Wilson v The Queen [2022] VSCA 2

1 On 11 February 2020, the applicant pleaded guilty before Judge Hogan in the County Court to common assault[1] and intentionally causing injury.[2] Following a plea, on 26 February 2020 Judge Hogan sentenced the applicant to four years and six months' imprisonment on charge 2, and to nine months' imprisonment on charge 1, six months of which was ordered to be served cumulatively upon the sentence on charge 2. The total effective sentence was thus five years' imprisonment, upon which the judge fixed a non-parole period of three years and six months.[3] Nine months of the sentence thus imposed was ordered to be served cumulatively with the sentence the applicant was then undergoing.

2 Given he is out of time,[4] the applicant seeks an extension of time within which to file a notice of application for leave to appeal against sentence. If granted an extension of time, the applicant wishes to seek leave to appeal on three grounds that contend that the judge:

1 ... breached the rule enunciated in R v De Simoni.

2 ... paid insufficient regard to the principle of totality.

3 ... erred by fixing a manifestly excessive non-parole period.

3 For the reasons that follow, we consider that the putative application for leave to appeal against sentence is bound to fail. It would thus be futile to grant the application for an extension of time. That application will be refused.

4 It is necessary to describe the applicant's offending, which had a number of nasty aspects.

5 In December 2015, at a time when he was both on bail and subject to a community correction order ('CCO'), the applicant was in an intimate relationship with the victim of his offending, 'SF', aged 28 years, and lived 'on and off' with her at her residence in Deer Park. SF had two children with the applicant, then aged two and three years, and had two children from a previous relationship, then aged nine and 10. The four children were present during the relevant offending.

6 On an occasion around the time of the applicant's birthday - which fell on 7 December 2015 - after the children had gone to bed for the evening, the applicant asked SF to sit on his lap. She did so, thinking that the applicant was relaxed. The applicant became enraged, however, claiming that SF had sat on his testicles. Although SF apologised, the applicant began yelling and grabbed her around the throat, constricting it (charge 1 - common assault).

7 The applicant then went to the laundry and shut the door. Upon his return, he had a spray can with a nozzle inserted into it, with a lighter. The applicant then said to SF, 'If I go, we all go', an apparent threat to set them both alight and kill them. SF tried to calm the applicant, but was afraid that he would hurt her and the children. The applicant then returned to the laundry.

8 SF moved to the lounge, and the applicant entered, telling SF that she could calm him down if she sucked his penis. She said, 'Are you serious? After all that has happened?'. The applicant responded, 'We are going to have sex anyway'. He then pushed SF from behind and grabbed her neck, pushing it down so she was bending over. The applicant then pulled SF's pants down below her knees, and inserted his penis into her vagina. SF tried to push the applicant away, and screamed at him until the applicant stopped. After having penetrated her, the applicant said to SF, 'You're not worth it', and he left the room.

9 The applicant was still angry, but eventually appeared to calm down and return to the laundry. He then called SF to come to the laundry. She tried to tell the applicant that he should leave. The applicant then shut the laundry door, and swung a hammer at SF's head, missing her and hitting the wall. He then swung the hammer a second time, connecting with SF's head. She fell unconscious (charge 2 - intentionally causing injury).

10 At different points, the two older children woke and saw their mother insensible on a chair in the laundry. The applicant told them to go back to bed. In the morning the applicant took the three oldest children to his mother's house. He left the youngest child in the house with his victim, who was apparently still unconscious. One of the children told police that he overheard the applicant on the telephone say that he thought he had killed SF, asking, 'what do I do with the body?'.

11 SF first complained about the offending on 28 July 2017. The applicant was in custody for other matters and declined to be interviewed by police. A contested committal took place on 30 August 2018, during which SF was cross-examined, but the children were not.

12 The applicant, now aged 33 years,[5] has both prior and subsequent convictions. And, as we have mentioned, at the time of the instant offending the applicant was on bail - an aggravating feature[6] - and subject to a CCO - a further aggravating feature.[7]

13 His prior convictions, which date back to 2009, include criminal damage and assault with a weapon on 12 August 2010, for which a community based order ('CBO') was imposed. The applicant subsequently breached the CBO, and, on 25 May 2014, the contravention was found proven. On 6 August 2014, the applicant was convicted in the County Court of trafficking in a drug of dependence, criminal damage, armed robbery and possessing a prohibited weapon, and was sentenced by a judge of that court to a CCO of three years' duration with judicial monitoring. The applicant also breached this CCO.

