Bertram Morin v The Queen
[2019] VSCA 301
•16 December 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0274
| BERTRAM MORIN | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | KAYE JA and HARGRAVE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 December 2019 |
| DATE OF JUDGMENT: | 16 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 301 |
| JUDGMENT APPEALED FROM: | DPP v Morin (Unreported, County Court of Victoria, Judge C Ryan, 21 September 2018) |
---
CRIMINAL LAW – Sentencing – Appeal – Making a threat to kill – Recklessly causing injury – Prohibited person possess firearm – False imprisonment – Possessing a drug of dependence – Total effective sentence of seven years’ imprisonment – Non-parole period of five years – Limited intellect – Bleak prospects of rehabilitation – Past non-compliance with community correction orders – Extensive criminal history including violent crimes and weapons offences – Whether intellectual impairment required significant moderation of specific deterrence – Additional burden of punishment – Impaired mental functioning – Applicant’s concern for his family – Manifest excess – Leave to appeal refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C K Wareham | Valos Black & Associates |
| For the Respondent | Mr J Gullaci | Ms A Hogan, Acting Solicitor for Public Prosecutions |
KAYE JA
HARGRAVE JA:
The applicant was charged on two indictments arising out of offences which occurred in June 2015. The first indictment contained five charges: making a threat to kill (Charge 1); intentionally causing injury (Charge 2) or, alternatively, recklessly causing injury (Charge 3); being a prohibited person in possession of a firearm (Charge 4); and false imprisonment (Charge 5). The applicant pleaded not guilty. A jury found him guilty on charges 1, 3, 4 and 5 — thus acquitting him of intentionally causing injury and instead finding him guilty of recklessly causing injury.
At his trial, the applicant relied on an alibi defence to the charges on the first indictment. The evidence of his alibi witness was rejected by the jury.
On the second indictment, the applicant was charged with possessing a drug of dependence — cannabis L. He pleaded guilty to that charge.
Following a plea hearing on 27 July 2018, the sentencing judge imposed the following sentences on the applicant:
FIRST INDICTMENT Charge Offence Maximum
penaltySentence Cumulation 1 Make threat to kill
(Crimes Act1958 s 20)10 years 4 years Base 3 Recklessly causing injury
(Crimes Act 1958 s 18)5 years 2 years 12 months 4 Prohibited person possess firearm
(Firearms Act 1996 s 5(1))10 years 18 months 12 months 5 False Imprisonment
(Common law)10 years 4 years 12 months SECOND INDICTMENT Charge Offence Maximum Sentence Cumulation 1
Possess a drug of dependence
(Drugs, Poisons and Controlled Substances Act 1981 s 73(1))5 years 3 months Nil Total effective sentence 7 years’ imprisonment Non-parole period 5 years Pre-sentence detention 109 days’ imprisonment s 6AAA declaration on Second Indictment His Honour declared that, but for the applicant’s guilty plea, he would have imposed a total effective sentence of 6 months’ imprisonment on the possession of cannabis charge.
The applicant seeks leave to appeal against the sentences imposed on him, on the following grounds:
Ground 1: The learned sentencing judge erred in failing to moderate just punishment, denunciation and specific deterrence on account of the applicant’s limited intellect.
Ground 2: The learned sentencing judge erred in failing to have regard to the additional burden of imprisonment due to the applicant’s impaired mental functioning.
Ground 3: The learned sentencing judge erred in failing to take into account the additional burden of imprisonment on account of the applicant’s concern for his family.
Ground 4: The learned sentencing judge erred in failing to find that the possession of the cannabis was not connected to a trafficking purpose, in that:
(a) His Honour failed to take into account relevant considerations; and/or
(b) the conclusion reached was not reasonably open.
Ground 5: The individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive in light of the applicable mitigating factors, including the applicant’s difficult upbringing and extremely low intellectual functioning.
Before considering the grounds of appeal, it is necessary to set out the circumstances of the applicant’s offending, his personal circumstances, and his history; including his history of relevant prior convictions and the opportunities for his rehabilitation provided to him by the terms of Community Correction Orders — or like orders — previously imposed on him.
