Brett Nicholson (a pseudonym)[1] v The Queen

[2019] VSCA 177

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0201

BRETT NICHOLSON (a pseudonym)[1]	Appellant
v
THE QUEEN	Respondent

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

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JUDGES:	EMERTON JA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 July 2019
DATE OF JUDGMENT:	14 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 177
JUDGMENT APPEALED FROM:	[2018] VCC 1404 (Judge Gaynor)

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CRIMINAL LAW – Appeal – Sentence – Stalking – Damage to property – Intentionally causing injury – Sexual assault – Committing indictable offence on bail – Contravention of family violence order – Whether individual sentences manifestly excessive – Whether total effective sentence in accordance with principle of totality – Offences committed over period of time against one victim – Serious and escalating offending consistent with criminal history – Appeal dismissed – R v Piacentino; R v Ahmad (2007) 15 VR 501, applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms D Dempsey	Victoria Legal Aid
For the Crown	Ms D Piekusis QC	Office of Public Prosecutions

EMERTON JA
LASRY AJA:

Introduction

1. The appellant is a 49-year-old man who, over a period of many months, committed a series of offences against his estranged wife. 

1. The charges against the appellant were contained in two separate indictments and included related summary charges that had been brought against him.  The appellant pleaded guilty to the offences in the two indictments and, on 31 August 2018, he was sentenced in the County Court of Victoria as follows:

Indictment H10239727
Charge	Offence	Maximum	Sentence	Cumulation
1	Stalking [Crimes Act s 31A]	10 years	12 months	6 months
2	Damage property [Crimes Act s 197(1)]	10 years	18 months	9 months
3	Intentionally cause injury [Crimes Act s 18]	10 years	3 years	Base
4	Sexual assault [Crimes Act s 40]	10 years	10 months	3 months
Summary charge 7	Commit indictable offence on bail [Bail Act s 30B]	3 months	1 month	-
Summary charge 8	Contravention of Family Violence Intervention Order [Family Violence Protection Act s 123(2)]	2 years	6 months	2 months
Indictment J11258862
1	Contravention of Family Violence Intervention Order – intend harm/fear [Family Violence Protection Act s 123A]	5 years	18 months	8 months
2	Contravention of Family Violence Intervention Order – intend harm/fear [Family Violence Protection Act s 123A]	5 years	18 months	8 months
Total effective sentence		6 years
Non-parole period		4 years
Pre-Sentence detention Declaration		552 days
6AAA Statement		7 years with non-parole period of 5 years
Ancillary orders		Disposal order. Alcohol exclusion order for 2 years upon release from custody. Restitution order in the amount of $6,972.55

1. On 24 January 2019, Kyrou JA granted leave to appeal on the grounds set out in the notice of appeal which were, in substance, that some of the sentences were manifestly excessive and that the total effective sentence imposed and the orders for cumulation failed to adequately reflect the principle of totality.

1. For the reasons that follow, we do not accept that the sentences that are now challenged were manifestly excessive or that the total effective sentence imposed failed to adequately reflect the principle of totality. 

1. The appeal will be dismissed.

The circumstances of the offending

1. The appellant and the victim had been in a relationship for approximately three years; the last year of which they were married and living together.  In March 2016, they separated due to infidelity and issues of domestic violence.  A Final Family Violence Intervention Order was made in the Heidelberg Magistrates’ Court on 31 March 2016 (‘Intervention Order’).  The Intervention Order prohibited the appellant from contacting the victim and included conditions prohibiting family violence.

Indictment H10239737

1. The circumstances of the offending the subject of Indictment H10239737 are described below by reference to events set out in chronological order.  The chronology includes reference to some summary offences that were dealt with in the Magistrates Court.[2]

   [2]The offences described in [8], [13] and [14] are summary offences that have already been dealt with.

1. Between 3 August and 30 August 2016, the appellant breached the Intervention Order by attending the victim’s address on one occasion, damaging her car on one occasion, and being within five metres of her on two occasions.  He was arrested and interviewed on 1 September 2016 in relation to this offending.

