Carroll v The Queen
[2011] VSCA 150
•19 May 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2008 0663
| JASON MARK CARROLL | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | MAXWELL P and BUCHANAN JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 April 2010 | |
DATE OF FILING OF FURTHER EVIDENCE: | 7 December 2010 | |
DATE OF FINAL SUBMISSIONS:[1] | 28 February 2011 | |
DATE OF JUDGMENT: | 19 May 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 150 | |
JUDGMENT APPEALED FROM: | R v Carroll (Unreported, County Court of Victoria, Judge Douglas, 9 May 2008) | |
[1]This was the date on which counsel for the Crown advised that no submissions were to be filed in response to the further evidence filed on behalf of the appellant.
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CRIMINAL LAW – Appeal – Sentence – Multiple counts of stalking, burglary, theft, aggravated burglary and using telephone to menace – Sexual motivation – Twelve different victims over eight months – Total effective sentence 12 years, non-parole period 10 years – Whether manifestly excessive – Whether persistent sexual offending attributable to mental impairment – R v Verdins (2007) 16 VR 269 considered – Whether remorse demonstrated – New evidence – Protection prisoner – Whether degree of restriction warranted alteration of sentence – Appeal dismissed.
CRIMINAL LAW – Sentencing – Commonwealth offences – Whether sentencing judge required to make recognisance release order or fix non-parole period – Whether adequate reasons given for not doing so – Crimes Act 1914 (Cth) ss 19AB, 19AC.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P F Tehan QC | Jeremy Harper & Associates |
| For the Crown (Cth) | Mr J R Champion SC | Commonwealth Director of Public Prosecutions |
| For the Crown (Vic) | Mr B L Sonnet | Mr Craig Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
This is an appeal against sentence imposed in the County Court on 9 May 2008. The appellant pleaded guilty to 34 counts, involving 13 different victims. Twenty-nine counts were for State offences and five were for Commonwealth offences. In each case, the Commonwealth offence was that of using a carriage service – in this case, a telephone – to menace a person, contrary to s 474.17 of the Criminal Code Act 1995 (Cth).
The appellant was sentenced as follows:
| COUNT | VICTIM | OFFENCE | MAXIMUM | SENTENCE | CUMULATION |
| 1 | A | Burglary | 10y | 18m | 2m |
| 2 | A | Theft | 10y | 12m | — |
| 3 | A | Stalking | 10y | 5y | Base |
| 4 | A | Aggravated burglary | 25y | 3y | 5m |
| 5 | A | Theft | 10y | 12m | — |
| 6 | B | Burglary | 10y | 18m | 2m |
| 7 | B | Theft | 10y | 12m | — |
| 8 | B | (Cth) Use telephone service to menace | 3y | 18m | — |
| 9 | H | Burglary | 10y | 18m | 2m |
| 10 | H | Theft | 10y | 12m | — |
| 11 | C | Theft | 10y | 18m | 2m |
| 12 | C | Theft | 10y | 12m | — |
| 13 | C | (Cth) Use telephone service to menace | 3y | 18m | — |
| 14 | D | Theft | 10y | 8m | 2m |
| 15 | D | Obtain property by deception | 10y | 8m | 1m |
| 16 | E | Burglary | 10y | 18m | 2m |
| 17 | E | Theft | 10y | 12m | — |
| 18 | F | Burglary | 10y | 18m | 2m |
| 19 | F | Theft | 10y | 12m | — |
| 20 | F | (Cth) Use telephone service to menace | 3y | 18m | — |
| 21 | G | Burglary | 10y | 18m | 2m |
| 22 | G | Theft | 10y | 12m | — |
| 23 | G | (Cth) Use telephone service to menace | 3y | 18m | — |
| 24 | E | Stalking | 10y | 3y | 14m |
| 25 | H | Burglary | 10y | 2y | 3m |
| 26 | H | Theft | 10y | 12m | — |
| 27 | H | Stalking | 10y | 3y 6m | 14m |
| 28 | J | Theft | 10y | 12m | 2m |
| 29 | K | Theft | 10y | 12m | 2m |
| 30 | L | Burglary | 10y | 12m | 2m |
| 31 | M | Attempted burglary | 5y | 10m | 2m |
| 32 | N | Burglary | 10y | 10m | 3m |
| 33 | N | Theft | 10y | 12m | — |
| 34 | N | (Cth) Use telephone service to menace | 3y | 2y | — |
| Total effective sentence 12y Non-parole period: 10y[2] | |||||
[2]The structure of the sentence is explained in [47]–[49] below.
Factual background
The offences spanned a six year period, although most were committed between January and August 2007. The circumstances are summarised in Appendix A.
Delay in disposition of the appeal
More than a year has passed since the appeal was heard. As will appear, this very long delay is largely explained by the dilatory conduct of the parties.
The Full Statement of Grounds was filed on the appellant’s behalf on 27 April 2009. Ground 8 was in these terms:
There is fresh evidence as to the impact of imprisonment upon the appellant which was not available at the time of sentence, namely, that the appellant is now serving his sentence in protective custody.
In the event, no fresh evidence was provided before the appellant’s written submissions were filed in June 2009, nor before the Crown’s submissions were filed in September 2009. An affidavit was filed in late September 2009 but it was not until April 2010, a matter of days before the appeal hearing, that the final affidavit was filed on the appellant’s behalf.
