Kanakaris v The Queen
[2010] VSCA 120
•28 May 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2007 0916
| ZACHARIAS KANAKARIS |
| v |
| THE QUEEN |
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| JUDGES | NEAVE and REDLICH JJA and COGHLAN AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 27 October 2009 |
| DATE OF JUDGMENT | 28 May 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 120 |
| JUDGMENT APPEALED FROM | R v Kanakaris (Unreported County Court of Victoria, Judge Hampel, 22 November 2007) |
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CRIMINAL LAW — Offences committed against family members — Separate incidents — Common assault — Causing serious injury intentionally — Aggravated burglary — Threat to kill — Kidnapping — Appeal against sentence — Manifest excess — Whether sentencing judge erred in fixing non-parole period — Sentencing Act 1991 (Vic) — Whether sentencing judge erred in orders for accumulation — R v Foster [2007] VSCA 85—Appeal allowed — New non-parole period imposed.
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| Appearances: | Counsel | Solicitors |
For the Applicant | Mr C B Boyce | Defteros Lawyers |
For the Crown | Mr B L Sonnett | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
I agree with Coghlan AJA, for the reasons that he gives, that ground 7 is the only ground of appeal which succeeds. I also agree that the non-parole period imposed on Mr Kanakaris should be reduced from seven to six years.
I wish only to make some brief remarks about the complaint of manifest excess (and the particulars of that complaint in grounds 1 to 8).
The offender subjected his long term de facto partner to appalling physical violence, humiliation and abuse. He also exposed his sister and mother to terrifying physical violence and abuse and assaulted his four year old daughter. The events of 16 and 17 August 2005 involved a sustained series of sadistic acts against Ms Mitchell. Both she and the appellant’s mother and his sister believed that they were at risk of death.
Despite Ms Mitchell’s courage in moving away from the offender and obtaining an intervention order, the offender pursued her. On 8 November 2005 the offender tricked his daughter into letting him into the house and enlisted another man’s help in removing the children. He then subjected his former de facto partner to violence and threats that he would kill her, and prevented her from escaping him for a significant period. Notwithstanding the mitigating circumstances to which the learned sentencing judge referred, the shocking violence which the offender inflicted on those he professed to love required strong denunciation and considerable emphasis on both general and specific deterrence. The effects on Ms Mitchell are movingly described in her victim impact statement. The offender should also appreciate that his behaviour may also have serious long term effects on his children.
I note also that the orders for cumulation which her Honour made on counts 11 and 12 were relatively modest, when account is taken of the fact that a presumption of cumulation applied to those counts,[1] on which the appellant was
sentenced as a serious violent offender.
[1]Part 2A of the Sentencing Act 1991.
REDLICH JA:
Leave to appeal should be granted and the appeal allowed substantially for the reasons given by Coghlan AJA. I agree with the orders that he proposes.
COGHLAN AJA:
The applicant, Zacharias Kanakaris, pleaded guilty to four counts of common assault (counts 1, 3, 5 and 7), three counts of causing injury intentionally (counts 2, 4 and 6), two counts of making a threat to kill (counts 9 and 11) and counts of aggravated burglary (count 8), kidnapping (count 10) and causing serious injury intentionally (count 12). After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced him as follows:
Count
Offence
Term
Cumulation
1
Common assault
6 months’ imprisonment
3 months
2
Causing injury intentionally
12 months’ imprisonment
2 months
3
Common assault
6 months’ imprisonment
1 month
4
Causing injury intentionally
18 months’ imprisonment
6 months
5
Common assault
6 months’ imprisonment
1 month
6
Causing injury intentionally
12 months’ imprisonment
4 months
7
Common assault
6 months’ imprisonment
1 month
8
Aggravated burglary
4 years’ imprisonment
12 months
9
Threat to kill
2 years’ imprisonment
3 months
10
Kidnapping
5 years’ imprisonment
Base sentence
11
Threat to kill
2 years’ imprisonment
3 months
12
Causing serious injury intentionally
2 years’ imprisonment
12 months
The applicant was sentenced as a serious violent offender on counts 11 and 12 pursuant to Part 2A of the Sentencing Act 1991. Further, he pleaded guilty to one count of breaching an intervention order, for which he was sentenced to 12 months’ imprisonment. The judge ordered that three months of that sentence be served cumulatively on the base count, count 10.
