Braydon Carrington v The Queen

[2015] VSCA 175

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0223

BRAYDON CARRINGTON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH & SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	30 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 175
JUDGMENT APPEALED FROM:	R v Carrington (Unreported, County Court of Victoria, Judge Chettle, 2 April 2014)

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CRIMINAL LAW – Sentence – Election against refusal of leave to appeal against sentence –Whether total effective sentence and non-parole period are manifestly excessive and reflect a failure to have proper regard to the principle of totality – Whether the order for cumulation produced a sentence that infringed the principle of totality – Aggravated burglary and intentionally cause serious injury – Extremely serious offending – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearances	Melasecca, Kelly & Zayler
For the Crown	No appearances	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA:
SANTAMARIA JA:

1. On 2 April 2014, at the County Court of Victoria at Geelong, the applicant was arraigned and pleaded guilty to the offences of aggravated burglary and intentionally causing serious injury.  On the same day, after a plea in mitigation, he was sentenced as follows:

Charges on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Aggravated Burglary [s 77(1) Crimes Act 1958]	25 years	4 years	2 years
2.	Intentionally Causing Serious Injury [s 16 Crimes Act 1958]	20 years	5 years	Base
TotalEffective Sentence:		7 years’ imprisonment
Non-Parole Period:		4 years
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		1 day

Ground of appeal

1. The applicant seeks leave to appeal on the following ground of appeal:

The total effective sentence and non-parole period are manifestly excessive and reflect a failure to properly have regard to the principle of totality.

Circumstances of the offending

1. The applicant was born on 6 January 1994.  Before the incident in which his offending occurred, he had been in a relationship for three years with Ms Tamika Foster who resided at Unit 1, 22 Tanner Street, Breakwater.  The applicant resided with Foster at that address until their relationship ended in February 2013. 

1. Nicholas Williams was born on 18 February 1991.  Williams and Foster had recently commenced a relationship.   In the days leading up to the incident, Williams had been staying at Foster's residence.

1. The applicant and Williams were known to each other; they had lived together as children for a year, approximately eight years ago.  They had had no contact since that time.

1. The following facts gave rise to charge 1: Aggravated Burglary.  On Sunday 17 March 2013, Williams was alone at Unit 1, 22 Tanner Street from 10.30am onwards as Foster had gone to work.  Williams had asked whether there was any chance of the applicant attending the premises.  Foster told him that it was a possibility given that the applicant's car was still parked at her address.

1. At approximately 3pm, the applicant attended at Unit 1, 22 Tanner Street.  Williams was there asleep on the couch.  On hearing someone trying to open the front door, Williams realised it may have been the applicant and pushed the couch up against the front door to prevent it from being opened. 

1. The applicant moved to the back door, which was locked.  He then forced entry into the premises by breaking the back door off its hinges and entering the unit armed with a large knife.

1. On hearing the back door break open, Williams ran into the hallway and closed the hallway door.  He was unable to secure it.  He then moved into the bathroom, shut the door and sat with his body against it in an attempt to prevent it from being opened.  The applicant broke the bathroom door off its hinges causing the door to fall over the top of Williams. 

1. The following facts gave rise to charge 2: Intentionally Cause Serious Injury. The applicant has then stabbed Williams in the left shoulder area of his back.

1. Williams tried to get past the applicant.  A struggle between the two resulted.  Williams fell to the ground.  While the applicant stood over him, Williams raised his arms to defend himself.  The applicant struck Williams a number of times with the knife causing severe lacerations to both forearms.  At this time, Williams thought the applicant was punching him. 

1. Williams was able to get away from the applicant and move to the front door.  It was at this point that Williams realised that he had been stabbed.  Williams struggled to move the couch away and grasp the door handle due to his injuries and the severe bleeding.  The applicant said, ‘Don't’ to Williams as he attempted to exit.  It was at this point that Williams saw the applicant holding a knife by his side in his right hand.  Williams described the knife as being a butcher's knife with a blade about 12 inches in length. 