Inevitably, the late service of that affidavit meant that ground 8 could not be fully dealt with at the hearing. Counsel appearing for the Crown sought, and was granted, leave to investigate what was referred to as the ‘protection issue’ and to file further submissions in relation to that issue. It was not until four months later, however, that a responding affidavit was filed on behalf of the Crown, on 27 September 2010.
There was another outstanding matter. In the course of his reply, senior counsel for the appellant sought leave to file further material relating to the appellant’s psychiatric condition. On the plea, reliance had been placed on a report of Mr Jeffrey Cummins, clinical psychologist. The Court was told that it was now desired to obtain, and rely on, a further affidavit from Dr Lester Walton, consultant psychiatrist. An affidavit by Dr Walton sworn 14 December 2009 had already been filed in support of the appeal.
In the event, the supplementary affidavit of Dr Walton was not received by the Court until 7 December 2010, more than seven months after the appeal hearing, and it was not until late February 2011 that the Court was able to obtain confirmation from the parties that no further submissions were proposed to be filed.
The appellant’s mental condition and the applicability of R v Verdins[3]
[3](2007) 16 VR 269 (‘Verdins’).
The report of Mr Cummins was based on an interview conducted with the appellant in February 2008. The sentencing judge noted the following aspects of the report:
·the appellant had informed Mr Cummins that he had been engaged in voyeuristic activity since he was 13. Although he had had relationships with women of a similar age, he continued to offend by way of stealing and retaining women’s underwear, which he used for the purposes of masturbation. He described himself as a ‘peeping Tom’;
·the appellant had told Mr Cummins that his primary sexual fantasy involved masturbating into women’s underwear but that he now found this ‘psychologically suffocating and overwhelming’;
·in 2001, the appellant had completed the three month level two sex offender treatment program at Ararat Prison. He now wanted to participate in a ‘rigorous and extended’ sexual offender program and would like to complete this program in custody;
·he was keen to investigate the possibility of being placed on libido-suppressant medication.
Mr Cummins’ opinion was that the appellant had ‘multiple related psychological/psychiatric difficulties, for which he require[d] extensive treatment’. He noted that the appellant had been taking anti-depressant medication for a number of years and was still doing so. Mr Cummins said that the prognosis was ‘inevitably guarded’ and that it would appear that the appellant was at a ‘relatively early stage’ in coming to terms with the magnitude and complexity of his sexual deviance.
As her Honour noted, it was submitted on the plea that, although the appellant was acknowledged to be an appropriate vehicle for specific and general deterrence, the fact that he had a ‘deviant mental disorder’ should be viewed as reducing his moral culpability. The judge rejected that submission, saying:
You knew what you were doing. You planned what you were doing and you have had ample opportunity to address your offending and have chosen not to do so.[4]
[4]R v Carroll (Unreported, County Court of Victoria, Judge Douglas, 9 May 2008) (‘Reasons’), [68].
Ground 2 contended that her Honour had erred in finding that the principles enunciated in Verdins[5] had no application. It was submitted that, merely because the appellant knew what he was doing, and indeed had planned some of the offences, this was no basis for rejecting the application of the Verdins principles. (As will appear, only one of the six Verdins principles – the first, concerning moral culpability – was invoked on the plea.) It was further submitted that her Honour’s finding that the appellant had chosen not to address his offending was ‘unfair and against the body of evidence’. He had made attempts but had failed. His indication that he would be prepared to undertake drug therapy to reduce his libido further demonstrated his desire to deal with his problems.
[5](2007) 16 VR 269.
In his December 2010 affidavit, Dr Walton stated that, based on the history he had taken, the appellant had been sexually motivated towards some of his offending, most particularly stalking and thefts of women’s underwear, but ‘other dishonesty matters seem to have been driven by a desire for financial gain and/or to offset depression.’ It must be pointed out that this opinion was at variance with the report of Mr Cummins, who recorded the appellant as having stated at interview that
there had invariably been a significant sexual motivation and sexual element to most of the burglaries and thefts he has committed over the years.
It was also at variance with the defence case as put on the plea. Defence counsel told the judge that it was not in dispute that ‘the previous offending is largely, if not on most occasions, related to some sexual motivation.’
Secondly, Dr Walton said he had obtained a history from the appellant of
cyclical mood swings, although they seemed not to be of great ferocity, and thus the making of [a diagnosis of] bipolar disorder was less than straightforward.
…
Furthermore, once the mood swings had settled, it became apparent that the appellant remained afflicted by seeming obsessive-compulsive symptoms. I have been of the view that this behaviour resided within his personality rather than representing an imposed psychiatric disorder but … the appellant can now be diagnosed as suffering from obsessive-compulsive disorder, of relatively mild degree. It is the case therefore that two further diagnoses have been added to the appellant’s growing diagnostic list, which simply reinforces that he is a rather complex individual psychiatrically.[6]
[6]Emphasis added.
Dr Walton concluded by expressing the opinion that ‘the appellant’s disturbed mental state has made a contribution to his offending.’ The affidavit did not, however, elaborate on how this was so. Importantly, Dr Walton’s opinion was that
the appellant is not an unintelligent man and therefore there is no particular reason to suspect that he would other than fully appreciate the specific deterrent component of any particular sentence but he is a man riddled by impulsivity at times and it is likely that such considerations would be lost to him in those moments.
