Whelan v The Queen [2018] VSCA 279

2 On 4 August 2017, the appellant pleaded guilty in the County Court to aggravated burglary[1] (charge 1), intentionally causing serious injury[2] (charge 2) and theft[3] (charge 3), the charge of aggravated burglary being a 'rolled-up' charge, representing the two unlawful entries to the premises occupied by the victims.

3 Following a plea, on 22 November 2017 the judge sentenced the appellant to a total effective sentence of nine years' imprisonment, with a non-parole period of seven years, according to the following table:

Forensic sample order; forfeiture and disposal orders

4 Initially, the appellant sought leave to appeal against his sentence on three grounds, the substance of which it is unnecessary to set out.[4]

5 On 16 March 2018, however, Santamaria JA, considering the matter 'on the papers', granted the appellant leave to appeal against his sentence on a limited basis, 'confined to the ground that the sentencing judge erred in so far as he failed to take into account or give any weight to the timing of the plea of guilty'.[5]

6 In the result, the appellant now relies on a single ground as follows:[6]

The Sentencing Judge erred by failing to have regard or give adequate weight to the [appellant's] timing of the plea of guilty.

7 The submissions advanced in the amended written case in support of that ground - which, it must be said, seemed to intrude into an area beyond the grant of leave - were:[7]

1. The sentence is excessive in that it failed to take into account and/or give adequate weight to the timing of the guilty plea entered by the [appellant].
2. The discount afforded to the [appellant] was not reflective of the pleas of guilty being entered at the earliest possible opportunity, namely prior to the first committal mention. This is to be contrasted to the position of the co-accused who proceeded to a contested committal and whose matter was listed for trial before entering a plea of guilty.
3. In balancing the nature and gravity of the offending along with the factors in mitigation, in particular the early plea of guilty, and the youth of the [appellant], the total effective sentence, non-parole period and orders for cumulation were excessive.

8 Before considering those submissions, it is necessary to scrutinise the appellant's offending. It is very disturbing. Santamaria JA summarised it in the following way:[8]

On 28 September 2016, Andrew George, Simon George, O'Neill and a female associate attended the funeral of a close friend. Later that evening, they attended O'Neill's address. After some time, they left.

On the morning of 29 September 2016, O'Neill could not find two grams of the drug ice. He believed that he had left the drug on a table in his bedroom. He sent a message to Daniel Kessler via Facebook Messenger and accused him of stealing the ice, which Kessler denied. O'Neill then said that he had armed himself with an axe, that he was angry and that someone was going to die. He referred to Andrew George and Simon George.

O'Neill and Kessler made contact with the [appellant] as well as Jesse Slatter and an unknown person. The five men drove to Andrew George's address in Malvern East. They believed that Simon George was at the address too. CCTV footage shows the men arriving at 10:21 am.

O'Neill and Kessler knocked on the front door of the house. At the same time, the [appellant], the unknown person and Slatter kicked in the back door, leaving a shoe impression on it. They ran through the house and joined O'Neill and Kessler at the front door. O'Neill and Kessler confronted Andrew George about the missing ice.

Shortly thereafter, a housemate, Ryan Mitchell, woke up and admonished the intruders. The [appellant] produced a tomahawk, raised it above his shoulder and threatened to axe Mitchell. At this point, he was dragged away by the others [aggravated burglary - charge 1].

...

Later that morning, the five men drove to Simon George's address in Murrumbeena. They arrived at about 11:02 am. There were two dwellings at this address. Simon George resided in the rear dwelling.

The [appellant] and O'Neill knocked on the front door of the front dwelling. The occupant opened the door. The [appellant] and O'Neill asked for Simon George and tried to walk through the front dwelling to access the rear dwelling. The occupant told them that there was no rear door. They then walked down the driveway where they attempted to open a side gate that was locked.

The [appellant] climbed over the side gate and opened a garage door that allowed access in and out of the property. He walked back to the front of the property and notified O'Neill and Slatter. They all walked through the garage and entered the rear dwelling.

The [appellant], O'Neill and Slatter walked onto the balcony area where they confronted Simon George about the missing ice. Simon George denied that he had stolen it. Some ten minutes later, the [appellant] suggested that the men return to Andrew George's address in Malvern East. The [appellant] and Slatter left, while O'Neill stayed with Simon George.

The [appellant], Slatter, Kessler and the unknown person returned to Andrew George's home, arriving at 11:26 am. The [appellant] was armed with a tomahawk and a folding knife. Slatter was armed with a screwdriver and the unknown person a fence paling. All four men cordoned off the house.

Mitchell observed the [appellant] walking down one side of the house holding a tomahawk. He shouted to Andrew George that the intruders had returned. He ran from the house and called the police.

