and Glen Burns (a pseudonym)[1] v The Queen

[2016] VSCA 195

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0139
GLEN BURNS (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim(s) of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	WHELAN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 August 2016
DATE OF JUDGMENT:	11 August 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 195
JUDGMENT APPEALED FROM:	DPP v [Burns] (a pseudonym) (Unreported, County Court of Victoria, Judge Coish, 19 September 2013)

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CRIMINAL LAW – Sentence – Stalking, recklessly causing injury, aggravated burglary, indecent assault (2 charges), rape, and breaching intervention order (2 charges) – Sentenced to total effective sentence of 7 years and 6 months with non-parole period of 5 years – New evidence – Application for an extension of time within which to seek leave to appeal against sentence – Application for extension of time based on new evidence about applicant’s psychiatric condition – New material not sufficiently compelling to demonstrate miscarriage of justice if applicant not permitted to rely upon it – No reasonable prospect that Court of Appeal would impose less severe sentence in any event – Application for extension of time refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms P R Riddell	MIR Lawyers
For the Respondent	Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA

BEACH JA:

Introduction

1. On 13 September 2013, following a six-day trial in the County Court, the applicant was found guilty of one charge of stalking, one charge of recklessly causing injury, one charge of aggravated burglary, two charges of indecent assault and one charge of rape.  On 17 September 2013, a plea hearing was conducted.  At the plea hearing, the applicant pleaded guilty to two summary charges of breaching an intervention order. 

1. On 19 September 2013, the applicant was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Stalking [s 21A of the Crimes Act 1958]	10 years	9 months	3 months
6	Recklessly Causing Injury [s 18 of the Crimes Act 1958]	5 years	6 months	3 months
7	Aggravated Burglary [s 77(1) of the Crimes Act 1958]	25 years	3 years	12 months
8	Indecent assault [s 39(1) of the Crimes Act 1958]	10 years	12 months	3 months
9	Indecent assault [s 39(1) of the Crimes Act 1958]	10 years	12 months	3 months
10	Rape [s 38(1) of the Crimes Act 1958]	25 years	66 months	Base
Summary Charge 5	Breach Intervention Order [s 123 of the Family Violence Protection Act 2008] Plea of guilty	2 years	3 months	-
Summary Charge 9	Breach Intervention Order [s 123 of the Family Violence Protection Act 2008] Plea of Guilty	2 years	3 months	-
TotalEffectiveSentence:		7 years 6 months
Non-ParolePeriod:		5 years
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		57 days
S 6AAA Statement:  In relation to summary charges 5 & 9: 5 months’ imprisonment
Other relevant orders: Applicant sentenced as a serious sexual offender on charge 10; Forfeiture Order; Forensic Sample Retention Order; Life Reporting under the Sex Offenders Registration Act 2004.

1. The applicant wishes to appeal against the sentence imposed.  On 27 May 2016, he filed an application for an extension of time within which to seek leave to appeal and an application for leave to appeal.  The applicant’s sole proposed ground of appeal against his sentence is as follows:

Ground 1That since the applicant was imprisoned he has been diagnosed with a significant and pre-existing mental illness, which had it been known would have provided a basis for moderation of the sentence imposed.

The extension of time application

1. Counsel for the applicant provided us with a helpful chronology that catalogues the delay in this case between sentencing and the filing of the present applications.  That chronology, together with affidavits filed on behalf of the applicant, discloses a sorry history of delay that has in large part (if not wholly) been the fault of the applicant’s solicitor.  It is not necessary, however, to set out this chronology, or analyse the delay.  The respondent accepts that the delay has been adequately explained by the applicant.  At the hearing before this Court, the respondent accepted that if the applicant’s proposed appeal was found to have sufficient merit then an extension of time should be granted.  Accordingly, we turn to the merits of the applicant’s proposed appeal. 

Circumstances of the offending

1. The victim of the applicant’s offending (the complainant) was the applicant’s former wife.  They were married in 1995, came to Australia from New Zealand in 2005, and divorced in 2007.  While there was a reconciliation after their divorce, the applicant and the complainant finally separated in late 2010.  The sentencing judge described the relationship between the applicant and the complainant as ‘tumultuous’.[2]  The complainant had obtained intervention orders against the applicant when they lived in New Zealand and in 2007 after they moved to Victoria.

