Duncan v The Queen
[2011] VSCA 351
•17 August 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0189
| GRAHAM ROBERT DUNCAN | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BONGIORNO JA and WHELAN AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 August 2011 |
| DATE OF JUDGMENT | 17 August 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 351 |
| JUDGMENT APPEALED FROM | R v Duncan (Unreported, County Court of Victoria, Judge Mullaly, 10 June 2010) |
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CRIMINAL LAW – Appeal against sentence – Appellant pleaded guilty to one count of stalking – Sentenced to two years and nine months’ imprisonment with non‑parole period of two years and three months – Appellant had multiple prior convictions relating to same victim – Whether sentencing judge failed to apply principle of totality – Whether sentencing judge erred in his assessment of gravity of offending and appellant’s prospects of rehabilitation – Whether sentencing judge erred in fixing non-parole period – Whether sentence manifestly excessive – Postiglione v The Queen (1997) 189 CLR 295 – R v Gordon (1994) 71 A Crim R 459 – Appeal dismissed – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Ms R Shann | Robert Stary & Associates |
For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
BONGIORNO JA:
This appeal is in respect of a sentence imposed by his Honour Judge Mullaly in the County Court on 10 June 2010. The appellant pleaded guilty to one count of stalking and was sentenced to two years and nine months’ imprisonment with a non‑parole period of two years and three months. The victim of the stalking was a woman, DN, in respect of whom the appellant had previously been convicted of the same offence and other similar offences.
The events giving rise to the matters the subject of this appeal were that the appellant sent four emails to DN’s daughter on 11 August 2008, 13 August 2008, 16 August 2008 and 21 August 2008. The emails were sent under an assumed name but purported to be on the appellant’s behalf. The first of the emails contained the words ‘Do you have a package price to get back the last 3 years of my life?’; the second contained definitions of the words ‘setup’, ‘perjury’ and ‘carry out’; the third contained a claim for property (a telescope and audio equipment) allegedly belonging to the appellant; and the fourth contained a lengthy story detailing a claim relating to property allegedly belonging to him and containing allegations that DN had lied in previous court proceedings. These emails were intimidating in tone, particularly the last of them. It referred to the fact that the appellant had been released and accused DN of fabricating evidence against him and causing his imprisonment. It contained threats to the effect that DN would herself go to gaol if the appellant approached the Office of Police Integrity. The Crown contended that these four emails in the context of the appellant’s prior offending against DN were intended to and did arouse apprehension and fear in DN for her safety.
After a sentence indication hearing, the appellant pleaded guilty to one count of stalking. Because of its relevance to the sentencing process in this case, it is necessary to set out briefly the circumstances of the appellant’s prior offending.
The appellant and DN had known each other for many years. He had played in a band with her former husband. After DN and her husband separated, the appellant sought to commence a relationship with her. His advances were rejected. That rejection appears to have been the trigger for his behaviour towards DN since that time.
On 14 January 2005, DN obtained an intervention order against the appellant in the Ringwood Magistrates’ Court. Subsequently, on 21 April 2005, the appellant was convicted of two charges of making a threat to kill, nine charges of stalking, two charges of breaching the terms and conditions of an intervention order and two charges of using a carriage service to menace. On 7 July 2005, he was convicted of one charge of breaching the terms and conditions of an intervention order and two charges of stalking. All of these offences were committed against DN. They were dealt with in the Magistrates’ Court and for most of them the appellant received various non-custodial dispositions.
On 21 July 2006, the appellant was convicted in the County Court of one count of damaging property, one count of intentionally causing injury and a summary charge of breaching the terms and conditions of an intervention order. These offences were committed on 28 July 2005. On that day, the appellant drove his car to the vicinity of DN’s workplace. When DN left her workplace and got into her car, she heard a loud smashing sound and saw the appellant smash the front windscreen of her car with a metal pole. He screamed at her whilst he was doing so. She attempted to run back to her workplace. The appellant ran after her, however, and when he caught up to her began to hit her with the metal bar. After a struggle, DN continued to run towards her workplace. She fell and was struck by the appellant again. When apprehended by a workmate of DN’s, the appellant said:
I don’t care if you ring the police, I’ll go to gaol for three years, three meals a day, I don’t fucking care, I got my revenge.
