Filiz v The Queen
[2014] VSCA 212
•11 September 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0215
| HIMMET FILIZ |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES: | MAXWELL P and REDLICH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 June 2014 |
| DATE OF JUDGMENT: | 11 September 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 212 |
| JUDGMENT APPEALED FROM: | DPP v Filiz (Unreported, County Court of Victoria, Judge Tinney, 16 October 2013) |
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CRIMINAL LAW – Appeal against sentence – Manifest excess – Aggravated burglary, two counts of intentionally cause serious injury, one count of theft – Contravention of Family Violence Intervention Order – Assaulted a former partner – Current sentencing practice for aggravated burglary – Hogarth v The Queen [2012] VSCA 302, considered – No double punishment where the act of entering the premises is conceptually distinct from the other criminal acts committed therein – Suckling v The Queen [2013] VSCA 278, distinguished – General deterrence of particular significance where violence used against former domestic partner and where Family Violence Intervention Order in place – Felicite v The Queen (2011) 37 VR 329 and DPP v Pasinis [2014] VSCA 97, cited.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R van de Wiel QC | Deftros Lawyers |
| For the Crown | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA:
The applicant pleaded guilty to one charge of aggravated burglary with intention to assault, two charges of intentionally causing serious injury, one charge of theft and one summary charge of contravening a Family Violence Intervention Order. Following a plea the applicant was sentenced on 16 October 2013 as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Aggravated Burglary [Crimes Act 1958 s 77] 25y [Crimes Act 1958 s 77(2)] 2 years 6 months Base 2 Intentionally Cause Injury [Crimes Act 1958 s 18] 10y [Crimes Act 1958 s 18] 16 months 6m 3 Intentionally Cause Injury [Crimes Act 1958 s 18] 10y [Crimes Act 1958 s 18] 16 months 6m 4 Theft [Crimes Act 1958 s 74(1)] 10y [Crimes Act 1958 s 74(1)] 1 month None Summary Offence Contravene a Family Violence Intervention Order [Family Violence Protection Act 2008 s 123] 2y and/or 240 penalty units [Family Violence Protection Act 2008 s 123] 4 months None Total Effective Sentence: 3 years 6 months Non-Parole Period: 1 year 10 months Pre-sentence Detention Declared: 5 days 6AAA Statement: 5 years 6 months with a non-parole period of 3 years 9 months
The applicant now appeals against the severity of the sentences on Charges 2, 3 and 4, the orders for cumulation and the resultant total effective sentence on the sole ground that the sentences are manifestly excessive.
Factual background
The applicant had been in a relationship with the complainant for 10 years. They have three children together. On 9 February 2012, a 12-month Family Violence Intervention Order was made against the applicant in relation to the complainant and their children. The order did not prevent the applicant from attending their home, but prohibited any family violence. The order was made by consent, without any admission as to the complaint, following a domestic incident involving the complainant, her brother, and the applicant.
In mid-2012, the applicant and complainant separated, and the latter moved to a different residence. The applicant would visit the house to spend time with the children.
At about 11.45pm on 11 November 2012, the children were asleep in their bedrooms and the complainant was lying in bed talking to her current partner, Zane Liddle, when the applicant entered the house and kicked open her locked bedroom door. The applicant entered the bedroom holding a curtain rod, and yelled at Liddle. When the complainant approached the applicant in an attempt to calm him, he struck her with the curtain rod. The complainant fell to the floor and covered her head with her hands, whereupon the applicant struck her two or three times with the curtain rod, hitting her arms.
The applicant then struck Liddle to the head with the rod. The latter put his hands to his head in order to defend himself. The applicant struck him with the rod several more times before repeatedly punching his face and arms. Liddle fell backwards onto the bed as the applicant continued to hit him, and he attempted to grab hold of the applicant’s arms to prevent himself from being struck again.
At this point, the applicant yelled, ‘What’s going on?’ and asked for Liddle’s wallet, saying that he wanted to see his identification. He then took Liddle’s wallet, which was lying on the floor, and left with it.
The complainant picked up her phone and ran outside to call the police. The applicant told her not to do so. He ran after her, grabbed her phone, and threw it to the ground. The applicant then drove away, and the complainant and Liddle waited outside the house until police arrived.
The complainant sustained swelling and bruising to her left elbow and her left hand, as well as a small wound to her left shin. The little finger on her left hand was fractured. Liddle sustained bruising to his arms, back and left ear, and lacerations to his back and head. He had bruising and tenderness to his left side, chest and ribs, and bruising and tenderness to his left shoulder with restricted movement.
