Baker (a pseudonym) v The Queen

[2021] VSCA 158

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0005

JOHNIE BAKER (A PSEUDONYM) [1]	Applicant
v
Respondent
THE QUEEN

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

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JUDGES:	McLEISH and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 May 2021
DATE OF JUDGMENT:	9 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 158
JUDGMENT APPEALED FROM:	[2019] VCC 2096 (Judge Carmody)

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CRIMINAL LAW – Appeal – Sentence – Causing injury recklessly – Applicant pushed complainant’s head into pot of boiling water, failed to call ambulance and urged complainant to conceal offending – Context of ongoing family violence in breach of intervention orders – Guilty plea – Serious offending – Whether sentence of 3 years’ imprisonment manifestly excessive – Despite mitigating factors, sentence not outside available range – Crimes Act 1958 s 18.

CRIMINAL LAW – Appeal – Sentence – Attempting to pervert the course of justice – Applicant urged complainant to withdraw complaint, threatening suicide, distribution of intimate images, and withholding ashes of stillborn child – Whether sentence of 2 years’ imprisonment with 1 year cumulation manifestly excessive – Neither sentence nor cumulation manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Tyler Tipping & Woods
For the Respondent	Mr J Dickie	Ms A Hogan, Solicitor for Public Prosecutions

McLEISH JA
OSBORN JA:

1. The applicant pleaded guilty in the County Court to 14 charges arising out of violence inflicted by him on his former partner over a period of some 18 months.  He seeks leave to appeal against the sentence imposed on two of those charges (being charges 5 and 8). 

1. The offending involved four charges of causing injury recklessly,[2] three charges of contravening a family violence intervention order intending to cause harm or fear for safety,[3] one charge of attempting to pervert the course of justice,[4] one charge of stalking,[5] one charge of persistent contravention of a family violence intervention order[6] and four related summary charges.[7] 

   [2]Crimes Act 1958 s 18.

   [3]Family Violence Protection Act 2008 s 123A(2).

   [4]Contrary to the common law.

   [5]Crimes Act 1958 s 21A.

   [6]Family Violence Protection Act 2008 s 125A.

   [7]Two charges of unlawful assault, one charge of throwing a missile and one charge of threatening to distribute an intimate image: Summary Offences Act 1966 ss 7(g), 23, 41DB.

1. Charge 5 was one of the recklessly causing injury charges.  Charge 8 was the charge of attempting to pervert the course of justice. 

1. After a plea in mitigation, the applicant was sentenced on 12 December 2019 to be imprisoned for 5 years and 3 months, with a non-parole period of 3 years and 6 months, as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Causing injury recklessly	5 years	6 months	2 months
2	Contravening a family violence intervention order intending to cause harm or fear for safety	5 years	6 months	Concurrent
3	Causing injury recklessly	5 years	6 months	2 months

4	Contravening a family violence intervention order intending to cause harm or fear for safety	5 years	6 months	Concurrent
5	Causing injury recklessly	5 years	3 years	Base
6	Contravening a family violence intervention order intending to cause harm or fear for safety	5 years	6 months	Concurrent
7	Causing injury recklessly	5 years	9 months	2 months
8	Attempting to pervert the course of justice	25 years	2 years	12 months
9	Stalking	10 years	6 months	Concurrent
10	Persistent contravention of a family violence intervention order	5 years	12 months	6 months
Related summary offences
1	Unlawful assault	3 months	1 month	1 month
2	Throwing a missile	6 months	1 month	Concurrent
13	Unlawful assault	3 months	1 month	1 month
29	Threatening to distribute an intimate image	12 months	3 months	1 month
Total effective sentence		5 years and 3 months’ imprisonment
Non-parole period		3 years and 6 months’ imprisonment
Pre-sentence detention declared		477 days
Section 6AAA statement		7 years and 9 months’ imprisonment with a non-parole period of 5 years and 6 months
Ancillary order		Forensic procedure order (pursuant to Crimes Act 1958 s 464ZF)

Circumstances of offending

1. At the time of the offending, the applicant was between 21 and 23 years old.  The victim of the offending, Ella Anderson[8] was between the ages of 18 and 20.

