DPP v Smith

[2019] VSCA 266

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0102

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
MARK SMITH	Respondent

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JUDGES:	KYROU, KAYE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 November 2019
DATE OF JUDGMENT:	21 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 266
JUDGMENT APPEALED FROM:	[2019] VCC 575 (Judge Gucciardo)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Causing injury intentionally – False imprisonment – Make threat to kill – Rape – Contravene final family violence intervention order – Sentence of 7 years and 6 months’ imprisonment with non-parole period of 5 years – Whether manifestly inadequate – Grave offending – History of violent offending – Domestic violence context – Mitigating factors – Low cognitive functioning – Significant acquired brain injury – Specific and general deterrence – Appeal allowed – Resentenced to 10 years and 6 months’ imprisonment with non-parole period of 8 years – DPP v Karazisis (2010) 31 VR 634, Pasinis v The Queen [2014] VSCA 97 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Gibson QC with Ms G Coghlan	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr L Hartnett with Ms G Connelly	Papa Hughes Lawyers

KYROU JA

KAYE JA
T FORREST JA:

1. On 24 January 2019 in the County Court, the respondent pleaded guilty to charges 1, 2 and 7.  On 26 March 2019, he pleaded guilty to summary charges 1 and 4 before the same Court.

1. On 6 February 2019, the respondent was convicted by a jury on charges 6, 8 and 9.  He was sentenced on 30 April 2019 as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Causing injury intentionally (Crimes Act 1958 s 18)	10 years’ imprisonment	9 months’ imprisonment	1 month
2	Causing injury intentionally	10 years’ imprisonment	9 months’ imprisonment	1 month
6	False imprisonment (common law)	10 years’ imprisonment (Crimes Act1958 s 320)	15 months’ imprisonment	2 months
7	Causing injury intentionally	10 years’ imprisonment	3 years and 6 months’ imprisonment	12 months
8	Make threat to kill (Crimes Act 1958 s 20)	10 years’ imprisonment	12 months’ imprisonment	2 months
9	Rape (Crimes Act1958 s 39(1))	25 years’ imprisonment	6 years’ imprisonment	Base
Summary charges
1	Contravene final Family Violence Intervention Order (Family Violence Protection Act2008 s 123)	2 years’ imprisonment	3 months’ imprisonment	Concurrent
4	Contravene final Family Violence Intervention Order	2 years’ imprisonment	3 months’ imprisonment	Concurrent
Total effective sentence:		7 years and 6 months’ imprisonment
Non-parole period:		5 years’ imprisonment
Sentencing Act 1991Pre-sentence detention declaration ( s 18(1)):		595 days
Section 6AAA statement:		8 years and 6 months’ imprisonment with a non-parole period of 6 years

1. The appellant argued one ground of appeal against sentence:

The individual sentences, the orders for cumulation, and the total effective sentence imposed are each manifestly inadequate.

Particulars

The sentences reflect that the learned sentencing judge:

(a)Failed to properly consider the objective gravity of the offending conduct;

(b) Failed to give sufficient weight to the sentencing principles of just punishment, denunciation, general deterrence, specific deterrence and the protection of the community;

(c) Failed to give sufficient weight to the maximum penalties for the offences;

(d) Made orders for cumulation which, in combination         with the sentence imposed on charge 9, resulted in a total effective sentence and non-parole period that are manifestly inadequate;

(e) Failed to give sufficient weight to the impact of the          offending on the victim.

Background to the offending

1. At the time of the offending, the respondent was aged between 47 and 48.  His victim, SW, was aged between 46 and 48.  The respondent and SW were in an intermittent de facto relationship for a few years prior to the offending.

1. On 29 July 2015, a 12-month family violence intervention order (‘FVIO’) was granted at the Wangaratta Magistrates’ Court, which listed the respondent as the respondent to the FVIO and SW as the protected person.  The FVIO was granted following an incident on 24 July 2015, when the respondent argued with SW about him texting other women, and he punched and kicked SW in the face, causing two cuts to the nose and heavy bleeding.  The respondent pleaded guilty to recklessly causing injury to SW and on 16 December 2015 in the Magistrates’ Court, was sentenced to an 18-month Community Correction Order (‘CCO’) with conditions.

