Foster (a pseudonym) v The King
[2023] VSCA 94
•28 April 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0169 |
| DEBRA FOSTER (A PSEUDONYM) | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | EMERTON P and T FORREST JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 April 2023 |
| DATE OF JUDGMENT: | 28 April 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 94 |
| JUDGMENT APPEALED FROM: | [2022] VCC 1969 (Judge Carlin) |
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CRIMINAL LAW – Leave to appeal – Sentence – Intentionally causing injury – Contravening family violence intervention order – Related summary offences – Total effective sentence of 214 days’ imprisonment and 18-month community correction order – Where applicant reoffended including by contravening community correction order – Where applicant resentenced to 22 months’ imprisonment and community correction order cancelled – Whether second sentence manifestly excessive – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr A Halphen | ||
| Respondent: | Ms R L Harper | ||
Solicitors | |||
| Applicant: | Law and Advocacy Centre for Women | ||
| Respondent: | A Hogan, Solicitor for Public Prosecutions | ||
EMERTON P
T FORREST JA:
On 30 September 2021, the applicant pleaded guilty before Judge Carlin to one charge of intentionally causing injury, contravention of a family violence intervention order intending to cause harm/fear and two related summary charges. On 14 December 2021, she was sentenced as follows:
Charge
Offence
Max Penalty
Sentence
Cumulation
1 Intentionally causing injury (contrary to s 18 of the Crimes Act 1958) 10 years’ imprisonment 214 days’ imprisonment followed by an 18 month community correction order Part of an aggregate sentence 2 Contravene family violence intervention order intending to cause harm/fear (contrary to s 123A(2) of the Family Violence Protection Act 2008) 5 years’ imprisonment 214 days’ imprisonment followed by an 18 month community correction order
Part of an aggregate sentence Related Summary Offences 5 Commit an indictable offence whilst on bail (contrary to s 30B of the Bail Act 2008) 3 months’ imprisonment 1 month’s imprisonment – 6 Contravene family violence intervention order (contrary to s 123(2) of the Family Violence Protection Act 2008) 2 years’ imprisonment/240 Penalty Units 14 days’ imprisonment – Total Effective Sentence:
214 days’ imprisonment and an 18-month community correction order Non-Parole Period: N/A Section 6AAA Statement: Total Effective Sentence 24 months
Non-Parole Period 18 months
We shall refer to this as the first sentence.
On 21 October 2022, the applicant pleaded guilty to a charge of contravention of the community correction order which formed part of the first sentence (the ‘CCO’). She was resentenced as follows:
Charge
Offence
Max Penalty
Sentence
Cumulation
1 Intentionally causing injury (contrary to s 18 of the Crimes Act 1958) 10 years’ imprisonment 22 months’ imprisonment
Part of an aggregate sentence 2 Contravene family violence intervention order intending to cause harm/fear (contrary to s 123A(2) of the Family Violence Protection Act 2008) 5 years’ imprisonment 22 months’ imprisonment
Part of an aggregate sentence Related Summary Offences 6 Contravene family violence intervention order (contrary to s 123(2) of the Family Violence Protection Act 2008) 2 years’ imprisonment/240 Penalty Units 1 month’s imprisonment – Total Effective Sentence:
22 months’ imprisonment Non-Parole Period: N/A
We shall refer to this as the second sentence.
The applicant seeks leave to appeal against the second sentence on the single ground expressed as: ‘The sentence imposed on charges 1 and 2 is manifestly excessive’.
We have determined that leave to appeal against sentence must be refused. We shall explain our reasons.
Circumstances of offending
The entirety of the offending that constituted charge 1 (intentionally causing serious injury) was captured by CCTV. We have viewed this footage. The following summary is taken from the Agreed Summary of Prosecution Opening tendered as an exhibit on the applicant’s first plea:
1. [Debra FOSTER] was born on 16th August 1975.
2. Ms. [FOSTER] was 44 years of age at the time of the offending.
3.The [victim] was 46 years of age at the time of the offending.
4.Ms. [FOSTER] and the victim had known each other for about four months prior to this incident.
5.At the time of the offending there was an Interim Family Violence Intervention Order against Ms. [FOSTER] in relation to the victim. The order was issued on 12 July 2019 at the Ringwood Magistrates’ Court.