1. Between 1 November 2016 and 26 January 2017, the appellant stalked the victim by continually contacting her in breach of the Intervention Order.  This offending culminated in an attack on the victim in the early hours of 26 January 2017, being Australia Day.  We will return to a description of that particular incident shortly.  The events in question unfolded as follows.

1. In early November 2016, the victim drove to her uncle’s house to have lunch with him.  She cared for him on a regular basis and assisted him by preparing meals.  On this occasion, she was at her uncle’s house for approximately four hours and, when she left to return to her car, she noticed a piece of paper under her windscreen wiper.  Upon removing the paper from the windscreen, she realised that it was a letter from the appellant.  She looked around but could not see the appellant. However, she felt concerned that the appellant was watching her movements (commencement of Charge 1).

1. On 7 December 2017 at approximately 11:00 am, the victim was at her home, getting ready to leave the house to go to work.  When she got to her car, she noticed a letter under her windscreen wiper.  It was another letter from the appellant.  This made her feel threatened and unsure if the appellant was watching her.

1. On 17 December 2016, there was a real estate inspection at the victim’s residential property that was for sale.  The appellant attended the inspection and registered his details with the real estate agent (continuation of Charge 1).

1. On 18 December 2016, the victim saw the appellant at the Bridie O’Reilly’s hotel.  When she left, three of her car tyres were flat and she had to take a taxi home.  When she arrived, the appellant was outside her apartment building.  She called the police.  The appellant left when the police arrived and, when he was interviewed, he told police that he knew he was in breach of an order when he attended the victim’s address.  Although the events on this date relate to the summary offences that were dealt with separately, the sentencing judge stated that these actions also underlay Charge 1.[3]

   [3]DPP v Brett Nicholson (a pseudonym) (Unreported, County Court of Victoria, Judge Gaynor, 31 August 2018) [10] (‘Reasons’).

1. On 21 December 2016, the victim received two Facebook messages from the appellant, which stated that if she did not drop the charges against him, he would release personal information about her.  The victim reported this to the police.  The appellant was arrested and made full admissions when interviewed.  These incidents comprise a number of summary charges which were dealt with in the Magistrates’ Court.

1. On 24 December 2016, the victim was at her friend’s house.  At approximately 9:00 pm, she was on the balcony of the townhouse and heard a noise coming from below, near where her car was parked.  She looked over the balcony and saw the appellant running away from her car, which was covered in eggs (continuation of Charge 1).

1. On 6 January 2017 at approximately 4:30 pm, the victim was returning home from a funeral and parked her car at the back of the property.  When she reached her front door, she noticed that her doormat had been disturbed and, when she moved it, discovered another letter from the appellant (continuation of Charge 1).

1. On 14 January 2017, the victim attended at Bridie O’Reilly’s in Brunswick.  The appellant also attended the hotel and, at some stage during the evening, the offender approached the victim and remained within five metres of her, in breach of the Intervention Order (continuation of Charge 1).

1. On 17 January 2017, the appellant sent the victim an email advising her that someone was pretending to be him on Facebook Messenger and was accessing his contacts.  He sent another email on 18 January 2016.

1. On 25 January 2017, the victim attended Bridie O’Reilly’s for an Australia Day Eve party and, at about 9:16 pm, the victim’s friend told her that she had seen the appellant enter the hotel by himself.  During the evening, the victim went to the bar and the appellant approached her.  He stood about two metres away from her for about 10 minutes.  The victim took a photograph of him in order to report the matter to the police (Summary Charge – breach of family violence order).

1. Shortly after, at about 1:05 am on 26 January 2017, the victim called ‘000’ to report the breach of the family violence order; however, she was advised that the police were not able to attend due to more pressing issues in the area.  The victim became emotional and told her friend that she wanted to leave.

1. At approximately 2:00 am, the victim left Bridie O’Reilly’s and drove her friend home before returning to her own residence.  At about 2:53 am, the victim heard an unidentified bang, went to investigate and saw a black car and a man getting into it.  She saw that her car had a shiny, bubbly substance all over it.  This substance was later determined to be industrial strength paint stripper and resulted in damage to the vehicle of almost $7,000 (Charge 2).

