Ivana Milosev v and the Queen
[2019] VSCA 121
•3 June 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0247
| IVANA MILOSEV | Applicant |
| v | |
| Respondent | |
| THE QUEEN |
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| JUDGES: | KAYE and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 May 2019 |
| DATE OF JUDGMENT: | 3 June 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 121 |
| JUDGMENT APPEALED FROM: | DPP v Milosev (Unreported, County Court of Victoria, 20 September 2018) (Judge Mason) |
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CRIMINAL LAW — Sentencing — Aggravated burglary — Theft — Recklessly cause serious injury — Conspiracy to commit theft — Plea of guilty — Applicant ordered to serve community correction order — Subsequent breach of conditions of community correction order — Applicant re-sentenced to total effective sentence of 15 months’ imprisonment with non-parole period of nine months — Whether sentences manifestly excessive — Whether sentencing judge failed to give sufficient weight to impact of family violence suffered by applicant — Whether sentencing judge failed to give sufficient weight to applicant’s prospects of rehabilitation — Whether sentencing judge erred by not deferring sentencing — Application for leave to appeal against sentence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Ms J P Kretzenbacher | Docherty Legal |
| For the Respondent: | Mr J C J McWilliams | Mr J Cain, Solicitor for Public Prosecutions |
KAYE JA
WEINBERG JA:
On 15 June 2015, the applicant pleaded guilty, in the County Court, to charges of aggravated burglary, theft, recklessly causing serious injury and conspiracy to commit theft. On 25 June 2015, she was ordered to serve a community correction order for a period of three years. In addition to the mandatory conditions contained in such an order, the applicant was also required to comply with a number of other conditions.[1]
[1]DPP v Milosev (Unreported, County Court of Victoria, 25 June 2015) (Judge Maidment) (‘Reasons No 1’).
On 29 July 2018, the applicant was charged by Corrections with breaching the order and the mandatory terms contained in it. After a plea before a judge in the County Court, the applicant was sentenced to a total effective term of 15 months’ imprisonment, with a non-parole period fixed at 9 months. That sentence was constituted as follows:[2]
[2]DPP v Milosev (Unreported, County Court of Victoria, 20 September 2018) (Judge Mason) (Reasons No 2’).
Charge on Indictment Offence Maximum Sentence Cumulation
1. Aggravated burglary [s 77 of the Crimes Act 1958] 25 years 12 months’ imprisonment
Base 2. Theft [s 74 of the Crimes Act 1958] 10 years 1 month’s imprisonment.
N/A 3. Recklessly cause serious injury [s 17 of the Crimes Act 1958] 15 years 6 months’ imprisonment. 3 months cumulative on charge 1. 4. Conspiracy to commit theft [s 321 and s 74 of the Crimes Act 1958] 10 years 1 month’s imprisonment.
N/A Breach of CCO 1. Breach of CCO [s 83AD(1) of the Sentencing Act 1991] 3 months Charge proven and no order made N/A Total Effective Sentence: 15 months’ imprisonment. Non-Parole Period: 9 months. Pre-sentence detention declared: N/A 6AAA Statement: The learned trial Judge stated that the sentence he would have imposed if the applicant had not pleaded guilty was a total effective sentence of three years’ imprisonment with a non-parole period of 18 months.
The applicant seeks leave to appeal that sentence on the following two grounds, namely:
Ground 1 — The individual sentences and total effective sentence imposed by the learned sentencing judge were manifestly excessive as the learned sentencing judge failed to give sufficient weight to the impact of the family violence suffered by the applicant, which compromised her ability to comply with the community corrections order and (b) erred in giving less weight to the applicant’s rehabilitation in comparison to considerations of general and specific deterrence, denunciation and protection of the public.
Ground 2 — The learned sentencing judge erred by not deferring sentencing before making a finding that the applicant was ‘unwilling or unable’ to comply with a further community corrections order in circumstances where the applicant had been sentenced to a community corrections order only two months earlier and had engaged with the order at the time of sentence.
