DPP v Muliaina
[2005] VSCA 13
•2 February 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 228 of 2004
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| ROMNEY TALI MULIAINA |
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JUDGES: | WINNEKE, P., CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 31 January 2005 | |
DATE OF JUDGMENT: | 2 February 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 13 | |
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Criminal law - Sentence - Director's appeal - Eleven counts charging indecent offending - Brutal assaults on respondent's former de facto wife - Youthful offender - Undue weight by sentencing judge to offender's youth and insufficient weight to principles of general and specific deterrence - Individual sentences and total effective sentence of four years' imprisonment manifestly inadequate - Offender re-sentenced - Importance of fostering prospects of rehabilitation by benefit of supervision during lengthy parole period - Inadequacies of adult prison system in relation to youthful offenders - Head sentence should not be artificially low - Offender re-sentenced to total effective sentence of five years' and five months' imprisonment - Sentencing Act 1991, s.16.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J.D. McArdle, Q.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Respondent | Mr P.G. Priest, Q.C. with Mr G.F. Meredith | Dowling McGregor Thomas |
WINNEKE, P.:
I will invite Chernov, J.A. to deliver the first judgment in this matter.
CHERNOV, J.A.:
The Director of Public Prosecutions ("the Director") has appealed against sentences imposed by a judge of the County Court on 13 August 2004 on Romney Muliaina ("the respondent"), who is now aged 21 years, after he pleaded guilty, following a contested committal hearing, to offences charged in eleven counts in three presentments. The first presentment contained one count - false imprisonment of RW ("the victim"), who is the respondent's former de facto partner and mother of their child, who was born in June 2002. The second presentment had four counts, namely, one count of causing serious injury recklessly (count 1), two counts of indecent assault (counts 2 and 4) and one count of rape (count 3), all alleged to have been committed against the victim. The third presentment alleged six counts: aggravated burglary (count 1), common assault against the victim's friend, VA (count 2), false imprisonment of the victim (count 3), making a threat to kill the victim (count 4) and causing injury recklessly to the victim (count 5). I put to one side count 6, possessing a drug of dependence - cannabis L - because there is no complaint about the sentence imposed in relation to it. The maximum penalty for rape and aggravated burglary is 25 years' imprisonment. False imprisonment, indecent assault and making a threat to kill each carries a maximum penalty of ten years' imprisonment. The maximum custodial penalty for causing injury recklessly and common assault is five years. As I explain later, her Honour imposed a total effective sentence of four years' imprisonment and directed that the respondent serve a minimum term of two years' imprisonment before being eligible for parole.
The respondent admitted 28 prior convictions from five court appearances between 2 May 2001 and 12 March 2002. As the learned sentencing judge noted in her sentencing remarks, they included convictions involving violence, more particularly, two convictions for recklessly causing serious injury as well as convictions for indecent assault and intentionally causing serious injury. The respondent also has prior convictions for robbery, failure to answer bail and other dishonesty offences. Two of the prior convictions that involved use of violence by the respondent arose out of his savage attack on two young males on 9 March 2001 at the Dandenong Plaza Shopping Centre. The sentencing judge noted that the witnesses to that offending were shocked at the ferocity of the attack. It seems that when one of the victims refused to comply with the respondent's demand that he take off and give him his T-shirt, the respondent grabbed him by the front of the T-shirt and punched him to the head and body three or four times, causing him to lose consciousness. When the second victim went to assist his friend, the respondent punched him to the head several times. When he, too, fell to the ground, the respondent kicked him to the leg and body two or three times. The respondent was sentenced in respect of these offences to six months' detention in a youth training centre. It is relevant to note at this point that before he was sentenced by her Honour, the respondent had not been sentenced to an adult prison.
In the course of hearing the plea in mitigation made on the respondent's behalf on 27 and 28 July 2004, the learned sentencing judge received into evidence, inter alia, reports by Ms Pamela Matthews, a forensic psychologist, dated 8 June 2003 and Dr James Leahy, a consultant psychiatrist, dated 9 March 2004. The judge also heard evidence from Steven Eric Reardon, who is the Senior Court Advice Officer for Juvenile Justice in the Melbourne Central Courts and who assessed the respondent as not being suitable to be placed in a youth training centre. As Mr Priest, who appeared before us for the respondent, pointed out in his argument, Mr Reardon also told her Honour that he considered that the respondent had reasonable prospects of rehabilitation and that he might respond positively to an appropriate anger management course. The witness further said that the respondent had already completed a number of courses in this area and had acknowledged that this therapy should continue.
