De Angelis v The Queen
[2012] VSCA 279
•21 November 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0232
| MARC DE ANGELIS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE, OSBORN and PRIEST JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 21 November 2012 |
| DATE OF JUDGMENT | 21 November 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 279 |
| JUDGMENT APPEALED FROM | DPP v De Angelis (Unreported, County Court of Victoria, Judge Gullaci, 19 September 2012) |
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CRIMINAL LAW − Application for leave appeal to against sentence − Intentionally causing injury − Sentence of one year and two months’ imprisonment, with non-parole period of eight months − Whether sentence manifestly excessive − Low intellectual functioning − History of substance abuse and mental illness with possible acquired brain injury − Totality − Application dismissed − No point of principle.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr R Chaudhuri | Michael Smith Solicitors |
| For the Respondent | Mr G J C Silbert S.C. | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
The applicant, Marc De Angelis, seeks leave to appeal against a sentence of one year and two months’ imprisonment, with a non-parole period of eight months, which was imposed on him following a County Court jury verdict finding him guilty of intentionally causing injury to Rachel Green.[1] The maximum penalty for that offence is 10 years’ imprisonment.
[1]He was acquitted of charges of intentionally causing serious injury and recklessly causing serious injury.
The victim, who is deaf and communicates through sign language, had been the applicant’s friend for several years. On 31 August 2011, Ms Green visited the applicant at his home, where they drank wine together and watched television. She was sitting on the applicant’s bed the next morning, when the applicant came into the room and, without warning, punched her several times in the face. He then got on top of her holding a carving knife and attempted to stab her. The victim grabbed the knife, cut her hand and broke free from the applicant. She then jumped out of a window in the lounge room, and ran to another house where an ambulance was called. She suffered facial bruising, and had cuts on her hands and fingers.
In his record of interview, the applicant said that he had had a minor argument with the victim, who was very drunk. He claimed that she chased him around the lounge room, before jumping out of the window. He denied punching her, being violent towards her, or using the knife in the way she described. The police later found a carving knife under the applicant’s bed. It was conceded during the trial that the victim’s blood was on the knife blade.
His Honour’s reasons
In his reasons, the learned sentencing judge noted that the applicant was aged 45 years, and had ‘a long history of alcohol and drug abuse’, and currently had ‘a number of significant health issues’.[2]
[2]DPP v De Angelis (Unreported, County Court of Victoria, Judge Gullaci, 19 September 2012) (‘Reasons’) [7].
His Honour referred to a 2006 report prepared by psychologist, Bernard Healey, which said that the applicant had an IQ of 87, had a history of drug and alcohol abuse, had been admitted to psychiatric units on several occasions, had been using methadone for 20 years and was ‘vulnerable to substance abuse, depression and anxiety’.[3]
[3]Ibid [9].
He also considered a letter from Dr Hugh Lowy dated May 1999 which indicated that the applicant suffers from ‘a severe personality disorder, criminal behaviour and substance abuse’ and a report by neuropsychologist, Dr Sheryl Monteath, dated 20 July 2011, which concluded that the applicant had:
a number of risk factors for an acquired brain injury, including 25 years’ alcohol abuse, ten years’ history of heroin dependence, and a number of incidents of head trauma and a poorly controlled seizure disorder.[4]
[4]Ibid [11].
Dr Monteath concluded that the ‘likelihood of a deterioration of brain function is high’.[5] In addition, the applicant had been diagnosed with schizophrenia and depression, and suffered from a number of medical conditions, including diabetes and liver cirrhosis.[6] His Honour noted that no updated psychological or psychiatric report had been provided to the Court.[7]
[5]Ibid.
[6]Ibid.
[7]Ibid [15].
The judge also considered the applicant’s current medical difficulties, which were explained in a letter from Southern Health. The initial plea hearing was adjourned because the applicant had previously been found unconscious and with several breaks to his legs. At the time of sentence, he was still in hospital and was not fully ambulatory.[8] The letter also said that the applicant was recovering from respiratory and renal failure.
[8]Ibid [12].
At the plea hearing, the Crown called Mr Brendan Money, the director of sentence management in Corrections Victoria, as a witness. Mr Money said that facilities were available in the prison system for prisoners in wheelchairs and that physiotherapy services and treatment for depression and/or an acquired brain injury could be provided in jail.
The judge concluded that the applicant’s medical and health needs could be met within the prison system.[9] Nevertheless, he accepted that the applicant’s significant medical problems (including his likely acquired brain injury), and his ‘need for extensive medical [treatment] and rehabilitation’ would make imprisonment more onerous for him than for a person in good medical and mental health.[10]
[9]Ibid [15].
[10]Ibid [16].
The judge said that he had taken account of the following factors in sentencing the applicant:[11]
·his ‘low intellectual functioning’;
·his ‘long-standing alcohol and drug problems’;
·his 25 year history of alcoholism; and
·in application of the principle of totality, the period which the applicant had spent in custody in relation to unrelated matters.
[11]Ibid.
The judge said that the applicant’s attack on the victim was ‘unprovoked and unexpected’ and referred to the weight to be given to general deterrence, and specific deterrence.[12] He noted that the applicant’s ‘20 to 25 pages of prior convictions going back to 1985’, included:
possession of a prohibited weapon, being a felon in possession of a firearm, being a prohibited person possessing a pistol, shortening a firearm, possessing a pistol without a permit [and] a prior conviction for assault by kicking, and causing an explosion endangering life.[13]
[12]Ibid [21]−[22].
[13]Ibid [24].