1. At the time of the offending in 2016, the respondent was on a CCO and was the subject of the FVIO. 

The offending

1. On 14 February 2016, SW was at the respondent’s address in Alfredton, despite the FVIO.

1. After answering the respondent’s telephone and hearing a female voice, SW became suspicious that the respondent may have a girlfriend.  SW also found a Valentine’s Day card in the glove box of the respondent’s car and suspected that it was not for her.  The respondent became angry and aggressive when SW questioned him about the card, and he pulled SW by her shirt towards him.  The respondent struck SW over the head with a set of keys to which a small torch was attached.  This immediately caused SW’s head to bleed.  (Charge 1 — Causing injury intentionally) SW lost consciousness during the attack.  The respondent dragged SW into the house by her hair.  She later regained consciousness on a mattress on the lounge room floor.  The respondent would not let SW leave the house.

1. On 17 February 2016, SW was still at the respondent’s house.  She asked the respondent for her phone to call her son.  The respondent became angry and punched SW in the face.  (Charge 2 — Causing injury intentionally)  The respondent also stomped on SW’s head, which immediately caused bleeding from SW’s nose.  The respondent then pulled SW around the room by her hair and threw her to the floor.

1. At the time of committing charges 1 and 2, the respondent breached the FVIO.  (Summary charges 1 and 4 — Contravene FVIO)

1. After the assault the subject of charge 2, SW managed to escape to the neighbour’s house and the police were called.  They attended the neighbour’s house and SW was transported to Ballarat Base Hospital, where she received treatment for her injuries, including cuts to her face and bruising to her back.  We have viewed photographs of her injuries.

1. On 8 September 2017, SW met with the respondent.  The respondent drove SW to his house in Alfredton.  Upon arrival, the respondent dragged SW out of the car and into the lounge room.  He threw her onto a mattress on the lounge room floor.  He said, ‘I’m going to be famous, I’m going to be on the news,’ and picked up a metal bar next to the coffee table.  He then used the metal bar and his fists to strike SW on the head, while saying that he was going to kill her.  (Charge 8 — Threat to kill)

1. The respondent and SW wrestled on the mattress.  He pushed his fingers into her mouth, ripped out her dentures, snapped them in half and said, ‘You won’t be needing these.’ (Charge 6 — False imprisonment; Charge 7 — Causing injury intentionally)

1. The respondent then dragged SW into the shower and pressed a metal pole against her throat.  He grabbed her breasts violently and hit her repeatedly on the head.  He also tried to cut her throat with a razor, but she managed to knock the razor out of his hand.  He placed the metal bar under her chin and lifted her off the ground.  It is unclear whether this occurred in the shower or in the kitchen.

1. Sometime after this attack, SW passed out on a mattress in the lounge room.  When she regained consciousness, the respondent was penetrating her vagina with his penis while she lay face down on the mattress.  He ejaculated into her vagina, pulled his penis out, spat on the back of her head and called her a ‘slut’.  (Charge 9 — Rape)

1. The next day, SW begged the respondent to take her to the hospital.  He refused, but left the house to buy cigarettes.  While he was out of the house, SW escaped to the neighbour’s property.  At the neighbour’s house, police and paramedics were called.  SW was taken to the Ballarat Base Hospital.  She suffered many injuries, including cuts, bruises and fractures.  These fractures were to the left zygomatic arch,[1] the anterior and lateral walls of the left maxilla, and the anterior and medial walls of the right maxilla.[2]

   [1]The left cheekbone.

   [2]The jawbones that meet behind the upper lip and below the nose.

1. On 12 September 2017, the respondent was arrested and participated in a record of interview.  He admitted the substance of most of the assaults and admitted having sex with the complainant, but maintained that it was consensual and initiated by the complainant.

The judge’s reasons for sentence

1. In his sentencing reasons, the judge referred to Pasinis v The Queen,[3] and emphasised the need to consider general and special deterrence when sentencing offenders of family violence:

The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.[4]

[3][2014] VSCA 97 (‘Pasinis’).

