DPP v Johnson
[2011] VSCA 288
•23 September 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0002 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| KANE GLENN JOHNSON | Respondent |
---
| JUDGES | NEAVE, REDLICH and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 6 June 2011 |
| DATE OF JUDGMENT | 23 September 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 288 |
| JUDGMENT APPEALED FROM | (Unreported, County Court of Victoria, Judge Howie, 14 December 2010) |
---
CRIMINAL LAW – Sentence – Whether sentences for aggravated burglary, common law assault and breach of intervention order manifestly inadequate – Considerations relevant to punishing breach of intervention orders – Interaction of section 16(3B) of the Sentencing Act 1991 (Vic) and application of totality principle – R v Piacentino (2007) 169 A Crim R 348 considered.
---
| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr P Morrissey SC with Ms G Morgan | Robert Stary Lawyers |
NEAVE JA:
Having had the advantage of reading the draft reasons of Redlich JA, I agree with his Honour that the appeal should be allowed and the respondent re-sentenced in the manner his Honour proposes. I wish only to make some brief remarks on the sentence of six months’ imprisonment imposed for the summary charge of contravening a family intervention order, which the trial judge ordered to be served concurrently with the sentences imposed on counts 1 and 2.
The family intervention order prohibited the respondent from:
1. Committing family violence against the protected person(s) …
2.Intentionally damag[ing] the protected person’s property or threatening to do so.
3.Following the protected person(s) or keeping him/her/them under surveillance.
4.Contacting or communicating with the protected person(s) …
5.Knowingly being within 5 metres of the protected person(s).
…
6.Going to or remaining within 200 metres of the home [of the protected person(s)] or any other place where the protected person lives, works or attends school.
…
7.Causing another person to engage in conduct prohibited by this order.
In my opinion the term of six months was manifestly inadequate and his Honour should not have made it wholly concurrent with the sentences imposed for aggravated burglary and assault. The sentencing judge wrongly took the view that the circumstances in which the respondent breached the intervention order were ‘almost identical’ to the aggravated burglary and the common law assault. As he recognised earlier in his reasons, the breach of the intervention order was not limited to the conduct covered by these other charges. On 10 November, four days before the respondent invaded the victim’s home, he breached the intervention order by telephoning and threatening her and her family. On the night that he committed the assault and aggravated burglary, he breached the order at the point that he came within 200 metres of her house.
All Australian states have enacted legislation which is intended to protect potential victims of family violence from physical injury and from being placed in fear by harassment or threats. Family violence is a serious problem in Australia. In 2004, it was reported that family violence is ‘the leading contributor of death, disability and illness in women in Victoria aged 15 to 44 years’.[1] Breach of intervention orders is relatively common.[2] In its Report on Breaching Intervention Orders, the Sentencing Advisory Council said that, between July 2004 and June 2007, the Magistrates’ Court of Victoria and the County Court of Victoria imposed on average approximately 14,000 intervention orders per year. Over a quarter of all intervention orders imposed were breached.
[1]Victorian Law Reform Commission, Review of Family Violence Laws, Report (2006), [2.94].
[2]Between July 2004 and June 2007, the Magistrates’ Court of Victoria and the County Court of Victoria imposed approximately 14,000 intervention orders per year. Over a quarter of all intervention orders imposed were breached: Sentencing Advisory Council, Breaching Intervention Orders Report (June 2008). [3.6.1].
Further, offenders who breach orders and continue to threaten and assault their partners may go on to seriously injure or even kill them.[3] As was recognised during parliamentary debates on the Family Violence Protection Bill 2008,[4] intervention orders can only protect victims of threatened violence if they are effectively enforced and if breach of an order attracts an appropriate sentence. The Victorian Law Reform Commission, in its report which ‘underpin[ned]’ many of the changes in the Bill,[5] observed:
The response to a breach of an intervention order is crucial to ensuring the intervention order system is effective in protecting family violence victims. If police or the courts do not respond adequately to breaches of intervention orders, they will be perceived as ineffectual – ‘not worth the paper they are written on’ – by victims and perpetrators alike.[6]
[3]Victorian Law Reform Commission, Review of Family Violence Laws, Report (2006), [2.61]; Victorian Law Reform Commission, Defences to Homicide: Issues Paper (2002), [2.32].
[4]See, for example, the observation of an opposition Member of Parliament that the government ‘need[s] to send a very strong message to those people in the community that if they breach an intervention order, they will get a stronger penalty and not a lesser penalty’: Victoria, Parliamentary Debates, Legislative Assembly, 21 August 2008, 3191 (Jeanette Powell).
[5]Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2008, 2649 (Rob Hulls, Attorney-General).
[6]Victorian Law Reform Commission, Review of Family Violence Laws, Report (2006), [10.67].
During the plea hearing, his Honour said that four different persons had been sufficiently troubled to seek and obtain intervention orders against the respondent. In response, the offender said that
HIS HONOUR: You are shaking your head negatively, Mr Johnson but that's the fact, isn't it?
OFFENDER: It is not the fact. What you have got on the piece of paper doesn't tell you what was going on at the time.
HIS HONOUR: I appreciate that, but there's the fact that there is four persons who have taken out intervention orders against you, isn't it?
OFFENDER: Yeah, but don't you think that some people have ulterior motives and anyone can take an intervention order out on anyone, they don't have to have any evidence, they can just say hearsay on an affidavit, it doesn't make it true.
HIS HONOUR: But you have not challenged them.
