Frecker v The Queen
[2021] VSCA 331
•2 December 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0179
| JAKE FRECKER | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KYROU and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 November 2021 |
| DATE OF JUDGMENT: | 2 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 331 |
| JUDGMENT APPEALED FROM: | [2020] VCC 834 (Judge O’Connell) |
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CRIMINAL LAW – Appeal – Sentence – One charge each of common law assault, intentionally damage property, intentionally cause serious injury and persistent contravention of family violence intervention order – Two summary charges of contravention of family violence intervention order – Total effective sentence 6 years’ imprisonment and 2 year alcohol exclusion order – Non‑parole period 3 years and 8 months – Principles for determining how punitive elements of alcohol exclusion order may inform exercise of sentencing discretion – Whether judge failed to take into account punitive elements of alcohol exclusion order – Whether judge failed to take into account appellant’s youth – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms C A Boston | Giorgianni & Liang Lawyers |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
KYROU JA
T FORREST JA:
Introduction and summary
On 14 May 2020, the appellant pleaded guilty to the charges set out in the table below and, on 16 June 2020, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Frecker [2020] VCC 834 (‘Sentencing remarks’).
Charge Offence Maximum Sentence Cumulation Indictment 1 Common law assault [Crimes Act 1958 s 320] 5 years 9 months 6 months 2 Intentionally damage property [Crimes Act s 197(1)] 10 years 1 month Nil 3 Intentionally cause serious injury [Crimes Act s 16] 20 years 5 years Base 4 Persistent contravention of family violence safety notice or intervention order [Family Violence Protection Act 2008 s 125A] 5 years 12 months 4 months Related summary offences 1 Contravention of family violence intervention order [Family Violence Protection Act s 123(2)] 2 years 3 months 1 month 2 Contravention of family violence intervention order 2 years 3 months 1 month Total effective sentence: 6 years’ imprisonment Non-parole period: 3 years and 8 months Section 6AAA statement: 8 years’ imprisonment with non-parole period of 5 years and 6 months
The judge also made an alcohol exclusion order (‘AEO’) under s 89DE of the Sentencing Act 1991 to operate for two years after the appellant was released from prison. As discussed in more detail below, the AEO prohibited the appellant from entering or remaining in any licensed premises (including a restaurant, café or function centre) or the location of any major event (such as a sporting event) at which liquor is supplied.
On 20 January 2021, the appellant was granted leave to appeal against his sentence on the following grounds:
[1]The learned sentencing judge erred in failing to take into account, as a form of additional punishment, the alcohol exclusion order imposed upon the [appellant].
[2]The learned sentencing judge erred in failing to take into account the [appellant’s] youth at the time of the offending.
For the reasons that follow, the appeal will be dismissed.
Circumstances of the offending
Common law assault and intentionally damage property — Zara Farwell[2]
[2]A pseudonym.
The appellant began a relationship with Zara Farwell in June 2016. They began living together in November 2016. The relationship ended in December 2017 and resumed in March 2018. Ms Farwell ended the relationship in about April 2018.
Charge 1 (common law assault) is a rolled-up charge relating to the assaults set out at [7]–[11] below.[3]
[3]Unless otherwise specified, references to charges are references to charges on the indictment.
On 24 December 2016, the appellant and Ms Farwell had returned home after drinking at a night club. A verbal argument occurred and he punched her once in her left arm.
The appellant further assaulted Ms Farwell on a number of occasions between September and November 2017. He would assault her when he had been drinking. On one occasion, they were arguing at home about her smoking. He pushed her with both hands, causing her to fall to the floor.
On another occasion, the appellant and Ms Farwell were arguing in bed. He grabbed her by both feet and swung her from the bed, causing her to hit her head on the wall. She then went to bed in another bedroom. A short time later, he came into the other bedroom and poured beer onto her as she lay in bed. He also snapped the lid off two of her jewellery boxes (charge 2 — intentionally damage property).
On a further occasion, the appellant pushed Ms Farwell over as they were both running to the front door of their house after a night out. She fell onto the concrete and grazed her right knee. At the front door, he hit her across the chest, causing her to fall against the brick wall. After entering the house, he punched her in the ribs and back.
Ms Farwell’s friends have seen the appellant abuse and be physically violent to her.
Intentionally cause serious injury — Lara Knox[4]
[4]A pseudonym.
The appellant and Lara Knox met in February 2018. They began a relationship a short time later. In about April 2018, Ms Knox began to notice that the appellant would become angry at times for no apparent reason. From about September 2018, this began happening more often and he became more controlling of her. In October 2018, he was physically violent towards her by pushing her.
On the evening of 16 January 2019, the appellant intentionally caused serious injury to Ms Knox (charge 3). The details of this offence are set out at [14]–[17] below.
On 16 January 2019, Ms Knox and the appellant visited the home of one of her relatives, where alcohol was consumed by those present. Ms Knox received a group message from her ex-boyfriend, with whom she had remained in contact for professional reasons. The appellant saw the message and became angry. He went outside and got into his car. Ms Knox and one of her cousins followed him. They believed he had consumed too much alcohol to drive and tried to take the car keys from him. He pushed Ms Knox away and drove off. She got into her car and followed him back to his home.
When Ms Knox got out of her car, she asked the appellant if he was okay. He told her, ‘Fuck off cunt’. He grabbed her and threw her to the ground. He put his hand on her chest to hold her down as he stood over her. He was swearing and yelling. He grabbed her around the neck. When she tried to get up, he kept pushing her back down. He then punched her to the left side of her face.