   [2]DPP v [Burns] (Unreported, County Court of Victoria, Judge Coish, 19 September 2013) (‘Reasons’) [6].

1. The circumstances of charge 1 (stalking) were as follows.  On 16 and 18 December 2011, the applicant used his mobile phone to video the complainant while she was having a shower in her home.  The video taken on 16 December 2011 was 2 minutes and 28 seconds in duration.  The video taken on 18 December was 4 minutes and 13 seconds in duration.  Each video recording was taken from outside the bathroom window at the rear of the victim's home and without her knowledge.

1. The offending constituting charge 1 commenced only nine days after the applicant had been before the Mildura Magistrates' Court.  On 7 December 2011, the applicant faced a number of charges, one of which was contravention of a family violence intervention order.  In respect of that charge the applicant was sentenced to 2 months’ imprisonment.  That sentence was wholly suspended for 18 months.

1. The circumstances of charge 6 (recklessly causing injury) were as follows.  On 24 April 2012, the applicant was in the complainant's home.  There was an argument.  As the applicant was leaving, he opened the back door and slammed it into the complainant's forehead.  The complainant had a large lump on her forehead as a result of this incident.  The applicant was found not guilty of intentionally causing injury, but guilty of recklessly causing injury in respect of this incident.  At trial, the applicant’s case was that the incident was simply an accident.  In convicting the applicant of recklessly causing injury, the jury must have rejected this case.

1. The circumstances of charges 7, 8, 9 and 10 were as follows.  On 27 April 2012 the complainant left her home to do some shopping.  She returned home.  She was in her home, having unloaded the shopping onto the kitchen table, when she heard footsteps.  The complainant then observed the applicant holding the back door with one hand while the other hand was on the back screen door.  The complainant tried to push the applicant out the door, but he was too strong.  The applicant pushed the complainant back into her home, forced his way in and then closed the door behind him (charge 7, aggravated burglary).

1. The applicant  held the victim's hand to her back and guided her to sit down on a kitchen chair.  The applicant accused the complainant of not speaking to him.  The complainant was crying.  She tried to reason with the applicant.  She tried to push him away.  He became angry.  The applicant picked the complainant up, guided her into the living room and threw her onto a mattress.  He pinned her down, with his hands on her neck.  The complainant was still crying.  She was telling the applicant to stop.  The applicant pulled the complainant’s shirt off, unbuttoned her bra and started kissing her breast (charge 8, indecent assault).  The applicant then touched and kissed the complainant’s vagina.  She felt the applicant’s teeth on her vagina (charge 9, indecent assault).  The complainant continued to cry.  The applicant then penetrated the complainant’s vagina with his penis (charge 10, rape).

1. There was a knock on the front door.  The complainant yelled out ‘help’.  The applicant got off the complainant.  A man known to the applicant was at the front door.  He gave evidence that he was looking for the applicant.  He said that he heard a person ‘like screaming for help from inside the house’.  He said the complainant opened the front door, she was crying and she looked scared or upset.

1. In the applicant’s record of interview, he stated that on 27 April 2012 the complainant saw him at a bank and invited him to her home.  The applicant went to the complainant’s home.  The back door was open and the complainant was sitting at the kitchen table.  The applicant said that he entered and had a conversation with the complainant.  The applicant said that they started kissing and then had consensual sex on the mattress on the lounge room floor.  The applicant described massaging the complainant’s feet, kissing her on the lips, then kissing her breasts and vagina.  He said he could not get an erection.  In convicting the applicant of charges 7, 8, 9 and 10, the jury must have rejected this account by the applicant.

1. The applicant’s presence in the complainant's home on 24 and 27 April 2012 was in breach of an intervention order.  This was the basis for the two summary offences, of breaching an intervention order, to which the applicant pleaded guilty at the plea hearing after having been convicted by the jury.

The judge’s reasons

1. The judge commenced his reasons for sentence with a description of relevant background matters.  He then described the relationship between the applicant and the complainant, before turning to the facts of the applicant’s offending.[3] 

   [3]Ibid [1]–[17].

1. The judge then described the applicant’s personal circumstances.  Relevantly, the applicant was 41 years of age at the time of sentencing.  He was born in Tonga and educated in both Tonga and the USA.  The applicant had a good work record, having been in continuous employment throughout his adult life.  References and testimonials tendered on the plea described the applicant as having a close relationship with his children and having performed good works in the community.[4]

   [4]Ibid [19]–[22].

