Carter v The Queen
[2020] VSCA 156
•15 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0086
| DANIEL MARK CARTER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | NIALL and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 June 2020 |
| DATE OF JUDGMENT: | 15 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 156 |
| JUDGMENT APPEALED FROM: | DPP v Carter (Unreported, County Court of Victoria, Judge Lacava, 8 April 2020) |
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CRIMINAL LAW – Appeal – Sentence – Recklessly causing injury – Intentionally damaging property – Possessing firearm while prohibited person – Attempting to pervert course of justice – Persistently breaching family violence intervention order – Total effective sentence of 3 years’ imprisonment with non-parole period of 2 years – Base sentence of 2 years for attempt to pervert course of justice – Guilty plea – Offending occurred in context of family violence within domestic relationship – Indigenous offender – ‘Guarded’ prospects of rehabilitation – Whether total effective sentence, or base sentence, manifestly excessive – Whether applicant ‘doubly punished’ – Whether totality principle offended – Whether sentencing judge erred in assessing prospects of rehabilitation – No error by sentencing judge – Sentence within range – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Ms J L Turfrey | Rebecca Boreham Barrister and Solicitors |
| For the Respondent: | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
NIALL JA
WEINBERG JA:
On 3 April 2020, the applicant, Daniel Mark Carter, pleaded guilty in the County Court at Mildura to recklessly causing injury, intentionally damaging property, possessing a firearm while a prohibited person, attempting to pervert the course of justice, and persistently contravening a family violence intervention order. He also pleaded guilty to a series of related summary charges. These included failing to store a firearm in a secure manner, possessing cartridge ammunition while unlicensed, and committing an indictable offence whilst on bail.
On 8 April 2020, the applicant was sentenced as follows:
Charge No.
Offence
Maximum
Sentence
Cumulation
1. Recklessly causing injury [s 18 — Crimes Act 1958] 5 years 6 months 6 months 2. Intentionally damage property [s 197(1) — Crimes Act 1958] 10 years 1 month — 3. Prohibited person possess a firearm [s 5(1) — Firearms Act 1996] 10 years 6 months 3 months 4. Attempt to pervert the course of justice [common law, s 320 — Crimes Act 1958] 25 years 2 years Base 5. Persistent contravention of family violence intervention order [ss 37, 123, and 125A — Family Violence Protection Act 2008] 5 years 6 months 3 months Related summary offences Summary Charge 8 Unlicensed person store firearm in insecure manner [s 129A — Firearms Act 1996] 4 years Convicted
and
discharged— Summary Charge 9 Possess ammunition without licence [s 124(1) —Firearms Act 1996] 40 penalty units Convicted
and
discharged— Summary Charge 13 Commit indictable offence whilst on bail [s 30B — Bail Act 1997] 3 months 1 month — Total effective sentence: 3 years’ imprisonment Non-parole period: 2 years Pre-sentence detention declared: 546 days Section 6AAA statement: 4 years and 6 months with a non‑parole period of 3 years.
By notice dated 6 May 2020, the applicant seeks leave to appeal against that sentence. He does so on the following grounds:
1. [The s]entence [was] manifestly excessive as follows:
a. [The t]otal effective sentence [was] manifestly excessive[;]
b.[The s]entence conferred for [the charge of] attempt[ing] to pervert the course of justice [was] manifestly excessive[; and]
c. [The n]on[-p]arole [p]eriod [was] manifestly excessive[.]
2.Double punishment conferred for [the sentences imposed on the charges of] attempt[ing] to pervert the course of justice and persistent breach of intervention order[.]
3. Totality principle offended in cumulation of sentencing.
4.Not enough weight [was] given to prospects for rehabilitation against [the applicant’s]:
a. history of prior offending,
b. Aboriginal background,
c. difficulties faced whilst in prison; and
[d]. efforts made to participate in programs whilst on remand[.]
For the reasons that follow, we would refuse leave to appeal.
Circumstances surrounding the commission of the offences
At the time of the offending, the applicant was living in Mildura with his former partner, ‘GM’. The couple had been in a turbulent ‘on again, off again’ relationship for some 16 years. The applicant had been subject to three intervention orders and a family violence safety notice prior to the present offending. The relationship came to an end in about April 2018, though we were told from the Bar table that until the recent COVID-19 pandemic, GM and their daughters, aged 13 and 11 at the time of the offending, had continued to visit the applicant in custody.
At about 2:00 pm on Saturday, 22 September 2018, the applicant and GM were at home together, alone. The pair had an argument and the applicant accused GM of having had sex with other men. When she refused to have sex with him, he became angry. He grabbed her by the throat and pushed her up against a wall, causing her bruising and difficulty in breathing (charge 1 — recklessly causing injury). The applicant then punched the wall, right next to her head, creating a hole in the plaster (charge 2 — intentionally damaging property). He told GM to ‘fuck off[,] just go.’ She immediately left the house and went to stay with her sister.