OFFENDER: Why would I challenge them? Why would I waste my time? I don't want to waste my time. They can have their order. I don't care about them having the orders. One of the people, the neighbour next door, the male, was actually threatening my girlfriend before I got home from work and then when I found out, he felt intimidated because he's seen I was upset about it and then he got an order on me. Everything is not black and white what you see on the paper, Your Honour.
The respondent has six prior convictions for breaching intervention orders. His exchange with the sentencing judge not only indicates his contempt for court orders, but increases the risk that he will commit further violent acts in breach of orders put in place to protect victims.
Having regard to the respondent’s history of breaching orders and his apparent view that they are not to be taken seriously, I consider that this offence required the imposition of a considerably higher sentence and that some measure of cumulation of that sentence was required.
However having taken account of the principle of totality and the cancellation of the respondent’s parole, I am content to agree with Redlich JA that the respondent should be sentenced to 12 months imprisonment for breach of the Family Violence Intervention Order. If it had not been for these matters I would have considered that the breach would justify the imposition of a sentence much closer to the maximum applicable to that offence.
REDLICH JA:
The respondent, in breach of an Intervention Order, entered his former partner, Ms Nicole Harkom’s house in the early hours of the morning of 14 November 2009 with two knives, with the stated intention of killing himself and having her witness it. He entered her bedroom where she was asleep with one of their daughters. Ms Harkom commenced to scream which awoke her daughter. Upon appreciating the terror the respondent had caused his daughter he desisted from his plan and after a short period of time left the premises.
The respondent pleaded guilty to one count of aggravated burglary, one count of common law assault, one count of possessing a drug of dependence and one summarily charged offence of contravening a Family Violence Intervention Order. He was sentenced in the County Court at Melbourne to 15 months’ imprisonment on the count of aggravated burglary, six months’ imprisonment on the count of common law assault, and six months’ imprisonment for the summary offence. After orders for cumulation, the total effective sentence was one year and nine months’ imprisonment, with a non-parole period of 10 months. The respondent was also fined for the count of possessing a drug of dependence.
The Director of Public Prosecutions now appeals to this Court against the sentence of imprisonment imposed below on the grounds that the total effective sentence, non-parole period and individual sentences imposed in respect of each offence, except the count of possessing a drug of dependence, are manifestly
inadequate; and second, that the sentencing judge erred by failing to correctly apply the principle of totality.
I would allow the appeal and re-sentence the respondent to a total effective sentence of three years’ and three months’ imprisonment with a minimum term of two years’ and two months’ imprisonment.
Circumstances leading up to offending
The factual background to this case is set out in detail in the reasons for sentence of the judge below,[7] but it is useful to summarise it as follows, noting in particular, aspects of the case relevant to this appeal.
[7]Director of Public Prosecutions v Johnson (Unreported, County Court of Victoria, Judge Howie, 14 December 2010).
The respondent was involved in an ‘on and off’ relationship with Ms Harkom for approximately seven years that ended in about May 2009. Their relationship appeared to be characterised by instances of separation followed by periods of reconciliation. They had two children together, one girl and one boy. After their separation the children resided with Ms Harkom and the respondent moved to a local hotel.
Ms Harkom and her eldest daughter, from an earlier relationship, had previously applied for and obtained Intervention Orders against the respondent at various stages in their relationship. According to Ms Harkom’s Victim Impact Statement, these Orders were obtained against the backdrop of a violent relationship with the respondent. The respondent maintained that the Orders were regularly breached with the agreement of Ms Harkom and were often obtained only at the instigation of Ms Harkom’s family.
In September 2009 Ms Harkom applied for and obtained a 12 month Family Violence Intervention Order against the respondent at the Magistrates’ Court at Bacchus Marsh. The protected persons under the Order included Ms Harkom and the two children from her relationship with the respondent.
Among the various qualified restrictions in the Order, set out more fully in the reasons given by Neave JA, the respondent was prohibited from contacting Ms Harkom, including by telephone; knowingly being within five metres of Ms Harkom or the protected persons; and remaining within 200 metres of the home of Ms Harkom and their children.
The conduct constituting the offences the subject of this appeal commenced in the early hours of 10 November 2009, when the respondent rang Ms Harkom and threatened to harm her and her family. The respondent had been drinking at his local pub and was intoxicated at the time. This conduct comprised part of the summary offence against the respondent for breach of the Intervention Order under the Family Violence Protection Act 2008. Shortly thereafter he walked to Ms Harkom’s premises. This conduct also constituted part of the summary offence for breach of the Order.
At around 5.00 am the respondent jumped the rear fence to Ms Harkom’s premises and entered through the unlocked back door. The respondent was carrying two knives. This conduct formed the basis for the count of aggravated burglary contrary to s 77 of the Crimes Act 1958. The respondent then entered the main bedroom where Ms Harkom was sleeping with her daughter, who was around four years of age at the time. The respondent placed his hand over Ms Harkom’s mouth to stop her from screaming and demanded she accompany him to the back yard. There were conflicting accounts over the extent of force used in this act, but the sentencing judge was satisfied there was no permanent physical harm caused to Ms Harkom as a result. This conduct formed the basis for the count of common law assault.
After recognising the intruder as the respondent and breaking free from his attempt to silence her, Ms Harkom screamed and awoke her daughter in the process. This caused the respondent to retreat out of the room. Ms Harkom asked him to leave the premises immediately. The respondent did not at first comply, but after about half an hour of what appears to be demanding and pleading on Ms Harkom’s part, and rambling and self-pitying behaviour on the respondent’s part, the respondent left the premises. After leaving the premises he returned to his temporary residence at a local hotel.
