Baldwin v The Queen
[2015] VSCA 299
•18 November 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0119
| ADAM BALDWIN |
| v |
| THE QUEEN |
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| JUDGES: | WHELAN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 November 2015 |
| DATE OF JUDGMENT: | 18 November 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 299 |
| JUDGMENT APPEALED FROM: | DPP v Baldwin [2015] VCC 688 |
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CRIMINAL LAW – Sentence – Combined term of 2 years’ imprisonment and community correction order – No non-parole period set – Circumstances referred to in s 11(1)(b) Sentencing Act 1991 not considered – Specific error – Appeal allowed – Appellant re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms B F Franjic with Mr S J Tovey | Matthew White & Associates |
| For the Respondent | Ms D Piekusis | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WHELAN JA:
On 14 May 2015 the appellant pleaded guilty to one charge of recklessly causing serious injury. The offence had been committed on 22 October 2014. A plea hearing was conducted on 14 May 2015 and on 22 May 2015 the appellant was sentenced to a term of imprisonment of two years and a community correction order (CCO) of two years’ duration commencing upon the expiration of the imprisonment. No non-parole period was fixed. No reasons were given at that time for not fixing a non-parole period.
The matter was brought back before the sentencing judge on 28 May 2015. The sentencing judge was referred to s 11(1) of the Sentencing Act 1991 which reads as follows:
(1)If a court sentences an offender to be imprisoned in respect of an offence for—
(a) the term of his or her natural life; or
(b) a term of 2 years or more—
the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.
On 28 May 2015 it was submitted on behalf of the appellant that the sentencing judge should fix a non-parole period. After hearing submissions from the respective counsel, the sentencing judge said:
I think the problem here is that s 11(1) has not been resorted to very much and it’s now — because the focus of the court in cases where since Boulton and since the provision of a two year sentence followed by a CCO, those two things have brought about a situation where the focus is very much on determining a straight sentence followed by a CCO with no parole because of the problems that are known about these days and the error really resides in not having made it clear that — well perhaps my intention was clear, that he was to serve two years but that needed to be backed up with reference to s 11(1) because obviously that needs to be stated by the judicial officer at the time of sentence and if I’d done so, that would not — it would not bring us here today. So I think that’s where the matter rests, that I — perhaps I could just take it a step further in that the gaol calendar might need to be amended to reflect the reliance upon that section.
After the hearing on 28 May 2015 what might be described as an addendum to the sentencing reasons was added in the following terms:
28 MAY 2015
The matter was brought on for mention by Defence seeking to have a non-parole period imposed.
Pursuant to s 11(1)(b) of the Sentencing Act 1991 Her Honour considered that the nature of the offence and the past history of the offender made the fixing of a non-parole period inappropriate.
Leave to appeal
On 14 September 2015 the appellant was given leave to appeal on two grounds.[1] They are:
1. The total sentence imposed is manifestly excessive.
2.The learned sentencing judge erred by failing to fix a non-parole period.
[1]Baldwin v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 14 September 2015).
Boulton
The sentencing judge’s reference on 28 May 2015 to Boulton was a reference to this Court’s decision in Boulton v The Queen (‘Boulton’).[2] Boulton was a guideline judgment of this Court under s 6AB of the Sentencing Act concerning CCOs.
[2][2014] VSCA 342.
CCOs have been available as a sentencing option since January 2012. In September 2014 the Sentencing Amendment (Emergency Workers) Act 2014 commenced. Amongst other things, that Act inserted into the Sentencing Act significant new provisions concerning CCOs. One of those new provisions (a substituted s 44(1)) increased the maximum term of imprisonment which could be combined with a CCO from three months to two years.
The guideline judgment in Boulton emphasised the significance of the amendments which came into operation in September 2014. Appendix 1 to the judgment set out guidelines which the Court described as being useful for sentencing courts without the need to refer to the full judgment. Guidelines 26 and 27 read as follows:
A CCO can be combined with other sentencing options, including a fine and/or a term of imprisonment of up to two years. The availability of that kind of combination adds to the flexibility of the CCO regime.
Consequently, even in cases of objectively grave criminal conduct, the court may conclude that some or all of the punitive, deterrent and denunciatory purposes of sentencing can be sufficiently achieved by a short term of imprisonment of up to two years if coupled with a CCO of lengthy duration, with conditions tailored to the offender’s circumstances and the causes of the offending, directed at rehabilitative purposes.