The orders for cumulation made by her Honour resulted in a total effective sentence of nine years and three months’ imprisonment. Her Honour fixed a non-parole period of seven years’ imprisonment.
The applicant now seeks leave to appeal against that sentence, leave having been refused by Nettle JA on 26 September 2008.
Circumstances of the offending and the offender
The applicant was aged 36 at the time of offending and his de facto partner, Tricia Mitchell, the primary victim, was aged 34. The couple had been living in a de facto relationship for about seven years and had three young children together, aged six, four and three. The majority of the offences were committed against Ms Mitchell on 16 and 17 August 2005, and 8 November 2005. The applicant’s daughter, Zoe Kanakaris, his mother, Flora Kanakaris and sister, Angelique Barreca, were also victims of his offending.
The applicant and Ms Mitchell lived in the rear unit of a block of two located in Thomastown. His sister and her de facto partner lived in the front unit.
On the morning of 16 August 2005, the applicant became physically violent towards Ms Mitchell during an argument and claimed that she had ruined his life. The applicant telephoned his mother, demanded money from her and threatened to kill her, Ms Mitchell and the children. During this call the applicant struck his four year old daughter, Zoe, over the head with his mobile phone, that action forming the basis for count 1.
The applicant, Ms Mitchell and their two youngest children, Zoe and Nicholas (aged five) then went out in a car to go shopping. At one stage while the car was stationary, the applicant punched Ms Mitchell in the face and ripped a handful of hair from her scalp, while calling her a ‘slut’ and a ‘dirty mole’. This conduct formed the basis of count 2.
Upon returning home, the applicant again verbally abused Ms Mitchell and kicked her in the leg, causing her considerable pain. This act constituted count 3.
The applicant then demanded that Ms Mitchell show him the paperwork she had submitted to seek emergency accommodation for herself and their children. While he waited for her to retrieve the documents, the applicant went to the front unit and demanded that his sister come out and view the documents.
In the presence of Ms Barreca and two of her male friends, the applicant drew a cross on the ground outside the units, dragged Ms Mitchell from the unit and made her stand on the cross. He then punched her to the head and kicked her in the leg, holding her hair and shaking her until she fell down. Once on the ground, Ms Mitchell was held down and had her head driven into the concrete by the applicant, causing her scalp to split open and bleed profusely. The applicant was verbally abusing Ms Mitchell at the same time, saying that ‘[s]he’s gonna die’ and threatening to kill her. The applicant, Ms Mitchell and Ms Barreca then went inside the unit where the applicant continued his verbal and physical abuse of Ms Mitchell, slapping her a number of times before eventually falling asleep on the couch.
The applicant subjected Ms Mitchell to further physical and verbal abuse upon waking the next morning. He forced her to wash his back in the shower and punched her in the face because he was not happy with the clothes that she had given him to wear.
Sometime later that morning, the applicant’s mother and sister visited the applicant and Ms Mitchell’s unit. Mrs Kanakaris was concerned about the welfare of Ms Mitchell and the children and had checked on her daughter, Ms Barreca, in the front unit before visiting Ms Mitchell and her grandchildren in the rear unit. Shortly after their arrival, the applicant returned home and became aggressive toward his mother, sister and de facto partner, using what the sentencing judge described as ‘disgraceful, insulting and demeaning language’ to insult them.[2] He threatened to kill all three of them as well as the children. As Mrs Kanakaris attempted to rise from the couch, the applicant head butted her in the face, causing her to wet herself in fear. He then rapped his knuckles on her head and told her that he was going to kill her, his father, Ms Mitchell and the children. The applicant also squeezed her jaw so hard that she felt dizzy. These acts constituted count 5.
[2]Reasons [12].