On 25 November 2009, the respondent was arrested outside his temporary residence at Wendouree West. He was found with one gram of cannabis and this conduct formed the basis for the count of possessing a drug of dependence contrary to s 73 of the Drugs, Poisons and Controlled Substances Act1981.
In his record of interview with police, the respondent said he did not enter Ms Harkom’s house with the intention of harming her or the children but only in order to move Ms Harkom outside the premises so that she could witness his planned suicide. The respondent claimed that at the time, he was very upset at not being able to see his children but also thought he would not have physically harmed anyone.
Personal circumstances of the offender
The respondent was born in May 1974. He was 35 years of age at the time of offending and 36 years of age at the time of sentence.
The respondent did not perform well at his studies and left school at around 14 years of age to train as a butcher. Since then he has been employed in butchering, landscaping and building, though subject to some periods of unemployment. At the plea it was said the respondent had also completed vocational training in courses such as cooking, during his current term of incarceration.
During his later teenage years the respondent developed a relationship with a woman with whom he had two children. However, after serving a term of imprisonment for armed robbery, his relationship with the woman deteriorated and the respondent ceased contact with the children from that relationship.
The respondent had come into contact with the police and the criminal justice system for fighting and theft since his early teenage years. He has multiple prior convictions including one for recklessly causing serious injury;[8] four for intentionally or recklessly causing injury; four for assault; four for burglary; and multiple prior convictions for breaching Intervention Orders obtained by various persons, including the respondent’s first domestic partner, Ms Harkom, Ms Harkom’s daughter from an earlier relationship, and a neighbour. The respondent submitted during the plea that his issues with drug and alcohol abuse had been the catalyst for some of these incidents.
[8]See e.g. R v Johnson [2007] VCC 0976; (Unreported, County Court of Victoria, Judge Howie, 23 August 2007).
According to a clinical psychologist’s report tendered by the respondent at the plea, the respondent believed Ms Harkom used the Intervention Order against him to control and resist his access to the children. The report noted that the respondent engaged in the offending conduct in this context of intending to re-connect with his children and a sense of powerlessness by being unable to do so – that had also been aggravated by episodes of rumination and brooding during recent periods of unemployment. Prior to committing the relevant offences the respondent was involved with processes in the Family Court and Relationship Australia to gain access to his children, which he claimed were occasionally frustrated by Ms Harkom.
At the time of offending the respondent was also on parole since being released from a custodial sentence on 22 December 2008 that related to earlier convictions.
The respondent was arrested, charged and remanded in custody relating to the offences the subject of this appeal on 25 November 2009. The respondent’s pre-existing parole term was consequently recalled on 9 December 2009. From that date until 7 February 2011 the respondent was imprisoned for approximately one year and two months, comprising the remainder of his cancelled parole term. In fixing
the total effective sentence the sentencing judge rightly treated the period of detention between his arrest and 8 December 2009 as pre-sentence detention.
Grounds of appeal against sentence
In his written submissions, counsel for the Director acknowledged the two grounds of appeal are interrelated, in the sense that an error in applying the principle of totality may have contributed to the manifest inadequacy of the sentences.
Ground 1 – Sentence manifestly inadequate
The Director sought to demonstrate that the head sentence of one year and nine months’ imprisonment with a non-parole period of 10 months was manifestly inadequate having regard to current sentencing practice and various aggravating circumstances.
It is unnecessary to restate in full the principles governing an appeal on the grounds of manifest inadequacy. Suffice it to say, that the question to be addressed is whether the sentence arrived at was within the range reasonably open to the sentencing judge in the circumstances, taking proper account of all relevant sentencing considerations.[9] In my view the total effective sentence and the sentence on the count of aggravated burglary are manifestly inadequate and require the respondent to be re-sentenced on all counts and the summary charge.
[9]Director of Public Prosecutions v Terrick (2009) 24 VR 457, 459–460 [5] (Maxwell P, Redlich JA and Robson AJA).See also e.g. R v Abbott (2007) 170 A Crim R 306, 309 [14] (Maxwell P, with Eames JA and Habersberger AJA).
It is often stated that the questions of manifest excess[10] or manifest inadequacy[11] admit of little elaboration. However, there are a number of matters arising from the sentence imposed below which warrant exposition. They are the manifest inadequacy of the sentence on the count of aggravated burglary; the seriousness of the respondent’s breaches of the Intervention Order in the circumstances; the order for concurrency between the sentence imposed on the summary charge and the terms of imprisonment imposed on counts 1 and 2; the consideration of the prospects of rehabilitation and the fixing of the non-parole period and the excessive weight given to the principle of totality in light of the respondent’s time spent in custody for breach of parole and the legislative policy behind s 16(3B) of the Sentencing Act 1991.
The sentence for aggravated burglary
[10]R v Johnstone [2007] VSCA 193, [38] (Kellam JA, with Whelan AJA agreeing).
[11]DPP v Josefski [2005] VSCA 265, [65] (Chernov JA, with Maxwell P and Callaway JA agreeing).
According to research from the Sentencing Advisory Council, the median sentence of imprisonment for an individual sentence of aggravated burglary was two years in the period of 2008 to 2009, while the sentences ranged from nine months to seven years.[12] The median term was also two years for the identified ‘intimate relationship’ category of aggravated burglaries relating to the ‘dynamics of the offender’s relationship with his or her intimate partner or his or her former intimate partner.’[13] (These statistics relate to aggravated burglary offences not tried summarily.)