The next day the applicant and complainant attended the police station. The applicant asked the complainant to speak to the police. Police recovered Liddle’s wallet from the applicant’s car. A record of interview was then conducted, during which the applicant answered no comment to the allegations against him. On the same day, an intervention order was obtained at the Broadmeadows Magistrates’ Court that prevented the applicant from contacting or communicating with the complainant or her children by any means or being within five metres of them, or within 200 metres of where they lived, worked, or attended school or childcare. On the plea it was disclosed that the applicant was subsequently arrested on two occasions for breaching that intervention order, as follows.
On 23 December 2012 the complainant was with Liddle at his house, and the children were with the applicant. The complainant’s son came to the front door of the house and asked the complainant to come outside. When she did so, she saw the applicant sitting in his vehicle at the end of the street. The complainant’s son returned to the applicant’s car, and the complainant got into her own vehicle in order to drive to her cousin’s house around the corner. As she passed the applicant, he yelled at her. Upon arrival at her cousin’s house, the complainant discovered that there was nobody home and decided to walk to her uncle’s house nearby. As she was walking, the applicant pulled up next to her and shouted, ‘Your kids have been trying to call you all night, but you’ve been out fucking all night’. The complainant replied, ‘Himmet, look what you’re doing in front of the kids. I’ll call the police’, to which the applicant responded, ‘Do it and I’ll shoot you in the fucking face’. The complainant called the police, and the applicant was remanded in custody for several days before being bailed. On 27 February 2013 he was dealt with in the Magistrates’ Court in relation to the breach. A penalty was imposed, without conviction, which included a requirement that the applicant complete the Men’s Behaviour Change Program. The matter was adjourned to 27 February 2014.
The second breach occurred in May 2013. The applicant drove to the suburb in which the complainant resided to give presents to the children. He came across the complainant, who was in her vehicle. The two spoke to one another by telephone and she advised him to follow her in his car to the police station, which he did. The applicant conversed with the children and gave them their presents, and was then called in and charged by the police. On 12 August 2013, at the Sunshine Magistrates’ Court, the applicant was fined $750 without conviction for this breach.
At the plea in mitigation the defence relied upon the following factors: the offending was spontaneous, of short duration and was not the worst example of aggravated burglary; the weapon had been picked up within the complainant’s home, rather than being brought by the applicant; the applicant only had one prior, a non-conviction penalty for recklessly causing injury in the context of a soccer game; the applicant had good family support, a solid work history and good prospects of rehabilitation; he had pleaded guilty at a relatively early stage; and he had taken steps to address his behaviour. Reports by two psychologists were relied upon to demonstrate the extent of the depression from which the applicant suffered as a result of the deterioration of his family life with the complainant and the children. The sentencing judge was asked to impose a short period of immediate custody and a Community Corrections Order.
Manifest excess
It is submitted that most of the aggravating features associated with the offending operated so as to inform the County Court judge’s sentence on Charge 1 (aggravated burglary) which, it was said, was a severe sentence. Those aggravating features included that the applicant had entered the house of his ex-partner armed with a weapon, late at night, and intending to assault. As such, it is argued, Charges 2, 3 and 4 (the two instances of intentionally causing injury, and the theft charge) ought to have attracted individual sentences materially lower than those that were imposed. In substance it was contended that the sentences on Charges 2 and 3 contained an element of double punishment.
First, we reject the contention that the sentence of two years and six months’ imprisonment for the aggravated burglary charge was ‘very severe’. The plea of guilty in this matter was entered after this Court’s decision in Hogarth v The Queen[1] had been published. In Hogarth, it was noted that current sentencing practice for aggravated burglary offences — which involved a median sentence of two years, with the upper limit generally being six or seven years[2] — failed to adequately reflect the 25 year maximum which Parliament prescribed for the offence.[3] It was anticipated that sentencing practice for aggravated burglaries, in particular those committed with the aim of confrontation, would increase in the coming years.[4] A significantly higher sentence than that imposed in this instance would therefore have been within range.
[1][2012] VSCA 302 (‘Hogarth’).
[2]Ibid [58]–[59].
[3]Ibid.
[4]Ibid [62].
