Doherty v The Queen
[2017] VSCA 215
•25 August 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0254
| SEAN DOHERTY | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH, McLEISH and COGHLAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 August 2017 |
| DATE OF JUDGMENT: | 25 August 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 215 |
| JUDGMENT APPEALED FROM: | [2016] VCC 1749 (Judge Smallwood) |
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CRIMINAL LAW – Appeal – Sentence – Burglary, making threat to kill, common assault and criminal damage – Forgiveness – Relevance of forgiveness by complainant – Whether sentencing judge erred in treatment of issue of forgiveness – No relevant error in judge’s treatment of issue of forgiveness - Offending objectively serious – Whether sentence of 3 years’ imprisonment for burglary manifestly excessive – Whether total effective sentence of 4 years and 3 months’ imprisonment manifestly excessive – Sentences not manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J E McLoughlin | Victoria Legal Aid |
| For the Crown | Mr B L Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
BEACH JA
McLEISH JA
COGHLAN JA:
On 17 November 2016, the appellant pleaded guilty in the County Court to one charge of burglary, one charge of making a threat to kill, one charge of common assault and one charge of criminal damage. Following a plea hearing, on 18 November 2016, the appellant was sentenced as follows:[1]
[1]DPP v Doherty [2016] VCC 1749 (‘Reasons’).
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Burglary | 10 years | 3 years | Base |
| 2 | Making a threat to kill | 10 years | 2 years | 12 months |
| 3 | Common assault | 5 years | 1 year | 3 months |
| 4 | Criminal damage | 10 years | 1 month | - |
| Total Effective Sentence: | 4 years and 3 months’ imprisonment | |||
| Non-Parole Period: | 2 years and 9 months’ imprisonment | |||
| Pre-sentence Detention Declared: | Nil | |||
| 6AAA Statement | TES of 6 years and 6 months’ imprisonment with a NPP of 4 years and 6 months. | |||
| Other orders | Disposal and forensic sample orders | |||
On 2 March 2017, the appellant was granted leave to appeal[2] on the following grounds:
[2]Doherty v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 2 March 2017) (‘Leave Reasons’).
1.The learned sentencing judge erred in his finding concerning the relevance of forgiveness of the appellant by the complainant.
2.The sentence imposed on charge 1 and the total effective sentence are manifestly excessive having regard to the following:
(a) the early plea of guilty;
(b) the appellant’s remorse;
(c)the background of the appellant’s physical injuries and mental health issues;
(d)the fact that the appellant at the age of 46[3] had never previously been imprisoned and the finding that imprisonment would be more onerous for him;
(e)the complainant’s forgiveness of, and support for, the appellant;
(f)the appellant’s minimal criminal history, his good prior character and his prospects for rehabilitation;
(g)the maximum penalty and current sentencing practice for the offence of burglary.
[3]The appellant was in fact 45 at the time of sentencing, having been born on 12 January 1971.
Circumstances of the offending
The appellant and the complainant were married for many years before separating in October 2015.
Shortly after 10:00 pm on 8 December 2015 the complainant arrived home, unlocked the front door and went inside her home. She went to her bedroom to get changed and go to bed when she heard a male voice say ‘oi’. The complainant turned to find the appellant standing behind her bedroom door, dressed in black clothing with a dark covering on his head and holding a 20 cm bread knife in his hand [charge 1 — burglary].
The appellant rushed at the complainant, yelling ‘I’m going to fucking kill you, you bitch’, as he grabbed her, threw her face down on the bed and held her down. The appellant put his hand over the complainant’s mouth to stop her screaming and then pulled her hair, lifting her head up to show her the knife. The appellant held the knife near the complainant’s throat and said ‘I fucking hate you, you slut, I’m going to kill you’ [charge 2 — threat to kill]. During the course of these events, the appellant sat on the complainant’s back so she could not move. The appellant also pulled the complainant’s mouth open, before pushing her face into the mattress and holding her down again.
