Cox v The Queen
[2016] VSCA 124
•30 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0248
| JODY THOMAS COX | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 May 2016 |
| DATE OF JUDGMENT: | 30 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 124 |
| JUDGMENT APPEALED FROM: | DPP v Cox (Unreported, County Court of Victoria, Judge Pullen, 13 and 18 November 2015) |
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CRIMINAL LAW – Sentence – Appeal – Aggravated burglary (2 charges) – Attempted indecent assault – Theft – Total effective sentence of 6 years and 7 months with non-parole period of 4 years – Whether sentence manifestly excessive – Whether sentences on individual charges manifestly excessive – No explanation for offending – Spontaneous offending – Mitigating factors – Sentence on theft charge conceded by Crown to be manifestly excessive – Other sentences not manifestly excessive – Applicant entitled to be resentenced on theft charge – Sentencing discretion not re-opened on other charges – Appeal allowed – Appellant resentenced on theft charge – Other sentences and orders for cumulation confirmed – Appellant resentenced to total effective sentence of 6 years and 4 months with non-parole period of 4 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J Gullaci | C Marshall & Associates |
| For the Respondent | Mr C B Boyce | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA
PRIEST JA
BEACH JA:
Introduction
On 11 November 2015, the appellant pleaded guilty in the County Court to two charges of aggravated burglary, one charge of indecent assault, one charge of theft and a summary charge of entering a private place without authority or excuse. Following a plea hearing, the appellant was sentenced on 13 November 2015 as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years [Crimes Act 1958 s 77(2)] 5 years Base 2 Attempted indecent assault [Crimes Act 1958 ss 39(1) & 321M] 5 years [Crimes Act 1958 ss 39(1) & 321P] 7 months 3 months 3 Aggravated burglary 25 years 4 years 12 months 4 Theft [Crimes Act 1958 s 74(1)] 10 years [Crimes Act 1958 s 74(1)] 6 months 4 months Summary Charge Enter a private place without authority or excuse [Summary Offences Act 1966 s 9(1)(e)] 6 months or 25 penalty units [Summary Offences Act 1966 s 9(1)] 1 month Nil Total Effective Sentence: 6 years and 7 months Non-Parole Period: 4 years Pre-sentence Detention Declared: 168 days 6AAA Statement: 8 years and 6 months with a non-parole period of 6 years. Other orders:
- Sentenced as a serious sexual offender for charge 3 pursuant to s 6F of the Sentencing Act 1991
- Forfeiture of property in respect of charge 3
- Forensic sample order made pursuant to s 464ZF of the Crimes Act 1958
- Sex offender registration for 15 years (as amended on 18 November 2015)
On 8 March 2016, this Court granted the appellant leave to appeal against his sentence. The appellant’s ground of appeal is as follows:
The sentences imposed on charge 1, 3 and 4, the orders for cumulation on charge 3 & 4, the total effective sentence and non-parole period are manifestly excessive.
(a)The Sentencing Judge gave insufficient weight to the following matters:
·The circumstances in which charge 1, 3 & 4 occurred;
·The offending was not premeditated;
·The appellant’s limited prior history;
·This type of offending by the appellant was out of character and isolated;
·The timing of the plea;
·The plea of guilty was demonstrative of some remorse;
·The appellant had prospects for rehabilitation.
(b) The Sentencing Judge gave too much weight to the following matters:
·The appellant’s inability to provide an explanation for his offending 29 May 2015.[1]
[1]Cox v The Queen (Unreported, Court of Appeal, Priest JA, 8 March 2016).
Circumstances of the offending
On 29 May 2015, between about 9:30 pm and 10:00 pm, the appellant parked his tow truck in a suburban street next to a retirement village. He then jumped over a high perimeter fence into the retirement village. At the time, the appellant was wearing a dark beanie, a dark hoodie, pants and work boots, but no underwear.