Consideration
In my respectful opinion, there was no error in her Honour’s conclusion that the appellant’s moral culpability was not reduced by any of these aspects of his psychological profile. That conclusion was well open on the material before her Honour. On ordinary principles, therefore, there is no scope for appellate intervention on this ground.
It needs to be emphasised that a finding made by a sentencing judge about the applicability of one or more of the principles identified in Verdins[7] is a finding of fact. It is for the sentencing court to decide whether, and if so to what extent, any condition from which the offender is said to suffer is likely to have affected his/her mental functioning in the particular circumstances – that is, at the time of the offending or in the lead-up to it – or is likely to affect him/her if sentenced to imprisonment.[8] As to proposition 1, concerning the reduction of moral culpability, the Court in Verdins said:
It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender’s conduct. The effect on the court’s assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence.[9]
[7](2007) 16 VR 269.
[8]Ibid [13].
[9]Ibid [25].
Accordingly, a finding of the kind in issue here – that the appellant’s moral culpability was not reduced – will attract appellate intervention only if it can be shown that the finding was not reasonably open on the evidence.[10] In the present case, the appellant would have had to show that no other conclusion was reasonably open but that his culpability was reduced, at least to some extent, by what was said to be the impairment of his mental functioning.
[10]See Lam v The Queen [2011] VSCA 140, [6].
Not only was her Honour’s conclusion reasonably open but I respectfully agree with it. Her Honour’s approach exemplifies the rigour with which arguments of this kind must be assessed, as was made clear in Verdins itself and has since been repeatedly emphasised by this Court on appeal.[11] As is now well-recognised,[12] diagnostic labels are, by themselves, of no assistance to a sentencing judge. What matters is what the expert evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.[13]
[11]See, for example, DPP v Patterson [2009] VSCA 222, [46]; R v White [2009] VSCA 177, [13]–[17]; Romero v The Queen [2011] VSCA 45, [13]–[14].
[12]R v Robazzini [2010] VSCA 8, [42].
[13]Verdins (2007) 16 VR 269, [8]; R v Zander [2009] VSCA 10, [29].
Where reliance is placed on proposition 1, concerning moral culpability, the question for the Court is whether the evidence establishes – on the balance of probabilities – that the impairment of mental functioning did contribute to the offending in such a way as to render the offender less blameworthy for the offending than he/she would otherwise have been. Very often, this question is approached as one of causation. Did the evidence establish a causal connection between the impairment of mental functioning and the offending for which sentence is to be imposed?[14]
[14]Ashe v The Queen [2010] VSCA 119, [14], [19]; Davey v The Queen [2010] VSCA 346, [25]; MC v The Queen [2011] VSCA 2, [20]–[21]; Bowen v The Queen [2011] VSCA 67, [28], [29], [33]; DPP v HPW [2011] VSCA 88, [28], [63]; Pettiford v The Queen [2011] VSCA 96, [32]–[34].
There was no evidence of that kind in the present case. It is true that Mr Cummins diagnosed the appellant as suffering from alcohol dependence, kleptomania, pathological gambling, voyeurism and fetishism. But these diagnoses were simply descriptive of the appellant’s behaviours as exhibited over many years. There was no suggestion in Mr Cummins’ report that the offending was attributable to any causative mental impairment.
The evidence was all to the contrary. The appellant’s offending consisted of persistent, purposeful behaviour over a long period, conduct directed quite deliberately at his own sexual gratification and – equally often – at causing distress to his victims, both by what he said and by what he did. It is clear from the appellant’s actions that, as her Honour found, he knew what he was doing. Indeed, he acted with guile in pursuing his ends – as when, in order to persist with his stalking of Ms H, he tricked her father into giving him her phone number (count 27). And, as the Crown pointed out on the appeal, the appellant seemingly had no difficulty in maintaining skilled employment and personal relationships while continuing to offend.
Defence counsel on the plea argued that the offending was done under ‘compulsion’. There was a reference in a letter from the appellant’s general practitioner to ‘obsessive compulsive disorder’. Quite rightly, in my view, her Honour made clear that she would not accept, as a sufficient diagnosis for this purpose, a statement of that kind from a general practitioner, rather than from a psychiatrist or a clinical psychologist. There had been no suggestion of obsessive compulsive disorder either in the Forensicare report of 2001 or in the 2008 report from Mr Cummins. Although Dr Walton did ultimately diagnose obsessive compulsive disorder, he concluded that it was present only to ‘a relatively mild degree’. And, as already noted, although Dr Walton expressed the view that the appellant’s ‘disturbed mental state’ had contributed to his offending, there was nothing in his affidavit to explain how this was so.
In relation to the claim that the appellant had tried to do something about his ‘problem’, Mr Cummins recorded the appellant as saying that
although he had been assessed [in 2001] by Dr Joseph Lee of Forensicare and Dr Michelle Pathe he had never previously disclosed the magnitude and extent of his obsession with and commitment to engaging in acts which would facilitate and accommodate his preferred sexual fantasies.
