Director of Public Prosecutions v Talbot

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0141

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
JUSTIN TALBOT	Respondent

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JUDGES:	PRIEST, NIALL and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2023
DATE OF JUDGMENT:	27 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 95
JUDGMENT APPEALED FROM:	DPP v Talbot (Unreported, County Court of Victoria, 30 August 2022, Judge O’Connell)

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CRIMINAL LAW – Crown Appeal – Sentence – Home invasion and intentionally causing serious injury – Guilty plea – Respondent entered residential premises with others – Shot victim in knee with sawn-off shotgun – Total effective sentence of 8 years’ imprisonment with 5 years and 6 months non-parole – Whether manifestly inadequate – Appeal allowed – Resentenced to total effective sentence of 11 years and 6 months’ imprisonment with 9 years non-parole.

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Counsel
Appellant:		Mr C Boyce KC with Ms K Crennan
Respondent:		Mr DA Dann KC with Mr S Tovey
Solicitors
Appellant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Balmer & Associates

PRIEST JA
NIALL JA
T FORREST JA:

In September 2019, the respondent, Justin Talbot, then aged 29 years,[1] resided in Bendigo. He was associated with Ashley Slattery (now deceased) through the Rebels outlaw motorcycle gang.
[1]His date of birth is 26 June 1990.
Between 11.00 pm on Friday, 27 September and 4.30 am on Saturday 28 September 2019, Slattery’s motorcycle was stolen from the driveway of premises in Bendigo by Brayden Sainsbury and Luke Courtney-Clack. Once Sainsbury discovered that the stolen motorcycle belonged to Slattery, however, he decided to help Slattery locate and recover it.
On 28 September 2019, Scott Veenings and his friend, Sydney Heaney, were visiting acquaintances, Nicole Singleton and Daniel Stevenson, at premises in York Street, Bendigo. At some time that evening, after Ms Singleton and Mr Stevenson had gone to bed, Mr Veenings and Heaney were in the lounge room when the respondent — carrying a loaded single barrel sawn-off shotgun — and another man entered the premises in an aggressive manner.
As the respondent entered the lounge room, his companion opened the front door, permitting a third man to enter. One of the two men accompanying the respondent was Slattery. They were looking for Courtney-Clack, whom they believed had stolen Slattery’s motorcycle, and whom they expected to be at the premises.
The respondent asked repeatedly, ‘where’s Luke?’. Mr Veenings — who had nothing to do with the theft of the motorcycle and had no knowledge of it — replied that he did not know where Luke was. The respondent then put the shotgun to Mr Veenings’ forehead, continuing to ask where Luke was. He then struck Mr Veenings on the head with the butt of the gun. Mr Veenings could hear cabinets opening and closing as though they were searching for Courtney-Clack in other parts of the house. The respondent kept asking where Luke was, saying that Luke had stolen his motorbike.
After about five or 10 minutes, the respondent went up to Mr Veenings, who was still seated on the couch, put the shotgun to Mr Veenings’ right knee and pulled the trigger, causing the knee devastating injury.
As soon as the respondent shot Mr Veenings, Slattery and the third male ran out the front door. Ms Singleton and Mr Stevenson came out of their bedroom. Mr Veenings was in pain and could see a lot of blood. He was later conveyed by ambulance to Melbourne where he underwent surgery to his knee.
The injuries caused by the shooting have been life-changing for Mr Veenings. As a result of his injuries, he is no longer able to walk and needs to use a wheelchair to get around. Mr Veenings is not able to carry out basic tasks such as housework, shopping and dressing in the manner that he had previously. He is no longer able to engage in outdoor activities such as camping, hiking or playing sport. As he said in his victim impact statement, what happened has made every day a challenge, and he feels will never get better. Mr Veenings will bear the disability caused by the applicant’s vicious offending for the rest of his life.
On 24 August 2022, the respondent pleaded guilty in the County Court to home invasion[2] (charge 1) and intentionally causing serious injury[3] (charge 2). Following a plea, the judge sentenced the respondent to five years’ imprisonment on the first charge and to seven years and six months’ imprisonment on the second. Six months of the sentence on the first charge was ordered to be served cumulatively with the sentence on the second, leading to a total effective sentence of eight years’ imprisonment. The judge fixed a non-parole period of five years and six months.[4]
