DPP v Bickley
[2005] VSCA 103
•19 April 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 38 of 2005
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| IAN MILTON BICKLEY |
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JUDGES: | WARREN, C.J., WINNEKE, P. and BUCHANAN, J.A. | |
WHERE HELD: | MILDURA | |
DATE OF HEARING: | 18 April 2005 | |
DATE OF JUDGMENT: | 19 April 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 103 | |
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Criminal law - D.P.P. appeal against sentence imposed by County Court - Assault by husband upon wife after the pair had separated - Principles of sentencing applied by judge failing to reflect gravity of offending - Sentences set aside.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. with Mr D.A. Brown | Solicitor for Public Prosecutions |
| For the Respondent | Mr P.F. Tehan, Q.C. with Ms K.E. Judd |
WARREN, C.J.:
I invite the learned President to state his reasons for judgment.
WINNEKE, P.:
The respondent, Ian Bickley, who is now 55 years of age, pleaded guilty in the County Court at Bairnsdale on 25 January of this year to one count of false imprisonment and one count of recklessly causing injury. Each offence was committed against his wife. The offence of false imprisonment carries a maximum penalty of ten years' imprisonment and recklessly causing injury carries a maximum of five years' imprisonment.
The victim of each of the offences was, as I have said, the respondent's wife of twenty years and the mother of his four children. The respondent and his wife had always resided in Gippsland and for many years had lived on 300 acres at Yinnar which was run as both a hostel and camp for charitable and school purposes. The marriage apparently started to fall apart in about 1999, when the respondent's wife wished to further her education and thus absent herself from the camp at which she had previously worked. This apparently irked the respondent because he was left to run the business on his own, and ultimately, late in 1999, the relationship between them apparently broke down, resulting in the wife leaving the matrimonial home with the children, first moving to alternative accommodation on the camp site and then to a house in Churchill, also in Gippsland.
It would seem that in the ensuing three years the respondent and his wife managed to keep things reasonably well together for the sake of the children, but the respondent put an end to that on 8 February 2003, when he committed the offences for which he stood for sentence. It will be necessary for me to briefly summarise the facts of that day.
It appears that on 8 February, which was a Saturday, the respondent purchased an electric cattle prod in the township of Yinnar and installed in it six new batteries. Between 4.30 and 5.30 on the day, he contacted his wife by telephone and told her that he had found some old photograph albums and other property which he would like her to collect. He asked that she attend alone, as he wished to speak to her about some family matters and did not want the children there. The victim drove to the respondent's property at about six o'clock and parked her car out the front. Soon after, the respondent's car drew alongside her, he having explained that he had gone out to drop off some pamphlets. They walked up to the house and went into the laundry, where the respondent showed her some photograph albums which were on the laundry floor. The victim said she wanted to check some other boxes which she had earlier packed but had never picked up. She walked through the house to the front room, which was used as an office, and upon entering that room she saw that the boxes packed by her had been opened. She then asked the respondent why that was so and he said he had been going through them. She was annoyed and told the respondent that she was then going to have to repack them.
She was leaning over the boxes with her back to the respondent, when he reached over her from behind and wrapped a grey electrical cord around her neck. He pulled that cord tight and proceeded to choke her. They struggled, and the victim managed to push the cord off her neck and on to her face, repeatedly screaming, "Let me go." He then told her to sit down and shut up because he wanted to talk to her, otherwise he was going to "top himself". It seems that they fell to the ground, the wife was on her stomach, the respondent sitting on her back, and the cord around her neck. She managed to get the cord from around her neck and kept a tight hold of it. However, while she lay on her stomach, the respondent wrapped another cord around her neck and the struggling continued, with the respondent holding her down by sitting astride her on his knees, and then putting one knee on to her back. Again, she managed to get the second cord from her neck. She rolled over in an endeavour to push him off, and the respondent stood up and then waved a screwdriver in front of her and said, "If you don't shut up I'm going to hurt both of us." The screwdriver had a large red handle and the shaft was some nine to twelve inches long. He told her that he wanted to talk to her, as he was going out that night to "top himself". The respondent stood in the doorway with the screwdriver, while his wife pleaded with him to let her go. He refused to let her pass and every time she tried to move past he waved the screwdriver in her face. The respondent told her to sit down because he wanted to talk to her. She eventually convinced him that she needed to get out of the room and that she would talk to him outside.