At about 12:30 pm the following day, GM returned to the house in order to retrieve her belongings. She had been informed that the applicant would not be there. When she arrived, however, the applicant was still at the house. He yelled out ‘where the fuck have you been[?]’ and, again, accused GM of having been unfaithful. She retrieved her bag and mobile phone, and told the applicant that she was leaving. She said that she would not return until he received help for his behaviour.
The applicant went into the bedroom. He sat at the end of the bed, holding a sawn-off firearm. He smacked it against his head several times. GM fled the house and returned to her car.
While she was driving, the applicant repeatedly phoned her, accusing her of not caring about him. She implored him not to harm himself. Upon arriving at her sister’s house, she called 000.
At about 2:30 pm, police arrived at the applicant’s home, which was locked. They negotiated with him to have him open the door and, eventually, subdued him with pepper spray before arresting him. He was then conveyed to Mildura Police Station for interview.
Inside the house, police observed damage to the hallway walls. In the bedroom, police located a sawn-off .22 calibre Rimfire loaded rifle. That weapon was loaded and capable of being fired (charge 3 — possessing a firearm while a prohibited person; and related summary charge 8 — failing to store a firearm in a secure manner). In the garage, police found ammunition in a tool box (related summary charge 9 — possessing ammunition without a license).
At the time of the offending, the applicant was on bail for other matters and scheduled to appear at the Mildura Magistrates’ Court on 10 October 2018 (related summary charge 13 — committing an indictable offence while on bail).
In his record of interview, the applicant made partial admissions to the offending. He claimed that he could not remember some of what had occurred, or why he had acted as he had. He said that he had ‘snapped and … got angry.’
On 23 September 2018, the applicant was remanded in custody at the Melbourne Assessment Prison (‘MAP’). The following day, a family violence intervention order was taken out against him. GM and her two daughters were listed as protected persons. One of the conditions of that order was that the applicant not commit family violence against GM. The expression ‘family violence’ is broadly defined in s 5 of the Family Violence Protection Act 2008, and certainly includes threats and other conduct that is coercive, controlling, or dominating.
On 2, 8, 10, 12, 15, and 16 October 2018, the applicant made a number of telephone calls to GM from the MAP, and Port Phillip Prison, to which he was moved. Those calls, known colloquially as ARUNTA calls, were recorded, a fact that is widely known throughout the prison system, and would have been known to the applicant. The details of what was said during these calls were set out in the summary of the prosecution opening.
In short, the summary contained the following account of the calls. We have italicised those portions of the calls that constitute threats of various kinds made by the applicant to GM regarding her safety, and that of others:
Call one — 3:38 pm, 2 October 2018:
And you know they’ve charged me for um, told you to retract it, to retract what you said. Huh…I’m not happy though but I understand why you did it.
Call two — 8:59 am, 8 October 2018:
You’re the one who rang the jacks all right, not me, so don’t start this shit … Why are you ringing the fuckin’ jacks on me and giving statements again and telling ‘em everything? Mm. I’ve got a copy of your statement … Ahh, thanks, mate. Hey, you put me here again for a long long time this time, mate … you put me here, you fucking rat.
Call three — 9:25 pm, 10 October 2018:
No mate, you know how fucked off I am at you. But you think it’s gunna be all hunky-happy-dory? Huh? You put me back here again for a fucking long time this time. Fucking, hey, no, you retract that statement cunt I’m telling ya, you go in there and you retract it today … You fucking rang ‘em dog, all right, not me, you did. And then you give em a statement against everything — oh, good, good, hang up, because as soon as you hang up we’re done, and I mean it this time.
Call four — 4:28 pm, 10 October 2018:
You wait ‘til I get out, all right, youse wait ‘til I get out. And the phone’ll cut out now ‘cause I’ve got no money left, this is the last fucking couple of dollars to ring you … I’m telling ya every day, if I — if I hold onto you and there’s nothing there, mate, you watch what happens.
Call five — 12:28 pm, 12 October 2018:
You fuckin’ — you put me in here again. You say I put myself in here. I didn’t, you’re the one who rang the cops on me. Don’t oh me … You done this. No-one else but you
Call six — 12:33 pm, 12 October 2018:
You fucked me mentally, physically and emotionally big time. You see how bad you got me, huh … You lied to me about everything with him cunt. You wanted to fuck him you know you did. Whereas you told me you didn’t … do you realise how long you’ve put me in here for this time? Don’t know about 2 years now mate, I’m looking at 4 to 6 years now cunt, because of your fucking statement. You go and retract that cunt you dog, you retract it now … You’re not gonna retract it? ... Keep going cunt and I’ll have cunts come and visit you and say hello to you. Keep going cunt. Keep fucking going with your bullshit … no no me cunt, I will ... You either retract it or I’m fucked.
