Director of Public Prosecutions v Stanbury

[2010] VSCA 49

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0932

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

BROOKE MICHELLE STANBURY

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JUDGES:	BUCHANAN and BONGIORNO JJA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 March 2010
DATE OF JUDGMENT:	11 March 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 49
JUDGMENT APPEALED FROM:	R v Stanbury, Unreported 11 November 2008, County Court of Victoria (Judge Chettle)

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CRIMINAL LAW – Sentence – Aggravated burglary, intentionally causing injury, threat to kill, theft – Manifest excess – Parity – Rehabilitation – Criminality involved in offences not such as to attract the kind of penalty imposed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G Cannon	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr G J Thomas SC	Victoria Legal Aid

BUCHANAN JA:

1. I will ask Habersberger AJA to deliver the first judgment.

HABERSBERGER AJA: 

1. On 10 November 2009, Brooke Michelle Stanbury (‘the appellant’) pleaded guilty before the Country Court to one count of aggravated burglary, one count of intentionally causing injury, one count of making a threat to kill and one count of theft.  The maximum penalty for these offence are 25 years’ imprisonment for aggravated burglary; ten years’ imprisonment for intentionally causing injury; ten years’ imprisonment for threat to kill;  and ten years’ imprisonment for theft.

1. Following a plea hearing the appellant was sentenced on 11 November 2008 to 18 months’ imprisonment on the aggravated burglary count; 12 months’ imprisonment on the count of intentionally causing injury;  six months’ imprisonment on the threat to kill count and one month’s imprisonment on the theft count.  The sentencing judge ordered that six months of the sentence on count 2, and three months of the sentence on count 3 be served cumulatively on the 18 month sentence imposed on count 1.  Thus the total effective sentence was a term of two years and 3 months’ imprisonment.  His Honour ordered that there be a non-parole period of nine months. 

1. The appellant was born in May 1979 and was 28 years of age at the time of offending and 30 at the time of sentencing.  The complainant with respect to counts 1 and 2, Tyrone Taylor, was 18 years’ old at the relevant time.  The complainant in relation to counts 3 and 4, Rudi Johnson, was 12 years of age at the time of the offences.  The complainants and the appellant were known to each other as a result of residing in the same unit complex in Wimport Street, Heidelberg. 

1. At approximately 5.45 pm on 31 March 2008 the appellant was outside her unit and Johnson was riding his ‘Huffy’ BMX bike in the street.  The appellant began

yelling at him, telling him that she was going to kill him.  The evidence of the Crown was that Johnson had not said anything to her.  This conduct constituted count 3, the threat to kill.  In the police record of interview the appellant claimed that Johnson had yelled racial insults at her and called her a ‘fucking white whore’.  The claim that she had been provoked was maintained by counsel at the plea.  However, the complainant denied that he said anything and the sentencing judge made no finding with respect to this issue.

1. The appellant then started to chase Johnson, at which point he dropped his bike and began running towards the unit where his older friend Taylor, the second complainant, lived.  At that time Taylor was inside with three younger children, two of whom were aged 12 years and one of whom was aged eight.  They had been playing X-Box in the lounge room.  Shortly after Johnson’s arrival at the unit there was a loud banging on the front door which caused him to run into the kitchen.  The front door opened and the appellant came in holding a kitchen knife approximately three to four inches long.  She was yelling, ‘You fucking smart arse.’  The appellant’s entry into Taylor’s unit while armed with a knife gave rise to count 1, the count of aggravated burglary.

1. While the appellant continued to yell at Johnson inside the unit, Taylor went out to the front gate where Raymond Hall, the appellant’s former boyfriend, was standing.  Taylor asked him what was going on.  Hall responded by shrugging his shoulders. 

1. After the appellant went into the lounge room, Johnson ran out the front door and down the street.  When he looked back he saw that the appellant had also left the unit and was chasing after him with the knife in her hand yelling words to the effect of ‘Run, you little black cunt.’  Johnson ran to the end of Wimport Street and the appellant continued to chase him.  He kept running until he reached nearby Brown Street where he used his mobile phone to call 000. 

