Dunford v The Queen
[2021] VSCA 304
•9 November 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0088
| JAI DUNFORD | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 November 2021 |
| DATE OF JUDGMENT: | 9 November 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 304 |
| JUDGMENT APPEALED FROM: | [2021] VCC 748 (Judge Marich) |
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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Intentionally cause injury, false imprisonment (2 charges), threat to kill, cultivate narcotic plant, attempt to pervert the course of justice, commit indictable offence whilst on bail – TES of 4 years and 9 months, with NPP of 3 years – Manifest excess – Whether reasonably arguable that sentence manifestly excessive – Utilitarian value of guilty plea during COVID-19 pandemic – Relevance of declaration under s 6AAA of the Sentencing Act 1991 – Clarkson v The Queen (2011) 32 VR 361; Saab v The Queen [2012] VSCA 165; Worboyes v The Queen [2021] VSCA 169 referred to – Complaints of manifest excess not reasonably arguable – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Barreiro | Criminal Lawyers Geelong |
| For the Respondent | Ms S Clancy | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA:
The applicant pleaded guilty in the County Court to one charge of intentionally causing injury, two charges of false imprisonment, one charge of making a threat to kill, one charge of cultivating a narcotic plant, one charge of attempting to pervert the course of justice and a related summary offence of committing an indictable offence whilst on bail. On 8 June 2021, following a plea hearing conducted on 10, 19 and 31 May 2021, the applicant was sentenced as follows:
Charge on Indictment
L10010695.1Offence Maximum Sentence Cumulation 1 Intentionally Cause Injury (contrary to
s 18 of the Crimes Act 1958)10 years 2 years and 6 months 12 months 2 False Imprisonment (contrary to Common Law) 10 years 2 years 3 months 3 False Imprisonment (contrary to Common Law) 10 years 2 years and
9 monthsBase 4 Make Threat to Kill (contrary s 20 of the Crimes Act 1958) 10 years 1 year and 6 months 3 months 5 Cultivation of a Narcotic Plant (contrary to s 72B of the Drugs, Poisons and Controlled Substances Act 1981) 12 months 14 days Nil 6 Attempt to Pervert the Course of Justice (contrary to Common Law) 25 years 2 years 6 month Related Summary Offences Commit Indictable Offence Whilst on Bail (contrary to s 30B of the Bail Act 1977) 3 months 14 days Nil
Total Effective Sentence: 4 years and 9 months Non-Parole Period: 3 years Pre-Sentence detention 523 days 6AAA Statement 5 years and 6 months, with a non-parole period of 3 years and 9 months
The applicant now seeks leave to appeal on the sole proposed ground that the individual sentences, orders for cumulation, total effective sentence and non-parole period are each manifestly excessive.
Circumstances of the offending
Charges 1 to 4
The applicant had been in a relationship with the complainant (the victim of charges 1, 2 and 4) for two to three years, when the complainant and her nine year old daughter (the victim of charge 3) arrived at the applicant’s home in the early afternoon of 1 January 2020. The applicant was at home asleep. The complainant knocked on the door and was let in by the applicant.
Shortly thereafter, the applicant became aggressive and punched the complainant to the right eye. The complainant attempted to leave, but the applicant pushed the door shut and prevented her from leaving. He then pushed her up against the wall, grabbed her head by her hair and started banging her head into the wall. He continued to assault her by punching and kicking her. He also grabbed the complainant by the throat and forced her into the wall, damaging the plaster. This all occurred in the presence of the complainant’s daughter, who was in the lounge room and witnessed the applicant’s assault on her mother.
Each time the complainant attempted to go near the front door to leave, the applicant grabbed and punched her. At one point, he held her on the ground, strangled her and told her to shut up. The applicant threatened to kill the complainant if she ‘kept going’. The applicant said to the complainant, ‘Now that you are here you have to stay until I am ready to let you go’. On several occasions, the applicant made threats towards the complainant, saying that if either of them (the complainant or her daughter) left then he would ‘get his mate’s car and run them over’.
The assaults on the complainant caused her to vomit. The vomit contained blood. All up, the false imprisonment of the complainant and her daughter, and during which the complainant was assaulted, lasted some two and a half hours before the applicant eventually told the complainant that she could leave if she wanted to. The complainant and her daughter then left the premises. They walked home and went to a neighbour’s house where the complainant’s injuries were observed and photos of them taken.