14 With respect to subsequent convictions, on 18 August 2016 the applicant pleaded guilty before Judge Hampel in the County Court to the breach of the CCO made 6 August 2014, and to charges of armed robbery, theft, possessing a controlled weapon, obtaining property by deception, theft, committing an indictable offence whilst on bail, contravening a condition of bail, unlicensed driving and dealing with property suspected of being the proceeds of crime. For these offences Judge Hampel sentenced the applicant to a total effective sentence of five years' imprisonment, with a non-parole period of three years.

15 A few months afterward, on 5 April 2017, the applicant appeared before the Melbourne Magistrates' Court on charges of criminal damage, dealing with property suspected of being the proceeds of crime and unlawful assault. This offending occurred on 6 and 7 December 2015, very close in time to the offending with which the present application is concerned. The magistrate sentenced the applicant to six months' imprisonment, to be served partly concurrently with sentences then being undergone. The victim of the assault was SF. On a successful appeal to the County Court on 6 June 2017, however, an order for total concurrency was made.

16 Later, on 14 August 2017, the applicant appeared before the Magistrates' Court on charges of recklessly causing injury and unlawful assault, and was sentenced to five months' imprisonment, to be served concurrently with the sentence then being undergone. Once more, the victim of this offending was SF.

17 A little over a year later, on 31 October 2018, the applicant was convicted and fined $1,000 in the Magistrates' Court for intentionally damaging property.

18 The convictions on 14 August 2017 for recklessly causing injury and unlawful assault, relate to two episodes of offending which had occurred respectively in periods between December 2013 and April 2014, and November 2014 and February 2015. On one occasion, the applicant punched SF with sufficient force that she lost consciousness. The other episode, apparently in late 2014 or early 2015, occurred after the applicant's infant son had died. It appears that SF gave birth in 2014 to twins, a boy and a girl, born prematurely at 24 weeks' gestation. The applicant was the father. Shortly after birth, in September 2014, the infant boy died. While the girl was still in intensive care in hospital, a dispute arose between the applicant and one of SF's other children. When SF intervened, the applicant punched her in the face, knocking her to the floor. He then repeatedly stomped and kicked her whilst she was supine, yelling at her, 'go sleepy weepy'. SF lost consciousness, and, when she came to, the applicant was crying and asking for forgiveness. SF suffered bruising from the assault. She alleged that, after this occasion, there were many other incidents of physical violence that did not result in any visible injuries. We pause to note that the sentence of five months' imprisonment imposed by the magistrate for this offending appears to be remarkably lenient (if not inadequate).

19 As previously indicated, the hearing in the Magistrates' Court on 5 April 2017, and the appeal on 6 June 2017, also related to offending against SF. That offending occurred in December 2015, close in time to the offending the subject of this application. In summary, it appears that on 6 December 2015 the applicant came home in an agitated state. An argument ensued, during which the applicant placed his hands around SF's neck and squeezed. The following day - his birthday - the applicant became upset with SF. He demanded money that she had recently received in an insurance payout, but she convinced him that she had buried it. SF then fled the house with the children and got into a rented car. The applicant picked up a rock and threatened her. As SF drove away, the applicant followed her on a motorcycle and, at times, kicked out at the car. SF drove to a petrol station and telephoned '000'. Police arrived. SF told them what had occurred, but was too scared to make a statement. Over the next month, police and support workers assisted SF and the children to leave home and move to a secret location. It was not until March 2016 - by which stage the applicant had been remanded in custody on other matters - that SF found the courage to tell police about this offending.

20 Principle dictates that convictions which occur both prior to,[8] and subsequent to,[9] an offence for which a person is to be sentenced are relevant to the imposition of sentence. As was made clear in O'Brien,[10] although no principle of sentencing requires that more severe sanctions be imposed upon those who persist in criminal behaviour, an adverse criminal record may nevertheless have an impact on the sentencing process in a number of ways: as an indicator of the offender's moral culpability; his or her prospects of rehabilitation; his or her dangerous propensity (and the community's need for protection); and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence. Moreover, subsequent convictions affect the credit that might otherwise have flowed to the person to be sentenced for having lived a law abiding life in the period between the relevant crime and sentence. The applicant's subsequent convictions for offences against SF clearly were relevant to an assessment of his prospects for rehabilitation. It could not be said that, following his offending in December 2015, the applicant had undertaken a process of reform.[11]

21 Given the foregoing, there can be no criticism of the following observations made by Judge Hogan in her sentencing remarks:

Although you are in no way to be punished for your prior or subsequent offending, these matters are relevant to your prospects of rehabilitation. ...