As I have said, on 13 August 2004, the learned sentencing judge sentenced the respondent but not as a serious offender within the meaning of the Sentencing Act 1991. The following sentences were imposed:
Presentment 1
Count 1 - false imprisonment - three months' imprisonment.
Presentment 2
Count 1 - causing injury recklessly - three months' imprisonment.
Count 2 - indecent assault - three months' imprisonment.
Count 3 - rape - two years and six months' imprisonment.
Count 4 - indecent assault - three months' imprisonment.
It is clear enough that, in the circumstances and in light of the relevant provisions of s.16 of the Sentencing Act, the sentences that were so imposed on the respondent were to be served concurrently unless her Honour "otherwise directed". In terms, however, her Honour made no cumulation directions. Rather, she directed in respect of the second presentment that "the sentences imposed on Counts 2 and Count (sic) 4 be served concurrently with the sentence imposed on Count 3 and each other" and concluded that the total effective sentence imposed on the second presentment was "therefore two years and nine months". (Emphasis added.) It is not apparent from the sentencing remarks why her Honour made such directions, but it seems likely that she wrongly assumed that unless it was ordered otherwise the respondent would be required to serve the sentence on each of counts 1, 2 and 4 cumulatively on the sentence imposed on count 3. Be that as it may, it is apparent that, in relation to the second presentment, her Honour's aim was to achieve a total effective sentence of two years and nine months' imprisonment. In the circumstances, therefore, it could be said that she effectively did so by purporting to direct, in terms, that the sentences on counts 2 and 4 be served concurrently on the sentence imposed on count 3 and on each other, and thereby implicitly directing that the sentence imposed on count 1 be served cumulatively on the rape sentence, producing a total effective sentence of two years and nine months' imprisonment.
Presentment 3
Count 1 - aggravated burglary - twelve months' imprisonment.
Count 2 - common assault - one month's imprisonment.
Count 3 - false imprisonment - six months' imprisonment.
Count 4 - making a threat to kill - six months' imprisonment.
Count 5 - causing injury recklessly - twelve months' imprisonment.
Her Honour then made "concurrency" orders on the same erroneous basis as she did in respect of the second presentment. More particularly, the learned sentencing judge directed that "the sentences imposed on Count 3 and Count 4 be served concurrently with the sentence imposed on Count 5 and each other" and concluded that the total effective sentence imposed on the first presentment was "therefore two years and one month". (Emphasis added.) Again, for the reasons given in respect of the earlier presentment, it may be said that, effectively, her Honour implicitly directed that the sentences imposed on counts 1 and 2 be served cumulatively on the sentence imposed on count 5, thereby producing a relevant total effective sentence of two years and one month.
Consistently with the earlier "concurrency directions", her Honour went on to direct that "one year and one month of the total effective sentence imposed on the third presentment be served concurrently with the total effective sentence imposed on the second presentment, to arrive at an overall sentence, on the three presentments, of four years' imprisonment." (Emphasis added.) Her Honour then ordered, as I have said, that the respondent serve a minimum term of two years' imprisonment before becoming eligible for parole. I mention for completeness that her Honour's erroneous directions and their consequences are reflected in the Return of Prisoners. For the reasons given earlier, however, what her Honour did in that regard could be said to amount to an implicit direction by her that twelve months of the total effective sentence on the third presentment and the three months' sentence imposed on the first presentment be served cumulatively on the total effective sentence of two years and six months' imprisonment imposed in respect of the second presentment, thereby producing a total effective sentence of four years' imprisonment. Whilst it is arguable that her Honour erred in her "directions" as to concurrency such as to vitiate her sentencing discretion, the issue does not require definitive resolution if the Director succeeds in his appeal because in those circumstances the respondent will have to be re-sentenced by this Court. Thus, I think it is appropriate to analyse the Director's appeal on the footing that the individual sentences and the relevant total effective sentences were as stated by her Honour.
By Notice filed 13 September 2004, the Director appeals against the inadequacy of the above sentences on the grounds that the individual sentences are manifestly inadequate and the total effective sentence and non-parole period are also manifestly inadequate.
