Saxon v The Queen [2014] VSCA 296

1 The appellant pleaded guilty, in the County Court at Melbourne, to one count of aggravated burglary, one count of common assault, and one contravention of a family violence intervention order. He was sentenced on 4 June 2014 as follows:

Aggravated Burglary [Crimes Act 1958 s 77(1)]

Contravene Family Violence Intervention Order - Intending to cause harm or fear [Family Violence Protection Act 2008 s 123A]

3 years' imprisonment with a non-parole period of 20 months.

2 By notice dated 1 July 2014, the appellant sought leave to appeal against his sentence on the following grounds:

1. The learned sentence judge erred in imposing an aggregate sentence on all charges without examining and explaining how the principle of totality and the rule against double punishment impacted upon that sentence, or explaining the contribution of each charge to that aggregate sentence.
2. The sentencing process in respect of the breach of the intervention order miscarried, as the charged act was not identified.
3. The learned sentencing judge erred by reaching the aggregate sentence by imposing a non-parole period and then adding a term of parole.
4. The learned sentencing judge erred in finding that the applicant had behaved badly to the complainant in a way that gave rise to the intervention order

3 On 16 September 2014, the appellant was granted leave to appeal on grounds 1, 2 and 3. The question of leave to appeal on ground 4 was referred to this Court. However, both that ground and ground 2 were abandoned by the appellant prior to the hearing of this appeal. Accordingly, only grounds 1 and 3 are required to be determined.

4 The appellant and the complainant had been in a relationship. The relationship ended in May 2013, and the complainant subsequently moved into a new house with her two children (aged five and eight, respectively).

5 In June 2013, an interim family violence intervention order was made against the appellant under the Family Violence Protection Act 2008. The conditions of the interim order included, inter alia, that the appellant would not commit family violence against the complainant. The interim order was in effect on 28 and 29 June 2013.

6 On 28 June 2013, the appellant went to the complainant's house to collect his washing. The complainant indicated that she wanted to visit her mother, and the appellant said that he would go with her. It was apparently agreed at that point that the complainant would, in her own car, follow the appellant as he dropped off a car at a friend's house, and that the two of them would then go together to visit the complainant's mother. However, after the appellant dropped off the car at his friend's house, the complainant, having followed the appellant to his friend's house as planned, drove away alone.

7 That night, the complainant received a number of text messages from the appellant, including one which read 'Ur fucked I swear'. The complainant was concerned that the appellant might come to her mother's house, so she returned home.

8 At approximately 8.30pm, the appellant went to the complainant's house and, when she would not allow him to come in, sent the complainant a further text message which said 'Fuck you I'll be back don't worry'.

9 At approximately 7am the following day, the appellant went to the complainant's house and banged on the doors and windows. Two hours later, the complainant heard the appellant moving about on her roof, and called the police. The appellant entered the premises through the roof, by removing tiles and coming down through the manhole (charge 1 - aggravated burglary). He then kicked the complainant, causing her to fall over, and punched her twice to the head (charge 2 - assault). The appellant took the complainant's phone and keys.

10 Charge 3 on the indictment was in the following terms:

The Director of Public Prosecutions charges that ADAM PAUL SAXON, a person against whom a family violence intervention order was made and who was served with a copy of the order, at Cranbourne in Victoria on the 29th day of June 2013 contravened that order by assaulting [the complainant], intending to cause physical harm to her

11 Accordingly, it is clear that the assault by the appellant upon the complainant constituted the breach of the intervention order.

12 The complainant was not seriously injured in the assault, though she suffered a bump to the head.

13 When the police arrived, the appellant refused to open the front door, and exited through the garage. He was subsequently apprehended by police nearby.

14 The appellant was born on 8 November 1984, making him 29 years of age when sentenced. He left home at age 14 to live in foster care, but returned to his family after three months. He left school during year 9. Since that time, the appellant had what the sentencing judge described as a 'reasonably solid' employment history, though there were occasions where he had been out of work.[1]

15 The appellant was raised by his mother, along with seven siblings. He has a daughter from a previous relationship. He is estranged from the daughter's mother, and has had limited contact with his daughter.

16 On his plea, the appellant tendered a report prepared by a clinical psychologist, Mr David Ball. The report indicated that the appellant did not suffer from any mental illness, though it noted that the appellant had been troubled by a methylamphetamine addiction. The appellant began using methylamphetamine approximately 18 months before his offending. He had managed, however, to wean himself off the drug whilst in custody and on bail. Mr Ball's report also noted that the appellant had previously been diagnosed with attention deficit hyperactivity disorder. He did not present with significant signs or symptoms of the disorder when assessed by Mr Ball.