Circumstances of offending
On 26 June 2015, Brian Hollway — who was then 74 years old and quite frail — went to a hospital outpatient appointment. He left the hospital at about 8:30pm. He went to a home unit in Springvale where his friend Tammy Deas lived. Deas, who is the applicant’s on-again/off-again partner, and the mother of his youngest son, was not home, but her housemate and the housemate’s mother and daughter were. Hollway was sitting on the couch talking to the housemate’s mother when the applicant arrived at the unit.
The applicant was carrying a sawn-off shotgun as he entered the unit (charge 4). He said to Hollway: ‘I want to get you for a long time’. He then used the butt of the shotgun to hit Hollway three times — behind each ear and to the nose. Hollway felt dizzy. He was sore. His nose was bleeding, and he had blood on the side of his face (charge 3). As he tried to walk away, the applicant grabbed him around the neck and dragged him outside, while holding the barrel of the shotgun at the back of Hollway’s neck. While doing this, the applicant said to Hollway: ‘Make a move, I will blow your fucking head off’ (charge 1).
The applicant, who had parked about two metres from the front door of the unit, then tried to push Hollway into the back seat of his car. He said to Hollway: ‘I got you, you bastard. I’m taking you up the fucking bush and fucking putting the — putting your life out. Going to blow your fucking head off’ (charge 1).
At this time, Hollway had his hands on the top of the car roof. He was trying to force himself away from the applicant. The applicant grabbed and squeezed Hollway’s testicles, causing him so much pain that he had no choice but to let go of the car roof. The applicant then pushed Hollway into the back of the car. The door locked as it was closed (charge 5). By this time, Hollway realised that the applicant had a passenger in the back seat of the car. Despite the applicant’s passenger trying to grab his legs, and grabbing his ankles, Hollway wriggled his way out of the car through the driver’s side front door. The applicant then said to the housemate: ‘Let him go. I’ll shoot the bastard now while you’re on the run’.
Hollway ran to his own car. He drove to the Springvale Police Station. He appeared to police to be very stressed and frightened, and said something along the lines of ‘I’m a dead man’. Photographs were taken of injuries that he had sustained to his nose, behind his right ear, to his face, to his right hand and to his left wrist. On 27 June 2015, he went to the Rosebud Hospital Emergency Department for a check-up. Before he went to hospital, he had been unconscious for a short period of time. He presented with pain over his temporomandibular joints. He had mild tenderness in his wrist. The principal diagnosis that he was given was a soft tissue injury.
Next, police attended at the applicant’s address and located (among other things) several plastic tubs of green vegetable matter. When later analysed, that matter was found to be cannabis. The weight of the cannabis found was 297.8 grams. The applicant, when interviewed, admitted that the cannabis was his, but denied trafficking in cannabis and claimed that it was all for his own use. He said that he bought the cannabis in bulk so as to save money.
During his interview, the applicant denied having attended the unit in Springvale. He said that he had been visiting a friend. He led alibi evidence from his friend at trial. The jury rejected that evidence.
The applicant’s history and personal circumstances
The applicant was born in Seychelles. His mother had previously had four children with her husband, Rolf Morin, who had left Seychelles before the applicant was born. After he left, the applicant’s mother had a relationship with another man, Evans Payet. Mr Payet is the applicant’s biological father.
In the early 1980s, the applicant’s mother came to Australia with her six children. Mr Payet stayed behind. The applicant did not see his biological father again until he was 13 years old, and then only briefly as the relationship between his mother and Mr Payet in Australia did not work out.
The applicant and his mother lived with Mr Morin for a time in Melbourne, but that only lasted for a few years as a result of Mr Morin’s alcohol abuse and family violence towards the applicant’s mother.
The applicant was brought up in poor circumstances in Melbourne and had inadequate schooling. He could not speak English when he arrived in Australia, with the time taken to learn English holding back his schooling until he was in about Grade 6. He left school in Year 9 to enter the workforce. He had an infrequent work history in unskilled labour, and at the time of his offending had not worked for about 10 years. He supported himself by the receipt of a carer’s pension. That pension was paid to him for his role as principal carer of his elderly mother, who is in her 80s and suffers ill-health.