In the judgment itself the interaction between parole and a CCO was addressed.[3] This Court concluded:
VLA (Victorian Legal Aid — an intervenor) made detailed submissions about the advantages and disadvantages of combining a non-parole period with a CCO. We agree, for the reasons advanced by VLA, that there are significant conceptual and practical difficulties in such a combination, and that the sentencing court should ordinarily treat them as alternatives.[4]
[3]Ibid [196]–[200] (citations omitted).
[4]Ibid [199] (citations omitted). I addressed differences between the two regimes of supervision in Manariti v The Queen [2015] VSCA 160 [36]–[37].
It is clear from the transcript of 28 May 2015, the relevant part of which I have quoted, that her Honour determined not to fix a non-parole period for the reason given by this Court in Boulton.
The issue, then, is whether that course can be followed consistently with s 11(1)(b) where a term of imprisonment of two years (the maximum term that can be combined with a CCO) is imposed.
Basis for not fixing a non-parole period under s 11(1)(b)
In R v Lowe[5] this Court (constituted by Winneke P, Brooking JA and Southwell AJA) said (addressing s 11(1)(a)):
Adverse facts alone, of two kinds — to be found in the nature of the offence or the past history — will warrant a determination not to fix a non-parole period, but in considering whether those adverse facts make it appropriate to determine not to fix one the court must have regard to the head sentence (whether it be a life sentence or a determinate sentence) and consider, in the light of the purposes which the fixing of a non-parole period is intended to serve and having regard to the head sentence, the adverse facts are such that the possibility of parole should be denied.[6]
[5][1997] 2 VR 465 (‘Lowe’).
[6]Ibid 488–9.
More recently, in Hunter v The Queen[7] this Court addressed the reasons which may warrant a refusal to fix a non-parole period where s 11(1) applies. The majority (Maxwell P and Coghlan JA), after quoting the terms of the sub-section, said:
Several points may be noted about this provision. First, it imposes a statutory obligation on a sentencing judge to fix a non-parole period unless the judge considers that the fixing of such a period is inappropriate. Secondly, the phrase ‘unless [the court] considers’ makes it clear that it is for the sentencing judge to form his/her own opinion on the question whether the fixing of a non-parole period would be inappropriate. Thirdly, the subsection specifies ‘adverse facts alone, of two kinds … [which] will warrant a determination not to fix a non-parole period’,[8] namely:
·the nature of the offence; and
·the past history of the offender.[9]
[7](2013) 40 VR 660 (‘Hunter’).
[8]Lowe [1997] 2 VR 465, 488.
[9]Hunter (2013) 40 VR 660, 662 [6].
The third member of the Court, Priest JA, who dissented but not in relation to this issue, said:
Section 11(1) of the Sentencing Act 1991 makes plain that a sentencing court may only refuse to fix a non-parole period if ‘the nature of the offence’ or ‘the history of the offender’ justify such a course. The purpose of scrutinising the nature of the offence and the history of the offender can only be to determine whether there is any utility in mitigating the period of a prisoner’s confinement by the possibility of conditional release on parole. There may be cases — albeit exceptional — where the characteristics of a given offence, or the criminal history of an offender, demonstrate that it is appropriate to refuse the possibility of parole.[10]
[10]Ibid 684 [114].
If a judge determines not to fix a non-parole period where s 11(1) applies reasons must be given. In Iddon v The Queen (‘Iddon’) the Court of Criminal Appeal (constituted by Crockett, Murray and Hampel JJ) said:
If the prisoner is to be denied that to which he is prima facie entitled he should be given some rational reason for the denial. That means he must be told what it is that makes his offence of such a nature and what are the antecedents and what there is about them that is considered sufficient to disallow him the benefits of parole.[11]
[11](1987) 32 A Crim R 315, 326.
It is not sufficient for a sentencing judge to simply repeat the matters to which the section refers. In Iddon the Court of Criminal Appeal said:
The judge gave no reasons for not doing so. He merely repeated the words of the section [then the Penalties and Sentencing Act 1985 (Vic), s 17(2)], namely, that the nature of the offence and the antecedents of the offender rendered the fixing of a minimum term inappropriate. Repetition of the section’s words does not provide the reason for considering the adoption of such a course to be inappropriate.[12]
[12]Ibid 325.
Sentencing error and requirement to re-sentence
Notwithstanding the cogent reasons why a sentencing judge might determine not to fix a non-parole period when he or she intends to impose a CCO commencing upon expiry of the term of imprisonment, s 11(1)(b) requires that a non-parole period must be fixed if a term of imprisonment of two years is imposed unless the circumstances referred to in that section apply. As was properly conceded by counsel for the respondent here, the judge did not address the matters provided for in s 11(1). Rather, she was motivated not to impose a non-parole period because of the matters which had been addressed in Boulton.
