DPP v Green
[2008] VSCA 36
•6 March 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 303 of 2007
| DIRECTOR OF PUBLIC PROSECUTIONS (VIC) |
| v |
| ANTHONY SHANE GREEN |
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JUDGES: | VINCENT, NEAVE and REDLICH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 January 2008 | |
DATE OF JUDGMENT: | 6 March 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 36 | |
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Criminal law – Director’s appeal – Intentionally causing serious injury – Blackmail – Making a threat to inflict serious injury – Respondent with significant and extensive criminal history – Offences committed whilst on bail for other serious offences – Whether judge undervalued seriousness of respondent’s conduct – Respondent had served custodial portion of sentence – Real progress made in respect of his rehabilitation – Need for sentence imposed to be considered in context of other sentences and periods of incarceration to which respondent subject – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C J Ryan, SC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Respondent | Mr O P Holdenson, QC | Clarebrough Pica |
VINCENT JA:
The respondent pleaded guilty before Judge Kelly in the County Court at Melbourne, on 15 August 2007, to one count of blackmail (count 1), one count of intentionally causing injury (count 2) and one count of making a threat to inflict serious injury (count 4).
He admitted 61 previous convictions arising from 19 court appearances between 4 September 1989 and 18 December 2002. They related to a number of driving and firearm offences, various forms of dishonesty and conduct against public order. Of significance, for present purposes, I note three prior convictions for assault by kicking, one for assaulting a police officer in the lawful execution of duty, one conviction for recklessly causing serious injury, two for recklessly causing injury, two for unlawful assault, two for intentionally causing serious injury and one for common assault for which he was later convicted.
It is also necessary to mention that, on 8 February 2006, Hollingworth J in the trial division of this Court sentenced the respondent to three years and six months’ imprisonment, in respect of which she fixed a non-parole period of two years and three months.[1] On 16 May 2006, Judge Gullaci in the County Court sentenced the respondent to ten months’ imprisonment arising from another incident of violence.[2]
[1]The respondent and a co-offender had committed an assault and kidnapping.
[2]This incident of violence was committed by the respondent on a neighbour.
After hearing a plea in mitigation of penalty, Judge Kelly, on 15 August 2007, imposed the following terms of imprisonment:
On count 1 - two months;
On count 2 - 10 months;
On count 4 - three months.
His Honour directed that two months of the sentence imposed on count 4 be served cumulatively upon that imposed on count 2, creating a total effective sentence of 12 months’ imprisonment. He then ordered that six months of that term be served cumulatively with the sentence that the respondent was undergoing at the time and directed that he serve a minimum term of two years and six months’ imprisonment before becoming eligible for parole.
The respondent was released under this order on 15 November 2007 and has been at liberty thereafter.
The Director of Public Prosecutions has appealed against the sentences imposed by Judge Kelly, asserting that the individual sentences, the total effective sentence and the new non-parole period fixed by him are all manifestly inadequate.
Particulars advanced in support of these contentions claim that his Honour:
(a) failed to adequately reflect the gravity of the offences generally and in this case in particular;
(b) failed sufficiently to take into account the aspect of general deterrence;
(c) failed sufficiently to take into account the aspect of specific deterrence;
(d) gave too much weight to factors going to mitigation; and
(e) gave insufficient weight to factors going to aggravation.
The background
On Monday 14 November 2005, at approximately 2.00pm, the respondent and his female partner, Amanda Casey, drove to a unit in Strathcole Drive, Traralgon. Inside the premises were the victim, Pricilla Chapple, and her two young children.
Ms Casey and the respondent alighted from their vehicle and went to the front door. When Ms Chapple responded to their knock and queried the two as to what they wanted, Ms Casey screamed, ‘When am I going to get my $25?’ The respondent added, ‘if you don’t have it by Wednesday I’ll be back down.’ The victim who insisted that she did not in fact owe them any money was told by the respondent, who was brandishing a steering lock he had brought from the car, that if she did not pay them, ‘we’ll get ya.’