1. After seeing the substance on her car, the victim went outside to look at her car.  As she was examining the liquid on her car, she noticed the appellant walking quickly towards her.  She said to the appellant, ‘Please don’t hurt me’, and started to run towards her house.  The appellant told her that he would not hurt her and not to run.  He then ran in front of the victim and pushed her to the ground, causing the back of her head to hit the asphalt.

1. The victim started screaming as loudly as she could and was overheard by neighbours, who phoned ‘000’ to request assistance.

1. The appellant then lay on top of the victim with his whole body weight, telling her, ‘Shush, stop screaming’.  The victim tried to call ‘000’ from her mobile, but the appellant knocked it out of her hands.

1. The victim was unable to move under the weight of the appellant, and he continued to shush her and told her she was ‘going to get it’.  At this point, he put one hand around the victim’s neck to choke her and the other over her nose and mouth.  As he was choking her, the appellant said, ‘Just die’, and applied more pressure (Charge 3).

1. The victim was gasping for air, trying to pull the appellant’s hands off her.  She believed that she was going to die and thought that the only way to stop him was to play dead.  She went limp.  The appellant continued to apply pressure to her neck, but took his hand away from her mouth and kissed her on the lips (Charge 4).

1. In an attempt to stop the appellant from choking her, the victim told him that she missed him.  The appellant told her that he missed her too and gave her another kiss on the lips.

1. Police arrived at around 3:05 am and observed the offender on top of the victim with his hands around her throat, applying pressure.  The appellant was arrested at the scene.

1. Significantly, at the time of committing these offences, the appellant was on bail for other matters (Summary Charge 7).

1. As a result of the appellant’s attack, the victim sustained the following injuries: a small, tender bruise at the back of her scalp on the left side; tenderness on the right side of her jaw; petechial bruising to both eyes, which covered both the upper and lower eyelids as well as the soft tissue surrounding both eyes; a one by two centimetre bruise to her lower jaw on the right side; and tenderness across her upper back and shoulders.

1. During his subsequent interview with police, the appellant admitted to attending Bridie O’Reilly’s on 25 January and seeing the victim there.  He made admissions to writing and delivering the letters in November and December 2016.  He also admitted to sending the emails; however, he stated that he and the victim had continued to contact each other after the Intervention Order was served and that they were maintaining a sexual relationship.

1. The appellant said that he was unable to recall much of the detail of the events on 25 and 26 January, claiming he had memory blanks and only recalled waking up in the police station.  He was then remanded in custody.

Indictment J11258862

1. The circumstances of the offending the subject of Indictment J11258862 are as follows.

1. A further Family Violence Intervention Order issued by the Heidelberg Magistrates’ Court on 28 April 2017 was served on the appellant while he was in custody on 5 May 2017.

1. On 27 October 2017, while in custody at the Marngoneet Correctional Facility, the appellant posted two letters to the victim.  One was sent to her residential address and the other to her sister’s address.

1. Three days later, the victim received an envelope at her residential address.  When she opened it, she found a letter enclosed that read, ‘YOU WILL DIE SLUT’ in capital letters.  The letter was signed ‘JY’.  These were initials of the alias used by the appellant when he messaged the victim on Facebook to say another person had accessed his account.

1. On the same day, the victim attended at her sister’s house.  When she arrived, she saw that there was an envelope addressed to her that was identical to the one that she had received earlier.  When she opened the envelope, the letter read ‘HEY, HEY, HOE, SLUT, U WILL DIE.  DIE.  WATCH YOUR BACK.’  This letter was also signed ‘JY’.

1. On legal advice, the appellant refused to be interviewed by police in relation to this offending.

Reasons for sentence

1. After reciting the circumstances of the appellant’s offending, the sentencing judge dealt with his personal history.  At the time of sentencing, the appellant was 49 years of age.  He left school at the age of 15 and took up employment in the hospitality industry working as a cook or chef.  In May 2016, he suffered heart failure and, from that point forward, he relied on Centrelink benefits.  His earlier relationship of 21 years (including 16 years of marriage) ended as a result of alcohol addiction, aggression and infidelity.