The applicant then directed his attention to his sister, whom he struck a number of times. He worked himself into a rage, destroying a door and using a sledge hammer to smash a coffee table he had dragged outside. He returned to the house and dragged Ms Mitchell into a hallway where he punched her in the ribs a number of times. These acts constituted count 6. Ms Mitchell, apparently fearing death, told the applicant’s mother and sister to run away and to ‘[p]lease tell my parents I love them’.
Mrs Kanakaris, after also being told to go away by her daughter, Ms Barreca, managed to escape in her car. The applicant chased after her as she drove away. As his demands that she stop the car were not met, the applicant went into his sister’s house. With his sister present and holding his daughter who was screaming for her grandmother, the applicant called his mother and threatened to kill his sister if she did not return.
The applicant drove away in his car for a short while and returned to his sister’s house, smashing the door to gain entry. After threatening to kill her if she did not call their mother, he began to choke her. Ms Barreca believed that he would kill her. This conduct constituted count 7.
Eventually the applicant left his sister’s house and the premises. Ms Barreca, her mother and Ms Mitchell then attended the police station and gave statements to police. All three women were in a state of high distress and had red marks and bruising on their faces, necks and arms.
The prosecution opening described the injuries suffered by Ms Mitchell, Ms Barreca and Mrs Kanakaris as follows:
[T]he complainant suffered a large cut to the back of her head, bruising to her face and torso, a cut and swollen lip. Her hands were cut and she also had swollen and blackened eyes, and was experiencing difficulties in walking and breathing.
Barreca had red marks on her neck and face while Flora Kanakaris had red marks on her neck, face and head, and marks on her forearms.
On the same day, police applied for and were granted a warrant in respect of the applicant and interviewed him later that evening. The applicant denied grabbing or hitting his daughter but agreed he had given Ms Mitchell a ‘backhander’, smashing her head on the ground, head-butting his mother and assaulting his sister. He was bailed to appear before the Magistrates’ Court the next day in relation to the complaint and warrant, and to 3 October 2005 in relation to the criminal charges.
The applicant ceased contact with Ms Mitchell and their children after 23 August 2005. Ms Mitchell and the children spent several weeks in communal refuges before being moved to a temporary safe house in Yarraville. Ms Mitchell was of the belief the applicant did not know where she and the children were living.
On 23 September 2005 the Magistrates’ Court granted Ms Mitchell an intervention order against the applicant. The order, among other things, prohibited the applicant from contacting or approaching Ms Mitchell unless accompanied by police, with access to the children to be supervised by the Department of Human Services. The order was to remain in force for one year.
The applicant discovered where Ms Mitchell and the children were living and at about 8 pm on 8 November 2005, he arrived at the house. He knocked on the front window and asked his youngest daughter, Zoe, to open the window for him. He removed the fly screen after she did so and climbed through the window. This conduct formed the basis of count 8.
He then located the applicant in the laundry and grabbed her by the throat, telling her to ‘keep her fucking mouth shut’. He told her he had a gun in his backpack and was going to kill her, constituting count 9. The applicant was very angry and continued yelling at Ms Mitchell. She was so afraid that she wet her underwear and stockings.
The applicant had arranged for an associate of his, Panateis Dimakakis, to wait outside in a car while he entered the house and to remove the children on his command. After phoning Mr Dimakakis, he lead Ms Mitchell from the laundry to the bathroom and threw her across the side of the bath. He choked her for approximately one minute and yelled at her as she struggled to breathe. Ms Mitchell was then thrown against the wall and punched in the face.
The applicant then took Ms Mitchell to the room where the children were watching television. The applicant told his eldest son, Ioannis, that they were going on a ‘sleepover’ and instructed him to pack a bag for himself and his siblings. When this was done, Mr Dimakakis drove the children away, leaving Ms Mitchell, who was in fear for her life, alone with the applicant.
The applicant and Ms Mitchell left the house in his car, after she had changed her clothes (at his direction) and collected her purse and other belongings. He had been holding her hand since the children and Mr Dimakakis left, and once inside the car, he produced a shotgun from his backpack and placed it between the passenger seat and the console, for ‘easy access if I have to get it in a hurry’. This conduct constituted count 10.