Call seven — 12:44 pm, 12 October 2018:
Keep going with your shit mate I’m telling you and I’m gonna have cunts come and say hello at work. Alright ... That’s what you fucking want? ... Yeah no worries cunt I fucking will. Alright and you’ll lose your car you’ll lose everything cunt, if you want to be like this. Do you want to be like this?
…
Huh, leave you alone? I’m never leaving you alone cunt … No. Because you’re what I want. You don’t want me, clearly I’m not what you want anymore … retract the statement cunt or I do 6 fucking years gaol. Because of that statement dickhead. You didn’t have to say anything to them … I’ve got your statement, I’ve read it cunt. It’s right in front of me pretty much … Yeah three-page statement you fucking dog. You didn’t have to say anything … you’re a fuckwit. You said heaps of shit cunt that has fucked me. You either retract it or I do 6 years mate. And if I do 6 years we’re over.
Call eight — 1:43 pm, 12 October 2018:
Keep treating me like a dumb cunt, all right, and I’ll show you what a dumb cunt can do … Keep being a smart cunt and I’ll — I’ll break it up now and we’re done. And the next time you see me, cunt, I’ll be pointing something at ya, I’m over this shit.
Call nine — 2:44 pm, 12 October 2018:
So you want me to get better right? Huh? You want me to do six years’ gaol, do you? Is that what you want? Answer me…
…
That’s because of your statement … Now, are you going to retract it or not? … Listen. Are you going to retract it or not?
Call 10 — 2:49 pm, 12 October 2018:
Are you going to take it off or not?
…
I want you to take the cunt off so I can get out and go home and fuckin’ be a family and we can go and fucking do our own life together. That’s what I want. I don’t wanna spend the next fucking six years in here … Yeah, I know what I’m gunna do to you. Yeah, don’t you worry, payback for a bitch, mate. ‘Cause I know — I know you don’t want me, that’s why you’ve done this … Well are you gunna retract the statement or not? Are you going to retract the statement or not?
Call 11 — 1:20 pm, 15 October 2018:
Well — well, you can, you can go and retract your statement, that’s what I need you to do. That way they’ll drop, like, six, seven charges, they’ll have no merit. Mm? And they’re the big ones. ‘Cause they got me on record for causing injury too, and that’s fuckin’ — that’s a long time … I’m doing a long, long, long time, like six years minimum. And I don’t wanna do that, I — I don’t wanna miss out on that much of your fucking lives, it’s just too much … Oh, well, like I said, I’m leaving it up to you, you can either retract it or not. If you don’t, well, I’m gunna let you go, because it’s not fair on either of us to wait six, seven years. ‘Cause I’ll tell you now, I won’t do that long … I’m not missing that — no, no, I’m just telling ya, I won’t do that long. All right. And you know what I mean, mate, I won’t. I’m not missing that much of my girls’ lives.
Call 12 — 9:28 am, 16 October 2018:
I’m gunna rip your fuckin’ — you wait, I’m gunna rip your fuckin’ head off, cunt. I want you, not her … You go be with whoever you want, all right, ‘cause I know you’re not gonna drop it, you’re a fucking liar … I swear on me girls’ lives I want you, you cunt. All right. If you can’t believe it, then fuck you.
Call 13 — 2:09 pm, 16 October 2018:
I do it for you, cunt, I fuckin’ want you. Get it through your fuckin’ dumb head, I want you. Fuck. If you’re gunna fuck me off that much, mate, I’ll end up doing the whole time in the slot, ‘cause I’ll end up getting off the phone and stabbing some cunt right now. Stop with your shit. Now, did you do that thing today or not? ... Well, fuck you, all right, ‘cause obviously you don’t give a fuck. You want me to do six to eight years, don’t ya? Well, fuckin’ take the thing off. You’ve got two days before I go to court. Two fucking days … two days … You wait till I get out, all right, you wait till I get out, ‘cause youse are all fucked, every one of youse. I’m fucking sick of the bullshit. And you tell your fucking little paedophile brother, mate, he’s a fucking dead man when he comes inside. Yeah … I’m getting off the phone, do it now. All right. If you wanna be with me you’ll do it now, if not, we’re done. O.K. The ball’s in your court. All right. Well, I love you, and I hope you still feel the same. I’m going.[1]
[1]Emphasis added.
As is apparent, these calls all involved, at least to some degree, demands that GM withdraw her complaints to police. A number of the calls included threats of violence, some of which were explicit, and others merely implicit, though unmistakeable. The language used in the calls suggests that the applicant was highly emotional at the time, and may not have been thinking all that clearly. Nonetheless, it is not difficult to appreciate just what an impact such calls would have had upon his partner, particularly given the context in which the original offending occurred, that being one of domestic violence. The making of the calls gave rise to charge 4 — attempting to pervert the course of justice, and also to charge 5 — persistent contravention of a family violence intervention order.