Aggravated burglary is an offence which is preparatory to the commission of other offences — that is, it is characterised by an act (entering property) accompanied by an intention to commit a further offence. The gravity of any particular aggravated burglary is to be assessed in accordance with the circumstances of the entry and the gravity of the offence which the offender intended to commit once inside the premises.[5] The intent on entry of the premises is conceptually distinct from what actually takes place after that entry has been effected.[6] In this instance, the burglary was aggravated by the applicant’s intention, admitted by virtue of his plea, to commit an assault within the complainant’s house, as well as the fact that he entered the premises armed and late at night.
[5]See Sentencing Advisory Council, Aggravated Burglary — Current Sentencing Practises (June 2011) ix; Hogarth [2012] VSCA 302, [52].
[6]Cf Suckling v The Queen [2013] VSCA 278, [42], in which an element of double punishment was found to exist because the conduct constituting the criminal damage charge (the breaking of a window) took place during the unlawful entry which constituted the aggravated burglary charge, and was the means by which that entry was effected.
In relation to the injury charges, the sentencing judge noted as follows:
I do not judge [the intentionally causing injury charges] to be minor examples of that offence by any means. The attack was not truly spontaneous because, of course, you entered, intending to assault. You carried a weapon, you kicked down the bedroom door and you committed those crimes in their bedroom whilst they were totally unprepared for resistance. At the outset, [the complainant] tried to make you see sense and tried to calm you down and your response was to strike her with the curtain rod. These were not single blows. Each of the offences were constituted by a violent and sustained attack upon each victim that caused injury and, as I have said at the outset of these reasons, [the complainant] has been significantly affected by your crimes.[7]
[7]DPP v Filiz (Unreported, County Court of Victoria, Judge Tinney, 16 October 2013) [27] (‘Reasons’).
This, with respect, is entirely correct. The factors relevant to these charges of ‘intentionally cause injury’ must include,[8] as a bare minimum, the use of a weapon, the obvious intent to cause injuries of a significant nature (as evidenced by the repeated attempted blows to the heads of both victims), the fact that the victims were attacked when vulnerable and unarmed, and the fear in which they were put by the assault, as well as the seriousness of the injuries actually caused. The facts that the applicant remained armed and entered the complainant’s bedroom late at night when the complainant and her partner were vulnerable in the bedroom were factors which increased the gravity of the assaults without any element of double punishment arising.[9] There is no reason to think that any factors bearing on the aggravated burglary sentence were impermissibly taken into account a second time in fixing the injury sentences.
[8]See Nash v The Queen [2013] VSCA 172, [10].
[9]See, eg, Maurice v The Queen [2011] VSCA 197, [35] (Maxwell P).
The applicant further submits that the injuries sustained by both parties — particularly Liddle — were ‘relatively minor’, and that the sentences imposed were therefore excessive. We cannot agree. The complainant’s injuries, particularly the fracture to her finger, were such that she had difficulty caring for her three children for a period of about six weeks. Activities such as driving and writing were extremely difficult during that period, and the injury has had ongoing consequences, both in terms of physical appearance and functionality. As for Liddle, the beating he received was severe enough that he was left with extensive bruising and a number of open wounds. Police photographs show that the bed in which they lay when surprised by the applicant was splattered with his blood. The injuries sustained by the victims can in no way be regarded as ‘minor’.
The submission that the sentencing judge erred in cumulating a total of six months for each of the two assaults has no substance. It was necessary to make orders for cumulation to reflect the fact that the aggravated burglary which formed the base sentence was complete at the point in time that the assaults began and that separate serious crimes were then committed involving two victims.
Senior counsel for the applicant rightly conceded that general deterrence is a significant sentencing factor in this case, not only in relation to aggravated burglary generally, but most particularly in relation to violent offending against a former domestic partner.[10] Of particular significance is the fact that the applicant was already subject to a Family Violence Intervention Order. Offending of this nature is too often perpetrated by men whose response to the breakdown of a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable. This Court has made it clear that such offending will attract serious consequences and even harsher penalties where it involves the breach of an order which exists for the victim’s protection.[11]
[10]Felicite v The Queen (2011) 37 VR 329, 333 [20] (Redlich JA); DPP v Pasinis [2014] VSCA 97, [53] (Neave JA and Kyrou AJA).
[11]See, eg, Cotham v The Queen [1998] VSCA 111, [14]; DPP v Johnson (2011) 35 VR 25, 34–6 [38]–[49] (Redlich JA).