He then told Ms Mitchell that he was going to kill her and then himself and said ‘if I can’t have you, no one will’. This threat constituted count 11.
The applicant then drove to a car-park at Flemington racecourse. While verbally abusing Ms Mitchell, he punched her four or five times and pulled a clump of hair from her scalp. Ms Mitchell, again fearing for her life, wet herself and asked whether she could visit the toilet. He agreed but held her hand to prevent her from escaping.
They then left the car-park, driving towards Brunswick. After the applicant spoke with Mr Dimakakis on the phone in Greek, he parked the car in a street in Brunswick. Ms Mitchell, seeing the gun beside the applicant and the darkness of the street, panicked and started yelling at him. He responded by starting the car and driving away. After a short time he parked the car in Lygon Street and invited Ms Mitchell to take the gun and shoot him if she thought that the applicant was ‘going to do something’. When she refused to hold the gun, he produced a knife from his pocket and invited her to stab him. She panicked and told him to put the knife away.
The applicant drove Ms Mitchell to a McDonald’s restaurant where they met Mr Dimakakis. Mr Dimakakis punched the applicant upon hearing that the applicant had been beating Ms Mitchell. Mr Dimakakis then left after receiving a telephone call.
After accepting the applicant’s offer of a valium tablet to calm her nerves, Ms Mitchell returned with him to the unit in Thomastown, where she smoked some cannabis to further relax herself and ease the pain she was experiencing. She changed her clothes at the applicant’s request and lay down on the bed to rest. The applicant entered the room carrying the gun and lay down on the bed. It was alleged that they then had sexual intercourse and that afterwards Ms Mitchell asked him to leave and fell asleep.
At 2.00am she awoke to find the applicant asleep beside her. She took the opportunity to escape and collected her belongings and retrieved Mr Dimakakis’ phone number (to help find her children), before quietly leaving the house.
Ms Mitchell immediately reported the matter to police, who arrested the applicant at Mr Dimakakis’ house as he was attempting to remove the children. A search of the applicant revealed, among other things, the intervention order, duct tape and a pocket knife. It became apparent that the applicant had obtained Ms Mitchell’s telephone records and had been closely following her activities.
A medical examination of Ms Mitchell revealed numerous bruises to her head, neck, back and arms and abrasions to her face, arms and back. The injuries sustained were a cumulative result of the events of 8 November 2005 and constituted the serious injury which was the subject of count 12.
Applicant’s Background
The applicant was aged 38 at the time of sentence. He admitted one prior conviction for obtaining property by deception, arising from two court appearances.[3]
[3]The judge referred to another previous conviction for the same offence. No conviction was recorded but he was sentenced to a fine of $500.
His parents had immigrated to Australia where they raised the applicant and his two sisters. His father’s life was characterised by hard work and he often beat the applicant. Despite this, the applicant expressed understanding for his father’s harsh manner and love for his parents and the environment in which he was raised.
He had a good employment history and had earned a reputation as a person of good character committed to his work and for providing financial security for himself and those around him. Sometime in his 30s, he began using drugs. He lost his business which had employed a large number of people and at the time of the offences worked casually as a concreter.
A psychological report prepared by Mr Mackinnon was tendered on the plea. In the report, Mr Mackinnon described the applicant as follows:
Whilst Mr Kanakaris may be regarded as being a somewhat domineering, opinionated, strong willed, gruff, and intimidating personality, he also appears to be very honest and ‘up front’, self motivated, energetic, capable of great generosity and charity to friends down on their luck and in need of assistance, and he is also quite capable of usually taking responsibility for his own actions. To his friends and family, he appears exceptionally capable of intense and genuine loyalty and concern.
He offered the following opinion in relation to the offences:
Regardless of what the real (or imagined) differences were that lay at the root of their conflict, it appears that Mr Kanakaris found his inability to control Ms Mitchell something he could not cope with. Whilst he was a self-made man who was used to being in control and able to confront most problems ‘head on’ in his life, he appears to have been quite unequipped to deal with a spouse who wished to leave him and defy his threats. He now readily admits that the attention and spoiling he received from the females in his extended family during his own childhood probably helped to shape the unrealistic expectations he had of Ms Mitchell. That is, his underlying assumption that she would remain subservient and obedient to him throughout their relationship was in sharp contradiction to the reality of their relationship. This loss of control clashed heavily with his traditional manly self image and his masculine preconceptions of marriage, setting him up for failure and confusion in the context of this relationship.