It was only at the interview with Mr Cummins that the appellant said he was, for the first time, ‘ready to talk and ready to disclose the full magnitude of his deviant sexual fantasies and deviant sexual behaviour.’ He had evidently made a conscious decision not to do so previously, despite multiple opportunities.
Most of the offending took place in the eight month period from the start of 2007 to the end of August in that year. Beginning with victim B in January 2007, the appellant offended against a different victim in each succeeding month of the year, and sometimes against two different victims in the same month. It was made clear to the sentencing judge on the plea that none of this 2007 offending had been disclosed to the appellant’s partner, with whom he had been in a stable relationship for some eight years. The offending continued even as – according to the records – the appellant was consulting his general practitioner and a psychologist.
Had the appellant truly wanted to stop what he was doing, the obvious thing to do was to tell his partner as soon as the ‘uncontrollable urge’ came upon him and to ‘disclose the full magnitude of his deviant sexual behaviour’. That he did no such thing, and instead concealed the entirety of (at least) the 2007 offending from her, speaks for itself.
This ground must fail.
Ground 4: general deterrence
Ground 4 contends that the learned judge placed ‘too much weight on general deterrence’. Her Honour said:
I have given a considerable amount of weight to general deterrence. That is to deter other people who may consider people such as the victims in this case to be soft targets and are inclined to enter people’s homes when they are not present and to menace people as you did.[15]
[15]Reasons, [69].
This ground represents an impermissible attempt to re-argue the plea in mitigation, on a quite different basis. When defence counsel made his submission that the appellant’s moral culpability was reduced because of impaired mental functioning, the sentencing judge was astute to enquire whether counsel was relying on any of the other principles in Verdins.[16] Counsel confirmed in clear terms that he was not. This Court has emphasised that, where a prisoner is represented by counsel, a sentencing judge is not ordinarily required to consider any possible effects of psychological or psychiatric disability other than those expressly relied on by counsel.[17] For obvious reasons, the position is even clearer where – as here – there is an attempt on appeal to rely on an aspect of Verdins which was expressly disavowed on the plea.[18]
[16](2007) 16 VR 269.
[17]R v Zander [2009] VSCA 10, [36]; R v White [2009] VSCA 177, [16]–[17].
[18]Romero v The Queen [2011] VSCA 45, [11]; Pettiford v The Queen [2011] VSCA 96, [31].
So far as general deterrence was concerned, this was sustained, calculated offending, which caused very grave damage to the large number of victims affected. Her Honour was right to conclude that a clear message needed to be sent by this sentence to the community at large. Quite correctly, defence counsel made no submission to the contrary.
Ground 6: prison more burdensome?
Ground 6 was in these terms:
The learned sentencing judge erred in failing to place any or any sufficient weight upon the fact that imprisonment will be the more burdensome for the appellant.
This ground sought to invoke proposition 5 from Verdins, which is in these terms:
The existence in the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.[19]
[19](2007) 16 VR 269, [32].
This ground must be rejected, for the reasons given in relation to ground 4. As already noted, defence counsel confirmed that he was not invoking any aspect of Verdins other than proposition 1. Given that there was nothing in Mr Cummins’ detailed report to suggest that incarceration would, in the relevant sense, be more onerous, it is not surprising that proposition 5 was not invoked.
Ground 8: protective custody
The appellant swore two relevant affidavits, the first in September 2009 and the second in April 2010. Taking into account the Crown’s responding affidavit of 27 September 2010, the position appears to be as follows.
On 20 May 2008, whilst housed at Melbourne Remand Centre, the appellant was made a protection prisoner. He was separated from other prisoners because of threats made against his personal safety, apparently due to the sexual nature of his crimes. The Sentence Management Unit of Corrections Victoria decided that it was no longer tenable for him to remain a mainstream prisoner.
On 28 July 2008, while working in the laundry at Port Phillip Prison, the appellant was assaulted by another prisoner. He was punched and hit to the head. This caused lacerations which required stitches. According to the appellant, his assailant had earlier ‘verbally assaulted’ him by referring loudly in the presence of other prisoners to the details of his offences.
A second assault occurred on 12 November 2009. The assault followed an argument between the appellant and his assailant over access to the telephone. There is dispute as to where the assault occurred, but there seems little doubt that it was principally related to the issue of telephone use, rather than to the appellant’s offending.
The appellant was in protection at Port Phillip Prison from May 2008 until at least the end of 2009. In explaining why this made imprisonment more burdensome, he said in his first affidavit:
Amongst the particular difficulties which I have experienced are having to wait a long time for a single cell, being unable to be transferred to a country gaol because of threats emanating from Ararat Prison, limited access to visits from family and restrictions upon access to sporting and educational rehabilitative measures.
As at September 2010, the appellant had been transferred to Ararat Prison. As the Crown’s affidavit explained, Ararat is a protection prison, entirely dedicated to protecting prisoners. There is no loss of privileges for prisoners housed at the prison and, as a result, no prisoner is disadvantaged in any way by reason of his status as a protection prisoner.
There is clear authority in this Court that evidence of this kind – showing that a person became a protection prisoner subsequent to being sentenced – satisfies the tests laid down in R v Eliasen[20] for the admission of evidence on appeal.[21] But, as those authorities make clear, the question for the appeal court is whether, having regard to the material, a different sentence should be substituted for that passed by the sentencing judge. That will, in turn, require an assessment of the actual effect on the appellant of his classification as a protection prisoner. As was pointed out, respectively, by Kellam JA and Whelan AJA in R v Males,[22] the degree of restriction varies greatly from one case to the other.
