Fitzpatrick v The Queen

[2016] VSCA 63

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0155

LYNDON FITZPATRICK	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG AP, PRIEST and BEACH JJA
WHERE HELD:	BALLARAT
DATE OF HEARING:	4 April 2016
DATE OF JUDGMENT:	6 April 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 63
JUDGMENT APPEALED FROM:	DPP v Fitzpatrick (Unreported, County Court of Victoria, Judge Montgomery, 21 July 2015  (Sentence))

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CRIMINAL LAW – Sentence – Persistent contravention of intervention order, common assault, threat to kill, theft (two charges), criminal damage, unlicensed driving – Aggregate sentence of 4 years and 9 months’ imprisonment with 2 years and 9 months non-parole period – Leave to appeal previously granted on ground of manifest excess – Serious example of persistent contravention of intervention order – Common assault against former domestic partner involving partial strangulation – Objective gravity of offending warranted severe punishment – Aggregate sentence for multiple offences can exceed maximum sentence for one of the offences – Sentence not manifestly excessive - Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Stanton	Stary Norton Halphen
For the Crown	Ms S Flynn	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG AP
PRIEST JA
BEACH JA:

1. The appellant pleaded guilty, in the County Court, to the following offences, and was sentenced in the manner set out below:

Charge	Offence	Maximum	Sentence	Cumulation
1.	Persistent contravention of a family violence intervention order [s 125A of the Family Violence Protection Act 2008]	5 years and/or 600 penalty units [s 125A(1) of the FamilyViolence Protection Act 2008]	57 months aggregate on all charges	None
2.	Common assault [Common Law]	5 years [s 320 of the Crimes Act 1958]
3.	Making threat to kill [s 20 of the Crimes Act 1958]	10 years [s 20 of the Crimes Act 1958]
4.	Theft [s 74 of the Crimes Act 1958]	10 years [s 74 of the Crimes Act 1958]
5.	Theft [s 74 of the Crimes Act 1958]	10 years [s 74 of the Crimes Act 1958]
6.	Criminal damage [s 197(1) of the Crimes Act 1958]	10 years [s 197(1) of the Crimes Act 1958]
Uplifted summary charge	Unlicensed driving [s 18(1)(a) of the Road Safety Act 1986]	25 penalty units or 3 months [s 18(1) of the Road Safety Act 1986]
TotalEffectiveSentence:		4 years 9 months
Non-ParolePeriod:		2 years 9 months
Pre-Sentencedetentiondeclaration:		290 days
6AAA Statement:  7 years with non-parole period of 5 years
Other relevant orders:  forensic sample order pursuant to s 464ZF of the Crimes Act 1958;  property disposal order pursuant s 77(1) of the Confiscations Act 1997.

1. Whelan JA granted the appellant leave to appeal against that aggregate sentence, primarily upon the ground that it was manifestly excessive.  The background facts were set out in his Honour’s reasons for granting leave[1] and the sentencing judge’s reasons for sentence.[2]  They can be summarised as follows.   

   [1]Fitzpatrick v The Queen (Unreported, Victorian Court of Appeal, Whelan JA, 22 December 2015).

   [2]DPP v Fitzpatrick (Unreported, County Court of Victoria, Judge Montgomery, 21 July 2015) (Reasons).

1. The appellant was aged 30 at the time of the offending.  His principal victim, KD, was his former domestic partner.  She was then aged 28.  Together, they have two young children. 

1. Throughout 2014 their relationship became fraught, and eventually broke down.  On 5 October 2014, KD obtained an interim Family Violence Intervention Order.  On 7 October 2014, she was granted a final Family Violence Intervention Order.  That order prohibited the appellant from contacting KD, and also prohibited him from coming within five metres of her. 

1. Between 7 and 29 October 2014, commencing on the very day the final intervention order was made, the appellant contravened it.  He continued to do so on a regular basis.  He sent KD a number of threatening text messages.  He also made a number of threatening telephone calls to her.  This all culminated in his attending at her home on the night of 29 October 2014.  It was the totality of that conduct that constituted Charge 1 (persistent contravention of a Family Violence Intervention Order). 

