Ellis v The Queen

[2015] VSCA 21

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0242

SARAH ELLIS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BONGIORNO and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 February 2015
DATE OF JUDGMENT:	17 February 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 21
JUDGMENT APPEALED FROM:	DPP v Ellis (Unreported, County Court of Victoria, Judge Lacava, 13 February 2014)

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CRIMINAL LAW – Sentencing – Application for leave to appeal – Young offender – Violent offence – Significant injury – Sentencing judge rejects Community Corrections Order – Discretionary consideration – No error of law or fact – Appeal dismissed – No point of principle

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T E Wraight SC with Mr J G Westmore	Lethbridges
For the Crown	Mr R A Elston QC	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA
KYROU JA:

1. On 13 February 2014, the applicant, a 21 year old, was sentenced in the County Court to two years six months’ imprisonment with a non-parole period of one year three months after she pleaded guilty, on arraignment, to one charge of recklessly causing serious injury.  The charge arose out of an incident at a Werribee hotel on 9 April 2013.  The plea of guilty to recklessly causing serious injury had been negotiated from an original charge of intentionally causing serious injury.  It was entered before a Magistrate at a special mention on 16 September 2013 at which a plea hearing in the County Court was fixed for 30 January 2014. 

1. In his sentencing remarks the sentencing judge, Judge Lacava, summarised the evidence before him concerning the event out of which the charge arose as follows:

You attended at a hotel in Werribee with Rhys Diamond who is the brother of your partner Joel Diamond.  Both of you had been drinking before you arrived at the hotel and both of you were affected by alcohol.  Whilst in the hotel two incidents occurred involving the victim in this matter Michael James.  Both were captured on closed circuit television footage which was tendered as Exhibit B.  You were involved in both incidents.  I have viewed both of them in the court and in my chambers.

In the first incident you punched James in the face twice after he and Rhys Diamond had been fighting.

After this incident you and Rhys Diamond were escorted from the hotel to the car park.  Rhys Diamond then asked you to phone his brother and asked him to come to the hotel which you did.  Rhys Diamond said to James who was by this time sitting on a stool, ‘Stay there mate you’ll be right, you’ll get fixed up’. 

A short time later your partner Joel Diamond arrived at the hotel with another person.  Rhys Diamond had a conversation with his brother and described the clothing James was wearing.  A short time later Joel Diamond entered the hotel and you followed.  Rhys Diamond remained near the door holding it ajar. As James bent down and, without warning, Joel Diamond kicked James in the head with what appears on the video to be full strength with his right foot.  This caused James’ head and upper body to rise before immediately falling head first to the floor of the hotel.  It appears he was rendered unconscious by the kick delivered by Joel Diamond.  Seconds later and, whilst James was laying face down and motionless, you then kicked him in the head forcefully with your right foot.  You then went to pick up a glass from the floor but were prevented from doing so by another patron.  You and Joel Diamond then left the scene.

Your offence is comprised of that which occurs in both incidents.  The first incident where you punched James in the face of itself whilst serious offending was towards the bottom end of any scale for this kind of offending.  But the second incident is very serious.  You acted in concert with Joel Diamond.  You summoned him to the hotel after the occurrence of the first incident knowing that he would inflict acts of violence on James and you later joined in with him in inflicting that violence.  You had time to think and withdraw before each incident but you did not.  Even if James had been staring at you or behaving inappropriately in some way towards you prior to the first part of the incident, that did not excuse or justify in any way the attack which you and Joel Diamond launched by surprise when James was not looking in the second part of the incident.  The attack which you and Joel Diamond launched on James was both vicious and cowardly, taking place as it did when James was not looking and was simply sitting minding his own business in a public place.

The injuries which you inflicted on James are described in paragraphs 15 to 17 of the prosecution summary.  There were multiple head and facial injuries.  He was placed in an induced coma for 9 days and hospitalised for 17.  Mr James has no recollection of the incident and suffers memory loss.  On any view you and Joel Diamond in concert inflicted very serious injuries with the prognosis still uncertain whether as a result Mr James has suffered long term brain damage.

The prosecution has filed victim impact statements from Michael James, his mother and brother.  The consequences for Michael James and the effect on his life as a result of the injuries he sustained at your hands can there be seen.  In passing sentence I have taken the contents of the victim impact statements into account as I must.  The prosecution also relied upon a psychological report from Dr Paul Grech who carried out a psychological assessment of Michael James.  Michael James continues to have psychological treatment for a post-traumatic stress disorder.  That is not surprising.  I have also taken into account the report of Dr Grech in passing sentence.[1]

[1]DPP v Ellis (Unreported, County Court of Victoria, Judge Lacava, 13 February 2014, [4]–[10] (‘Reasons’).

1. The applicant was 19 at the time of the commission of the relevant offence.  She had no prior convictions and it was not contested by the Crown that she had suffered significant privations since her childhood, including the early death of her mother, the suicide of one of her two brothers, virtually no relationship with her father, a series of foster placements, some of which were unsuitable, a disrupted educational history, an early introduction to alcohol and illicit drugs and a serious sexual assault.  Since she was about 15 or 16 years of age the applicant had been in a relationship with a co-accused, Joel Diamond, who has a significant criminal history and who is violent, controlling and abusive.  He is nine years older than she is.