The appellant then got up and directed the complainant to follow him to the kitchen. The complainant tried to run but was thrown to the floor by the appellant [charge 3 — common assault]. The complainant then managed to get back inside the bedroom and barricade herself in to prevent further assault until taking the opportunity to flee the house and run across the road, hiding while the appellant remained at her house.
Subsequently, as the complainant walked back towards her house, the appellant reappeared and smashed the complainant’s mobile phone on the concrete [charge 4 — criminal damage]. The appellant took the complainant’s keys with him as he left the premises.
When she returned inside the house, the complainant found a number of items that had been left behind by the appellant, namely, two dressing gown ties, two arm slings, and a gag hidden behind the couch in the lounge room, and a cricket bat and knife that had been left in the complainant’s bedroom.
In her original statement, the plaintiff described the appellant’s offending and her reaction to it in the following terms:
I was surprised when I saw him but I knew it was Sean. I smiled at him and said to him 'What are you doing?' He then rushed at me and yelled 'I'm going to fucking kill you, you bitch'. He sounded so angry. It was so horrible and scary. He grabbed me, threw me on my bed and held me down and sat on my back. He put his hand over my mouth to stop me from screaming. He shoved his hands in my mouth and I thought I was going to pass out or die. I thought he was going to rape me. All I had on was a singlet top, a jacket and my knickers. He pulled me by my hair and lifted my head up and showed me the knife. He held it near my throat and said 'I fucking hate you, you slut. I'm going to kill you'. He was sitting on my back so I couldn't move. I really thought I was going to die. He pulled my mouth open and then pushed my face into the mattress and held me down. Sean kept accusing me of having an affair.
The day after the offending, 9 December 2015, the appellant went to the complainant’s house and returned keys he had taken the previous night. As she drove to work, the complainant noticed the appellant following her. The appellant then walked into the complainant’s workplace and yelled ‘so you went to the police did ya, ya fucking dog’. Later that day the complainant attended the Camperdown Police Station to report the incident after speaking to a work colleague and her daughter. At the complainant’s address police seized a bag containing dressing gown ties, slings, a gag and 3 DVDs.
On 11 December the appellant attended the Camperdown Police Station and participated in a taped record of interview. During the record of interview, the appellant:
(a)said he entered the house and padlocked the back door ‘so she has to come around the front and I could have fun with her’;
(b)said he took 2 Carl Baron DVDs for a bit of a laugh; ‘the Scriptures, because I struggle with the actual part of vengeance. Because vengeance is God’; and dressing gown cords to tie the complainant up with.
(c)said he had a knife which he dropped. ‘That was a part of the fright scare’;
(d) admitted that he smashed the complainant’s mobile phone;
(e)falsely claimed the complainant was having an affair with a man who was also in the house at the time of the offending but fled through a window; and
(f) denied threatening to kill the complainant.
Appellant’s background
At the time of the offending, the appellant was aged 44. He was 45 at the time of sentencing. The appellant and the complainant married in 1994, but had separated. At the time of the appellant’s offending, the appellant and the complainant had three adult children and two grandchildren.
Up until 2010, the appellant had a long history of semi-skilled and labouring work. In 2010, he suffered a back injury in the course of his employment as a tyre fitter. The back injury caused the appellant to suffer from chronic pain. In 2013, the appellant underwent back surgery. Following his surgery he retrained as a disability support worker. In early 2015, he stopped working because of his back problems.
The appellant suffered from depression, which was first diagnosed in 2004 following the death of his mother. In June 2015, a WorkCover psychiatrist (Dr Entwisle) assessed the appellant as suffering from a major depressive illness that was then in partial remission. On 8 November 2016, a forensic psychologist (Ms Pamela Matthews) diagnosed the appellant as exhibiting mild features of Autism Spectrum Disorder and a longstanding major depressive disorder with anxiety.
The appellant had a limited criminal history, with convictions from two court appearances in 1991 and 1992 for possessing, using and trafficking drugs of dependence, and convictions from one court appearance in 2004 for careless driving and exceeding the prescribed blood alcohol level within 3 hours of driving. While the judge noted the existence of these prior convictions, he determined them to be ‘of no significance’ in the sentencing process.[4]
[4]Reasons [3].
