and Jason Liam Barnes v The Queen
[2014] VSCA 275
•31 October 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2014 0194 | |
| JASON LIAM BARNES | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | REDLICH and BEACH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 31 October 2014 | |
DATE OF JUDGMENT: | 31 October 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 275 | |
JUDGMENT APPEALED FROM: | DPP v Barnes (Unreported, County Court of Victoria, Judge Douglas, 18 June 2014 (date of conviction), 23 July 2014 (date of sentence)) | |
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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Intentionally causing injury – Damaging property – Methylamphetamine use – Moral culpability – Application of R v Verdins (2007) 16 VR 269 – Verdins principles 1, 3, 4 and 5 – No error disclosed – Sentence of 30 months' imprisonment, with non-parole period of 15 months – No different sentence should be passed – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M D Stanton | Balmer & Associates |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA
BEACH JA:
On 18 June 2014, the applicant pleaded guilty to one charge of intentionally causing injury contrary to s 18 of the Crimes Act 1958 and one charge of damaging property contrary to s 197(1) of the Crimes Act. On 23 July 2014, the applicant was sentenced to 30 months’ imprisonment on the charge of intentionally causing injury and 12 months’ imprisonment on the charge of damaging property. No order for cumulation was made, making a total effective sentence of 30 months’ imprisonment. The judge directed that the applicant serve a non-parole period of 15 months.
The applicant seeks leave to appeal on the following grounds:
1.The judge erred in finding beyond reasonable doubt that the applicant knew the likely consequences of taking methylamphetamine and in ruling that this amounted to an aggravating feature of the offending.
2.The judge erred in her application of the applicable Verdins[1] principles, and in particular by:
(a)failing to find that the applicant’s moral culpability was reduced by virtue of his intellectual disability (principle 1); and
(b)failing to find that a sentence of imprisonment would weigh more heavily on the applicant than it would on a person in normal health (principle 5).
[1]R v Verdins (2007) 16 VR 269 (’Verdins’).
Circumstances of the offending
The applicant and the complainant were in a relationship for about three months. The applicant moved into the complainant’s home in June 2013.
On 6 September 2013, the applicant repeatedly punched the complainant to the head and pushed her head into a wall. He then dragged her outside and locked the door for about two minutes before the complainant crawled inside and went to bed. While in bed the applicant repeatedly punched the complainant’s arms.
On 7 September 2013, the applicant punched the complainant.
On 9 September 2013, the applicant became angry after the complainant asked him where her mobile phone was. The applicant punched her right cheek and then punched her face at least four times. The complainant fell to the ground and the applicant then repeatedly kicked her to the stomach and head. The applicant dragged the complainant along the hallway to the bedroom where he hit her to the face. The complainant got into bed and the applicant punched her to the face. The complainant’s mouth began to bleed.
On 10 September 2013, the applicant punched the complainant multiple times to the face. He pushed her off the bed and hit her. The complainant repeatedly asked the applicant to stop. The applicant told her to shut up. The assaults committed on the complainant on 6, 7, 9 and 10 September 2013 constituted charge 1, a rolled-up charge. In pushing the complainant’s head into a wall on 6 September 2013, the applicant caused damage to the plasterboard. Those acts constituted charge 2.
Police were called to the complainant’s home. The police knocked on the door and identified themselves. The applicant covered the complainant’s mouth and told her to shut up. About 15 minutes later, police knocked on the front door again. The applicant answered the door, the police entered the house and found the complainant in a bedroom.
As a result of these incidents, the complainant sustained the following injuries:
(a) swelling and bruising to her face, including right cheek and jaw;
(b) bruising to both eyes;
(c) bruising over her left temple;
(d) bruising over the right side of her face and neck;
(e) tenderness to the muscles on the front sides of the neck;
(f) bruising over the top of the chest;
(g) bruises on the abdomen next to the right hip bone;
(h) bruising to both arms and shoulders;
(i) bruising to both legs; and
(j) bruising to the right hand near the thumb.
The applicant’s knowledge of the consequences of taking methylamphetamine (ground 1)
At the time of his offending, the applicant was affected by methylamphetamine. While the judge’s reasons for sentence[2] do not expressly state that the judge regarded this as an aggravating feature of the offending, we are prepared to accept from the transcript of the plea hearing and the Reasons that her Honour did approach the issue in this way. Indeed, the Crown’s response to the applicant’s written case proceeds on this basis.
[2]DPP v Barnes, Unreported County Court, Judge Douglas, delivered 23 July 2014 (‘Reasons’).
In ground 1, the applicant makes complaint that the judge erred in finding beyond reasonable doubt that the applicant knew the likely consequences of taking methylamphetamine and ruling that this amounted to an aggravated feature of the offending. There can be no doubt that if the applicant knew the likely consequences of taking methylamphetamine then this was an aggravating feature of the offending. The real issue so far as ground 1 is concerned is whether the judge was right to conclude beyond reasonable doubt that the applicant knew the likely consequences of his consumption of methylamphetamine.
The Crown contends there is nothing in ground 1 for two reasons: first, the Crown notes that no issue was taken, by trial counsel for the applicant,[3] before the judge to the proposition that the applicant’s consumption of methylamphetamine was an aggravating feature (this in spite of two occasions during the course of the plea where one might have expected counsel to take issue with the matter if the matter was in dispute); and secondly that, in any event, the evidence well permitted the judge to conclude beyond reasonable doubt that the applicant knew the likely consequences of taking methylamphetamine.