1. The judge described the applicant’s prior offending and prospects of rehabilitation in the following terms:

Your prior offending has been limited, save for one minor incident, to offences involving the victim.  You have repeatedly breached intervention orders but in all other respects you have been a law abiding citizen.  Given the number of breaches of intervention orders and the duration of this type of offending together with the circumstances of these offences, I assess your prospects of rehabilitation as being cloudy.[5]

[5]Ibid [23].

1. Importantly, the judge noted that there were two aggravating factors in relation to the applicant’s offending.  First, there was an intervention order in place in favour of the complainant at the time of the applicant’s offending.  Secondly, the offending occurred during the period of suspension of a two-month term of imprisonment imposed on the applicant only four and a half months prior to these offences.[6]  The judge noted that the repeated breaches of intervention orders by the applicant was ‘highly relevant’ to the judge’s task of sentencing the applicant.[7]  Additionally, the judge said that specific deterrence was relevant ‘in view of [the applicant’s] prior history and repeat offending involving [the complainant]’.[8] 

   [6]Ibid [27].

   [7]Ibid [36].

   [8]Ibid [38].

The proposed new evidence

1. In his reasons for judgment, the judge noted that the relationship between the applicant and the complainant finally terminated in November 2010 when the complainant poured hot water on the applicant.  The judge described this event in the following terms:

In November 2010 the victim poured hot water on you.  You were treated in hospital for a number of weeks for injuries sustained in that incident.  She drove your car to the hospital and dropped off your clothes signifying the end of the relationship.[9]

[9]Ibid [7].

1. The judge did not say anything further about this incident, or its effects upon the applicant, in his reasons for sentence.  Specifically, the judge did not say anything about psychological consequences that may have arisen from this incident and/or any injury sustained as a result of hot water being poured on the applicant.

1. In February 2011, the applicant was referred for a mental health assessment.  A redacted summary from Mildura Mental Health discloses that at that time the applicant was ‘presenting as depressed and voicing suicidal ideation’.  A diagnosis was made of acute stress reaction, and the applicant was noted to have some anxiety symptoms ‘similar to that of PTSD’.[10]  While these events occurred prior to sentencing, they were not the subject of any consideration on the plea before the judge.

   [10]Post-traumatic stress disorder.

1. On 12 June 2015, almost three years after the applicant was sentenced by the judge, a psychiatrist at St Vincent’s Correctional Health Service provided a medical certificate to the applicant, referring to a diagnosis of post-traumatic stress disorder.  On 11 February 2016, the applicant’s lawyers obtained a report from a psychologist, Dr Ron Tallent.  Dr Tallent expressed the opinion that a psychiatric assessment would be likely to confirm Dr Tallent’s opinion that the applicant has a borderline personality disorder with associated schizoid features, as well as potentially obsessive compulsive disorder alongside acute distress or post-traumatic stress disorder. 

1. Following the obtaining of Dr Tallent’s opinion, the applicant’s solicitors arranged for the applicant to be examined by Dr Danny Sullivan, a consultant psychiatrist.  Dr Sullivan examined the applicant on 20 May 2016.  In a report dated 3 August 2016, Dr Sullivan stated:

[The applicant] has an established diagnosis of post-traumatic stress disorder (PTSD) which appears to have commenced in 2010 when he was admitted to Mildura Base Hospital for management of burns.  He had thereafter been treated appropriately in the community, with SSRI medications, albeit in apparently low doses.  He had not engaged with psychological treatment prior to incarceration.  His ongoing symptoms include classic post-traumatic stress symptoms with an associated range of other overlapping anxiety features:  generalised anxiety, panic and obsessive-compulsive symptoms.  The primary diagnosis, on file review, is of post-traumatic stress disorder. 

…

I consider that it would have been foreseeable at the time of sentence that a period of incarceration would weigh more heavily upon him due to severe anxiety and mood disorders.  Restrictions on liberty will reduce the capacity of a person with depression or anxiety to move away from a source of distress, or to engage in some of the strategies that may ameliorate symptoms of mental disorder.  Therefore, I consider that it would have been foreseeable that incarceration would result in deterioration in his mental health.

I have set out in summary the ongoing severe features of mood disorder and anxiety, associated with suicidal ideation, which have been apparent since his incarceration.  He is receiving appropriate medication and psychological input for his mental disorders.  Nevertheless his progress suggests that he will be likely to experience ongoing, fluctuating but clinically significant

symptoms of depression and post-traumatic stress disorder for the foreseeable future, despite optimal treatment.