[4]Ibid [57].

1. His Honour stated that the respondent’s conduct towards SW was degrading, humiliating, and carried out in ‘utter disregard for her physical and personal dignity and integrity’.[5]  The judge considered that the offending was grave and the respondent’s moral culpability was high.  Counsel for the respondent had earlier submitted that in relation to charges 1 and 2, the injuries to SW were minimal and the assault was somehow ameliorated by the fact that SW had voluntarily attended the respondent’s premises.  The judge rejected this submission.[6]

   [5]DPP v Smith [2019] VCC 575, [19].

   [6]Ibid [20].

1. In sentencing the respondent, the judge took into account the respondent’s pleas of guilty to charges 1, 2 and 7 (intentionally causing injury), and to the summary charges.  The judge considered, however, that the pleas of guilty to the ‘causing injury’ charges were not accompanied by remorse.

1. The judge also considered the respondent’s personal circumstances, which included the following:[7]

   [7]Ibid [27]–[44].

·The respondent was the second youngest of 10 or 11 children.  At the time of sentencing, he was 50 years old. 

·He was placed in an orphanage at two years old and was made a ward of the state sometime after that.  He has lived in a boys’ group home, a boarding house and a hostel.  He has also lived on the streets from time to time.

·He left school at Year 8, and worked at a petrol station and shoe factory.  He then primarily worked as a bricklayer for over 20 years.

·At around age 19, he was homeless in Queensland and was involved in a car accident, which caused serious internal and head injuries.  His hearing was affected.  After the accident, he went to live with his sister, who supported his recovery.

·He lived in South Australia for five years.

·At around age 30, he returned to Victoria and met his wife soon after.  His father died in 2002 and his wife died in 2008.  In 2014, he began a relationship with SW. 

·The respondent has smoked cannabis from adolescence.  He also regularly abuses alcohol, and has used amphetamine and crystal methamphetamine for years.

·Alison Mynard, clinical psychologist, concluded that the respondent suffered from a mild alcohol related brain injury, and severe traumatic brain injury with borderline to mildly impaired cognitive range of impairment.  The respondent also suffers from severe depression and anxiety.

·In prison, the respondent tends to sleep for most of the day and prefers to isolate himself. 

·Ms Mynard noted that the respondent had stunted development with an inability to emotionally regulate his behaviour, as well as issues with impulse control, anger management and emotional regulation.

·He would require long-term and intensive treatment to address the chronic issues of brain injury and psychological illness in order to reduce the likelihood of reoffending.

·The respondent’s criminal history includes a number of dishonesty and drug matters from the age of 15, including an assault and robbery at 15 years old when he was returned to care by this Court.  From 1993, the respondent received fines, suspended sentences and community-based dispositions for a variety of offences, and a 30-month wholly suspended sentence in 2010 for aggravated burglary with an offensive weapon, intentionally causing injury and recklessly causing injury.

·The respondent’s criminal history also includes failure to comply with court orders on five previous occasions.

1. While the judge took the respondent’s personal circumstances into account, and accepted that his upbringing was disadvantaged and dysfunctional, his Honour stated that this background does not render the respondent’s behaviour acceptable by any means.[8]

This appeal

[8]Ibid [24].

Appellant’s submissions

1. The appellant submitted that the individual sentences and the total effective sentence were wholly outside the range that was reasonably open to the judge.  No specific error was alleged.  Counsel for the appellant submitted that the sentences imposed on each of charges 1 and 2, and summary charges 1 and 4, represent only a small fraction[9] of the maximum penalty for the offence of causing injury intentionally.  Having regard to the circumstances of the offending and the injuries inflicted on the victim, the sentences imposed failed to properly reflect the gravity of the offences, the high moral culpability of the respondent and the impact the offending has on the victim.  It was submitted to this Court that the principles of general and specific deterrence are not sufficiently reflected in the sentences on these charges.

   [9]7.5 per cent for charges 1 and 2; 12.5 per cent for summary charges 1 and 4.