1. In the meantime, having given up her pursuit of Johnson, the appellant picked up Johnson’s bike that had been left on the front lawn of Taylor’s unit and said to Hall, ‘Look, I got a brand new bike.’  The appellant took the bike from the lawn and rode it back to her own unit.  Hall left with her.  This conduct constituted count 4, the theft.

1. The appellant then went into her back yard and began screaming at Taylor and the three children who were standing in the front yard of his unit.  She yelled, ‘Get back into your house’ and words to the effect of, ‘Tyrone, I see you, you little black cunt.’  Taylor responded by saying that he was in his own house and that she should not talk to him like he was a child.  It appeared to Taylor that the appellant was starting to walk out of her back yard, so he ran into his unit and picked up a trolley pole (the loose handle from a shopping trolley) to protect himself and his friends.  He said that he felt scared and he remembered that the appellant had previously had a knife.  Taylor came back outside and told the appellant to stop this as there were little kids around. 

1. Hall then approached Taylor’s unit and said, ‘You want to threaten my girlfriend?’  To which Taylor replied, ‘No, I’m just trying to protect the kids and protect my house.  How would you like it if someone barged into your house with a knife threatening people?’  At this point Hall took out a pocket knife from his back pocket, opened it and grabbed hold of Taylor, pushing him into the fence with the blade pointed at him.  The appellant then grabbed Taylor by the throat.  Although she could not hold on, she kept grabbing and scratching at his throat.  She also punched him in the face and head ‘quite a few times’ and scratched his face which caused the side of his nose to bleed.  He also received scratches on his neck.  This conduct constituted count 2, the count of intentionally causing injury.

1. Taylor had the trolley pole in his hand during this incident but he did not use it or threaten to use it.  Eventually Hall said, ‘That’s enough, you’ve made him bleed and you’ve hit him enough times’, at which point the appellant and Hall walked away.

1. Shortly after these events the appellant was arrested at her home where the knife was retrieved from her back yard and the police observed a ‘Huffy’ BMX bike in the back room.  During the arrest the appellant was aggressive and uncooperative, she was swearing loudly, attempted to spit on police and there was a brief scuffle before she was handcuffed. 

1. The appellant was interviewed at Heidelberg Police Station and answered ‘no comment’ to specific questions put to her relating to the offending.  However, the appellant made the following comments which were drawn to the attention of the sentencing judge, by the Crown, at the plea hearing.  The appellant stated that Johnson had run into Taylor’s unit because, ‘He was black and blacks stick together’.  The appellant denied that she went into Taylor’s unit and said that that was why Johnson was able to run out the front door.  As noted above, the appellant claimed that Johnson had approached her while on his bike and called her, ‘a fucking white whore’. She said that she told him to ‘fucking go home’, but that he continued to ride his bike around swearing at her.  The appellant also stated during the interview, ‘There is a lot of racist garbage that goes on in Wimport Street, black versus white, and quite personally the white people are sick of it.’ 

1. Following the interview a further search of the appellant’s home was conducted by the police.  The bike was no longer in the unit but it was located dumped just outside the back gate of the appellant’s unit.  The bike was identified by, and returned to, Johnson.

1. At the plea hearing, counsel for the appellant relied on a number of factors which it was submitted his Honour should consider in mitigation of sentence.  First, it was submitted that the appellant’s violent reactions and outbursts were in part attributable to her exposure to violence in her childhood.  The youngest of three children, the appellant was exposed to violence from a young age.  Her father, who worked first as a farmer then later as a truck driver, was prone to violent outbursts particularly perpetrated against the appellant’s older brother and also against her mother when she sought to defend her son.  The submission was that although no violence was directed at the appellant or her sister during their childhood, the appellant was present when these outbursts occurred.