On 17 October 2018, GM attended the Mildura Police Station. She indicated that she no longer wished to pursue the allegations against the applicant. She cited her reason for doing so as:
[W]hilst my original statement was true and correct, I feel that there [are] enough charges against him without my statement.
Significantly, the judge made no finding as to whether GM’s decision to approach the police in this way was the product of the pressure placed upon her by the applicant. Although it would be open to draw such an inference, it was accepted, very fairly, by counsel for the respondent before this Court, that it would not be appropriate to do so. At the very least, this would be a matter of aggravation, so far as the offence of attempting to pervert the course of justice was concerned and would, therefore, have to be proved beyond reasonable doubt. Given what we were told as to the ongoing contact between the applicant and GM, it would be wrong to make any such finding and, accordingly, we do not do so.
Sentencing remarks
After setting out the background facts, the sentencing judge turned to the objective gravity of the various charges. In relation to the attempt to pervert the course of justice, which was, of course, the most serious of the charges, his Honour noted the fear that GM must have experienced as a result of the applicant’s threats over the phone.
In considering the offending as a whole, the judge noted that the course of conduct giving rise to the charges of recklessly causing injury and intentionally damaging property resulted in a ‘considerable overlap’[2] between them. This required a ‘large measure of concurrency.’[3] In response to a submission that charge 1 should be viewed as an offence ‘at the lowest end’, he found, instead, that it should be viewed as ‘at the upper level of the lower end.’[4] He characterised the offending forming part of charge 2 as ‘relatively low-level.’[5]
[2]DPP v Carter (Unreported, County Court of Victoria, Judge Lacava, 8 April 2020), [19] (‘Reasons’).
[3]Ibid.
[4]Ibid [33].
[5]Ibid [19].
With regard to the charges involving possession of the firearm and cartridge ammunition, the judge accepted that these offences were linked to, and committed ‘because of [the applicant’s] mental state with the intention of self-harm’.[6] He found that these items were not possessed ‘for any other criminal purpose.’[7]
[6]Ibid [20].
[7]Ibid.
His Honour acknowledged that the charges 4 and 5 arose out of the same general course of conduct. He said that, when sentencing the applicant for these offences, he must ‘also allow for overlap and concurrency.’[8]
[8]Ibid [23].
With regard to the offences in their entirety, the judge said:
the court must have proper regard to the sentencing principles of deterrence, both general and specific, denunciation, the need to protect domestic partners, and to your prospects for rehabilitation, which in my view at best must be assessed as guarded.
Further, as I noted in argument, because of the number of charges here, in passing sentence, I must also have proper regard to and apply the principle of totality in sentencing.[9]
[9]Ibid [24]–[25] (emphasis added).
With regard to the applicant’s prospects of rehabilitation, his Honour accepted that the offending had occurred ‘in the context of a daily methamphetamine habit’.[10] He acknowledged that the applicant had remained drug‑free while on remand, but expressed reservations as to whether that situation could be sustained once he was no longer in custody. He assessed the applicant’s prospects of rehabilitation as ‘guarded’.[11]
[10]Ibid [26].
[11]Ibid [24], [27].
The judge observed that the applicant’s guilty plea was to his credit and said that it would entitle him to a reduction in sentence. His Honour also accepted the plea as having been entered ‘at an early time’, and ‘as evidence of remorse’.[12]
[12]Ibid [29].
His Honour then turned to the applicant’s prior convictions, which, for the most part, related to driving or drink-driving offences. It was noted that the applicant had not offended between 2009 and 2015. The judge observed that, at the time of sentence, the applicant had been on remand for about 18 months.
With regard to the applicant’s Indigenous background, the judge said:
You are an Aboriginal man, and your personal circumstances and background are relevant in determining what weight needs to be given to the principles of general and specific deterrence in the sentencing of you.
I accept that as an Aboriginal man, you have come from a disadvantaged background and you have experienced deprivation and poverty, and you have been exposed to substance abuse and mental health issues for a considerable period of time. In passing sentence, I have taken all of this disadvantage in your life into account.
You are now aged 33, and you grew up in a Yorta Yorta Aboriginal community. You were subjected to dysfunctional family, and you have a limited education in the context of you having learning difficulties. You have had a long history of addiction to drugs, especially the drug ice.[13]
[13]Ibid [38]–[40].
The judge then turned to a number of certificates that were tendered on the plea. He accepted that they ‘tend[ed] to show that [the applicant had] used [his] time in custody reasonably well.’[14] He also noted that the applicant had written a letter, expressing regret for the offending and his desire to devote himself to his family when he eventually came to be released. His Honour stated that he had taken all of these matters into account.