At an early age, the applicant began drinking and taking drugs. At the time of the offending, he had been regularly using marijuana and methamphetamine for 20 years or more. He was an addict.
The applicant has two children, a 27 year old son and a 13 year old son, Trae, who lived with the applicant and his mother until the applicant was remanded in custody before being sentenced for these offences.
The applicant was 44 years of age at the time of offending. He was 47 years of age at the time of sentence.
The applicant’s long-term drug abuse caused him to have some delusional beliefs. Dr Sam Calvin, a consultant forensic psychiatrist, interviewed the applicant by video-link. He concluded that the applicant suffered ‘transient psychotic symptoms’ but was unable to ascertain the presence of any enduring psychotic illness. He described the applicant’s delusions as ‘fleeting hallucinations … due to his illicit drug use’.
The applicant was also examined by a consultant psychologist, Gina Cidoni, who interviewed and assessed him over three hours. She reported that the applicant’s delusional beliefs continued, and opined that drug-induced psychosis ‘can persist after substance abuse has ceased’. Unlike Dr Calvin, Ms Cidoni was of the opinion that the applicant ‘presented with a disability being of contained psychosis with symptoms consistent with schizophrenia’.
The sentencing judge preferred Dr Calvin’s opinion. On the plea, counsel for the applicant accepted that there was no diagnosed mental illness which attracted Verdins principles.[1]
[1]R v Verdins (2007) 16 VR 269 (‘Verdins’).
Applicant’s prior convictions
In June 1996, the applicant was convicted of assault with a weapon and by kicking. He received a one month suspended term of imprisonment. It appears that the offences until this time were in conjunction with excessive use of alcohol.
There was then a nine year gap until the applicant was again convicted of assault in February 2005. He received a one month suspended sentence. In the interim, he had been sporadically employed, including for a four year period with one employer. He was also in a stable relationship during a substantial part of this period of non-offending, and was drug free.
A further conviction for assault in 2006 led to his suspended sentence for the 2005 assault being restored, and he served one month in prison.
In April 2007, the applicant was convicted of possessing a controlled weapon — a machete — without excuse. One month later he was convicted of a number of offences and sentenced to an aggregate of six months’ imprisonment to be served by way of an Intensive Correction Order, subject to the core conditions under s 20 of the Sentencing Act 1991. He breached the conditions of the Correction Order, and in February 2008 was ordered to serve the unexpired portion of that order (172 days) in prison.
In December 2010, the applicant was convicted of intentionally causing injury and the use of a prohibited weapon without exemption or approval. He was sentenced to three months’ imprisonment and then a 12 month Community Based Order subject to conditions that he undergo assessment and treatment for alcohol and drug addiction and submit himself to medical/psychological/psychiatric assessment and treatment as directed. On appeal to the County Court, the immediate term of imprisonment was set aside and replaced with a six month suspended sentence, but the 12 months Community Based Order was re-imposed.
In January 2013, the applicant was convicted of recklessly causing injury, being a prohibited person in possession of a firearm, ammunition and a prohibited weapon. He was also convicted of dishonesty offences. He was sentenced to two months’ imprisonment and a 12 month Community Correction Order, containing stringent conditions requiring him to undergo treatment and rehabilitation for, among other things, drug and alcohol abuse and to undergo a mental health assessment.
On 22 February 2016, while the applicant was on bail for these offences, he was again convicted of — among other things — being a prohibited person in possession of a firearm and sentenced to 55 days’ imprisonment and a further Community Correction Order for 12 months containing similar conditions. He was also sentenced for dishonesty offences at this time.
Finally, in October 2017, the applicant was convicted of contravening the Community Correction Order imposed on him on 22 February 2016.
In summary, the applicant’s prior convictions relevantly included:
(1) three assault convictions;
(2) two convictions for intentionally or recklessly causing injury;
(3) four firearms or controlled weapons convictions; and
(4) four Community Correction Orders or their equivalents, none of which brought a halt to his continued offending.