[3]Not counsel who appeared for the applicant before this Court.
The applicant’s argument in respect of ground 1 centred upon the proposition that the applicant is so intellectually disabled as to have required the judge to have a reasonable doubt as to whether the applicant knew from his past consumption of methylamphetamine the likely consequences of taking methylamphetamine at the time of his offending.
A number of reports were tendered on the plea hearing. These reports disclose that the applicant’s cognitive functioning is ‘at the lower end of the low average range’. In one of the reports, the applicant is described as suffering from ‘a mild intellectual disability’. In another report, the applicant’s IQ is stated to be between 54 and 62.
If all one knew was that the applicant was intellectually disabled to the extent we have described then one might well entertain a reasonable doubt as to whether the applicant knew of the consequences of taking methylamphetamine by reference to his previous drug taking.[4] However, as the Crown points out, there are passages in the applicant’s histories contained in the medical reports that describe the applicant’s knowledge of the effects of taking methylamphetamine. In the light of those passages, and the failure of the applicant’s counsel during the plea hearing to take issue with the proposition that the applicant knew the consequences of taking methylamphetamine, it was well open to the judge to find as she did in relation to the applicant’s knowledge of the consequences of taking methylamphetamine. Ground 1 is without substance.
[4]See generally, Muldrock v The Queen (2011) 244 CLR 120, 137–139 [50], [53] and [54].
Verdins principles (ground 2)
In ground 2, the applicant complains that the judge failed to find that Verdins principles 1 and 5 were engaged in the circumstances of this case. Specifically, the applicant contends that the judge erred in failing to find that his moral culpability was reduced by virtue of his intellectual disability (principle 1) and that a sentence of imprisonment would weigh more heavily on him than it would on a person with a normal intellect (principle 5). The applicant contends that notwithstanding the reliance placed by his counsel on the plea hearing upon Verdins principles 1 and 5, in sentencing the applicant, the judge only accepted the application of principles 3 and 4.
With reference to Verdins, the judge said:
It has been put on your behalf that your intellectual disability is such that R v Verdins, Buckley and Vo (2007) 16 VR 269 is applicable and I ought consider you for a community correction order with a justice plan, thus you do not serve any further terms of imprisonment.
I accept that given your intellectual disability and cognitive function as set out by Ms Lechner and Dr Sullivan in the context of your dysfunctional upbringing where you were neglected and not cared for by responsible adults, your early alcohol and drug abuse and lack of education has contributed to your inability to make sound judgments, in particular taking drugs such as ice.
In R v Verdins, Buckley and Vo, the Court of Appeal provided:
“Impaired mental functioning, whether temporary or permanent, the condition is relevant to sentencing in at least six ways.”
I accept the following factors apply: “(3), that general deterrence should be moderated as a sentencing consideration”.
The Court of Appeal said that
“depends upon the nature and severity of the symptoms exhibited by the offender and the effect of the condition on the mental capacity of the offender, whether at the time of offending or at the date of sentence or both.
I also accept Factor No. 4,
“that specific deterrence should be moderated as a sentencing consideration, and the same factors that apply to general deterrence, namely the nature and severity of the sentence as exhibited by the offender and the condition on the mental capacity of the offender at the time of the offending and at the time of sentence. [5]
[5]Reasons [54]–[59].
The applicant’s complaint that the judge failed to find that his moral culpability was reduced by virtue of his intellectual disability is without substance. Notwithstanding the judge’s failure to make express reference to Verdins principle 1, the judge said that she accepted ‘that general and specific deterrence, denunciation and punishment will be given less weight as [the applicant was] a person with an appalling upbringing through no fault of [his] and cognitive limitations’.[6] The reference to ‘denunciation and punishment’ and the acceptance by the judge that those factors should be given less weight, was an acceptance by the judge of the applicability in this case of principle 1.[7]
[6]Reasons [19] (emphasis added).
[7]Principle 1 being that a relevant impairment of mental functioning can reduce the moral culpability of the offending conduct so that such condition affected the punishment that was just in all the circumstances; and denunciation was less likely to be a relevant sentencing objective.
So far as the applicant’s contention that the judge erred by failing to find that a sentence of imprisonment would weigh more heavily on the applicant than it would on a person of normal intellect is concerned, the answer to this contention is that there was no dispute about this during the plea hearing. In the circumstances, while it may have been better if the judge had made express reference to this matter in her reasons for sentence, we are not prepared to conclude that the judge did not accept, and take into account, the fact that imprisonment would likely weigh more heavily on the applicant as a result of his intellectual impairment.
For completeness, we note that, in the Reasons, the judge said that she took into account the matters put on behalf of the applicant in mitigation by the applicant’s counsel.[8] There is no suggestion in the reasons that the judge (contrary to this statement) failed to accept the applicant’s submission that Verdins principle 5 was engaged.
[8]Reasons [48].
Conclusion
For these reasons, grounds 1 and 2 are without substance. That said, we are also of a view, in this case that involved difficult and competing sentencing considerations, notwithstanding the applicant pleaded guilty at the earliest opportunity and has shown remorse, in the light of the circumstances of the offending and the applicant’s significant prior criminal history,[9] that it is not reasonably arguable that any different sentence should have been imposed by the judge.[10]
[9]Reasons [5]–[13].
[10]See ss 280(1) and 281 of the Criminal Procedure Act 2009.
The application for leave to appeal must be refused.
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