Later, the complainant was taken to the Geelong Hospital where she was treated for her injuries. As a result of the applicant’s assaults, the complainant sustained the following injuries:
·a 30 millimetre red bruise on the right upper neck;
·two 1 millimetre x 15 millimetre linear superficial abrasions with scabs on the right upper neck;
·bilateral infraorbital bruising and swelling;
·a 40 millimetre x 2 millimetre red linear bruise on her lower neck;
·three 5 millimetre circular red bruises on the front of the neck;
·a 5 millimetre x 2 millimetre superficial abrasion on the lower lip;
·two 30 millimetre circular red/black bruises on the upper aspect of the left upper inner arm;
·two 30 millimetre circular red bruises on the middle aspect of the left upper inner arm;
·a 40 millimetre black circular bruise on the lower aspect of the left inner arm;
·a 40 millimetre circular red superficial abrasion on the upper aspect of the back of the right shoulder;
·a 40 millimetre red bruise on the lower aspect of the back of the right shoulder;
·an 80 millimetre area of red superficial abrasion on the left lower back/buttock area;
·a 40 millimetre oval black bruise on the left knee;
·a 40 millimetre circular superficial abrasion on the right knee covered in red scab;
·small 10 millimetre multiple circular black bruises on both lower legs.
Arrest, interview and charge 5
On 2 January 2020, police executed the search warrant at the applicant’s home. Police seized black shorts said to be worn by the applicant at the time of his offending on 1 January, a gold house key belonging to the complainant and eight cannabis plants that were growing at the rear of the premises.
The applicant was arrested and taken to the Geelong police station for interviewing. He admitted that the complainant had been at his address the previous day. He said she was screaming out the front. He denied assaulting her, aside from trying to push her out of the door at one point.
The applicant was remanded in custody, and an intervention order was taken out against the applicant.
Charge 6
While in custody, the applicant made four phone calls to his father and brother on 7 January 2020 and 7, 12 and 15 February 2020. In these phone calls, the applicant asked his brother and father to attempt to persuade the complainant either not to attend court; alternatively, to drop her allegations of imprisonment; alternatively, to ‘drop bits and pieces’; alternatively, to drop aspects of her account of his assault on her:
cos I’ll admit to a couple of things but some of it I won’t. Like cos I did say in my interview I pushed her out the door so I will admit to that cos that’s on tape and everything.
In one of the phone calls to his father (7 January 2020), the applicant asked his father to tell the complainant that she was ‘just keeping him away from the kids’.
The related summary offence
At the time of committing charge 1 (intentionally causing injury to the complainant), the applicant was on bail in respect of another matter.
Applicant’s background
The applicant was 31 at the time of his offending, and 32 at the time of sentencing. He is of Aboriginal heritage and was born to caring parents. His parents separated when he was 12, later re-partnering. His mother died tragically in 2010, from a car accident. This had a significant impact on him, leading to alcohol and drug abuse. The applicant struggled at school, and commenced working at the age of 17. He has four children who are in the care of his father and stepmother.
At the time of sentencing, the applicant had been before the courts on some 15 occasions, commencing in 2008. His prior offending including threatening to inflict serious injury, contravening family violence intervention orders, unlawful assault, recklessly causing injury, burglary, theft and criminal damage. He had received community correction orders for some of his offending. He had breached community correction orders given to him, and he had been sentenced to terms of imprisonment, the longest of which was 6 months.
A report tendered on the plea from a clinical neuropsychologist, Amy Dluzniak, stated that the applicant’s intellectual functioning was borderline to low average. Ms Dluzniak also noted that the applicant had been diagnosed with a major depressive disorder. Ms Dluzniak expressed the opinion that the applicant’s borderline intellectual function and mental health condition rendered him vulnerable in a custodial environment.
A report from a clinical psychologist, Carla Lechner, tendered on the plea, referred to the applicant presenting as cognitively and emotionally immature, and of him appearing to have considerable difficulty in ‘managing his angry impulses, especially when adversely impacted by alcohol’.
Sentencing reasons
The judge commenced her reasons for sentence by noting that the applicant had pleaded guilty to the charges on the indictment and the related summary offence. She then identified the various exhibits that had been tendered on the plea, saying that she had had careful regard to those documents as well as the matters addressed in the days of hearing of the plea in mitigation.[1] Her Honour then summarised the circumstances of the applicant’s offending.[2]
[1]DPP v Dunford [2021] VCC 748, [1]–[4] (‘Reasons’).
[2]Ibid [5]–[26].