[20](1991) 53 A Crim R 391, 394.
[21]R v Rostom [1996] 2 VR 97.
[22][2007] VSCA 302, [38], [40], [5].
In the present case, it is apparent from the appellant’s own affidavit that the restrictions to which he was subject in 2008–09 were only moderate. Moreover, those restrictions subsisted only until his transfer to Ararat, where he is subject to no restrictions. I do not consider that the new material warrants any alteration in the sentence.
Ground 7: remorse
It was contended for the appellant that the judge erred in finding, as she did, that there was no evidence of remorse. It was submitted that the appellant’s desire to undergo an extended sexual offender program, and in particular to undergo anti-libidinal treatment, signified remorse.
This ground must be rejected, in my view. Once again it amounts to an attempt to re-argue the plea in mitigation, on a different basis. That is not the function of an appeal against sentence.
In the course of what the sentencing judge described as ‘a comprehensive and well thought out plea’, defence counsel did not seek to substantiate the assertion, made only at the very end of the plea, that his client was remorseful. Counsel spoke repeatedly of his client having gained ‘insight’, but not of remorse, which is a different thing. He pointed out that both the appellant’s parents and his partner felt ashamed because of what the appellant had done, but did not suggest that the appellant himself felt shame or regret. This was a telling omission. Counsel said only that the appellant accepted that he had ‘caused the persons who had been subject to his offences significant and real distress’.
After referring to the appellant’s acknowledgment that ‘it would be best’ if he were placed on the Sex Offenders Register, defence counsel said:
Now, does that demonstrate insight? In my submission it does. Can it be said that real remorse is evidenced? It’s a difficult proposition. I don’t propose to call the prisoner to just make that statement.
Defence counsel went on to say that the appellant had been in the process of drafting a letter to the Court ‘outlining the remorse he feels for the victims in this matter,’ but that the letter had not been completed. As already noted, defence counsel had decided not to call his client to give evidence of remorse.
This sequence of events fully vindicated the conclusion the judge came to. Had the appellant truly been remorseful, nothing could have been simpler than for him to give evidence to that effect or to make sure that a written expression of regret was conveyed to the court. Neither of those things occurred.[23]
[23]Cf R v Fraser [2004] VSCA 147, [17].
As with the issue of moral culpability, the question of remorse was a question of fact for the sentencing judge to decide. The burden lay on the appellant to establish his remorse on the balance of probabilities. Her Honour’s finding was well open on the evidence before her.
Ground 3: sentencing on the Commonwealth counts
As noted earlier, counts 8, 13, 20, 23 and 34 were Commonwealth offences under the Criminal CodeAct1995. Her Honour imposed the following sentences on those counts, with commencement dates as specified:
·count 8 — 18 months (9 May 2008);
·count 13 — 18 months (9 September 2008);
·count 20 — 18 months (9 January 2009);
·count 23 — 18 months (9 May 2009); and
·count 34 — 2 years (9 September 2009).
Her Honour specified that the commencement date of the sentences for the State offences would be 9 January 2010. Her stated intent was that the appellant would serve a total of 20 months in relation to the Commonwealth offences, before he commenced the sentence imposed in relation to the State offences, which was 10 years and 4 months. I note in passing that this postponement of the commencement date of the State sentences was in accordance with long-standing authority. In O’Brien,[24] the Court of Criminal Appeal (Crockett, McGarvie and Phillips JJ) said:
[A] court may direct that a sentence for a State offence and one for a federal offence be served in the order which is most practical and appropriate. It may direct that the federal sentence commence on the date of its imposition and give directions for the State sentence to be served in whole or in part cumulatively upon the federal sentence, as considered appropriate. One way of doing this involves fixing a later date for the commencement of State sentence.[25]
Although O’Brien concerned ss 14 and 15 of the Penalties and Sentences Act 1985 (Vic), the corresponding provisions of the Sentencing Act 1991 (Vic) – ss 16 and 17 – are materially the same.
[24](1991) 57 A Crim R 80.
[25]Ibid 96.
Her Honour then said:
I order that you serve a minimum term of eight years and four months in relation to the State offences before you become eligible for parole. Pursuant to s 19AC(4) of Crimes Act 1914 (Cth) I have not made an order in respect of recognisance release order in relation to the Commonwealth Offences as I am satisfied it is not appropriate in the circumstances of the case in that after the prisoner completes serving 20 months in respect of the sentences imposed in relation to Commonwealth offences, he will then serve a sentence of ten years and four months with a minimum term of eight years and four months in relation to State offences before he becomes eligible for parole.
So to put it in – if I could say this – plain English, overall the sentence in practical terms will be 12 years’ imprisonment with a minimum term of ten years before the prisoner is eligible for parole but because [of] the State sentences and Commonwealth sentences, there is an amount of complication.[26]
[26]Reasons, [91]–[92].
It was conceded on the appeal that her Honour’s reliance on s 19AC of the Crimes Act 1914 (Cth) was erroneous. For reasons which follow, this concession was correctly made, but the error was not material.