The appellant eventually let Ms Knox get up. They began walking towards the front door. Without warning, he punched her to her left eye. She was crying and they went inside. She went to the bathroom to look at her face. Her cheek was swollen. She said to the appellant, ‘It’s not okay that you did that’. She was upset and shocked. He became angrier and took her car keys from her. He grabbed her arm and began dragging her outside. She struggled with him. He yelled at her to ‘[g]et the fuck out’. They ended up outside and he pushed her in the chest up against the wall of the house. She told him to calm down. He said, ‘Do you want me to give you another one?’ She said ‘no’ and told him to let her go. She tried to push him away, but he would not let her go. He then punched her to the left side of her face. She fell back onto the ground and lost consciousness. He then began dragging her inside by her arm.
Ms Knox next remembers lying on the tiles in the front doorway. The appellant yelled that she still had a pulse so she could get up. She could not open her eye or feel the left side of her face. She asked him to call an ambulance. He said that he would call her parents and an ambulance if she needed one. He got her something cold to put on her face. He said that it was going to be ‘alright’ and it was not that bad.
At about 1:00 am on 17 January 2019, a neighbour telephoned 000 because she was concerned about hearing a man yelling and a woman crying at the appellant’s home. Two police officers arrived a short time later. The appellant opened the front door and took them to see Ms Knox who was lying on a bed. They asked her if she needed an ambulance. The appellant said, ‘No, she is fine’. One police officer took the appellant outside. The appellant told him that Ms Knox had fallen and hit her head on the concrete driveway. The other police officer asked Ms Knox what had happened. She said that she could not talk to him. She said that she had been drinking, could not really remember and would have fallen over. She was crying and looked scared. At about 1:40 am, the police officers called an ambulance and, after it arrived, they arrested the appellant.
Ms Knox told the paramedics that she had fallen onto the footpath while walking to the house. She could not open her left eye and had severe pain on the left side of her jaw. She had bruises and scratches to her arms, neck and chest. After being placed into the ambulance, she told the paramedics that the appellant had punched her in the face both outside and inside his home and had dragged her along the ground. She was given pain relief, anti-nausea medication and an ice pack. She arrived at the Mildura Base Hospital at about 2:20 am.
Ms Knox had the following injuries: bruising on the neck; dark bruising on the upper right arm; smaller bruises on the upper left arm; bruising on the upper chest; a graze on the lower right leg; and a large haematoma and swelling of the left eye and cheek. Her eye was closed due to the swelling. A CT scan confirmed a minimally displaced and depressed fracture involving the left infraorbital floor.
At about 8:30 am on 17 January 2019, Ms Knox told police at the hospital that the appellant hit her in the face outside his home and again in the doorway.
At about 8:45 pm on 17 January 2019, Ms Knox was discharged from the hospital against the advice of doctors. She left with the appellant’s mother and stayed the night at her home.
On 18 January 2019, the appellant’s mother arranged for Ms Knox to stay at the hotel where she worked. At about 1:00 am on 19 January 2019, paramedics were called to attend the hotel. Ms Knox was nauseated, very tired and described being in pain all over. She was given medication for her nausea and was taken back to hospital by ambulance.
On 21 January 2019, Ms Knox was examined by Dr Richard Barton, a plastic surgeon who specialises in the management of facial trauma. Dr Barton confirmed that Ms Knox’s injury resulted in a blowout fracture to her left orbital floor with significant bruising and swelling to the left side of her face. Based upon the injuries and bruising, Dr Barton believed that it was likely that she suffered multiple blows of significant force to the left side of her face. Surgery was performed which involved an exploration and repair of the fracture. She was discharged the following day.
Dr Barton saw Ms Knox for a post-operative review on 12 February 2019. Ms Knox had normal vision in her left eye. She had some tethering and contraction of her left mid-lid surgical incision. The scar was causing some ectropion and a scleral show. In relation to the nerve injury, she had some early recovery of sensation and some improvement in the power of the affected muscles on the left side of her face. Dr Barton expected a full recovery.
Dr Maaike Moller subsequently examined medical notes, statements and photographs regarding Ms Knox’s injuries. Dr Moller was of the opinion that the likely cause of the injury to Ms Knox’s face was a blow, but could not comment on the number of blows. Dr Moller was of the view that Ms Knox sustained blunt force trauma to both her arms and her chest causing bruising, as well as blunt force trauma and movement of her right leg resulting in a graze.
A dentist examined Ms Knox’s teeth on 26 February 2019. She had small enamel fractures in teeth 11, 21 and 22. Tooth 15 was cracked and a deep restoration of that tooth was completed on 4 April 2019.
Family violence safety notice and intervention order — Lara Knox
On the day that the appellant was arrested on 17 January 2019 — and while Ms Knox was at the Mildura Base Hospital — he was served with a family violence safety notice. The notice included conditions that he not approach, telephone or otherwise contact Ms Knox unless he was with a police officer; and that he not be within 5 metres of her or within 200 metres of her place of residence. After he was served with the safety notice, the appellant was released on bail.
A final family violence intervention order was made against the appellant at the Mildura Magistrates’ Court on 25 January 2019. The order included conditions that he not publish on the internet any material about Ms Knox; that he not contact or communicate with Ms Knox by any means; and that he not arrange for another person to do anything he must not do under the order.