Circumstances of offending
The offences, that were the subject of the first three charges on the original indictment, were committed by the applicant, in company with three co-offenders, namely, Shaun Browne, Matthew Sapiano and Amy Bonetto, on 4 July 2014. On that date, in the early morning, the applicant, with her three co-offenders, attended at premises at 46 Heather Road, Gisborne, which were occupied by Sarah Milk and her partner Darren Hall. There had previously been discussions between the four co-offenders about conducting a ‘run through’ on the property, in order to obtain drugs and money that they understood were kept at those premises.
When the applicant and her co-offenders arrived near the premises, they remained sitting in the vehicle, discussing where they considered the drugs and money were kept in the house. At that point weapons and disguises were introduced by one of the co-offenders. The applicant claimed that she was not aware that any weapons were going to be involved in the offence until that point. She declined to accept a weapon. However, Sapiano chose a bat, Browne was armed with a replica gun, and Bonetto chose a hammer. At that stage, it was discussed that the weapons were not to be used other than to scare the residents of the house. Sapiano and Browne each wore balaclavas to disguise their faces, and the applicant wore gloves.
The co-offenders and the applicant then drove to the front of the property. It was agreed that some of them would enter the premises, and that the applicant would wait for a period of ten minutes, and then enter the house through an open door. After the three co-offenders left the vehicle, the applicant waited for ten minutes, then she walked down the driveway. However, she could not see her co-offenders. She returned to the vehicle and found that they were already back there. Sapiano, Browne and the applicant then walked down the driveway again. Sapiano and Browne kicked the back laundry door in, and the applicant went and hid behind a water tank. As she did so, she could hear fighting, and she could hear one of the occupants, Darren Hall, screaming through the open laundry door. The applicant moved to the front of the house, and could see Browne and Sapiano scrimmaging and removing electronic goods.
The co-offenders and the applicant then left the house and returned to the vehicle. They drove back to Craigieburn. While they were en route, they discussed what had occurred. It was said that Hall had come out and swung a bat at Sapiano and Browne, and that, in response, Hall had been hit on the head. It became clear, from what Sapiano said, that Hall had been badly injured as a consequence of that assault on him.
A few weeks after the offending, the applicant learnt from Bonetto that Hall was in a critical condition and that he might have brain damage. It was at that point that the applicant and Bonetto decided to burn the clothing that they had worn, during the offending, in a fire place.
It appears, from the victim impact statement that was tendered on the plea, that Mr Hall suffered quite serious head injuries. He stated that he had a serious ‘acquired brain injury’, which affected his speech, his moods, his memory, his physical mobility and his ability to sleep. He also believed it had affected his vision. In addition, a previous back injury had been exacerbated, so much so that he needed to use a walking frame in order to be able to walk over distances. He needed to take significant amounts of medication to control the resultant pain in his back.
The offence, that was the subject of the fourth charge (conspiracy to commit theft), was committed by the applicant on 10 August 2014. Bonetto had been told by an associate that there was a large amount of money at Sarah Milk’s property. On 10 August 2014, Bonetto, the applicant and an associate of Bonetto planned to attend Milk’s property to steal the money that was kept in a vending machine outside the house. Accordingly, they drove to the area and disguised their faces with scarves and bandanas. As they walked through the paddocks of a neighbour in order to get to Sarah Milk’s property, they found that there were some people present. A neighbour approached them and asked them what they were doing. When the police attended and attempted to check the identifications of the applicant and her co-offenders, they returned to their vehicle and departed.
Subsequently, on 7 September 2014, the applicant attended Kyneton Police Station in order to make a confession as to her role in the offending. She participated in an electronic record of interview on that day, and provided police with signed statements on 10 September 2014. Subsequently, she made three further statements, which implicated her co-offenders. At the plea, the applicant gave an undertaking to give evidence against them. However, ultimately she was not required to do so as they each pleaded guilty to the offending.