Circumstances of offending
I now turn to summarise the circumstances of the offending and do so in the context of the counts contained in the several presentments. I mention by way of background that for some time prior to June 2002 the respondent and the victim, whom he had first met at school, were, for various periods, living in a de facto relationship with one another and in June the victim gave birth to their son. The principal circumstances which gave rise to the offending conduct that was the basis of count 1 on the first presentment were these. On a date in August or September 2002, the victim, who was then aged 18 years and was living with her parents, telephoned the respondent to say that she wanted to end their relationship. Notwithstanding that the respondent became agitated at this news, the victim agreed to his request to meet in a park, which was located approximately one kilometre from the house in which he then lived, so as to give him the opportunity of saying goodbye to his son. As soon as they met, however, the respondent grabbed the victim by the back of her neck and pushed her towards his house. When they got there, he continued to push her (while she tried to hold on to the pram which contained their son), first to the lounge room and then the kitchen. There he took a kitchen knife and forced it into the victim's hand. The respondent then attempted to guide her hand so that the knife would stab him, saying, "Now you can stab me so that it's your fault and you feel bad." The victim, however, dropped the knife when the respondent let her hand go. She then went into the lounge room to attend to their son, but the respondent again grabbed her and dragged her outside. He tied her hands and feet to a wrought-iron garden chair before climbing on top of a table and placing a rope around the rafters of a gazebo and around his neck. He stepped off the table and hung by his neck from the rope. When the victim managed to free herself, the respondent immediately pulled himself back on to the table and told her not to move. She convinced him, however, to let her telephone her mother, saying that the child needed a bottle. During the telephone conversation, the victim was able to tell her mother that she wanted her to come to the house to collect her and her son. Her parents arrived at the scene shortly thereafter and drove her and the child back to their home.
The second presentment related to the respondent's offending conduct on 15 July 2003, by which date he had resumed cohabitation with the victim. On the morning of that day he became angry with her for getting dressed because, as he said, she knew that he wanted a "root", implying that she was deliberately refusing to satisfy his wishes for sex. He grabbed her by the hair, slapped her face and hit her with a leather strap on the back of her legs several times, causing bruising to her face and legs as well as abrasions to her right arm. This conduct formed the subject of count 1, causing injury recklessly. The respondent then told the victim to get undressed, which she did, because she feared that if she refused he would beat her again. He then demanded that the victim perform oral sex on him but she refused. He grabbed her head and tried to force it down on his erect penis but she refused, saying "no" several times, and moved her head away. This conduct formed the subject of count 2, indecent assault. Count 3 on the second presentment, rape, was an agreed representative count. The conduct comprising this count followed immediately upon the respondent's attempt to force the victim to perform oral sex. He demanded that she sit on top of him and guide his penis into her vagina. He then pushed her onto a mattress which he had placed on the floor, and again put his penis into her vagina. He finally inserted his penis into her vagina again and had sex with her until he ejaculated. In between the latter two episodes he told the victim to get on her hands and knees and tried to insert his penis into her anus. The victim protested and, after a short time, he stopped. This conduct comprised count 4, indecent assault. In circumstances which are not presently relevant, the victim managed to call her parents and her brother, who came to collect her. The police were then called and the victim was taken to Monash Medical Centre where she received treatment for bruising and abrasions to her head, neck, arms, legs and chest. The respondent was interviewed by the police later that day about this incident. He denied having raped the victim but said the couple had argued about sex and that he had slapped her a number of times and hit her on the legs with a belt. On 18 July 2003, the victim obtained an intervention order against the respondent, prohibiting him from coming within 200 metres of her home.