A sentencing error having been properly conceded, it is necessary to re-exercise the sentencing discretion. In the circumstances it is not necessary to consider the ground of manifest excess.
Circumstances of the offending
On 22 October 2014 the appellant was at a house in St Albans, drinking in a group which included: his mother, Dianne Baldwin; an associate, Tim Briscoe; the victim, Kevin Roland; and the appellant’s friend, Dale McCalman, who was the occupier of the house. The victim, Roland, was aged 51 years.
During the evening, the appellant left to buy more alcohol and to run some other errands. Roland had been drinking heavily. He became aggressive and began throwing things around the house. Dianne Baldwin told him to stop, which angered him more. He pushed her. She told Tim Briscoe to go and get her husband, Glen Earl, from their nearby home. Briscoe did so.
A short time later Briscoe and Earl arrived at the McCalman house and Briscoe pointed out Roland to Earl. Earl punched Roland to the face causing him to fall to the floor. Briscoe and Earl then left.
When the appellant returned to his home he was told what had occurred. He became angry and said that he wanted to return to the McCalman house to let Roland know he could not push his mother around. The appellant knew that Roland had been punched already and that he had fallen to the floor.
The appellant and Earl then went to the McCalman house and saw Roland lying on the kitchen floor. The appellant went to help him up, at which point Roland started throwing punches at the appellant. The appellant then stomped on his face and kicked him in the lower back and in the face several times. Earl told the appellant to stop. The appellant then left the house and returned home. McCalman found Roland on the kitchen floor and called 000.
Roland was admitted to hospital in an intensive care unit and had chest tubes inserted on both sides and an endotracheal tube for breathing. He was discharged to a ward after several days. He spent nearly two-and-a-half weeks in hospital. His injuries were bilateral rib fractures, bilateral pneumothorax, nasal bone fractures requiring plastic surgery, and a frontal haematoma. The opinion of a forensic physician who examined the medical records was that the chest injuries were potentially fatal. There is no evidence of any lasting effects suffered by the victim.
Guilty plea, co-offender and personal circumstances
The appellant initially denied assaulting Roland but pleaded guilty at a committal mention in March 2015. The plea was accordingly at a relatively early stage. He is entitled to a discount on his sentence for that. The appellant expressed remorse to a psychologist who assessed him for the purpose of the plea, Mr Jeffrey Cummins, adding that the assault would not have happened if Roland had not tried to hit him. In the light of that evidence, and the evidence of the appellant’s domestic partner, which I will address below, I accept that he is remorseful.
Earl, who first punched Roland to the face in the appellant’s absence, pleaded guilty to one charge of unlawful assault and was convicted and fined $1,000.
As to the appellant’s personal circumstances the sentencing judge set out the matters of relevance. She said:
You are a 32-year-old man who has been in a long-term de facto relationship with Melissa Baldwin. She is aged 33 and is the mother of six children, of whom the older three are from a previous relationship and you are the father of the three younger ones, aged seven, six and three. You and Melissa have been separated twice over nine years, once for as long as 12 months, because of your use of alcohol and cannabis. Those problems had their origin in your upbringing.
Your mother is an alcoholic who has used cannabis daily for years. Your father left the home when you were three and thereafter your mother was subjected to violence from successive partners. This led to her turning to alcohol and cannabis and you grew up exposed to that and to the violence, which was also used against you for disciplinary purposes. Your mother introduced you to cannabis at the age of nine and you have drunk alcohol since the age of 15. You have more recently used cannabis as a medication to treat persistent headaches, the cause of which was not known until a diagnosis last year of what has been described as widespread sinus disease.
You have a very limited education with consequent limitations in literacy, but despite that you had a good work history from the age of 16 until your early 20s. You have not worked for any extensive period since then but have generally stayed home helping with the children. Although your partner said you did not really help and you were not a real father figure, you were the sole carer for your elder son Christian for ten months at one stage. You are now registered with a job agency, looking for work.
Your mother has been in trouble with the law and your stepfather has served time in prison. It is put that your mother has been a bad influence on you, but more recently the positive influence of your partner, who has no prior convictions and no substance abuse problems, has helped to bring about a change in you after your release on bail last December. That change appears to be a significant one. The offending occurred when you had been separated from Melissa for about 11 months, brought about by your drinking and accompanied absences from home, together with spending money on cannabis use.
The time spent in custody saw you cease drinking and using drugs and you have been able to maintain that abstinence since then with one clean urine screen to that effect. Melissa gave evidence in support of your changed attitude and your father has also written a letter to the court offering his support.