Between 17 January and 5 February 2019, the appellant persistently contravened the safety notice and intervention order as follows (charge 4):
(a)A short time after being released on bail on 17 January 2019, the appellant sent a text message to Ms Knox asking her to call him. He subsequently telephoned her at the hospital seven times throughout the day. She spoke to him three of those times. He apologised and said that he wanted to sit with her at the hospital. She said no. By mid‑afternoon, staff at the hospital were directed not to allow him to speak to her because the calls were in breach of the notice.
(b)The appellant arranged for his mother to go to the hospital on 17 January 2019. She arrived at about 3:30 pm and sat with Ms Knox for a short time before leaving. She then returned to the hospital at about 5:15 pm. The appellant spoke to his mother via telephone while she was at the hospital with Ms Knox and his mother gave her phone to Ms Knox to speak to him.
(c)As we have already stated, at about 8:45 pm on 17 January 2019, Ms Knox was discharged from hospital and stayed with the appellant’s mother. Ms Knox telephoned the appellant twice while she was staying with his mother. At about 10:30 pm, he arrived at his mother’s home. He asked Ms Knox, ‘Are you gonna get me in trouble? What did you tell them?’ Ms Knox told him that she had said nothing. She was scared to tell him that she had told police that he had hit her. He left the house a short time later.
(d)At about 12:50 pm on 18 January 2019, police officers attended outside the home of the appellant’s mother. They wanted to speak to Ms Knox. They saw the appellant park his vehicle across the road from his mother’s home. The appellant telephoned his mother and drove off about five minutes later. Police arrested him at his home a short time later. He was remanded in custody.
(e)Between late January and early February 2019, the appellant had regular telephone conversations with his mother discussing whether Ms Knox was going to support the appellant and have the intervention order withdrawn. On 4 February 2019, the appellant asked his mother if she had passed on anything to Ms Knox and his mother confirmed that she had. On 5 February 2019, the appellant’s mother sent a message to Ms Knox telling her to call the appellant if she wanted to.
On 25 June 2019, the appellant was granted bail. One of the bail conditions was that he fully comply with the intervention order.
At the end of June 2019, the appellant contacted a friend of Ms Knox, Hamish Arnold,[5] on Messenger. The appellant began regularly contacting Mr Arnold over the next six weeks by sending messages via Messenger and by telephoning him. The appellant asked Mr Arnold to contact Ms Knox on his behalf. On 8 August 2019, the appellant sent Mr Arnold photographs of a five-page handwritten letter he wrote for Ms Knox. The next day, the appellant telephoned Mr Arnold and asked him to give Ms Knox a copy of the letter. On 24 August 2019, Ms Knox was having breakfast at a restaurant owned by Mr Arnold. Mr Arnold told her that he had been in contact with the appellant and that he had a letter from the appellant that the appellant wanted her to see. Mr Arnold asked Ms Knox if he could send the letter to her. She said yes and he did so (summary charge 2 — contravention of family violence intervention order). Ms Knox began reading the letter but stopped on the first page. Later that night, the appellant contacted Mr Arnold, who told the appellant that he gave Ms Knox the letter.
[5]A pseudonym.
On 28 August 2019, Mr Arnold went to Mildura Police Station. He showed police the messages between him and the appellant, and provided them with a copy of the appellant’s letter.
Throughout August 2019, the appellant and Chris Tipping[6] were in regular contact. Mr Tipping met the appellant in high school and was also a friend of Ms Knox. The appellant told Mr Tipping that he wanted to make things right with Ms Knox. He said that he was sorry. He told Mr Tipping about courses he had undertaken in prison. He said that he was frustrated because he could not communicate with Ms Knox. Mr Tipping contacted Ms Knox on Snapchat in about mid-August and told her that the appellant said that he had changed and still loved her (summary charge 1 — contravention of family violence intervention order).
[6]A pseudonym.
The appellant’s bail was revoked on 3 September 2019 and he was remanded in custody.
Appellant’s personal circumstances
The appellant was aged 23 at the time of the offending against Ms Farwell and 25 at the time of the offending against Ms Knox. He was 26 at the time of sentencing.
The appellant was born in Melbourne. His parents separated before his first birthday. He continued to live with his mother in Melbourne and his father moved to Dimboola. His mother re-partnered and had two sons with the appellant’s step‑father. In 2008, the family moved to Mildura.
The appellant was a target for bullies due to the need to wear glasses and an eyepatch in primary school and later for suffering severe acne in high school which was treated by prescription medication. During Years 9 and 10, he was elected as a house captain and he was also involved in school sports. He undertook Year 12, but failed VCE.
The appellant began working at Target when he was 14 years old. After finishing school, he worked full-time at a stationery shop. After a short time, he commenced working at Tradelink Plumbing Supplies, first as a branch assistant, then as an assistant manager before being promoted to the branch manager at the age of 23. He also had a casual second job, working after hours at Hattah Roadhouse which a friend part-owned. He remained employed until January 2019, when he was remanded in custody for the current offending.
The appellant purchased his own home at the age of 24 without any assistance from his family.
The appellant is involved in local sports clubs, having played football and basketball from the age of 5 until well into his twenties.
The appellant did not drink alcohol during the work week, but had a pattern of heavy binge drinking on the weekends. He tried MDMA, ecstasy and speed on a couple of occasions in his early 20s. During his relationship with Ms Knox, he abused cocaine on a monthly basis. He has not abused injectable or prescription drugs.
In a psychiatric report dated 13 February 2020, Dr Jacqueline Rakov assessed the appellant as suffering from depression, anxiety and alcohol use disorder. She opined that the appellant’s problematic alcohol use was likely the main cause of his impaired judgment and disinhibited aggression.
The appellant has no prior criminal history.