The offences which were the subject of the third presentment were committed by the respondent on 29 July 2003, by which date they did not cohabit, although it was said by the respondent that the victim had stayed overnight with him on the previous two days. It is not clear whether they had sex on those nights. Be that as it may, on 29 July the victim and her young son, together with the victim's friend, VA and her then ten-week-old daughter, were at the victim's parents' home, where she then lived. The respondent telephoned her, asking if he could visit her. The victim refused his request and an argument broke out between them. The respondent nevertheless drove to the victim's home and banged and kicked on the front door, demanding to be let in. The victim locked the front door and telephoned the police, fearing for her safety. Eventually, the respondent managed to enter the house through an unlocked garage door that led to the laundry, which was also unlocked. This unlawful entry constituted count 1, aggravated burglary. When the respondent entered, VA was standing just inside the laundry, holding her baby. Upon seeing her, he pushed her and the child into the back yard, locking the door behind them. This conduct formed the basis of count 2, common assault. The victim attempted to telephone the police again, but the respondent grabbed the telephone from her and demanded that she "get some stuff" and come with him. He then went to VA and told her that if she told anyone what had happened he would kill her and her child. By this time, the victim was holding her son. The respondent grabbed her by the hair and forced her and the child into his utility. She did as he told her, fearing for her safety, and the respondent then drove off. This conduct formed the subject of count 3, false imprisonment. Whilst he drove, the respondent turned and punched the victim to the head with his fist, saying, "You are going to get it now, bitch, I'm going to fucking kill you" (count 4 - making a threat to kill). When the respondent reached his parents' home, he ordered the victim to go inside. Once she was there, he snatched the child and put him on the floor. He then grabbed the victim by her hair, ripping a clump of it from her head, and threw her on the couch. He then punched her to the face with a clenched fist and hit her with a wooden rolling pin to the legs, shoulders and back, as well as hitting her with a vacuum cleaner hose, before grabbing her by the throat and saying, "Die, bitch, die". This conduct constituted count 5, recklessly causing injury. Later, the police arrived, having been alerted by the respondent's parents' neighbours who were concerned for the victim's welfare. They first spoke to the respondent on the telephone, and then entered the house, negotiating for the release of the victim and her son. The respondent eventually let them go and was then arrested. The victim was treated by ambulance officers waiting at the scene for bruising and swelling to her face, neck, arms and legs. The respondent was arrested that day and was interviewed by the police, in the course of which interview he made a number of admissions.
The respondent's personal circumstances
The respondent was born in American Samoa on 25 January 1984. His parents were Mormons and he was brought up in the strict traditions of that faith by an authoritarian father, who was a bishop in the Samoan Ward of the Mormon Church, although he worked in a manual occupation during the week. When the respondent was approximately one year old, the family moved to New Zealand and about six years later emigrated to Australia. The respondent claims that, as a child and adolescent, he was beaten regularly by his father, not only for his behaviour, but also for the behaviour of his siblings because he was the eldest. The beatings increased, he claimed, when he refused to go to church. He also said that he was not allowed to have friends other than those from their church and he was not allowed to engage in activities outside the home unless they were related to the church. The respondent was educated to Year 11 but during that year left, after he met the victim, because he lost interest in education.
By the time the respondent was 15 years old he was a regular user of drugs. In the main, he used cannabis and alcohol on a regular basis. By the time of the offending, he had experienced a number of psychological or mental problems, such as nightmares, mood changes and the like and had a history of self-harm. But the psychological and psychiatric reports to which reference has been made do not support the view that he suffers from any psychiatric illness; they confirm that the respondent was of above average intelligence. For example, the learned sentencing judge noted in her sentencing remarks that Dr Leahy opined that the respondent had demonstrated no evidence of psychosis, that his insight was good and that he experienced "appropriate remorse". In his report, Dr Leahy pointed out that the respondent had resolved to discontinue permanently the use of illicit drugs and, to that end, had undergone a number of appropriate programs in prison and had remained drug-free. He considered that it was less likely than before that the respondent would offend violently again. But the learned judge, understandably, I think, had some reservations in accepting this prognosis, given that Dr Leahy was unaware that the respondent had a history of violent offending and also did not know that he had been charged with the counts in the first and second presentments.
The appellant's principal case
In support of ground 1, namely, that the individual sentences in question are manifestly inadequate, Mr McArdle for the Director emphasised the aggravating features of the respondent's offending conduct, pointing particularly to the following matters.
(a)The offending conduct, he said, amounted to sustained domestic violence of considerable magnitude resulting in the victim being terrified and physically assaulted and injured. The respondent's offending involved three separate episodes of violence, some in the presence of their very young son and involved court and police intervention.
(b)The respondent engaged in violent behaviour that formed the third set of offences notwithstanding that he had been told by the police that he might be charged in relation to the immediately preceding episode of offending and despite the fact that the victim had taken out an intervention order against him. This, said counsel, demonstrated the respondent's disregard of formal warnings that he should not use violence against others.
