Flint v The Queen
[2012] VSCA 240
•26 September 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0144
| DOUGLAS JOHN FLINT | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGE: | BUCHANAN and NETTLE JJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 26 September 2012 | ||
DATE OF JUDGMENT: | 26 September 2012 | ||
MEDIUM NEUTRAL CITATION: | [2012] VSCA 240 | ||
JUDGMENT APPEALED FROM: | R v Flint (Unreported, County Court of Victoria, Judge Hicks, 30 May 2012) | ||
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CRIMINAL LAW – Sentence – Aggravated burglary and intentionally causing injury – Non-parole period not manifestly excessive – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T E Wraight | Lethbridges Pty Ltd |
| For the Crown | Mr C J Ryan SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
The applicant was arraigned and pleaded guilty in the County Court to an indictment containing one charge of aggravated burglary and one charge of intentionally causing injury.
A plea was conducted and the applicant was sentenced to be imprisoned for a term of 3 years on the charge of aggravated burglary and for a term of 12 months on the charge of intentionally causing injury. Four months of the sentence on the charge of intentionally causing injury were cumulated upon the sentence on the charge of aggravated burglary, creating a total effective sentence of 3 years and 4 months’ imprisonment. A minimum term of 2 years and 4 months’ imprisonment was fixed.
The applicant seeks leave to appeal against the sentence on the ground that the non-parole period is manifestly excessive.
The offences took place at the premises of a designer menswear retail shop in South Melbourne. On 20 June 2011 there was an argument between a female employee and a female employer at the premises. The employee left and the employer arranged for a letter to be delivered by courier to her residence.
That afternoon, the applicant went to the shop with Glen Wills, the de facto partner of the female employee. The female employer had left the premises, leaving in attendance Alessandro Di Costanzo and his girlfriend. Before he arrived at the shop, the applicant telephoned and spoke to Mr Di Costanzo. He said that his name was Michael and he wanted to come to the shop to buy a suit. He said he would arrive in about 10 minutes.
Mr Di Costanzo heard the doorbell ring and used the intercom system to communicate with the applicant, who was at the door of the shop. The applicant said that his name was Michael and he asked to enter the shop. Mr Di Costanzo pressed a buzzer that opened the front door and walked down stairs to greet the applicant.
Mr Di Costanzo walked past the applicant and turned on the lights in the showroom. He noticed another man standing opposite the front door of the store. That person was Wills. The applicant asked Mr Di Costanzo to let his mate in and said that he had been looking for a parking space. Mr Di Costanzo’s girlfriend heard the intercom and pressed the button which automatically opened the door, allowing Wills to enter.
Wills ran past the victim wearing a black balaclava. The applicant hit Mr Di Costanzo on the left side of the head with his fist and commenced assaulting him. The applicant pulled out a tyre lever and commenced to hit Mr Di Costanzo to the back of the head. The victim fought back and took the tyre lever from the applicant and started to hit him with it.
The applicant ran out of the room and left the shop.
The sentencing judge accepted that the applicant believed that Mr Di Costanzo had been involved in the earlier altercation with Wills’ partner. As the assault took place, the applicant said to Mr Di Costanzo, ‘You should have just left it alone, and you shouldn’t do that to her.’
The applicant is some 41 years’ old. His upbringing was difficult. His father died before he was born. The applicant’s step-father was a heavy drinker and physically abused both the applicant and his mother. The applicant was moved to a number of different schools. He left school at the age of 17 years and between the ages of 17 years and 26 years he had a good working history, mainly in labouring jobs.
The applicant had prior convictions for offences of dishonesty, for which he was fined, and a weapons offence in respect of which a suspended sentence was imposed.
When the applicant was aged 26 years, he was involved in an accident while working with a garbage truck. The applicant suffered a significant back injury and since then has been on a disability pension.
Before the accident, the applicant married, a marriage which produced two children.
At the time he was sentenced the applicant was engaged to another woman.
In the course of the plea a report by a psychologist was tendered, in which it was stated that incarceration was likely to have a negative impact on the applicant’s state of depression. The sentencing judge took into account this adverse effect in sentencing the applicant.
The sentencing judge noted that the applicant had family support and had no prior convictions for offences of violence. His Honour accepted that the applicant had good prospects of rehabilitation.
Counsel for the applicant submitted that the non-parole period failed to reflect the mitigating factors on which the applicant could rely: the plea of guilty; remorse; the lack of prior convictions for offences of violence; the applicant’s upbringing; the fact that incarceration would have an adverse effect upon the applicant’s mental state; and the applicant’s prospects of rehabilitation. Counsel said that the case demanded a shorter than usual non-parole period. A non-parole period representing 70 per cent of the total effective sentence was said to be at the higher end of the range. At another point counsel described the non-parole period as higher than usual.
In my opinion, it is not helpful to characterise the non-parole period as usual or unusual and concentrate on its relationship to the total effective sentence.[1] The non-parole period is the minimum time that justice requires that the offender serve having regard to all the circumstances of the offence. The minimum term provides mitigation of the punishment by furthering his rehabilitation through conditional freedom, but only when he has served the minimum term that justice requires.
[1]Kneifati v R [2012] VSCA 124, [27].
In the present case the sentencing judge expressly took into account each of the mitigating factors advanced on behalf of the applicant. He also weighed the objective gravity of the offences and their attendant circumstances such as the applicant acting as a vigilante against an innocent man.
I do not think it is reasonably arguable that the minimum term exceeded that which a reasonable sentencing judge could impose. Accordingly, I would refuse leave to appeal.
NETTLE JA:
I agree and add only that the idea of a greater than, or lesser than, usual non-parole period was recently reconsidered by this Court in Kumova v R.[2] As Redlich and Osborn JJA there explained,[3] the idea of a usual non-parole period of between 60 and 75 per cent of head sentence has a role to play in the case of head sentences of up to, say, about 10 years' imprisonment.
[2][2012] VSCA 212.
[3]Ibid [30]–[33].
At the end of the day, however, as the learned presiding judge has said, a non-parole period represents a sentencing judge's perception of the minimum term which an offender should spend in gaol.
In this case there is no reasonably arguable basis to question the sentencing judge's perception of the minimum term. Having regard to the serious nature and gravity of the offending, the head sentence is remarkably merciful as, in effect, was conceded. In those circumstances, it cannot sensibly be contended that a minimum term of only two years and four months amounts to excessive punishment.
BUCHANAN JA:
The order of the Court is that the application for leave to appeal against sentence is dismissed.
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