Evison v The Queen

[2014] VSCA 132

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0122
GARY EVISON	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE, TATE and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 June 2014
DATE OF JUDGMENT:	24 June 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 132
JUDGMENT APPEALED FROM:	R v Evison (Unreported, Judge Mullaly, 12 April 2013)

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CRIMINAL LAW – Appeal – Sentence - Aggravated burglary – Threat to inflict serious injury – Make threat to kill – Criminal damage – Common assault – Use carriage service to menace – Breach of intervention order – Total effective sentence of 7 years 3 months with non-parole period of 5 years 3 months outside permissible range – Appellant resentenced to total effective sentence of 5 years 9 months with non-parole period of 3 years 9 months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis with Mr B M Johnston	James Dowsley & Associates
For the Respondent	Mr R A Elston QC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA
TATE JA

BEACH JA:

Introduction

1. On 18 March 2013, the appellant pleaded guilty to two charges of assault and charges of making a threat to kill, using a carriage service to harass or menace, aggravated burglary, making a threat to inflict serious injury, criminal damage and contravening an intervention order.  On the same day, a plea was heard and the appellant was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Common assault [Common Law]	5 years [Crimes Act 1958 (Vic) s 320]	1 month	-
2	Common assault	5 years	2 months	1 month
3	Make threat to kill [Crimes Act 1958 (Vic) s 20]	10 years [Crimes Act 1958 (Vic) s 20]	12 months[1]	8 months
4	Use carriage service to menace [Criminal Code (Cth) s 474.17(1)]	3 years [Criminal Code (Cth) s 474.17(1)]	9 months	-
5	Aggravated burglary [Crimes Act 1958 (Vic) s 77(1)]	25 years [Crimes Act 1958 (Vic) s 77(2)]	5 years	Base
6	Threat to inflict serious injury [Crimes Act 1958 (Vic) s 21]	5 years [Crimes Act 1958 (Vic) s 21]	18 months	12 months
7	Criminal damage [Crimes Act 1958 (Vic) s 197(1)]	10 years [Crimes Act 1958 (Vic) s 197(1)]	12 months	6 months
Summary Offence	Breach Intervention Order [Family Violence Protection Act 2008 (Vic) s 123]	2 years and/or 240 penalty units [Family Violence Protection Act 2008 (Vic) s 123(2)]	9 months	-
Total Effective Sentence:		7 years 3 months
Non-Parole Period:		5 years 3 months
Pre-sentence Detention Declared:		334 days
6AAA Statement:		9 years’ imprisonment, non-parole period of 7 years
Other orders: Disposal order pursuant to the Confiscation Act 1997 (Vic)

[1]The appellant was sentenced as a serious violent offender in relation to charge 3, pursuant to s 6B(2) of the Sentencing Act 1991 (Vic).

1. On 7 November 2013, Ashley JA granted the appellant leave to appeal on the following ground:

The individual terms of imprisonment imposed on all charges, the order for partial cumulation of the sentence on charge 6 on the sentence on charge 5, and the non-parole period are manifestly excessive and offend the principle of totality.

Circumstances of the offending

1. The appellant and victim, Michelle Grulke, commenced a relationship in July 2011, following which the appellant began living with the victim at her address.

1. In the evening of 26 November 2011, following an argument the victim walked outside into the backyard.  The appellant remained inside.  Whilst still outside, the victim observed the appellant inside standing in a window holding a knife in a threatening manner and looking at her (charge 1).

1. On the evening of 22 January 2012 the appellant and the victim were at the victim’s address where they had been drinking alcohol together.  The appellant and victim began arguing, which escalated to the appellant holding the victim by the throat whilst she was lying on the ground (charge 2).

1. At approximately 4.34 pm on Friday 20 April 2012, the appellant left a voice message on the victim’s mobile phone.  The voice message stated ‘you will bring some ice home else I will fucking kill you’ (charge 3).  The victim listened to the message that night and slept in her car that evening.

1. At approximately 5.30 pm on Thursday 26 April 2012 the appellant called the victim on her mobile phone while she was at her home address.  While speaking with the victim, the appellant became aggressive and stated ‘sleep tight sweetheart, I’m coming to get ya’ and then ended the call (charge 4).  The victim took her dogs and some other personal possessions and left her address for two days.

1. The victim made a statement regarding the above stated matters to police on 27 April 2012.  On 3 May 2012, the victim was granted a family violence intervention order until 3 May 2014.