Victim impact statement
Hollway made a detailed victim impact statement describing the profound effect of the applicant’s offending against him. That statement is entirely credible, and no ground of appeal challenges its content or the fact that the sentencing judge relied upon it in the course of his sentencing reasons. In summary, Hollway was a 74 year old pensioner at the time of the offending and 77 years old at the time of the trial. He stated in his victim impact statement that his whole life has changed since the offending. He has moved house and remains in constant fear for his life, and has had to endure the stress of the trial. He does not sleep well at night, has commenced taking anti-depressants, was at one time admitted to a psychiatric ward of a hospital, still receives counselling and described his biggest fear in terms that he ‘will never stop feeling scared’.
Sentencing reasons
The sentencing judge gave concise sentencing reasons. His Honour described the applicant’s offending, the fact that he denied it and ran a trial based on the defence of alibi — which was rejected by the jury — and set out the effect of the offending on Mr Hollway, as described above. The judge set out the applicant’s personal circumstances and referred to the psychiatric report of Dr Calvin and the psychological assessment of Ms Cidoni. He accepted the expert opinions that drug induced psychosis can occur both while using drugs and can persist after substance abuse has ceased.[2]
[2]DPP v Morin (Unreported, County Court of Victoria, C Ryan J, 21 September 2018) [19]–[22] (‘Sentencing Reasons’).
The judge then referred to the references provided in support of the applicant, noting in particular a reference which spoke of the importance of the applicant’s relationship with his youngest son, Trae. The judge then turned to the primary defence submission on the plea, that the factors of general and specific deterrence, and denunciation, should be moderated by reason of the applicant’s low intellectual capacity. The judge dealt with these submissions in the following terms:
You are a man of limited intellect. However, you have a long and persistent history of committing crimes, including crimes of violence and weapons offences. The crimes of which you have been found guilty are serious examples of crimes of the kind. Whilst armed with a sawn-off shotgun, being a prohibited person, you entered a private address and assaulted a frail old man and threatened to kill him and falsely imprisoned him and stated purpose that you were going to take him into the bush and kill him. What your true intention was is unknown. However, plainly, you put the fear of death into the heart of your victim. I regard protection of the community from you as being a relevant sentencing factor in the exercise of my sentencing discretion. You are a person who needs to be specifically deterred from further offending. The principle of general deterrence applies to you, but must be moderated to some extent because of your limited intellect. I regard your prospects for rehabilitation as bleak.[3]
[3]Ibid [24].
The sentencing judge then proceeded to sentence the applicant.
Ground 1: the applicant’s limited intellect
The applicant contends that the sentencing judge erred in failing to moderate just punishment, denunciation and general and specific deterrence on account of the applicant’s limited intellect. This submission is founded on Ms Cidoni’s opinion that the applicant:
is challenged by extremely low intellectual function. He has a full-scale IQ of 69, where 98% of his age-related peers would do better. With such a low level intellectual capacity, his capacity for finer judgement and assessment of the situations in which he finds himself is very reduced – he suffers poor coping skills, poor insight and judgement with difficulty learning from experience and in planning ahead. His mental health condition would exacerbate this and in periods of psychosis, his perception of reality can be very distorted.
On this basis, it was contended that the applicant ‘is intellectually disabled’. Thus, it was contended that the sentencing factors of denunciation, general deterrence and specific deterrence should have been moderated by the trial judge. The applicant relies on Muldrock v The Queen,[4] where a Full Bench of the High Court considered sentencing of mentally retarded offenders, including those who suffer from a ‘mild intellectual disability’.[5] In such cases, the High Court said that general deterrence should be moderated, or ‘given very little weight’, in sentencing a mentally retarded offender,[6] and that intellectual impairment may ‘substantially lessen the offender’s moral culpability’.[7]
[4](2011) 244 CLR 120.
[5]Ibid 137–8 [50].
[6]Ibid [53].
[7]Ibid [54].
The applicant contends that the sentencing judge erred in moderating only general deterrence on account of the applicant’s limited intellect. He contends that the judge should have moderated the need for just punishment, denunciation and, in particular, specific deterrence. Moreover, he contends that his moral culpability should be reduced because he has poor insight and judgment, including difficulties with impulse control.