1. Secondly, it was submitted that the appellant’s involvement in a serious car accident in 1996, just prior to her final year of secondary school, led to a change in her personality and temperament.  The appellant suffered significant physical injuries which required hospitalisation, and she reported that following the accident, ‘she felt like a different person’.  The appellant was diagnosed with mild post traumatic stress disorder and it was apparent that she also suffers from mild depression and was subject to anxiety and panic attacks following the accident.  The appellant completed year 12 but felt that she did not do as well as expected in her VCE as she was still recovering from the injuries sustained in the accident.  It was submitted on her behalf that the accident had a lingering psychological impact on the appellant, which caused her to be short tempered and anxious and irritable.

1. Thirdly, counsel for the appellant submitted that the appellant’s relationship with Raymond Hall and in particular the violence she suffered at his hands added to her stress and led ultimately to her being overwhelmed at the time of her offending.  After completing VCE the appellant had enrolled in a university but she did not complete that course, partly because of her anxiety of travelling.  She took up various volunteer and paid positions but shortly thereafter met Raymond Hall.  Her mother did not approve of this relationship as Hall was violent and drug and alcohol dependent.  The appellant’s relationship with Hall was marred by domestic violence.  They had a daughter, Jade, in 2005 who was therefore four and a half years old at the time of sentencing.

1. In a particularly violent episode in January 2006, the appellant was seriously assaulted by Hall who kicked the appellant and stomped on her head, causing fractures to her jaw which required rewiring.  It was following this assault that the police attended the scene and the appellant engaged in conduct which resulted in her being charged with offences to which I refer shortly.  The appellant was affected by alcohol and resisted the police, assaulted and spat at them, and threatened an ambulance officer and attempted to grab a knife.  Hall was charged and sent to prison.  At that time the appellant had been living with Hall in Whittlesea.  At the behest, and with the assistance, of social workers the appellant was moved to the Housing Commission units in Heidelberg where the relevant offences occurred.

1. Fourthly, counsel for the appellant submitted that the environment in the Housing Commission complex added to the appellant’s stress and anxiety.  Furthermore, it was submitted that Hall’s reinvolvement in her life following his release from prison added to her difficult circumstances.  Upon his release, Hall was provided with accommodation a few kilometres away from the appellant’s unit and he resumed contact with her, apparently for the purpose of seeing his daughter.  His presence was said to have added to the stress faced by the appellant.  It was submitted that all of these factors and the stress of raising her daughter in the impoverished environment of the housing complex at Heidelberg culminated in the appellant’s, ‘meltdown’ on the day of the offending.

1. Fifthly, since the incident in question the appellant had left the unit in Heidelberg and moved to Elmore in country Victoria, where both her mother and sister live.  She had gained some part time employment and had not been involved in any further trouble.

1. The appellant admitted two prior court appearances. First, in November 2003, she received a 12 month non-conviction bond for the offence of using a drug of dependence (amphetamine) and for theft.  A special condition of that bond was that the appellant complete a drug education and information program.  Secondly, and more relevant to the counts the subject of this appeal, on 5 February 2007 the appellant came before the Magistrates’ Court at Heidelberg on the following counts:  hindering a police officer; resisting a police officer; unlawful assault, and assaulting a police officer or a person acting in aid of a police officer in the lawful execution of duty.  In relation to that court appearance the appellant received a 12 month non-conviction bond, with a special condition that she continue to attend counselling.

1. The appellant appeals against sentence on three grounds.  The first ground is that the individual sentences for each count, the orders for concurrency and cumulation, the total effective sentence and the non-parole period were manifestly excessive.  The second ground is that the sentencing judge failed to give proper weight to the principle of parity in sentencing with respect to the count of intentionally causing injury, having regard to the sentence imposed on her co-offender, Hall.  The third ground is that the sentencing judge failed to give proper weight to the appellant’s rehabilitation.

Ground 1 - Manifest Excess:

1. It was submitted on behalf of the appellant that in the circumstances of the offending including both aggravating and mitigating factors, the individual sentences were manifestly excessive.  The following mitigating circumstances were referred to:

(a)       the appellant’s long standing and poorly controlled post traumatic stress disorder;

(b)      her history of domestic violence;

(c)       her stressful living conditions;

(d)      the significant progress the appellant had made since moving back to Elmore shortly after the offences, personally as a parent and in employment;

(e)       her plea of guilty and remorse;

(f)       the circumstances of the offence which included a spontaneous and short-lived outburst of irrational anger, rather than any committed offending; and

(g)      a limited criminal history and no history of imprisonment.