1. On 29 October 2014, at about 9:35pm, the appellant entered KD’s home.  There was some dispute as to the precise circumstances surrounding that entry, given that the appellant maintained throughout that he had been living at the premises in the period leading up to that date.  The appellant was originally charged with aggravated burglary but that charge was eventually withdrawn.   

1. The sentencing judge said that he could not resolve the dispute concerning the circumstances surrounding the appellant’s entry into the house.  However, his Honour made it clear, in his sentencing remarks, that it ‘matter[ed] little’ to the sentence he was going to impose.[3]  This is clearly taken to mean that the sentencing judge would not sentence the appellant upon the basis that he had entered as a trespasser.  As will be seen later in these reasons for judgment, the appellant contended that despite his Honour having made that statement, the actual sentence imposed showed that the judge in fact sentenced the appellant on the footing that he had committed the more serious offence of aggravated burglary, as well as the other offences charged.

   [3]Reasons [2].

1. Once inside KD’s home, the appellant entered her bedroom.  She was asleep.  He took with him a disused telephone that had been in the hallway.  He wrapped the telephone cord tightly around her neck and squeezed.  She woke up suddenly, having difficulty breathing.  The appellant kneed her in the ribs, all the while threatening to kill her.  She continued to struggle.  He then picked up a pair of scissors and used them to cut approximately 40cm from her hair.  He ignored her cries for him to desist.  He told her that he wanted to disfigure her to the point that no-one else would find her attractive.  He said to her, ‘no-one will love you now’.[4]  The totality of that conduct gave rise to Charge 2 (common assault).

   [4]Reasons [4].

1. The appellant then took KD’s mobile telephone from the bedside table.  He barricaded himself in another room, and rang a male friend of hers.  He threatened over the telephone to kill that friend.  That conduct gave rise to Charges 3 and 4 (make threats to kill, and theft of the telephone). 

1. Next, the appellant seized KD’s house and car keys.  He left her home and drove away in a car that was parked outside.  That car had been lent to her.  The appellant drove to the airport.  En route, he somehow damaged that vehicle extensively.  That conduct gave rise to Charges 5 and 6 respectively (theft of the car, and criminal damage).

1. The appellant was unlicensed at the time.  That conduct gave rise to an uplifted summary charge of unlicensed driving. 

1. The appellant then boarded a flight to Launceston where he sought refuge with a female friend.  Subsequently, he and that female entered into a relationship.  We were told that that relationship has since ended. 

1. The appellant was not under the influence of alcohol or drugs at the time these offences took place.  Nor was he suffering from any psychological or psychiatric condition.  He was motivated purely by anger and hatred. 

1. The offences committed against KD on 29 October 2014 took place while the young children were in the house.  That was a fact of which the appellant was well aware.

1. The appellant has a number of prior convictions.  Most of these were sustained some years ago in Tasmania.  They include various dishonesty offences, in particular stealing and burglary.  However, there was also a conviction in 2005 for aggravated armed robbery, as well as, in the same year, a series of convictions for other offences including common assault.  He was sentenced for the aggravated armed robbery to two years and four months’ imprisonment, and for the other offences to eight months’ imprisonment which was served cumulatively with the term of imprisonment imposed for the aggravated armed robbery.

1. In oral submissions, counsel for the appellant clarified that, though the sentencing judge may have proceeded on the basis that none of the appellant’s prior convictions involved domestic violence, the appellant had in 2014 received a non-custodial disposition for an offence involving an assault upon KD.   

1. In recent years, the appellant had received several fines for driving offences, including driving whilst disqualified and also for driving whilst exceeding the prescribed alcohol limit. 

