Woods v The Queen [2017] VSCA 34

1 Following a trial in the County Court, the appellant was found guilty on 10 May 2016 of one charge of aggravated burglary, two charges of common law assault, two charges of making threats to kill and two charges of contravening a Family Violence Intervention Order ('FVIO'). Prior to the commencement of the trial, he pleaded guilty, on a separate indictment, to one charge of attempting to pervert the course of justice.

2 On 20 July 2016, the appellant was sentenced as follows:

Aggravated burglary (Crimes Act 1958, s 77(1))

Making threats to kill (Crimes Act 1958, s 20)

Making threats to kill (Crimes Act 1958, s 20)

Contravention of a family violence intervention order (Family Violence Protection Act 2008, s 123(2))

Contravention of a family violence intervention order (Family Violence Protection Act 2008, s 123(2))

Attempt to pervert the course of justice (Common Law)

Sentenced as a serious violent offender on Count 4.

3 The appellant originally sought leave to appeal against sentence on four grounds. On 25 November 2016, Whelan JA granted leave to appeal on proposed ground 4, but otherwise refused leave.

4 The ground upon which leave was granted was in the following terms:

The sentencing Judge failed to avoid double punishment between the offence of aggravated burglary, assaults and threats to kill on the one hand and the charged offence of contravene a family violence order on 10 February 2015 (Charge 9B) on the other.

5 The appellant and complainant ('BA') had been in a de facto relationship since 2014. The relationship was marred by violence perpetrated by the appellant against the complainant, as well as the appellant's abuse of alcohol.

6 In August 2014, the complainant and the appellant, along with 'B', the complainant's daughter from a previous relationship, moved from Stawell, where they had met, to Coronet Bay, a small town in south-eastern Victoria. Around this time, the appellant's abuse of alcohol had worsened, as had his aggressive behaviour towards the complainant.

7 On 1 November 2014, matters came to a head when police were called to the house in Coronet Bay in response to the appellant's drunken and aggressive behaviour. Police issued a Family Violence Safety Notice ('the Notice') against the appellant, which forbade him from contacting the complainant.

8 On 6 November 2014, the Notice was formalised at the Korumburra Magistrates' Court through the making of orders preventing the appellant from going anywhere near the complainant, or any other family member (the FVIO).

9 The appellant subsequently stopped drinking, and began seeing a counsellor about his anger issues. The appellant and complainant reconciled, leading the complainant to apply to the Court to amend the FVIO so that contact by the appellant would be permitted. The FVIO was amended by consent in late November, but remained on foot. This prevented the appellant from perpetrating family violence against the complainant and her daughter, and from going within 200 metres of the complainant's house. Shortly thereafter, the appellant and complainant resumed their relationship, but the FVIO continued.

10 The relationship broke down again in January 2015. Following an argument, the appellant moved in with another woman, 'AT', who lived relatively close by the complainant's house. The complainant and appellant then exchanged a number of unpleasant text messages concerning rent, and the appellant's possessions.

11 On 9 February 2016, after ascertaining that the complainant was not at home, AT drove the appellant to the house to pick up a blanket that had been left on the back step for the appellant's mother to collect. His having gone to the house was in breach of the FVIO (charge 9A).

12 The appellant and AT then returned to her house and began drinking alcohol. At about 3:20 the following morning, the appellant told AT that he was going to the complainant's home in order to collect his belongings. He was highly intoxicated and angry at that stage. AT tried to persuade him not to go, but he ignored her and went anyway.

13 At this time, the complainant was awake because her daughter had had trouble sleeping. The complainant was having a cigarette on the balcony. The appellant entered the house using his key, which the complainant did not know that he had kept. On entering her bedroom, the complainant saw the appellant by her bed. She began screaming. The appellant said 'Are you done now?' He then grabbed her by the throat with one hand. He pushed her against a wall and said 'You deserve this, are you gonna call the cops?'

14 The complainant told the appellant to leave. She said that if he did, she would not call the police. He released his grip, and they both went downstairs. He then threatened her that if she contacted police he would kill her and her daughter (charge 1 - aggravated burglary, charge 2 - common assault, charges 3 and 4 - making threats to kill, charge 9B - contravening the FVIO).

15 The complainant then again told the appellant to leave. He refused. He spoke about his new relationship with AT, and asked the complainant to have sex with him one last time. A further argument ensued, during which the complainant was sitting on the couch in the lounge room. The appellant walked up to her and pressed his forearm against her throat, pinning her back onto the couch (charge 5 - common assault).

16 The appellant then went back upstairs. He entered B's room, and hugged her while she was in her bed. He then removed a television from the complainant's bedroom. He went back downstairs and took a DVD player and put it into his backpack, after which he left.

17 The complainant contacted police, who attended the house. Later, when the police interviewed the appellant, he initially denied having gone there, although he later admitted to having collected a blanket during the day. He acknowledged that this was in contravention of the FVIO. He otherwise denied all of the allegations.