The plea hearing
At the commencement of the plea hearing, the appellant was arraigned, pleaded guilty and admitted his prior convictions. The prosecutor then tendered the prosecution opening and then read it aloud. At the conclusion of the opening, the prosecutor told the judge that there was a victim impact statement but that the complainant did not want to rely on it anymore so, as the prosecutor put it, ‘there’s no victim impact statement’.
In the course of making submissions on the plea, the prosecutor conceded that the appellant suffered from a longstanding depressive illness. The prosecutor, however, said that the Crown did not accept that the appellant’s condition reduced the moral culpability of his offending.
At the conclusion of the prosecutor’s opening and submissions, the following exchange occurred between the prosecutor and the judge:
PROSECUTOR: Your Honour, there is an attitude of forgiveness on behalf of [the complainant], but your Honour would be well aware of the authorities of how that’s to be treated by the Court.
HIS HONOUR: Yes, it goes to rehabilitation rather than - - -
PROSECUTOR: Yes. So your Honour, those are the submissions.
Counsel for the appellant then commenced her plea for the appellant. On the plea, counsel for the appellant tendered reports from Ms Matthews, Dr Entwisle and another psychiatrist, Dr Ratnayake. The appellant’s back and psychiatric conditions were referred to as matters to be taken into account in mitigation of sentence. It was said that the appellant had acted under ‘a cloud of depression and jealousy’. The complainant was described as being in court on the plea to support the appellant. The judge was told that an intervention order (made subsequent to the offending) had been varied such that the complainant and the appellant saw each other regularly in the context of meeting with their children and caring for their grandchildren.
During the course of the plea, the judge referred to the seriousness of the appellant’s conduct in holding a knife near the complainant’s throat. Counsel for the appellant on the plea accepted the objective seriousness of that conduct. Counsel for the appellant emphasised that the appellant had apologised, saying ‘that’s important’.
During the course of the appellant’s counsel’s submissions, the judge raised the issue of forgiveness in the following exchange:
HIS HONOUR: - - - the legal principles regarding forgiveness. It goes towards potential rehabilitation, I accept that, but these things don’t get decided by mutual agreement [indistinct], because in the sentencing process — the real problem here is that here is somebody who, in my view, insofar as the charge of burglary is concerned, has committed it with the intention to assault, and a very, very ugly intention to assault. The threat to kill is an absolute shocker. Knife at the throat, you know, not just an angry threat, but ‘I’m going to do it, here it is, and here’s the knife’, she must have thought she was about to die.
COUNSEL:Conceded.
Nothing further was said by the appellant’s counsel on the plea about the issue of forgiveness, the relevance of the complainant’s forgiveness or any other use (additional to the issue of rehabilitation) that might be made of the complainant’s forgiveness by the sentencing judge.
Reasons for sentence
The judge commenced his reasons for sentence by observing that the appellant had pleaded guilty ‘at a reasonably early opportunity and made admissions to some of the offending’.[5] The judge accepted that ‘to a level there [was] a degree of remorse involved in all this’, and then said that the appellant was entitled to the utilitarian benefit of his plea of guilty.[6]
[5]Ibid [2].
[6]Ibid.
The judge described the appellant’s offending in some detail.[7] The judge said that the circumstances of the offending were ‘serious indeed’, although he accepted that the appellant had suffered for some time from depression and that the appellant had ‘some difficulties with, what is described as, autism’.[8]
[7]Ibid [6]–[11].
[8]Ibid [5].
As to the seriousness of the offending, the judge said:
It seems to me that there have been no proper understanding of just how serious this is, from your point of view. You are not charged with aggravated burglary. That would give rise to the maximum penalty of 25 years. It seems to me that to go into a house equipped as you were, clearly to tie her up, to seriously assault her, and then hid and waited for her to return, is far more culpable than if you simply went in, believing of being reckless as to whether someone was there. This, in my view, is a very serious example of burglary.