The plea in respect of the offences charged
The applicant was born in August 1989, and at the time of the offending she was almost 25 years of age. She had no previous convictions.
The applicant’s parents separated when she was two years of age. Her mother remarried twelve months later. The applicant, and her siblings, had a financially stable childhood, living on a 50 acre property in Woodend, and subsequently on a 70 acre property in Gisborne. The applicant attended primary school at Woodend and then Gisborne, and undertook her secondary education at Gisborne College. She completed Year 12 level, and then undertook two years of a primary teaching degree at La Trobe University at Bendigo. After abandoning those studies, the applicant worked for a period of six years at a coffee shop at Tullamarine Airport.
At the age of 20 the applicant commenced a relationship. In due course, the applicant’s partner became quite violent towards her when he was intoxicated. At about the same time the applicant commenced using illicit drugs. At the age of 20 she was introduced to cannabis by a friend. Three years later, she started to also use MDMA and methamphetamines. At the time of the offending, she had not been involved in any drug and alcohol treatment programs.
Reasons for sentence in respect of the offences charged
In sentencing the applicant, and her co-offender, Browne, the sentencing judge noted that gross violence had been inflicted on Mr Hall pursuant to the joint criminal enterprise to which they were each a party. However, the judge accepted that neither Browne nor the applicant had engaged in actual acts of violence, and that the nature of the assault that was perpetrated on Hall went beyond the degree of violence that was contemplated by the joint venture. Nevertheless, the judge considered that the offence of aggravated burglary was a very serious offence.[3]
[3]Reasons No 1 [8]–[10].
The judge noted that the applicant did not have any previous convictions. His Honour also accepted that the applicant had been ‘drawn’ into the enterprise by Bonetto, who was the prime motivator and organiser of the criminal enterprise. He took into account, as a mitigating circumstance, that the applicant had cooperated with the prosecution, and had given an undertaking to give evidence in accordance with the statements that she had provided to the police. He considered that the applicant had good prospects of rehabilitation.[4]
[4]Reasons No 1 [16]–[19].
Accordingly, the judge ordered the applicant to serve a community correction order for three years. In addition to the mandatory terms, the order contained the following further terms :
(1)The applicant must perform 350 hours of unpaid community work over the three year period as directed by the regional director;
(2)The applicant must be under the supervision of a community corrections officer for a period of three years;
(3)The applicant must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;
(4)The applicant must undergo any mental health assessment and treatment as directed by the regional manager;
(5)The applicant must participate in programs and/or courses that address factors relating to her offending as directed by the regional manager.
Contraventions of community correction order
The applicant partially complied with the terms of the community correction order for the first six months. In particular, she successfully completed two courses of drug counselling. However, she only engaged sporadically with Community Corrections, including engaging with a psychologist when she felt she needed to do so. She failed to perform any unpaid community work. She fully disengaged with compliance with the requirements of the order as from May 2017.
In addition, during the term of the community correction order, the applicant was involved in substantial further offending, including trafficking and possession of methylamphetamine, possession of MDMA, dealing with the property suspected of being the proceeds of crime, possession of cartridge ammunition, and committing an indictable offence while on bail. The fourteen breaching offences were committed on four separate dates between September 2017 and May 2018. On 6 July 2018, the applicant was sentenced, by the Magistrates’ Court at Castlemaine, in relation to those offences to a further community correction order for a period of eighteen months, with conditions for supervision, treatment and rehabilitation.
Plea on proceeding for contraventions of community correction order
On the plea in the present case, counsel for the applicant contended that the applicant’s capacity to fully comply with the terms of the community correction order was affected by domestic violence perpetrated on her by her partner. A report of Dr Wijayathilaka was tendered. The report noted that the applicant attended his surgery on 2 November 2017 complaining of injuries caused by an assault by her partner. On examination, the doctor who examined the applicant noted multiple bruises to the head, thighs, knees, legs, forearm, upper back and hip. An x-ray was taken of her whole body, but it did not reveal any fractures. On 4 January 2018, the applicant re-attended the surgery again claiming to have been assaulted by her ex-partner. Dr Wijayathilaka noted multiple bruises to the arms, leg, and hip and abdomen. Photographs of the applicant’s injuries were tendered on the plea.