[2]Crimes Act 1958, s 77A. The maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, s 77A. The maximum penalty is 20 years’ imprisonment.
[4]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have imposed a sentence of nine years and six months’ imprisonment, with a non-parole period of seven years.
By a notice filed on 27 September 2022, the DPP has appealed against the sentence on a single ground which contends that the ‘individual sentences imposed on charges 1 and 2, the order for cumulation, the resulting total effective sentence and the non-parole period imposed are manifestly inadequate’.
In our opinion, the appeal must be allowed and the respondent resentenced in the manner set out below.[5]
[5]At [252525].
When addressing his sentencing remarks to the respondent, the judge said that
the notion that you acted spontaneously is not an apt description of your actions. Mr Courtney-Clack did not live at this address. You went there with Mr Slattery because you thought he might be there. You burst into these premises in an extremely aggressive manner. You spent a number of minutes brandishing the weapon and threatening the victim whilst others searched the premises. You then calmly put the gun against his knee and discharged it. That was a callous and brutal act that has had catastrophic consequences for a man who posed no threat to you whatsoever. The reality was that you had plenty of time to pause, consider and desist before you shot Mr Veenings.
We agree with these observations. We also agree with the following remarks:
Likewise, in your case general deterrence looms large. Using a firearm in the way that you did is ‘wholly unacceptable and will be severely punished’.^[[6]]
Specific deterrence has a significant role to play as well, not only because of your preparedness to use a firearm but also because you have relevant prior convictions for violence.
The severity of the injuries sustained by Mr Veenings and the life-changing consequences for him require that the sentence imposed also serve to denounce and punish you.
[6]See Nicolls v the Queen [2016] VSCA 250, [140] (Maxwell P, Osborn and Santamaria JJA).
The respondent has a number of relevant prior convictions, including: recklessly causing injury and assault in 2010, for which h he received a sentence of two months’ imprisonment to be served by way of an intensive corrections order; recklessly causing serious injury, intentionally causing injury and behaving in a riotous manner in 2013, for which he received an aggregate sentence of 14 months’ imprisonment (eight months non-parole); and aggravated burglary and recklessly causing injury in 2016, for which he was sentenced to an aggregate sentence of 15 months’ imprisonment, together with a community correction order of 18 months’ duration. In his reasons for sentence, the judge remarked that the ‘consistent theme emerging from those previous convictions is the propensity for violence’. He noted in that regard that the respondent’s counsel had submitted that the respondent’s ‘resort to violence is generally explained by the trauma of [his] childhood experiences’.
Although, of course, the respondent is not to be punished again for his prior offending, his criminal antecedents are relevant as indicators of his moral culpability; his prospects of rehabilitation; his dangerous propensities (and, concomitantly, the community’s need for protection); and the increased importance of specific deterrence as a factor in sentencing.[7] As the High Court made clear in Veen [No 2],[8] although the appellant’s antecedent criminal history ‘cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence’, it is relevant
to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.
[7]R v O’Brien and Gloster [1997] 2 VR 714, 718 (Charles JA) (‘O’Brien and Gloster’).
[8]Veen v The Queen [No 2] (1988) 164 CLR 465, 477–8 (Mason CJ, Brennan, Dawson and Toohey JJ) (‘Veen [No 2]’) (emphasis added).
The judge assessed the respondent’s moral culpability as ‘high’. It certainly was at least that. The judge also considered the issue of the respondent’s remorse to be ‘problematic’, and was unable to reach a concluded view about it, treating it as ‘neutral’. One could not sensibly argue with the characterisation of the respondent’s remorse as being problematic.