1. The judge recorded that a psychologist, Ms Pamela Matthews, had diagnosed a severe alcohol use disorder.  In her report dated 24 November 2017, Ms Matthews concluded that the appellant’s risk of re-offending would be high if his alcohol misuse and depression were left untreated. 

1. The sentencing judge rejected the appellant’s submission that, in having regard to the principle of rehabilitation, the sentence should be reduced to allow the appellant to obtain treatment for his alcohol and heart problems that would be unavailable in jail.  She expressed ‘grave misgivings’ about the appellant’s prospects of rehabilitation as the appellant had previously offended against another former partner; following which he was ordered to attend treatment for alcohol addiction and a men’s behavioural change program.  Despite the rehabilitative measures imposed, the appellant’s offending continued, resulting in the present charges. 

1. The judge concluded that the appellant’s actions against the victim were serious examples of the crimes with which he was charged. Her Honour characterised the offending against the victim as ‘protracted, violent and terrifying’,[4] and the letters written by the appellant as displaying a ‘violent and vindictive’[5] attitude towards the victim.  The courts, she said, were expected to ‘respond sternly’ to incidents of domestic violence and emphasise general deterrence, denunciation and punishment.  Given the seriousness of the appellant’s offending, her Honour regarded protection of the community and specific deterrence as significant sentencing factors.

   [4]Reasons [66].

   [5]Ibid [68].

1. The sentencing judge did accept that the appellant’s heart condition would make imprisonment somewhat more onerous.  She also took into account the utilitarian appellant’s plea of guilty.

Grounds of appeal

1. The appellant was granted leave to appeal by Kyrou JA on the following grounds:[6]

   [6]Amended to include a reference to the orders for cumulation and to add the word ‘Indictment’.

Ground 1 — That the sentences imposed and the orders for cumulation on the following charges are manifestly excessive in all the circumstances:

Indictment H10239727

a.Charge 2: Damage Property.

b.Charge 3: Intentionally cause injury.

c.Charge 4: Sexual assault.

Indictment J11258862

d.Charge 1: Contravention of family violence intervention order.

e.Charge 2: Contravention of family violence intervention order.

Ground 2—That the total effective sentence imposed and the orders for cumulation failed to adequately reflect the principle of totality.[7]

[7]Emphasis in original.

Ground 1 — Sentences imposed and orders for cumulation manifestly excessive

1. The appellant acknowledged the seriousness of the offending, and that deterrence, denunciation and protection of the community were important sentencing considerations.  It was conceded that the impact on the victim was significant, that she experienced significant fear from the incidents, and was still suffering from severe anxiety.  Counsel for the appellant further conceded that a sentence of imprisonment was the only disposition open to the sentencing judge.

1. Despite these concessions, the appellant submitted that there were factors in mitigation that were relevant to each of the sentences imposed.

1. In particular, it was raised that the appellant suffers from cardiomyopathy, or heart failure, and cirrhosis.  This led to his inability to work and he was unemployed at the time of the offending.  Ms Matthews’ report tendered on the plea indicated that the appellant’s diagnosis of heart failure in May 2016, among other things, triggered ‘last resort thinking’.  She stated that it was more likely than not that this mental state played a significant role when committing the offences in the second indictment. 

1. The appellant also suffers from a severe alcohol use disorder, which was in operation at the time of the offending in the first indictment.  Although the appellant had previously completed court-ordered treatment in 2013, it was submitted that the diagnosis of heart failure in May 2016 and ‘last resort thinking’ lead to a significant relapse.  The appellant told the Court that he has participated in a six-hour Alcohol and Other Drugs & Depression Program in custody and has been attending weekly Alcoholics Anonymous meetings.

1. The appellant also relied on the early plea of guilty, which he submitted the judge mischaracterised as a ‘plea of guilty’ rather than as a ‘plea at an early opportunity’.

1. The appellant then stepped through the sentence on each charge to demonstrate the manifest excess.

Charge 2 – Damage property

1. The appellant submitted that, whilst there was an element of premeditation involved in the offence, the car was not inoperable, the damage was repairable, and the victim was compensated for the damage through the fund for compensation for victims of crime (‘VOCAT’).  The sentencing judge was told that the complainant borrowed money from her family to repair the car and then later repaid it when VOCAT reimbursed her.  The amount was $6,972 and the appellant accepted that was so. 

