfied with any more particularity about the verbal altercation that plainly took place at that time.

As for the weapon used in the attack on Harper, it was alleged in count 1 on the presentment that when entering the premises the applicant was carrying an iron bar. Mr. Priest contended that this was an inessential particular and as such was not admitted by the plea of guilty; that anyway the parties had proceeded below on that footing, and that the evidence on the plea was not sufficient to justify a finding on the matter beyond reasonable doubt. It was common ground that the nature of the weapon carried by the applicant had been in issue at the committal: indeed, counsel said that on his instructions that had been the reason for having a contest at that stage. But therein lay the difficulty for the applicant, because the three witnesses to the attack - Ms Woolrich, Mr. Harper and Mr. Hampson - all told the police that the weapon was an iron bar (of one sort or another), not a stick, and they confirmed that during cross-examination at the committal hearing. This was the only sworn evidence before the judge and so, despite the applicant's assertions to the contrary in his record of interview and the discovery of a stick in the neighbour's front yard (which, on the witnesses' account, must then have been coincidence), it was surely open to the judge to have been satisfied - and I think satisfied beyond reasonable doubt - that an iron bar had been the weapon in question, as the Crown alleged. There is nothing, then, in ground 1.

Whether or not on account of the witnesses' evidence at the committal, in arguing this ground Mr. Priest submitted that in truth the question of iron bar or stick had been a distraction on the plea; for in the end the precise nature of the weapon was not significant to the offences otherwise admitted. In fact, much the same had been said below by applicant's counsel who, while allowing that the judge would probably make a finding about the weapon, submitted that that finding should make no difference to the sentence. Perhaps for that reason the judge did not make any separate, specific finding about the weapon in his sentencing remarks, but rather dealt generally with the conflict between the different accounts of events on the night in question. Thus, speaking first of the applicant's version (as culled from the record of interview), his Honour mentioned the applicant's arming himself with a stick in case he thought that his aunt had a visitor (which apparently was not an uncommon occurrence) who might have posed a threat to his (the applicant's) safety; that on seeing Harper rising to his feet in the lounge room, and fearing that Harper was going to attack him, he decided to attack Harper first; and that though he punched and kicked him about the head and upper body and beat him around the lower body with a stick, he did not hit him with the stick about the head. (To this his Honour might have added that the applicant claimed to have called on his aunt on the night in question merely to talk to her again about repairs to the car, and without expecting to find Harper there.) With this version of events the judge contrasted the Crown's version which, as he said, "was somewhat different and was borne out by the evidence of Ms Woolrich, Mr. Harper and Mr. Hampson", they telling of the applicant's entry into the house calling for Harper, Harper's being asleep on the couch at the time and of the applicant's proceeding to hit him about the head with an iron bar whilst, having just woken up, he was sitting on the couch and offering no resistance. The judge then said:-

"I am satisfied by your pleas and the evidence of Ms Woolrich, Mr. Harper and Mr. Hampson that the Crown's version of events is to be preferred to that contained in your record of interview and put by your counsel."

Given that the applicant's version of events had some implausible aspects, this conclusion is scarcely surprising.

While also contending that a finding that the applicant had used an iron bar was open on the evidence and to the requisite standard, respondent's counsel (like applicant's counsel) submitted to us that the nature of the weapon was of no particular significance to the sentencing. The respondent then built on this to contend that the judge had not made a specific finding about the iron bar and, further, that if such a finding was made it was not a finding which was shown to have been used adversely to the applicant, in the sense that he had drawn a more severe sentence because of it. I find some difficulty with this contention because, on a reading of the sentencing remarks as a whole, it seems to me that the judge did accept that the applicant had used an iron bar in the attack on Harper. If so, the applicant must have carried the weapon (whether crow bar or tyre lever) from the car (in which he had been driven to the premises by a friend) into the Woolrich house; and such an apparently purposeful entrance is so very different from that described by the applicant - of arriving first and casually picking up a stick from the front yard, just in case he needed it for his own protection - that I cannot but think that the finding about the weapon entered into the sentencing, and to the applicant's disadvantage. Certainly it is not possible to establish the contrary.

Mr. Priest's main submission with respect to the weapon, however, has yet to be mentioned. Having said that in the end the judge's finding, such as it was, was of no particular significance on the plea save as a distraction, he argued (and this was in conjunction with ground 3.2) that the judge's error lay in the use to which he put the contest about the weapon when dealing with the question of the applicant's remorse. On remorse his Honour said this:-

"So far as remorse is concerned, although your character witnesses now say that you regret your offending behaviour, it seems to me that the instructions given to your counsel, both at the committal and before me, in relation to the instrument used in the assault do not persuade me that you should be given any discount for remorse."

It is this passage in particular which persuades me that the judge did reach a concluded view about the weapon used; for his Honour appears to have decided not only that the applicant had disputed the nature of the weapon - as he appeared to do at the committal - but had disputed it without just cause. Mr. Priest submitted that even if it was open to the judge to find that the applicant had used an iron bar (as I have already concluded that it was), it was error to refuse the applicant any discount for remorse merely because he had sought to explore that issue at the committal and had put his version on the plea.