The applicant’s submissions

1. The applicant submits that the evidence of Dr Tallent and, more specifically, the evidence of Dr Sullivan about the applicant’s mental health constitutes new evidence as described by Redlich JA[11] in R v Duy Duc Nguyen.[12]  In Nguyen, Redlich JA said:

   [11]With whom Maxwell P and Neave JA agreed.

   [12][2006] VSCA 184 (‘Nguyen’).

It is common ground that this Court may, in limited circumstances — sometimes described as ‘rare and exceptional’ — permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence.  The following principles apply to the admission of such evidence:

(i) the new evidence must relate to events which have occurred since the sentence was imposed; 

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence; 

(iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive; 

(iv)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea; 

(v)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive;  and 

(vi)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.[13]

[13]Ibid [36] (citations omitted).

1. Counsel for the applicant submitted that the diagnosis made by Dr Sullivan after the applicant was sentenced constituted new evidence which the applicant was entitled to have taken into account in sentencing.  It was submitted that a failure or a refusal to take this evidence into account would constitute a miscarriage of justice.  The new evidence was relied upon to engage principles 5 and 6 described in R v Verdins.[14]  That is, it was submitted that the applicant’s condition now diagnosed meant that the applicant’s sentence of imprisonment would weigh more heavily on him than it would on a person of normal mental health;  and that there was a serious risk of imprisonment having a significant adverse effect on the applicant’s mental health.

   [14](2007) 16 VR 269 (‘Verdins’).

Analysis

1. It may be accepted that the diagnosis made by Dr Sullivan after the applicant was sentenced is a matter that the judge would have been required to take into account if it had been known about, and put to the judge, at the time of sentencing.  However, at this stage of the proceeding, the evidence sought to be relied upon by the applicant is not admissible unless it is sufficiently compelling to demonstrate that there would be a miscarriage of justice if the applicant was not now permitted to rely on the material to which we have been referred.[15]

   [15]Rehal v The Queen [2015] VSCA 81 [26] (Kaye JA, with whom Osborn JA agreed).

1. We have considered fully all of the new medical material relied upon by the applicant in support of his application for an extension of time and his application for leave to appeal, including the diagnosis now made by Dr Sullivan.  In our view, however, it cannot be said that the material now relied upon is sufficiently compelling to demonstrate that there has been any miscarriage of justice in the imposition of the judge’s sentence in September 2013.

1. The sentence imposed by the judge was remarkably lenient.  As the judge correctly noted, the offences of aggravated burglary and rape were very serious.  They were committed while the applicant was undergoing a suspended term of imprisonment;  and they were committed in breach of an intervention order.  The applicant’s history of breaching intervention orders and committing offences against the complainant mandated stern punishment for these very serious crimes.  Moreover, the applicant was not entitled to any benefit that might have accrued from a plea of guilty or some demonstrable remorse.

1. Having given full consideration to the evidence which the applicant now seeks to rely upon, we are unable to conclude that any different sentences, or orders for cumulation, or non-parole period should now be imposed or fixed.  Accepting that the applicant has the psychiatric conditions diagnosed by Dr Sullivan and the consequences to which he refers, we are unable to conclude that any different sentence should now be imposed.  In our view, taking into account the applicant’s new material, the sentence imposed upon him was moderate, if not still at the lower end of the permissible range.

1. An extension of time should not be granted unless this Court is satisfied that the proposed appeal has real merit.[16]  In this case, even giving full effect to the applicant’s new material and the diagnosis and opinion of Dr Sullivan, there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed by the judge.[17]  In the circumstances, the application for an extension of time must be refused.

   [16]Cf Hopkins v The Queen [2015] VSCA 174 [24]. See further, R v Darby (Unreported, Supreme Court, Court of Criminal Appeal, Gowans, Lush and Crockett JJ, 2 May 1975); Kumar v The Queen [2014] VSCA 102 [8]; Kentwell v The Queen (2014) 252 CLR 601, 613–614 [29]–[33] (French CJ, Hayne, Bell and Keane JJ).

   [17]Criminal Procedure Act 2009 s 280(1).

Order

1. The application for an extension of time within which to seek leave to appeal against the sentence imposed on the applicant on 19 September 2013 is refused.

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