Offending
6.On Sunday 29 September 2019 the victim ran into Ms. [FOSTER] by chance at the corner of Victoria and Lennox Streets in Richmond. The victim and the accused started talking and the accused agreed to loan the victim about $150. Ms. [FOSTER] and the victim stayed together throughout the day. Ms. [FOSTER] then commenced residing with the victim at his address in Templestowe.
8.On Thursday 3 October 2019 at about 9:00pm, Ms. [FOSTER] and the victim exited a train at Heidelberg Railway Station. Protective Services Officers (PSOs) spoke with them both and advised that they should not be in company with each other due to the Intervention Order. The PSOs instructed the victim to leave and after let Ms. [FOSTER] go.
9.Shortly after Ms. [FOSTER] met up with the victim and they went back to the victim's address in Templestowe.
10.On Friday 4 October Ms. [FOSTER] and the victim woke up at about 9:30am. Ms. [FOSTER] was angry because she had lost her drugs the night before and believed it was the victim’s fault for not looking out for them and she had no money left.
11.Ms. [FOSTER] and the victim caught a bus into Hoddle Street, Richmond arriving just before lunchtime. At the time Ms. [FOSTER] was in possession of the victim's mobile phone and bank cards which the victim was aware of. They then went separate ways for the day.
12.At about 11:30pm the victim saw Ms. [FOSTER] at the corner of Victoria and Lennox Streets, Richmond. The victim told her that he wanted his mobile phone and bank cards back.
13.The victim opened Ms. [FOSTER’S] handbag and removed his mobile phone and bank cards. She did not want him to take the property and they argued about this.
14.The victim walked up to the Commonwealth Bank ATM located in Victoria Street, Richmond. Whilst the victim had his card in the ATM, Ms. [FOSTER] approached him.
15. There was a further argument between the two of them.
16.Ms. [FOSTER] then stabbed the victim several times to the upper right side of his back, shoulder, arm and right thigh. Charge 1 — Causing Injury Intentionally and Charge 2 — Contravention of Order Intending to Cause Harm or Fear of Safety.
17.The victim states that the knife had a black plastic handle with a three or four inch stainless steel blade.
18.The assault was recorded on CCTV from the Commonwealth Bank ATM.
19.The victim, in fear ran from Ms. [FOSTER] and crossed over the street towards Bakers Arms Hotel. The victim spoke to security guard Robert FOSTER. The victim told FOSTER that his ex-girlfriend had stabbed him.
20. [Mr.] FOSTER offered to call an ambulance, but the victim declined.
21.The victim walked to Collingwood Railway Station and spoke to PSOs at the station. The victim told the PSOs that he had been robbed by two males. The PSOs took the victim to the Collingwood Police Station for assistance.
22.Senior Constable LEWIS and Constable GIBBS provided first aid to the victim and organised an Ambulance to attend.
23.Ambulance paramedics administered pain killers and oxygen and the victim was transported to Royal Melbourne Hospital in the early hours of 5 October 2019.
Arrest and Interview
24.As a result of information received Police attended at 16/112 Elizabeth Street, Richmond at about 3:30am on 5 October 2019 and Ms. [FOSTER] was arrested by Detective Senior Constable WRIGHT.
25.She was transported to the Melbourne West Police Station where she was seen by a Forensic Medical Officer to assess whether she was fit for interview.
26.It was decided she needed to attend hospital for assessment of potential head injury and shoulder injury and so was transported to the Royal Melbourne Hospital for assessment and treatment.
27.At about 12:25pm on 5 October 2019, whilst Ms. [FOSTER] was at the Royal Melbourne Hospital, she used a land line phone and contacted the victim on his mobile phone. Contravene Family Violence Intervention Order (charge 6)
28.Ms. [FOSTER] was cleared of any injury and transported back to Melbourne West Police Station where a further assessment was conducted by a Forensic Medical Officer and she was deemed unfit for interview.
Injuries
29. The victim sustained the following injuries;
- Two wounds to the back of the right chest – 1cm wound under the right shoulder blade and 2cm wound at the right mid-shoulder blade
- 3 x 1cm wounds to the back of the axillary region (armpit area)
- 5mm wound to the right outer chest (bottom of armpit area)
- 1 cm wound to the back of the left mid-chest
- 1cm wound to the back of the right upper arm
- 3cm wound to the right thigh
30.The victim was treated at Royal Melbourne Hospital where these wounds were repaired by either stitching or surgical glue.