During that period, police twice obtained intervention orders on the applicant’s behalf against her partner. At one point, the applicant travelled to Queensland to stay with her parents, in order to escape the violence of her partner. However, when she returned, she drifted back into the abusive relationship with her partner, and continued to engage in heavy drug use. Ultimately, the applicant was able to desist from using drugs after she was remanded in custody in relation to the subsequent offending, for which she was sentenced by the Castlemaine Magistrates’ Court. It was contended, on the plea, that the applicant had complied with the conditions of the community correction order imposed by the Castlemaine Magistrates’ Court.
Reasons for sentence
In his reasons for sentence, the judge noted that the original sentence imposed on the applicant was ‘compassionate and moderate’, which, for not inappropriate reasons, had given the applicant’s rehabilitation prospects prominent emphasis, notwithstanding the serious nature of the offending.[5] The judge noted the nature and extent of the failure of the applicant to comply with the community correction order, and considered that the applicant was either ‘unwilling or unable’ to comply with a further community correction order.[6] His Honour concluded:
In my view, the emphasis that was otherwise given to your rehabilitation is reduced over other sentencing considerations of specific and general deterrence, denunciation and the protection of the public.
I accept the matters in mitigation that were accepted by [the original sentencing judge] and also the fact that some consideration should be given for the part compliance that you did make with the order. In my view, the purpose or purposes for which the sentence was imposed cannot be achieved without a sentence of imprisonment.[7]
[5]Reasons No 2 [8].
[6]Reasons No 2 [16].
[7]Reasons No 2 [18]–[19].
Ground 1 — manifest excess
In support of ground 1, counsel for the applicant submitted that the exhibits, tendered on the plea, demonstrated that the applicant’s ability to comply fully with the conditions of the community correction order had been seriously compromised due to the violence perpetrated upon her by her partner. It was contended that during the period of the community correction order, the applicant had been effectively ‘imprisoned’ and subjected to violence by her partner, so that the police were required to make two applications for intervention orders in order to protect her. At the time of the plea in respect of the contravention of the community correction order, the applicant was in a safe environment. She had attended three drug and alcohol appointments, and she was engaging with her new counsellor. It was submitted that, accordingly, the judge failed to give adequate weight to the connection between the applicant’s failure to comply with the community correction order and the violence to which she had been subjected.
In support of that submission, counsel provided to the Court a comprehensive and helpful chronology, which set out the relevant events, including the offences, the dates upon which the applicant had failed to comply with the terms of the community correction order, and the occasions on which she had made complaint of violence perpetrated against her by her then partner. Counsel submitted that the documentation, tendered to the sentencing judge, illustrated the nature of the violence to which the applicant was subjected throughout the course of the community correction order. She further submitted that that documentation did not represent the totality of the violence, but, rather, it provided instances of it.
In essence, it was contended, the applicant was the captive of her partner throughout the term of the community correction order, and she found it difficult to leave him and break away from the drug infected environment in which she was then living. It was in that context, counsel submitted, that the breaches of the community correction order took place, and the applicant engaged in further offending. Thus, it was contended that there was a strong body of evidence, put before the sentencing judge, which provided an appropriate explanation for the failure of the applicant to comply with the conditions of the community correction order.
Further, it was contended that the judge failed to give sufficient weight to the importance of rehabilitating the applicant. At the time of sentencing for the breach of the community correction order, the applicant was in a stable environment, and she was well placed to comply with the terms of the order. In those circumstances, it was contended, the sentence, imposed on the applicant, was manifestly excessive.