[14]Ibid [44].
The judge then dealt with the applicant’s submission that a sentence combining of a term of imprisonment and a community correction order (‘CCO’) would be appropriate in the circumstances. He rejected that submission, saying that such a sentence would fail to achieve relevant sentencing objectives. Further, he said that to impose such a sentence ‘would be setting [the applicant] up to fail’.[15] Plainly, he meant that, in his view, the applicant would be likely to breach the conditions attached to any CCO, and such a disposition would ultimately prove to be to his detriment.
[15]Ibid [49].
Applicant’s submissions
In her thorough and helpful written case in support of Ground 1, manifest excess, counsel for the applicant began by addressing the sentence of 2 years’ imprisonment imposed on the charge of attempting to pervert the course of justice. She noted that this offence could result in a wide range of sentencing outcomes.[16] She submitted that the objective gravity of the offence depended on the level of sophistication involved, the nature and extent of planning, the time period over which the offending took place, the outcome of the offending, and its impact on the administration of justice.
[16]Saleem v The Queen [2014] VSCA 190 (‘Saleem’), [41].
Counsel then referred to a number of cases, which were said to be relevant comparators, in support of her submission that the sentence imposed on charge 4 was manifestly excessive.
Counsel drew attention to two cases, Director of Public Prosecutions v Middleton,[17] and Director of Public Prosecutions v Gould,[18] both of which, she submitted,[19] involved offending that was considerably more sophisticated, and objectively serious than that of the applicant.
[17][2017] VCC 887 (‘Middleton’). In that case, three co-offenders pleaded guilty to, inter alia, one charge of attempting to pervert the course of justice. The co-offenders had arranged to have the victim of an armed robbery (committed by one of the co-offenders) change his statement to police. The offending occurred over the course of six months and involved various threats and demands that the victim withdraw his statement, including an offer of $5,000 to do so. On that charge, one co-offender received a sentence of 4 years, with 2 years and 6 months of that sentence cumulated on the sentence imposed for the charge of armed robbery. An appeal to this Court was successful, Middleton v The Queen [2018] VSCA 23. However, his sentence on that charge was undisturbed. The two other co‑offenders received sentences of 3 years’ imprisonment with non-parole periods of 2 years. On appeal to this Court, both co-offenders’ sentences were reduced. One co‑offender was resentenced to a term of 2 years’ imprisonment with a non‑parole period of 15 months. The other co-offender was resentenced to a term of 2 years and 3 months’ imprisonment with a non-parole period of 18 months.
[18][2018] VCC 349 (‘Gould’). In that case, one offender pleaded guilty to, inter alia, one charge of attempting to pervert the course of justice. She had arranged to have the victim of false imprisonment and assault (committed by both herself and a co-offender) sign a false statutory declaration. The offending involved threats to the victim and her mother. There were also offers of monetary inducements, including a paid holiday for the victim’s mother. The offender had no prior criminal history. She received a sentence of 18 months.
[19]In fact, as can be seen, the sentences imposed in these cases, 2 to 4 years’ imprisonment for the most part, exceeded the sentence of 2 years imposed on the applicant. However, the sentence of 18 months’ imposed in Gould involved an offender with no prior convictions, which was said by the judge in that case to be a ‘major factor in [her] favour’, [2018] VCC 349, [62].
Counsel also submitted that the applicant’s offending was comparable, in key respects, to Director of Public Prosecutions v Hasenkamp (a pseudonym).[20] There, the offender had pleaded guilty to one charge of attempting to pervert the course of justice. He had been charged with assault against his partner. The assault took place while he was on parole. As a result of that charge being laid, the Parole Board cancelled his parole. It reinstated his remaining term of imprisonment.
[20][2016] VCC 688 (‘Hasenkamp’).
While in custody, the offender in Hasenkamp made a number of phone calls to his partner, asking that she retract her statement to police. The parallels with the applicant’s conduct in the present case were said to be obvious.
The sentencing judge in Hasenkamp accepted that the offender had pleaded guilty at an early stage, and had demonstrated genuine remorse. He further accepted that the offending was ‘low level’.[21] He noted that the phone calls made by the offender to his partner did not contain threats, and did not involve any monetary, or other, inducements.
[21]Ibid [11].
Counsel remarked upon the fact that the offender in that case had received a sentence of 6 months’ imprisonment on the charge of attempting to pervert the course of justice. Plainly, that sentence stood in stark contrast with the sentence of 2 years that the applicant in this matter received.
Further, counsel, though recognising the limitations associated with the use of statistics, noted that the majority of ‘men in the same cohort as [the applicant]’ received a term of imprisonment of less than one year. Of course, that meant that those men would have received sentences which did not, and could not, have had non‑parole periods fixed.