The question which her Honour was, quite correctly, addressing was whether she was required to fix a non-parole period or make a recognisance release order in respect of the Commonwealth sentences. Mindful of the notorious complexities of Commonwealth sentencing law, her Honour was careful to ask counsel appearing on behalf of the Commonwealth Director of Public Prosecutions to ‘check the technical aspects’ of the sentencing for the Commonwealth offences.
What appears to have happened is that her Honour miscalculated the aggregate length of the federal sentence she was imposing. She calculated that the aggregate length was 36 months when in fact it was 40 months. This was so because, by the time the sentence of two years on count 34 commenced on 9 September 2009, the appellant would already have served 16 months under the federal sentences imposed on counts 8, 13, 20 and 23.
The error was significant because the provision to which her Honour referred – s 19AC – was applicable only if the aggregate federal sentence did not exceed three years.[27] Because the aggregate in fact exceeded three years, the applicable provision was s 19AB.[28] As a result, her Honour was obliged either to fix a non-parole period or to make a recognisance release order, unless,
having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the Court [was] satisfied that neither [was] appropriate.[29]
[27]Crimes Act 1914 (Cth) s 19AC(1)(b).
[28]Crimes Act 1914 (Cth) s 19AB(2)(b).
[29]Crimes Act 1914 (Cth) s 19AB(3).
As it happens, the obligation imposed by s 19AC – to make a recognisance release order – is subject to an equivalent discretion not to do so, under s 19AC(4). Counsel for the Commonwealth Director did not appreciate the arithmetical error which had been made and proceeded on the same mistaken assumption that s 19AC was applicable. Importantly, however, his submissions drew attention to the insufficiency of the reasons which her Honour had purported to give in compliance with s 19AC(4), for not making a recognisance release order. Counsel pointed out, correctly, that the discretion conferred by the section (and the same is true of the discretion conferred by s 19AB(3)) could not be exercised by reference only to the ‘practical considerations’ to which her Honour had referred.
This having been drawn to her Honour’s attention, she gave supplementary reasons for not making a recognisance release order, as follows:
I have given a reason which one could say is perhaps of a practical nature and I was not as comprehensive as I should have been. I will now add to those reasons being that the offences themselves were serious and as I indicated in my sentencing remarks, given the circumstances in which each of those offences was committed, I consider that the appropriate sentence was in the high range of those sentences, taking into account the prior convictions of the accused for the same or similar offences. So, by way of conclusion, it is the circumstances in which each of those offences were committed, the continuing course of conduct in the context of the State offences and the prior convictions of the prisoner.
Counsel for the Commonwealth Director immediately assured her Honour that the supplementary reasons were sufficient to meet the requirements of the provision conferring the discretion. I respectfully agree. Had the arithmetical error been identified, doubtless exactly the same course of events would have transpired, though by reference to s 19AB(3) rather than s 19AC(4). The same submission would have been made, and the same supplementary reasons would have been given in explanation of the decision to do neither of the things provided for by that section.
This ground fails.
Ground 1: manifest excess
The submission for the appellant was that the individual sentences, the total effective sentence and the non-parole period were all outside the range reasonably open to the judge in the circumstances of the case. According to the submission:
The sentence meted out in this case fails to appreciate the level of [the appellant’s psycho-sexual] disorder, his efforts at and need for rehabilitation and places unwarranted to the emphasis upon punishment, denunciation and general deterrence.
Particular complaint was made about the sentence imposed on count 3, the first of the stalking counts, which represented 50 per cent of the maximum penalty. Complaint was also made that the non-parole period, being 83 per cent of the head sentence, could not be justified ‘in the case of a mentally afflicted offender who pleaded guilty at an early stage and has shown some insight into his offending and retains significant family support.’
As this Court has repeatedly emphasised, the ground of manifest excess will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.[30]
[30]DPP v Karazisis [2010] VSCA 350, [127] (Ashley, Redlich and Weinberg JJA, with whom Warren CJ and Maxwell P agreed); FAJ v The Queen [2011] VSCA 137, [23].
In my opinion, the sentences which her Honour imposed, and the non-parole period which she fixed, were within the range reasonably available to her taking into account all of the circumstances of the case, including the pleas of guilty (ground 5).[31] It is, of course, significant that the only aspect of Verdins relied on concerned moral culpability and that, for the reasons given earlier, her Honour was right to reject the contention that the appellant’s moral culpability was in a way reduced.
[31]Ground 5 complained that insufficient weight was given to the pleas of guilty. Such a ground can only be addressed as a particular of the manifest excess ground: Scerri v The Queen [2010] VSCA 287, [24].
This was appalling offending, as her Honour explained clearly and cogently in her sentencing reasons. She sentenced the appellant on the basis that he had caused ‘an enormous amount of anguish and emotional turmoil’ to each of his many victims. Her Honour set out extracts from the victim impact statements which eloquently described the very real damage, of a lasting kind, caused to those offended against. As her Honour said, the appellant had offended
in a predatory fashion and at times deliberately conducted [himself] in an intimidating and sadistic manner, clearly with the intent to humiliate and terrify the victims, none of whom knew [him].