These contentions should be rejected. The authorities do not compel the conclusion that, in each case in which an offender suffers a mental or intellectual impairment, the Court must moderate specific deterrence. Rather, the offender’s impairment is relevant to a consideration as to how specific deterrence, that is, discouragement from further offending, may be best achieved.[8] In this case, the judge assessed the applicant’s prospects of rehabilitation to be ‘bleak’.[9] Previous dispositions, extending leniency to him by the imposition of community correction orders, were plainly inadequate to deter the applicant from engaging in the type of offending committed in this case. It was necessary that the sentence be sufficient to enable the applicant to fully understand that if he continued to flout the law in the manner in which he had in this case, then he would suffer a deprivation of his freedom to live in society for a significantly lengthy period of time.
[8]R v Tsiaris [1996] 1 VR 398, 400; Verdins (2007) 16 VR 269, 276 [32].
[9]Sentencing Reasons [24].
Further, this is not a case where the applicant’s lack of insight, judgment or impulse control should lead to any significant moderation of his moral culpability. His offending was not a spontaneous reaction to events as his actions involved some pre-planning. He arrived at the relevant premises with a sawn-off shotgun and immediately confronted Hollway. There is no suggestion that he did not appreciate that this was wrongful conduct.
The judge faced the difficult task of dealing with relevant sentencing factors which pointed in different directions. On the one hand, he was faced with sentencing a man with a limited intellect, and this factor called for moderation of general deterrence and some limited moderation of his moral culpability. On the other hand, as the judge noted, the applicant had ‘a long and persistent history of committing crimes, including crimes of violence and weapons offences’,[10] had again committed very serious offences of that kind, and previous attempts at rehabilitating or specifically deterring the applicant by the use of Community Correction Orders or their equivalent had failed. In such circumstances, the judge was right to place specific deterrence and protection of the community at the forefront of his sentencing considerations.[11]
[10]Sentencing Reasons [24].
[11]Cf DPP v Patterson [2009] VSCA 222 [50]–[51]; DPP v Moore [2009] VSCA 264 [9], [26]; Veen v The Queen [No 2] (1988) 164 CLR 465, 476–7; Payne v The Queen (2002) 131 A Crim R 432 [36]–[49], [2002] WASCA 186.
Ground 2: additional burden of imprisonment — impaired mental functioning
The applicant contends that the sentencing judge was in error because he failed to specifically state that the sentences imposed on the applicant were moderated on the basis that they would weigh more heavily on him than on a person of normal health — relying on Verdins principle 5.[12] In this regard, the applicant points to there having been some confusion in giving the applicant his medication at some time while he has been in custody.
[12]Verdins (2007) 16 VR 269, 276 [32].
This ground is not made out. The sentencing judge is an experienced criminal judge. He made specific mention of the statement in Dr Calvin’s report that the applicant appeared to be ‘struggling with the stress of prison’,[13] a matter relied upon by the applicant in support of this ground. In our view, this ground has no substance. The applicant’s written and oral submissions on the plea made it plain that he was relying on Verdins principle 5, and the judge’s reference to the applicant struggling with stress in prison has no relevance to the sentencing reasons if the trial judge was not considering that issue. We infer that he took the submission into account in his sentencing synthesis.
[13]Sentencing Reasons [18].
Moreover, as noted, the judge made specific mention of the statement in Dr Calvin’s report that the applicant appeared to be ‘struggling with the stress of prison’. Otherwise there was little or no evidence that the applicant’s intellectual and psychological impairment made incarceration more onerous. Indeed, he had completed courses directed to his emotional state, and also a course in cleaning operations. One of the applicant’s character referees stated that: ‘Recently I have been to prison to visit Bertram, he is doing courses to enhance himself and to teach himself new skills that he can use. The prison guards know Bertram and only have positive things to say about him’.
Ground 3: additional burden of imprisonment — applicant’s concern for his family
On the hearing of the plea, the applicant’s counsel submitted that his sentence should be mitigated because he would find imprisonment particularly burdensome as a result of his worries about how his 13 year old son and 83 year old mother would cope while he was in custody. Specifically, it was contended that the applicant was worried that:
(1) he will not be there for his 13 year old son during his high school years, and as he grows into adulthood, because he will be serving his sentence;
(2) he is the sole carer for his 83 year old mother, who is not in good health; and
(3) if his mother passes away while he is in custody, what will become of his son, especially as he approaches adulthood?