[12]Sentencing Advisory Council, Aggravated Burglary: Current Sentencing Practices (June 2011) 10, 34.
[13]Ibid 33–34.
Of course the sentencing judge was not required to give effect to a sentence that accorded with these statistics. The appropriate range of sentences reasonably open to a sentencing judge in any particular case will not necessarily be illuminated by such quantitative analysis, and courts have remarked on numerous occasions that caution should be exercised in relying too heavily on it.[14] However, for the purposes of this appeal, these statistics delineate the statistical median sentence of imprisonment in current sentencing practice for aggravated burglary.
[14]DPP v Maynard [2009] VSCA 129, [35]; DPP (Cth) v Milne [2001] VSCA 93, 13. R v Skuta [1998] VSCA 35, [22] (Phillips JA, agreeing in the result with Winneke P and Kenny JA). See also Pavlic (1995) 83 A Crim R 13, 31; DPP v CPD (2009) 22 VR 533, 547 [57] (Maxwell P, Redlich JA and Robson AJA).
While the respondent’s aggravated burglary was far from the worst class of the offence, it did involve use of weapons and the subsequent commission of a technically violent offence. Even though the sentencing judge found Ms Harkom was not physically harmed from the common law assault, the subject of count 2, it was accepted that the respondent’s acts caused his victim considerable emotional and psychological distress. That a child was also affected by the respondent’s acts is an aggravating feature of the offending. Viewed in this light, the sentence of 12 months’ imprisonment imposed on count 1 is manifestly inadequate.
Sentence on Breach of Intervention Order
Despite the Crown submission to the contrary, I am not prepared to conclude, having regard to current sentencing practice, that the sentence of 6 months’ imprisonment for breach of the Intervention Order, was itself outside the range of sentences reasonably open to the sentencing judge in the circumstances. It was however a lenient sentence and on re-sentencing the respondent I would impose a substantially higher sentence.
A breach of an Intervention Order,[15] especially in contexts where the breach is a prelude to violent indictable offences and may involve the offender’s former partner has not always been viewed as seriously as it should. Their gravity is well documented in empirical research[16] and numerous decisions of this Court.[17] The fact that it was imposed at the same time as the sentence for aggravated burglary would not have justified any reduction in the sentence for the breach of the Order, as the sentence fixed for each individual offence must be an adequate one as Postiglione v The Queen makes clear.
[15]See generally Sentencing Advisory Council, Sentencing practices for breach of Family Violence Intervention Orders: Final Report (June 2009) viii.
[16]See above [4] – [5]. See also generally Sentencing Advisory Council, Sentencing practices for breach of Family Violence Intervention Orders: Final Report (June 2009).
[17]See e.g. El Tahir v R [2011] VSCA 46, [23] (Mandie JA, with Buchanan and Redlich JJA agreeing); R v Harvey [2007] VSCA 127, [21] (Redlich JA, with Ashley JA agreeing); R v Xe Van Pham [2004] VSC 271, [4]–[5] (Teague J); R v Maher [2011] VSCA 136, [7], [16] (Ashley JA, with Bongiorno JA agreeing); R v Crowley [2009] VSCA 176, [14]–[15] (Buchanan JA, with Dodds-Streeton JA and Lasry AJA agreeing); Kanakaris v R [2010] VSCA 120, [4], [27], [39], [70]–[71] (Coghlan AJA, with Neave and Redlich JJA agreeing); R v Propsting [2009] VSCA 45, [9], [13]–[14] (Vincent JA, with Buchanan JA agreeing); R v Verde [2009] VSCA 16, [14], [31]–[32] (Nettle JA, with Vincent JA and Vickery AJA agreeing); R v Noonan [2007] VSCA 5, [6], [34] (Nettle JA, with Buchanan and Vincent JJA agreeing); R v Yasso [2007] VSCA 306, [60] (Maxwell P, with Redlich JA and Habersberger AJA agreeing).
In her Victim Impact Statement, Ms Harkom reported ‘I am frightened to live in my own home, I live in constant fear of mine and my childrens’ safety. I do not feel safe in my home and I never will again.’ According to that statement, Ms Harkom has since felt compelled to move houses out of fear that the respondent knew where she lived and could return to hurt her or their children once he is released from prison. Intervention Orders are designed to protect people from precisely this sort of fear and sense of insecurity.[18] The fact that the breach had this effect heightens the culpability associated with the respondent’s breach.
[18]See e.g. Sentencing Advisory Council, Sentencing practices for breach of Family Violence Intervention Orders: Final Report (June 2009) 15–16, 38, 135.
I have had the advantage of reading the remarks made by the presiding judge. According to research by the Sentencing Advisory Council, only 11.1 per cent of all people sentenced with the offence of breaching a Family Violence Intervention Order from July 2004 to June 2007 received a sentence of imprisonment.[19] The median term of those sentences of imprisonment was only two months,[20] notwithstanding that terms of imprisonment were more likely to be imposed where the offender was also convicted and imprisoned for other offences at the same time.[21]
[19]Sentencing Advisory Council, Sentencing practices for breach of Family Violence Intervention Orders: Final Report (June 2009) 63. During the same period, fines were the most common sanction (37.2 per cent) (see page 50), with adjourned undertakings (18.5 per cent) (see page 56) and community-based orders (14.8 per cent) (see page 60) also being popular alternatives.
[20]Ibid 63.
[21]Ibid 63–67.