Her Honour went on:
My duty is, as I have stated, as a Judge in this Court to send a message that is very clear that criminal justice system in this State will punish severely such offending. It was carried out in a planned and predatory manner. On the occasions you spoke to the victims you set out cruelly to taunt them for your own sexual gratification and to assert a sadistic feeling of power over them, causing each to not only go through a terrifying ordeal during the encounter with you which for some victims was over a period of time, but also to be left with a continuing fear of someone behaving as you did, again.[32]
[32]Reasons, [73].
In relation to count 3, her Honour said:
… [Y]ou stalked and menaced the victim for around five and a half years including monitoring her movements to the extent that you were aware when she moved home and where she moved to. Each of these offences in the circumstances require a sentence in the upper range of sentencing for the respective offence and orders for partial cumulation. It is also relevant that you had prior convictions for stalking and using a carriage service to menace.[33]
Further her Honour said:
The offences of burglary, aggravated burglary, attempted burglary and theft were committed in circumstances where it was your intention to steal property but it cannot be ignored that the reason for the commission of these offences was an attempt to insinuate yourself into a victim’s personal life by behaviour which varied, including removing personal items from homes and cars, such as underwear, photographs; rummaging through underwear and removal [of] personal items; noting aspects of the home to taunt the person when you spoke to her to prove you had been inside the home; stealing mobile telephones, which you on occasion used to contact the owner, or on one occasion another victim; also stealing cordless telephones; using a telephone at the home of a victim to ring the occupier; or on occasion a sex line and on your own admissions to some of the victims to masturbate on their bedclothes or clothing. You returned as a burglar to the home of two women whom you stalked.
Consequently I sentence you on the basis that these offences of burglary and theft were very intrusive and committed for sexual gratification. Each of these offences in the circumstances requires a sentence in the middle range of sentencing for the respective offences and orders for partial cumulation.[34]
[33]Reasons, [75].
[34]Reasons, [76]–[77].
Quite correctly, defence counsel conceded on the plea that protection of the community was a very important factor, having regard to the fact that from 13 March 2007 the appellant was serving a suspended sentence and from 27 July 2007 he was on bail for earlier like offences. There was also the very significant and unusual feature that, in relation to both victims A and H, the appellant had returned to burgle their houses on a second occasion, and had made sure that each victim knew that it was a return visit. This was, as the judge rightly said, sadistic behaviour. It caused great distress, as it was plainly intended to do. Having regard also to the appellant’s extensive prior convictions for like offences, specific deterrence was a very significant sentencing factor.
In relation to the sentence of five years on count 3, counsel for the State Director correctly pointed out that this was a rolled-up count. Her Honour was therefore obliged to take into account all of the criminality represented by this count. As to count 34, the explanation for this sentence being higher than the other sentences for the same offence is that the offence was committed while the appellant was on bail. This was acknowledged on the plea to be an aggravating factor.
As to the non-parole period, counsel for the State Director acknowledged that it was high but submitted that, when regard was had to the totality of the offending, it was open to the sentencing judge to come to the conclusion that 10 years was the minimum that justice required be served. There was no compelling reason for the parole period to be longer than two years. In my opinion this submission must be upheld.
In conclusion, I would repeat what I said in R v Stuttard, as follows:
When the sentencing task has obviously been performed carefully and cogently by the sentencing judge, to whom our law confides that function, it will always be difficult, in my view, for a submission of manifest excess to succeed. The appellant must persuade the appeal court that, despite the
sentencing function apparently having been conscientiously discharged, nevertheless the judge went so badly wrong … that this Court should be satisfied that the discretion was not properly exercised at law, such that it would fall to this Court to exercise the discretion afresh.[35]
For the reasons I have given, the appellant has not made out this argument.
[35][2006] VSCA 112, [26].
The appeal must be dismissed.
BUCHANAN JA:
I would dismiss the appeal for the reasons stated by the President.
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APPENDIX ‘A’
Counts 1 & 2
On 29 September 2001, the appellant entered the home of Ms A via an unlocked door (Count 1 – burglary). He eventually stole her handbag from a vehicle. It contained her mobile phone and other personal items with a total value of approximately $500 (Count 2 – theft).
Count 3
From the date of the burglary, the appellant began stalking Ms A by calling her and making obscene remarks (Count 3 – stalking).
Counts 4 and 5
On 20 December 2005 the appellant again entered the house of Ms A via an unlocked door whilst she was inside asleep with her children (Count 4 – aggravated burglary). For the second time, he stole her handbag, which contained a mobile phone, purse, cash and personal cards to the value of approximately $855 (Count 5 – theft). Approximately 10 – 20 minutes later, the appellant used the stolen mobile phone to call Ms A four times and again made obscene remarks to her (particular of count 3). She was terrified that he was actually in the house.
On 23 February 2007, in the early morning, he again contacted Ms A on her home telephone. He had been monitoring her movements, as she and her family had moved from the area where he had first harassed her, and he had found her new telephone number. He again made obscene remarks to her (particular of Count 3).
Counts 6, 7 and 8
Between 31 December 2006 and 2 January 2007, the appellant gained entry to Ms B’s home (Count 6 – burglary). Whilst in the house, the appellant used Ms B’s phone to call a sex line. He then stole her cordless home phone and cash valued at approximately $340 (Count 7 – theft). On 4 January 2007, the appellant called Ms B’s home phone. He spoke to her and told her he was ‘coming on her tits’ (Count 8 – using a carriage service to menace).