In oral submissions before this Court, counsel emphasised the absence of sophistication in relation to the attempt to pervert the course of justice, the fact that a number of the calls were made on the same day, in close proximity to each other, and that the applicant engaged in this conduct shortly after he was taken into custody, still suffering from withdrawal symptoms from his drug addiction.
Turning to Ground 2, counsel submitted that the applicant had suffered ‘double punishment’ in that the base sentence of 2 years imposed on charge 4, and the sentence of 6 months imposed on charge 5, had resulted in 3 months cumulation. She submitted that even though it may have been appropriate to bring separate charges arising out of these same set of phone calls, there was sufficient commonality in the elements associated with these offences to warrant total concurrency rather than any cumulation. In effect, this was a ground of specific error.
With regard to Ground 3, counsel acknowledged that the sentence of 6 months’ imprisonment imposed for recklessly causing injury, in a domestic context, was within range, though she submitted that it was at the ‘lower end of the range’. She contended, however, that there was no justification for the whole of that 6 month sentence to be cumulated upon the base sentence of 2 years for attempting to pervert the course of justice. She submitted that there ought to have been some measure of concurrency between these two sentences. She referred to the decision of this Court in Saleem.[22]
[22][2014] VSCA 190, [47].
Finally, in support of Ground 4, counsel submitted that the judge ‘may not have placed enough weight on … prospects of rehabilitation’ based on the applicant’s limited criminal history, his not having served a previous term of imprisonment, his Aboriginal background, and his concerted efforts to make productive use of his time in custody on remand.
Respondent’s submissions
In the respondent’s written case, counsel submitted that the total effective term of 3 years’ imprisonment with a non-parole period of 2 years was within range. The written case pointed to the objective gravity of the offending and drew attention to relevant sentencing principles.
Counsel submitted that any attempt to pervert the course of justice by dissuading a witness from giving evidence had to be viewed as serious.[23] In this case, the gravity of the offence was aggravated by the fact that the applicant had made a series of threats of violence to GM, which, relevantly, extended the domestic violence that formed the basis of charge 1.
[23]DPP v Oksuz (2015) 47 VR 731; [2015] VSCA 316, 743–4 [95], 781 [214] (Kyrou JA, Redlich JA agreeing at 733 [1]).
Counsel referred to the judge’s characterisation of the offending as a
campaign … to harass and vilify [GM] by abuse for the purpose of having her withdraw a complaint and statement that she had made to police about [the applicant’s] violent behaviour towards her.[24]
[24]Reasons [21].
It was submitted that while the offending may not have been at the higher end of sophisticated conduct, it was nonetheless serious because it took place in the context of family violence within a domestic relationship.[25] Further, it was submitted that this was a particularly serious example of the offence as the applicant had made ‘persistent veiled and explicit threats’. In that regard, counsel referred to the recordings of the phone calls, as set out above at [16].
[25]Ibid [23]; Pasinis v The Queen [2014] VSCA 97.
With regard to the cases relied upon as supposed comparators in support of the applicant’s contention that the sentence of imposed on charge 4 was manifestly excessive, it was submitted that sentences imposed in other cases are, at best, nothing
more than a broad guide to sentencing practices. They are not to be viewed as precedents.[26] The same general comment was made with regard to the sentencing statistics upon which counsel for the applicant relied.[27] It was submitted that, in any event, the particular cases relied upon as comparators were readily distinguishable from the present offending.
[26]Lieu v The Queen (2016) 263 A Crim R 173, 186 [46] (Beach and Kaye JJA, Redlich JA agreeing at 175 [1]).
[27]DPP v Maynard [2009] VSCA 129, [35].
With regard to Ground 2, it was submitted, with regard to charges 4 and 5, that there was no double punishment associated with the period of 3 months’ cumulated upon the base. It was submitted that while both charges certainly arose out of the same broad course of conduct, which the judge, himself, acknowledged,[28] each offence involved separate and distinct criminality. The rationale for the common law offence of attempting to pervert the course of justice was conceptually distinct from the rationale for protection from family violence, as embodied in the relevant Act, making persistent breaches of a family violence intervention order an offence.
[28]Reasons, [21] and [23].
Counsel submitted, with regard to Ground 3, that the orders for cumulation were moderate, and well within the sound exercise of the sentencing discretion. The applicant fell to be sentenced for three quite separate sets of offending. The first involved the events of 22 September 2018, which gave rise to charges 1 and 2. The second involved the events of the following day, which gave rise to charge 3 and the related summary charges. The third involved the phone calls, made more than a week later, in an attempt to pervert the course of justice, thereby also giving rise to the persistent breaches of the family violence intervention order.