Mr Cummins assessed you recently and diagnosed an adjustment disorder with mixed anxiety and depressed mood, which would have been at moderate severity at the time of the offending, but is not relied upon as attracting the principles of the decision in the case of Verdins. You consider that your judgment was affected by alcohol and drug use, with which Mr Cummins agreed, and by anxiety caused by those daily headaches and concern about the children at the hands of Melissa’s ex-partner.
You told Mr Cummins that you regretted your actions and that you had gone overboard. Mr Cummins described you as a reasonably serious and cooperative interviewee and that you gave him a detailed and relevant history. It may be that your apparent change in motivation to conform with normal social expectations and live a productive life is in the initial stage of emerging maturity.
You have expressed concern for your partner having to look after the children alone when you are imprisoned again, as she does not have parental support and has no other obvious means of assistance. She said in evidence she had come to rely on your help since your release on bail when, for the first time, you have been substance free and have remained at home. That will be a source of anxiety for you in custody and I take that into account as a mitigating factor.[13]
[13]DPP v Baldwin [2015] VCC 688 [13]–[20].
Prior criminal history
The appellant’s criminal history is not good. He has appeared very regularly before the Sunshine Magistrates’ Court throughout his adult life.
At the age of 19, he was dealt with without conviction on charges of intentionally damaging property and being unlawfully on premises. At the age of 20, he was dealt with without conviction on charges of recklessly causing injury, assault with a weapon, and intentionally damage property. On 14 September 2006, at the age of 23, he was convicted and fined on charges of carrying a dangerous article, possessing a controlled weapon, and possession of cannabis. On 17 October 2007, now 24, he was again before the Court on a charge of possessing a dangerous article, together with driving offences. On that occasion he was placed on a community based order. He breached that order and was fined on those offences at a hearing on 11 August 2008. On 26 September 2012, at the age of 29, he was before the Court charged with contravening a family violence intervention order and unlawful assault. He was convicted and placed on a CCO for nine months. He contravened that order and on 20 March 2013 (now 30) he was sentenced to be imprisoned for a period of one month, wholly suspended for nine months. On 1 April 2014 the appellant was again convicted of contravening a family violence intervention order and theft of a motor car. He was fined. Finally, on 30 June 2014 the appellant was convicted on one count of criminal damage. The charge was adjourned for a year and he was required to pay a sum of money into the court fund.
The appellant has a history of violence and has a history of non-compliance with non-custodial dispositions. The offending in this case was particularly violent. The victim was already incapacitated. The assault involved stomping on the victim’s head and kicking him in the head.
Matters in mitigation
It was submitted on the appellant’s behalf that, whilst the offending was serious, it was not in company, it occurred over a short period of time, it did not involve the use of a weapon, it was not in public or in the victim’s home, there was no planning involved, it occurred in response to aggression directed at the appellant by the victim, and that the injuries the victim suffered did not have lasting effects.
At the plea hearing the appellant’s domestic partner, Melissa Baldwin, gave evidence. She has six children of her own, three with the appellant. She described separating from the appellant at the end of 2013 because of his ‘drinking and smoking problem’. She gave evidence that she herself did not drink alcohol and did not use cannabis. Ms Baldwin said that the appellant had been released on bail in December 2014 and that there had been a marked change in his disposition and behaviour since then. He had been more reliable in helping with the children and around the house. She had not seen him under the influence of alcohol, nor had she seen any evidence of him using cannabis. He complied with his bail conditions. He had told her that he was really upset about what he had done and what the victim had suffered. She said that the appellant had formed a strong bond with the children.
Disposition
This was serious violent offending, notwithstanding the matters put in mitigation, which I accept. The offending here is too serious for a disposition which does not involve significant time in custody.
I am nevertheless of the opinion this is an appropriate case for a combination of a term of imprisonment and a CCO. The appellant has had non-custodial dispositions in the past which he has breached, but Ms Baldwin’s evidence on the plea indicates that there is reason to believe he may have matured sufficiently to comply with a community based disposition.
The appellant has been assessed by Corrections Victoria and been found to be suitable for a CCO on the same terms as were imposed by the sentencing judge.
In my view the appellant should be re-sentenced to a term of imprisonment of 21 months with a CCO of two years to commence on the expiry of that term on the same conditions as were imposed by the sentencing judge.
Insofar as it is necessary to do so I would declare under s 6AAA of the
Sentencing Act that had the appellant not pleaded guilty I would have sentenced him to a term of imprisonment of four years with a non-parole period of three years.
PRIEST JA:
I agree with Whelan JA.
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