   [8]To avoid identifying the complainant, a pseudonym has been used.   

1. The applicant and Ms Anderson commenced a de facto relationship in early 2016 and moved briefly to Queensland.  Whilst there, a domestic violence intervention order protecting Ms Anderson from the applicant was issued on 30 August 2016.  In September 2016, the applicant and Ms Anderson returned to Victoria and the intervention order was registered in Victoria.  The order was varied on 24 October 2016 so that the applicant could reside with Ms Anderson.

1. The applicant used illicit drugs including cannabis throughout their relationship.  The prosecution case was that he was controlling and verbally abusive and often physically violent toward Ms Anderson, particularly when he was unable to source and consume cannabis.  He also smoked methylamphetamine when angry.

1. Ms Anderson fell pregnant to the applicant in June 2017.  On 29 March 2018, two weeks prior to her expected delivery date, she was taken to hospital by ambulance due to abdominal pains.  Medical tests revealed that the baby was deceased due to a tear in Ms Anderson’s womb that had worsened during the course of the pregnancy.  The applicant blamed Ms Anderson for the loss of their baby.  The baby was cremated and the ashes were placed in an urn which was retained by Ms Anderson.

1. For the purposes of the plea, the offending was separated into 10 incidents.  Charge 5 formed part of the third incident identified.  Charge 8 formed part of the tenth, which comprised a series of incidents. 

1. First, at some point between 1 and 15 February 2017, the applicant had an argument with Ms Anderson.  He became angry and struck her in the left eye region which caused immediate pain.  As a result of the blow, Ms Anderson received bruising around her eye which remained for approximately 10 days (charge 1 —causing injury recklessly and charge 2 — contravening a family violence intervention order intending to cause harm or fear for safety).

1. On a second occasion between the same dates, in the course of an argument, the applicant punched Ms Anderson to the head and she fell backwards, striking her head on a couch.  This caused her to lose consciousness for a short time (charge 3 —causing injury recklessly and charge 4 — contravening a family violence intervention order intending to cause harm or fear for safety).

1. Thirdly, on 29 August 2017, the applicant accused Ms Anderson of having an affair.  At the time, Ms Anderson was in the kitchen cooking and attending to a pot of boiling water on the stove.  The applicant went into the kitchen and screamed in her face.  A physical struggle ensued during which the applicant pushed Ms Anderson’s head into the boiling pot of water.  When the applicant saw that Ms Anderson’s face had begun blistering, he carried her to the shower and called her mother.  He did not call an ambulance, and a friend took Ms Anderson to hospital.  The applicant told Ms Anderson that if asked, she was to say that the scalding to her face and body was caused by her knocking the pot from the stove.  He also told her not to stay at the hospital but to return home to him.  After Ms Anderson returned home after treatment for her burns, the applicant blamed Ms Anderson for her injury, calling her ‘stupid’ and ‘clumsy’ (charge 5 — causing injury recklessly and charge 6 — contravening a family violence intervention order intending to cause harm or fear for safety).

1. Fourthly, on 18 July 2018, the applicant and Ms Anderson woke to find that the electricity to their house had been disconnected due to an unpaid invoice.  This caused the applicant to become angry.  Ms Anderson decided to leave the house and as she was doing so the applicant pushed her in the back.  The applicant threw a brick at her.  She was able to dodge the brick and it narrowly missed her (summary charge 1 — unlawful assault and summary charge 2 — throwing a missile).

1. Fifthly, on 5 August 2018, Ms Anderson was with David Noble[9] at a friend’s house.  At around 2 pm the applicant knocked on the door and walked into the house.  Ms Anderson and Mr Noble immediately walked out of the house and went directly to Mr Noble’s car which was parked in the driveway.  Ms Anderson sat in the passenger seat and Mr Noble sat in the driver’s seat.  The applicant approached Ms Anderson, leant into the car and spat in her face.  He said to her, ‘That’s what I think of you.  Your son (referring to their stillborn child) would be disgusted in you’ (charge 10 — persistent contravention of a family violence intervention order and summary charge 13 — unlawful assault).