The appellant retains the support of his family.
Plea hearing
Prior to the plea hearing on 14 May 2020, the prosecution served upon the appellant an application for an AEO.[7] At the hearing, defence counsel (who is not the counsel who appeared for the appellant before us) informed the judge that the application was not opposed.[8] No other substantive submissions were made in relation to the proposed AEO. There was no reliance on any evidence for the purpose of establishing that the AEO would have any particular punitive impact on the appellant, and no application for an exemption was made.
[7]The application for an AEO was foreshadowed in the summary of prosecution opening dated 18 February 2020.
[8]The absence of opposition to the making of an AEO was foreshadowed in defence counsel’s written submissions dated 11 May 2020.
In defence counsel’s written submissions dated 11 May 2020, he stated that, although the appellant’s age at the time of the offending was ‘at the upper limit of what can be considered a youthful offender’, nevertheless it ‘still has a role to play in sentencing’. Defence counsel then set out the principles in R v Mills[9] and Azzopardi v The Queen[10] that are quoted at [81]–[82] below.
[9][1998] 4 VR 235, 241 (‘Mills’).
[10](2011) 35 VR 43, 53–4 [34]–[36] (‘Azzopardi’).
In his oral submissions, defence counsel stated that the appellant’s age ‘is a relevant consideration’ and ‘is something that should be front and centre in the sentencing exercise’. Although defence counsel accepted that the judge ‘does have to take into account other significant sentencing principles like deterrence and denunciation’, he contended that ‘rehabilitation should form a major component of the sentence … that is imposed [on the appellant].’ The judge responded, ‘Yes. Well, he’s got no prior convictions, … so that’s very much in his favour’.[11]
[11]Transcript of Proceedings (2 June 2020) 78.2–78.17.
Sentencing remarks
The judge described the conduct constituting charge 3 as ‘a callous and brutal attack’ and a serious example of the offence of intentionally causing serious injury.[12] Given the serious nature of the offending, he stated that he was not satisfied that there were substantial and compelling circumstances that were exceptional and rare that would justify the imposition of a community correction order (‘CCO’) either alone or in combination with a term of imprisonment.[13]
[12]Sentencing remarks [77]–[78].
[13]Sentencing remarks [77]. As intentionally causing serious injury is a ‘category 2 offence’, s 5(2H) of the Sentencing Act provides that the court must not make a CCO (or a combination sentence comprising a term of imprisonment and a CCO) unless certain preconditions are satisfied. One of the preconditions is that ‘there are substantial and compelling circumstances that are exceptional and rare and that justify [the making of a CCO or a combination sentence].’
The judge said that the way the appellant treated two of his intimate partners — namely, Ms Farwell and Ms Knox — suggested that what occurred to Ms Knox was not a complete aberration. Consequently, the judge remarked that, whilst the appellant was being sentenced on the basis that he had no previous convictions, he was not being sentenced on the basis that subjecting intimate partners to violence was completely out of character. The judge stated that family violence was wholly unacceptable in our society and that the sentence imposed would strongly denounce and justly punish what the appellant did to Ms Knox.
In relation to charge 4 and the related summary offences, the judge stated that he had been persuaded by defence counsel’s submissions that, having never experienced a serious situation such as this before, the appellant panicked and perhaps failed to appreciate the seriousness of his conduct. The judge said that he was confident that being returned to custody in early September 2019 taught the appellant a very harsh lesson. For this reason, the judge stated that, although the sentences imposed for those charges required some cumulation, the cumulation would be moderated.
The judge stated that he accepted defence counsel’s submissions that the appellant’s sentence should be substantially reduced by reason of his guilty plea. He found that the appellant had ‘very positive’ prospects of rehabilitation, having regard to programs he had undertaken to address his offending behaviour, his work history, his age and the level of support he enjoyed from his family.[14]
[14]Sentencing remarks [84].
The judge accepted that the appellant was sorry for his offending, but said that his understanding of the wrongfulness of his behaviour was still ‘a work in progress’.[15]
[15]Sentencing remarks [86].
With respect to the AEO, the judge stated as follows:
The prosecution have sought an [AEO]. The application is not opposed. [The appellant] will now be convicted of intentionally causing serious injury which is a relevant offence for the purposes of s 89DE of the [Sentencing] Act. I am satisfied on the balance of probabilities, that at the time of the relevant offence [the appellant was] intoxicated, that [his] intoxication contributed to the commission of the offence and that [he has] not been the subject of a previous [AEO] in relation to the circumstances that gave rise to this offending. Accordingly, I will make the order as sought. The order will be for a period of two years and will take effect upon [the appellant’s] release from prison. [The appellant] should be aware that there is a power to vary that order under s 89DG of the [Sentencing] Act, should [he] meet the criteria set out in subsection (3) of that provision.[16]
[16]Sentencing remarks [89].
The judge made several references to the appellant’s relative youthfulness throughout his sentencing remarks. First, he observed that the appellant was aged 23 at the time of the offending involving Ms Farwell, 25 at the time of the offending involving Ms Knox and 26 at the time of sentencing.[17] Secondly, the judge noted that defence counsel relied upon the appellant’s ‘relative youthfulness’.[18] Thirdly, the judge found that the appellant’s age contributed to his ‘very positive’ prospects of rehabilitation.[19]
[17]Sentencing remarks [53].
[18]Sentencing remarks [71].
[19]Sentencing remarks [84].