17 The sentencing judge had regard to the following mitigating factors in sentencing the appellant: his plea of guilty, which was entered at the earliest possible opportunity;[2] his 'reasonably good' prospects of reform, as demonstrated by his weaning himself off methylamphetamine whilst in custody and on bail, his attendance at counselling post-remand, and references indicating that the offending behaviour was out of character;[3] his remorse, as evidenced by the plea and his expressions of remorse to others;[4] and his lack of prior history and absence of any convictions.[5]

18 As against these factors, his Honour noted that the appellant's conduct involved 'serious criminality', occurring, as it did, after the appellant had had an opportunity to 'calm down and to think things through' overnight, and whilst the complainant's young children were nearby.[6] His Honour also endorsed what this Court said in Pasinis v The Queen[7] regarding the importance of denunciation, specific deterrence and general deterrence in sentencing perpetrators of family violence.[8]

19 His Honour concluded that, in light of the gravity of the offending, in particular the aggravated burglary, a custodial sentence was appropriate.

20 The appellant contended that, as each of the charged offences shared the central feature of an intent to assault the complainant, the present case involved a significant risk of overlapping criminality. It followed, so it was said, that the sentencing judge was required to pay particular regard to, and expose his reasoning on, the rule against double punishment, the totality principle, and matters of appropriate concurrency and cumulation.

21 In that context, the appellant submitted there were four matters which the sentencing judge failed adequately to address. First, it was submitted that his Honour failed adequately to identify the relevant contributions of each charge to the aggregate sentence. Secondly, it was submitted that his Honour failed to examine and explain how the rule against double punishment had been engaged and accommodated. Thirdly, it was submitted that his Honour failed to examine and explain how the principle of totality was applied. Finally, it was submitted that his Honour failed to identify what act of the appellant constituted the breach of the intervention order, a submission that was plainly untenable having regard to the form that charge 3 in the indictment took. It is convenient to deal with each of these complaints in turn.

Failure to identify relative contribution of each charge to aggregate sentence.

22 The appellant's complaint turns on the proper application of s 9 of the Sentencing Act 1991 ('the Act'). That section states, in relevant part:

(1) If an offender is convicted by a court of two or more offences which are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences in place of a separate sentence of imprisonment in respect of all or any two or more of them.

(2) The term of an aggregate sentence of imprisonment imposed in accordance with subsection (1) must not exceed the total effective period of imprisonment that could have been imposed in respect of the offences in accordance with this Act if the court had imposed a separate sentence of imprisonment in respect of each of them.

(3) If a court proposes to impose an aggregate sentence of imprisonment, it must before doing so announce in open court, in language likely to be readily understood by the offender -

(a) the decision to impose an aggregate sentence and the reasons for doing so; and

(4) If a court imposes an aggregate sentence of imprisonment in respect of 2 or more offences, the court -

(a) is not required to identify separate events giving rise to specific charges; and

(i) the sentences that would have been imposed for each offence had separate sentences been imposed; or

(ii) whether those sentences would have been imposed concurrently or cumulatively

23 It was not in dispute that the sentencing judge was entitled to impose an aggregate sentence in this case pursuant to subsection (1). It was also not in dispute that, in imposing an aggregate sentence, his Honour did not, anywhere in his sentencing remarks, identify the relative contribution of each of the three charges to the aggregate sentence. The critical question, however, was whether the effect of s 9(4) was to abrogate any requirement for his Honour to identify and consider those matters.

24 The respondent contended that this was precisely the effect of s 9(4). He argued that the appellant's complaint, if accepted, would effectively require sentencing judges to 'announce the sentences that would have been imposed for each offence had separate sentences been imposed'. This, it was submitted, would be contrary to both the express words of s 9(4), and the legislative intent behind it.

25 The appellant submitted that the requirement that his Honour identify the relative contribution of each charge to the aggregate sentence formed part of his Honour's fundamental obligation to give reasons for the aggregate sentence imposed, and to explain how he had applied the law in reaching his sentence. Nothing in s 9(4) should be regarded as abrogating those fundamental obligations.

26 It was common ground that s 9(4) was introduced in response to the decision of this Court in DPP v Felton,[9] an appeal by the Director of Public Prosecutions against sentence. In that case, it was decided that where an aggregate sentence was imposed, it was still necessary for the sentencing judge to identify, at least in general terms, the components of the sentence, that is, the individual terms and the extent of the concurrency and cumulation that had been employed. Kellam AJA, with whom Buchanan and Eames JJA agreed, said:

Accordingly, if an aggregate sentence is under consideration it is necessary for the sentencing judge to identify, in accordance with the above principles, separate events giving rise to specific counts, or groups of counts, and to order appropriate accumulation if appropriate, or alternatively to state specifically, as part of the reasons which are required by s 9(3) of the Sentencing Act for imposing an aggregate sentence, that all counts the subject of such a sentence are being treated as concurrent. To fail to do so would substitute aggregate sentencing for the existing law and practice relating to the structure of multiple sentences, an intention which was clearly not intended by the amended s 9 of the Sentencing Act introduced last year.