The appellant gained entry to one of the units of the village (‘the first unit’) through an unlocked sliding back door. Upon entering, he intended to commit an assault, and knew there was, or was reckless as to whether or not there was, a person present in the unit (charge 1 – aggravated burglary).
The resident of the first unit, LR, aged 84, was alone in her bedroom sleeping. The appellant walked through the unit and stood in the doorway of LR’s bedroom. She woke and saw the appellant who said he was looking for ‘Matt’. LR stated there was no ‘Matt’ there. The appellant said several times, ‘I’m not going to hurt you’. He moved into the bedroom, dropped his pants, exposed his erect penis, commenced to masturbate in front of LR and asked her to help him. LR, who felt vulnerable and scared, yelled at the appellant ‘no, get out’ or ‘no, go away’, and brandished her walking stick at the appellant who stumbled backwards into the lounge room. LR went to the front door to unlock it, but had trouble because she was shaking. The appellant told her that she looked lovely in her pyjamas and left the unit (charge 2 – attempted indecent assault).[2]
[2]There was debate in the hearing before us as to the precise facts that constituted charge 2. Counsel for the appellant submitted that the offence was constituted by the appellant exposing his erect penis, commencing to masturbate, and asking LR for help. Counsel for the respondent submitted that the facts might also constitute an actual assault, being an assault that puts a person in fear rather than one that involves actual physical contact. In any event, counsel for the appellant before us did not take issue with the appellant’s conviction on charge 2. Further, he made no complaint about the sentence imposed upon charge 2 or the order for cumulation in respect of that charge.
As to attempts where an accused changes his mind and desists of his own free will, see R v Page [1933] VLR 351.
The appellant then went to another unit in the village (‘the second unit’) and entered by breaking the locked rear sliding door. The appellant entered the second unit intending to commit an assault, and knew there was, or was reckless as to whether or not there was, a person present in the second unit (charge 3 – aggravated burglary).
The appellant walked into a bedroom of the second unit. KC, the daughter of the resident of the second unit, was asleep in this bedroom. Also present in the second unit were KC’s two daughters, and her mother (the resident of the second unit). KC woke when she felt the appellant sit on the end of the bed. The appellant said ‘Margaret sent me down to find a bed for the night’. KC told the appellant that she did not know ‘Margaret’. KC was scared and yelled at the appellant to get out. The appellant left the bedroom, stealing a pair of female underpants belonging to one of KC’s daughters, before leaving the unit (charge 4 – theft).
The appellant then loitered outside the rear yard of another unit (‘the third unit’). The resident of the third unit observed the appellant looking into several windows of other units. The appellant quickly walked away when he was approached by the resident. He then went to a fourth unit (‘the fourth unit’), and entered the garage of that unit through an unlocked door. He opened a cupboard, knocked over two bags of potting mix and put his hand on the car in the garage. He then left the garage and stood outside the kitchen window of the fourth unit (summary charge – enter a private place without authority or excuse).
Shortly thereafter, the police arrived at the retirement village. After discovering that the police had arrived, the appellant hid behind a bush.
Between about 10:50 pm and 11:15 pm, the resident of the fourth unit observed the appellant outside the window of her unit, and told her daughter. The daughter came out of the unit and confronted the appellant, who said he was hiding from police for ‘D and D’ (drunk and disorderly).
Police found and arrested the appellant at the scene, locating the female underwear in his pocket.
The appellant was interviewed by police. He admitted being present at the retirement village, but claimed he had been invited in for a glass of water and got lost and disorientated. The appellant denied exposing his penis and masturbating, or asking LR to masturbate him. He said he never did this, or did not think he did. He said he told LR that he would not hurt her, but agreed she would have been afraid. The appellant said he sat on KC’s bed and told her he was looking for the unit of ‘Esme’ and that he was not there to hurt her. He claimed to have taken the underwear from a clothes-line to use as a handkerchief. The appellant admitted to trying to hide from police in the garage of the fourth unit.