It was also noted that the first and second sets of offending occurred while the applicant was on bail. Accordingly, this gave rise to a statutory presumption of cumulation for those offences.[29]
[29]Sentencing Act 1991, ss 16(1A)(e) and (3C).
With regard to Ground 4, it was submitted that the judge had been well entitled to find that the applicant’s prospects of rehabilitation were ‘guarded’, at best. In that regard, counsel referred to the applicant’s previous criminal history. This encompassed an array of serious driving offences, including a number of convictions for reckless conduct endangering serious injury, driving in a manner dangerous to the public, and driving while unlicensed/disqualified. These resulted in a previous sentence in 2015 of 12 months’ imprisonment combined with a CCO, and several other sentences of imprisonment that were wholly or partially suspended. The applicant, on at least one occasion, offended during the period of the suspended sentence and was required to serve part of it in custody. In addition, he had been subject to various intensive corrections orders and numerous fines. None of these had deterred him from reoffending, and he had continued throughout to use drugs.
Counsel noted that the judge had had regard, as evidenced in his sentencing remarks, to the applicant’s having abstained from drug use while in custody. His Honour also referred specifically to the applicant’s Aboriginal background, and his disadvantaged upbringing. Counsel submitted that notwithstanding the judge’s observation that the applicant had ‘turn[ed] the corner’,[30] it had been reasonably open to his Honour to maintain reservations about his prospects of rehabilitation.
[30]Reasons, [47].
Consideration
Given that counsel for the applicant placed great weight upon what were said to be relevant comparators in support of her submission that the sentence on charge 4 was manifestly excessive, it is appropriate to deal first with that particular contention.
In oral argument, counsel drew attention to the following cases as establishing a basis for her argument that the sentence in question was out of kilter with current sentencing practice.
Counsel for the applicant placed considerable reliance upon a sentence imposed in the County Court in Director of Public Prosecutions v Haywood.[31] There, the offender pleaded guilty to one charge of attempting to pervert the course of justice and one charge of contravening a family violence order. The conduct giving rise to these offences arose out of a number of telephone calls made by the offender, from prison, to his former partner. The calls were made over a 19 day period. They involved, in quite forceful language, attempts to persuade her allegations against him. On the charge of attempting to pervert the course of justice, the offender received a sentence of 3 months’ imprisonment.
[31][2016] VCC 123.
The judge recognised that the offender’s former partner did not
appear to have gone along with you and, in the conversations as set out in the summary, appear[ed] to have been reasonably robust in her response to you. I do not consider that she in herself has suffered great harm from what happened. The harm is more the potential harm to the justice system and also your disregard of the court order in terms of the intervention order.[32]
[32]Ibid [8].
Further, the judge considered the offender’s prospects of rehabilitation to be ‘reasonable’.[33]
[33]Ibid [12].
As far as Hasenkamp is concerned, it may be noted that the offending in that case was of quite a different order to that of the applicant. As indicated, the offender in that case had been on parole, which had been cancelled by reason of his assault upon his partner. That was the background against which he phoned her from gaol and sought to dissuade her from giving evidence against him. The judge observed that the tenor of those calls could be characterised as the offender ‘asking’[34] his partner to retract her original statement, a far cry from the threatening and abusive character of the calls made by the applicant in the present case.
[34]Hasenkamp [2016] VCC 688, [6].
The judge in Hasenkamp described the offending as ‘low level’[35] for offences of that type. That was an apt description for what had occurred there. The offender used emotional pressure to try and achieve his object. Serious though his offending was, it cannot sensibly be compared with the applicant’s conduct in this case.
[35]Ibid [11].
Critically, at the time he came to be sentenced for the attempt to pervert the course of justice, the offender in Hasenkamp had already spent 246 days of his 704 day parole period in custody for having breached his parole. In addition, he had not been considered for further release on parole while the charge of attempting to pervert the course of justice was pending. Because he had committed that offence while in custody, any term of imprisonment would, in the absence of exceptional circumstances, have to be served cumulatively upon the balance of the parole period. This meant that the judge sentencing him for the attempt to pervert the course of justice had to take into account the totality principle, and give it very considerable weight.
In addition, we note that the offender in Hasenkamp had bipolar disorder of a kind that was highly relevant, as a mitigating factor, under Verdins.[36]
[36]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
It is obvious from this brief discussion that the applicant can gain no support from Hasenkamp for his contention that the sentence he received for attempting to pervert the course of justice was wholly outside the range.
Counsel for the applicant also relied upon Director of Public Prosecutions v Wade,[37] also a County Court sentence for a number of offences, including one charge of attempting to pervert the course of justice. The offender in that case had made a large number of phone calls to the complainant, from prison, seeking to persuade her to withdraw her allegations against him. As a result, she made a false statement to police, purporting to exculpate him. The offender received an aggregate sentence of 232 days’ imprisonment, which amounted, in his case, to time served. The judge acknowledged the ‘very, very wide range of sentences’[38] available for the offence of attempting to pervert the course of justice.