...

It is deeply concerning that you have repeatedly subjected your victim to controlling, humiliating and violent behaviour over a number of years. As I have said, you are not to be punished for matters which have already been the subject of sentences imposed by courts, either prior to or subsequent to this offending. However, it is an aggravating feature that, by committing the subject offences, not only did you breach a bail order, but also a Community Correction Order. Your offending is of a gratuitous, morally abhorrent and cowardly nature towards the mother of your two children, who were of tender age. I regard it as another aggravating factor that your victim's two older children witnessed her in the injured and depleted state caused by you.

23 In the course of her sentencing reasons, the judge said:[12]

There can be no doubt that the only appropriate sentence is a term of imprisonment. This is brutal, cowardly offending and women must be entitled to feel safe in their own homes and also know that their children will not be psychologically damaged by being exposed to violence perpetrated by one parent or partner upon the other. Your offending on Charge 1, in suddenly and randomly grabbing your victim around the throat, is a startling and brutal form of assault. It came out of nowhere and took your victim completely by surprise. She was, thereafter, subjected to an ordeal of menace and humiliation over a period of quite some time, which ended up with your vicious assault of swinging a hammer towards her head.

24 Counsel for the applicant submitted that the emphasised portion of the judge's reasons set out immediately above reveals error. The judge's remarks, so counsel submitted, can only be interpreted as a reference to rape, a charge for that offence having been eschewed by the prosecution. Thus, counsel submitted, in breach of De Simoni[13] the judge took into account as an aggravating factor conduct that would warrant conviction for a more serious offence.

26 The evidence reveals that, after grabbing SF by the throat, the applicant in effect threatened to immolate SF by using a spray can and lighter to set her alight; told her that she could calm him down if she fellated him; and had intercourse with her, all the while angry and addressing SF in a degrading fashion. It thus cannot be gainsaid that, after the initial assault upon her, SF was indeed 'subjected to an ordeal of menace and humiliation over a period of quite some time', that ordeal culminating in the applicant striking a savage blow to her head. The sentencing judge made no finding of rape, nor did the facts as found by the judge necessarily include the elements of rape. She made it abundantly clear the applicant had not been charged with and was not being sentenced for rape.

Grounds 2 and 3: Totality and manifest excess

27 Grounds 2 and 3 are directed to the non-parole period. So as to understand how they are put, it is necessary to provide some essential background.

28 On 6 August 2014, the applicant was sentenced in the County Court to a CCO on Indictment E10700146 ('the first indictment') and for summary offences. The offences included trafficking in a drug of dependence, criminal damage and armed robbery. He subsequently breached the CCO that was imposed upon him.

29 A little more than two years later, on 18 August 2016, the applicant pleaded guilty before Judge Hampel in the County Court to armed robbery and other offences on Indictment G10620328 ('the second indictment'), and to a number of related summary offences. He was also dealt with for breach of the CCO imposed on 6 August 2014, and was re-sentenced for the offences for which the CCO was imposed.

30 Thus, on 18 August 2016, Judge Hampel imposed on the applicant a total effective sentence of three years and eight months' imprisonment on the second indictment, and two years and four months' imprisonment on the first indictment. She ordered that one year and four months of the sentence on the first indictment be served cumulatively with the sentence on the second indictment, leading to a total effective sentence across both indictments (and for the summary offences) of five years' imprisonment, upon which she fixed a non-parole period of three years.

31 The applicant sought leave of this Court to appeal against the sentences imposed by Judge Hampel, claiming (among other things) that the sentence was manifestly excessive and breached the principle of totality. Priest JA refused that application on 21 February 2017.[14] In so doing, he described the sentence imposed on the first indictment as part of the resentencing exercise as 'moderate'.[15] He also described the circumstances of the armed robbery on the second indictment as 'outrageous' - an apt description - and the sentence imposed on that charge as 'well-deserved'. In context, he said that

the circumstances of the armed robbery on Indictment G10620328 were, as I have said, outrageous. The sentence of three years' imprisonment on that charge was well-deserved, and the cumulation of other sentences on that Indictment was far from excessive. It is no wonder that the applicant did not complain that the individual sentences or total effective sentence on that Indictment were excessive.