Appellant’s background
The appellant was a 44 year old unmarried man at the time of his offending, and at the time of sentencing. He left school part-way through Year 9. On the plea, the appellant’s work record was described as ‘solid’ and having included ‘driving trucks in the last eight years’.
The appellant’s last job was as a truck driver about a month before his offending. It would appear that the appellant lost earlier employment in November 2014 due to drug use. From about the age of 18, the appellant had used cannabis. Additionally, at about that age the appellant was also introduced to amphetamines. Approximately a year before his sentencing, the appellant started using methamphetamine.
The appellant has a limited criminal history involving six Magistrates’ Court appearances between 1994 and 2012. These appearances were for possessing, cultivating and using cannabis, some driving related offences and an assault by kicking. None of these offences were of the kind for which the appellant fell to be sentenced by the judge.
Sentencing judge’s reasons
The sentencing judge commenced her reasons with a description of the appellant’s offending, and his responses to police when interviewed, after he was apprehended.[3] The judge then noted that the appellant had pleaded guilty and that he was entitled to have that fact taken into account in his favour. As the judge noted, the appellant pleaded guilty at a committal mention stage. The judge described the plea as having been made at an early opportunity.[4] Further, the judge accepted that the plea of guilty was indicative of remorse. The judge also noted that the appellant had expressed his remorse to a psychologist (Mr Simmons), although, the judge expressed herself as having concerns about the extent of the appellant’s remorse, given his lack of insight into, and explanation for, his offending.[5]
[3]DPP v Cox (Unreported, County Court of Victoria, Judge Pullen, 13 November 2015) (‘Reasons’) [1]–[37].
[4]Reasons [40].
[5]Ibid [43].
Next, the judge noted the appellant’s six prior court appearances, saying that none of this offending involved offences of a similar type to that before her.[6]
[6]Ibid [45].
The judge then referred to the fact that the appellant would be sentenced on charge 3 as a serious sexual offender pursuant to Pt 2A of the Sentencing Act 1991. However, the judge noted that the prosecutor did not seek to have a disproportionate sentence imposed upon the appellant.[7]
[7]Cf s 6D(b) of the Sentencing Act 1991.
The judge then engaged in a detailed discussion of the submissions made by the parties, matters that were said to be ‘troubling’, and relevant sentencing considerations. In the course of this analysis, the judge described the appellant’s background in some detail and referred to the exhibits that had been tendered, including the victim impact statements. We interpolate that, as might be expected, the victim impact statements show that the impact of the appellant’s offending upon his victims has been significant.
The judge said that the appellant’s offending was ‘very concerning and troubling’.[8] Of particular concern to the judge was the fact that the appellant had not been able to give any insight into his actions on the night of his offending.[9] That said, the judge accepted that the appellant was remorseful regarding the impact upon his victims.[10] The judge then stated that it was difficult from the lack of information before her (and specifically, the lack of information as to the reason for the offending) to conclude that the appellant was a low risk of reoffending.[11] The judge then said:
In the opinion of Mr Simmons, you would benefit from ongoing drug and alcohol counselling. He also suggested referral to a psychiatrist to investigate your recently stated psychotic phenomena, as you had been substance-free for some time.
In his opinion, there was no evidence that you were at risk of committing further sexual offences, despite you not being able to provide insight into why you acted as you did. How this conclusion can be reached definitively concerns me, although I do note your lack of prior criminal history for offending similar to that before me, but that this offending was different from your prior offending and without explanation, causes me concern when assessing your future risk.
[Your counsel] conceded the only appropriate disposition was a term of immediate imprisonment. He urged that when determining the appropriate length of that imprisonment, I have regard to your early plea of guilty and, of course, I do.[12]
[8]Reasons [52].
[9]Ibid [74]. The judge returned to this issue a number of times in her reasons: see Reasons [76]–[79], [81], [87], [102], [113] and [134].
[10]Ibid [75].
