Ferrer v The Queen

[2016] VSCA 295

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0132

ISMAEL FERRER	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGES:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	25 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 295
JUDGMENT APPEALED FROM:	DPP v Ferrer [2016] VCC 808 (Judge Cannon)

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CRIMINAL LAW – Application for leave to appeal against sentence – Intentionally causing serious injury in circumstances of gross violence (8y) – Aggravated burglary (6y) – Theft (1y) – Total effective sentence 9y – Non-parole period 6y – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Tait Lawyers
For the Respondent	No appearance	Mr John Cain, Solicitor for Public Prosecutions

WHELAN JA:

1. On 31 May 2016 the applicant, Ismael Ferrer, pleaded guilty in the County Court to offences of intentionally causing serious injury in circumstances of gross violence, aggravated burglary, and theft.  A plea hearing was conducted that day and on 14 June 2016 he was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Intentionally causing serious injury in circumstances of gross violence [Crimes Act 1958 s 15A]	20 years imprisonment [Crimes Act 1958 s 15A]	8 years imprisonment	Base
2	Aggravated burglary [Crimes Act 1958 s 77(1)]	25 years imprisonment [Crimes Act 1958 s 77(2)]	6 years imprisonment	10 months
3	Theft [Crimes Act 1958 s 74(1)]	10 years imprisonment [Crimes Act 1958 s 74(1)]	1 years imprisonment	2 months
Total Effective Sentence:		9 years imprisonment
Non-Parole Period:		6 years imprisonment
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		208 days
6AAA Statement:             12 years imprisonment with a non-parole period of 9 years and 6 months imprisonment
Other relevant orders:     Nil

1. The applicant now seeks leave to appeal on the ground that the sentence imposed on charge 1, the total effective sentence, and the non-parole period fixed are each manifestly excessive.

1. The offences were committed on Sunday 8 November 2015.  The applicant attacked the victim with two co-offenders.  The applicant and his co-offenders entered the victim’s apartment and stole possessions valued at approximately $3,000.  The offence of intentionally causing serious injury was committed in circumstances of gross violence because the applicant planned in advance to engage in the assault and intended at that time to cause serious injury, because the attack was carried out by the applicant in company with two co-offenders, and because the applicant planned in advance to have with him and to use an offensive weapon, being a hammer, that was in fact used to inflict serious injury on the victim.

Circumstances of the offending

1. The applicant and one of the co-offenders, Danielle Page, had been in a relationship for some time prior to the offences.  After an argument on 2 November 2015, Ms Page temporarily left the home that she shared with Mr Ferrer.  During the course of the temporary separation, Ms Page visited the apartment of one Geoffrey Camilleri with other people.  When she returned to the home she shared with Mr Ferrer a few days later, she told him that Mr Camilleri and another male had raped her.  Upon learning this the applicant decided not to report the allegation to the police but to deal with it himself.

1. What then happened was set out in the summary of prosecution opening which was tendered on the plea.  Relevantly it reads as follows:

On Sunday 8 November 2015 Mr Ferrer planned to attack Mr Camilleri, and prepared by packing a backpack, which included a hammer from his own toolbox, and cable ties, amongst other items.  Mr Ferrer wanted to torture Mr Camilleri and another man Ms Page had also implicated in the alleged rape.  Ms Page was aware of the plan to attack Mr Camilleri, and supplied Mr Ferrer with the address.

At about 8pm Mr Ferrer contacted the co-offender Mr Pollard, and asked him to drive him and Ms Page to an address in Glenroy.  Mr Pollard collected Ms Page and Mr Ferrer at around 10.30pm.  The three travelled together in Mr Pollard’s Volkswagen Golf to the victim’s address [address deleted].

Upon arriving … at around midnight, Mr Ferrer and Ms Page noticed a light on in the victim’s apartment.  They instructed Mr Pollard to do a u-turn and park the car.  Mr Pollard parked on the opposite side of the road to the apartment.  Mr Ferrer and Ms Page told Mr Pollard that Ms Page had been raped by the victim.  Mr Ferrer said that he was going to ‘fix him up’.  Mr Ferrer got out of the car and went over to look inside the apartment through the windows.  Mr Ferrer returned, got back into the car and said to Mr Pollard and Ms Page ‘He’s in there’ or ‘He’s by himself’.  The three offenders then got out of the car.  Mr Ferrer told Mr Pollard to knock on the door of the victim’s unit, which he did.  Mr Camilleri had just turned the lights off and went to bed, when he heard the knock at the front security door.