Finally, I can detect no error in the judge ordering cumulation of one year and four months between the sentences on the two Indictments. There were two very serious episodes of criminality, each of which had to be given adequate recognition. It is not reasonably arguable, in my view, that the total effective sentence and non-parole period imposed on the two Indictments is manifestly excessive.[16]

32 As we have indicated, Judge Hogan ordered that nine months of the sentence imposed for the instant offending - a further very serious episode of criminality - be served concurrently with the sentence imposed by Judge Hampel on 18 August 2018. Notionally, therefore, the new total effective sentence imposed was nine years and three months' imprisonment. And given that the applicant had been in custody since 1 March 2016 - serving a little over four years of the sentence imposed by Judge Hampel - the new notional non-parole period for all relevant offending equated to seven years and six months (representing a shade more than 80 per cent of the length of the notional total effective sentence).[17]

33 In support of proposed grounds 2 and 3, counsel for the applicant submitted that, notwithstanding the serious nature of the applicant's offending, the notional total effective sentence and non-parole period are outside the range available in the proper exercise of the sentencing discretion. The total effective sentence imposed on the applicant is not just and appropriate for all the offending, so it was submitted, particularly when regard is had to the sentence of imprisonment he was serving at the time of being sentenced. Moreover, the new non-parole period is too high. Judge Hogan provided no reasons for imposing a non-parole period representing more than 80 per cent of the length of the total effective sentence. The sentence imposed by Judge Hogan, it was submitted, breached the principle of totality given that:

• the applicant's plea of guilty had significant utilitarian benefit, a charge of rape having been abandoned after SF was cross-examined at committal;

• the applicant had suffered a deprived and disadvantaged childhood, during which he was exposed to drug and alcohol abuse, family violence, and criminal associations in his extended family;

• the applicant has been diagnosed with poly-substance abuse disorder, and his offending was committed in the context of his struggle with drugs of dependence.

35 The term of a sentence 'is the period which justice according to law prescribes, in the estimation of the sentencing judge, for the particular offence committed by the particular offender', and the minimum term or non-parole period 'is the period before the expiration of which release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify'.[18] The fixing of a minimum term 'is no sinecure but requires discrete consideration of those factors which exist in the material before the court which bear upon the question of when the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision'.[19]

36 We consider that the non-parole period fixed by Judge Hogan fell well within the bounds of sound discretionary judgment, and did not infringe the principle of totality. Significantly, she observed:[20]

Delay can be relevant in a number of matters and, normally, regardless of whether an offender has been responsible for the delay, a court would take into account the time between the commission of the offences and the time of sentence if the offender had used that time to rehabilitate himself. This certainly cannot be said in your case, because you committed a serious armed robbery on 21 February 2016 which involved threatening your victim with a hammer. On that date, you also committed other offences, including theft, possessing a controlled weapon, obtaining property by deception, committing an indictable offence whilst on bail, contravening a conduct condition of bail, unlicensed driving, dealing with property suspected of being the proceeds of crime and possessing a drug of dependence. The subsequent Magistrates' Court sentences, relating to the same victim on the matters for which I must sentence you, were offences committed prior in time to the subject offences. However, you do have one further subsequent offence for which you appeared at Melbourne Magistrates' Court on 31 October 2018 for intentionally damaging property.

I am conscious that you have now been in custody serving sentences for nearly 4 years and, obviously, have not been granted parole in relation to the sentence imposed by Her Honour Judge Hampel on 18 August 2016. I am conscious that the principle of totality is important in ensuring that a sentence is not a crushing one so as not to annihilate what prospects of rehabilitation may be present. Having said that, I am very guarded, indeed, about your prospects of your rehabilitation in the light of the fact that you had been given a number of chances of rehabilitating yourself by undertaking Community Correction Orders (12 August 2010, 22 May 2014 and 6 August 2014), but did not utilise those opportunities.