[11]Ibid [79].
[12]Ibid [80]–[82].
In the course of her analysis, the judge referred to and discussed the authorities that had been referred to her and other relevant authorities such as Boulton v The Queen,[13] Hutchinson v The Queen,[14] Hogarth v The Queen,[15] DPP v Meyers[16] and Maurice v The Queen.[17]
[13][2014] VSCA 342 (‘Boulton’).
[14][2015] VSCA 115 (‘Hutchinson’).
[15](2012) 37 VR 658 (‘Hogarth’).
[16][2014] VSCA 314 (‘Meyers’).
[17][2011] VSCA 197 (‘Maurice’).
In concluding that the only appropriate disposition was a term of imprisonment with a non-parole period, the judge concluded her reasons for sentence:
As well as matters personal to you to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
There is also the need for specific deterrence, in that not only do you have a prior criminal history, although I am aware, not for the same type of offending, but you attended at a number of units on this occasion, that is, you did not desist after your first entry, relevant to Charges 1 and 2.
I must also consider the question of protection of the members of the community from you and bear in mind the likelihood of your re-offending. This concerns me, given the circumstances of your offending and also my lack of any real understanding of how and why you committed these offences.
I am also called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
When sentencing you, I have taken into account principles of totality and proportionality. In that regard, I note the decision of R H McL v R[18] when sentencing a person as a serious sexual offender, relevant here to Charge 3.
In my opinion, to impose a community correction order, together with a further term of imprisonment, would not be an appropriate or adequate disposition for your offending.
In my opinion, the only appropriate disposition is a term of imprisonment with a non-parole period.[19]
[18](2000) 174 ALR 1; 203 CLR 452.
[19]Reasons [132]–[138] (citation in original).
Appellant’s submissions
The appellant made no complaint about the sentence imposed upon charge 2 or the order for cumulation in respect of that charge. The appellant conceded that the seriousness of the two aggravated burglaries was properly described as ‘mid-range’. That said, the appellant submitted that the sentences imposed upon each of charges 1, 3 and 4 were manifestly excessive, and that this had led to a total effective sentence and a non-parole period that were also manifestly excessive.
In submitting that the sentences on charges 1, 3 and 4 and the total effective sentence and the non-parole period were all manifestly excessive, the appellant contended that each of the matters referred to in paragraph (a) of his ground of appeal (circumstances in which charges 1, 3 and 4 occurred; offending not being premeditated; appellant’s limited prior criminal history; offending being out of character and isolated; an early plea of guilty; the plea of guilt being demonstrative of remorse; and the appellant’s prospects for rehabilitation) had been given insufficient weight by the sentencing judge. Additionally, it was submitted that the appellant’s inability to provide an explanation for his offending (while being a significant matter and a matter of concern) had ‘swamped’ the sentencing judge’s consideration of the matter.
As to the matters in respect of which it was submitted that the judge had given insufficient weight, the appellant concentrated on the fact that the offending was not premeditated, and that the appellant had a limited, and largely (if not wholly) irrelevant criminal history. Specifically, the appellant referred to the fact that, while the judge accepted the prosecutor’s concession that the appellant’s offending was spontaneous, and also said that she proceeded to sentence the appellant on that basis, the judge noted that the appellant attended the retirement village ‘without any underwear … which is perhaps somewhat curious’.[20]
[20]Ibid [114].
As to the complaint that the sentencing judge gave too much weight to the appellant’s inability to provide an explanation for his offending, counsel for the appellant pointed to the number of occasions on which the judge returned to this topic during the course of her reasons for sentence.[21]
[21]See Reasons [43], [52], [74], [76]–[79], [81], [87], [102], [113] and [134].