Next, the judge turned to the applicant’s plea of guilty and its timing. She noted that the matter proceeded through a contested committal hearing involving the cross-examination of witnesses, including the complainant, resolving after the applicant was committed for trial and a bail application had been refused.[3] Her Honour noted that the matter had not been set down for trial owing to the impact on trial listings in the County Court caused by the COVID-19 virus, saying that she considered that the plea ‘occurred at a midway stage in the proceedings, and there is utilitarian benefit for those pleas in that they have spared the complainant and other witnesses the inconvenience, and in some cases, trauma, of needing to appear before the Court to testify, and have also saved the Court time’.[4] Her Honour said that she attached mitigatory weight to those matters.[5]
[3]Ibid [27].
[4]Ibid.
[5]Ibid.
The judge accepted that the applicant’s plea represented a degree of remorse, regret and shame, as expressed by him to Ms Lechner, and said she took that into account in mitigation of penalty.[6]
[6]Ibid [28].
The judge then set out in some detail the applicant’s personal circumstances, including the history of the various community correction orders and terms of imprisonment which had previously been imposed upon him.[7]
[7]Ibid [29]–[40].
Next, the judge summarised the reports of Ms Lechner and Ms Dluzniak.[8] In the course of this summary, her Honour noted Ms Dluzniak’s view that the applicant’s borderline intellectual functioning and mental health conditions rendered him vulnerable in a custodial setting — the applicant being at an increased risk of being manipulated and misled by others within the custodial system.[9]
[8]Ibid [41]–[48].
[9]Ibid [48].
The judge accepted that the fifth principle in R v Verdins[10] (namely, that the applicant suffered from a mental condition which could mean that a given sentence of imprisonment would weigh more heavily on him than it would on a person in normal health) was engaged and that mitigatory weight should be given to that factor.[11] While the judge said that she did not consider that the evidence tendered on the plea supported a conclusion that the applicant’s moral culpability for his offending was impacted,[12] she went on to say:
I am prepared to infer that there is modest, though sufficient connection between your intellectual functioning such as to reduce in a modest way the weight given to deterrence as a purpose of sentencing, and I attach weight to this also in mitigation of sentence.[13]
[10](2017) 16 VR 269 (‘Verdins’).
[11]Reasons [50].
[12]Ibid [51].
[13]Ibid.
The judge noted that the applicant’s time in custody had been productive, and that he had been drug and alcohol free during this period, and that he had also achieved certificates of completion in relation to a number of courses.[14] The judge said that she commended the applicant for this, before noting that the applicant was a ‘well respected prisoner within Corrections Victoria, according to the vocational programs facilitators’.[15]
[14]Ibid [52].
[15]Ibid.
In relation to the objective seriousness of the applicant’s offending and his moral culpability, the judge said:
Mr Dunford, your offending in relation to Charges 1 to 4 is a complete disgrace. It was a cruel and protracted period of abuse on your then partner in circumstances in which she was unable to leave. You caused her injury during this time, and the assaults caused her to vomit which contained blood. Your false imprisonment of her nine year old daughter for those two and a half hours, whilst exposing that child to the images and sounds of your abuse of her mother shocks the conscience. You caused injury to your partner over a protracted period of approximately 2 ½ hours therefore in the presence of her nine year old daughter. The fact that you were on bail at the time of your charge of intentionally cause injury was no impediment to that criminal act. You are no stranger to acts of violence, though I accept this offending represents a significant escalation on your past behaviour. Likewise, you have faced the court on many occasions for your earlier breaches of family violence intervention orders. These are offences of a slightly different nature, although your charges 1-4 are also of family violence. You have been given many, many opportunities to engage in supervision and rehabilitation imposed by the court aimed at prompting behavioural change – ie in attitude, and in habit. Those attempts have been unsuccessful so far.
Only five days after you were remanded into custody on these charges, and an intervention order had issued, you were on the phone to your father and your brother asking them to ask the complainant to drop the false imprisonment charge, with a view to minimising the amount of time you would spend in custody for these matters. Though neither proceeded to contact the complainant, I understand another family member did speak to her.
Your offences the subject of Charges 1 to 4 were a protracted ordeal of violence, of threats and control, and your attempt to control the complainant did not cease upon you being remanded into custody.[16]
[16]Ibid [53]–[55].