1. Senior counsel for the appellant submitted that the circumstances of the four offences, which I have set out above, were simply not criminal enough to attract the kind of penalty imposed by the learned sentencing judge.  I agree with that submission.  Whilst not discounting the aggravating factors relied on by the Crown, such as the fact that much of the offending was against or occurred in the presence of children and that the appellant was armed with a knife, it seems to me that the sentences imposed on the aggravated burglary and intentionally causing injury counts were manifestly excessive.  In reaching that conclusion, I have borne in mind what Maxwell P said in R v Abbott[1] about the ground of manifest excess not being an occasion on which to re-argue the plea in mitigation and that this ground will only succeed where it can be shown that the sentence was wholly outside the range of sentencing options available to the sentencing judge.  Nevertheless, I consider that the learned sentencing judge was in error when he imposed the sentences set out above on those counts.  I am also of the view that the total effective sentence and the non-parole period were in all the circumstances manifestly excessive.

   [1][2007] VSCA 32, [13] – [14] (Eames JA and Habersberger AJA agreed with Maxwell P).

1. At the plea hearing, counsel for the appellant submitted that, having regard to her mitigating circumstances, it was open to his Honour to impose a wholly suspended sentence. However, it was pointed out by the Crown, that in order for his Honour to suspend the whole sentence with respect to count 2, the threat to kill, he was required by s 27(2B)(a) of the Sentencing Act1991 to be satisfied that there were exceptional circumstances.  It was submitted by the Crown in this Court that what those exceptional circumstances were had not been specifically articulated by counsel for the appellant below.  Rather, the appellant’s personal circumstances were outlined in support of the overall plea in mitigation. 

1. In this Court it was submitted on behalf of the appellant that a suspended sentence was available to the learned sentencing judge, as exceptional circumstances were to be found in the appellant’s conduct post the offences in her removal of herself and her daughter to her helpful family environment at Elmore, and the adverse impact of imprisonment thereon.  Alternatively, it was submitted that partial suspension of a sentence of imprisonment was available without the need for any finding of exceptional circumstances.  Even if exceptional circumstances were not made out, which I do not need to decide, I consider that partial suspension of the sentence of imprisonment to be very appropriate.

Ground 2 - Parity:

1. The second ground of appeal is that on the basis of the parity principle, the sentence imposed on the appellant on the intentionally causing injury count, when compared to the sentence imposed on her co-offender Hall, was manifestly excessive and was such as to engender a justifiable sense of grievance and to give the appearance in the mind of an objective observer that justice had not been done.  I agree with that submission.  Hall had pleaded guilty in the Magistrates’ Court to one count of assault with a weapon, for which he was convicted and sentenced to three months’ imprisonment and one count of possessing a controlled weapon without excuse, for which he was convicted and sentenced to one month’s imprisonment.  The sentences were ordered to be served concurrently and both were wholly suspended for a period of 12 months.  It is apparent that Hall had an extensive criminal history.  Further, he was the one who first grabbed Taylor after he, Hall, had pulled out a knife.  Thus, it was submitted that the appellant’s sentence of 12 months’ imprisonment for her involvement in the count of intentionally causing injury was excessive in the light of Hall’s sentence.

1. The Crown’s submission on this ground was that the appellant was the instigator of the entire episode and that Hall’s role was much more limited given that he only became involved after the appellant had already made the threat to kill and committed the aggravated burglary.  Further, it was Hall who caused the appellant to desist from continuing to assault Taylor. Thus, it was submitted, the appellant’s moral culpability far exceeded that of Hall.  The Crown further submitted that the sentencing judge gave appropriate weight to the appellant’s prior criminal history, especially the Court appearance on 5 February 2007, given that the prior offending on that occasion did not sit well with the assertion made by counsel below that her behaviour in this instance was totally out of character.  While accepting the force of the Crown’s submissions, it still seems to me that the two sentences were quite disproportionate, particularly given Hall’s prior convictions, and that an objective observer would not be persuaded that justice had been done.