The respondent’s criminal record discloses that he has been convicted for multiple prior breaches of Intervention Orders. The punishment regarding each of those breaches has varied, but has seldom resulted in any substantial sentences of imprisonment that were to be cumulated on sentences imposed on other offences for which he was sentenced at the same time. In light of the observations by Neave JA, regarding the respondent’s ‘contempt for court orders, and the risk that he will commit further violent acts in breach of orders put in place,’[22] the principles of specific and general deterrence must assume particular importance.
[22]See above [7].
In this respect, the observations of Charles JA, with whom Brooking and Phillips JJA agreed, in R v Cotham are particularly pertinent:[23]
Intervention orders must be strictly adhered to, and it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders. The applicant’s actions suggest that he believed he could breach the intervention order with impunity. Only by appropriately severe penalties can the courts make clear to the applicant and the broader community that such conduct will not be tolerated.[24]
[23][1998] VSCA 111, [14]. See also Sentencing Advisory Council, Sentencing practices for breach of Family Violence Intervention Orders: Final Report (June 2009) 37–38.
[24]See also R v Duncan (2007) 172 A Crim R 111; [2007] VSCA 137, [37] (Vincent JA).
Ms Harkom’s Victim Impact Statement, and a psychologist’s report regarding the treatment of Ms Harkom’s daughter, tendered by the Crown at the plea, both explore the serious distress the child experienced as a result of the respondent’s offending. In line with the Parliamentary intent behind the Family Violence Protection Act 2008, and the impact the respondent’s acts had on his own daughter, the individual sentence imposed on the summary charge must adequately reflect the particularly offensive character of the breach.
That the breach of the Order involved the child was an aggravating feature. The Order was granted pursuant to legislation that is designed to place particular emphasis on the protection of children from family violence.[25] In enacting the Family Violence Protection Act 2008, Parliament recognised in the preamble, among other things:
that children who are exposed to the effects of family violence are particularly vulnerable and exposure to family violence may have a serious impact on children's current and future physical, psychological and emotional wellbeing.
[25]See also Sentencing Advisory Council, Sentencing practices for breach of Family Violence Intervention Orders: Final Report (June 2009) 106–111, 147.
Similarly, under paragraph 5(1)(b) of that Act the definition of ‘family violence’ includes ‘behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a)’ of the sub-section, which includes emotionally, psychologically or physically abusive behaviour perpetrated by a person against a family member.[26] The Act also provides some examples of behaviour that may affect children, including ‘seeing or hearing an assault of a family member by another family member’.
[26]See Family Violence Protection Act 2008 (Vic) sub-paragraphs 5(1)(a)(i)-(ii).
The respondent’s daughter was not only a person specifically protected under the terms of the breached Order, but because of her exposure to the respondent’s assault on Ms Harkom, she was a child that was the subject of family violence under the definition of that term in the Act. The sentence should reflect this aspect of the gravity of the offence, subject always to the need to ensure that there was no double punishment with sentences for other offences committed at the same time as the breach of the Order.
The sentence was not to be substantially reduced or affected by the respondent’s perceptions as to the insignificance of the breach or prior breaches of Intervention Orders. Such claims were made by the respondent during the plea, including in the psychologist’s report, and were repeated in a letter he addressed to the sentencing judge, which was partly in response to the sentencing judge’s remarks concerning the respondent’s history of breaching Intervention Orders. The sentencing judge’s remarks are extracted in the reasons given by Neave JA.[27] The claims included various favourable explanations of the circumstances surrounding the prior Orders and their breaches. Cast in this light, many of the breaches could have appeared minor or insignificant, either in the sense that they were with the consent of Ms Harkom or innocuous,[28] and demonstrative of the possibly deeper issue regarding his claim as to the excessive ease with which such Orders may have been obtained.
[27]See above [6].
[28]See e.g. R v Rowley [2007] VSCA 94, [6], [12], [34], [35] (Eames JA, with Vincent and Nettle JJA agreeing). See also Sentencing Advisory Council, Sentencing practices for breach of Family Violence Intervention Orders: Final Report (June 2009) 116–117, 148.
The sentencing judge was clearly influenced by the respondent’s letter, citing it as one of the reasons why he departed from the sentencing range submitted by the Crown of five to six years’ imprisonment with a non-parole period of three to four years.[29] However, even if considerable weight were extended to the respondent’s claims that his previous breaches were innocuous or insignificant, it was not in all the circumstances, with respect, open to the sentencing judge to treat the respondent’s perceptions as to the seriousness of prior breaches as bearing upon the gravity of the present breach. Moreover the repeated disobedience to orders of the court and the contempt in which they were held could not be disregarded in assessing the appropriate sentence for this breach.
Orders for total concurrency regarding sentence on summary charge
[29]Director of Public Prosecutions v Johnson (Unreported, County Court of Victoria, Judge Howie, 14 December 2010) [21].
His Honour dealt with the overlap between the breach of the Intervention Order and the factual components of the offences constituting the counts of aggravated burglary and common law assault as follows:
On the summary charge of breaching the intervention order you are sentenced to a term of imprisonment of six months. The circumstances that are the basis of this offence are almost identical with those Charges 1 and 2. By operation of law the sentence is to be served concurrently.[30]
[30]Ibid [22].