They walked to the laundry, where the respondent picked up the electric cattle prod. She went to pick up the photograph albums from the laundry floor, but the respondent then told her she was not allowed to take them. She tried to go out the back door, but the respondent put his foot in front of that to stop her from opening it, and each time she tried to go out the respondent applied the cattle prod to either her stomach or her arm. She begged and pleaded with the respondent, telling him that she needed to get out and get some fresh air. The respondent told her she could not go out the back door but she could go out on to the verandah on the other side of the house. She told him that she was going nowhere with him behind her, and she would follow him instead. Walking in front, the respondent went on a sideways angle with the cattle prod pointing at his wife. Once on the verandah, the wife tried to leave and the respondent told her to sit down, threatening her with the cattle prod.
Eventually, the respondent let her back into the house and a further stand-off occurred in the laundry near the back door. On this occasion she managed to open the back door and immediately ran to the car, stepped into the driver's seat and was about to close the door, when the respondent prevented her by stepping in the way. The respondent told her to move over, as he wanted to get into the car, but she refused him entrance. The respondent would not let her leave and she repeatedly told him that she wanted to go home. He asked her for a cigarette and she took one from the packet and threw it from the car and then threw the whole packet out the window. Eventually the respondent did step back, allowing the wife the opportunity to close the car door and to lock it. She reversed the car out and drove to a neighbouring homestead, asking the neighbours to call the police.
The respondent was later contacted by police and attended at the Morwell police station that night. An interview was conducted with him by the police and concluded early in the next morning. The respondent's account of the incident was recorded. In the course of the interview he stated that his wife had arrived at his home at 6.30 p.m. and that she had gone "crook" at him for opening some of the boxes. He stated there was a scuffle, in which he tried to restrain her, but she was trying to kick him in the groin. He denied trying to imprison her in any way. He stated that at one stage she had picked up the screwdriver and he had had to remove that from her. The respondent denied having a grey cord or wrapping any such cord around his wife's neck, and he denied ever owning a cattle prod. His account was accordingly self-serving and, as he was later to concede, quite false.
The wife was later examined by a doctor the following afternoon and he found her to be distressed and crying and barely able to walk. He examined her, finding a number of injuries, which were not life-threatening but nevertheless consistent with the allegations that she had made.
It is apparent from the statement of the facts that the respondent was either deliberately mis-stating the circumstances of the day to the police or was in a state of denial. Either way, he was displaying little remorse. Although he was at the time of these events a man of 53 years and of an almost entirely unstained character, it is nevertheless pertinent to note that the breakdown of the marriage appears to have pushed the respondent over the edge.
Later in the same year, namely 2003, he was arrested by police and accused of serious offending, again involving his wife, for which he was later charged and retained in custody, where apparently he still remains. Those bare facts were known to the judge in this case but regarded by him as irrelevant for sentencing purposes on the counts that I have described. This Court will also ignore the latter alleged offending in considering the issues before it.
On 25 January of this year, the judge sentenced the respondent to four months' imprisonment on each of counts 1 and 2. He ordered that two months of the sentence on count 2 be cumulated on the sentence on count 1, thus making a total effective sentence of six months. His Honour directed that the whole of that sentence be suspended for a period of 12 months. He took the view that the respondent's plea of guilty at the committal proceedings was "indicative of remorse" and acceptance by the respondent of responsibility for his conduct. His Honour went on:
"You are in my view in the category of an older person who has led an exemplary life to this point of time and for whom this offence was out of character. I accept that these offences were committed at a time when you were in an agitated and irrational state of mind. I do not agree with the proposition advanced by the learned prosecutor that these were premeditated acts. Rather, in my view, they arose in the context of mental distress associated with the dynamics of family breakdown and with suicidal thoughts."
I simply note that it is of relevance to see that no psychiatric or psychological reports were put before the sentencing judge.
The Director has appealed to this Court on the ground that the sentences imposed below are manifestly inadequate, inter alia, because they fail to reflect the gravity of the offending and, by treating it as, essentially, a "domestic dispute", the judge has failed adequately to incorporate the sentencing principles of general deterrence and specific deterrence in his ultimate disposition. This, it was put by the Director, was a very bad example of the type of crime which is all too prevalent in our society, and the sentences send entirely the wrong message to those partners in a domestic relationship who believe in resort to violent behaviour as a means of resolving differences in that relationship. In almost every dispute the partner who offends is likely to concede that he or she had lost normal control.
Mr Tehan, who appeared with Ms Judd for the respondent, submitted that, when placed in their context, and particularly in the context of the personal circumstances of the respondent at the time, the sentences cannot be described as manifestly inadequate. The judge, he submitted, was entitled to conclude that these crimes were the product of an agitated and irrational mind, attended as they were with suicidal ideation and an inability by the respondent to cope with the loss of his marriage and family. Mr Tehan reminded the Court of the principles which govern these types of appeals, a significant one of which is that a Crown appeal should not be allowed to become a means of unduly circumscribing the discretion of sentencing judges. He referred to R. v. Osenkowski[1]. He further reminded the Court of the principles relating to the aspect of double jeopardy.