1. The sentencing judge had before him a number of professional opinions concerning the applicant — from a psychologist, Mr Michael Bilyk (22 January 2014), a Court advice officer, Mr Stephen Riordan (30 January 2014) and County Court assessing officer, Ms Shannon Timmons (30 January 2014).  Each of these reports was considered by his Honour and two of them are referred to extensively in his sentencing remarks.  Finally, he also had before him uncontested evidence that, in breach of her bail conditions, the applicant had been in frequent contact with her co-offender, Joel Diamond, by telephone from the prison in which he was remanded.  Indeed Mr Riordan may have obliquely acknowledged this situation in his report when he referred to the relationship between her and Diamond as being one in which ‘he still controls her from jail’.

1. The sentencing judge referred to Mr Bilyk’s assessment of the applicant that she posed a moderate risk of reoffending violently generally, and that her relationship with her partner was itself violent and controlling.  He considered that although the applicant was insightful as to her situation she remained unwilling to consider behaviour or lifestyle changes including with respect to illicit substance abuse.  Mr Bilyk considered that cognitive distortions which he noted in the applicant’s profile would suggest that mandated interventions would need to be considered in her case.

1. The sentencing judge generally accepted Mr Bilyk’s opinion.  He gave careful consideration to the submissions of the applicant’s counsel to the effect that a Community Corrections Order would be an appropriate disposition in her case.  However, he concluded

that a disposition in the form of a Community Corrections Order is not appropriate having regard to the level of your offending and the seriousness of the injury that you, in concert with Joel Diamond inflicted on Michael James.[2]

In reaching this conclusion his Honour took account of the fact that the applicant was a young offender with no prior convictions and with a difficult background.  Thus, although she had been assessed for a Community Corrections Order and had agreed to be bound by such order if the Court saw fit to impose one, his Honour decided that she should be sentenced to a term of imprisonment with a shorter than usual non-parole period.  He considered that the disposition contended for by her counsel was not appropriate having regard to the evidence before him.

[2]Ibid [34].

1. Counsel for the applicant informed this Court that, although she had given instructions to her solicitors to bring an application for leave to appeal Judge Lacava’s sentence, her application was not filed with the Court until recently, resulting in a considerable delay.  Thus the applicant has been incarcerated now for just over a year, so that her non-parole period will expire in about 10 weeks.

1. In her Notice of Application for leave to appeal dated 14 November 2014, the grounds upon which the applicant seeks to challenge the sentencing judge’s disposition were as follows:

1.Error — The learned sentencing judge erred by  concluding that a Community Corrections Order would not be an appropriate sentencing disposition based upon the conclusion that a non- association condition would be difficult to enforce.

2.        The head sentence and the non-parole period are manifestly excessive.

1. In support of ground 1 of the application, Mr Wraight SC argued that the rejection by the sentencing judge of a Community Corrections Order in favour of immediate imprisonment was not justified. He characterised that decision as having been determined by the judge’s conclusion that a non-association condition on a Community Corrections Order (pursuant to s 48F of the Sentencing Act 1991) prohibiting her from associating with Joel Diamond was unlikely to be complied with.  But that was not the sole ground upon which his Honour reached that conclusion.  He specifically referred to the level of the applicant’s offending and the seriousness of the injury that she, together with her co-accused, inflicted on the victim of a vicious, apparently unprovoked, attack.

1. Counsel referred the Court to the recent guideline judgment of this Court concerning Community Corrections Orders[3] and McAleer v The Queen.[4] He also referred to s 5(4C) of the Sentencing Act 1991 and references to that section in the guideline judgment.  That provision, which requires a court to be satisfied positively that the purpose or purposes for which a sentence is imposed cannot be achieved by a Community Corrections Order before it can proceed to a sentence of imprisonment, had no application to this case.  That provision came into force on 29 September 2014 — some seven months after the applicant was sentenced.  It applies, specifically, only to sentences imposed after that date[5] although, of course, the general common law principle of parsimony would apply to similar effect; a sentence of imprisonment must not be imposed if a less restrictive disposition would suffice to satisfy the requirements of justice in the circumstances.

   [3]Boulton v The Queen [2014] VSCA 342.

   [4][2015] VSCA 4.

   [5]Sentencing Act 1991, s 154(3).

1. For the applicant to succeed on this ground she would have to demonstrate that the trial judge was in error in imposing the sentence which he did and in rejecting the submission that she should be placed on a Community Corrections Order.  The sentencing judge made no mistake as to the facts of the case;  nor did he act on any erroneous principle of law so as to vitiate the sentencing discretion vested in him.  He was fully entitled, in the exercise of his sentencing discretion, to reach the conclusion he did.  In particular, he was entitled to find on the evidence that a non-association condition was essential to achieving the purposes of a Community Corrections Order and that there was an unacceptable risk that the applicant would flout such a condition.  This ground must be rejected.

1. The other ground of appeal argued by Mr Wraight was that of manifest excess.  His argument on this ground relied upon the applicant’s youth, her employment record, her apparent capacity to overcome adverse circumstances in her life and, generally, her good prospects for rehabilitation.  This argument does not succeed either.  Having regard to the severity of the offending, and its effects on the victim, as well as the matters already referred to, this sentence could not be said, in any sense, to be manifestly excessive.

1. Although the application does not succeed it is not inappropriate to note the impressive post-sentencing material tendered by her counsel for use in the event that this Court were called upon to re-sentence her, had she succeeded in her appeal.  That material consisted of a number of statements and certificates from within the prison system, all of which speak in glowing terms of the applicant’s behaviour and attitude, and the prospects for her rehabilitation.  This material should be placed before the Parole Board for its consideration with respect to her imminent release on parole.

Order

1. The application for leave to appeal is refused.

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