Senior counsel for the respondent during the appeal sought to support this approach by characterising the breach of the Order and counts 1 and 2 as part of a single episode of offending.[31] Putting it at its highest, the fact that offences are part of one continuing transaction is often a sound basis for ordering such concurrency.[32] However, as senior counsel for the Director submitted, the factual components of the breach of the Order do not entirely overlap with the factual components of the aggravated burglary or common law assault. The first of the two breaches of the Order arise from the respondent calling Ms Harkom, in contravention of the terms of the Order restricting telephone calls to protected persons. This occurred three days before the events comprising the offences the subjects of counts 1 and 2. The second contravention arises in part from the respondent knowingly coming within 200 metres of Ms Harkom’s premises. His knowledge that he was in contravention of the Order in approaching her house in disobedience of the Court Order, was not insignificant. Both breaches of the Order materialised before either indictable offence was committed on 14 November 2009. There is no necessary contemporaneity or overlap between the factual components of the summary charge and either of the offences comprising counts 1 or 2.[33] The summary offence was a distinct criminal series of acts which required some cumulation of that sentence.
[31]In that connection, counsel sought to rely on R v McCorriston [2000] VSCA 200, [13] (Callaway JA, with the President and Buchanan JA agreeing).
[32]R v Rule [2008] VSCA 154, [51] (Warren CJ, Neave and Weinberg JJA) (citations omitted).
[33]See also, generally, R v Langdon and Langdon (2004) 11 VR 18, [97], [115], [117] (Gillard AJA, with Batt and Eames JJA agreeing); Pearce v The Queen (1998) 194 CLR 610, 623 [40] (McHugh, Hayne and Callinan JJ), 629 [68]–[69] (Gummow J).
While the sentencing judge was entitled to have ordered some concurrency, given that the second instance of the breach of the Order comprised part of the single episode of offending leading up to counts 1 and 2, it was not in my view open to the sentencing judge to order total concurrency between the sentence on the summary charge and the terms’ of imprisonment imposed on counts 1 and 2.
The comments of Ashley JA, with Bongiorno JA agreeing, in R v Maher have some resonance in this regard:[34]
I turn to the relationship between, on the one hand, the stalking counts and the burglary and aggravated burglary, and, on the other hand, the breaches of the intervention order. It appears to me that the distinct criminality of the offending means that there should be some cumulation between the sentences imposed. Breaches of the intervention order, were in terms, disobedience of a court order. It would be inappropriate if that was not reflected in the breaches having real impact upon sentence. But, to meet the totality point,
some amelioration of the individual sentences for the breaches and on the other counts is, in my view, required.[35]
Prospects of rehabilitation and the non-parole period
[34]Maher v R [2011] VSCA 136, [16].
[35]See also R v Duncan (2007) 172 A Crim R 111; [2007] VSCA 137, [30], [32], [34] (Nettle JA, with Chernov and Vincent JJA agreeing).
Senior counsel for the Director submitted on the appeal that the considerable criminal record of the respondent suggested his prospects of rehabilitation may not be as strong as his Honour concluded. I agree that the respondent’s criminal record reveals a disposition to violence that constitutes a strong countervailing consideration in assessing his prospects of rehabilitation.[36] This is also borne out in the psychologist’s report tendered on his behalf during the plea, which his Honour referred to more than once in his sentencing remarks.[37] The Report indicated that the respondent had failed to develop more adaptive and non-violent strategies to deal with frustration and conflict in his life, perhaps partly as a consequence of his violent upbringing.[38] The sentencing judge noted in addressing the respondent that it would be ‘wise to follow’ the psychologist’s suggestions to learn new ways of dealing with his emotional reactions.[39] In light of the respondent’s substantial criminal record, the respondent’s prospects of rehabilitation must be viewed with considerable reservations.
[36]R v O’Brien & Gloster [1997] 2 VR 714, 718 (Charles JA, with Winneke P and Southwell AJA agreeing).
[37]Director of Public Prosecutions v Johnson (Unreported, County Court of Victoria, Judge Howie, 14 December 2010) [10]–[13], [15].
[38]Ibid [12].
[39]Ibid [15].
This consideration supports increasing the non-parole period, in light of the general principle,[40] and his Honour’s sentencing remarks,[41] that the non-parole period is reflective of the offender’s prospects of rehabilitation. It also suffuses the general observation, germane to these facts, that where the total effective sentence is manifestly inadequate, it will usually follow that the minimum period fixed is also manifestly so.
[40]Bugmy v The Queen (1990) 169 CLR 525, 536 and 538 (Dawson, Toohey and Gaudron JJ). See also R v VZ (1998) 7 VR 693, [14] (Callaway JA), [22] (Batt JA); and Romero v The Queen [2011] VSCA 45, [25] (Redlich JA with whom Buchanan and Mandie JJA agreed).
[41]Director of Public Prosecutions v Johnson [2011] (Unreported, County Court of Victoria, Judge Howie, 14 December 2010) [24].
For the foregoing reasons, it can be said, in my respectful opinion, that the total effective sentence, the non-parole period and the individual sentence on the count of aggravated burglary, were ‘so disproportionately inadequate as to shock the public conscience.’[42]
[42]Likiardopoulos v R [2010] VSCA 344, [163] (Buchanan, Ashley and Tate JJA); R v Clarke (1996) 2 VR 520, 522.
Ground 2 – error in applying principle of totality
It was further submitted that his Honour gave excessive weight to the respondent’s time that he would be required to spend in custody for breach of parole and so infringed the principle of totality.
There are two interrelated aspects to this ground upon which the Crown relied. First, whether by virtue of s 16(3B) of the Sentencing Act 1991 the sentencing judge erred by having regard to the respondent’s incarceration for breaching parole in sentencing the respondent for the present offences (the “breach offences”). Second, assuming the sentencing judge did have regard to that period of incarceration, whether his Honour erred by giving too much weight to the principle of totality in sentencing the respondent for the breach offences. The second ground of appeal is intertwined with the first, to the extent that according the totality of the respondent’s offending too much weight, may have resulted in manifestly inadequate sentences.