In response, counsel for the respondent noted that the original offending by the applicant was particularly serious. The aggravated burglary was committed by the applicant in company with three other persons, each of whom were carrying a weapon, in circumstances in which the applicant knew or believed that there would be some person or persons inside the house in Gisborne. The offending was premeditated and the use of violence was in the contemplation of those who were involved in the aggravated burglary. Thus, it was contended, the original sentence imposed on the applicant was lenient, and the judge, in his sentencing remarks, made it plain that if the applicant were to breach the order, she could expect a very substantial term of imprisonment.
Counsel for the respondent further noted that the applicant had committed a number of substantial breaches of the community correction order, involving a significant amount of unacceptable absences from supervision, the failure to complete any community work, the failure to attend program and administrative review hearings, and the commission by her of an extensive number of relevant further offences during the period of the community correction order. Counsel acknowledged that there was evidence that, during the period of the community correction order, the applicant had been subjected to domestic violence perpetrated by her partner. However, he also noted that during that period the applicant had available to her the support of those who were responsible for supervising the community correction order. In particular, she had access to drug and alcohol counselling, mental health support and offender behaviour programs. In those circumstances, it was submitted, the judge was justified in concluding that the applicant had not demonstrated herself to be willing or able to comply with a further community correction order that was contended for on her behalf. Counsel further submitted that, given the circumstances of the offending, the sentence of imprisonment imposed by the judge was not demonstrated to be manifestly excessive. Rather, he contended, the sentence was quite lenient.
In order to establish that the sentence imposed on the applicant was manifestly excessive, it must be demonstrated that the sentence was wholly outside the range of sentencing options available to the sentencing judge.[8] In other words, the sentence, that is the subject of the application for leave to appeal, must be shown to be so excessive as to bespeak error by the sentencing judge, notwithstanding that no specific error can be identified in the reasons for sentence given by the judge.[9] In that way the test, for manifest excess, is a stringent one, which is difficult to make out.
[8]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[9]House v The King (1936) 55 CLR 499, 505.
In analysing the competing submissions in respect of ground 1, the starting point is that the original offending by the applicant was particularly serious. As counsel for the respondent has pointed out, the offences, for which the applicant was sentenced, were committed by her in company with three other persons, each of whom were armed at the time. Two of her co-offenders wore disguises. It was contemplated that violence would be used in order to achieve the purpose of the aggravated burglary. The circumstances in which entry was gained into the house — by battering down the door and bursting in with weapons — were frightening, and were deliberately calculated to intimidate the occupants of the house. The victim impact statements of Mr Hall and Ms Milk eloquently demonstrate the level of fear to which each of them was subjected during the burglary.
Equally, the offence of recklessly causing serious injury is a serious offence. By her guilty plea, the applicant accepted that she was aware that the criminal venture, to which she was a party, would probably involve the infliction of serious injury to an occupant of the house. It is clear from Mr Hall’s victim statement that he has indeed suffered significant injury as a result of that offence which will have lasting effects on his life.
In imposing the community correction order, the original sentencing judge made it plain to the applicant that if there was any breach by her of the terms of that order, she would face the prospect of a very substantial term of imprisonment. The applicant entered into, and undertook the terms of, the community correction order, fully cognisant of her obligations to comply with each of the terms of it, and fully aware that if she failed to comply with the order, she may well be sentenced to a substantial term of imprisonment.
Notwithstanding the warning given by the original sentencing judge, the applicant committed multiple and serious breaches of the terms of the order. The first failure to comply with the order occurred as early as 27 July 2015. Following that, there were repeated failures by her to attend appointments for supervision and programs. She failed, completely, to perform any of the unpaid community work that she was required to undertake. Her engagement with the terms of the order was, at best, sporadic. Ultimately, she fully disengaged from any compliance with the order from May 2017.