[1](1982) 30 S.A.S.R. 212 at 212-213.
Even bearing in mind the principles which bear upon prosecution appeals and to which Mr Tehan and Ms Judd have referred, I am of the view that these sentences which the judge imposed, and particularly their final expression in total suspension, seriously under-estimate the gravity of this offending. It is true that the respondent was a man who at the time of the offending was of otherwise good character, which was a factor that he was entitled to have taken into account in his favour; but it also points up the fact that crimes of domestic violence are not necessarily the product of acquired behavioural traits, nor are they confined to any designated socio-economic group in our society. The judge concluded that these offences were committed whilst the respondent was in an agitated and irrational state of mind, and that accordingly it was in his view inaccurate to describe the offences as premeditated. Rather, his Honour took the view that the offences "arose in the context of mental distress associated with dynamics of family breakdown". In this respect it seems to me that his Honour had led himself into error. The mere fact that a partner to a marriage believes that he has been unjustly treated by the other party, to the point where the former becomes depressed and irrational, cannot mean that his actions are necessarily unpremeditated. The facts of this case reveal that the respondent on the day of this assault had purchased a cattle prod and had lured his wife to his premises by inviting her over to the house on a pretext which was calculated to ensure that she was unaccompanied by any of the children.
Mr Tehan contended that the judge was entitled to conclude as he had and that in any event the Director had not included any specific ground in his appeal that the judge had erred in respect of this finding. To that argument I would simply say that, although the Director might not have raised the matter explicitly, the appeal was grounded on the basis that the sentences were manifestly inadequate, and in aid of that, both before the sentencing judge and in this Court, the Director had argued that the gravity of the offending had to be measured against the fact that the respondent had lured his estranged wife to his home on a pretext, having purchased the cattle prod on the same day. I have difficulty, therefore, in construing this offending in the way in which the judge saw it and in the way in which Mr Tehan would have this Court see it, namely, as "an emotional and psychological explosion", which was in part contributed to by the victim's expressed annoyance, to the point of swearing, because the respondent had opened the packages that she had come to his home to retrieve.
Furthermore, it was argued on behalf of the respondent that these wee not serious examples of the offences of false imprisonment and reckless injury. It was put that the victim was only detained against her will for a very short period of time, and the injuries inflicted upon her were not, in their result, serious injuries. Again, in my view, this under-estimates the gravity of the respondent's offending, which involved, as I see it, prolonged detention of the victim against her will in the house, the twice putting of a cord around her neck with the apparent purpose of strangling her, kneeling on her back as he sought to restrain her, and finally, and for good measure, prodding her with the electrically charged cattle prod, which no doubt was both harmful and humiliating. The fact that all of those actions were denied by the respondent to the police in his interview with them demonstrate, as I have already said, little remorse, at least at that time.
Mr Tehan took us through a chronology of the respondent's psychological breakdown following the commission of these offences, and more particularly in the latter part of 2003. Although no specific professional advice of a psychological or psychiatric nature was given to his Honour, there was material upon which it was open, I think, for him to find that at least in the latter part of 2003 the respondent's behaviour was bizarre and driven by some form of obsessive-compulsive attitude related to the breakdown of the marriage. Notwithstanding Mr Tehan's submission that it was open to the judge to relate that material back to the events which were observed in February 2003, I cannot accept the judge's view that the respondent's conduct towards his wife was not planned but simply the product of mental aberration.
I agree with the Director's submissions that the sentences imposed by the judge have seriously under-estimated the criminality of the offending and are therefore manifest inadequate. I would allow the appeal and set aside the sentences imposed by his Honour. Mindful of the concept of double jeopardy in the task of re-sentencing, I would substitute the following sentences for those which his Honour imposed: on count 1, false imprisonment - 12 months' imprisonment; on count 2, reckless injury - 6 months' imprisonment. I would cumulate three months of the sentence imposed on count 2 on the sentence imposed on count 1, resulting in a total effective sentence of 15 months' imprisonment. I would order that the respondent serve nine months before becoming eligible for parole. I will leave it to counsel to advise the Court of the number of days which have to be declared pursuant to s.18 of the Sentencing Act, and, if requested, I would agree that the Court should give a certificate under the Appeal Costs Act on behalf of the respondent.
WARREN, C.J.:
I agree with the reasons of the learned President.
BUCHANAN, J.A.:
I also agree.
(Discussion ensued.)
WARREN, C.J.: The orders will be stated at a later stage.
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