There is no substance in the first of these arguments. The sentencing judge was not only entitled but required to take into account the imprisonment resulting from the cancellation of parole in giving effect to the principle of totality. However, partly for the reasons relating to the first ground of appeal, and partly for the reasons that follow, I agree with the Director’s submission that the sentencing judge gave too much weight to the principle of totality in sentencing the respondent and failed to
have sufficient regard to the legislative policy behind s 16(3B) of the Sentencing Act 1991 in applying the principle.
This position can be predicated on the following propositions.
First, it is the practice of this Court to take account of the principle of totality by considering an offender’s imprisonment resulting from a breach of parole in sentencing the offender for the breach offence. So much is clear from the decision of Maxwell P, Buchannan and Redlich JJA in R v Hunter:[43]
This court has made clear repeatedly that a period of imprisonment being served at the time of sentencing must be taken into account in the exercise of the sentencing discretion.
[43](2006) 14 VR 336, 341 [29].
This view was followed by Nettle and Redlich JJA in R v Piacentino, agreeing in the result with Buchanan, Vincent and Eames JJA:[44]
As stated in R v Hunter, the totality principle is to be applied by a sentencing judge where the offender is already serving the parole sentence at the time he or she falls to be sentenced for the breach offences. Consequently, any sentence served at the time of sentencing is to be taken into account in the exercise of the sentencing discretion.
[44](2007) 169 A Crim R 348, 378 [142].
Second, subject to limited exceptions, under s 16(3B) a sentencing court must cumulate individual sentences on any term of imprisonment resulting from the cancellation of parole brought about by the offences for which the respondent had to be sentenced.[45] By necessary implication, and subject to the same exceptions, the section also prohibits ordering individual sentences be served concurrently with a custodial term resulting from cancellation of parole.
[45]R v Alashkar; R v Tayar (2007) 17 VR 65, 70 (Vincent, Redlich and Kellam JJA).
Section 16(3B) is in the following terms:
Every term of imprisonment imposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment (the parole sentence) must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served
cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order.
The importance of giving effect to the legislative intent behind the section is evident in the dictum of McHugh, Gummow and Hayne JJ in McL v The Queen:[46]
Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s 16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s 16(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentences as if that section (or s 6E which replaced it) was not on the statute book.
[46](2000) 203 CLR 452, 476–477 [76]; 114 A Crim R 491.
In Mangelan I also cautioned, with Ashley JA agreeing:[47]
This court must ensure that the totality principle is applied to the sentence in a manner which will not undermine the legislative policy inherent in s 16(3B).
[47](2009) 23 VR 692, 699.
This Court must give effect to the legislative intent behind this section and must not apply the principle of totality to the extent, if any, that it is inconsistent with the section.
Third, while some approaches to applying the principle of totality may be inconsistent with the requirements of s 16(3B) of the Sentencing Act 1991, others may not. A sentencing court is not entitled to set its face against the clear wording of s 16(3B) and pursue an application of the principle of totality that may call for orders of concurrency or only partial cumulation in developing a head sentence that reflects the total criminality of the accused. However, a sentencing court may be entitled to tailor the application of the principle to avoid contravening the section. In Mill v
The Queen, the High Court recognised there is more than one approach to the application of the principle of totality:[48]
Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
[48](1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
After referring to this passage in Mill, Eames JA in the leading judgment in R v Piacentino went on to say:[49]
As their Honours observed in Mill, the application of the principle becomes more complicated where the offender is not being dealt with by the same sentencing judge, and at the same time. In such circumstances, so the Court held, the approach should be that taken by the Court of Criminal Appeal in New South Wales in Todd, which required the sentencing judge on the later occasion to have regard to the cumulative effect of the sentences so that he moderated the sentence to be imposed notwithstanding that the sentence then imposed ‘will fail to reflect adequately the seriousness of the crime in respect of which it is imposed’.
...
In my opinion, if the totality principle, as understood in that way, was intended to be removed from consideration then it would be s 5(2AA) which achieved that result, not s 16(3B).
Nothing in the language of s 16(3B) suggests, in terms, that it is intended to diminish the totality principle. By taking the principle of totality into account in fixing a final sentence for the new offence or offences, the sentencing judge would in no way be interfering with the operation of s 16(3B) with respect to cumulation of the sentences with the period claimed by the Parole Board for breach of parole. The principle of cumulation is preserved but the new sentence imposed might be moderated by virtue of the totality principle and might in fact lead to a not dissimilar reduction in time in prison to that which might have been achieved upon findings of exceptional circumstances and orders for concurrency.
There is also nothing explicit in the language of s 5(2AA), either, which targets the totality principle…
[49](2007) 169 A Crim R 348, 363 [60]–[64] (with Buchanan, Vincent, Nettle and Redlich JJA agreeing).
This Court has since adopted such an alternative approach to totality when faced with the operation of s 16(3B) of the Sentencing Act 1991.[50] For example, in R v Mourad, I said, with Vincent and Neave JJA agreeing:[51]
The Court is now required to evaluate the overall criminality involved in all of the offences for which the appellant is undergoing sentence to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of sentences imposed, which includes the sentence being served as a consequence of his breach of parole. This Court must, however, ensure that the totality principle is applied to the sentence in a manner which will not undermine the legislative policy inherent in s 16(3B). Thus, while preserving the principle of cumulation enunciated in s 16(3B), the total sentence which the appellant is required to serve might be moderated so that the aggregate of sentences imposed by reason of such cumulation is not greater than any sentence required to fulfil the totality principle.