In addition, the applicant, on four separate dates, committed further offences, for which she was convicted at the Castlemaine Magistrates’ Court. As mentioned, the offending included possession and trafficking of methylamphetamine, possession of the drug Ecstasy, possession of GBH, commission of an indictable offence while on bail, dealing with property suspected of being the proceeds of crime, possession of cartridge ammunition, and failing to answer bail. As the sentencing judge in the present case noted, those offences are serious in the context of the very serious offences for which she had been originally sentenced, and in respect of which the community correction order had been imposed.
Taken together, the multiple failures of the applicant to comply with the conditions of the community correction order, and her serious re-offending, amounted to fundamental and repeated contraventions by her of the community correction order on which she was placed by the original sentencing judge. It is in that context that the sentencing judge reached the conclusion that the applicant was either unwilling or unable to comply with a further community correction order.
In forming that conclusion, the judge accepted that there was evidence that, during the period of the community correction order, the applicant’s personal circumstances had become difficult for her. In that respect, there was evidence, tendered on the plea in the present case, that the applicant had been subjected to domestic violence by her partner, and twice she had required medical treatment for the injuries inflicted on her by him. The difficult circumstances, in which the applicant was living, were also demonstrated by the two intervention orders that were taken out by the police on her behalf.
As mentioned, at the forefront of the submissions made by counsel for the applicant, in support of ground 1, was the proposition that the applicant had been subjected, throughout the term of the community correction order, to such a degree of violence and intimidation by her partner that she was rendered incapable of complying, satisfactorily, with the terms of the order. The central question, then, is whether the materials that were tendered to the judge were sufficient to demonstrate that, despite the conclusion of his Honour, the applicant had been willing to comply with the terms of the condition, and that, now that she was living away from her abusive partner, she would be capable of complying with the terms of a further community correction order.
The evidence, tendered on the plea, certainly indicated that the applicant’s circumstances were attended by some real difficulty. However, as the following analysis demonstrates, it did not adequately explain the very substantial level of disengagement by the applicant with the various conditions of the community correction order. Nor did it sufficiently explain or sufficiently justify the commission by her of the further offences.
The first recorded instance of family violence comprised an application that was made for an intervention order on behalf of the applicant, on 29 August 2014, by Victoria Police. The application noted that the applicant wanted to distance herself from her partner with whom she lived, that she was threatened by him, and that when she appeared at the police station, she appeared shaken and visibly scared.
That application was made after the offending that was the subject of the original charges, but before the applicant was sentenced in relation to them. It is relevant to note, in that respect, that at the plea made on behalf of the applicant at that time, no mention was made of any family violence to which the applicant had been subjected, and which might have accounted for her involvement in the offending, or her addiction to methylamphetamine. It is also relevant to note that, during that period, the applicant voluntarily made four statements to the police detailing the involvement of herself, and her co-offenders, in the offence.
It will be recalled that the community correction order was imposed on the applicant on 25 June 2015. Her first non-compliance with that order occurred just one month later, when the applicant failed to attend for supervision. The contravention report noted that the applicant initially demonstrated positive compliance and engagement with the terms of the order. However, it is noteworthy that in the period from 17 September 2015 to 11 December 2015, she failed to attend for community work on nine separate occasions. The reason that she provided for two of those occasions was transport issues, and for two other occasions it was wrist pain. She failed to provide any reason for five of the other occasions on which she did not attend for community work. Between 8 December 2015 and 15 February 2016, she failed to attend for supervision on five occasions. On one of those occasions, she cited transport issues, but she did not provide any reason for her failure to attend on four of them.
On 17 February 2016, a further application was made on behalf of the applicant for an intervention order to protect her from her partner. The application noted that the applicant and her partner had been in a personal intimate relationship. On 17 February 2016, the applicant and her partner had been at his factory and taken drugs. When the applicant received a text message from an unknown party, her partner saw that message, became angry, and threw the applicant’s telephone onto the coffee table. He told the applicant to leave. When the applicant delayed in obeying that instruction, the partner attempted to move her out, grabbing her by the hair and pulling it. The partner then telephoned the police to request them to remove the applicant. When the police attended, the partner made full admissions to pulling the applicant’s hair. The applicant did not make a statement to the police.