31.CT and X-rays did not reveal any injuries to organs or bones from the stab wounds.
32.The victim was administered pain killers, antibiotics and a tetanus vaccination booster.
33.In the afternoon of 5 October 2019, the victim was discharged home with advice to see his local GP.
34.Dr. SCHREIBER Forensic Physician reviewed the hospital file and opined that that the injuries were not severe and were expected to heal without complication.
We would only add, having viewed the CCTV footage, that this appeared to be a frenzied attack by the applicant, motivated by her desire to prevent the complainant from recovering his ATM card.
The first sentence
On the first plea before the judge, it became apparent that the applicant had led a deprived and at times tragic life:
•At the time of sentence, the applicant was a 46-year-old Aboriginal woman.
•She suffered significant parental neglect as a child. Drugs and alcohol were abused frequently in the family home.
•Her parents separated when she was aged 4 years. She and an older sister assumed the burden of raising her four younger siblings, as her mother was often absent or ineffective as a consequence of heroin and/or alcohol abuse.
•The family lived in public housing in Reservoir.
•The applicant commenced smoking cannabis at 14 and later developed a heroin addiction. She has used illicit drugs for most of her adult life punctuated by occasional methadone assisted abstinence.
•She is mother to six children, five of whom survive. Three elder daughters are in their twenties and live independently. Three younger children were all male; the second died as an infant. As at the time of the plea the two boys were, it seems in care. The youngest son was, according to the applicant’s account to her psychologist, the product of rape by an ‘unknown perpetrator’. That child is now aged 8 years.
•The applicant has experienced domestic violence in many of her relationships, sometimes resulting in hospitalisation. In 2015 she became homeless, sleeping rough or at the home of friends. As at December 2021, the time of the initial sentence, the applicant had the opportunity to live independently with her partner in public housing.
•A forensic psychologist, Gina Cidoni, concluded that the applicant met the diagnostic criteria for multiple mental health conditions including Generalised Anxiety Disorder, Post-Traumatic Stress Disorder, features of Borderline Personality Disorder, and Substance Abuse Disorder (then in remission). The applicant also suffers from epilepsy and scoliosis. There is a suggestion, but no clear evidence, of the applicant suffering from schizophrenia.
At the time of the first sentence, 14 December 2021, the applicant had served 214 days’ pre-sentence detention. The judge noted that the objective gravity of the offending and the applicant’s moral culpability were both very high.[1] The judge said amongst other things:
[1]DPP v Foster (A Pseudonym) [2021] VCC 2132, [35]–[44] (‘Reasons for First Sentence’).
•Using a knife to stab the defenceless and unprepared complainant was appalling and brazen behaviour.
•Stabbing the complainant nine times in a public street, whilst on a family violence intervention order and whilst on bail was frightening ‘and absolutely outrageous’.
•The principles of Verdins[2] were not engaged to reduce the applicant’s moral culpability.
•The applicant’s ‘history of disadvantage, particularly [her] childhood disadvantage does reduce [her] culpability somewhat, but only in a minor way’.
11The judge described the applicant’s criminal history as ‘dreadful’:[3]
…[y]our first court appearance as an adult was when you were 18 and you have come before the courts on very many occasions since then for a range of offences including dishonesty, violence, weapons, drugs, driving, property damage and breaching court orders. Concerningly, your crimes of violence have included causing injury, armed robbery, assault with an instrument and assault emergency workers.
You have also received a range of sentences, including multiple terms of imprisonment, some suspended, and corrections orders. You were first sentenced to prison in 1998 and your longest sentence, of four years with a non-parole period of two years, was imposed in this court in 2000 for armed robbery, attempted armed robbery and related offences. Your most recent corrections order was imposed in 2017 in conjunction with a three-month prison sentence. It was entirely rehabilitative in nature, but unfortunately you breached it. Prior to that order, in 2012, you were given the opportunity to participate in rehabilitative court programs of credit bail (which was the precursor to CISP) and Koori Court supervision. Your last prison sentence of 215 days was imposed on 14 March 2019 and because of time served you were released on or about that day.
None of your previous sentences have deterred you, nor rehabilitated you. Only six and half months after you were released from prison in March you committed the instant serious offences.
I accept your criminal history is consistent with your history of disadvantage and drug use, but it cannot be ignored. You are well aware that unless you alter those things that are in your control, particularly your drug use, your future prospects will be poor.