1. The sentencing judge aptly described the appellant’s behaviour towards KD as ‘truly appalling’.[5]  His Honour characterised the appellant’s motive as having been to humiliate and frighten KD.  He concluded that, self-evidently, the appellant had succeeded in that endeavour.

   [5]Reasons [4].

1. His Honour was cognisant of the fact that KD had, for some time, been a drug user.  He was also cognisant of the fact that the relationship between the appellant and KD had long been dysfunctional.  He noted that the children, then aged two and four respectively, had subsequently been taken from KD and put into care.  Quite rightly, the sentencing judge did not treat KD’s problems as in any way mitigating, or even explaining, the appellant’s behaviour. 

1. His Honour of course accepted that the appellant could call in aid some mitigating factors.  He had pleaded guilty at the first reasonable opportunity.  As the sentencing judge observed, that plea had utilitarian value, particularly in a case such as this, though his Honour did not say specifically whether he considered that the guilty plea was indicative of some degree of remorse. 

1. In addition, there were references from the Office of Corrections indicating that since his incarceration, the appellant had effectively been a model prisoner.  He had undertaken a number of courses, including anger management and various vocational training programs. 

1. There was a powerful reference from the appellant’s then-partner in Launceston.  She made it clear that she was fully supportive of him at that time.  His Honour regarded that as a positive sign, pointing in the direction of rehabilitation although, as we have said, that relationship has now ended. 

1. Finally, the sentencing judge noted that the appellant was a qualified chef.  That meant that he would in all likelihood be able to find employment after his eventual release from prison. 

1. At the same time, the sentencing judge recognised that general deterrence had to be an important factor in a case such as this.  His Honour observed that domestic violence by men against women was all too prevalent within the community.  It was necessary therefore to impose a sentence that would deter others from behaving as the appellant had done. 

1. His Honour also had regard to specific deterrence, which he considered to be an important sentencing factor in this case.

1. It was against that background that the sentencing judge imposed an aggregate sentence of four years and nine months’ imprisonment with a non-parole period of two years and nine months.  He also disqualified the appellant from obtaining a licence for a period of two years, commencing from the date of sentence. 

Submissions

1. The appellant submitted that the combination of mitigating factors present in this case, including his plea of guilty, his remorse, his work history, his efforts at rehabilitation in prison, and the significant support offered by his partner, all showed that this sentence was manifestly excessive.

1. Indeed, in his written case, it was put that these matters were of a kind that could have been dealt with summarily in the Magistrates’ Court.  It was only the introduction of the charge of aggravated burglary, later abandoned by the Crown, that caused these matters to be dealt with in the County Court.

1. In addition, it was submitted that there was clearly something wrong with the imposition of an aggregate sentence of four years and nine months for a series of offences that include relatively minor charges, such as the theft of a telephone (which it seems was left behind at the house in any event) and the theft of a car. [6]

   [6]Counsel for the appellant referred to a number of cases – DPP v Johnson (2011) 35 VR 25; Saxon v The Queen [2014] VSCA 296; and DPP v Myers [2014] VSCA 314 – in support of his general contention that the sentence in the present case was manifestly excessive having regard to sentences imposed in other cases for arguably more serious offending.

1. In particular, it was submitted that there was a problem with the sentence imposed on the charge of unlicensed driving.  This was a summary offence carrying a maximum penalty of three months’ imprisonment.  Yet, it had been included as a component within the aggregate sentence, seemingly, so it was said, as itself warranting a term of four years and nine months’ imprisonment. 

1. The Crown’s response was short, and to the point.  It submitted that the sentencing judge had correctly characterised the appellant’s conduct as ‘truly appalling.’  In addition, his offending had extended over a period of some three weeks, and was not confined to the evening of 29 October 2014. 

1. As regards the mitigating factors upon which the appellant relied, the Crown submitted that these were few, and had in any event been fully taken into account by the sentencing judge.  There was little real evidence of actual remorse.  Not much had been said on the plea as regards the appellant’s work history, or future prospects of gaining employment.  Importantly, this was a case in which both general and specific deterrence were important, but so too, in particular, was the need to denounce the appellant’s conduct and to ensure that he was justly punished. 