Ground 1: Alcohol exclusion order as a form of additional punishment
Statutory provisions and principles relating to alcohol exclusion orders
Division 4 of pt 4 of the Sentencing Act (ss 89DC–89DH) provides for the making of an AEO in relation to a person who is convicted of a ‘relevant offence’. The offences falling within the definition of ‘relevant offence’ in s 89DC involve actual or threatened physical harm to other persons, and include the offence of intentionally causing serious injury.
Division 4 of pt 4 was inserted in the Sentencing Act by the Summary Offences and Sentencing Amendment Act 2014, which took effect on 1 September 2014. In the second reading speech for the Summary Offences and Sentencing Amendment Bill 2013 (‘Bill’), the Attorney-General described the purpose of the amendments regarding AEOs in the following terms:
A high proportion of violent behaviour is caused by people who have had too much to drink. These measures will better protect the public from the recurrence of such behaviour and create a strong deterrent to the offender and to others.
…
[AEOs] will send a clear message that drunken, violent behaviour will not be tolerated in Victoria and that those who engage in it will face significant consequences for their personal and social life, in addition to whatever other sentence they receive.[20]
[20]Victoria, Parliamentary Debates, Legislative Assembly, 12 December 2013, 4683 (Robert Clark, Attorney-General)
Section 89DE of the Sentencing Act relevantly provides as follows:
89DE When an alcohol exclusion order must be made
(1)A court must make an alcohol exclusion order in respect of an offender if—
(a)the court records a conviction against the offender for a relevant offence; and
(b) the court is satisfied on the balance of probabilities that—
(i)at the time of the relevant offence the offender was intoxicated; and
(ii)the offender’s intoxication significantly contributed to the commission of the relevant offence; and
…
…
(3) The duration of an alcohol exclusion order is 2 years.
(4)Subject to subsection (5), an alcohol exclusion order prohibits an offender from—
(a)entering or remaining in any licensed premises characterised as a nightclub, bar, restaurant, cafe, reception centre or function centre; and
(b) entering or remaining in the location of any major event; and
(c)entering or remaining in a bar area of any licensed premises to which paragraph (a) or (b) does not apply; and
(d)consuming or attempting to consume any liquor in any licensed premises to which paragraph (a) or (b) does not apply.
(5)An alcohol exclusion order may be subject to exemptions that allow a person to enter or remain in a specified place for a specified purpose during the period of the order if—
(a)the Court considers that there is a good reason why the person should be allowed to enter or remain in the place; and
(b)the Court considers that it is appropriate in all the circumstances.
(6)An alcohol exclusion order takes effect—
…
(b)if … the order has been made in combination with a custodial sentence, on the offender’s release from prison.
Section 89DC of the Sentencing Act adopts the definition of ‘major event’ in the Liquor Control Reform Act 1998 (‘LCRA’). Under s 14B(1) of the LCRA, the Victorian Commission for Gambling and Liquor Regulation may determine that an event is a major event. Section 14B(3) of the LCRA provides that, subject to an exception, an event that is likely to attract more than 5,000 patrons is to be taken to be a major event. A major event can include a major sporting event at which liquor is supplied.
The explanatory memorandum to the Bill noted that an offender who is the subject of an AEO would not be excluded from licensed premises selling packaged liquor for consumption off the premises. It gave the following examples of exemptions that could be granted by the court:
[T]he court could permit the offender to enter and remain in a licensed premises or bar area for the purposes of employment. Similarly, the court may create an exemption permitting a person to enter a particular venue for a specified time for the purposes of attending a meeting of a local club. However, an exemption may not permit a person to consume liquor on the premises.[21]
[21]Explanatory Memorandum, Summary Offences and Sentencing Amendment Bill 2013, 11.
The AEO made by the judge in the present case reflected the prohibitions set out in s 89DE(4) of the Sentencing Act and did not contain any exemptions under s 89DE(5).
The Court has not previously considered how AEOs can inform the exercise of the sentencing discretion.[22] However, guidance can be obtained from observations the Court has made in relation to CCOs, residency in a drug rehabilitation facility and forfeiture orders.
[22]In Robson v The Queen [2018] VSCA 256, in the context of a sentencing appeal which relied upon the ground of manifest excess, the offender submitted that an alcohol exclusion condition attached to a CCO involved a punitive element. However, in upholding the appeal, the Court did not analyse the punitive aspects of the alcohol exclusion condition.
In Boulton v The Queen,[23] this Court discussed the attributes of CCOs. The Court set out the conditions that may be attached to a CCO, including conditions prohibiting the offender from associating with particular individuals, requiring the offender to reside in a particular place, prohibiting the offender from attending a specified place, imposing a curfew and ‘prohibiting the offender from entering licensed premises or the location of any major event, or from consuming alcohol in any licensed premises’.[24] The Court described the potentially punitive effect of such conditions in the following terms:
Plainly enough, [a CCO] attaching conditions of this kind, whether singly or in combination, is likely to interfere very significantly with the offender’s freedom to live as he/she chooses. Compliance with such conditions may require a drastic alteration of daily life. Indeed, by attaching conditions prescribing where the offender must live, and which locations and persons he/she must avoid, the court can effectively require the offender to embark on a new life.
…
At this early stage, it is difficult for sentencing courts to assess the punitive effect of a CCO. Whereas the seriousness of a deprivation of liberty is well enough understood, it is hard to know how onerous it will be for a particular offender to comply with conditions requiring, for example, attendance at treatment; supervision; separation from acquaintances; exclusion from clubs and bars; and the obtaining of permission from the Secretary for interstate movements.