You are to be sentenced for the intent, and bearing in mind the items of bondage, if I can use that expression, that you have taken with you, that intent was evil indeed. The threat to kill is, in my view, at the highest end of threats to kill. To hold a defenceless woman down, put a knife near her throat and say ‘I'm going to fucking kill you, you slut’, to the point where she believes that you are going to, and would clearly have believed you were going to, is, as I said, a very serious example.
The common law assault relates to her trying to escape from being assaulted. The criminal damage, in a situation such as this, pales into insignificance.[9]
[9]Ibid [13]–[15].
As to the question of forgiveness, the judge said:
I am told from the Bar table that there has been some sort of, at least, amicability returned to the circumstances between you and your wife. The doctrine of law relating to forgiveness is that I simply take it into account insofar as the prospects of a future rehabilitation are concerned. There is no evidence before me in respect of that and I simply take it at face value, what the learned [counsel] told me that she had been told.
The difficulty with forgiveness in circumstances such as this, and the accused getting a benefit from that forgiveness, is that in my view it has a tendency to legitimise the conduct of the perpetrator. In any event, I take it into account in the way that I have indicated. This is serious offending indeed. It calls for the application of general deterrence and, in my view, specific deterrence, as well as denunciation and appropriate punishment. A submission was made that a Community Corrections Order would be appropriate, and I had you assessed, making it clear that that was not to be taken as an indication.[10]
[10]Ibid [16]–[17].
The judge described the applicant’s background and discussed the reports of Dr Ratnayake, Dr Entwisle and Ms Matthews that had been tendered on the plea.[11] The judge described as ‘laudable’ the situation described by Ms Matthews, whereby the relationship between the appellant and the complainant was, at the time of sentencing, ‘closer than we’ve ever been’, involving the appellant and the complainant seeing each other daily and talking about their children and grandchildren.[12]
[11]Ibid [20]–[37].
[12]Ibid [28].
In the course of discussing the reports, the judge referred to Ms Matthews’ opinion that the appellant ‘presented overall with a mild to moderate generalised risk of reoffending in a similar context of acute psycho-social stress’, and her opinion that there were ‘no current specific risks to past partners’.[13]
[13]Ibid [30].
The judge concluded his reasons for sentence as follows:
The prospects of your rehabilitation, I think, in the end are going to have to be up to you. Very little has been done about it since all this offending occurred, and as I have said, I, in a situation such as this, have a real concern that the acquiescence at least, or forgiveness, if that is what it would be fairly called, of the victim of such offending has a tendency to legitimise it and reduce in the mind of people the seriousness of this sort of conduct. The community will not tolerate this sort of violence towards women or any family members, and most certainly not at this level.
The risk of you reoffending has been determined by her as being moderate, in circumstances where there has been no protective matters put in place. Her view is that under [pyscho-social] stress it could happen again. They are all matters that I have to take into account.
I have to endeavour in this situation to take the view that ultimately there is no reason why you could not be effectively rehabilitated but the fact of the matter is that here you fall to be sentenced for what, in my view, are very serious examples of burglary and threat to kill. The assault is not in the same order, and as I have said, the criminal damage pales into insignificance. But in any event, you must receive a very significant sentence and you will.[14]
[14]Ibid [36]–[38].
Appellant’s submissions
With respect to ground 1, the appellant submitted that the judge erred in ‘finding that forgiveness by the complainant was only relevant to the applicant’s future prospects of rehabilitation’. The appellant submitted that forgiveness was also relevant to the issue of the impact of the offence on the complainant and to the issue of whether the appellant’s behaviour had been out of character.
The appellant contended that the fact that the complainant had forgiven him, and had achieved a degree of reconciliation with him, was ‘strong evidence’ that the offending behaviour was out of character. This was said to be relevant to the seriousness of the offence (as an isolated act), the weight to be given to the appellant’s previous good conduct and to the unlikelihood that the appellant would behave in a similar way in the future. The appellant also submitted that forgiveness and reconciliation constituted strong evidence that the offending had not caused the complainant ongoing trauma and that, as a result, the seriousness of the offending was diminished.