1. The appellant also submitted that, as the offence occurred during the same course of conduct as Charges 3 and 4 and was committed during the time period for Charge 1, it was important that the appellant was not doubly punished for this offending.

1. Finally, the appellant referred to the fact that the offence is an indictable offence that can be heard summarily.[8]  Such matters are often heard in the Magistrates’ Court, where the maximum penalty is two years’ imprisonment.[9]  The damage caused was also well below the jurisdictional limit of the Magistrates’ Court.

   [8]Criminal Procedure Act 2009 s 28.

   [9]Sentencing Act 1991 s 113.

1. In all these circumstances, the appellant argued, a sentence of 18 months imprisonment for damage to the victim’s car is manifestly excessive.

1. The first point to note is that the matter was dealt with in the County Court and the maximum penalty for the offence is ten years’ imprisonment.  In our opinion, what might have happened if the matter had been dealt with summarily is irrelevant and entirely speculative.

1. The offence in Charge 2 occurred in connection with the offences that followed (Charges 3 and 4).  The damage to property in this circumstance was not incidental to another offence – the pouring of paint stripper onto the victim’s car was planned and executed in order to harm the victim.  In addition, although the car remained operable, we regard the damage to the vehicle as significant.

1. In relation to the charges arising from the events of 26 January 2017, including Charge 2, it is noteworthy that, at the time, the appellant was on bail for the offences committed in 2016.

1. It is sufficient to say that, in the context of maximum penalty for this offence and the circumstances of harassment, stalking and family violence in which it occurred, we do not regard the sentence imposed of 18 months’ imprisonment as manifestly excessive.

Charge 3 — Cause injury intentionally

1. The appellant submitted that it is not the most serious example of intentionally causing injury as the victim, though taken to hospital, did not require medical intervention, the victim did not lose consciousness, her physical injuries were limited to bruising and tenderness, and it was an isolated incident, which was not pre-meditated and occurred in the course of conduct giving rise to Charges 2 and 4, and during the time period of Charge 1.

1. The appellant submitted that the Court should take into account that the majority of sentences imposed for intentionally causing injury, where it is the principal offence, involve less than two years’ imprisonment.  The appellant again submitted that this was a matter that may have been suitable for summary jurisdiction where the maximum term of imprisonment that could have been imposed would have been two years.  For these reasons, it was submitted that the sentence of three years’ imprisonment was wholly outside the applicable range of sentences and manifestly excessive.

1. We would again reject this analysis.  The maximum penalty for this offence when dealt with in the County Court is ten years’ imprisonment.  The victim was very frightened from the beginning.  She begged the appellant not to hurt her and he said he would not.  However, with the victim pinned to the ground by the appellant’s body weight, the attack included placing one hand on her neck and the other over her nose and mouth in an attempt to choke her.  During the course of this assault, he said, ‘You are going to get it’ and ‘Just die’.  The victim thought she was going to die and pretended to be dead to stop the appellant.  

1. In our view, the sentencing judge was right to emphasise the seriousness of this offending.  This was a serious example of this offence and, where the maximum penalty is 10 years, we do not consider a sentence of 3 years’ imprisonment as being manifestly excessive.

Charge 4 — Sexual assault

1. The sexual assault charge arose from the act of kissing the victim while she was held down and choked by the appellant, and she was playing dead.  It occurred following the threats described above.

1. The appellant again submitted that the sexual assault charge was a separate offence, and that it must be treated in isolation so that he did not receive double punishment for the offending.  He referred to the fact that he has no relevant priors for such offending.

1. He also argued that, similar to the above offences, this is an offence that can be determined summarily, where it carries a maximum term of imprisonment of two years.  In this context, he submitted that the sentence of 10 months’ imprisonment was manifestly excessive.