Moreover, comparisons between [CCOs] will be more difficult than when the comparison is simply between different periods of imprisonment. Not only will the particular ‘cocktail’ of conditions vary from case to case, according to the offender’s particular circumstances, but the same condition (eg non‑association) is likely to have a quite different impact on different offenders. For some, compliance with such a condition will require a radical change in behaviour, while for others in different circumstances the burden of compliance will be less significant.[25]
[23](2014) 46 VR 308 (‘Boulton’).
[24]Boulton (2014) 46 VR 308, 332 [96].
[25]Boulton (2014) 46 VR 308, 332–3 [97], [99]–[100].
In Akoka v The Queen,[26] this Court considered whether residency in a drug rehabilitation facility such as Odyssey House is a form of pre-sentence detention. In that context, the Court made the following observations about the potentially punitive aspects of such residency:
The evidence in the present case indicates that residency at Odyssey House involves significant restrictions on the liberty of those undertaking the treatment offered by that facility. It is likely that other rehabilitation facilities impose similar restrictions. However, the nature and severity of the restrictions and the treatment programs on offer may vary as between different facilities. Where reliance is placed on residency at such a facility, evidence will be required to establish that it is appropriate for the Court to give credit for such residency. It will be relevant for the court to know whether the residency is entirely voluntary or whether there is an element of compulsion as in the present case, where residence at Odyssey House was a condition of the applicant’s bail. Of course, voluntary residency will continue to be relevant to the instinctive synthesis in other ways.
…
Offenders will be encouraged to seek residential treatment if it is understood that sentencing judges will acknowledge, and give credit for, the punitive nature of residency in such a facility. The extent of that credit will depend on the circumstances of each case, including the nature and severity of the restrictions to which an offender has been subject and the duration of the offender’s residency. …
The credit referred to … above will, as with all other sentencing discounts, form part of the application of the instinctive synthesis without being numerically identified. However, as with other significant sentencing considerations, a sentencing judge should ordinarily explain how the punitive nature of residency at a rehabilitation facility has informed — in terms of the weight assigned to it — the instinctive synthesis.[27]
[26][2017] VSCA 214 (‘Akoka’).
[27]Akoka [2017] VSCA 214, [107], [109]–[110] (citations omitted).
In R v McLeod,[28] this Court considered s 5(2A) of the Sentencing Act, which sets out the circumstances in which a sentencing judge may have regard to an order for the forfeiture of property made under the Confiscation Act 1997. The Court stated that s 5(2A) draws a clear distinction between forfeiture of the proceeds of crime which must be disregarded and other forfeiture of property.[29] The Court continued:
Where forfeiture ‘constitutes a punishment and not simply the [deprivation] of profits of crime, a sentencing judge can take that punishment into account in the determination of an appropriate sentence in the circumstances’. A failure to do so may constitute sentencing error.
…
An offender who relies on forfeiture (whether it has occurred or is anticipated) as a mitigating circumstance will ordinarily bear the onus of establishing that it should be so regarded.
…
In the present case, no sentencing error has been established. There was no adequate evidentiary basis upon which the sentencing judge could have assessed either the likely outcome of the exclusion application or the punitive effect of any forfeiture which might result. The administration of justice would not be well served were a sentencing judge required to speculate as to likely forfeiture and/or its punitive component.[30]
[28](2007) 16 VR 682 (‘McLeod’).
[29]McLeod (2007) 16 VR 682, 687 [21].
[30]McLeod (2007) 16 VR 682, 687 [21], 689 [29], 690 [32] (citations omitted).
Having regard to the authorities and other matters referred to above, the following principles apply to AEOs made under div 4 of pt 4 of the Sentencing Act:
(a)As is evident from the second reading speech for the Bill and the nature of the offences falling within the definition of ‘relevant offence’ in s 89DC, the primary purpose of an AEO is to protect the community. It does so by limiting the opportunity for the offender — whose intoxication significantly contributed to the commission of a relevant offence — to consume alcohol in venues at which other persons are present and who may be harmed by the offender if he or she becomes intoxicated.
(b)An AEO may also facilitate the offender’s rehabilitation by addressing one of the underlying causes of his or her offending.
(c)An AEO is also capable of being punitive because it imposes restraints upon the offender’s liberty which are in addition to the sentence of imprisonment.[31] Those restraints form part of the circumstances which the sentencing court will take into account in a general way in the intuitive synthesis.
(d)Whether an AEO has a punitive element that extends beyond the deprivation of liberty that necessarily arises from its provisions and, if so, the extent to which it does so, will depend upon the individual circumstances of the offender. For example, an AEO may have a greater impact upon a chef who operates his or her own licensed restaurant which is the sole source of his or her income, than an offender whose livelihood does not depend upon licensed premises.[32] However, the adverse impacts of an AEO may be ameliorated by an exemption granted under s 89DE(5). For example, the sentencing court could grant an exemption permitting the offender to enter and remain in particular licensed premises or bar area for the purposes of employment.[33]
(e)As we have stated, an AEO is relevant to the exercise of the sentencing discretion. However, if the offender wishes to contend that an AEO will have an additional punitive impact upon him or her so as to warrant discrete moderation in sentence, he or she must do so expressly and support such a contention with evidence. The offender should also address whether an exemption under s 89DE(5) may ameliorate particular punitive features of an AEO.
(f)Where the offender expressly contends that his or her sentence should be moderated on account of an AEO, ordinarily the sentencing judge should make a finding on the extent (if any) to which the AEO is punitive and explain how the AEO has informed the exercise of the sentencing discretion.