Mr Kanakaris acknowledges that he used threats and violence to try to control (what he considered to be) infuriating and extremely provocative behaviour on Ms Mitchell’s behalf. With the added destabilising influence of methamphetamines and other drugs, Mr Kanakaris finally ‘snapped’ and appears to have been close to losing control during the terrifying events of August and November 2005.
Regarding the applicant’s prospects of rehabilitation, he said:
Despite the serious and disturbing nature of the events that have brought Mr Kanakaris before the court, I do not believe that he remains a serious threat to Ms Mitchell or the wider community. He did do some bad things, but I do not believe he is an inherently bad (or antisocial) person. Mr Kanakaris is fully cognisant of how low he has sunk and how much ‘off track’ his life has swung, as a consequence of his own actions in 2005.
I believe his current overwhelming desire is to return to the community and throw himself into his career and become highly productive again, whilst also renewing his relationship with his three young children, his extended family and his close friends.
Mr Mackinnon concluded his report by recommending that:
… the court consider returning a sentencing disposition that will permit Mr Zaharias Kanakaris to return to the community in the near future. He appears to have the motivation and personal resources to quickly re-establish his former highly productive lifestyle.
Grounds of appeal
In his full statement of grounds filed on 14 November 2008 the applicant relied on the following eight grounds of appeal:
1.The learned sentencing judge erred by giving inadequate regard to the principle of totality.
2.The learned judge erred by giving undue weight to certain uncharged acts.
3.The learned sentencing judge could not have been satisfied beyond reasonable doubt that the applicant was a risk to the safety of the victim Ms Mitchell and other women with whom the applicant may form a relationship.
4.The learned sentencing judge failed to give sufficient weight to the applicant’s plea of guilty.
5.The learned sentencing judge failed to give sufficient weight to the applicant’s absence of relevant prior convictions.
6.The learned sentencing judge gave insufficient weight to the mitigating factor that the victims in counts 5 and 7 expressed support for the applicant.
7.The judge erred in the fixing of the non-parole period.
8.The sentence in all the circumstances is manifestly excessive.
In effect, grounds 1 to 7 were particulars of ground 8, which alleged manifest excess.
At the hearing of the appeal, counsel for the applicant was granted leave to add the following ground of appeal:
Ground 9 – The learned sentencing judge erred in her orders for cumulation such orders not achieving the total effective sentence that was intended.
Counsel for the respondent submitted that the sentencing judge had made no specific sentencing error and that the total effective sentence and non-parole period were within the range open to the sentencing judge. He submitted that the statistics relied upon by the applicant were not relevant to his sentence.
It was further submitted that the sentence of nine years and three months with a non-parole period of seven years imposed by the sentencing judge can be readily described as substantial, but then of course the conduct of the applicant was of a very serious and frightening nature.
I will deal with each of the grounds in turn.
Ground 1 - Totality
The criminal conduct involved in the incidents which occurred on 16 and 17 August 2005 is covered by Counts 1 to 7 inclusive. No complaint was made regarding the individual sentences on each of those counts. Once orders for cumulation are taken into account, a total of 18 months’ imprisonment was imposed with regard to those counts which form one part of the total effective sentence of nine years and three months.
In relation to the more serious counts, again no complaint is made about each of the individual sentences. These sentences form a total of seven years and six months of the total effective sentence.
The applicant had also pleaded guilty to the summary offence of breaching an intervention order, which added a further three months to the total effective sentence.
There is a certain artificiality involved in dealing with grounds 1 to 8 separately, yet it is necessary to do so. I am not satisfied that, when viewed in such a manner, it can be said that the principle of totality has been offended. When the individual criminality is examined in relation to these offences, each sentence alone is moderate, as are the periods of accumulation. That is particularly so having regard to the maximum terms of imprisonment available for each offence. I do not regard ground 1 as made out.