   [9]To avoid identifying the complainant, a pseudonym has been used.

1. Sixthly, on 10 August 2018, Ms Anderson was once again with Mr Noble at a friend’s house.  The applicant attended the house looking for Ms Anderson.  She hid in a room.  Eventually, the applicant spoke with Ms Anderson and she returned with him to their house where she stayed for the weekend (charge 10 — persistent contravention of a family violence intervention order).

1. Next, on 13 August 2018, the applicant and Ms Anderson were walking in a park near their house when the applicant accused Ms Anderson of sleeping with other men.  He pushed her up against a fence and punched her to the face.  He then grabbed her by the jacket and around her neck region.  As a result of this incident, Ms Anderson suffered a black eye and bruising to her neck and chin (charge 7 —causing injury recklessly and charge 10 — persistent contravention of a family violence intervention order). 

1. Eighthly, between 16 to 17 August 2018, the applicant made approximately 100 telephone calls to Ms Anderson (about 80 of which connected) and sent her approximately 30 text messages.  During these communications the applicant threatened Ms Anderson (charge 9 — stalking and charge 10 — persistent contravention of a family violence intervention order).

1. Ninthly, on 17 August 2018, the applicant sent six text messages to Ms Anderson in which he threatened to take possession of the ashes of their stillborn child (charge 9 — stalking).

1. The tenth series of incidents commenced on 18 August 2018 when the applicant sent 13 text messages to Ms Anderson.  In these messages, he abused her and made reference to their stillborn child.  The applicant also threatened suicide.  On 19 August 2018, he sent a further 11 text messages to Ms Anderson.  He again abused her and threatened to commit suicide.  He also sent Ms Anderson a photograph of their stillborn child. 

1. On 22 August 2018, the applicant sent a further 29 text messages to Ms Anderson.  The messages included a threat to distribute an intimate image of Ms Anderson to others.  

1. In the days leading up to 22 August 2018, the applicant threatened and manipulated Ms Anderson into allowing him to take possession of the urn containing the ashes of their stillborn child.  Once he obtained the urn, he told Ms Anderson that, unless she withdrew her complaints against him she would never have access to the urn or ashes again.  He sent text messages to her demanding that she tell the police that she had lied in her statements and that she wanted to withdraw her complaints against him.

1. The applicant also informed Ms Anderson that she was responsible for him going to gaol and that she should jump in front of a truck.  He again threatened to commit suicide, adding that, if he did, it would be her fault, and again threatened to distribute intimate images of Ms Anderson if she did not withdraw her complaints (charge 8 — attempting to pervert the course of justice, charge 9 — stalking, charge 10 — persistent contravention of a family violence intervention order, summary charge 29 — threatening to distribute an intimate image).

1. The applicant was arrested on 22 August 2018 and was interviewed by police.  In his interview, the applicant denied all allegations.  He said that Ms Anderson had either deliberately or accidentally injured herself on each occasion.  In respect of the text and phone messages, the applicant said that a friend had access to his mobile phone and may have contacted Ms Anderson.  He also told police that the death of his child had a traumatic effect on him.

Proposed grounds of appeal

1. The application for leave to appeal contains three proposed grounds, as follows:

Ground 1:The sentence imposed on indictment charge 5 is manifestly excessive in all the circumstances. 

Ground 2:The sentence imposed on indictment charge 8 is manifestly excessive in all the circumstances.

Ground 3:The cumulation order fixed in respect of charge 8 is manifestly excessive in all the circumstances.