Ground 3 - The Weight Given to the Appellant’s Rehabilitation:

1. The third ground of appeal was that sufficient weight was not given to the appellant’s rehabilitation.  It was apparent that the sentencing judge accepted that the appellant had attempted to turn her life around in the period since the offending.  His Honour noted in his reasons for sentence:

After this offending you returned to Elmore … and you now enjoy the support of your mother and you have been able to get some part time work in the area and it is clear that some steps toward rehabilitation have been taken by you.

1. The submission of the Crown is that his Honour gave sufficient weight to the appellant’s prospects for rehabilitation.  In particular, it was noted that rehabilitation was expressly mentioned as one of the factors his Honour considered in deciding to impose ‘a significantly long parole period, resulting in a non-parole period of nine months.’  Nevertheless, it seems to me that his Honour did not give the appropriate weight to the appellant’s rehabilitation and that this contributed to imposing sentences which I consider were manifestly excessive. 

1. The sentencing discretion having been reopened, I would sentence the appellant as follows:

·     On count 1 - 12 months’ imprisonment;

·     On count 2 - three months’ imprisonment;

·     On count 3 – six months’ imprisonment;

·     On count 4 - one month’s imprisonment.

I would order that one month of the sentence imposed on count 2 and two months of the sentence imposed on count 3 be served cumulatively on each other and on the sentence imposed on count 1.  This makes a total effective sentence of 15 months.  I would suspend from today the balance of the term of imprisonment for a period of

12 months.

BUCHANAN JA: 

1. I agree.

BONGIORNO JA: 

1. I agree with Habersberger JA.  The appeal should be upheld and the appellant re-sentenced as his Honour proposes.  I add some remarks concerning the prosecution of this case.  It is unfortunate that the prosecutorial discretion in this case was not more judiciously exercised. 

1. The appellant was presented on four indictable offences, all of them serious.  Doubtless that is because they were the charges originally laid by the police informant and those upon which she was committed.  However, it must be seriously doubted whether the criminality inherent in the appellant’s offending required such a heavy-handed approach.  There were available to the police a number of summary offences which could have been charged which would have more than adequately demonstrated the appellant’s criminality and allowed a magistrate more than sufficient scope for an appropriate sentencing exercise.

1. The laying of serious indictable offences when they are not warranted depreciates the significance of the offences themselves.  They will always require sentences at the lowest end of the sentencing range, tending to suggest that the offences themselves are less than serious.  Sentencing statistics are distorted, and of course the offender is treated inappropriately because it is exposes him or her to a criminal record which is not really warranted.  Here the appellant has been convicted of four serious offences when her criminality would have been adequately demonstrated by her being convicted of appropriate summary offences.   Such convictions, even with the same penalty as the offender ultimately received in this case, would have achieved the ends of justice; and much

more economically for the community as well.

BUCHANAN JA: 

1. Mr Thomas, we are required by sub-s 27.4 of the Sentencing Act before an order suspending a sentence is made, to explain or cause to be explained to the appellant in language likely to be understood by her, the purpose and effect of the proposed order and the consequences that may be visited upon her in the event that she sentenced to be imprisoned for another offence. It would seem to me that because she is not here, the most we can do is to cause those things to be explained to her by asking you to do it.

(The Court adjourned whilst the appellant’s Counsel telephoned her in custody.  On resuming he informed the Court that he had explained the nature of a suspended sentence to her.)

BUCHANAN JA: 

1. Thank you, Mr Thomas, well done.  The orders of the Court will be as follows:

1.        The appeal is allowed.

2.        The sentences passed below are set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of 12 months on count 1;  for a term of three months on count 2;  for a term of six months on count 3;  and for a term of one month on count 1. 

3.        It is ordered that one month of the sentence on count 2 and two months of the sentence on count 3 are to be cumulated on each other and on the sentence on count 1.  The total effective sentence is 15 months’ imprisonment.  The balance of the term is to be suspended for a period of 12 months from today.

1. It is declared that a period of 121 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details are to be entered in the records of the Court.

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