(c)Given his age, the respondent has a serious criminal history, including convictions for offences that involved physical violence. In the circumstances, it was said, general and specific deterrence assumed considerable significance in the sentencing disposition (yet, it was contended, they were not given appropriate weight by the sentencing judge).
(d)The offences were very serious, as is evidenced by the maximum custodial sentences that are prescribed by the legislation (and which have already been identified).
Counsel also contended that the respondent's prospect of rehabilitation was not a pre-eminent consideration, so that his relatively young years did not diminish materially the importance of the applicable sentencing principles, such as general and specific deterrence. In that regard, Mr McArdle referred to DPP v. Lawrence[1] in which Batt, J.A., with whom the President and Nettle, J.A. agreed, observed[2] that the general propositions accepted by his Honour in R. v. Mills[3] "were just that, general propositions not of usual or automatic application". The sentencing judge, however, Mr McArdle claimed, attributed too much weight in her sentencing considerations to the respondent's youth and prospects of rehabilitation.
[1][2004] VSCA 154.
[2]At [16].
[3][1998] 4 V.R. 235 at 241.
It was put for the Director, as I have mentioned, that all the individual sentences are manifestly inadequate. In particular, it was said that the sentence imposed on the rape count is plainly too low, given particularly the following matters. First, the offending involved acts of considerable violence, to which reference has already been made. Further, the respondent accepted that the count was a representative count and, therefore, said counsel, the principles stated in R. v. SBL[4] applied. Next, the maximum custodial sentence for rape is 25 years' imprisonment. In that context, counsel also highlighted the applicant's prior criminal history and the importance of the principles of general and specific deterrence. It was submitted for the Director that like considerations operated generally in relation to the other sentences, with the result that each of them is plainly inadequate. It was, however, acknowledged for the Director, rightly, I think, that the learned judge recognised in her sentencing remarks the violent nature of the respondent's conduct and his anger at the victim during these episodes, describing the conduct as "appalling" and "mind bogglingly brutal". Moreover, it was accepted by the Director that her Honour properly took into account the mitigating factors that were urged on her by the respondent's counsel, except that, according to counsel, she gave undue weight to the respondent's youth and prospects of rehabilitation, as I have already mentioned. It was said, however, that notwithstanding that her Honour recognised these aggravating matters, the individual sentences and the effective orders for cumulation failed to reflect this or the importance of the sentencing principles of general and specific deterrence. For like reasons, it was said, the total effective sentence fails to reflect the gravity, the period of offending, the multiplicity of the offences and victims, the respondent's criminal history and the principles of general and specific deterrence. It was also submitted that the non-parole period was, in the circumstances, too short. These sentencing errors, said Mr McArdle, were of such magnitude that a correction to them was required by this Court.
[4][1999] 1 V.R. 706.
I mention for completeness that it was suggested by Mr McArdle that, during the hearing of the plea in mitigation, her Honour expressed doubt as to whether the respondent would be let out on parole and it was because of this view that her Honour imposed such low sentences. It seems to me, however, that there is no support for this contention in her Honour's sentencing remarks.
The respondent's principal case
In the course of his submissions for the respondent, Mr Priest reminded the Court of the principles that govern the Director's appeals. These principles are well known and need not be re-stated here. Mr Priest's principal argument in support of his submission that the sentences were appropriate, or at least within the relevant range, was that they properly reflected her Honour's endeavour to impose a sentence that would foster the respondent's prospects of rehabilitation, which was a most important, if not critical, end to be attained in this case, given the respondent's youth, the fact that he had not previously served time in an adult prison and that he had at least some prospects of rehabilitation. Counsel emphasised the evidence given by Mr Reardon on the latter issue to which reference has already been made. Thus, it was said for the respondent, any sentence that is to be imposed on him must be structured so that he is exposed to the minimum period of incarceration in an adult prison and has the benefit of supervision and relevant assistance during a relatively lengthy period of parole. In this context Mr Priest referred to the judgment of Fox, J. in R. v. Dixon[5], in which his Honour highlighted[6] the gross inadequacies of the adult prison system in relation to youthful offenders who have not before been sentenced to adult prison and its likely, or potentially, detrimental effect on such persons.
[5](1975) 22 A.C.T.R. 13.
[6]At 19-20.