Ground 2 – Uncharged Acts
It is true that within the narrative of the events on 8 November 2005, the sentencing judge referred to the fact that the applicant and Ms Mitchell had engaged in sexual intercourse. That remark was said to be indicative of an illegitimate path of reasoning which somehow led to aggravation of sentence. Charges of rape initially laid against the applicant were not persisted with, and although it might reasonably be said the circumstances were not conducive to Ms Mitchell willingly engaging in sexual intercourse, it is not possible to conclude that her Honour used the mere fact intercourse had taken place as a matter in aggravation.
I do not regard the ground as having been made out.
Ground 3 – Applicant’s risk to the safety of another
The reasons of the sentencing judge indicate her Honour undertook an analysis of events which ultimately led her to express the following:[4]
I have serious concerns about Ms Mitchell’s safety and about the safety of any other women with whom you form another relationship because of your lack of insight and your anger and lack of remorse in respect of Ms Mitchell and your behaviour to her.
[4][48] of sentencing remarks.
It seems to me her Honour was there dealing with the applicant’s prospects of rehabilitation, which, in turn, formed part of her Honour’s analysis of the matters put in mitigation. That analysis was, in the result, detailed, careful and thorough. In the paragraphs preceding the impugned passage, her Honour dealt with the report of Mr Ian Mackinnon. Further, it seems that such analytical process led her Honour to the conclusions as expressed above. The mere fact that there was no evidence the applicant had treated other women this way is not of itself sufficient to undermine her Honour’s conclusion. The sentence which followed the sentence complained about should also be noted. There her Honour said:
But that must be balanced with those things that obviously very positively can be said in your favour in relation to your history otherwise.
The sentence shows the context in which her Honour made the impugned remark. In my view, the sentencing judge was entitled to reach that conclusion on the material before her and, if necessary, to do so beyond reasonable doubt.
I do not regard this ground as being made out.
Ground 4 – Plea of Guilty
It was submitted that it was not clear what discount the applicant had received as a result of his guilty plea. The sentence is not, on its face, indicative of significant, if any, discount. It should be highlighted that this case was heard prior to the introduction of s 6AAA of the Sentencing Act 1991 and that no specific indication appears in her Honour’s reasons.
Although it is not always the most reliable guide, this argument is sometimes tested by reference to what sentence might have been imposed if the convictions were a result of a trial.
On the plea, the matter was put by counsel for the applicant as follows:
MR ZEBROWSKI: Your Honour, obviously Mr Kanakaris has pleaded guilty. At the time that this matter went to committal there were still a number of other very serious charges that were on the table at the time this matter went to committal. This matter has quite sensibly been resolved by the parties. And in those circumstances, once certain charges – the main bones of contention were withdrawn, my client has pleaded guilty to this behaviour and should get the benefit of such a plea in my respectful submission.
Not only is that indicative of some level of remorse, Your Honour, but it has obviously saved court time and the expense of what would have been in my submission a long and messy trial, if not long and messy trials. It has facilitated the course of justice in that way and most importantly perhaps, Your Honour, given the nature of these allegations or these matters that my client has pleaded to, it has saved the complainant having tot come to court to trial and give evidence. And certainly---
HER HONOUR: And the children.
MR ZEBROWSKI: Your Honour just took the words out of my mouth. And particularly the oldest boy Yanni, I’m not sure of the other two, but certainly he would have been required to give evidence had this matter been contested at a trial.
It follows that any complaint of a failure on the part of the sentencing judge to incorporate any discount for the guilty plea will be somewhat artificial.
The offending was very serious. The first four counts which occurred on 16 August 2005 involved the applicant assaulting his daughter and Ms Mitchell. The second attack on Ms Mitchell, which occurred in the presence of the applicant’s sister, only just fell short of constituting serious injury. The total accumulation imposed on those counts, (only one year) reflects regard was had to both the principle of totality and the to the plea of guilty.