In the period between January 2016 and September 2016, the applicant accrued fourteen unacceptable absences from supervision. She also had periods of complete disengagement with the community correction services, and when she re-engaged she reported that she was in an abusive and controlling relationship, in which at times she had been housebound by her former partner. The applicant apparently moved home to live with a friend in Seymour in late June 2016. During that time, she attended sporadically on the community correction services. However, from September 2016, she totally disengaged from compliance with the community correction order for a period of two months.
On 28 November 2016, the applicant re-engaged with community correction services. She stated that she had returned from Seymour because her friends had been drug users, and she had been ‘couch surfing’ or living in the vehicle of her abusive ex-partner. At one stage, she had moved in with her mother.
After the applicant re-engaged with the service, she was required to report for supervision on a weekly basis. The applicant re-commenced drug treatment in January 2017, and she was also linked back in with Mental Health Support. It appears that, at that time, the applicant’s ex-partner was detained in residential rehabilitation.
In March 2017, the applicant moved again to Seymour and her file was transferred there. However, she failed to engage with the Seymour office, attending only one supervision appointment. She missed a court date for the contravention of a community work permit. A bench warrant was issued. On 2 May 2017, the Seymour office was informed that the applicant had left the residence in Seymour, and her whereabouts were unknown. As noted, the applicant disengaged completely from any further compliance with the community correction order from May 2017.
In July 2017, the applicant was subjected to a further act of violence by her ex-partner, and photographs were tendered to the Court depicting quite extensive bruising that she sustained in that assault. As already mentioned, she attended the Goonawarra Medical Centre for treatment for injury sustained in further assaults on 2 November 2017, and 4 January 2018.
As the foregoing review of the chronology reveals, the applicant was, quite clearly, subjected to domestic violence at the hands of her ex-partner during parts of the period of the community correction order. It can be readily accepted that the instances of family violence, that were the subject of evidence, did not constitute the totality of the assaults committed on the applicant by her ex-partner, or his mistreatment of her. Nevertheless, and giving full weight to that consideration, the materials that were placed before the judge, and which have been outlined in some detail before us, do not satisfactorily explain the very substantial and repeated failures by the applicant to comply with conditions of the community correction order imposed on her.
The applicant without appropriate reason failed, on multiple occasions, to undertake any community work, and on many occasions she failed to attend supervision and other appointments. She totally disengaged from the order for a number of periods of time, and entirely from May 2017. As counsel for the respondent correctly observed, during the period of the order, the applicant had available to her the services that were provided in support of the community correction order, had she seen fit to avail herself of them. While it is understandable that the applicant, under the pressure of the domestic circumstances in which she was living, relapsed into drug use, nevertheless it seems clear that she did, from time to time, manage to extricate herself from the domestic circumstances in which she was abused. Taking those matters into account, and giving full weight to the impact of the conduct of the applicant’s partner towards her, nevertheless we are not persuaded that the judge erred in concluding that the applicant was either unwilling or unable to comply with a further community correction order that was sought on her behalf at the plea.
As this Court has pointed out in Boulton v The Queen,[10] community correction orders are punitive, but they are also directed to ensuring the rehabilitation of the particular offender. It is in the interests, not only of the individual offender, but also the community, that the courts give adequate attention to the need to rehabilitate offenders, particularly those such as the applicant who have become addicted to illicit drugs. However, on the other hand, in a case such as this, which involved the commission by the applicant of serious offences, the grant of a community correction order was, as the sentencing judge in the present case has noted, a merciful disposition, directed as it was to the rehabilitation of the applicant. As this Court has made plain in cases such as Director of Public Prosecutions vMeyers,[11] the offence of aggravated burglary is, by its very nature, a serious offence. The maximum sentence for such an offence is 25 years’ imprisonment. In offences of that nature, the sentencing purposes of general deterrence, specific deterrence and denunciation are important, and must be given due weight. In the present case, and giving appropriate weight to those sentencing requirements, it cannot be maintained that the sentence of imprisonment imposed by the sentencing judge was manifestly excessive. On the contrary, the sentence imposed in this case was entirely appropriate in all the circumstances.