The applicant complains that the sentencing judge made no reference to this contention in his sentencing reasons, and thus failed to have regard to a relevant consideration.
The applicant acknowledged on the plea and in submissions before this Court that he is not relying upon ‘family hardship’ as a mitigating factor, for which exceptional circumstances are required before a court shows mercy by reason of the effect of imprisonment on an offender’s family.[14] The applicant makes it clear that it is the effect on him, of the hardship which will be caused to his family members as a result of his imprisonment, that forms the basis of this contention. The applicant relies on the statement of this Court in Markovic that:
An offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor – for example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender’s prospects of rehabilitation. These are conventional issues of mitigation, and they are not subject to the ‘exceptional circumstances’ limitation.[15]
[14]Markovic v The Queen (2010) 30 VR 589 (‘Markovic’).
[15]Ibid 595 [20].
We accept that the sentencing reasons make no specific reference to this contention. However, the sentencing reasons contain a specific reference to the applicant being ‘your mother’s carer as she is 83 years of age and in ill health’,[16] and to a character reference from an ex-AFL footballer who assists in programs designed to help less fortunate children overcome their disadvantaged backgrounds and hopefully enter society in a more positive way than their parents. In this context, the character referee spoke of knowing the applicant and his 13 year old son for over three and a half years. From a close (weekly) association over that period, the referee noted that the applicant had been spending a lot of time with his son and that, in his opinion, there was a strong bond and love by the applicant for his son. The sentencing judge referred to this character reference in brief terms in his sentencing reasons, noting that the referee wrote ‘of the importance of your relationship with your son’.[17]
[16]Sentencing Reasons [17].
[17]Ibid [23].
Once again, we do not accept that the sentencing judge failed to take account of the submission that prison would be more burdensome on the applicant because of his worries about his mother and his son. We infer that the experienced sentencing judge’s references to the applicant’s mother and son relate to the very contention which it is now contended was ignored in the sentencing process.
Further, the evidence in support of this ground is scant. Dr Calvin stated that the applicant was especially worried about his younger son. There was also evidence that the applicant had been the carer for his elderly mother. Apart from those two facts, there was no evidence as to how the applicant’s separation from his son and mother had impacted on him emotionally or psychologically, or how it would continue to do so, so as to make his term of imprisonment more onerous for him. Separation from loved ones — while plainly painful — is an ordinary incident of a term of imprisonment. The evidence before the judge permitted only limited, if any, weight to be attributed by way of mitigation to the applicant’s concerns for his mother and son.
Ground 4: cannabis not possessed for a trafficking purpose
The weight of the cannabis found at the applicant’s home was slightly more than a trafficable quantity,[18] and was thus, of itself, prima facie evidence of trafficking in cannabis by the applicant.[19] Under s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981, possession of a trafficable quantity of cannabis, as here, attracts the following penalties:
(1) Where the court is satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking in cannabis — one year maximum imprisonment and/or a fine.[20]
(2) Where the prima facie position applies, or there is evidence of trafficking in cannabis, five years’ maximum imprisonment and/or a fine.[21]
[18]Drugs, Poisons and Controlled Substances Act 1981 sch 11, pt 2.
[19]Drugs, Poisons and Controlled Substances Act 1981 s 73(2).
[20]Drugs, Poisons and Controlled Substances Act 1981 s 73(1)(b).
[21]Drugs, Poisons and Controlled Substances Act 1981 s 71(1)(c).
On the plea, the applicant’s counsel submitted that the cannabis found in his bedroom was for personal use. He urged the sentencing judge to make such a finding on the balance of probabilities, having regard to the following matters:
(1) the quantity of cannabis was ‘just over’ a trafficable quantity;
(2) the cannabis was comprised of leaves rather than head;
(3) the cannabis was found in open tubs;
(4) the applicant explained in his record of interview that he was buying cannabis for his personal use in bulk to save money;
(5) there was no trafficking paraphernalia at the premises;
(6) the applicant had a lifelong problem with using drugs; and
(7) the applicant has no prior convictions for drug trafficking.