[2]R v Verdins (2007) 16 VR 269; [2007] VSCA 62.
[3]Reasons for First Sentence, [54]–[57].
Despite this history, it is clear that the judge felt considerable sympathy for the applicant:[4]
That said, for the first time in a long time you have stable housing. The importance of this cannot be overstated. You are also drug free. Although you have breached corrections orders in the past, the Office of Corrections have assessed you as suitable to be placed on another order because of your attitude and current situation. They consider you to be at high risk of general re-offending but are, in effect, willing to give you another chance to prove yourself.
[4]Reasons for First Sentence, [58].
The judge considered community protection was ‘best achieved by rehabilitation’ and concluded that the applicant, with stable housing, abstinence from drugs and a steady relationship was in a position to turn her life around.[5] Accordingly the judge sentenced the applicant to 214 days’ imprisonment (time served) followed by an 18 month CCO with various therapeutic conditions, including judicial monitoring.[6]
[5]Reasons for First Sentence, [63].
[6]Reasons for First Sentence, [71], [74], [76].
The second sentence
Regrettably the applicant failed to take advantage of the chance offered by the Court. On 22 August 2022 she was remanded in custody on some ‘serious new matters’ including intentionally causing serious injury. The applicant’s compliance with the CCO had been desultory and ceased altogether in May 2022. Specifically from December 2021 onwards the applicant failed to undergo assessment and treatment on three dates and failed to attend for supervision on 13 dates. These failures triggered a breach application which was supplemented by a Corrections Victoria report recommending cancellation of the CCO and resentencing on the original offences. The matter was set down before her Honour for hearing on 21 October 2022. The applicant was represented on that day. Counsel, realistically, indicated to the judge that, given the applicant was in custody on the new matters, he could not make a sensible submission that the applicant be given a ‘further opportunity at the order’. The applicant, it was submitted, was genuinely motivated to comply but fell away after her sister died, her relationship broke down, and then her brother died in April 2022.
The judge pointed out that non-compliance had commenced well before her brother died and, in fact, there had been very little compliance at all. It was conceded by the applicant’s counsel that she had stepped back into substance abuse as a means of dealing with distressing life circumstances. Given that the applicant was in custody on the new matter, the applicant’s counsel proposed that the judge ‘proceed down the path of a straight sentence, as opposed to the fixing of a non-parole period’, and that the sentence ought not exceed the sum of time served and the total length of the CCO. That equated, according to the submission, to ‘about 25 months or thereabouts’. Pre-sentence detention, complicated by the other remand, was agreed to be 258 days. The judge stated that if the applicant wished to be sentenced straight away (thus abandoning the opportunity to present further psychological or psychiatric material to the Court) then she would sentence the applicant immediately and did so.
The reasons for this sentence[7] must be read in conjunction with the first reasons for sentence and the exchange to which we have referred in the previous paragraph. Relevantly to this appeal, the judge said:[8]
[7]DPP v Foster (A Pseudonym) [2022] VCC 1969 (‘Reasons for Second Sentence’).
[8]Reasons for Second Sentence, [1]–[11].
Ms Foster, I do remember you well, Ms Foster, because obviously I sentenced you in the first place and then I had judicial monitoring and your matter has come before me several times.
What happened when we first had the plea of the matter is the prosecution originally were submitting that you needed to do more time for what was serious offending. I understand completely why they were saying that, because when you look at the offending and also your history, more time certainly was warranted. However, in an adjournment when more evidence was given to the court and to the prosecution about your rehabilitation prospects — the fact you had got that accommodation, you were in a stable relationship — the prosecution changed their submission and accepted that a corrections order, in combination with the term that you had already served, was within range. And I also came to that view.
Why I am telling you that history is just to remind you that at that time everyone, including me, was optimistic about your future and although your offending really warranted more time in custody in terms of its seriousness, because your prospects for rehabilitation really seemed at that point very good and your circumstances were very different from what they had been before, I was prepared to give you a chance and the attitude of everyone in court was the same.
So I can only say that it is disappointing that it did not work out. I want to remind you of what I said during my sentencing remarks. I said this:
Notwithstanding the seriousness of your offending, having regard to the desirability of continuing your rehabilitation I have, as I said, concluded that all the relevant sentencing purposes can be met by the imposition of a combination sentence, with the term of imprisonment not exceeding that which you have already served. Ms Foster, I do not want you to misunderstand the situation. I am giving you a chance to avoid further prison time for what is very serious offending. If you do not take advantage of this chance you face the very real prospect that you will have to serve more time for these offences.