18 The sentencing judge, when commenting upon the gravity of the aggravated burglary, had this to say:

An aggravating factor here is that at the time of the offending you were the subject of the intervention order in favour of the complainant and her daughter. Notwithstanding that, you proceeded to attend the property, and assault and threaten her and her daughter.[1]

19 The appellant submitted that he had been 'doubly punished' by being imprisoned for the aggravated burglary, assaults and threats to kill on the one hand and the breach of the FVIO on the other.

20 The applicant submitted that the judge, by referring to the existence of the FVIO as an 'aggravating factor' in relation to the aggravated burglary, had self-evidently treated the breach of the FVIO as he would any factor warranting an increase in the sentence that would otherwise be imposed. In other words, his Honour's characterisation of the breach as an 'aggravating factor' meant that he regarded it as carrying with it the additional and illicit feature, so far as the aggravated burglary was concerned, of having been committed in breach of a court order.

21 The Crown, in its written case, submitted that, notwithstanding the judge's use of the term 'aggravating factor' when dealing with the gravity of the aggravated burglary, his Honour had not intended by that expression to convey any meaning of a legal or technical kind. It submitted that the use of that term had been colloquial and was merely a broad brush way of indicating how seriously the aggravated burglary should be viewed. It followed that there had been no 'double punishment'.

22 We do not accept the Crown's submission that the term 'aggravating factor', as set out in the passage from his Honour's sentencing remarks, should be given anything other than its ordinary and natural meaning.

23 This follows, we think, from the fact that in the very next paragraph in the sentencing remarks his Honour said:

An additional aggravating factor is that at the time of the offending, you were also the subject of a community correction order that had been imposed on 27 August 2014 for threats and assaults. This was therefore further offending of a somewhat similar nature to the offending that you had been dealt with around six months earlier.[2]

24 The judge, having used the term 'aggravating factor' in two successive paragraphs must surely have intended that term to have the same meaning throughout. It is clear that in the second of the two paragraphs, where the term was used, it was expressed as a term of art, in accordance with orthodox sentencing principles. By referring to the matter set out in that second paragraph as an 'additional' aggravating factor the judge signified that he attributed the same meaning to that expression in both paragraphs.

25 It cannot be doubted that in the second of the two paragraphs, the term 'aggravating factor' was used in a legal and technical sense. The fact that these offences were committed whilst the appellant was on a Community Correction Order was plainly an 'aggravating factor' as that term is ordinarily understood.

26 Accordingly, the likelihood is that the appellant was given a heavier sentence than might otherwise be warranted for an aggravated burglary of this type because of that aggravating factor. He also appears to have been separately and additionally punished by the extra three months that were cumulated upon the other sentences imposed as a result of the breach of the FVIO.

27 The principles governing the obligation to avoid double punishment when sentencing are tolerably clear.

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.[3]

... the enquiry is not to be attended by 'excessive subtleties and refinements'. It should be approached as a matter of common sense, not as a matter of semantics.[4]

30 In Lecornu v The Queen, Maxwell P summarised the High Court's judgment in Pearce. Relevantly, his Honour stated:

... As a matter of sentencing, persons found guilty of two offences must not be punished twice for an act which is common to the two offences.[5]

31 The elements of aggravated burglary are, of course, quite different, and separate from those of the offence of breaching a FVIO. For that reason, there was nothing untoward about the Crown including the latter offence on the indictment. Nor did his Honour fall into error by imposing a sentence of six months' imprisonment for the breach.

32 What his Honour was not entitled to do was to treat the breach of the FVIO as both an aggravating factor for the aggravated burglary (thereby arguably increasing the penalty imposed for that offence) and also imposing a separate penalty, by reason of the cumulation of three months of that six month sentence upon the other sentences imposed. This was to punish the appellant twice for essentially the same conduct.

33 The appellant, having established specific error, is entitled to have his sentence reduced so as to avoid double punishment.

34 Counsel who appeared on behalf of the appellant before this Court submitted that the appropriate course, should this ground of appeal succeed, would be to reduce both his client's head sentence, and non-parole period, by three months. That would rectify the problem of double punishment. Importantly, he did not contend that the sentencing discretion as a whole should be re-exercised, or that there should be any adjustment to any of the individual sentences, or other orders for cumulation.

35 In the end, counsel who appeared on behalf of the Crown fairly conceded that there was little that she could say in opposition to the adoption of that course.

36 Accordingly, we will allow the appeal and set aside that part of the orders below that required three months of the sentence on charge 9B to be cumulated upon the base sentence and all other sentences. Instead, the sentence of six months' imprisonment on that charge will be made wholly concurrent with all other sentences of imprisonment. The net result will be that the total effective sentence will be reduced to four years and nine months' imprisonment, and the non-parole period to two years and nine months' imprisonment.

[1] DPP v Woods (Unreported, County Court of Victoria, Judge Murphy, 20 July 2016), [28] (our emphasis).

[3] [1998] HCA 57; (1998) 194 CLR 610, 623 (McHugh, Hayne and Callinan JJ) ('Pearce').

[5] [2012] VSCA 137; (2012) 36 VR 382, 386 (citation omitted).