Mr Priest also emphasised the respondent's personal circumstances, particularly his harsh upbringing which, as the respondent claimed, involved the use of violence by his father against him and which, counsel said, largely explained the respondent's anger and his great difficulty in controlling it. It was said that the Matthews report in particular shows that this environment was in part responsible for the respondent's inability to control sufficiently the anger that he experienced on the occasions of his offending. Counsel also suggested that the victim's behaviour towards the respondent - breaking up their relationship and then going back to him - engendered in him a certain amount of confusion as to where he stood with her so that he became angry when she sought to reject him and was unable to control that anger.
Although acknowledging that the respondent's offending conduct was, in the relevant sense, inexcusable, Mr Priest sought to put it in context. He submitted that the respondent's attempts to have the victim stab him and hang himself as I have described were, as he said, "bizarre", and amounted to a pathetic display of immaturity on his part. Similarly, the rape episode, said counsel, occurred during an ongoing relationship and, although the respondent's conduct in that regard was to be deplored, it did not fall within the gross end of the relevant scale. In the circumstances, Mr Priest submitted, the sentences were appropriate and, consequently, the appeal should be dismissed.
It may be accepted that, in an appeal such as the present, an appellate court will be unwilling to interfere with the sentences imposed below on the sole ground of manifest inadequacy unless it is satisfied that they are plainly erroneous or unreasonable.[7] I am satisfied that all, or at least a significant number, of individual sentences, and the total effective sentence, meet that description.
[7]See, for example, R. v. Clarke [1996] 2 V.R. 520 at 522 per Charles, J.A., with whom the President and Hayne, J.A. agreed; DPP v. Johnston [2004] VSCA 150 at [26] to [28] and DPP v. Gardner & Coates [2004] VSCA 119 at [24] per Winneke, P. Also see DPP for the Commonwealth v. Low & Ors. [2004] VSCA 250 at [21].
Whether a sentence is manifestly inadequate does not admit of much argument. In order that it accords with the required standard, the sentence must reflect the gravity of the crime in the context of the mitigating circumstances and the relevant sentencing principles. In my view, after making full allowances for the matters personal to the respondent, and to the other mitigating factors, it is not possible to equate the sentences imposed with the gravity of the crimes. It seems plain enough that the respondent's offending conduct had the aggravating features for which the Director contended. It was brutal and cowardly and was, in the relevant sense, ongoing. It involved, in the main, ferocious physical attacks by the respondent on a much weaker victim whom the respondent claimed to love. On those occasions he treated her as if she were his slave who had to do his bidding or be severely punished if she refused. Such conduct is clearly unacceptable to this community and must be denounced by the courts. That the respondent experienced the brutal upbringing for which he contended does not make his behaviour, even though it may have been a manifestation of his uncontrolled anger, any more acceptable.
The fact that the respondent's conduct in relation to the count in the first presentment might be described as "bizarre", involving a degree of melodrama on his part which was, in the true sense, pathetic from his point of view, cannot hide the fact that he used his superior physical strength and aggressive manner to force the victim to go from the park where they met to his house and there subjected her to a frightening, if not terrifying, experience. In effect, he kept her captive until she managed to deceive him into allowing her to use a telephone to call her parents and thus escape from him. I consider that, in all the circumstances, the sentence of three months' imprisonment in respect of that offending conduct is plainly inadequate. The same conclusion applies, I think, in relation to the sentences imposed for the respondent's offending in the course of which he raped the victim. He beat her because he considered that she had tried to avoid having sex with him and then subjected her to a brutal and humiliating experience when he forced himself on her as described. Thus, for example, the sentence imposed on the rape count is manifestly inadequate given the violent circumstances in which it took place and the fact that, as the respondent accepted, the count was a representative count, thereby entitling the sentencing judge to look at the whole of the circumstances of that offending, even if they disclosed separate offences of the same kind.[8] Similarly, I think, the sentences imposed in relation to the third presentment are plainly too low given the violent nature of the offending conduct, which involved subjecting the victim to a terrifying experience and to being brutally beaten simply because she had refused to see him and denied him access to her house in the context where the court had prohibited his access to it. In particular, the offending conduct that formed the basis of count 3 effectively involved the respondent kidnapping the victim in a violent manner and subjecting her to what must have been a most terrifying experience. In my view, the sentence imposed in relation to that offending clearly does not reflect the gravity of the crime.