The [appellant], Slatter and the unknown person confronted Andrew George and pushed him into a room. The unknown person remained at the front entrance. Slatter remained at the door to the room. The [appellant] struck Andrew George several times to the head and body with the tomahawk. Slatter struck Andrew George with the screwdriver, and the [appellant] removed the folding knife from his pocket and stabbed Andrew George. The attack continued as Andrew George was dragged into the rear sun room, kitchen and laundry [aggravated burglary - charge 1; intentionally causing serious injury - charge 2].

The [appellant] and Slatter left Andrew George unconscious in a pool of blood. They stole a number of items from the dwelling, including a television [theft - charge 3], and fled by foot. The [appellant] himself sustained a self-inflicted stab wound to his left hand.

In the event, Andrew George sustained a collapsed lung and had several lacerations on his face, around his head, torso and arm and several stab wounds including on his chest and near the ribs. He had a fractured nasal bone and suffered from blood collection on the back of his head, with active arterial bleeding.

On 30 September 2016, the [appellant] attended Frankston Hospital for the injury to his left hand. It was decided that he would need plastic surgery. He remained overnight and was discharged on 1 October 2016. On 12 October 2016, police arrested the [appellant] after an appointment with a plastic surgeon. During his police interview, the [appellant] declined to comment on the offending.

9 Turning to the ground of appeal, in his reasons for sentence the judge made the following observations about the appellant's plea of guilty:

The plea submissions of [the appellant's counsel] were tendered as Exhibit W2. She also provided the Court with a most useful chronology. She referred to the time that [the appellant] has been in custody. She emphasised the plea of guilty at an early stage and asked the Court to accept such is demonstrative of remorse in relation to the offending and asked me to note his expressions of remorse ...

10 The submissions to which the judge referred included the following:

3. Chronology

29 September 2016 Offences alleged to have occurred

12 October 2916 [The appellant] arrested and remanded in custody

10 January 2017 Initial plea offer made by [the appellant]

12 January 2017 Committal mention - adjourned for negotiations

17 January 2017 Further committal mention - adjourned for negotiations

16 February 2017 Further committal mention - adjourned for negotiations

23 March 2017 Defence indicated a plea to the charges on the current indictment was accepted

30 March 2017 Further committal mention - committed for a Plea Hearing

4 August 2017 Plea Hearing for [the appellant]

...

5. Matters to be raised in mitigation

a. Plea of Guilty and Remorse

[The appellant] indicated a plea of guilty during the Committal Mention stage following negotiations and it is submitted that this constitutes a plea of guilty at an early opportunity. ...

It is submitted that [the appellant] should be afforded a substantial discount for the timing of his plea. ...

In relation to remorse, [the appellant's] early plea of guilty is demonstrative of remorse and contrition ...

11 Furthermore, the separate chronology provided by counsel also reflected the negotiations that had taken place between the prosecution and defence, and the ultimate resolution of the matter which led to the appellant being committed to the County Court for a plea.

12 Additionally, the prosecutor had informed the judge as part of his opening that the appellant had entered his plea 'at the committal mention on 30 March of this year'. And the appellant's counsel, as part of her plea, orally took the judge through the history of negotiations and submitted that the offer to plead was made very early.

13 Given these circumstances - in particular, the judge's express reference to the emphasis placed by counsel upon the plea of guilty at an early stage - it is fanciful to suggest that the sentencing judge failed to 'have regard' to the 'timing of the plea of guilty'.

14 Moreover, insofar as it might have been contended in writing by the appellant's counsel in this Court that the judge failed to give 'adequate weight' to the 'timing of the plea of guilty', so that the total effective sentence and non-parole period are manifestly excessive - a submission that was not in conformity with the limited grant of leave to appeal - that contention has no substance.

15 It may be acknowledged that the appellant, at age 23, is relatively youthful. Despite his relative youth, however, he has a lengthy criminal history, commencing in the Children's Court in February 2013. In May of that year, he was released on a good behaviour bond by the Children's Court for unlawful assault and other offending. Thereafter, on 27 August 2014, he was convicted and sentenced in the Magistrates' Court for recklessly causing serious injury, affray and other offences, to a community correction order (which he later contravened); on 25 August 2015, he was sentenced by the Magistrates' Court to detention in a youth training centre for recklessly causing injury; and on 9 November 2015, he was convicted and discharged by the Magistrates' Court on a charge of unlawful assault.