1. The offence was a separate offence but the overall context is significant and inextricable.  As the appellant described it, this offence occurred during a ‘frightening physical attack’ on the victim.  Again, the victim was pinned under the appellant and, believing it her only option to end the attack, she played dead.  She was incapable of resisting the appellant or fending him off.  In the violent and frightening context in which the sexual assault took place, the ‘kiss’ was invested with a particular meaning: that of hatred and contempt.  It was an act of violence.

1. The maximum penalty is, again, ten years, and a sentence of 10 months in these circumstances could not be regarded as manifestly excessive.  We respectfully agree with Kyrou JA that the circumstances of this offence cannot be treated as an aggravating feature of the former offences but, in our view, the sentencing judge did not do that. 

1. We will return to the issue of totality.  

Charges 1 & 2 (Indictment J11258862) — Contravention of Family Violence Intervention Order

1. Although the appellant conceded that the anonymous letters contained a threat, involved the use of deception, and were sent whilst he was already in custody, it was argued that they do constitute the most serious of this type of offending.  In particular, the appellant referred to the fact that he had no ability to carry out the threat as he was in custody.  He also submitted that the letters should be considered as a single course of conduct because they were posted on the same day and that the offending should be considered in the context of the appellant’s poor physical health, which resulted in ‘last resort thinking’.  

1. The appellant again submitted that both offences could have been heard summarily, where the maximum penalty would have been two years’ imprisonment.  Accordingly, it was put that the sentences of 18 months for each letter were manifestly excessive.

1. We again reject the analysis concerning summary jurisdiction as irrelevant.

1. Furthermore, in our view, the sentencing judge correctly concluded that the nature and gravity of the offending made them serious offences.  Whilst posted on the same day, the letters were distinct.  Both contained death threats, and that fact in itself makes this very serious offending by a person who had previously employed the threat of death in the events of 26 January 2017. 

1. It was also significant that a previous conviction of the appellant in 2013 was a contravention of a Family Violence Intervention Order, which resulted in a 12-month Community Correction Order with, among other things, 60 hours of community work.

1. In our view, the individual sentences for these offences were not manifestly excessive given all of those circumstances. 

Totality

1. In relation to both indictments on which the appellant was sentenced, the appellant argued that a greater level of concurrency should have been imposed by the sentencing judge.  It was argued that the learned sentencing judge did not properly apply the totality principle.  

1. The application of the principle was not the subject of detailed submissions and the sentencing judge did not, in terms, refer to it.  That, of course, does not mean she did not consider it.

1. In the case of both indictments, the argument of the appellant was similar.  The offending was against the same person, there was ‘one transaction’, and the objective gravity of the charges is either informed by the others or, in the second indictment, relevant to the principle of rehabilitation.  It was additionally put that the cumulation of 18 months for Indictment J11258862 on the other offences demonstrates a failure to apply the principle appropriately.

1. Orders for cumulation and concurrency are matters of judicial discretion for a sentencing judge, and are to be exercised with the principle of totality firmly in mind.  Totality requires that the result be ‘just and appropriate’ in the circumstances, and that a crushing sentence be avoided.  It was not submitted on behalf of the appellant that the total effective sentence in this case was crushing.  As Eames JA said in R v Piacentino; R v Ahmad:[10]

In Mill v R the High Court adopted the explanation of the principle as articulated by D A Thomas in Principles of Sentencing, namely, as requiring a sentencer who has passed multiple consecutive sentences ‘to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’’; and that ‘it is always necessary for the court to take a last look at the total just to see whether it looks wrong’.  McHugh J stated in Postiglione v R, that - disp22totality‘requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged’ but it extends to ‘the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence’.

[10](2007) VR 501, 507 [32] (citations omitted).

1. We have already dealt with the submissions concerning each of the individual sentences.  These offences were committed over an extended period of time and were all directed at the one person within the context of family violence.  The offending was serious and escalated over that period.  It did not cease even upon the appellant being in custody.  It was offending that was also a feature of the appellant’s previous criminal history.

1. It is sufficient to deal with the appellant’s submissions to conclude that, in accordance with principle, an overall evaluation of criminality of the appellant in this case does not lead to the conclusion that the total effective sentence imposed on the appellant as a result of the sentencing judge’s orders for cumulation was manifestly excessive.

1. The appeal will be dismissed.

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