At the oral hearing it was said that the complainant’s fear would have been greater if her home had been invaded by strangers seeking to steal personal property. It was suggested that the context of the offending affected its seriousness. We do not accept that these matters affect the objective gravity of the offences. The level of fear engendered by the applicant, in kicking in the locked bedroom door and proceeding to beat the victims with an iron rod, did not have to be evaluated according to such niceties. The attack the applicant launched upon his ex-partner was strongly suggestive of a desire to do her and her partner serious harm, and anybody in their position would have feared that such harm would occur. The complainant’s victim impact statement makes clear that the physical and emotional effects will be lasting.
It is a shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44.[12] It is also sadly true that there are a great number of women who live in real and justified fear of the men who are, or were, their intimate partners. In such circumstances, the submission that the complainant’s level of fear when being attacked by her ex-partner was less than it might have been if she had been attacked by a stranger should be rejected.
[12]VicHealth, The Health Costs of Violence: Measuring the Burden of Disease Caused by Intimate Partner Violence: A Summary of Findings (2004) 10.
In relation to the theft charge, the applicant submits that because the theft was opportunistic in nature and was not undertaken for the purposes of monetary gain, and because the wallet was returned shortly afterward, no term of imprisonment ought to have been imposed. We reject this submission. Although the sentencing judge did note that the theft was a ‘more opportunistic offence’,[13] the motive for which it was undertaken — that of establishing Liddle’s identity — is not one which reflects at all well upon the applicant. In the circumstances, a sentence of one month with no order for cumulation cannot be said to be excessive.
[13]Reasons, [26].
At the oral hearing, it was suggested for the first time that the explanation for the offending was a concern that the complainant had been taking drugs and that the applicant was concerned about the welfare of their children. It was for that reason that he went to the complainant’s home. That submission must be rejected. First, the version of events now presented by counsel runs counter to the applicant’s plea of guilty to aggravated burglary with intent to assault. The applicant cannot now suggest that his intention on entering the premises was otherwise. Second, this Court has made it abundantly clear that arguments which were not raised on the plea will rarely be entertained on appeal.[14] Third, the applicant did not instruct his counsel on the plea that his motivation for attending the premises was concern for the welfare of his children.
[14]Romero v The Queen (2011) 32 VR 486, 489–90 [11] (Redlich JA).
Fourth, he chose, at the plea, to adhere to a highly implausible explanation that his decision to enter the house was spontaneous. His counsel maintained that he happened to be driving past the complainant’s house on the way back from spending time with friends and, noticing that the front door was somewhat ajar, decided to investigate. The learned sentencing judge was right to characterise this version of events as ‘absurd’,[15] particularly given the location and position of the complainant’s house in the bowl of a court, with the front door difficult to see clearly from the street. His counsel conceded during the plea that the explanation did not make sense.
[15]Reasons, [10].
Fifth, the applicant said nothing about the new explanation for his presence at the house to either of the two psychologists who assessed him. It was suggested on the appeal that he did not mention the suspected drug use in order to avoid aggravation of an ongoing custody dispute with the complainant. That is an implausible explanation if the applicant was seeking to demonstrate at that time that he should have custody. Sixth, it hardly needs stating that, even if the applicant’s offending were motivated by a belief that the complainant was using illicit drugs, that would not render his conduct any less grievous. The arrangement between the applicant and the complainant was such that he was in frequent attendance at the house and could have raised any concerns he had with her during one of those visits.
Before leaving this issue we should refer to the finding that is not the subject of appeal that the applicant had no remorse for his offending conduct. It was a finding based upon the applicant’s misrepresentations as to why the offending had occurred. The sentencing judge concluded that the applicant’s absurd account of his ‘coincidental presence’ was indicative of his refusal to acknowledge the wrongness of his actions. This further exculpatory explanation does nothing to undermine the strength of that finding.
Bearing upon his prospects of rehabilitation was the fact that, having been made the subject of a full intervention order following his offending, the applicant went on to breach it on two separate occasions, as described above. When all of the relevant matters in mitigation — that is, the applicant’s relatively early plea,[16] but absent any remorse, his previous good character,[17] his rehabilitation, both actual and prospective,[18] work history[19] and solid family support,[20] and the difficulties he would suffer in prison when separated from his children[21] — are balanced against the aggravating factors of the offending and the need for general deterrence discussed above, as well as the need for specific deterrence, just punishment and denunciation, it cannot be said that the sentences appealed against are outside the range available to the sentencing judge.
[16]Reasons, [9].
[17]Ibid [12].
[18]Ibid [13].
[19]Ibid [11].
[20]Ibid [13].
[21]Ibid [17].
There is no merit in the manifest excess ground. The application for leave to appeal against sentence must be refused.
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