Ms Chapple ran into her unit and armed herself with a knife before returning to the door. The respondent and Ms Casey were still there. She then informed the respondent, ‘I’m here with my kids,’ and said ‘I wouldn’t do this in front of your kids.’ At this stage, he was approximately four metres from her. She then waved the knife in front of her. The respondent ran towards her repeatedly striking her to the body with the steering lock. He sustained a cut to his hand from the knife as he attempted to disarm her and she tried to defend herself. He eventually knocked the knife out of her hand. Ms Casey was wrestling with them trying to extract the respondent from the situation.
Ms Chapple ran to a nearby carport but was cornered by the respondent who, by that stage, had armed himself with the knife. He raised it to her throat, telling her that he would show her ‘how to use it.’ The victim sustained a cut. The knife was then somehow removed from him as Ms Casey again grappled with both the respondent and the victim, trying to separate them. The respondent grabbed Ms Chapple around the throat and banged her head into a brick wall. She tried to get away but he dragged her inside the unit. By this time, Ms Chapple’s daughter was standing at the front door.
Ms Chapple managed to break free and ran next door, hiding behind a fence. The respondent and Ms Casey then went to their car and drove away. However, they returned shortly after and saw Ms Chapple hiding. She informed them that she had contacted the police. Ms Casey then left the car and grabbed her by the throat before returning to the vehicle.
As the two drove away, the respondent yelled to Ms Chapple. ‘If the cops come near my house I’ll be back to burn you and your kids.’
As a result of the incident, Ms Chapple sustained bruising to the right hand side of her face, and extensive bruising down her neck and arms. She suffered a swollen right elbow with restricted movement, several cuts to her left elbow and left forearm, an injury to her left ear and small cuts to her knees with some bruising to her right leg.
The respondent was later arrested and taken to the Traralgon police station and interviewed. He admitted going to the premises but denied harming the victim.
The appeal
In support of the claim that the individual sentences and the total effective period of incarceration imposed upon the respondent were inadequate to such an extent that the intervention of this Court was required, counsel appearing on behalf of the Director emphasised a number of features, the significance of which, he asserted, were seriously undervalued by the sentencing judge.
First, it is important, he argued, not to underestimate the seriousness of the respondent’s conduct. He went to the victim’s home where he made an unwarranted demand for money that he was prepared to enforce by violence and the threat of violence. Initially, he was armed with a club lock with which he assaulted Ms Chapple in the knowledge that there were children in the house and then, after pursuing her to the carport, he further assaulted her and threatened her with the knife that she had picked up to defend herself. Finally, when he was leaving, he threatened to return and burn the victim and her children.
Secondly, these activities were not only engaged in against the background of an extensive criminal history which involved a number of offences of violence, but while he was on bail having been released only a few days earlier in relation to the serious offences for which he was later sentenced by Hollingworth J.
Further, counsel argued, the decision of the sentencing judge to fix a new single parole period, which would commence at the time of the sentence imposed by Hollingworth J, effectively and unjustifiably deprived the later imposed sentence of Judge Gullaci of practical effect.
In response, counsel for the respondent submitted that there were a number of matters upon which reliance was placed in the court below and were appropriately taken into account in the respondent’s favour by the sentencing judge. When they were taken into account the disposition could be seen to be appropriate or at least available in the proper exercise of sentencing discretion.
In this context, counsel pointed out that the respondent had been in custody for a substantial period, either on remand or undergoing sentence by the time that he appeared before Judge Kelly.[3] During that period he had, it was argued, heeded the words of Hollingworth J:
… Whilst you are prone to aggressive behaviour when abusing alcohol, it seems that you have been able to maintain a number of long term relationships. It is also to your credit that you have managed to overcome your heroin addiction. It seems from your psychologist’s report that you might yet benefit from treatment for your alcohol abuse; that may best be achieved under the supervision of the Adult Parole Board. However, your prospects of rehabilitation will probably remain limited until you stop seeing yourself as a victim and start accepting some responsibility for your own conduct.[4]
And the similar advice of Judge Gullaci.
[Y]ou are currently entrenched in a history of criminal offending and are prone to carrying out acts of violence. You have a significant history of alcohol abuse and drug use. You have, according to the report of Mr Joblin, never received any treatment for alcohol abuse. However, you certainly have unresolved issues with alcohol and cannabis and unless resolved this will be a pattern of your life. Your only hope, in my view, is to utilise a period of imprisonment to ensure that you change your attitude towards alcohol and drug usage.[5]
[3]Hollingworth J had taken 266 days of pre-sentence detention into account and the respondent had served 18 months thereafter.