In this Court, the respondent’s counsel emphasised that the judge had referred to and taken into account all relevant matters. Hence, the judge took into account the plea of guilty (and the fact that witnesses were saved the ordeal of giving evidence) and the fact that it was entered during the pandemic (thereby attracting an additional significant ‘discount’).[9] In applying the principle of totality, consistently with the Renzella, discretion[10] the judge also reduced the sentence that he imposed, by taking into account in a broad and practical way a period of ‘just over a year’ of custody that was not able to be declared under s 18 of the Sentencing Act 1991. Delay, the judge accepted — both the uncertainty as to what would transpire, and the respondent’s resort to rehabilitative programs — should mitigate the respondent’s sentence. The judge also had regard to current sentencing practices.[11]
[9]Worboyes v The Queen (2021) 96 MVR 344.
[10]R v Renzella [1997] 2 VR 88.
[11]See, in particular, Nicolls v the Queen [2016] VSCA 250 (Maxwell P Osborn and Santamaria JJA) and Booker v the Queen [2022] VSCA 150 (Priest and Beach JJA).
Furthermore, the judge also accepted that the respondent had endured an upbringing, the features of which included ongoing and extreme family violence; a father with significant mental health issues who periodically required inpatient psychiatric care; a mother who was forced to escape family violence and stay in women’s refuges; regular attendance by police at his home to deal with family violence; his father taking part in a ‘siege’ with police; and being sexually abused by a family friend when aged eight or nine years. So far as that is concerned, we note that the High Court observed in Bugmy that an inability to control violent responses to frustration, borne of an exposure to violence and substance abuse, may increase the importance of community protection as a feature in sentencing:[12]
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.[13] An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[12]Bugmy v The Queen (2013) 249 CLR 571, 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (citations as in original).
[13]Veen v The Queen [No 2] (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ.
The judge also had regard to Verdins considerations.[14] Although the judge was not persuaded that the respondent’s various psychological conditions impaired his mental functioning in such a way as to render his actions less morally blameworthy — indeed the judge accepted that at the time of the offending the respondent was ‘grossly affected by alcohol, MDMA and Methylamphetamine and that if anything was compromising [his] ability to exercise judgment’ — the judge did accept that the respondent’s mild paranoid symptoms, active post-traumatic stress disorder (‘PTSD’) and untreated attention deficit hyperactivity disorder (‘ADHD’) made it likely that he will have more difficulty with a prolonged custodial sentence than someone not suffering from his psychological conditions. As to that, a psychologist, Ms Miriam Letif, had diagnosed the respondent with substance abuse disorders, schizoaffective disorder (depressive type), PTSD and ADHD. She considered that
it is likely that symptoms of untreated ADHD, such as racing thoughts and psychomotor agitation have made it more difficult for [the respondent] to gain control over his anger/frustration when experiencing heightened levels of depression and trauma related anxiety.
These stressors first presented approximately twelve months in the lead up to the offending and over that time [the respondent’s] mental health continued to decline. It is proposed that [the respondent’s] offences occurred in the context of unresolved trauma (PTSD) following disclosure of childhood sexual abuse for the first time, resultant depression and in response, increased substance use.
While [the respondent] is diagnosed with Schizoaffective Disorder, evidence did not suggest that [the respondent] was actively suffering psychosis at the time of the offending. However, Schizoaffective Disorder is a serious and permanent condition that [the respondent] has suffered since adolescence and infers a fragile mental state that is due consideration in this case.
It is also noted that both ADHD and PTSD include symptomology related to impulsive behaviour, anger, and poor behavioural control which may also have contributed to [the respondent’s] poor conduct. This conduct was likely worsened by drug and alcohol intoxication that would likely have served to further disinhibit [the respondent’s] impulsivity and behaviour.
[14]R v Verdins (2007) 16 VR 269.
With respect to the respondent’s prospects of rehabilitation, the judge considered that they ‘hinge on effective treatment of [his] mental health and substance abuse’. The respondent, the judge noted, had been injured in a motorcycle accident in 2015, his injuries including a broken neck, broken leg and broken arm. In the months after the accident, the judge said, the respondent ‘commenced heavy substance abuse’. In the wake of the accident, a neuropsychologist, Dr Ian Stuart, had prepared a report for the Transport Accident Commission, dated 9 December 2018. Dr Stuart concluded that the respondent suffered a severe impairment of his verbal memory as a result of the motorbike accident, and formed the view that the respondent suffered from severe mixed anxiety and depression, aggravated by his inability to return to work. The judge accepted, that by the end of 2018, the respondent’s mental health had ‘deteriorated significantly’. Indeed, among other things, Dr Stuart had said:
Overall, my impression is that [the respondent] is in a desperate situation; his recovery from his orthopaedic injuries has not been sufficient to allow him to return to work, and his period in prison has affected his rehabilitation, leaving him with significant physical limitations. Furthermore he is having to cope with the effects of a severe verbal memory disorder which further undermines his confidence. … I believe that he is at risk for suicide.
In light of the foregoing, it might be accepted that no discrete error is betrayed by the sentencing reasons. We have concluded, however, that the sentence imposed is manifestly inadequate. That is a conclusion that does not depend on the attribution of identified specific error, and, as is frequently the case, does not admit of much amplification.[15] We are persuaded that the sentence imposed reveals ‘such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle’.[16] Weighing those matters going in mitigation against the nature of the offending — including its devastating consequences for the respondent’s victim — we have been driven to conclude that the sentence imposed reflects that there must have been some misapplication of principle.[17] In our opinion, the gravity of the offending, the moral culpability of the respondent and the devastating nature of the injuries received by the victim, are such that, it is clear that the sentence imposed is wholly outside the available range.
[15]Dinsdale v The Queen (2000) 202 CLR 321, 325 [6] (Gleeson CJ and Hayne J) (‘Dinsdale’).
[16]R v Clarke [1996] 2 VR 520, 522 (Charles JA).
[17]Pham v The Queen (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ).
Both of the offences are serious examples of the relevant offence. The respondent’s moral culpability was high. And the objective gravity of his offending was very high. He went to the York Street premises with a loaded sawn-off shotgun, which was both easily concealable and highly dangerous. Although the elements of the crime of home invasion include entry in the company of others whilst armed with a firearm, and intending to commit an offence involving an assault to a person in the home, the fact that the firearm was loaded indicates that the respondent contemplated terrorising those present; the use of extreme violence; and the imposition of very severe injury to the occupants. Indeed, having invaded the premises, not only did he terrorise Mr Veenings — who was a completely innocent bystander — by holding the shotgun to his head, but he fired it into Mr Veenings’ knee, causing terrible injuries. So much was a gratuitous, spiteful and cruel act of violence, which, as we have said, caused Mr Veenings to suffer very severe, life-changing injuries. And as the judge remarked, the respondent had had the opportunity to ‘pause, consider and desist’ before he did so. It was a very serious example of the offence of intentionally causing serious injury.
Paying due regard to the respondent’s troubled upbringing; the delay in the case resolving; the plea of guilty (with the additional Worboyes considerations); and the respondent’s impairments; the sentences imposed for both the charge of home invasion and the charge of intentionally causing serious injury are both clearly and egregiously inadequate. The cumulation ordered between the sentence on each charge is also manifestly inadequate.

For these reasons, the appeal must be allowed.
In lieu of the sentence first imposed, we sentence the respondent to seven years’ imprisonment on the charge of home invasion (charge 1), and to 10 years’ imprisonment on the charge of intentionally causing serious injury (charge 2). We would order that 18 months of the sentence on charge 1 be served cumulatively with the sentence on charge 2, leading to a total effective sentence of 11 years and six months’ imprisonment, upon which we would fix a non-parole period of nine years (that period representing the minimum period that justice requires the respondent ought serve before being considered eligible for conditional release).
Pursuant to s 6AAA of the Sentencing Act 1991, we would declare that, but for the pleas of guilty, we would have imposed a total effective sentence of 14 years’ imprisonment, with a non-parole period of 11 years.
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[2023] VSCA 95

27 April 2023