[50]See generally (2009) 23 VR 692, 699 [33]–[36] (Redlich JA, with Ashley JA agreeing). R v Cochrane [2008] VSCA 60, [8] (Maxwell P with Buchanan and Vincent JJA agreeing). R v Tran [2009] VSCA 252 (Coghlan AJA with Maxwell P agreeing).
[51][2008] VSCA 4, [15].
This position is also consistent with principles of statutory interpretation. In Piacentino Eames JA said:[52]
Where penal legislation can be interpreted beneficially to the offender then it ought be so interpreted and in my view the interpretation of s 5(2AA) as having prospective effect only is appropriate. The principle of totality is not excluded by the language of either sub-section [5(2AA) or 16(3B)], and given that it is a general sentencing principle emphasising moderation and the avoidance of unfair and crushing sentences, it should be held to apply in all cases save where clear statutory language dictates otherwise. The language of this legislation does not so dictate, in a case where the parole has been revoked by the time of sentencing for the later offending conduct.
[52](2007) 169 A Crim R 348, 369 (with Buchanan, Vincent, Nettle and Redlich JJA agreeing).
This line of authority contemplates the ongoing operation of the principle of totality in light of s 16(3B) and an approach to applying the principle that is appropriately sensitive to the legislative policy behind the section. It is in this latter respect that a sentencing court should pay particular regard to the principles of general and specific deterrence. An offender charged with crimes, while on parole, may only be entitled to individual sentences moderated by a principle of totality that
is well attuned to generally deterring parole violation and specifically deterring the offender from further breaching parole or re-offending.[53]
[53]R v Breen; R v Hall; Sanderson [2008] VSCA 178, [20]–[30] (Osborn AJA, with Buchanan and Vincent JJA agreeing).
In accordance with these three propositions, a sentencing court is entitled to give effect to the principle of totality in light of s 16(3B) of the Sentencing Act 1991, provided that the approach to its application is conducive to the legislative intent behind the section. That would require cumulation of that portion of the individual sentences on any term of imprisonment resulting from the cancellation of parole which together satisfies the principles of totality.
The sentencing judge in this case correctly approached the principle of totality in sentencing the respondent. There is no indication that his Honour adopted an approach to applying the principle that contravened the wording of s 16(3B).[54] The consequence of his Honour’s order was that the total effective sentence for the breach offences was to be served cumulatively on the parole sentence. In the absence of indications to the contrary, and the failure to advance demonstrative argument on the point, it is my view that his Honour applied the principle of totality by first moderating individual sentences for each count, before cumulating the sentences on the parole sentence and that it was plainly open for him do so.
[54]Director of Public Prosecutions v Johnson (Unreported, County Court of Victoria, Judge Howie, 14 December 2010) [17], [21], [24].
However, in my respectful opinion, and partly for the reasons I have given in relation to the first ground of appeal, his Honour erred by either giving too much weight to the principle of totality, or failing to attenuate its full effect, given the considerations of general and specific deterrence arising from the respondent’s breach of parole.
With respect to the sentencing judge, a total effective sentence of one year and nine months imprisonment is not a ‘just and appropriate measure of the total criminality involved.’[55] It does not give sufficient weight to the policy of deterring parole violations underpinning s 16(3B) of the Sentencing Act 1991, either with respect to the respondent’s specific deterrence or to deterrence in general.
[55]Postiglione v The Queen (1996) 189 CLR 295, 307–308 (McHugh J).
Re-sentencing
In fixing the individual sentences for counts 1 and 2, and the summary charge, the principle of double jeopardy not being applicable,[56] I have given effect to the principle of totality by moderating each sentence, having regard to the legislative policy behind s 16(3B) of the Sentencing Act 1991 and the principles of general and specific deterrence attending the offender’s breach of parole. Pursuant to s 16(3B), the aggregated sentence with respect to counts 1 and 2 and the summary charge will be cumulated on the term of imprisonment served as a consequence of the respondent breaching parole.
[56]Criminal Procedure Act 2009 (Vic) s 289(2).
I would sentence the respondent on count 1, being the count of aggravated burglary, to a term of 30 months’ imprisonment. I would sentence the respondent on count 2, being the count of common law assault, to a term of 10 months’ imprisonment. I would sentence the respondent on the summary charge, being the breach of the Family Violence Intervention Order, to a term of 12 months’ imprisonment. I would order that six months of the sentence on count 2 and three months’ of the sentence on the summary count be cumulated on each other and on the sentence of imprisonment imposed on count 1, making a total effective sentence of three years’ and three months’ imprisonment. I would fix a non-parole period of two years’ and two months’ imprisonment.
Pursuant to section 6AAA of the Sentencing Act 1991, if the respondent did not plead guilty, I would have declared that he be sentenced to a total effective sentence of 5 years and 6 months’ imprisonment, with a minimum term of 3 years and 6 months’ imprisonment.
BONGIONRO JA:
I agree with Redlich JA as to his proposed disposition of this appeal, generally for the reasons which his Honour has set out. However, I respectfully disagree with his Honour's conclusion as to the sentence imposed by the County Court judge for the respondent's breach of the intervention order. That sentence was, in my opinion, manifestly inadequate for the reasons given by Neave JA, with which I agree.
- - -
28
33
0