37 There is no 'usual' non-parole period.[21] In the circumstances of this case, a notional non-parole period equating to a shade over 80 per cent of the length of the notional total effective sentence was open.

39 The considerations which inform the grant or refusal of an extension of time are well-known.[22] We need not repeat them.

40 Given that any proposed application for leave to appeal against sentence must fail, and it would thus be futile to grant an extension of time, the application for an extension of time within which to file a notice of application for leave to appeal against sentence is refused.

[1] Common assault is a crime at common law. By virtue of s 320 of the Crimes Act 1958, the maximum sentence is five years' imprisonment

[2] Crimes Act 1958, s 18. The maximum sentence is 10 years' imprisonment.

[3] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the applicant's guilty pleas. She would have imposed a total effective sentence of six years and six months' imprisonment, with a non-parole period of four years and 10 months.

[4] Section 275(1) of the Criminal Procedure Act 2009 requires a notice of application for leave to appeal against conviction to be filed 'within 28 days after the day on which the person is sentenced or any extension of that period granted under section 313'. It was not sought to file the relevant notice until early November 2020, more than seven months out of time.

[5] His date of birth is 7 December 1988.

[6] R v Gray [1977] VicRp 27; [1977] VR 225, 229-230; R v Treloar and Butler (1989) 43 A Crim R 75, 80 (Crockett J); R v Basso & Frazetto [1999] VSCA 201; (1999) 108 A Crim R 392, 397-8 [21]-[26] (Chernov JA), 404-5 [57]-[63] (Charles JA); DPP v Galea and Mosut [2000] VSCA 87; (2000) 112 A Crim R 507; R v Pop [2000] WASCA 283; (2000) 116 A Crim R 398; Georges v The Queen [2015] VSCA 82, [31] (Priest JA); Samuels- Orunmwense v The Queen; Osifo v The Queen [2015] VSCA 152, [110] (Priest JA); DPP v Milson [2019] VSCA 55, [66] (Priest and Weinberg JJA) ('Milson'). See also s 16(3C) of the Sentencing Act 1991, which requires that every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences 'must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term'.

[7] Bieljok v The Queen [2018] VSCA 99, [68] (Weinberg, Beach and Hargrave JJA); DPP v Basic [2017] VSCA 376, [70] (Weinberg, Osborn and Priest JJA); Milson, [66] .

[8] Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; R v O'Brien and Gloster [1997] 2 VR 714 ('O'Brien'); Weininger v The Queen (2003) 212 CLR 629; R v Bui; R v Beedar (2002) 137 A Crim R 220 ('Bui'); R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566; Rootsey v The Queen [2018] VSCA 108 , [8] ('Rootsey').

[9] R v Poulton [1974] VicRp 85; [1974] VR 716; R v Kane [1974] VicRp 90; [1974] VR 759; R v Rumpf [1988] VicRp 55; [1988] VR 466 ('Rumpf'); Bui.

[11] Rumpf, 475; DPP v Rongonui [2007] VSCA 274; (2007) 17 VR 571, 580 [37], 581 [41] (Maxwell P); Rootsey, [8].

[13] R v De Simoni (1981) 147 CLR 383, 389 (Gibbs CJ).

[14] Wilson v The Queen (Unreported, Court of Appeal, Priest JA, 21 February 2017).

[17] Given that the non-parole period imposed by Judge Hampel had expired, there was no occasion for Judge Hogan to fix a new global non-parole period as provided for in s 14 (1) of the Sentencing Act 1991.

[18] R v Morgan (1980) 7 A Crim R 146, 154 (Jenkinson J, Young CJ and Kaye J agreeing). See also Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628-9 (Barwick CJ, Menzies, Stephen and Mason JJ); Deakin v The Queen [1984] HCA 31; (1984) 54 ALR 765; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 536 (Dawson, Toohey and Gaudron JJ).

[19] R v Mulvale (Unreported, Court of Appeal, Winneke P, 20 February 1996), citing R v Currey [1975] VicRp 63; [1975] VR 647. See also R v VZ [1998] VSCA 32; (1998) 7 VR 693, [15]-[16] (Callaway JA).

[21] See Kumova v The Queen [2012] VSCA 212; (2012) 37 VR 538, 541-3 [10]-[15] (Nettle JA).

[22] Madafferi v The Queen [2017] VSCA 302, [11].