The next three counts involved assaults on both the applicant’s mother and sister as well as Ms Mitchell. In the presence of his children, the applicant head-butted his mother and struck both his sister and Ms Mitchell a number of times.
I have set out the injuries suffered by the three women. It must be observed that in relation to Ms Mitchell, that description covers the sum of the injuries received across the two days. The total accumulation ordered for that extremely violent episode was six months. Such a period again accords with the principle of both totality and allowing discount for the plea.
The events of 8 November were extremely serious. The applicant pleaded guilty to aggravated burglary, kidnapping, two counts of threatening to kill and causing serious injury intentionally.
The conduct involved constituted a breach of an intervention order. The conduct involved in the aggravated burglary and the kidnapping in particular was well planned and involved the use of an ‘accomplice’. The applicant was armed with a shotgun and used it in a threatening manner. The children were taken away and Ms Mitchell had no way of assuring herself as to their safety. The aggravated burglary involved the applicant imposing upon his young daughter to find the address and to gain access to the premises. Ms Mitchell’s ordeal lasted for approximately six hours before she was able to escape. She received a number of relatively minor injuries which, in combination, constituted serious injury. The injuries would not have been regarded as falling at the lower end of serious injury.
The offences of kidnapping and aggravated burglary carry a maximum penalty of 25 years in each case, and the offence of causing serious injury intentionally, 20 years. Her Honour imposed a sentence of five years on the count of kidnapping, which cannot be said to be exceptional in the circumstances. On first view, the sentence of four years does seem to fall within the higher range for aggravated burglary, but when the circumstances of aggravation are taken into account, that impression does not linger. This was a burglary committed by an armed man, onto premises which Ms Mitchell reasonably regarded as secure. His entry onto the premises was secured by tricking his daughter into opening the window. After entering, he began his assault on Ms Mitchell and arranged for the children to be removed, all of which put Ms Mitchell in a position of righteous fear.
It should also be noted that her Honour ordered accumulation of only 12 months of that sentence on the base sentence. In the absence of the plea of guilty, it would have been open for her Honour to impose higher sentences on each of those counts and to have ordered a greater period of accumulation. The sentence of two years imposed for causing serious injury intentionally involved a 12 month period of accumulation which is reflective of the circumstances of the count. Since those injuries could not be reflected in any of the other counts, it was necessary for her Honour to deal with it separately. On my view, both the sentence imposed and the period of accumulation ordered are consistent with her Honour having taken the applicant’s guilty plea into account. I am satisfied that this ground is not made out.
Ground 5 – Absence of Prior Convictions
Her Honour specifically adverted to the applicant’s lack of relevant prior convictions and I cannot see a basis for this ground taken alone. I am satisfied the ground has not been made out.
Ground 6 – Forgiveness of Mother and Sister
In my view, given the nature of the attacks on both the applicant’s mother and sister, the sentences imposed on those counts are capable of being characterised as lenient. The sentences suggest that her Honour must have had regard to the victims’ attitudes when framing an appropriate sentence. The sentencing judge’s reasons specifically adverted to the applicant’s mother and sister having forgiven him and further noted both victim’s were present in Court to provide support.[5] I am also satisfied that the ground has not been made out.
[5][40].
Ground 8 – Manifest Excess
Because of the conclusion I have reached in relation to ground 7, it is convenient to deal with this ground first.
Counsel for the applicant conceded that this ground ‘does not admit of much argument’,[6] but submitted that the following considerations supported the contention that the sentence fell outside the range of a sound discretionary judgment:
[6]R v Demaria [2008] VSCA 105, [18].
· the applicant’s guilty plea;
· ongoing family support;
· the applicant’s employment history;
· the absence of relevant prior convictions;
· the sentence being the applicant’s experience of imprisonment;
· the non-permanent injuries suffered by the victims; and
· the forgiveness of two of the victims.
It was submitted that the term of imprisonment to which the applicant was ultimately sentenced was longer than most manslaughter sentences, for which the average term imposed between 1998/1999 and 2003/2004 was 6.4 years with an average non-parole period of 4.2 years. The average term of imprisonment for an offender who killed an intimate partner was six years ten months.