Proposed ground 1 — manifest excess (charge 5)

1. The applicant accepted that the offending under charge 5 was serious and involved disgraceful conduct on his part.  It was conceded that a significant term of imprisonment was warranted.  However, the applicant submitted that the sentence imposed was manifestly excessive because it failed to give sufficient weight to a number of important mitigating factors.  Those factors included the applicant’s plea of guilty which spared Ms Anderson from giving evidence.  As an early plea, there was no need for Ms Anderson to be the subject of cross-examination.  Given that Ms Anderson was young and had endured an unstable relationship characterised by domestic violence, it was submitted that it is sound public policy to award an offender in such a case with a real discount upon the entry of a plea.  It was submitted that the applicant had demonstrated real remorse.  Further, there was some evidence suggesting that Ms Anderson had made a full recovery from her physical injuries with no obvious scarring. 

1. Next, the applicant was youthful at the time of the offending and ill-equipped to handle the vicissitudes of a domestic relationship.  He was a person who presented with a traumatic background, having been exposed to violence and neglect from caregivers at an early age.  He was assessed as having an IQ of 67.  A report prepared by forensic psychologist Dr Aaron Cunningham concluded that the applicant’s intellectual functioning was in the extremely low range and his general thinking and reading ability were in the bottom 1 per cent of peers of his age.  He was assessed as prone to paranoia and perceiving threats where others would not, and then reacting inappropriately to those perceived threats.  His overall thinking and reasoning skills were consistent with an intellectual disability.  Counsel submitted that the principles in Bugmy v The Queen[10] were attracted. 

   [10](2013) 249 CLR 571.

1. It was submitted that there was a causal connection between the applicant’s impairment and the offending.  The applicant had a limited ability to think and reason or to regulate emotional states.  It was said that Verdins principles 1, 3, and 4 were applicable.[11]

   [11]R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).

1. At the time of the plea hearing, the applicant had spent 477 days in custody, housed in maximum security and for much of that time in solitary confinement.  He had remained drug-free whilst in custody and had attended an anger management course and a drug and alcohol course.  He had also taken up religion and engaged in daily prayer. 

1. It was submitted that, in all the circumstances, a sentence of 3 years’ imprisonment, despite the fact that the offending was at the upper end of the range for the offence of causing injury recklessly, failed to reflect the significant mitigating features upon which the applicant relied.

1. In our view, the argument that the sentence imposed on charge 5 was manifestly excessive cannot be sustained.  This was an extremely grave case of recklessly causing injury.  It was unprovoked and took place in the context of ongoing violence against Ms Anderson within a domestic relationship.  The offending was aggravated by the fact that the applicant did not call an ambulance and instructed Ms Anderson to conceal his role in her injuries and not to remain in hospital.  The psychological effects on Ms Anderson have been understandably significant.  There was conflicting evidence as to whether she suffered any permanent facial scarring from the assault, but ultimately the fact that that injury did not come into the category of serious injury is not a mitigating factor for this offence.[12]  It is significant that the offence took place in breach of an ongoing family violence intervention order and a community correction order for similar offending.  It is also significant that the offence took place after other acts of violence directed at the same victim, and that the applicant had prior convictions involving violence, having only just been released from prison.

   [12]Causing serious injury recklessly is a separate and more serious offence: Crimes Act s 17.

1. The applicant’s traumatic upbringing and intellectual impairment were suggestive of some diminution in moral culpability and some moderation of general and specific deterrence, but that must itself be tempered against the role that methylamphetamine abuse had in this case.  Dr Cunningham stated:

In my opinion, [Mr Baker’s] abuse of methylamphetamine significantly aggravated these impairments.  At the time of the offending, [Mr Baker] was abusing methylamphetamine.  The couple had been through a significant stress with regard to a stillbirth.  The relationship was unstable.  [Mr Baker] presents with significant distortions with regard to the appropriateness of his actions.  In my opinion, this is a reflection of his intellectual impairment.  He does not have significant skills to consider alternatives when confronted with his paranoid ideations.  In my opinion, a combination of intellectual impairment, symptoms of trauma and methylamphetamine abuse contributed to his offence behaviour.  He continues to present with distortions regarding his offence behaviour.  He acknowledges some of his actions and minimises others.