1. Charges 5, 6, 7 and the summary offence occurred at approximately 2.15 am on Saturday 12 May 2012.  The appellant drove to the victim’s address and parked a short distance from her house. The appellant walked to the victim’s house and attempted to slide up a locked roller door before walking to a neighbouring property and gaining entry to the victim’s back yard by climbing over a back fence.  The appellant entered the garage at the rear of the property and removed a claw hammer from a tool box in the garage which he used to break the sliding glass door at the rear of the house.  He entered the bedroom where the victim was sleeping and woke her by shining a torch in her face (charge 5 – aggravated burglary).

1. The appellant, while holding the hammer, twice stated ‘get up and get out of bed or I’m going to put this through your head’ (charge 6 – threat to inflict serious injury).  The victim got out of bed and, as the appellant turned to walk out of the room, ran and secured herself in the bathroom.

1. The appellant yelled ‘you better come out or I will break the door down’ whilst repeatedly striking the door with the hammer.  He further stated ‘if you call the police I will put the hammer through your head’.  The victim climbed through the bathroom window and jumped over the back fence into the yard of the neighbouring property where she called the police.

1. Still in the house, the appellant used the hammer to damage the television and break all of the glass panes in the front window frame.  He also broke several windows of the victim’s car, parked in the garage, before leaving the address, returning to his car and driving away (charge 7 – criminal damage).

Appellant’s submissions

1. The appellant’s principal submission was that the sentence imposed was manifestly excessive in all the circumstances.  In support of this submission, the appellant contended that the judge’s conclusion about the appellant’s prospects of rehabilitation being ‘very guarded’ did not take sufficient account of the appellant’s progress in custody, the numerous courses he had completed while in custody, and what was said to be the appellant’s insight and remorse, in terms of his prospects of rehabilitation.  Further, complaint was made about the judge referring to the appellant as ‘expressing remorse’ rather than, what was said to be the fact that the appellant’s remorse was uncontradicted, and consistent with the fact, and timing, of his plea of guilty. 

1. As to principles of totality, the appellant submitted that ordering 12 months’ cumulation of the sentence on charge 6 on charge 5 was excessive when one remembered that the facts supporting charge 6 were that the appellant, while standing at the foot of the victim’s bed, said ‘Get up and get out of bed or I’m going to put this through your head’.  In arguing this part of the case, the appellant also made complaint that the judge sentenced him on a wrong factual basis in respect of charge 6, the judge saying that the appellant had ‘held the hammer to her head telling her to get up or [the appellant] would put the hammer through her head’.  Holding the hammer to the victim’s head was not the factual basis of the plea of guilty on charge 6.  When this was drawn to the judge’s attention, the judge said:

It makes no different to the overall sentence and the like that it was not held at her head as opposed to near her at the time.  It was a frightening episode and I think that suffices.

1. In all the circumstances, the appellant submits that the sentences on charges 5 and 6 should be moderated, and the appellant sentenced afresh.

Respondent’s submissions

1. The respondent submits that the individual terms of imprisonment, orders for cumulation, total effective sentence and non-parole period were each within the ranges that were reasonably open to the sentencing judge.  The respondent submits that the reasons of the sentencing judge disclose that his Honour paid careful regard to all of the mitigating factors relied upon by the appellant in this appeal.  In particular, it is submitted that the judge:

(a)       gave appropriate consideration to the appellant’s mental health including his admission to a psychiatric ward in May 2012, and the contents of the various reports that were tendered;

(b)      moderated (to some degree) the appellant’s culpability and the weight to be given to specific and general deterrence by reason of the appellant’s impaired mental functioning;

(c)       took into account the full admissions made by the appellant to police upon his arrest, and the appellant’s early plea of guilty;

(d)      accepted that the appellant had gained some insight into his offending and mental health problems;

(e)       found that the appellant had expressed remorse;  and

(f)       noted that the appellant had embarked on courses and the like in prison to improve himself.

1. These matters notwithstanding, the respondent submits that the seriousness of the appellant’s offending, together with an extensive criminal history, meant that a significant sentence of imprisonment was warranted.  Further, this was the second time the appellant had been convicted of aggravated burglary.  It was submitted that, in the circumstances, it was open to the judge to be ‘very guarded’ as to the appellant’s prospects of rehabilitation, despite the progress made by the appellant while in custody.  Protection of the community, just punishment, deterrence and denunciation were said to assume considerable importance in the judge’s instinctive synthesis.