The prosecutor also noted during the plea that the amount of cannabis just exceeded the trafficable quantity, that there was no trafficable paraphernalia located with the cannabis and that the applicant contended he had bought it in bulk to save money.
The sentencing judge found that the maximum penalty was five years’ imprisonment,[22] thus rejecting the applicant’s contentions that the cannabis was in his possession for only personal use. The applicant contends that this finding was in error, as no reasons were given for it and it was ‘not open’.
[22]Sentencing Reasons [3].
While it is of some concern that the sentencing judge gave no reasons for his factual conclusion, it was clearly open to him to make that finding. In any event, we note that the judge sentenced the applicant to only three months’ imprisonment on the second indictment, and ordered that no part of that sentence be cumulated on the base sentence in arriving at a total effective sentence. Thus, although it may be reasonably arguable that the judge erred by failing to give reasons for his factual conclusion, there is no reasonable prospect that a less severe sentence would be imposed by this Court, even if the one year maximum applied.[23] Having regard to the quantity of cannabis in the applicant’s possession, and his prior convictions for drug possession, three months’ imprisonment for possession of such a large quantity is well within the available range of sentencing options. It represents 25 per cent of the lower maximum of one year for mere possession. Further, as none of the other grounds of appeal will succeed, there is no reasonable prospect that a less severe total effective sentence would be imposed.[24] Leave to appeal on ground 4 is refused.
[23]Criminal Procedure Act 2009 s 280(1)(a).
[24]Criminal Procedure Act 2009 s 280(1)(b).
Ground 5: manifest excess in light of above factors
Manifest excess is a difficult ground to make good. In order to succeed, it must be shown that the total effective sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[25] Put another way, manifest excess must be plainly apparent without extensive argument.[26]
[25]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[26]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6].
The applicant contends that the total effective sentence was manifestly excessive when regard is had to the mitigating factors of low intellect and burden of imprisonment — which we have found were taken into account by the sentencing judge — and the following further mitigating factors:
(1) Although the applicant was charged with intentionally causing injury (charge 2), he was acquitted of that charge and convicted of the alternative charge of recklessly causing injury (charge 3). On this basis, the applicant did not fall to be sentenced on the basis that he formed an intention to assault Hollway before he entered the house. We accept that this is the basis on which the applicant was sentenced, and see no basis for contending that the sentencing judge sentenced him on any other basis.
(2) All of the offending on the first indictment was of a very short duration, thus limiting the seriousness of the offending when, for example, regard is had to other cases of false imprisonment.
(3) Given the short duration of the offending on the first indictment, less accumulation was called for on charges 3, 4 and 5. The judge should have considered totality and the possibility of double punishment, but made no reference to those factors. In this regard, we are not persuaded that the experienced judge failed to take these factors into account in his sentencing synthesis, and note in any event that no specific error is alleged in this respect.
(4) The applicant came from a disadvantaged background involving significant domestic violence in the home by his stepfather, and difficulties in adapting to Australian life after migrating from the Seychelles when he could not speak English. It was not, however, contended that the applicant’s background was so disadvantaged as to attract the principles stated in Bugmy v The Queen.[27]
[27](2013) 749 CLR 571.
We have considered all the factors relied on and find nothing which persuaded us that the total effective sentence imposed on the applicant was outside the range of sentencing options available to the judge. There was no cumulation on the sentence imposed on the second indictment. The offending on the first indictment was very serious indeed. The base sentence was imposed for the offence of making a threat to kill. This was a very serious offence in this case. While a prohibited person, the applicant used a firearm in a most menacing way. Hollway was terrified by the threats, and is now a frail 77 year old man living in a state of fear. Such violent offending called for denunciation, general deterrence and specific deterrence, notwithstanding that some moderation was required because of the applicant’s low intellectual functioning. The applicant had a long and relevant criminal record which, together with his failure to learn from the Community Correction Orders from which he benefited, meant that the sentencing judge was right to give weight to specific deterrence and community protection. The applicant is unable to rely on a plea of remorse as he pleaded not guilty and his alibi defence was rejected by the jury.
We are well satisfied that the total effective sentence imposed on the applicant was within the range of sentencing options available to the sentencing judge.
Conclusion
For the above reasons, leave to appeal will be refused.
- - -
3
10
0