Counts 11, 12 and 13
On 27 February 2007, the appellant broke into Ms C’s home (Count 11 – burglary). He looked through her underwear drawer and then used her home phone to contact her mobile whilst she was at work. She asked him who he was and he asked, ‘Are you going to give me a fuck?’. He then uttered obscenities (Count 13 – using a carriage service to menace). She hung up on the appellant. He then stole her home phone (Count 12 – theft).
Whilst in the unit, the appellant called Ms A (victim in Counts 1 – 4 ) and apologised for all that he had done to her. He described watching her walk around naked in her house and said he wanted to meet her in a public place (Count 3 – particular of stalking).
Counts 14 and 15
On 21 March 2007, the appellant smashed the front window of a car belonging to Mr D and stole his wallet (Count 14 – theft). The appellant then attempted to withdraw money from Mr D’s credit card. He was successful on his second attempt and withdrew $1,000 (Count 15 – deception).
Counts 16 and 17
On 30 March 2007, the appellant gained entry to Ms E’s home, by forcing open a rear living room window (Count 16 – burglary). He stole two pairs of Ms E’s underwear and a vibrator (Count 17 – theft).
Count 24
Around 8 May 2007, the appellant rang Ms E on her home phone. He told her he knew who she was and that she had spent time with him. He said he had just come out of gaol. He then made obscene remarks to her (Count 24 – commencement of stalking of this victim). About 3–4 weeks later, the appellant called Ms E again and told her what was in her drawers. She hung up on him, but he called a further two times (Count 24 – continuation of stalking).
Counts 18, 19 & 20
On 25 April 2007, the appellant gained entry into the house of Ms F by forcing open a rear laundry door (Count 18 – burglary). The appellant went through Ms F’s cupboards and stole $200 cash (Count 19 – theft).
On 28 April 2007, Ms F received a number of telephone calls from the appellant. He told her he had looked at photos of her and that she was attractive. He uttered obscenities to her. He told her he had followed her home. He said he knew she lived alone with her children (Count 20 – using a carriage service to menace).
Counts 21, 22 and 23
On 5 May 2007, the appellant gained entry to Ms G’s house by removing a fly wire screen from a window (Count 21 – burglary). He looked through Ms G’s underwear drawer and damaged a locked cupboard in her bedroom. He moved Ms G’s vibrator to a different position in the cupboard. He then used her home phone to contact her mobile. He uttered obscenities to her before she hung up on him (Count 23 – using a carriage service to menace). He stole a phone, cash and movies (Count 22 – theft).
Counts 9, 10, 25, 26 and 27
On 1 February 2007, Ms H went for a walk and hid her house key. The appellant found the key and entered Ms H’s home, stealing her handbag and its contents (Counts 9 and 10 – burglary and theft).
On 16 June 2007, the appellant again broke into Ms H’s home. The appellant moved her underwear in her drawers and went through other drawers. He rang Ms H on her mobile and asked if she recognised his voice. He said he was calling from her home phone. He then made obscene remarks to her and said that he was the person who had stolen her wallet from her couch. He then gave details about the location of items in her home. He then told her she was a slut, and said she was lucky he had not burnt her house down and that he was going to kill her (Count 27 – commencement of stalking). He left her premises after stealing a vibrator and cordless phone (Count 26 – theft).
Count 28
On 18 July 2007, the appellant broke into a vehicle belonging to Ms J and stole her mobile phone, handbag, wallet and several personal belongings (Count 28 – theft).
He used Ms J’s phone to contact Ms H’s father. He asked for Ms H’s mobile number, telling her father he was a member of the Ballarat CIU. Believing this, Ms H’s father provided the appellant with Ms H’s home number. He contacted Ms H a total of 18 times that day and sent her a text message containing obscenities (Count 27 – particular of stalking count).
Count 29
On 19 July 2007, the appellant broke into Ms K’s vehicle and stole a mobile phone (Count 29 – theft).
On the same day he contacted Ms H on her mobile. He called her by name and uttered obscenities to her (Count 27 – particular of stalking count).
Count 30
On 27 July 2007, the appellant broke into Ms L’s home (Count 30 – burglary). He looked through her personal items but did not steal anything.
On 27 July 2007, the appellant was arrested and bailed in relation to the matters the subject of Counts 14 and 15.
Count 31
On 7 August 2007, Ms M left her premises with her three children. She lived close to where the appellant was residing at the time. About 10 minutes later she returned to leave some things on her kitchen bench, whilst her children were still in her car, and observed the appellant trying to gain entry to her premises (Count 31 – attempted burlgary).
Upon being interrupted, the appellant climbed over the fence into a neighbouring property to approach his vehicle. His vehicle was stopped by a friend of Ms M’s. He was arrested and taken to Ballarat CIU and was bailed again.
Counts 32, 33 and 34
On 29 August 2007, the appellant gained entry to Ms N’s premises (Count 32 – burglary). At this time, police were monitoring his movements and a tracking device had been attached to his vehicle. Once inside the premises he looked through Ms N’s personal belongings and underwear drawer. He telephoned her and uttered obscenities to her (Count 34 – using carriage service to menace). He stole a cordless phone from the house (Count 33 – theft).
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