In my view, to include an unstated element of cumulation in an aggregate sentence does not provide for the transparency required in the sentencing process. It does not enable proper analysis by the community, the offender or an appellate court of the sentence and in particular of the unidentified components of the aggregate sentence. On the other hand, if the aggregate sentence is to comprise partially, or wholly, appropriate cumulation it will be necessary for the sentencing judge to identify the basis and nature of that. In effect the only safe course will be to approach the sentencing process in accordance with the general principles set out in Grabovac, and as one would do if the discretion provided for by s 9 of the Sentencing Act did not exist. It is necessary that the approach be similar to that suggested by Doyle CJ in R v Major. That is that if an aggregate sentence is imposed, using s 9 of the Sentencing Act, then the judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process consideration must be given to whether the sentences imposed should be concurrent or should have some degree of cumulation. As Olsson J said in R v Major, when an appropriate aggregate sentence has been arrived at it is necessary to 'stand back and review the result in light of the totality principle'.[10]

27 The appellant submitted that nothing in s 9(4) relieved the sentencing judge from the requirement to comply with the sentencing process set out in Felton. Nor did it relieve his Honour of the obligation to comply with the sentencing guidelines and mandatory considerations specified in s 5 of the Act.

28 The only effect of s 9(4), so it was submitted, was to modify, to some relatively small degree, the requirements as to transparency laid down in Felton, but certainly not to abrogate them in their entirety. In other words, although the effect of s 9(4) was to abolish the requirement that a sentencing judge engaged in aggregate sentencing state precisely the notional individual sentences and orders for cumulation that would have been made had separate sentences been imposed for each offence, it did not relieve the judge from his or her obligation to consider separately each particular criminal act, the appropriate penalty that should apply to those acts, and how matters of concurrency and cumulation ought to be addressed. That obligation continued. The appellant submitted that this construction of s 9(4) was supported by the use of the words 'identify' and 'announce' in s 9(4)(b), both of which ought to be construed quite literally.

29 I reject that submission. It would be extraordinary to think that the legislature would respond to Felton, a decision that was plainly viewed as unsatisfactory from a policy perspective, by enacting a provision which would have the effect of preserving, in its essence, the very reasoning in that case.

30 If there is a constructional choice to be made with regard to the language used in s 9(4), it is not one that lends itself to a narrow interpretation. The fact that the legislature used the expression 'identify separate events giving rise to specific charges' in s 9(4), and thereby essentially mirrored the language used in Felton, makes it clear that the obligation said by that case to have survived the enactment of s 9 in its original form has now been legislatively abrogated.

31 To suggest that the language of s 9(4) should be read down, so as to excuse a judge from engaging in the process of identification of separate events (whatever that may mean), but not from giving specificity to each of the acts for which a component of punishment is imposed, and quantifying that component, would be to distort the clear manifestation of legislative intent. It would effectively neuter s 9(4), as well as attribute to Parliament the intention to enact an entirely pointless provision.

32 Notwithstanding the ingenuity, and vigour, with which the argument was pressed, I consider it to be without merit.

Failure to consider rule against double punishment.

33 It was common ground that the sentencing judge did not specifically address or even advert to the rule against double punishment in his sentencing remarks. The appellant submitted that his Honour erred by failing to do so.

34 The respondent submitted that his Honour was not required to engage with the principle of double punishment because, axiomatically, no risk of any such punishment could arise in the context of aggregate sentencing. This was so because, in imposing an aggregate sentence, the court is necessarily looking at the totality of the offending conduct, and imposing a single sentence in respect of that conduct as a whole. It follows, so it was said, that, as the conduct in respect each offence is not being considered separately, there is no risk of overlapping criminality.

35 Alternatively, the respondent submitted that, if there was a risk of double punishment, this Court should not infer, merely from the absence of any express reference to that issue in his Honour's sentencing reasons, that he failed adequately to address that risk in sentencing the appellant.

36 In my opinion, the respondent's submissions on this point are correct. Once it is accepted that the sentencing judge, when imposing an aggregate sentence in the exercise of the power conferred by s 9, is entitled, and indeed bound, to consider the offender's conduct as a whole, and not descend into the detail of the individual components of the offending, the question of double punishment is unlikely to arise.