1. Williams exited the unit and ran down Tanner Street to try and get help.  He attempted to flag down passing cars with no success and ran to a nearby residence at Unit 1, 3 Tanner Street.  When no-one answered the door, Williams ran to a nearby phone box to call Triple 0.  While Williams was on the phone to Triple 0, the residents of Unit 1, 3 Tanner Street, Andrew and Julie McRitchie, came outside.  Williams saw them, yelled out asking for an ambulance to be called and ran back to their house.  The McRitchies assisted Williams and called for an ambulance.  The applicant drove away in an unidentified vehicle.

1. Williams was treated and taken by ambulance to the Geelong Hospital where he underwent surgery the following day.  Williams suffered severe lacerations to both forearms.  Injuries to his left forearm included serious tendon damage and fractures to both the radius and ulna bones which required the insertion of screws and plates.  The bones in his right forearm were damaged.  Williams also suffered a puncture wound to the back of his left shoulder and a laceration above his right elbow.[1] 

The judge’s reasons[2]

[1]This account of the offending is taken from the prosecution summary at the sentencing hearing.

[2]DPP (Vic) v Carrington (Unreported, County Court of Victoria, Judge Chettle, 2 April 2014) (‘Reasons for sentence’).

1. First, the judge took into account the applicant’s ‘extensive prior criminal history’.  Between November 2007 and March 2010, the offences for which he was convicted included several counts of intentionally damaging property, attempted robbery and attempted theft, assaulting the police, unlawful assault, reckless conduct endangering serious injury and attempted armed robbery.  Second, the judge took into account the applicant’s personal circumstances which were described in the report of Ian Joblin, psychologist.  The judge said that the applicant ‘had a tragic disjointed childhood’.  He had been abandoned by his mother and remained in the custody of his father.  His father had himself spent time in prison as a result of which the applicant was raised in various DHS facilities.  In his report, Joblin listed a number of positive factors that spoke ‘well for your future rehabilitation’.  Third, the judge took into account his plea of guilty in respect of which he was entitled to a reduction in sentence.  Fourth, the judge took into account his prospects of rehabilitation which he described as ‘somewhat guarded because of your previous offending’.  Fifth, the judge took into account the applicant’s ‘disturbed childhood and [his] difficult background’.  He said:

I have moderated both the individual sentences I am about to impose and the cumulation of sentence to reflect your age and your prospects of rehabilitation to which I have just referred.[3]

[3]Reasons for sentence [43].

The sentencing judge rejected any notion of a period of youth detention as three years detention was not adequate.  He said that the offending ‘was extremely serious.  You hunted and viciously attacked your victim with a deadly weapon.  You caused extremely serious injury to him.’[4]  Sixth, the judge accepted that rehabilitation was more significant in the sentencing process with a young offender than it might otherwise be.  He said:

[4]Reasons for sentence [49].

I accept that young offenders should not be sent to adult prison if such a sentence can be avoided, but some offences are simply too serious for any other disposition.  Your offending is such an example.[5]

Had the applicant been an older man, the judge said that the sentence ‘would be significantly higher’.  Finally, the judge said:

It is clear that the sentence that I am about to impose will be difficult for you.  It is the first time in adult custody and you will find your time in gaol hard.  I hope that you are able to be dealt with in the youth unit at Port Phillip where you will have your prospects of rehabilitation served, as well as can be, in a prison.

I accept also what your father said, that going to gaol there is a real risk that you are going to come out worse than you came in, and that risk was recognised in the decision in Anderson provided to me by your counsel.  The court recognises there is a distinct possibility, particularly in a lengthy sentence, that you will come out more vicious and more antisocial than when you went in, is the way the expression is made.  But, ultimately, it is up to you as to the way in which you deal with your time in custody.[6]

[5]Reasons for sentence [54].

[6]Reasons for sentence [62]-[63].