Mr Camilleri got out of bed, went to the front door and opened the door.  He saw Mr Pollard, who he did not know.  Mr Pollard said to him ‘Geoff, your friend Malakai sent me over’.  Mr Camilleri had not seen anyone else at this point, and he began to open the security door.  As he did so Mr Pollard pulled the door towards himself very quickly and Mr Ferrer ran up the stairs, wielding the hammer towards Mr Camilleri, who was standing in the door way of his apartment.

As Mr Ferrer reached Mr Camilleri he struck the victim with the hammer, to the face.  Mr Camilleri could immediately taste blood.  Mr Ferrer repeatedly hit the victim with the hammer to the head.  The victim felt around 10 blows to the head within the first few moments of the attack.  Mr Pollard was yelling at Mr Camilleri ‘Ya fucking dog, get inside’.  Ms Page remained at the bottom of the stairs whilst the assault occurred.

Mr Pollard started pushing the victim in the chest, pushing him back into the apartment.  Mr Ferrer was now behind the victim trying to pull him back inside.  The victim could feel that he was bleeding, and feared what might happen to him if he was taken into the apartment.  Still being hit with the hammer to the head by Mr Ferrer, the victim used his right arm to reach back and grab Mr Ferrer, whilst pushing Mr Pollard forward with his left arm.  The victim was effectively pushing Mr Pollard and dragging Mr Ferrer out with him, and upon getting out of the doorway, the victim launched himself and both men down the stairs.  Upon going down the stairs, Mr Ferrer grabbed at the victim and ripped his shirt off.  He continued to strike the victim with the hammer to the head.  Mr Pollard could see that the skull of the victim was exposed, and white in colour.

Mr Camilleri landed at the bottom of the stairs on his knees and immediately felt his whole head ringing and incredible pain, so he went for help.  He managed to make it to the car park, which was approximately 20m from his apartment when Mr Ferrer, who chased after him, struck him again to the head with the hammer, a few more times.  Ms Page followed behind Mr Ferrer.  The victim stumbled and fell to the ground against a car.  Mr Ferrer stomped on his head a few times.  The victim got up, and Mr Ferrer swung at the victim with the hammer again.  Mr Camilleri, attempting to defend himself swung his right fist at Mr Ferrer, and connected with his jaw.  The victim then grabbed a hold of the hammer and the two fought for control of it.  At this stage Mr Pollard returned to his car, and waited for the offender and Ms Page.

As the two men were struggling over the hammer, Ms Page approached from behind, and struck the victim to the back of the head with another hammer.  Ms Page said to the victim ‘See I told you I would be back’.  The victim thought he recognised Ms Page from a week ago.  Ms Page then ran off, and Mr Ferrer walked away, back towards Mr Camilleri’s apartment.

Mr Camilleri then set off on foot towards Plenty Road in search of help.  On Plenty Road he raised the occupant of a house, … by knocking on his door.  However [that person] who was too scared to open the door for him, spoke through the door, telling Mr Camilleri that he would phone an ambulance for him.

Feeling faint, and still unassisted, Mr Camilleri walked to the Rose Shamrock Hotel at 709 Plenty Road, Reservoir.  There he spoke with security staff, who called an ambulance for him.  The Police and ambulance arrived a short time later, locating him at a bus stop on Plenty Road outside of the Rose Shamrock Hotel.  The victim was conveyed to the Royal Melbourne Hospital for treatment. 

1. At the applicant’s instigation, the offenders then returned to Mr Camilleri’s apartment and stole his goods.  The applicant told his co-offenders that he had not finished with the victim and that he was ‘going to kill him’, and he suggested at one point after leaving that they return and get more ‘stuff’.

1. When arrested and interviewed on 19 November 2015, the applicant showed no remorse and said, amongst other things, that he had intended to torture the victim and that he deserved to die.

1. The victim sustained injuries to his skull from the repeated blows with the hammer.  He was treated for multiple open wounds to his head in the left temporal, right occipital and right parietal regions.  His skull was fractured requiring a craniotomy and elevation of depressed skull fragment.  Photographs of the victim’s injuries were tendered on the plea hearing.  They show the very considerable extent of the lacerations which the victim suffered to his head. 

Sentencing judge’s reasons

1. The sentencing judge set out the circumstances of the offending.  She observed that, whilst she was not sentencing the applicant for attempted murder, ‘the fact of the matter is that you could have killed the victim’.  The judge observed that this was a most serious example of intentionally causing serious injury.  The judge also said that the offence of aggravated burglary was a serious example of that offence.  The judge referred to the relentless violence of the attack and to the fact that the applicant had been ‘still crowing’ about his conduct after he had been arrested. 