[4]R v Brock and Green [2006] VSC 13, [57].
[5]R v Green, Unreported sentencing remarks of Judge Gullaci, County Court of Victoria, 16 May 2006.
His change of attitude and increasing insight was evidenced by reports provided to Judge Kelly that indicated that the respondent had, while in custody, participated fully in a violence intervention programme at Loddon prison involving 33 sessions and 83 hours of programme time in addition to a semi-intensive day treatment programme. He had also undertaken a 15 week cognitive therapy course that addressed victim empathy. A report from Mr Ian Joblin, a very experienced forensic psychologist contained the assessments that–
At the time of my interview with Mr Green he presented very well. He was polite and cooperative. In my opinion he was very straightforward and honest in describing his history to me. He outlined much of the basis of the offences for which he has appeared before [the] courts. He acknowledged with sincerity the difficulties he has had and further the difficulties he has caused the community and the Criminal Justice System. I felt that was somewhat refreshing and in my experience that is not always seen with prisoners.
…
As indicated, at the time of my interview with Mr Green he was cooperative and polite. He is a man of reasonable intellect. He is certainly not psychotic and probably never has been. He recognises that his future is in the hands of the Criminal Justice System. He did not minimise the seriousness of the offending.
Counsel argued that this was not a case in which a sentencing judge failed to attribute appropriate weight to a relevant sentencing principle or factual circumstance or in which the judge simply undervalued the seriousness of the conduct of the offender. Rather it was one in which, after a careful assessment was made, his Honour determined that the interests of the community and those of the respondent’s himself would be best served by a disposition directed to increasing his ‘capacity to return to life in the community free of the devils of alcohol and drug addiction which are causing him to commit these offences.’ The respondent had pleaded guilty to all counts and had made real progress towards his rehabilitation.
It was against that background that the following exchange, which took place between the prosecutor and his Honour at the end of the plea hearing, had to be considered, he submitted:
[PROSECUTOR]: … Your Honour, just in relation to the penalty in this matter, I heard what your Honour said about the extension of the release date, but the Crown would submit, your Honour, that these are serious offences involving assaults on a female with a club lock. He has substantial priors. Questions of general and specific deterrence are important.
The Crown obviously, and this is not disputed, would clearly say he should receive a custodial sentence, and as I understand it on my instructions, your Honour, we would say that in effect, three months for this really would not be, the Crown would submit, would be insufficient for the type of assault it was, bearing in mind the priors he had at that time.
HIS HONOUR: If it stood alone I would agree with you, but it doesn’t. It has to be taken into account in the whole circumstances of this man’s life, including these other offences and the significant term of imprisonment which he has acquired as a result of those. I am satisfied what Justice Hollingworth and his Honour [Judge] Gullaci said is plainly true, that the community and this man’s life really rests upon his capacity to return to life in the community, free of the devils of alcohol and drug addiction which are causing him to commit these offences.
The best chance of doing that is to tailor a sentence which perhaps is less than he would otherwise receive for the offence if considered alone, but adequate having regard to the fact that it is in combination with other offences, other imprisonments. …
The adoption of this approach was not only open to his Honour in the proper application of sentencing principle, but can be seen to be entirely reasonable in the circumstances, he submitted.
If however this view was not accepted by the Court, it was argued, the appeal should be dismissed in the exercise of discretion. In support of this submission, reliance was placed upon the circumstances that:
· the respondent was released from custody on 15 November 2007 and has been at liberty on parole thereafter.
· Ms Rachel Stacey, leading Community Correction Officer at the supervising Box Hill office has commented with respect to the respondent’s progress on parole –
(i)That he was engaging very well with the conditions of his parole.
(ii)That he had no absences as regards reporting and supervision.
(ii)That he was providing urine screens as requested by the Department of Human Services.
(iv)That he had attended for all his community work save for three acceptable absences supported by medical certificate.
(v)That he had attended upon and engaged with his drug and alcohol counsellor.
(vi)That his overall performance to date was positive and that there was thus far no cause for complaint concerning his performance upon parole.