[31]As appears from [57] above, in the second reading speech for the Bill, the Attorney-General acknowledged that an AEO can have significant consequences for an offender’s personal and social life in addition to his or her sentence.
[32]An example of a case in which a sentencing judge treated an AEO as ‘a significant additional punishment’ for the offender is DPP v Baker [2020] VCC 935, [42]. The offender in that case lived in a small country community with limited recreational outlets. The sentencing judge stated that he was satisfied that the AEO ‘will be a significant factor in deterring [the offender] from future criminal conduct and in protecting the community’ (at [42]). The sentencing judge took the AEO into account as one of the factors that rendered appropriate the imposition of a longer than usual period during which the offender would be eligible for parole (at [49]).
[33]See [60] above.
Parties’ submissions on ground 1
The appellant submitted that, pursuant to s 89DE(4) of the Sentencing Act, even if he is not drinking, he will not be able to attend a licensed café or restaurant, weddings at licensed reception centres or major events such as the AFL Grand Final, Grand Prix and Boxing Day Test for two years after his release. He contended that, whilst the restrictions of an AEO would be onerous for most people, they will be particularly onerous for him for two reasons. First, he is a social young man who is heavily involved in sporting clubs and his community. Secondly, he lives in the country, where dining and social options are more limited than in the city.
The appellant conceded that defence counsel did not oppose the Crown’s application for the AEO and that the evidence before the judge was sufficient to satisfy the preconditions for the making of the AEO. He acknowledged that the restrictions imposed by the AEO were appropriate and were aimed at promoting his rehabilitation and the protection of the community. However, he argued that those factors did not take away from their punitive effect.
The appellant submitted that, whilst the AEO was entirely appropriate, it was necessary for its punitive effects to be taken into account in determining the appropriate term of imprisonment to impose upon him. This was said to be because Parliament had not specifically prohibited the additional punishment occasioned by AEOs from being taken into account on sentence.[34] The appellant contended that this approach was analogous to taking into account the punitive effects of residential drug rehabilitation and forfeiture orders in mitigation of sentence.[35]
[34]The appellant contrasted the position of a supervision order under the Serious Sex Offenders Monitoring Act 2005: see s 5(2BA) of the Sentencing Act.
[35]The appellant relied upon Akoka [2017] VSCA 214 with respect to residential drug rehabilitation and McLeod (2007) 16 VR 682 with respect to forfeiture orders.
The appellant argued that, although defence counsel did not specifically submit on the plea that the AEO amounted to additional punishment, the appellant should not be precluded from raising the matter on appeal. That was said to be because the matter relates to a point of law upon which this Court has not previously provided guidance and because it concerns a significant mitigating factor which, as a matter of justice, should be taken into account.
The Crown submitted that, depending upon the circumstances of a particular case, an AEO may operate more or less punitively on an individual. It was said that, if such an additional punitive effect is established on the evidence, it may be a relevant consideration in the sentencing calculus.
According to the Crown, the evidence established that the appellant had a propensity for alcohol misuse, which was a key contributor to the current offending. For this reason, it submitted that the primary purpose of the AEO imposed upon the appellant was not punishment, but rehabilitation. It contended that the appellant had not identified any particular punitive effect which the judge ought to have recognised in the sentencing mix.
The Crown argued that it could be inferred from the judge’s sentencing remarks that he had appropriately taken into account the making of the AEO in a general way as part of the instinctive synthesis. This was said to be because the application for the AEO was given careful consideration in para 89 of the judge’s sentencing remarks.[36] The Crown submitted that, by attacking the sentencing remarks for not stating words to the effect that the judge had taken into account in a general way the punitive effect of the AEO, ground 1 sought to unduly parse the judge’s sentencing remarks as if they were statute. This was said to be especially so because the making of the AEO was uncontroversial on the plea.
[36]See [54] above.
Decision on ground 1
In our opinion, ground 1 is not made out.
Having regard to the fact that the judge made the AEO on the same day that he sentenced the appellant, it can be readily inferred that he was aware that the restrictions in the AEO would have an adverse effect on the appellant’s liberty. It can also be readily inferred that the judge took that adverse effect into account in a general way as one of the circumstances that informed the exercise of the sentencing discretion. We are satisfied that there is no real possibility that the judge excluded consideration of the adverse effect of the AEO on the appellant as part of the intuitive synthesis.
Having regard to the principles set out at [66] above, the judge did not err by failing to explain in his sentencing remarks how any punitive elements of the AEO informed the exercise of his sentencing discretion. That is because defence counsel did not submit that the AEO had an additional punitive impact upon the appellant which warranted discrete moderation in his sentence.
Defence counsel had advance notice of the prosecution’s application for an AEO and had ample opportunity to provide advice to the appellant about the implications of an AEO for him and to obtain instructions on any particular punitive impact it would have on him. It can be inferred that the appellant agreed that defence counsel should consent to the making of the AEO and did not instruct defence counsel to make any specific submissions concerning it or to seek any exemption.
Counsel for the appellant who appeared before us informed us that she had spoken to defence counsel who advised her that he did not make any submissions on the punitive elements of the AEO because he was not aware of their relevance to the exercise of the sentencing discretion. Accepting that that is so, it is not clear to us what submissions defence counsel could have made in support of a contention that the making of the AEO should have a moderating effect on the appellant’s sentence.