Failure to explain application of totality principle.

37 In answer to this complaint, the respondent relied on the following statement which appears in his Honour's sentencing remarks:

I have considered the totality of what you did and in my aggregate sentence I have ensured that the sentence meets the totality of your offending in a proportionate and just way[11]

38 The respondent submitted that the manner in which the principle of totality is applied in any given case is not a matter readily capable of precise explanation. Nor is it, ordinarily, a matter which is the subject of detailed discussion in sentencing remarks. Accordingly, the respondent contended, the statement of his Honour quoted above was unremarkable, and sufficient to discharge any obligation his Honour had to explain how the principle of totality was applied in this case.

39 I accept the respondent's submission. The sentencing judge was not under any obligation to say more about the principle of totality than he did. Moreover, there is nothing in the actual sentence imposed to suggest that his Honour paid only lip service to that principle. The sentence of 20 months' aggregate imprisonment was, on any view, moderate. So too was the non-parole period of 12 months.

Failure to identify what act of the appellant constituted breach of intervention order

40 This complaint essentially mirrors ground 2 of the appellant's application for leave to appeal which, as I have noted, was abandoned by the appellant prior to the hearing of this appeal. In any event, as the respondent points out, charge 3 of the indictment does identify, with precision, the specific act of the appellant that was said to constitute the contravention of the intervention order - namely, the assault upon the complainant. The appellant's submission on this aspect of ground 1 therefore cannot be accepted.

42 This ground of appeal is founded on a single observation set out in his Honour's sentencing remarks:

There are no formulas as to how long a parole period will be, and so what I do is fix as the minimum term what I consider is the minimum incarceration that justice requires and then a period of potential parole.[12]

43 The appellant submitted that it should be inferred from this statement that the sentencing judge approached the task of calculating the aggregate sentence by first fixing a non-parole period, and then adding to that a period of potential parole. The appellant contended that this inference was supported by the fact that the passage quoted above was the only explanation provided by the sentencing judge as to how he had arrived at the aggregate figure of 20 months' imprisonment, or the non-parole period of 12 months.

44 In answer to this complaint, the respondent pointed out that the statement upon which the appellant relied was immediately preceded, in the sentencing remarks, by the passage that I have quoted at [37] above. When considered in that context, the respondent submitted that it was clear that his Honour had approached the sentencing task in an entirely orthodox manner, namely, by fashioning the total effective sentence first, and then considering the non-parole period.

45 It may be that the sentencing judge could have expressed himself more felicitously when he observed that there were no 'formulas as to how long a parole period will be', and went on to say what he did, as set out at [42] above.

46 Nonetheless, the question to be considered on an appeal against sentence is not whether the sentencing remarks are as well expressed, in every regard, as they might be. In accordance with s 281 of the Criminal Procedure Act 2009, the appellant must satisfy this Court both that there is an error in the sentence first imposed, and that a different sentence should be imposed.

47 In considering that first issue, the Court should not engage in overzealous scrutiny by seeking to discern whether some inadequacy in the reasons may be gleaned from the way in which those reasons are expressed.[13] Self-evidently, a sentencing judge's reasons are not to be read as though they are the words of a statute. Nor, it should be said, are they to be trawled over as though they reflect the language chosen by an appellate court. They must be read as a whole, fairly and not perversely. They must also be read in full recognition of the fact that such reasons are often delivered ex tempore, without the opportunity, or inclination, to pause over every word chosen.

48 As regards the question whether a different sentence should be imposed, in the present case that really admits of only one answer. An aggregate sentence of 20 months' imprisonment with a non-parole period of 12 months for offending of this

nature, involving as it did an assault upon a woman in her own home, committed in breach of an intervention order, must be viewed extremely seriously. The sentence was, as I have said, moderate in all the circumstances. No lesser sentence could possibly be justified.

50 It also follows that the appeal must be dismissed.

[1] DPP v Saxon (Unreported, County Court of Victoria, Judge Mullaly, 4 June 2014) ('Sentencing Remarks') [15].

[7] [2014] VSCA 97 (22 May 2014).

[9] [2007] VSCA 65; (2007) 16 VR 214 ('Felton').

[10] Ibid 229 [46]-[47] (citations omitted).

[13] There is perhaps a loose analogy with the reasons for judgment given by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272. While the High Court was there speaking of the approach to be taken to judicial review of the reasons of an administrative decision-maker, rather than the reasons provided by a sentencing judge when sentencing an offender, the injunction against construing 'minutely and finely with an eye keenly attuned to the perception of error' is by no means entirely inapt.