[37][2017] VCC 1737.
[38]Ibid [17].
Turning to Gould, we reiterate that the offender there received a sentence of 18 months’ imprisonment for that offence. That is, of course, 6 months less than that the applicant received for his offence. However, the offender in Gould was able to rely upon her lack of prior convictions and general good character. In addition, she was also able to call in aid her personal and academic achievements, which the judge described as ‘something to admire.’[39]
[39]Gould [2018] VCC 349, [62].
It must be remembered that, in Director of Public Prosecutions v Dalgliesh (a pseudonym),[40] Gageler and Gordon JJ said:
the sentencing exercise requires the sentencing judge to identify and balance all relevant factors — factors that may point in different, conflicting and contradictory directions — and to make a judgment as to the appropriate sentence in the circumstances of the case. Sentencing an offender is not a mechanical or mathematical exercise. And it is a task done in accordance with applicable statutory provisions governing sentencing.[41]
[40](2017) 262 CLR 428; [2017] HCA 41.
[41]Ibid 452 [79] (footnotes omitted).
Their Honours added:
Sentences are not binding precedents, but are merely ‘historical statements of what has happened in the past’. As was said in Hili v The Queen, ‘[t]hat history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits’ (emphasis added). Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.[42]
[42]Ibid 454 [83] (footnotes omitted).
Plainly, there are limits to what can be drawn from sentences imposed upon other offenders in other cases, even when the facts bear some similarity to those present in the instant case. The fact that lighter sentences may have been imposed upon other offenders for this offence by some County Court judges does not greatly assist the applicant in making the argument that the sentence imposed upon him was wholly outside of the range.
As previously indicated, Middleton involved conduct that was objectively far more serious than that of the applicant. It, however, resulted in initial sentences that were significantly greater than the sentence that the applicant received. For one of the three co-offenders, that was so, even after his successful appeal against sentence to this Court.
Moving then from the use of so-called ‘comparators’, the question arises whether the sentence of 2 years’ imprisonment on the charge of attempting to pervert the course of justice was manifestly excessive. In our view, that contention cannot be sustained. It was open to the judge to assess the gravity of the applicant’s conduct as being serious and as requiring significant punishment. The maximum penalty for this offence is, as we have noted, 25 years’ imprisonment. It is difficult to see how the applicant’s conduct, which was persistent and itself involved repeated threats of violence to GM, could be characterised as anything other than significantly culpable.
The gist of the offence is, of course, the doing of some act which has a tendency and is intended to pervert the administration of justice. An attempt to pervert the course of justice is a substantive, and not an inchoate offence, notwithstanding the use of the term ‘attempt’.[43] Self-evidently, any conduct that meets this description must be viewed seriously and denounced appropriately.
[43]R v Rogerson (1992) 174 CLR 268; [1992] HCA 25, 279–80 (Brennan and Toohey JJ), 297–8 (McHugh J).
Turning to the next issue, in our opinion, the periods of cumulation ordered, 6 months on charge 1, and 3 months on each of charges 3 and 5, were moderate and within range.
The submission that the sentences imposed on charges 4 and 5 involved double punishment (as did the 3 months’ cumulation upon the base sentence) cannot be accepted. The criminality involved in attempting to persuade GM to withdraw her complaint against the applicant, through the use of threats, harassment, and a form of emotional blackmail, was conceptually, and practically, separate from the deliberate and persistent contraventions of the family violence intervention order.[44] In other words, the elements of each offence were separate and distinct. It was open to the judge to treat them in that way, albeit arising out of the same acts on the part of the applicant. The judge was entitled to order some, modest, degree of cumulation between them, as he did.
[44]See R v Loader (2011) 33 VR 86; [2011] VSCA 292, 96–7 [51]–[54] (Nettle JA, Warren CJ agreeing at 87 [1], Ashley JA agreeing at 99 [67]), and Lecornu v The Queen (2012) 36 VR 382; [2012] VSCA 137, 399 [68]–[70] (Maxwell P, Hollingworth AJA agreeing at 400 [79], Cavanough AJA agreeing at 400 [80]) in the context of extended supervision orders for serious sexual offenders. In those cases, it was held that imposing separate sentences for the principal offending, being the sexual offences in question, and for the breach of the extended supervision order, did not constitute double punishment. This was because the breach of those supervision orders involved the added, and distinct, criminality of failing to comply with court orders, separate from the main offending itself. See, generally, Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57.
As regards Ground 4, the judge clearly took into account all of the matters to which, it is said, he failed to give adequate weight. His conclusion that the applicant’s prospects of rehabilitation were ‘guarded’ was plainly open on the evidence before him.
In all the circumstances, leave to appeal should be refused.
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