And subsequently:
Did I get her in the head, I hope I fucking did, I bet she’s really shaken up now.
You tell that slut, that when I get out and I get her.
He then moved his finger across his throat in a slashing gesture.
As a result of this altercation, DN suffered bruising to her left wrist, right knee and left knee, corneal abrasions to both eyes and a small subconjunctival haemorrhage in her right eye.
When questioned as to these activities by investigating police, the appellant said he had consumed 10 Valium tablets and half a beer glass of port during the day before these events and had gone to the victim’s workplace because he was stressed. He admitted smashing the victim’s car with a bar, which he said was part of the jack from his vehicle. He also admitted assaulting DN. When asked why he had done that, he said that he did not know.
The appellant was sentenced for these offences to a total effective sentence of four years and six months’ imprisonment with a non‑parole period of two years and 11 months. An appeal to this Court was dismissed.[1] The appellant served this sentence until he was released on parole on 23 July 2008.[2]
[1]Duncan v The Queen [2007] VSCA 137.
[2]The first email was thus sent to DN’s daughter only 19 days after the appellant was released on parole.
It was in this context that the sentencing judge sentenced the appellant for the offence to which reference has been made.
Sentence passed below
The sentencing judge specifically stated that his assessment of the gravity of the appellant’s offending was undertaken in the context of his previous offending against the same victim. He referred extensively to DN’s victim impact statement, which is also in the material before this Court. That victim impact statement, as might be expected, contains details of the effect of the appellant’s offending on DN. It refers to the life-changing effects of his behaviour on her and her family and expresses the view that she may never feel safe again. The sentencing judge viewed the victim impact statement as having an element of ‘resignation’ about it. His Honour concluded that the effect that this series of emails had on DN made this offence a serious example of stalking, though it was not in the worst category of offending.
His Honour found that the appellant’s moral culpability for this crime was undiminished by mitigatory factors and that he displayed little or no remorse beyond feeling sorry for himself. His Honour acknowledged that the appellant had pleaded guilty to the offence but expressed little confidence in the appellant’s protestations that he would not seek to contact DN in the future. He emphasised specific deterrence and the protection of the community as being significant sentencing factors.
In this regard, the sentencing judge had before him psychiatric reports prepared by Dr Mark Ryan and Dr Lisa Forrester. Of particular significance was the opinion of Dr Forrester that the appellant fell within the high category of risk for further offending if sufficient management of his condition was not undertaken.
The appellant now seeks to appeal this sentence on five grounds. He obtained leave to do so from Maxwell P upon a concession by the Crown that ground 2, which relates to his non‑parole period, was fairly arguable.
I will deal with these grounds in the order in which they were dealt with in the appellant’s written outline of submissions.
Ground 3 — Totality
This ground argues that the sentencing judge failed to take into account the principle of totality when sentencing the appellant.
Upon the appellant’s being arrested for sending the emails referred to, the Parole Board revoked his parole thus requiring him to serve the remainder of his original sentence of four years and six months’ imprisonment. After the conclusion of that sentence, he remained on remand for a further 106 days until dealt with for the current offence. That 106 days was taken into account as pre‑sentence detention in the sentencing judge’s orders. The effect of the cancellation of the appellant’s parole was that aside from the period on parole between 23 July 2008 and his arrest on 21 August 2008, the appellant has been in custody since 28 July 2005. If he has to serve the whole of the present sentence, he will have been in custody continuously for approximately seven years and three months apart from the period on parole already referred to. Counsel for the appellant submitted that because the sentencing judge did not make any specific reference to the principle of totality, it should be inferred from that fact and from the length of the sentence imposed that his Honour failed to have any or any sufficient regard to that principle.
The totality principle requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.[3] In Kelly v The Queen,[4] O’Loughlin J, sitting in the Full Court of the Federal Court of Australia, cited with approval the following remarks of King CJ of the South Australian Supreme Court in R v Rossi:
There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect…[5]
[3]Postiglione v The Queen (1997) 189 CLR 295, 307–8 (McHugh J) (‘Postiglione’).
[4](1992) 33 FCR 536, 541.
[5](1988) 142 LSJS 451, 453.