1. The Crown submitted that the appellant’s reference, in his written case, to these charges having been amenable to summary disposition should not be given any weight.  Plainly, the offending in this case was extremely serious, and would have been so regarded even if summary jurisdiction had been exercised. 

1. There was a submission on behalf of the appellant, only faintly pressed in the written case, but relied upon in oral argument, to the fact that that the sentencing judge had dealt with this offending as though it involved a charge of aggravated burglary, rather than the offences for which he ultimately fell to be sentenced.  The Crown submitted that that submission should be rejected.  His Honour had specifically eschewed any such reasoning.  There was nothing to suggest that he had fallen into error in that respect.

1. Finally, the Crown acknowledged that although his Honour may have been poorly advised to impose an aggregate sentence for these offences, that course had been unchallenged on the plea and had not been shown to be unlawful.  The law was that such a disposition should be viewed as a single sentence designed to be imposed for multiple offences, without the need to set out both the individual sentences and cumulation orders that would have been imposed on the separate charges.  The Crown argued that any error associated with the decision to include the uplifted summary offence within the ambit of the aggregate sentence should not, in any way, vitiate that sentence as a whole.  

1. Ultimately, the Crown submitted that the aggregate sentence and non-parole period, even if thought to be stern, could not be said to be wholly outside the range reasonably open to the sentencing judge.  

Conclusion

1. In our view, this appeal should be dismissed.  The objective gravity of this offending warranted severe punishment, certainly extending to a sentence of this overall length. 

1. In that regard, it should be noted that the offending giving rise to Charge 1 was itself extremely serious.  This was no mere breach of an intervention order of the kind so frequently seen.  As part of that offending, the appellant’s conduct towards KD, and particularly his behaviour on the night of 29 October 2014, was utterly reprehensible. 

1. As regards Charge 2, although there was no Victim Impact Statement filed, it is easy to imagine what a terrifying ordeal this must have been so far as KD was concerned.  The appellant entered her bedroom at night, while she was asleep.  He then engaged in what can reasonably be described as an act of partial strangulation.  This was followed by his cutting KD’s hair.  He did this knowing the children were in the house. 

1. This assault upon KD was not spontaneous.  The fact that he procured the disused telephone from the hallway and brought it into the bedroom made it clear that he contemplated using it in the way that he ultimately did.  It must also be borne in mine that this event was the culmination of several weeks of repeated harassment of KD in breach of the intervention order that she had been granted. 

1. As we have indicated, it is difficult to escape the conclusion that the appellant’s conduct on the night in question was, to some degree at least, premeditated.  Certainly, it does not appear to have been a spontaneous act brought about by a temporary loss of self-control, resulting from anything said or done by KD.  Rather, it was an act of wanton cruelty intended to humiliate and terrify a defenceless woman in her own home.  The total effective sentence and non-parole period were, in our view, fully merited. 

1. It must be said, however, that the decision to impose an aggregate sentence in the particular circumstances of this case gives rise to some concern. Section 9(1) of the Sentencing Act 1991 permits such a sentence to be imposed, in the following circumstances:

If an offender is convicted by a court of two or more offences which are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences in place of a separate sentence of imprisonment in respect of all or any two or more of them.

1. Section 9(2) provides that the term of an aggregate sentence of imprisonment imposed in accordance with s 9(1) must not exceed the total effective period of imprisonment that could have been imposed in respect of the offences, had the court imposed a separate sentence in respect of each of them.

1. Section 9(4) provides that if a court imposes an aggregate sentence of imprisonment in respect of two or more offences, the court is not required to identify separate events giving rise to specific charges and is not required to announce the sentences that would have been imposed for each offence had separate sentences been imposed, or whether those sentences would have been imposed concurrently or cumulatively.  