The respondent’s submissions
At the commencement of his submissions, senior counsel for the respondent (a Senior Crown prosecutor) conceded that the sentence imposed in respect of charge 4 (theft) and the order for cumulation in respect of that charge were both manifestly excessive. Having made that concession, senior counsel for the respondent submitted that the sentences imposed on charges 1 and 3, while ‘solid’ and at the high end of the range, were not outside the permissible range of sentences available to the sentencing judge. Similarly, it was submitted that the order for cumulation made in respect of charge 3 was not outside the permissible range.
While the respondent accepted that the appellant should be resentenced in respect of charge 4 (both as to the sentence and order for cumulation), it was submitted that the error in the sentence on charge 4 did not reopen the sentencing discretion. Further, while a resentencing of the appellant on charge 4 might produce a total effective sentence of the same order as that imposed by the judge, the respondent submitted that no element of ‘tinkering’ was involved as the appellant was entitled to be sentenced appropriately in respect of charge 4 even if no great difference was made to the total effective sentence. That said, the respondent submitted that there was no basis for this Court to interfere with the non-parole period.
Analysis
The circumstances of the appellant’s offending were, as the sentencing judge noted, troubling and of considerable concern. It may be accepted that the appellant’s offending was not premeditated. As the judge said, she sentenced the appellant on that basis. However, it is of note that having been confronted by LR when he was inside the first unit, the appellant did not flee the retirement village, but instead broke into the second unit. Of similar concern is that after the confrontation in the second unit, the appellant remained in the retirement village loitering around and looking into other units, including the third unit and the fourth unit.
The failure of the appellant to offer any explanation for his offending is, as the judge rightly concluded, a matter of significant concern. Without knowing the reason for the appellant’s offending, it is difficult (if not impossible) to make any firm conclusion about the appellant’s prospects of reoffending. We see nothing inappropriate in the repeated references by the judge, in her reasons, to the significance of the appellant’s inability to give any explanation for his very serious offending on the night of 29 May 2015.
In respect of charge 3, the appellant fell to be sentenced as a serious sexual offender. This required the sentencing judge to regard the protection of the community from the offender as the principal purpose for which the sentence for that offence was imposed.[22] Again, the sentencing judge was right to pay close attention to the issue of protection of the community when she sentenced the appellant.
[22]Sentencing Act 1991, s 6D(a).
We accept the respondent’s submissions that while the sentences imposed on charges 1 and 3 (and the order for cumulation in respect of charge 3) are at the upper end of the permissible range, they are not outside the permissible range. That said, we also accept the respondent’s concession in respect of the sentence and order for cumulation imposed in respect of charge 4. Additionally, we accept the prosecutor’s submission that the error involved in the sentence imposed with respect to charge 4 does not reopen the sentencing discretion in respect of the other charges.[23] The appellant (correctly in our view) did not seek to advance any argument why a reduction in the sentence and order for cumulation on charge 4 might re-open the sentencing discretion in relation to charges 1, 2 and 3.
[23]See generally, Ludeman v The Queen (2010) 31 VR 606; Smith v The Queen [2012] VSCA 5 [1] and [47]–[48]; DHC v The Queen [2012] VSCA 52 [69]; Young v The Queen [2015] VSCA 265 [82].
In the circumstances, we would resentence the appellant in respect of charge 4 to a term of imprisonment of three months, and order that one month of that sentence be served cumulatively upon the sentences imposed in respect of charges 1, 2 and 3. This would make a total effective sentence of six years and four months.
As to the non-parole period, again we accept the submission made by the respondent that four years is the appropriate period to fix as a minimum non-parole period in this case in respect of a total effective sentence of six years and four months.
Conclusion
The appeal will be allowed. The sentences and orders for cumulation in respect of charges 1, 2 and 3 imposed in the County Court on 13 November 2015 will be confirmed. The sentence and order for cumulation imposed in respect of charge 4 will be set aside, and in lieu thereof a sentence of imprisonment of three months with an order that one month of that sentence be served cumulatively upon the sentences imposed on charges 1, 2 and 3 will be imposed. A non-parole period of four years will be fixed.
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