1. Further, it was submitted that the sentence imposed on the appellant for charge 6 and the order for cumulation made reflected the high degree of culpability involved in the appellant’s conduct.  In support of this submission, it was said that ‘confronting his former partner in her bedroom at 2.30 am, shining a torch in her face, and holding a hammer while threatening the infliction of serious injury upon her, constituted serious offending’.  This all in circumstances where the appellant had entered his victim’s home as a trespasser with an intention to commit an assault on her ‘in blatant contravention’ of a family violence intervention order imposed only days earlier.  Additionally, in support of the sentences imposed, reliance was placed upon what this Court said in R v Madeira,[2] concerning the need to fix proper sentences for separate offences with distinct elements.

   [2][2002] VSCA 5 [32].

The resolution of this appeal

1. The appellant was born in England in 1964.  He migrated to Australia in 1969.  The appellant’s parents divorced soon after their arrival, with the appellant’s mother commencing a relationship with another man, who had children from another relationship.  The appellant was the victim of sexual assaults for a period of about two years when he was a young boy.

1. The appellant completed year 12, and then completed a bachelor of applied science.  He had a long history of employment between 1986 and 2001, working in sales and as a laboratory technician. 

1. In his early twenties, the appellant commenced a relationship with a woman he subsequently married.  The couple had one child together.  However, in 2001, the appellant’s wife left the appellant.  It is from that time that the appellant’s life appears to have spiralled out of control.

1. Apart from a plea of guilty to a charge of possessing cannabis in 1987, and a charge of obtaining a financial advantage by deception in 1988, the appellant has no relevant prior convictions before 2001.  From 2001, the appellant has a significant criminal history involving charges of threat to kill, threat to cause serious injury, stalking, breaching intervention orders, assault, aggravated burglary, attempted armed robbery and arson.  However, the evidence discloses that much of this offending can be related to the appellant’s inability to accept the breakup of his relationship with his former wife, together with significant long term mental health problems from which the appellant has suffered.

1. The appellant has a complex history of mental health problems, developing symptoms of an obsessive compulsive disorder at an early age.  Further, he has experienced episodes of depression and attempted suicide on a number of occasions.  Additionally, the appellant has been hospitalised in mental health facilities in respect of his mental health problems, the last hospitalisation being in the days leading up to the commission of the offences constituting charges 5, 6 and 7.

1. The charges for which the appellant pleaded guilty are serious charges.  Domestic violence of the kind engaged in by the appellant is serious.  That said, and without downplaying in any way the seriousness of the appellant’s criminal conduct, it is to be noted that the appellant did not inflict any physical injury upon the complainant.  Having regard to all of the circumstances, we are persuaded that the total effective sentence and the non-parole period were outside the permissible range of sentences to be imposed in the present case.  It may be that the judge’s misapprehension of the facts upon which charge 6 was based contributed to the imposition of a total effective sentence and non-parole period outside the permissible range;  alternatively, it may be that the judge did not give sufficient weight to principles of totality, so as to cause the sentence ultimately imposed to be outside the permissible range.

Conclusion

1. We will allow the appeal and resentence the appellant as follows.  On charges 1 to 4,  we will impose the sentences imposed by the judge with the same orders as to cumulation.  On charge 5,  we will sentence the appellant to 4 years and 6 months’ imprisonment.  Like the judge, we will make the sentence on charge 5 the base sentence.  On charge 6, we will sentence the appellant to 8 months’ imprisonment, and cumulate 4 months of this on the base sentence and on the amounts cumulated in respect of the other charges.  On charge 7, we will sentence the appellant to 4 months’ imprisonment, and cumulate 2 months of this sentence on the base sentence and on the other orders for cumulation.  On the summary offence, we will impose the same sentence as the judge and, like the judge, order no cumulation.

1. These sentences and orders for cumulation make a total effective sentence of 5 years and 9 months’ imprisonment. We will fix a non-parole period of 3 years and 9 months’ imprisonment. Pursuant to s 6AAA of the Sentencing Act 1991, we will declare that if the appellant had not pleaded guilty we would have sentenced him to a total effective sentence of 7 years’ imprisonment, with a non-parole period of 5 years’ imprisonment.  In all other respects we will confirm the judge’s orders.

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