1. Aggregate sentences were originally introduced in order to simplify the task of sentencing for multiple offences, especially where orders for concurrency, partial concurrency, and cumulation could become complex and productive of error.

1. In their original form, aggregate sentences were held to require the sentencing judge to identify, at least in general terms, the constituent notional sentences and notional orders for concurrency and cumulation that went to make up the aggregate sentence as a whole.[7] 

   [7]DPP v Felton (2007) 16 VR 214, 215 [2] (Buchanan JA) and 229 [46] (Kellam AJA with whom Buchanan and Eames JJA agreed) (‘Felton’); and R v Grossi (2008) 23 VR 500, 510 [38] (Redlich JA with whom Vincent and Neave JJA relevantly agreed) (‘Grossi’).

1. The current form of s 9, and particularly s 9(4), reflects a legislative desire to overcome the difficulties recognised by this Court in cases such as Felton[8] and Grossi.[9]

   [8](2007) 16 VR 214.

   [9](2008) 23 VR 500.

1. With great respect to the sentencing judge, we note the comments by Professor Freiberg to the effect that an aggregate sentence may not be appropriate where an indictment contains only a small number of counts, or where the counts ‘vary significantly in their seriousness or the manner in which the offences were committed’.[10]  This was, in our view, just such a case.  It was not a case in which an aggregate sentence should have been imposed. 

   [10]Arie Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3^rd ed, 2014) 807, citing Grossi (2008) 23 VR 500, 510 [39] (Redlich JA); and Felton (2007) 16 VR 214.

1. The charge of common assault carried only a maximum of five years’ imprisonment.  Nonetheless, given its aggravating features, that offence should be viewed as significantly more serious than the conduct encompassed within Charges 3, 4, 5, and 6.  As such, we consider that his Honour ought to have given greater thought to whether it was appropriate in the particular circumstances of this case to impose an aggregate sentence rather than sentencing on individual charges, in the orthodox manner. 

1. In addition, there is a question as to whether the uplifted summary charge could properly have been encompassed within this aggregate sentence.  That charge of unlicensed driving does not seem to us, relevantly, to be ‘founded on the same facts’[11] as the other offences, although it can be said to have been temporally connected to them.  It certainly did not form part of a ‘series of offences of the same or a similar character.’[12] 

   [11]Sentencing Act 1991 s 9(1).

   [12]Ibid.

1. There is another issue to be considered regarding the status of an uplifted summary offence.  Whether an offence of that kind, which will ordinarily result in nothing more than a modest fine, can properly fall within the provisions of the Sentencing Act 1991 dealing with aggregate sentences is a matter which may have to be determined on another occasion.[13] 

   [13]In that regard, see Criminal Procedure Act 2009 s 242(6) which permits the County Court to impose any sentence on an uplifted summary offence that could have been imposed by the Magistrates’ Court.

1. It is true that, in his written case, the appellant submitted that the sentence imposed on the uplifted summary offence was itself an aggregate sentence that was outside the permissible range for that offence (the maximum term of imprisonment for unlicensed driving being three months).  That submission overlooks the fact that the aggregate sentence imposed by the judge was imposed for a number of indictable offences, each of which carried maximum terms of imprisonment greater than that imposed by the judge. 

1. That said, the appellant did not seek to advance a ground of appeal in this Court that contended that the aggregate sentence imposed by the judge was vitiated for specific error.

1. If that submission had been advanced on the leave application as the sole proposed ground of appeal, and if after argument it been thought to have some merit, we would (had we been sitting on that application) unhesitatingly have exercised the power contained in s 280 of the Criminal Procedure Act 2009 to refuse leave to appeal.  In our view, even in such a case, there would be no reasonable prospect that this Court would impose a less severe sentence than that first imposed, or reduce the total effective sentence.

1. In our opinion, there is no impediment in s 9 to an aggregate sentence for a number of offences merely because the sentence chosen exceeds the maximum sentence that could have been imposed for one of those offences. 

1. For the reasons set out above, this appeal should be dismissed.

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