Although his Honour accepted that the applicant’s restricted intellectual functioning required some modification of the weight to be given to general and specific deterrence,[14] he said that:
you have limited prospects of rehabilitation or changing the pattern of conduct established over many years of abusing alcohol and drugs and committing offences, as demonstrated by your prior convictions. You have little support in the community, you have significant medical and mental health issues, and are, in my view, a long-term abuser of drugs and an alcoholic. The sentence of the court must be one that deters you from offending in a similar manner again in the future.[15]
[14]Ibid [25].
[15]Ibid [21].
His Honour also noted that the applicant was on a suspended sentence at the time of offending.[16] In setting a minimum term of eight months’ imprisonment, the judge took into account the mitigating factors already discussed above.[17]
[16]Ibid [25]. In August 2009, the applicant was convicted of several driving offences, and sentenced to three months’ imprisonment, which was suspended for 24 months.
[17]Ibid.
Proposed ground of appeal 1
This proposed ground alleges a specific sentencing error, which was that:
the learned trial Judge erred in inferring that the appellant, notwithstanding an extensive criminal history of over twenty years duration including convictions for possession of prohibited weapons and make explosion was an offender with a history of offences of violence against a person when it was submitted that, according to the appellant's admitted criminal record, the appellants only recorded conviction for an offence of violence against a person was for assault by kicking at Ringwood Magistrates court in 1985.
During the plea, defence counsel submitted that despite the applicant’s extensive prior criminal history, he had only one other conviction for an offence against a person. His counsel described the current offence as an ‘uncharacteristic aberration‘, and submitted that the judge should consider the applicant to have ‘effectively an absence of relevant priors’.
The judge rejected that submission, saying that:
prior convictions can be used to determine or assist the court to determine the weight to be given to specific deterrence. Clearly specific deterrence is a significant matter in this case. Also it’s used by courts to determine the prospects of rehabilitation.
Consistently with his Honour’s comments during the plea, his Honour referred in his reasons to the applicant’s criminal history and said that:
Whilst it must be made clear that you are not to be punished again for your previous criminal offending, these matters are relevant matters for the court to consider in determining the weight to be given to specific deterrence and assessing your prospects for rehabilitation.[18]
[18]Ibid [24].
This ground of appeal effectively restates the argument which was made in the plea hearing below. It is not reasonably arguable. While the applicant had only a single prior conviction for assault, the firearms and explosion offences raised legitimate concerns about his potential to act violently to others. More importantly, as the judge correctly observed, the applicant’s long history of prior convictions was relevant in determining the weight to be given to specific deterrence and the applicant’s prospects of rehabilitation.
Proposed ground of appeal 2
This proposed ground alleges that the sentence was manifestly excessive, as the judge did not give sufficient weight to a number of matters. First, the applicant’s written case argues that the judge did not attach ‘sufficient weight’ to the applicant’s very limited criminal history for offences of violence. I have already discussed that issue.
Secondly, it is submitted that:
the learned trial judge did not attach sufficient weight to evidence of the appellant's detention for a period of six months both for the instant offence and for other unrelated offences for which he was also convicted separately when considering the issue of totality in the setting of an appropriate sentence.
It is also submitted that the learned trial judge did not attach sufficient weight to evidence of the serious deterioration in the appellant’s health post conviction which included recovery from a recent injury in which he was admitted to hospital, suffered renal failure and was diagnosed as having an initial Glasgow Coma score of 3, pneumonia as well as fractures to both of his tibia in his lower legs.
…
For each of the above reasons it is submitted the learned trial judge imposed a sentence which was, in all of the circumstances of the case, manifestly excessive.
The applicant relies on R v Van Boxtel,[19] in which this Court said that in sentencing a prisoner with health problems, the Court must recognise that a sentence of imprisonment would be more burdensome for a prisoner in poor health than for a person in normal health.
[19](2005) 11 VR 258.
Conclusion on proposed ground 2
A complaint about the failure to give adequate weight to a sentencing consideration is, in effect, a complaint that the sentence is manifestly excessive.[20]
[20]Gorladenchearau v The Queen [2011] VSCA 432 [34].
This proposed ground is not reasonably arguable. The offence involved a terrifying knife attack on a defenceless victim, who was deaf, by a person with a very long history of prior offending. The weapon was potentially lethal and if the victim had not managed to escape the applicant, she might well have been very seriously injured or even killed.
I would reject the argument that the judge did not attach sufficient weight to the applicant’s poor health. In his sentencing reasons, the judge twice noted that imprisonment would weigh more heavily on the applicant than a person in good health.[21] The leniency of the sentence presumably reflects the considerable weight which the judge gave to this matter.
[21]Reasons [16], [25].
I would also reject the argument that the judge did not give sufficient weight to totality. The judge clearly said that he had taken account of the time served for the unrelated offences and there is nothing in the sentence imposed for the current offence which suggests otherwise. Further, the current offence was committed while the applicant was serving a suspended sentence, although this was for traffic offences.
In passing, I note that during the plea, it was agreed that the applicant was entitled to credit for 83 days in pre-sentence detention for the current offence. At the hearing of the application, it was conceded that the period of pre-sentence detention declared should actually have been 58 days.
Leaving that matter aside, I consider that the sentence imposed for this offence was lenient to the point that it might well have been manifestly inadequate. Ground 2 must, therefore, be rejected.
For these reasons, the application for leave to appeal against sentence is refused.
OSBORN JA:
I agree, for the reasons stated by Neave JA.
PRIEST JA:
I also agree.
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