It must be said that at the time of the committal hearing the applicant was facing a charge of intentionally causing serious injury; the lesser charge of recklessly causing serious injury was substituted only later, after negotiations to which the judge referred. The applicant might have seen his dispute over the weapon as part of his challenge to the more serious charge, a challenge in which, it seems, he succeeded. Yet, with that said, to a large extent the judge's comments on remorse follow directly from his rejection of the story about the applicant's picking up a stick in the front yard, casually as it were, and carrying it into the house in case he might need it for self-protection against some stranger. Though apparently intoxicated on the night in question, and "in an uncontrollable rage" according to Mr. Hampson, the applicant did not claim to be unclear in recollecting any weapon at all; he purported to recall collecting a stick from the front garden and later casting it away. Once the judge found that he had carried an iron bar into the house (presumably taken from the car in which he arrived), it followed that in setting up the other version the applicant was refusing to acknowledge his guilt. Counsel emphasised the applicant's admissions about all other aspects of the assault, but then the applicant was scarcely in any position to deny altogether what had occurred: he had entered a house in which he was well-known, woken its occupants and carried out a savage attack on Harper (who knew him) in front of his aunt.

It is not at all uncommon for a sentencing judge to be left in some doubt about remorse; for it involves assessing another's mental state, usually without any direct evidence from the accused, and regret for the resultant predicament must be distinguished from genuine remorse for the crime. In this case the judge was given very little assistance. Of the witnesses called on the plea, the applicant's sister-in-law said: "I'm pretty sure he wishes it didn't happen", while Ms Tailly's mother said that the applicant was "very remorseful. He wished that he had have been more under control, like he is now, because that wouldn't have happened." It is perhaps unfortunate that the applicant himself did not give evidence on the plea when the purpose of his contesting the weapon at the committal hearing might have been explained, and the question of remorse explored directly. In all the circumstances it cannot be said that the judge erred in finding himself unpersuaded of any real remorse on the part of the applicant. That is how his remarks should, I think, be construed and when so construed there is no error.

I turn next to the plea of guilty where again it was submitted there was error below: ground 3.1 Speaking of this factor the judge said:

"Mr. Amad [who appeared for the applicant] has submitted that you should be given credit for an early plea of guilty. Pleas were agreed after committal, where all the principal Crown witnesses were cross-examined, and following negotiations between your advisers and the D.P.P. Compared with other cases where full admissions are made at the time of interview with the police and guilty pleas are entered at the committal mention, I would not regard your pleas as early, but you are, none the less, entitled to consideration for making them."

It is difficult to find fault with this. The applicant was interviewed on 15 February 1998. A committal was conducted on 29 June and after negotiations a charge of recklessly causing serious injury was substituted for the graver charge of intentionally causing serious injury. The applicant then pleaded guilty to both counts in the presentment. On one view the plea could not have been earlier because count 1 was not finally settled until after the committal; on another view it was the applicant's stubborn denial of the iron bar and his persisting with the story of the stick that held things up. It would obviously have been wrong for the judge to have given no weight to the plea of guilty; obviously it had value. (Mr. Priest submitted that the entry on to the premises "as a trespasser" might have been disputed, as also the characterisation of the injuries as "serious".) But it cannot be said that the judge denied all weight to the plea; he said expressly that the applicant was entitled to consideration for it. And the question whether it was given sufficient or too little weight then becomes a part of the argument that the sentences imposed were manifestly excessive: grounds 4 and 5.

Indeed that is how Mr. Priest argued the plea of guilty, putting it together with considerations of the applicant's rehabilitation and his unfortunate family circumstances; for his de facto wife had been ill of late, unable to cope with the children, and the applicant has been helping out in such fashion as to undertake for the children many of the day to day tasks that otherwise would fall to others or simply be left undone. Ms. Tailly was on significant medication for depression, the delayed result, it was said, of the death of her father. I will not canvass the matter in detail; it was canvassed in argument and is mentioned in the sentencing remarks. Under ground 2, Mr Priest did submit that the judge fell into specific error when he rejected an argument that the family circumstances were "exceptional" as that word is used in the authorities, but I see no specific error there. The argument of "exceptional circumstances" was put below to support a plea for a totally suspended sentence, and the judge was properly (if I may say so) not persuaded. And, of course, once it is decided that a significant custodial sentence is called for - as it was here - disruption to family life becomes inevitable and the force of any argument derived from a need to keep the family together must necessarily be diminished.

The personal circumstances of the offender which went in mitigation were put on the plea and mentioned below in the sentencing remarks; and I do not set them out again. When all is said and done the question of manifest excess or no is largely one of impression after weighing all of the circumstances of the offending and of the offender. There are aspects of the judge's sentencing remarks that I find troublesome and it must be said that the sentences imposed were stern, but all things considered I cannot regard them as altogether outside the range of what was properly open for the crimes that were committed on this occasion. To go around to another man's residence in the dead of night, armed with an iron bar in order - it would seem - to teach him a lesson is a serious crime in itself and then to carry out a savage attack on him as did the applicant will ordinarily warrant an immediate custodial sentence. Of that there can be no doubt as a general proposition, and I have no doubt that it was so in this instance. It is true that, despite his 42 previous convictions, the applicant has not been in gaol before, but as those previous convictions include assault by kicking it might be argued that by offending on 14 February he was not responding appropriately to such leniency as had been extended to him in the past. Perhaps an argument could also be mounted that count 1 was the lesser of the two crimes on this occasion, but that point was not raised before us and as the sentences on the two counts were left wholly concurrent the argument is a sterile one unless in all of the circumstances the overall sentence of 4 years is manifestly excessive. I do not think that it is: nor do I think that the non-parole period shows manifest excess.

In my opinion none of the grounds taken on this application was made out. Accordingly I would dismiss the application.

I agree that the application should be dismissed for the reasons stated by Phillips, J.A.

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