Then I indicated that my sentencing remarks would be available to anyone who was to resentence you, and as it happens it is me:
And they will see [I said] because of your situation with your stable housing, abstinence from drugs and steady relationship, that I have considered that you do have reasonable prospects of rehabilitation.
And then I said to you this:
If you breach the order that I am about to impose anyone who sentences you in the future, I would suspect would think that you are not worthy of such a chance again. Do you understand? [and you said] ‘Yes, I do’.
So we have got to that situation. I do take into account, as I have already said in court here, that just before I sentenced you your sister died and that was extremely upsetting, and then in April this year your brother died and that was also upsetting. And I have also read in the Corrections report that another friend of yours died, as well. So as I say, a lot was going on.
But unfortunately, you relapsed into heroin and that has been your main problem in terms of offending. So I am in the situation now where I do have to sentence you again for the original offences, because what I am going to do is cancel the Corrections Order. There is no point, and the submission was not made to me, of giving you another chance on a Corrections order, and it is simply not possible whilst you are in remand anyway.
So I am cancelling the Corrections order and I am resentencing you on Charges 1 and 2 on the original indictment. They are charges of causing injury intentionally and contravening a family violence order intending to cause harm or fear for safety.
Now I originally imposed an aggregate sentence, and it still seems to me that that is appropriate. That means one sentence to cover both of those offences.
I am convicting and sentencing you to an aggregate in respect of those two offences of 22 months imprisonment.
This appeal
In an attractive submission, counsel for the applicant essentially rehearsed his client’s very difficult life thus far, and submitted that there were some surviving prospects for rehabilitation given that the breach was triggered by non-compliance with therapeutic conditions and that, in the circumstances, the ‘requirements of punishment, denunciation and general deterrence had been largely if not completely satisfied by the custodial portion of the original sentence’ prior to the applicant’s release onto the therapeutic order. Counsel also referred to the original s 6AAA statement which was 24 months’ imprisonment with a minimum of 18 months. It was further submitted that the applicant’s childhood deprivation, which clearly fell within Bugmy[9] principles, was an enduring factor in mitigation and not washed away by a prior criminal history.
[9]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27.
The respondent, in equally attractive and concise submissions, contended that the offending itself was objectively grave, committed against (a) a background of a long and serious criminal history, (b) whilst on bail and (c) in breach of a family violence intervention order. The respondent also contended that the applicant’s prospects for rehabilitation, perhaps guardedly reasonable at the time of the first sentence, had fallen away by the time of the second sentence. Against this background, given the use of a bladed weapon and the number and location of the stab wounds, the sentence of 22 months was merciful.
Discussion
It is routinely observed in this type of appeal that submissions of manifest excess are difficult to make good. To succeed, the applicant must demonstrate that the sentence imposed, absent any identifiable error, is nevertheless so onerous as to be wholly outside the range of available sentences,[10] so as to bespeak error in itself.[11]
[10]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; Lim v The Queen [2019] VSCA 182, [60] (Croucher AJA, T Forrest JA agreeing at [1]); Begg v The Queen [2020] VSCA 183, [53] (Priest, Kaye and T Forrest JJA).
[11]Atem v The Queen [2020] VSCA 35, [48] (Tate, McLeish and Weinberg JJA); Stone v The Queen [2021] VSCA 186, [77] (Maxwell P, Beach and T Forrest JJA).
The objective seriousness of the offending is high involving multiple stab wounds to an unarmed and unprepared victim. It was only by chance that the victim escaped with only minor injuries. The attack was in a public place, with a former domestic partner who was theoretically protected from the applicant by a family violence intervention order. We agree with the respondent that ‘offending of this nature would, ordinarily, call for a significant term of imprisonment, well in excess of the sentence passed here’.
No criticism can be made of the judge for imposing what was a very lenient original sentence. The applicant’s tragic life, thus far, excited the judge’s sympathy, as it does ours. Her Honour was correct to extend to the applicant a chance to reform, and correct to sentence her to a term of imprisonment after that chance went begging. It is difficult for the applicant now to allege manifest excess when counsel below, on the breach, argued for a straight sentence of less than 25 months. Which was the end result. The sentence imposed was well within range.
Conclusion
The application for leave to appeal must be refused.
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