[8]See SBL at 711 per Phillips, C.J., at 717-725 per Ormiston, J.A. and at 725-726 per Batt, J.A.
Although her Honour recognised, as I have indicated, the ferocious aspects of the respondent's offending conduct, which she effectively denounced, and most of the other aggravating matters applicable to the offending, I consider that she failed to reflect them in the individual sentences and that the total effective sentence plainly fails to reflect the totality of the respondent's criminal conduct. Substantial attention was directed by Mr Priest in the course of his submissions to the respondent's youth and to her Honour's endeavour to ensure that the sentence imposed gave him the opportunity of spending a minimum period in an adult prison and a lengthy time under supervision while on parole. In my view, however, in the circumstances of this case, the weight to be given to the respondent's youth for sentencing purposes is limited.
It may be accepted that, ordinarily, an offender's youth is a very powerful mitigating circumstance that calls for rehabilitation to be in the forefront of the factors that govern the sentencing disposition. But it should be said that the offender's youth and the prospects of rehabilitation may be overridden, at least to a significant extent, by other sentencing considerations that point to the need to impose a substantial custodial sentence. The weight to be given to youth as a mitigating factor must depend on all the circumstances of the case. Thus, in R v. Mills[9], Batt, J.A. accepted that the youth of the offender is a primary consideration (my emphasis) for sentencing purposes, and in R. v. Bell[10] the same learned judge again emphasised[11] that the general propositions stated in Mills about the significance of youth of the offender for sentencing purposes "are just that - general propositions". In R. v. Teichelman[12], Batt, J.A., with whom Phillips, C.J. and Buchanan, J.A. agreed, noted[13] that, notwithstanding that the youth of an offender is a powerful mitigating factor, it may, in the face of other powerful considerations, be subjugated to other sentencing principles or purposes. For example, where general deterrence must be emphasised in the punishment of an offence, as here, there may be correspondingly less scope for leniency on account of the offender's youth.[14] I consider that this is particularly so in a case such as the present where, notwithstanding the anger of the respondent, he must have been fully aware of the nature of his offending conduct. I add for completeness that although in the case of a young offender the focus is usually placed on his or her prospects of rehabilitation, it is not really clear to me that her Honour accepted that the respondent's prospects in that regard were sound. It will be recalled that she effectively rejected Dr Leahy's opinion that the respondent was unlikely to commit acts of violence again. Be that as it may, and as I have noted, although her Honour correctly characterised the gravity of the respondent's offending conduct, she probably gave undue weight in her sentencing disposition to his youth and gave insufficient attention to the principles of general and specific deterrence. Thus, as I have said, I consider that the individual sentences, or at least a significant number of them, are plainly inadequate, as is the total effective sentence. For completeness I mention that, in my view, the circumstances of this case do not warrant this Court exercising its overriding discretion to decline to intervene in the sentencing process. Consequently, I would allow the Director's appeal and re-sentence the respondent.
[9]At 241-242.
[10][1999] VSCA 223.
[11]At [14]. See also D.P.P. v. S.J.K. [2002] VSCA 131 at [60] per Phillips, C.J., Chernov and Vincent, JJ.A., and Lawrence, to which reference has already been made.
[12][2000] VSCA 224.
[13]At [20].
[14]R. v. Hatfield [2004] VSCA 195 at [11] per Chernov, J.A.
As Charles, J.A., with whom the President and Hayne, J.A. agreed, pointed out in Clarke[15], in exercising this discretion, the Court should ordinarily give recognition to the principle of double jeopardy (in twice standing for sentence), by imposing a sentence that is somewhat less than it considers should have been imposed in the first instance. Moreover, I think there is much force in Mr Priest's submission that, given the respondent's relatively young years and that he might have some prospects of rehabilitation, it is plainly desirable, from his point of view, and that of the community at large, that the sentence be structured so as to give him the opportunity of having a long parole period under supervision and so that he not spend an unduly long time in an adult prison. Whilst this may be accepted for present purposes, it is also necessary to bear in mind that where, as here, the offender has committed multiple offences, the sentence imposed in respect of each offence must reflect the seriousness of it and of the offending. An appropriate and just total effective sentence may then be arrived at by ordering partial or total cumulation of the sentences.[16] As Ormiston, J.A. explained in DPP v. Grabovac[17]: "In general a court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. ... it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences." The essential end for which Mr Priest contended, however, may be accommodated by the imposition of a relatively short non-parole period.[18] In the circumstances, I would re-sentence the respondent to the following periods of imprisonment.