The applicant’s submissions

1. The applicant did not submit that the individual sentences were manifestly excessive and acknowledged that some cumulation was appropriate.  However, he submitted that the order for cumulation that was made demonstrated that the judge failed to have proper regard to the principle of totality.  He said it was not reasonably open to the judge to order that two years of the sentence imposed on count 1 (aggravated burglary) be cumulated on the base of five years’ imprisonment on count 2 (intentionally causing serious injury).  He said that the two charges ‘had been committed as part of the one overall episode of offending’.  Given that there was a prima facie entitlement to concurrency, the principle of totality itself had to be informed by various mitigating factors including (a) his plea of guilty (b) his youth (c) his tragic disjointed background (d) his efforts at rehabilitation and (e) his prospects of rehabilitation.  In particular, ‘[in] making any order for cumulation the Applicant’s youth and prospects of rehabilitation still had to be given significant weight’.  He referred to Azzopardi v The Queen.[7]  The sentencing reasons did not indicate that the judge had moderated the orders for cumulation on account of the applicant’s youth and prospects of rehabilitation.  He said that ‘for any meaningful moderation to have occurred it must have meant that the Learned Sentencing Judge’s starting point, in terms of cumulation, was plainly too high’.

   [7](2011) 35 VR 43, 58-9 [53]–[55].

The respondent’s submissions

1. The respondent referred to current sentencing practices for the offence of ‘confrontational aggravated burglary’ which had been described by the Court of Appeal as inadequate ‘particularly having regard to the increase in 1997 of the maximum penalty from 15 to 25 years’ imprisonment’.  It referred to Hogarth v The Queen.[8]  The present incident was terrifying and violent.  The conduct involving the intentional infliction of serious injury was a ‘distinct and very serious incident of criminality’.  The offence of causing serious injury intentionally is the most serious of the non-homicide offences.  The applicant had shown no remorse and had no empathy for his victim.  The respondent submitted:

In those circumstances, and notwithstanding the applicant’s factors in mitigation, it was open to the learned sentencing judge to cumulate half of the sentence imposed on the count of aggravated burglary upon the base sentence imposed for intentionally causing serious injury. That still resulted in a significant amount of concurrency between the counts.

Importantly, the learned sentencing judge expressly moderated the individual sentences and the order for cumulation due to the applicant’s age.

The judge had referred to DPP v Anderson[9] and Azzopardi v The Queen.[10]  The judge had given careful consideration of the deleterious effect of imprisonment and the risk of institutionalisation on a young offender.  He considered the need to give significant weight to enable a young offender to be rehabilitated.  But, because of his significant prior criminal history, the judge was right to hold that his prospects for rehabilitation were ‘somewhat guarded’.

[8](2012) 37 VR 658, 660 [6] (Maxwell P, Neave JA and Coghlan AJA). The Crown also referred to Filiz v The Queen [2014] VSCA 212, Gale v The Queen [2014] VSCA 168, Anderson v The Queen [2014] VSCA 255 and Saxon v The Queen [2014] VSCA 296 in the context of a former intimate partner.

[9](2013) 228 A Crim R 128, [50].

[10](2011) 35 VR 43, 57 [44].

Principles

1. This Court has limited jurisdiction to interfere with sentences imposed by a sentencing judge.  In Markarian v The Queen,[11] Gleeson CJ, Gummow, Hayne and Callinan JJ described the well-established principles as follows:

As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence.  Thus is specific error shown?  (Has there been some error of principle?  Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision?  Have the facts been mistaken?  Has the sentencer not taken some material consideration into account?)  Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust?  It is this last kind of error that is usually described, in an offender's appeal, as ‘manifest excess’, or in a prosecution appeal, as ‘manifest inadequacy’.[12]

[11](2005) 228 CLR 357.

[12]Ibid 370-1 [25] (citation omitted).

1. In R v Williscroft,[13] Adam and Crockett JJ said that ‘ultimately every sentence imposed represents the sentencing judge’s instinctive synthesis of all the various aspects involved in the punitive process.’[14]

   [13][1975] VR 292 (Adam, Starke and Crockett JJ).

   [14]Ibid 300. See Markarian v The Queen (2005) 228 CLR 357, 384-90 for McHugh J’s explanation of the origin of the phrase ‘instinctive synthesis’ in Williscroft and of its proper meaning.