1. In all the circumstances, the infliction of such horrific violence against a woman at the hands of her domestic partner in their own home called for denunciation, just punishment and general deterrence, especially in the context of persistent defiance of a family violence intervention order and bearing in mind the applicant’s criminal history.  In that context, specific deterrence also remained a relevant consideration.  We accept that the mitigating features to which the applicant referred were matters of weight that fell to be taken into account, as we have discussed.  However, even when that is done, we are unable to conclude that the sentence was outside the range available to the sentencing judge.  To the contrary, bearing in mind that this was an offence at the upper end of the range, punishable by a maximum term of 5 years’ imprisonment, a sentence of 3 years on a guilty plea was well open.

1. Leave should be refused in respect of proposed ground 1.

Proposed ground 2 — manifest excess (charge 8)

1. The applicant was sentenced to 2 years’ imprisonment on charge 8, attempting to pervert the course of justice.  The applicant submitted that, while attempting to pervert the course of justice is always serious, this example fell at the lower end of the range of possible offending.  It was submitted that the applicant was a young offender who was in a severe emotional state over the breakdown of his relationship and the death of his unborn child, and that the offending, although comprising a high volume of text messages, occurred over a relatively short period of time.   

1. We accept that the offending was in the lower range of seriousness for the offence of attempting to pervert the course of justice, bearing in mind that the offence potentially captures a very wide range of conduct.  However, any attempt to pervert the course of justice is to be viewed seriously and denounced appropriately.[13]  The maximum sentence for that offence is 25 years’ imprisonment. 

   [13]See Carter v The Queen [2020] VSCA 156, [70] (Niall and Weinberg JA) (‘Carter’).

1. Moreover, this offending involved aggravating features which distinguish it from offending of less seriousness.  It took place in the context of a history of violence, manipulation and coercion against Ms Anderson and involved an attempt to pervert the course of justice in respect of his own serious offending.  That serves to make the attempt itself more serious.[14]  Further, the offending had the especially unpleasant features of seeking to exploit Ms Anderson’s emotional and psychological vulnerability by threatening her ability to access the ashes of her stillborn child and also threatening her dignity and right to privacy with the exposure of intimate images. 

   [14]Mercer (a pseudonym) v The Queen [2021] VSCA 132, [65] (Maxwell P, Beach and T Forrest JJA) (‘Mercer’).

1. An attempt by a perpetrator of family violence to prevent a victim from seeking the full protection of the law and their physical and emotional safety is a very serious matter which calls for general deterrence and denunciation.  While warranting distinct punishment, however, care must be taken not to punish the offender again for the offending which it was sought to conceal.  Notwithstanding the mitigating features to which we have referred, we are unpersuaded that the sentence of 2 years’ imprisonment was outside the range of sentencing options available to the judge.[15]

   [15]See also Mercer, where a sentence of 3 years and 6 months’ imprisonment (18 months of which was cumulated), after a trial for attempting to pervert the course of justice in the context of persistent contraventions of family violence intervention orders, was upheld by this Court despite the absence of explicit threats.

1. Leave to appeal on proposed ground 2 should also be refused.

Proposed ground 3 — manifest excess (cumulation on charge 8)

1. Finally, the applicant submits that the period of 12 months’ cumulation ordered in respect of charge 8 was manifestly excessive in the circumstances.  In particular, the applicant submitted that the period of cumulation, taken together with the sentence imposed upon charge 5, failed to accord with the principle of totality.

1. We disagree.  Charge 8 involved repeated attempts by the applicant to conceal his wrongdoing over the previous 18 months, by means of emotional and physical threats directed at Ms Anderson.  It was distinct offending that called for significant additional punishment.[16]  We do not think that the total effective sentence of 5 years and 3 months’ imprisonment for the offending over a period of 18 months reveals a departure from the principle of totality.

   [16]See Carter [2020] VSCA 156, [72].

1. In all the circumstances, it was plainly open to the sentencing judge to order that 12 months of the sentence on charge 8 be served cumulatively upon the other sentences.

1. Leave to appeal on this proposed ground should be refused.

Conclusion

1. Leave to appeal will be refused.

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