16 Significantly, on 7 June 2016, in the Magistrates' Court, he received a sentence of imprisonment, coupled with a community correction order of 18 months' duration, for robbery, intentionally causing injury and assault with a weapon. He was released from custody on 1 September 2016, and within a few weeks - and whilst still subject to the community correction order - he committed the instant offences. So much does not bode well for his prospects of rehabilitation. Although, of course, he was not to be punished again for his past transgressions, quite apart from his prospects of rehabilitation, his unhappy criminal record is an indicator of his moral culpability, his dangerous propensity and the community's need for protection, and the increased importance of specific deterrence as a factor in sentencing, given his resistance to previous penalties as a means of deterrence.[9]

17 Further, the appellant's offending was nothing short of outrageous. To force entry to premises on two occasions armed with a dangerous weapon (or weapons) intending to assault a person in the premises is bad enough, but to use the weapons to inflict the kind of injury meted out to the victim, Andrew George, is very grave. The judge summed up the seriousness of the injuries as follows:

The injuries are set out in ... various reports from the Victorian Institute of Forensic Medicine. There are a considerable number of serious wounds inflicted, which are detailed in that report, from the combined attack undertaken upon Mr Andrew George. There were fractures, stabbings and most importantly, the need for an emergency chest drain insertion and surgery because of the finding of a large right pneumothorax.

The opinion of the specialist forensic surgeon, was that the injuries perpetrated upon Mr George, produced a life threatening internal injury to one of the organs essential to life, that is the lungs.

There were various impacts of stabbings and trauma and assaults involving multiple blows and probable stabbings. The force involved required multiple sharp impacts, caused the multiple stab injuries over multiple body parts. The severity of the injuries were described, including a large pneumothorax, with a lunge collapse, as severe. Such required a period of ... two months for the bone fractures to heal. Without medical treatment to the lung, recovery would have been unlikely.

Without initial first aid, direct pressure to the stab wounds, the medical assistance and treatment by ambulance and in hospital, the subject would have deteriorated and have been dead. That is indicative of how serious this assault was. It is simply by way of, no doubt, good luck of Andrew George and the skill of the surgeons, that [the appellant] does not find himself ... facing murder charges. To demonstrate to the Court the actual injuries, tendered was Exhibit C, the photographs taken at the time, by the police. There are two photo books, and at my insistence at the original plea, there was also filed updated photographs of the victim Mr George, dated 15 August 2017.

They show a person who has been subject to a significant attack. The face scar, in particular, the one down his left cheek, is significant. The scarring to his chin is significant. Both of those will have to be endured by him for the rest of his life. The scars to the back are significant, as are the arms and the scars to the chest and the thighs are also significant. All of them give demonstration to the Court of how serious this attack was.

In addition, the reports of the treating hospital were tendered. They were reports from the Alfred Hospital discharge reports and first there was a statement of Dr Sue [Lagaaia], Exhibit F1, in regard to the examination around 12.16 and the Alfred Hospital discharge report also was tendered as Exhibit F2.

It is quite clear that this was an emergency situation faced by the hospital because of the injuries inflicted on the victim, Mr George. To say the least, the initial photos are stark. They always are, when they are taken very shortly after an attack like this. But the updated photos are also stark. This man has been severely scarred. I accept the evidence that the trauma imposed and inflicted upon Mr George would have had an impact upon his ongoing depression. Defence counsel in regard to Mr Whelan accepted that his client was responsible and liable for all of those injuries.

18 Notwithstanding the matters urged in mitigation - including the appellant's youth, early plea of guilty, remorse, family support and 'mental health concerns' (discussed in the reports of Jeffrey Cummins, consulting, clinical and forensic psychologist) - I consider the individual sentences on the charge of aggravated burglary and intentionally causing serious injury, and the orders for cumulation, to

be modest. Indeed, I consider that the sentence for intentionally causing serious injury in particular - which I regard as lenient - is explicable only on the basis that the judge gave full weight to the matters urged by the appellant's counsel in mitigation, including the early plea of guilty. Quite plainly, general deterrence, specific deterrence, denunciation and community protection were all factors which needed to be afforded significant weight in the exercise of the sentencing discretion.

19 For these reasons, in my opinion the appeal must be dismissed.

20 I agree that the appeal should be dismissed for the reasons given by the presiding judge.

[1] Crimes Act 1958, s 77. The maximum sentence is 25 years' imprisonment.

[2] Crimes Act 1958, s 16. The maximum sentence is 20 years' imprisonment.

[3] Crimes Act 1958, s 74(1). The maximum sentence is 10 years' imprisonment.

[4] See Whelan v The Queen [2018] VSCA 59, [40] ('Leave reasons'), where the grounds are set out.

[6] No notice of election was filed with respect to the grounds (and parts thereof) upon which leave was refused. See Criminal Procedure Act 2009, s 315(2); Supreme Court (Criminal Procedure) Rules 2017, r 2.08(2).

[8] Leave reasons, [4]-[19] (emphasis added).

[9] R v O'Brien and Gloster [1997] 2 VR 714, 718.