In concluding her reasons for sentence, the judge said she took into account the purposes for which sentence must be imposed, and the need for both general and specific deterrence. Her Honour said, however, that general deterrence should be ‘modestly moderated’.[17] The judge said that the sentences she would impose would punish the applicant and denounce his behaviour, while allowing and emphasising his continued efforts at rehabilitation.[18] The judge then said that she was, nevertheless, cautious about the applicant’s prospects for rehabilitation given his long history of offences of family violence and long history of problems with alcohol abuse.[19]
[17]Ibid [56].
[18]Ibid.
[19]Ibid.
Finally, the judge noted the applicant’s counsel’s concession that a ‘lengthy prison term was inevitable, to be sensibly moderated to reflect the mitigatory features [to which she had referred]’.[20] The judge said that she took into account the need for some degree of concurrency between the sentences to be imposed ‘in proper reflection of the totality principle of sentencing’.[21]
[20]Ibid [57].
[21]Ibid.
Consideration
In his proposed ground of appeal, the applicant asserts that the individual sentences, orders for cumulation, total effective sentence and non-parole period are each manifestly excessive. He particularises this complaint by submitting that manifestly insufficient weight was given to the utilitarian value of the applicant’s plea of guilty in the context of the delays to criminal trials caused by the COVID-19 pandemic; the applicant’s personal circumstances, including his background, remorse, and prospects of rehabilitation; and the objective seriousness of his offending. More specifically, on this application for leave to appeal, he contended that his complaints of manifest excess were reasonably arguable — entitling him to a grant of leave to appeal.
Utilitarian value of applicant’s plea of guilty
On the plea hearing, the applicant submitted that, ‘in circumstances where there are massive delays for jury trials in this State, there is an enhanced public interest in the resolution of matters by way of an appropriate plea of guilty’. In support of this submission, the applicant referred to Jane Dixon J’s statement in Director of Public Prosecutions v Bourke[22] to the effect that a plea of guilty (at the time it was made in that case) had substantial utilitarian value, ‘noting the current public health concerns regarding the COVID-19 virus, which may have impacted on the practical management of a jury trial if the matter had not resolved’.
[22][2020] VSC 130, [32].
On 18 June 2021, some ten days after the judge sentenced the applicant, the Court of Appeal delivered judgment in Worboyes v The Queen.[23] In Worboyes, this Court referred to the enormous and intimidating backlogs in the criminal lists of both the County Court and Magistrates’ Court,[24] before saying:
As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.[25]
[23][2021] VSCA 169 (‘Worboyes’).
[24]Ibid [22].
[25]Ibid [35].
The Court went on to say that, all other things being equal, a plea of guilty entered during the currency of the COVID-19 pandemic ‘is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects’,[26] and that such a plea ‘ordinarily should attract a more pronounced amelioration of sentence than at another time’.[27]
[26]Ibid [39].
[27]Ibid.
The applicant submitted that in the present case, it is at least reasonably arguable that, in sentencing the applicant, there was no ‘actual and palpable amelioration of sentence’ of the kind this Court said should be given in Worboyes.[28] In support of that submission, the applicant noted that the sentence the judge declared (pursuant to s 6AAA of the Sentencing Act 1991) that she would have imposed, but for the applicant’ plea of guilty, was only nine months longer than the sentence she actually imposed (both as to the total effective sentence and the non-parole period).
[28]Ibid [35].
Applicant’s personal circumstances
The applicant submitted that, in ‘imposing such a severe sentence’, the judge must have given insufficient weight to the applicant’s personal circumstances. Particular emphasis was placed upon the applicant’s borderline intellectual functioning; the death of his mother which led to an increase in his alcohol and drug abuse; the fact that he was a young father, with four children, who was heavily involved in the care of his children; the psychological evidence tendered on the plea; the applicant’s conduct in custody, including efforts he had made to better himself while on remand; and the consequences of the COVID-19 pandemic.
Gravity of offending
While the applicant conceded that the judge was entitled to call the offending constituted by charges 1 to 4 a ‘complete disgrace’,[29] the applicant submitted that the offending was isolated (in the sense of not having occurred over weeks or months); there was no breach of a family violence intervention order; the complainant was not left with serious or lasting physical injuries; and the false imprisonment charge relating to the complainant’s child, while serious, was a consequence of the applicant’s behaviour towards her mother, the complainant.
[29]Reasons [53].
As to the attempt to pervert the course of justice, the applicant submitted that the seriousness of this offending was moderated by the fact that the applicant’s requests of his father and brother were not carried out; there was no threat by the applicant to inflict violence; and the applicant did not speak to the complainant, and thus did not directly place any pressure on her.
