Cook v The Queen

[2011] VSCA 187

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0834

LUKE MARK COOK	Appellant
	v
THE QUEEN	Respondent

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JUDGES	BONGIORNO JA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 May 2011
DATE OF JUDGMENT	13 May 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 187
JUDGMENT APPEALED FROM	R v Cook (Unreported, County Court of Victoria, Judge Hogan, 16 September 2009)

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CRIMINAL LAW – Sentence appeal – Appellant pleaded guilty to one count of intentionally causing serious injury and one count of criminal damage – Offences were committed while appellant was on parole – Sentenced to total effective sentence of 8 years and 9 months’ imprisonment with non-parole period of 5 years – Whether sentencing judge failed to properly apply principle of totality – Whether sentence manifestly excessive – R v Renzella [1997] 2 VR 88 – R v Piacentino (2007) 15 VR 501 – Sentencing Act 1991 ss 16(3B), 18(1) – Appeal allowed – Appellant re-sentenced.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr P Tiwana	James Dowlsey and Associates
For the Crown	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

THE COURT:

1. On 2 September 2009, the appellant pleaded guilty before Judge Hogan in the County Court to one count of intentionally causing serious injury and one count of criminal damage.  The intentionally causing serious injury count related to an incident in which the appellant stabbed another man with a kitchen knife multiple times, inflicting life-threatening injuries.  One of the stab wounds involved penetration of the pericardial sac, perilously close to the victim’s heart.  The criminal damage count related to the appellant smashing the rear window of the victim’s motor vehicle.

1. At the time of his offending, the appellant was on parole for property and driving offences, a drug offence and the offence of threatening to inflict serious injury.

1. On 16 September 2009, the appellant was sentenced as follows:

Count	Sentence	Cumulation
1	8 years and 6 months’ imprisonment	Base sentence
2	9 months’ imprisonment	3 months
Total effective sentence		8 years and 9 months’ imprisonment
Non-parole period		5 years

1. The appellant was arrested for these offences on 9 November 2008.  On 10 December 2008, the Parole Board cancelled his parole, with the consequence that he was required to serve the unexpired portion of his parole period as a term of imprisonment.  His parole period expired on 8 August 2009.  There were thus two periods prior to the date of sentence during which the appellant was in custody for the offences in respect of which he was ultimately sentenced and no other offences. The first period was between 9 November 2008 and 10 December 2008 and the second period was between 9 August 2009 and 16 September 2009. Accordingly, by virtue of s 18(1) of the Sentencing Act 1991, he was entitled to a declaration that he had served a total of 70 days as pre-sentence detention.  He was not entitled to such a declaration in respect of any of the period between 10 December 2008 and 8 August 2009, however.  The sentencing judge made the appropriate declaration.

1. The appellant sought leave to appeal against his sentence on the ground that the sentencing judge had failed to properly apply the principle of totality.  Specifically, he asserted that, in constructing the sentence imposed, her Honour had not taken into account the period of incarceration that he had undergone as a result of his parole being cancelled and further that she had erred in cumulating three months of the sentence imposed on the criminal damage count upon the sentence imposed on the more serious count.  The appellant also complained that the individual sentences and the total effective sentence were manifestly excessive.

1. On 27 August 2010, Neave JA granted the appellant leave to appeal.  The appeal came before this Court on grounds expressed as follows:

1.The learned sentencing judge erred in failing to give regard to the principle of totality when constructing the sentences imposed.

2.The sentence was manifestly excessive in all its aspects.

3.The learned sentencing judge erred in failing to give reasons as to why 9 months imprisonment (with 3 months to be served cumulatively) was the right sentence on count 2.

1. The circumstances in which these crimes were committed were that the appellant and the victim of his assault, who were apparently well known to each other, were both at the appellant’s home in Sunshine on 8 November 2008.  They each took a quantity of drugs including Xanax, an anxiolytic medication, and later heroin.

1. The appellant and the victim remained at the house with others, including the appellant’s female partner until, early the following morning, an argument broke out between the appellant and the victim.  This occurred outside, at the front of the appellant’s house.  In the course of the argument, the appellant smashed the rear window of the victim’s car with a child’s scooter and the victim retaliated by smashing the front window of the house.  The appellant then went into the house and obtained a kitchen knife.  He returned to the front of the house and stabbed the victim many times.  At the time of the stabbing, the victim was backed up against a wall and trying to protect himself with the child’s scooter.

1. In her carefully prepared sentencing remarks, the sentencing judge set out the circumstances of the appellant’s offending and his personal circumstances and history, including his drug history and a psychologist’s opinion as to his mental state.  She referred to his significant criminal record and the fact that these offences were committed whilst he was on parole for, among other offences, the offence of threatening to inflict serious injury.  Her Honour noted that previous non‑custodial dispositions extended to him had invariably resulted in breaches of the conditions attached to those dispositions.

1. In fixing the sentence which she imposed, the sentencing judge did not refer to the principle of totality or the effect that the period that the appellant spent in custody as a result of his parole being cancelled would have on his sentence.  Nor did she explain why three months of the sentence imposed on the criminal damage count were cumulated upon the sentence imposed on the more serious count.  It should be noted, however, that neither of these matters was the subject of any submission by the appellant’s counsel before the sentencing judge and that the prosecutor did not direct her Honour’s attention to the significance of the nearly eight months that the appellant spent in custody as a result of the cancellation of his parole.

Ground one – Totality

1. Counsel for the appellant submitted that, in constructing the sentence imposed, the sentencing judge should have taken into account the period that the appellant spent in custody as a result of his parole being cancelled.