The evidence on the plea was no higher than that the appellant was a young man who lived in Mildura and engaged in sporting and social activities within that community. That evidence was insufficient to warrant a moderation in sentence based on the AEO. The effect of the AEO on the appellant was no different than the effect on any other offender who lives in a regional city and enjoys sport and other social activities. The AEO would not prevent the appellant from purchasing alcohol and drinking it at home or a place that is not specified in the AEO, either alone or with friends. The AEO would also not prevent the appellant from playing local sport, provided he did not enter licensed premises either before or after the sporting event. The prohibition on alcohol consumption in licensed premises or at major events is a limited, short-term restriction on his liberty aimed at reducing his opportunities to harm others. It is not sufficiently material to warrant special consideration.
For the above reasons, the judge was entirely justified in treating the AEO as part of the mix of factors which were to be taken into account in the exercise of the sentencing discretion in a general way without singling it out for special mention.
Ground 2: Appellant’s youth
Principles relating to sentencing youthful offenders
In Mills, Batt JA (Phillips CJ and Charles JA agreeing) endorsed the following principles for sentencing youthful offenders:
iYouth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
iiIn the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
iiiA youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s 5(4) of the Sentencing Act.)[37]
[37][1998] 4 VR 235, 241.
In Azzopardi, Redlich JA (Coghlan and Macaulay AJJA agreeing) stated that there are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration.[38] He summarised those considerations as follows:
First, young offenders being immature are therefore ‘more prone to ill‑considered or rash decisions’. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. …
Secondly, courts ‘recognise the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending. …
Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.[39]
[38](2011) 35 VR 43, 53 [34].
[39]Azzopardi (2011) 35 VR 43, 53–4 [34]–[36] (citations omitted).
In Azzopardi, Redlich JA also recognised that, as the level of seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effects of the offender’s youth. However, only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[40]
[40]Azzopardi (2011) 35 VR 43, 57 [44].
Moreover, this Court has acknowledged that youth must be given less weight as a sentencing consideration for serious offences like intentionally causing serious injury. In Director of Public Prosecutions v Lawrence, Batt JA (Winneke P and Nettle JA agreeing) stated as follows:
[A]s the cases make clear, with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender’s youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright, take a ‘back seat’ to specific and general deterrence where crimes of wanton and unprovoked viciousness … are involved, particularly where … the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that … the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both.[41]
[41](2004) 10 VR 125, 132 [22] (citations omitted).
Parties’ submissions on ground 2
The appellant submitted that, despite being relied upon by defence counsel on the plea, the judge failed to take into account the principles in Mills and Azzopardi. He contended that, being aged 23 and 25 at time of the offending, he was a youthful offender who had very positive prospects of rehabilitation. Accordingly, he argued that his youth ought to have been given some weight.
The appellant acknowledged that the weight to be given to youth decreased as an offender’s age increased. He submitted that, although he was at the upper limit of being considered a youthful offender, the principles in Mills still had a role to play. He contended that, whilst he was doing very well in many aspects of his life — such as his work and his home ownership — in other aspects, he was still immature. He argued, by way of example, that the judge correctly characterised his understanding of the wrongfulness of his behaviour as ‘a work in progress’.
The appellant contended that, although the judge referred to defence counsel’s submission regarding the appellant’s youth,[42] he did not refer to the Mills principles in the ‘consideration’ section of his sentencing remarks and did not apply those principles.
[42]See [55] above.
The Crown submitted that the appellant’s relative youthfulness and the legal principles that it engaged were not in issue on the plea and that, at the hearing, the judge indicated acceptance of defence counsel’s submissions regarding the appellant’s youthfulness. It contended that, absent a clear statement to the contrary, it could be inferred that the judge proceeded to sentence the appellant consistently with his stated acceptance of the relevance of the appellant’s ‘relative youthfulness’.
The Crown argued that the judge’s sentencing remarks do not demonstrate that he refused to apply the principles regarding sentencing young offenders or that he reached a conclusion that those principles were not at all applicable to sentencing the appellant. Rather, it submitted that the judge made several references to the appellant’s relative youthfulness.[43]
[43]The Crown relied upon sentencing remarks [53], [71], [84]. See [55] above.
The Crown emphasised that the offending was serious, comprised a charge of intentionally causing serious injury and the appellant was at the upper end of youthfulness. It contended that, having regard to these matters, the judge gave entirely appropriate weight to the appellant’s youth.
Decision on ground 2
Ground 2 is without merit.
It was common ground at the plea hearing that the appellant’s youth was a relevant sentencing consideration, particularly in relation to the appellant’s rehabilitation, but that other sentencing principles like deterrence and denunciation had to be taken into account. The judge had the benefit of defence counsel’s written submissions which quoted the relevant principles from Mills and Azzopardi. The judge did not state anything that questioned the applicability of those principles.
In his sentencing remarks, the judge referred to the appellant’s youthfulness in the manner set out at [55] above and specifically stated that the appellant’s age contributed to his ‘very positive’ prospects of rehabilitation. The judge’s observations are consistent with the principles in Mills and Azzopardi. The fact that he did not expressly refer to those principles does not mean that he did not take them into account in sentencing the appellant.
The appellant was towards the upper end of youthfulness at the time of the offending and his offending was of a particularly egregious nature. Accordingly, his age and rehabilitation warranted less prominence in the intuitive synthesis compared to other sentencing considerations such as protection of the community, denunciation, specific deterrence, general deterrence and just punishment. The sentence imposed by the judge indicates that the judge carefully balanced these competing considerations in taking the appellant’s age into account in the exercise of the sentencing discretion.
It follows that the appellant has failed to establish that the judge erred in relation to his consideration of the appellant’s youth.
Conclusion
For the above reasons, the appeal will be dismissed.
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