1. The same submissions were made with respect to the remaining charges.  The appellant noted that the sentence on charge 6 (false imprisonment) represents 12.5 per cent of the maximum penalty for the offence, the sentence on charge 7 (intentionally causing injury) is 35 per cent of the maximum, the sentence on charge 8 (threat to kill) is 10 per cent of the maximum and the sentence on charge 9 (rape) is 24 per cent of the maximum sentence available.  Further, as these were offences of physical and sexual violence against a woman, the appellant argued that general deterrence should have been the primary sentencing principle, however, it is not reflected in the sentences.

1. The appellant also submitted that the orders for cumulation do not adequately reflect the gravity of the offending and that the judge gave excessive weight to the principle of totality. 

Respondent’s submissions

1. The respondent submitted the individual sentences, the total effective sentence and the orders for cumulation were well within the range open to the sentencing judge.  The respondent argued that the judge ‘fully appreciated’ the gravity of the offending when sentencing the respondent, and that the individual sentences and the total effective sentence were appropriate in all the circumstances.  The respondent argued that the judge took into account specific and general deterrence, particularly as his Honour emphasised the domestic context in which the offending occurred and gave considerable weight to the law’s increasing recognition of the effects of family violence.

1. The respondent submitted that there were powerful mitigatory factors in his favour, and the judge correctly took these into consideration.  These factors include the respondent’s turbulent childhood (the cause of many of the respondent’s mental and emotional issues) and brain injury, all of which render imprisonment more onerous for the respondent than a person of normal health.[10]

   [10]R v Verdins (2007) 16 VR 269.

Analysis

1. This Court has stated on numerous occasions that manifest inadequacy is a difficult ground to establish.[11]  It is not enough for an appellate court to determine that it would have imposed a different, higher sentence.  In cases where no specific error is identified, the impugned sentence or sentences must be shown to be wholly outside the range of sentences available to the sentencing judge.[12]  In this appeal, no error was identified by the appellant in his Honour’s carefully structured reasons.  We have concluded, however, that notwithstanding the many factors relied upon in mitigation, several of the individual sentences imposed and the orders for cumulation are wholly inadequate and, in combination, have produced a total effective sentence that is so below the range of sentences available as to reveal an error of principle.

   [11]See, eg, DPP v Karazisis (2010) 31 VR 634, 662–3 [127]–[128] (‘Karazisis’);  DPP v Zhuang (2015) 250 A Crim R 282, 295 [40]; DPP (Cth) v Ramos [2018] VSCA 290, [39]; DPP v Macarthur [2019] VSCA 71, [59]–[60].

   [12]Karazisis (2010) 31 VR 634, 662–3 [127].

1. We agree with the judge that the February 2016 offending was serious.  The respondent assaulted the diminutive complainant with a weapon, and caused physical injury involving a short loss of consciousness.  He dragged her inside by the hair, and kicked her in the head and face region.  Three days later, he assaulted her again.  He punched her in the face, pulled her to the floor by her hair and stomped on her face, causing immediate bleeding from her nose.  Whilst this conduct pales in comparison to the September 2017 attack, it is serious in its own right, and displays towards the complainant a callous indifference to her welfare and dignity.  The complainant was hospitalised, and treated for facial cuts and bruising, together with bruising to her back.  Both offences were committed whilst the respondent was the subject of a FVIO.  As we have observed in para 5 of these reasons, this FVIO was made in respect of a similar assault on 24 July 2015.

1. This abusive relationship between the respondent and complainant apparently persisted, at least intermittently, over the ensuing 21 months.  The September 2017 offending involved genuinely appalling misconduct.  We have set out a summary of this episode in paras 13 to 16 of these reasons.  It bears a little repetition.  The respondent threw the complainant to the lounge room floor, and struck her about the head and face with his fists and a metal bar.  As he was striking her, he was saying that he was going to kill her.  If he did not mean it, he meant her to think that he did.  He put his fingers in her mouth, tore out her dentures, snapped them in half and said, ‘You won’t be needing these.’  He somehow undressed her and dragged her into the shower, grabbed her breasts violently and hit her about the head.  He tried to cut her throat with a razor but the complainant knocked it away. 