1. In R v Renzella,[1] it was held that where an offender is in custody prior to being sentenced and s 18(1) of the Sentencing Act 1991 does not apply to that pre-sentence detention because it does not relate solely to the offence or offences for which the offender is being sentenced, the sentencing court is ‘not only empowered but obliged as a matter of justice to take [that] presentence detention into account’.[2]  Whilst that principle is sometimes somewhat bizarre in its application, and has been the subject of criticism,[3] its application in this case is, it would seem, uncontroversial.  The appellant’s parole was cancelled because he was charged with the offences for which he was subsequently sentenced by Judge Hogan.  The principle in Renzella appears to be squarely applicable.[4]

   [1][1997] 2 VR 88 (‘Renzella’).

   [2]Ibid 97.

   [3]See, eg, Karpinski v R [2011] VSCA 94, [2]-[8] (Weinberg JA).

   [4]The appellant correctly pointed out that s 16(3B) of the Sentencing Act 1991 does not affect the operation of the Renzella principle or the more general sentencing principle from which it is derived — the principle of totality. Section 16(3B) provides that any sentence imposed for an offence committed whilst the offender is on parole must, in the absence of exceptional circumstances, be served cumulatively on any period of imprisonment that the offender is required to serve as a result of the cancellation of his or her parole. In R v Piacentino (2007) 15 VR 501, a decision of a five-judge constitution of this Court, it was held that s 16(3B) does not ‘diminish’ the principle of totality. Rather, this principle may be applied to moderate the severity of the sentence imposed on an offender who has committed an offence whilst on parole, even if, by virtue of s 16(3B), the sentence must be cumulated on any parole sentence served by the offender. Applying the totality principle in this way might, as Eames JA noted (at 515), ‘lead to a not dissimilar reduction in time in prison to that which might have been achieved upon findings of exceptional circumstances and orders for concurrency’.

1. In answer to this submission, the Crown pointed out that the sentencing judge was clearly aware of the fact that the appellant had breached his parole.  She noted that that was an aggravating factor and clearly took it into account as such.  It should be inferred, argued the Crown, that she also took into account the cancellation of his parole and the consequences of this cancellation.

1. The Crown cited R v Koumis[5] as authority for the proposition that the absence of a reference to a matter relevant to the sentencing discretion will not of itself vitiate the sentencing discretion or provide a ground for its review.  It must be able to be inferred from the circumstances, including the sentence itself, that the sentencing judge did not take the matter into account.

   [5](2008) 18 VR 434 (‘Koumis’).

1. The ‘Renzella discount’ is a particular and somewhat unusual sentencing consideration.  It would normally be expected that if a sentencing judge had given effect to it, some reference to it would be made in the sentencing remarks.

1. Sometimes it is possible to draw an inference that a sentencing judge did not take a particular factor into account by examining the sentence actually imposed.  As this Court pointed out in Koumis, whether such an inference can be drawn will commonly depend upon whether it can be said that a markedly different sentence would have followed had the matter been taken into account.[6]  Here, the magnitude of the sentence imposed by the sentencing judge is not such that it could be said that a markedly different sentence would have been passed if her Honour had applied the Renzella principle.  However that may be, we have come to the conclusion that, in the circumstances of this case, the sentencing judge did not apply this principle and accordingly fell into error.  This limb of ground one must succeed.

   [6]Ibid 440.

1. The second totality point argued by the appellant related to the sentencing judge having cumulated three months of the sentence imposed on the criminal damage count upon the sentence imposed on the more serious count.  In the exercise of an appropriate sentencing discretion, the sentencing judge was, in our opinion, entitled to take the course that she did although she was not compelled to do so.  It would be equally within an appropriate discretion to regard the conduct leading to the criminal damage count as so intimately connected with that leading to the more serious count that total concurrency would be appropriate.

Ground two – Manifest excess

1. This ground alleged manifest excess both in the individual sentences imposed and in the total effective sentence.

1. With respect to the sentence imposed on the more serious count, there is no basis for an allegation of manifest excess.  Having regard to the appellant’s antecedents, the circumstances of the offence and, particularly, the severity of the attack and its effect on the victim, the sentencing judge correctly classified the offence as being among the most serious of its type.  It fully justified the sentence imposed.

1. With respect to the offence of criminal damage, the sentence of nine months’ imprisonment could be regarded as stern.  However, we are not satisfied that it is outside the exercise of a reasonable sentencing discretion. 

1. Ground two is not made out.

Re-sentencing

1. Having regard to our conclusions with respect to ground one, it is necessary to re‑exercise the sentencing discretion in this case.  Taking into account all of the matters to which the sentencing judge referred in her sentencing remarks and the fact that the appellant served almost eight months’ imprisonment as a result of his parole being cancelled, we consider that the sentence on the more serious count should be 8 years’ and 3 months’ imprisonment and the sentence on the less serious count should be 6 months’ imprisonment.  There should be no order for cumulation.

1. The sentencing judge gave cogent and compelling reasons as to why the appellant should be subjected to a shorter than usual non‑parole period.  There is no basis for disturbing her Honour’s findings on this point or the ratio of the head sentence to the non-parole period.  Accordingly there will be a non‑parole period of 4 years and 9 months.

1. Had the appellant not pleaded guilty to these offences, it would have been appropriate for him to have received a total effective sentence of 11 years’ imprisonment with a non-parole period of 9 years.

Orders

1. The orders of the Court are as follows:

1.        The appeal is allowed.

2.        The sentences passed below are set aside and in lieu thereof the appellant is sentenced as follows:

Count 1	8 years and 3 months’ imprisonment
Count 2	6 months’ imprisonment

The total effective sentence is thus 8 years and 3 months’ imprisonment. 

3.        A non-parole period of 4 years and 9 months is fixed.

4.        All other orders made below are confirmed.