It follows from my analysis of the preceding grounds that I can not be satisfied that either the individual sentences imposed on each count, nor the total effective sentence, is manifestly excessive.
This was serious offending which required a substantial sentence. There are no redeeming features of such the offending and the matters put in mitigation are limited.
Ground 7 – Non-parole Period
Her Honour fixed a non-parole period of seven years. Such a non-parole period meant the maximum amount of time which would be spent on parole was two years and three months. It was conceded on the hearing of the application that there is no single ‘correct’ non-parole period. It is clear enough on its face that a non-parole period of seven years is a very substantial one. As Callaway JA said in R v VZ:[7]
All the relevant factors have to be taken into account. They are many and varied. I mention only three of them, because they bear on this case. The first is that a non-parole period has a penal element. The second is that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period. The third is that a prisoner’s prospects of rehabilitation are almost always a significant consideration. The present offences called for condign punishment and general deterrence was a relevant sentencing objective, but it was common ground, and the judge found, that the offender was unlikely to offend again. No question of specific deterrence arose for consideration.
[7](1998) 7 VR 693.
The importance of rehabilitation was further emphasised by Redlich JA in R v Tran and Tran[8] when he said:
The minimum term is recognised to be of benefit to the offender providing the offender with a basis for a hope of earlier release and in turn an incentive for rehabilitation. When a minimum term is fixed, the prisoner’s punishment is mitigated in favour of his rehabilitation through conditional freedom, when appropriate, but only after the prisoner has served the minimum term that justice requires having regard to the circumstances of the case. As the benefit of the minimum term is for the purpose of the offender’s rehabilitation, the sentencing judge’s assessment of the offender’s prospects of rehabilitation will have a significant bearing on the minimum term to be fixed. In fixing that term the interests of the community, which the imprisonment of offenders is designed to serve, must be taken into account.
[8][2006] VSCA 222.
Her Honour did not set out any specific reason for imposing the non-parole period she did. It can only be assumed that the non-parole period imposed was reflective of the guarded view taken of the applicant’s prospects of rehabilitation.
I set out in dealing with Ground 3, her Honour’s conclusions on the question of rehabilitation. I am satisfied that her Honour was entitled to reach those conclusions, yet I do not accept that such a relatively high non-parole period can be justified on that basis alone. The applicant has no relevant prior convictions and he pleaded guilty. In the result, I conclude that her Honour’s discretion miscarried in fixing a non-parole period of seven years.
Ground 9 – Orders for Accumulation
It follows from that analysis of the preceding ground that I do not regard the head sentence of nine years and three months as manifestly excessive. I am not compelled by any combination of those grounds taken together to come to any other conclusion. I do not regard this ground as made out in relation to the head sentence.
In support of this ground, it was argued that the sentencing judge had erred with regard to orders for accumulation, ‘such orders not achieving the total effective sentence that was intended’. The additional ground was not particularly pressed, as argument in support did little more than restate the basis of the ground. Such argument as was advanced focused on the complexity arising out of the Serious Offender provisions contained in s 6E of the Sentencing Act1991. The case of R v Foster[9] was cited in support. It was, however, conceded by counsel that in the circumstances of this case, even if technical error were founded, it would not necessarily provide sufficient basis to reopen the sentencing discretion.
[9][2007] VSCA 85.
In her careful reasons for sentence, her Honour explained precisely how the orders for cumulation were to operate having regard to the provisions of s 6E of the Sentencing Act 1991. The sentencing reasons reveal no discernable error. Further, Her Honour engaged in the following exchange with counsel who appeared at sentence:
HER HONOUR: Are you satisfied that what I have said in respect of Counts 11 and 12 and the cumulation orders I have made in respect of those is sufficient to satisfy the requirements of s 6E and the prescriptions otherwise in respect of concurrency?
COUNSEL: Yes, Your Honour.
It is fair to say that this ground was not pressed upon the hearing of the application.
Conclusion
I would grant leave to appeal and allow the appeal. I would not disturb the individual sentences or the orders for accumulation imposed.
I would order that the applicant be imprisoned for a period of six years before becoming eligible for parole.
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