1. In its recent decision in Mahat v The Queen,[15], the Court said:

As has been said many times before, manifest excess is a difficult ground to make out. The test for manifest excess is whether the sentence was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.

The task of an appellate court in a case such as this was described by Lowe and Gavan Duffy JJ in R v Taylor and O’Meally:

It will not proceed by considering at once what the individual members of the bench consider an appropriate punishment. On the contrary it will look at the sentence imposed by the trial judge, and unless it appears that he has made a mistake as to the facts, or has acted on an erroneous principle of law, or has taken into account some matters which should not be taken into account, or has failed to take into account matters which should have been taken into account, or has clearly given insufficient weight, or excessive weight, to some matter taken into account, or unless the sentence is obviously — not merely arguably — too severe or too lenient, it will not interfere.[16]

[15][2015] VSCA 111.

[16]Ibid [20]-[21] (citations omitted).

Analysis

1. The applicant has not contended that either of the individual sentences is manifestly excessive.  Rather, he contends that, in making his order for cumulation, the sentencing judge fell into error.  No particular error is shown; rather, the contention is that the order for cumulation was so unreasonable as to be plainly unjust. Accordingly, the question becomes whether it was reasonably open to the judge to order that 2 years of the 4 year sentence for count 1 (aggravated burglary) sentence should be served cumulatively with the 5 year sentence for count 2 (intentionally causing serious injury).

1. In Mill v The Queen,[17] Wilson, Deane, Dawson, Toohey and Gaudron JJ adopted a statement from Thomas, Principles of Sentencing:[18]

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[‘]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.[19]

Their Honours added:

Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.[20]

[17](1988) 166 CLR 59. See Johnson v The Queen (2004) 205 ALR 346, 354-5 (Gummow, Callinan and Heydon JJ).

[18]2nd ed (1979) 56-7 (omitting references).

[19](1988) 166 CLR 59, 63.

[20]Ibid.

1. The offence of intentionally causing serious injury is a very serious offence.  It carries a maximum penalty of 20 years. The present case must rank as a serious example of it; it is conceded that it was ‘extremely serious’.  Similarly, aggravated burglary is a serious offence; it carries a maximum penalty of 25 years.  In the present case, it involved deliberate and persistent conduct that must have been terrifying for the victim of the serious injury.  It was rightly accepted that ‘some cumulation was appropriate as between the individual offences’.  The applicant contends that the order for cumulation produced a sentence that infringed the principle of totality.  We reject that submission.

1. The principle of totality requires a sentence that is a ‘just and appropriate measure of the total criminality involved.’[21]  The sentence must be proportionate to the total criminality of an offender’s conduct.  Sometimes it is described as a requirement that the sentence be commensurate with the gravity of the whole of the offending and the offender’s just deserts.  The rationale underlying the principle is that a just measure of an offender’s total criminality is a sentence which satisfies all sentencing objectives applicable to the entirety of that criminal conduct but is no more than is necessary to do so.[22] 

   [21]Postiglione v The Queen (1997) 189 CLR 295, 307-8 (McHugh J). See also 321 (Gummow J), 340 (Kirby J).

   [22]Azzopardi v The Queen (2011) 35 VR 43, 61 [61] (Redlich JA with whom Coghlan and Macaulay AJJA agreed).

1. The sentencing judge took into account the mitigating factors of youth and rehabilitation.  As we have said, he excluded the possibility of youth detention as a longer period in custody had to be applied.  He took into account that the applicant had not previously been in an adult prison and that confinement in such an institution would have prejudicial consequences for him.

1. It seems clear, however, that the judge, in fixing the non-parole period, did take the applicant’s youth and the need to foster rehabilitation into account.  The non-parole period is a low proportion of the total effective sentence. 

1. The applicant has failed to demonstrate that there was any error in the application of the principle of totality or that the total effective sentence was beyond a sound exercise of the sentencing discretion.

1. The application for leave to appeal against sentence should be refused.

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