[15]At 522.
[16]See R. v. McCorriston [2000] VSCA 200 at [12]-[14] per Callaway, J.A.
[17][1998] 1 V.R. 664 at 680.
[18]See, for example, R. v. Bolton & Barker [1998] 1 V.R. 692 at 699, fn. 19, and the cases there referred to by Callaway, J.A. (with whom Hayne and Charles, JJ.A. agreed) and R. v. VZ [1998] VSCA 32 at [14] per Callaway, J.A. (with whom Phillips, C.J. and Batt, J.A. agreed).
Presentment 1
Count 1 - 12 months.
Presentment 2
Count 1 - 15 months.
Count 2 - 6 months.
Count 3 - 4 years.
Count 4 - 6 months.
Presentment 3
Count 1 - 12 months.
Count 2 - three months.
Count 3 - 18 months.
Count 4 - 6 months.
Count 5 - 12 months.
I would affirm the sentence imposed by her Honour in respect of count 6 of the third presentment. I would direct that of the sentences imposed on counts 1, 2 and 4 in the second presentment, two months, one month and one month respectively be cumulated on the sentence imposed on count 3 of that presentment and upon each other, thereby imposing a total effective sentence of four years and four months' imprisonment in respect of that presentment. I would also direct that, in respect of the sentences imposed in relation to counts 1 and 5 of the third presentment, one month of each such sentence be cumulated on the sentence imposed on count 3 and upon each other, thereby producing a total effective sentence in respect of the third presentment of one year and eight months' imprisonment. I would further direct that one year of the latter total effective sentence and one month of the sentence imposed in respect of the first presentment be served cumulatively on the total effective sentence imposed in respect of the second presentment, thereby producing a total effective sentence of five years and five months' imprisonment. Given the mitigating circumstances referred to earlier, I would direct that the respondent serve a period of three years' imprisonment before becoming eligible for parole.
WINNEKE, P.:
For the reasons given by Chernov, J.A., I agree that this appeal should be allowed and the sentences imposed by her Honour set aside, and that in lieu thereof this Court direct that the sentences to which Chernov, J.A. has referred be imposed.
CHARLES, J.A.:
I also agree.
WINNEKE, P.:
The formal orders of the Court will be as follows.
The appeal by the Director of Public Prosecutions is allowed.
The sentences imposed by the trial judge are set aside. In lieu thereof this Court substitutes the following sentences:
On Presentment No.1 -
Count 1 - 12 months' imprisonment.
On Presentment No.2 -
Count 1 - 15 months' imprisonment.
Count 2 - 6 months' imprisonment.
Count 3 - 4 years' imprisonment.
Count 4 - 6 months' imprisonment.
On Presentment No.3 -
Count 1 - 12 months' imprisonment.
Count 2 - 3 months' imprisonment.
Count 3 - 18 months' imprisonment.
Count 4 - 6 months' imprisonment.
Count 5 - 12 months' imprisonment.
The sentence imposed on count 6 on the third presentment is affirmed.
In respect of the sentences imposed on the second presentment, the Court orders that of the sentences respectively imposed on counts 1, 2 and 4, the terms of two months, one month and one month be cumulated upon the sentence of 4 years imposed on count 3. The total effective sentence on that presentment will therefore be 4 years and 4 months' imprisonment.
In respect of the sentences imposed upon the third presentment, the Court orders that one month of each of the sentences imposed on counts 1 and 5 be cumulated upon each other and upon the sentence imposed on count 3. The total effective sentence on Presentment 3 will therefore be one year and 8 months.
We further direct that one year of the total effective sentence imposed on Presentment 3 and one month of the sentence imposed on Presentment 1 be served cumulatively upon the total effective sentence imposed in respect of Presentment 2.
The ultimate total effective sentence to be served by the respondent will therefore be 5 years and 5 months' imprisonment. The Court orders that the respondent serve a period of 3 years before becoming eligible for parole.
We declare pursuant to s.18 of the Sentencing Act 1991 that the respondent has already served a period of 553 days of the sentences imposed. We direct that that declaration and its details be noted in the records of the Court.
There will be a certificate granted pursuant to the Appeal Costs Act to the respondent.
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