1. The sentencing judge observed that she took into account in assessing the applicant’s moral culpability the fact that he was reacting to an allegation made by Ms Page, but she stressed that that in no way justified what he had done.  She also stressed that it was not to the point whether Ms Page had been telling the truth or not. 

1. The sentencing judge took into account a victim impact statement.  In that statement the victim set out the very significant effects which the attack had had on him.  The long term effects were principally psychological.    

1. The sentencing judge referred to the applicant’s personal circumstances.  He was 44 at the time of the offence.  The applicant had a criminal history dating back to 1993, with prior offences for violence in 2009, 2011 and 2014.  The sentencing judge observed that the prior violent offences were not of the magnitude or character of the offences with which she was dealing, but she indicated that she considered them to be still relevant.  The sentencing judge referred to a letter expressing remorse which the applicant had written and which was tendered on the plea.

1. The sentencing judge referred to the sentencing discount to which the applicant was entitled by reason of his early guilty plea, and she referred to the harsh conditions of incarceration in which the applicant had been held whilst on remand. 

1. The sentencing judge observed that the offending had been related to the applicant’s drug abuse and to his temperament.  She referred to a psychological report by Mr Bernard Healey dated 28 May 2016 which had been tendered.  The report indicated that the applicant had come from a caring and supportive home environment.  Notwithstanding that, he had a history of significant drug abuse commencing at about the age of 16.  The sentencing judge referred in some detail to Mr Healey’s report and to the account of the applicant’s personal circumstances and history set out in that report.  Amongst other things, she observed that in assessing his prospects for rehabilitation she was concerned that the applicant tended to turn to drugs in times of stress.

1. The sentencing judge accepted a submission made on behalf of the applicant that the applicant had been and would continue to be ‘fairly isolated’ in gaol.  She also accepted that the applicant’s criminal history did not reveal him to be an ‘inherently violent’ person.  She referred to the applicant’s expressed desire to cease drug use and to become a responsible parent.

1. The sentencing judge found that the applicant had ‘a level of remorse and insight’ and she assessed his prospects of rehabilitation as ‘guardedly fair’.

1. The sentencing judge referred to submissions made to her concerning the mandatory statutory minimum non-parole period of 4 years applicable to the charge 1 offence.  As matters transpired, the sentence imposed provided for a non-parole period significantly in excess of the mandatory minimum.

Submissions in support of leave to appeal

1. The submissions made in support of leave to appeal largely replicated the matters put on the plea, to all of which the judge had referred in her sentencing reasons.  It was submitted that the sentence which had been imposed on charge 1 and, consequently, the total effective sentence and the non-parole period were each manifestly excessive.

Analysis

1. 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.  For the ground to succeed on appeal it will have to be shown that it was not reasonably open to the sentencing judge to sentence in the manner in which she did.

1. The applicant in his written submission did not refer to comparable cases but I have had regard to the decision of this Court in Nash v The Queen[1] and to the cases referred to in that judgment, and in the table annexed to it.  I have also had regard to the decision of this Court in Director of Public Prosecutions v Hudgson[2] and to the cases referred to in that judgment, and to the decision of T Forrest J in R v Ravenhorst,[3] a sentence referred to in the prosecution submissions on sentence made to the sentencing judge. 

   [1](2013) 40 VR 134.

   [2][2016] VSCA 254.

   [3][2015] VSC 308.

1. This was very violent offending by a mature man with prior convictions for violence who had little upon which he could rely in mitigation in relation to his personal background.  The offending was mitigated to some small degree by his motivation.  He pleaded guilty and he was entitled to a discount on that basis.  The sentencing judge found that by the time of sentence there was a ‘level of remorse’.  The nature and the extent of the planning, and the duration and the persistence of the attack, are features which justify the sentencing judge’s description of this as a most serious example of intentionally causing serious injury.  The sentencing judge also rightly assessed this to be a serious aggravated burglary.  Some cumulation of the sentences on the aggravated burglary and theft offences was clearly required, and, in the circumstances, the total cumulation of 12 months was modest in my view. 

1. A consideration of sentences for intentionally causing serious injury imposed in other cases, to which I have referred, does not seem to me to give any basis for concern that this sentence stands apart from those imposed in comparable cases. 

Conclusion

1. My conclusion is that it is not reasonably arguable that the sentence imposed on charge 1 (8 years), the total effective sentence (9 years) or the non-parole period (6 years) are outside the range of sentences reasonably open to the sentencing judge.  Leave to appeal should be refused.