With respect to ground 2, the appellant submitted that the sentence imposed on charge 1 and the total effective sentence were both manifestly excessive having regard to his early plea of guilty, his remorse, the background of his physical injuries and mental health issues, the fact that he had never previously been imprisoned and that imprisonment would be more onerous for him, the complainant’s forgiveness and support for him, his minimal criminal history, his good prior character and prospects for rehabilitation, and the maximum penalty and current sentencing practices for the offence of burglary.
Under the cover of ground 2, the appellant also submitted that the sentence on the burglary charge was inconsistent with current sentencing practices when one had regard to published sentencing statistics for the offence of burglary, and also when one had regard to the sentences imposed in two cases of aggravated burglary (where the maximum penalty is 25 years’ imprisonment), DPP v Meyers[15] (a sentence of 3 years and 6 months) and DPP v Bowden[16] (a sentence of 4 years). In particular, only two of 42 people who received a principal sentence of imprisonment for burglary between 2011–15 in the higher courts received a sentence of 3 years or more.
[15](2014) 44 VR 486 (‘Meyers’).
[16][2016] VSCA 283 (‘Bowden’).
Respondent’s submissions
With respect to ground 1, the respondent submitted in its written case that there was no error in the judge’s approach to the issue of forgiveness. In oral argument, however, the respondent conceded that, taken alone, the statement in the judge’s reasons that ‘The doctrine of law relating to forgiveness is that I simply take it into account insofar as the prospects of future rehabilitation are concerned’[17] is wrong. The respondent accepted that forgiveness by a victim was also relevant to the issue of the impact (or continuing impact) of the offending on the victim.[18]
[17]Reasons [16].
[18]See R v Skura [2004] VSCA 53 [48] (‘Skura’).
The respondent pointed to statements in the authorities about the caution with which evidence of forgiveness by a victim of domestic violence should be treated[19] and submitted that a similarly cautious approach should be adopted in this case.
[19]See R v Sa [2004] VSCA 182 [39] (‘Sa’); R v Hester [2007] VSCA 298 [27] (‘Hester’).
Next, the respondent noted that, on the plea, no issue was taken by counsel with the judge’s statement that forgiveness was only relevant to rehabilitation. Moreover, no submission was made on the plea that the complainant’s forgiveness meant that the impact of the offending on the complainant was not as great as it might otherwise have been. That said, the respondent submitted that the plea was conducted on the basis that the complainant had withdrawn her victim impact statement, had regular contact with the appellant and supported him in court on the plea. The respondent contended that these facts, to which partial reference was made by the judge in his reasons for sentence,[20] showed that the appellant had been sentenced on the basis that there was no relevant ongoing effect of the offending on the complainant. More particularly, and remembering that no submission was made on this issue by the appellant’s counsel on the plea, nothing in the reasons for sentence suggested that the appellant was sentenced on the basis of some ongoing effect of the offending on the complainant.
[20]Reasons [28], [36].
Finally, on ground 1, the respondent submitted that even if the judge was found to have taken too limited an approach to forgiveness, no different sentence should now be passed.
With respect to ground 2, the respondent submitted that neither the sentence imposed on charge 1, nor the total effective sentence, were excessive. This was serious offending, and a serious example of the offence of burglary. The respondent submitted that the three year sentence imposed on the burglary charge was, although high for the offence of burglary, within the range available. Similarly, the sentences, orders for cumulation on the other charges, and total effective sentence were also submitted to be within the permissible range.
Ground 1: the issue of forgiveness
The appellant contends that the judge erred in finding that forgiveness by the complainant was only relevant to the appellant’s future prospects of rehabilitation. This submission must be rejected.
While in a given case forgiveness by a victim may be relevant to more than merely the issue of rehabilitation,[21] in the present case no such submission was made to the sentencing judge. Indeed, as we have already noted, the appellant’s counsel on the plea made no submissions contrary to the judge’s statement that the complainant’s forgiveness was only relevant to the issue of rehabilitation. It is also of significance that there was no evidence tendered or led before the judge that the complainant’s forgiveness demonstrated that there had been a reduction in the actual impact of the appellant’s offending on the complainant, or that the complainant’s forgiveness otherwise made the offending less serious. Indeed, as Priest JA noted in his reasons for granting leave, the evidence of forgiveness itself, on the plea, was ‘very thin’.[22] All of these matters bear on the question of what one might reasonably expect a sentencing judge to say in his or her reasons for sentence.