· Mr Peter Toohey of the Department of Human Services in Box Hill informed the respondent’s solicitor on 9 January 2008 that:
(i)At the present point in time it is the intention of the Department to re-unite Amanda Casey, the respondent’s defacto wife, with her children on a full time basis.
(ii)That as things presently stand that may well occur shortly after the commencement of the school year as the present regime involving the children living with their mother some four days a week has worked well and proved to be a positive step towards the children being re-united with their mother.
(iii)That the respondent was interviewed whilst in custody concerning his suitability to reside with his defacto’s children. The respondent was found to be acceptable by the Department subject to complying with requests made of him by the Department.
(v)That the respondent has been providing urine screens on a voluntary basis to the Department in lieu of him providing urine screens when requested by the Parole Board. The respondent has recently entered into a more formalised arrangement for the provision of urine screens by consenting to a court order as requested by the Department.
(vi)That none of the respondent’s urine screens has recorded a positive result with respect to illicit substances.
· the respondent who obtained skills as a baker in the prison system commenced work as an apprentice baker on 23 January 2008.
· not only should the court take into account its general reluctance to return a person to prison following the completion of the custodial portion of the sentence or minimum term fixed by the court below, but, counsel submitted, the history of the respondent following release which demonstrates that Judge Kelly’s disposition of the matter was justified.
There is no need to recite the principles upon which this Court must proceed when considering a Crown appeal against sentence. They are well known and regularly applied and are set out in such cases as R v Clarke,[6] DPP v Johnston,[7] DPP v Bulfin[8] and DPP v Bright.[9]
[6][1996] 2 VR 520.
[7](2004) 10 VR 85.
[8][1998] 4 VR 114.
[9](2006) 163 A Crim R 538.
The sentencing of an offender is seldom, if ever, an easy task. It was certainly not in this case. Obviously if the criminal justice system is to function effectively and fairly and not itself to be productive of injustice, the sentencing of offenders should never be permitted to become a mechanical process that pays little regard to the complexities of human behaviours, capacities, circumstances and motivations or fails to recognize that sentencing is directed to the attainment of a variety of social objectives not all of which can be seen to be compatible in a given situation. It is inherent, in the very nature of this task, that sentences effect balances between the sometimes competing values and objectives of the criminal law and inevitable that there will be occasions upon which the members of an appellate court would have arrived at a different conclusion. The authorities make clear that the mere existence of such a different view does not justify appellate intervention. That can only occur where error is manifest.
There can be no doubt from his Honour’s comments in the course of the plea hearing in the present case, that he was well aware of the seriousness of the respondent’s conduct and of the criminal history that preceded it. He recognized, as he stated, that the sentence that he was handing down could, standing alone, be reasonably perceived as not properly reflective of those considerations, but also had to be considered in the context of the other sentences and periods of incarceration to which the respondent was subject. This was clearly correct, as his Honour was required to take into account a number of concepts such as the imposition of appropriate sentences for the separate crimes, the principle of totality, and the relevance of general and specific deterrence and rehabilitation in the respondent’s case. His Honour came to the conclusion that the interests of society and the respondent would both best be served not by significantly extending the respondent’s incarceration but by the adoption of a course that rewarded and encouraged his endeavours at rehabilitation and bearing in mind that the respondent would, in any event, be required to serve a significant term.
I am far from persuaded that his Honour fell into error in adopting the
approach that he did and note that there are clear indications from the respondent’s conduct whilst on parole that this assessment is being vindicated.
There is, in the circumstances, no need to address the alternative submissions of the respondent’s counsel with respect to the exercise of the discretion of the Court to dismiss the appeal in any event.
I would dismiss this appeal.
NEAVE JA:
Despite the respondent’s real efforts to rehabilitate himself, I consider that the sentence imposed by his Honour was manifestly inadequate, having regard to the seriousness of the Respondent’s attack on Ms Chapple and his prior history of violent offences.
However, because the appellant is now out of gaol, is progressing well on parole, is re-united with his family and has found a job, I am persuaded that the Court should exercise its discretion to dismiss this appeal.
I therefore agree with Vincent JA that the appeal should be dismissed.
REDLICH JA:
I also agree that the appeal should be dismissed, essentially for the reasons given by Vincent JA.
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