1. At some stage, either in the shower or the kitchen, he put the metal bar against her throat under her chin, and lifted her feet from the ground.  The complainant passed out and when she regained consciousness, she was lying face down on a mattress in the lounge room with the respondent penetrating her vagina with his penis.  He withdrew his penis, spat on her back and called her a ‘slut’.

1. We have viewed photographs of the complainant’s post-injury state.  They sufficiently illustrate the facial fractures, bruising and blood loss inflicted by the respondent.  This was brutish, cowardly abuse, calculated to humiliate and degrade a powerless, diminutive woman.  It is unlikely the complainant will ever totally recover from this period of her life.

1. We have set out the mitigatory factors in para 21 of these reasons.  It is clear that the respondent has encountered really significant deprivation during his early life.  This, combined with the low cognitive functioning and apparently significant acquired brain injury, operates to moderate somewhat the otherwise extremely high moral culpability attributable to this respondent.

1. We consider that even after making full allowance for these mitigatory factors, the sentences imposed were manifestly inadequate.  The respondent has a long history of violence, including convictions for aggravated burglary, intentionally causing injury and recklessly causing injury. 

1. In our view, there was a need for both specific and general deterrence to receive real prominence in the sentencing mix.  The respondent’s general history of violence and specific history of violence towards the complainant called for this.  Further, those considering similar brutal, degrading abuse of a domestic partner must understand that the courts have a duty to protect vulnerable members of our community and will not hesitate to impose stern punishment upon wrongdoers.  In 2014, this Court sent out what it hoped would be an unequivocal message to would-be perpetrators of domestic violence — that if they offended, they would be sentenced to lengthy terms of imprisonment.[13]  The sentence we are about to impose follows through on that message.

   [13]Pasinis [2014] VSCA 97.

1. We consider that the sentences imposed on charges 1, 2 and 7 (to which the respondent pleaded guilty) and 9 (of which the respondent was convicted by a jury at trial), and the orders for cumulation do not adequately cater for this need for deterrence, and must be adjusted upwards substantially.  We have reached this view notwithstanding the significant mitigating features to which we have adverted.  Were it not for these features, we would have substituted a longer total effective sentence.  We have been careful, when substituting a new sentence for charge 9 (rape), to avoid doubly punishing the respondent for his conduct immediately preceding the act of penetration.  Charges 6, 7 and 8 relate to this conduct and are the subject of separate sentences.  Had charge 9 embraced this conduct itself, the sentence on that charge would have been substantially greater.

Conclusion

1. We will allow the appeal and resentence the respondent as set out in the table below.  The total effective sentence will be 10 years and six months’ imprisonment, with a minimum non-parole period of eight years.  But for the respondent’s plea of guilty to charges 1, 2 and 7, we would have sentenced him to a total effective sentence of 11 years and six months’ imprisonment with a non-parole period of nine years and six months.

Charge	Offence	Maximum	Sentence	Cumulation
1	Causing injury intentionally	10 years’ imprisonment	15 months’ imprisonment	3 months
2	Causing injury intentionally	10 years’ imprisonment	15 months’ imprisonment	3 months
6	False imprisonment	10 years’ imprisonment	15 months’ imprisonment	2 months
7	Causing injury intentionally	10 years’ imprisonment	5 years’ imprisonment	2 years
8	Make threat to kill	10 years’ imprisonment	12 months’ imprisonment	4 months
9	Rape	25 years’ imprisonment	7 years and 6 months’ imprisonment	Base
Summary charges
1	Contravene final Family Violence Intervention Order	2 years’ imprisonment	3 months’ imprisonment	Concurrent
4	Contravene final Family Violence Intervention Order	2 years’ imprisonment	3 months’ imprisonment	Concurrent
Total effective sentence:		10 years and 6 months’ imprisonment
Non-parole period:		8 years’ imprisonment
Section 6AAA statement:		11 years and 6 months’ imprisonment with a non-parole period of 9 years and 6 months

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