[21]Cf Skura [2004] VSCA 53 [48].
[22]Leave Reasons [10].
After the appellant obtained leave to appeal, the appellant filed an affidavit from his solicitor exhibiting a statement and a statutory declaration from the complainant and deposing to a conversation between the solicitor and the complainant. The affidavit contained evidence of a detailed and substantial nature about the complainant’s forgiveness of the respondent and the relationship between the appellant and the complainant following the appellant’s offending. The appellant also filed an affidavit from counsel who appeared for him on the plea. In that affidavit, the appellant’s plea counsel sought to explain why she did not call the complainant to give evidence on the plea. Immediately it must be said that the affidavits filed by the appellant did not contain anything relevant that could be described as new evidence or fresh evidence as those terms are understood in the authorities.[23]
[23]Cf R v Nguyen [2006] VSCA 184 [36]–[37]; Kilic v The Queen [2015] VSCA 331 [22]; Marsh v The Queen [2011] VSCA 6 [24], [25], [31].
More importantly, the affidavits filed by the appellant do not alter the conclusion we have reached in respect of ground 1. A fair reading of the judge’s reasons for sentence discloses that the judge sentenced the appellant on the basis that there had been a ‘laudable’ coming together of the appellant and the complainant.[24] An acceptance of that fact required a conclusion that there was no ongoing effect of the appellant’s offending on the complainant. The affidavits filed by the appellant were relevantly to the same effect (i.e. no ongoing effect of the appellant’s offending on the complainant after she forgave him).
[24]Reasons [28].
While the judge may have been wrong to express, in absolute terms, the proposition that forgiveness could only be taken into account in respect of rehabilitation,[25] a full reading of the judge’s reasons for sentence discloses that no ongoing effect (or effect at the time of sentencing) of the appellant’s offending was taken into account in the sentencing synthesis. The judge’s failure to make an express statement to that effect has to be seen in the light of the fact that no submissions were made to him about that topic during the course of the plea hearing.
[25]Ibid [16].
It follows that, in the context of the way in which the plea was conducted before the judge, the judge’s reasons do not disclose the error for which the appellant now contends.
Ground 2: manifest excess
As has been said many times before, manifest excess is a difficult ground to establish.[26] The test for manifest excess is whether the sentence imposed was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[27]
[26]See most recently DPP (Cth) v Brown [2017] VSCA 162 [55].
[27]R v Abbott (2007) 170 A Crim R 306.
The appellant’s offending in this case was properly to be regarded as very serious. In careful and appropriately detailed reasons, the judge took into account all of the matters in mitigation of sentence that were urged upon him. Those matters, however, had to be weighed in the light of the very serious nature of the appellant’s offending. As this Court has made plain on numerous occasions, domestic violence and offences which involve lying in wait for someone in their home armed with a weapon will not be tolerated. In such cases, both general and specific deterrence are of considerable importance.
It is not to the point to say that the appellant was not charged with aggravated burglary and yet he received a sentence of the same order as those imposed for some aggravated burglaries. As the judge rightly observed, the facts of the appellant’s offending were objectively very serious. There is nothing in the sentencing statistics relied upon by the appellant, or in the cases of Meyers and Bowden, which supports the appellant’s contentions that the sentence imposed for burglary, or the total effective sentence, was not in accordance with current sentencing practices.
The appellant lay in wait for his victim, in her home, dressed in dark clothing and holding a 20 centimetre knife. The offending involved a terrifying threat to kill. At the time of his offending, the appellant was also armed with dressing gown ties, arm slings and a gag. The serious nature of this offending simply cannot be gainsaid. Giving due weight to all of the matters relied upon by the appellant in mitigation, it cannot be concluded that a sentence of three years for the burglary committed by the appellant or the total effective sentence imposed by the judge was excessive.
Conclusion
The appeal must be dismissed.
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