[10](2014) 46 VR 308.
[11](2014) 44 VR 486.
Ground 2 — judge not deferring sentence
By ground 2, the applicant submitted that the judge erred in failing to exercise his power to defer sentencing, pursuant to s 83A of the Sentencing Act, in order to enable the judge to be able to assess whether the applicant would be willing and able to comply with a further community correction order.
Counsel for the applicant contended that it had been demonstrated to the judge that the applicant’s ability to comply with the community correction order was directly referable to the nature of the domestic environment in which she was living. At the time of the sentencing for the breach of the community correction order, she had re-engaged, by attending three drug and alcohol appointments, and seeking a mental health plan from her general practitioner. The applicant’s abusive partner was on remand, so that the applicant was well placed to be able to demonstrate that she could, and would, comply with the terms of a community correction order imposed on her by the Castlemaine Court.
In response, counsel for the respondent submitted that at no stage did counsel for the applicant, on the plea, make application to the sentencing judge that sentencing be deferred. The multiple breaches by the applicant of the original community correction order amply demonstrated that she was unable or unwilling to comply with the conditions of a community correction order. In those circumstances, it was submitted, the judge was entitled to conclude that it was appropriate to proceed to sentence in the manner in which he did.
Counsel for the respondent is clearly correct in pointing out that counsel for the applicant, on the plea, did not submit that the judge ought to defer sentencing under s 83A of the Sentencing Act. Certainly, the prosecutor noted that the Sentencing Act made provision for the deferral of sentencing in certain circumstances. The prosecutor did not submit that the judge should take that course, but he did indicate that it might be ‘something that ought to be explored in greater detail’. In response, counsel for the applicant’s primary submission was that the judge should vary the original community correction order by extending it pursuant to s 83A(1A) of the Sentencing Act, but he noted that ‘the deferral option may have utility’.
In those circumstances, it is clear that counsel, on the plea, did not submit or request that the judge defer sentence under s 83A of the Sentencing Act. In the absence of a specific submission made by counsel for the applicant, the judge was not required to give consideration to the course now contended for on this application, namely, deferral of sentencing.
Further, and in any event, as already discussed, in view of the multiple and flagrant breaches by the applicant of the conditions of the community correction order originally imposed on her, the judge was fully justified to conclude that the applicant was either unwilling or unable to comply with a further community correction order. In light of that conclusion, it is not possible to sustain the proposition that the failure of the judge to defer sentencing, under s 83A, constituted an error by him in the exercise of the sentencing discretion. In short, no sufficient circumstances were put to the judge which would have required him, in the proper exercise of the discretion, to defer sentencing. The fact that the judge proceeded to sentence the applicant, and that he did so on the basis of the conclusion made by him of the lack of capacity or desire of the applicant to fulfil the conditions of a community correction order, could not be demonstrated as being erroneous.
In those circumstances, ground 2 of the application for leave to appeal must fail.
Summary of conclusions
For the foregoing reasons, the applicant has failed to make out either of the proposed grounds of appeal. The application for leave to appeal must be refused.
Postscript
Before we depart from this matter, we take the opportunity to acknowledge the assistance provided to the Court on this application by counsel and solicitors who acted for the applicant on a pro bono basis. The written and oral submissions that were presented to the Court were of the highest standard, and were clearly the product of a substantial amount of work and careful analysis undertaken by those acting for the applicant. In representing the applicant pro bono, counsel and her instructing solicitors acted in accordance with the highest traditions of the legal profession. The Court was much assisted by, and is grateful for, their helpful contribution.
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