In Postiglione, McHugh J noted that a series of decisions of the New South Wales Court of Criminal Appeal had extended the ambit of the totality principle. According to these decisions, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced but also in any offences for which the offender is currently serving a sentence.[6] McHugh J cited the following statement of Hunt CJ at CL in R v Gordon:
When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable… [7]
[6](1997) 189 CLR 295, 308.
[7](1994) 71 A Crim R 459, 466.
Counsel for the appellant argued that the sentencing judge was required by the totality principle to take into account in fixing an appropriate sentence the fact that the appellant’s parole was cancelled immediately upon his arrest so that he was then required to serve the whole of that parole period before accruing any pre‑sentence detention in respect of the sentence now under appeal.
The sentencing judge was acutely conscious of the cancellation of the appellant’s parole. His Honour discussed it at length and noted that the appellant had been in custody for a long time, all of it attributable to his offending against DN. Although he did not refer to the principle of totality by that title, if indeed that is the correct description of the extended notion of totality referred to by McHugh J in Postiglione, he fixed the appellant’s sentence fully conscious of the sentences served already by the appellant and the fact that his parole was cancelled.
In my opinion, this ground of appeal is not made out.
Ground 4 — Gravity of the offending
Counsel also submitted that the sentencing judge erred in his assessment of the gravity of the offending. She argued that the fact that his Honour referred to the appellant’s prior criminal history while discussing the seriousness of his offending meant that he effectively punished the appellant for conduct for which he had already been convicted and punished, or, in other words, subjected him to double punishment.
This argument should be rejected. In referring to the appellant’s prior criminal history with respect to DN, the sentencing judge was only explaining why the current offence was as serious as he held it to be. DN was a vulnerable person because of the appellant’s previous crimes. It was the effect of his current crime which the sentencing judge was describing, a matter which is clearly relevant to the gravity of his offending.
Counsel also argued that the stalking to which the appellant pleaded guilty involved the application of the deeming provisions found in s 21A(3) of the Crimes Act 1958. This argument also fails. The Crown opening made the basis upon which the appellant was being sentenced very clear. It was for the offence referred to in s 21A(2) ― that is to say, engaging in a course of conduct that includes any of the acts referred to in ss 21A(2)(a)–(g) of the Act with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of any other person.
This ground of appeal should be rejected.
Ground 2 — Non‑parole period
The non‑parole period in this case represented over 80 per cent of the sentence imposed on the appellant. A non‑parole period of this length which is unexplained by the sentencing judge invites appellate scrutiny.[8] Having scrutinised the matter, however, my conclusion is that the non‑parole period in this case was appropriate. The non‑parole period needs to represent the minimum time that justice requires the offender to serve having regard to all the circumstances of the case. It is necessary to balance the various interests of the community so as to determine in the particular circumstances the degree of mitigation that mercy may claim without injustice.
[8]R v Detenamo [2007] VSCA 160; R v Merritt [2008] VSCA 238; Green v The Queen [2011] VSCA 236.
One of the dominant sentencing requirements in this case concerns specific deterrence, perhaps unusually so. The fact that the appellant offended almost immediately after being released on parole, and the fact that all his offending involved the same victim, justifies a view that a minimum term of the length imposed was not inappropriate.
In the circumstances, there is no substance to this ground of appeal.
Ground 5 — Appellant’s prospects of rehabilitation
This ground argued that the sentencing judge erred in his assessment of the appellant’s prospects of rehabilitation.
His Honour said, after detailing the fact of the earlier convictions involving DN and her family, ‘[l]ittle hope can be held for your rehabilitation’. He returned later in his sentencing remarks to state:
I must also endeavour to establish conditions that will facilitate your rehabilitation, but that matter must yield to other concerns.
Reference has already been made to the psychiatric reports and in particular to Dr Forrester’s opinion as to the appellant’s risk of re‑offending. His Honour’s comments are not inapt, nor is his assessment that the appellant has continued to minimise the seriousness of his offending conduct.
There is no substance to this ground of appeal.
Ground 1 — Manifest excess
Finally, the appellant put forward a ground of manifest excess. In the total circumstances of this case, there is nothing excessive and certainly not manifestly excessive in the sentence which has been imposed.
I would dismiss the appeal.
WHELAN AJA:
I agree.
BONGIORNO JA:
The order of the Court is that the appeal is dismissed.
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