Is the complaint of manifest excess reasonably arguable?
As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[30] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[31]
[30]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[31]Ibid.
In oral argument, counsel for the applicant concentrated on his complaint that the total effective sentence and non-parole period were manifestly excessive. When asked whether he contended that any of the individual sentences or orders for cumulation were manifestly excessive, counsel submitted that the sentences imposed on charges 1, 2 and 3 and the orders for cumulation (in particular the order of 12 months’ cumulation on charge 1) were manifestly excessive.
There is no substance in any of the applicant’s submissions. Each of the individual sentences can only be described as modest in all of the circumstances. As the applicant conceded in oral argument, his offending on charges 1 to 4 was ‘very serious’ and ‘appalling’. The judge was right to describe it as a ‘complete disgrace’.[32] The imprisoning of the complainant and her daughter, resulting in the complainant’s daughter witnessing the acts of violence perpetrated by the applicant against her mother, was undoubtedly very serious offending. Any submission to the contrary is not reasonably arguable.
[32]Reasons [53].
When one examines each of the individual sentences and orders for cumulation and properly analyses the objective seriousness of each offence, notwithstanding the various matters relied upon in mitigation by the applicant, it simply cannot be asserted that any of the sentences or orders were outside the permissible range available to the sentencing judge. Moreover, the individual sentences and orders for cumulation have, if anything, produced a total effective sentence which is moderate. There is no merit in any suggestion to the contrary, that the total effective sentence is too high and/or outside the permissible range. Further, a non-parole period of some 63 per cent of the total effective sentence, in the circumstances of both the offending and the offender in this case, was very moderate.
To the extent that the applicant submitted that the judge’s s 6AAA declaration showed that the judge failed to give appropriate weight to the applicant’s plea of guilty at a time when the utilitarian value of such a plea was very high given the massive backlogs in court lists caused by the pandemic, that submission must be rejected. As has been said many times before, a s 6AAA declaration is not part of the sentence actually imposed. In the present case, the most that might be gleaned from the s 6AAA declaration made by the judge is that it is particularly modest — remembering it is the sentence the judge said she would have imposed if the applicant had pleaded not guilty.
In Saab v The Queen,[33] this Court (constituted by Buchanan, Weinberg and Mandie JJA) observed that judges do not fix sentences by adding to and subtracting from a starting point periods of time they attribute to particular sentencing factors;[34] and, in order to comply with s 6AAA, a sentencing judge is ‘required to guess the part played by one of a number of conflicting and contradictory elements in a synthesis of all of the elements and ascribe a number to that element’.[35] Their Honours then described as ‘profitless’ the exercise of criticising the sentencing judge’s ‘guess as to the precise part played by one element if the result of the synthesis is a sentence which is within a range of appropriate sentences’.[36]
[33][2012] VSCA 165 (‘Saab’).
[34]See Wong v The Queen (2001) 207 CLR 584; Markarian v The Queen (2005) 228 CLR 357; Hili v The Queen (2010) 242 CLR 520.
[35]Saab [2012] VSCA 165, [59].
[36]Ibid [60]. See further, [61]–[62].
While an explanation for the judge’s low s 6AAA declaration might be that the applicant only pleaded guilty after running a contested committal, in truth, for like reasons to those given in Saab,[37] it is not productive to further analyse that issue. The central issue in the present case is whether, having regard to the applicant’s personal circumstances and the circumstances of his offending, it is reasonably arguable that the total effective sentence and/or non-parole period were manifestly excessive.
[37]Ibid [58]-[62].
The short answer to that question is that it is not reasonably arguable that either the total effective sentence or the non-parole period were manifestly excessive. In the circumstances of the applicant’s offending, and notwithstanding his personal circumstances and his plea of guilty, which (because of the effects of the pandemic) entitled him to the more pronounced amelioration of sentence described in Worboyes,[38] the contention that the sentence imposed on the applicant (or any of its individual components) is manifestly excessive, is wholly without merit. The contrary is not reasonably arguable.
[38][2021] VSCA 169, [35], [39].
Finally, even if it could be said that any of the individual sentences or orders for cumulation were wholly outside the permissible range, and thus erroneous, for the reasons given above, there is no reasonable prospect that this Court would reduce the applicant’s total effective sentence. This provides a further basis for refusing the applicant leave to appeal against sentence.[39]
[39]See s 280(1)(b) of the Criminal Procedure Act 2009.
Conclusion
The application for leave to appeal against sentence must be refused.
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