Kelly (a Pseudonym) v The Queen
[2015] VSCA 340
•9 December 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0215
| ERIC KELLY (a Pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | REDLICH and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 December 2015 |
| DATE OF JUDGMENT: | 9 December 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 340 |
| JUDGMENT APPEALED FROM: | DPP v [Kelly] (Unreported, County Court of Victoria, Judge Sexton, 8 October 2015) |
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CRIMINAL LAW – Sentence – Appeal – Applicant sentenced to aggregate sentence of six months’ imprisonment for two breaches of conditions of a supervision order under the Serious Sex Offenders (Detention and Supervision) Act 2009 – Prior breaches of supervision order – Sentence not manifestly excessive – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms E Ramsay | Victorian Aboriginal Legal Service |
| For the Crown | Mr D Grace QC | Russell Kennedy |
REDLICH JA
PRIEST JA:
Introduction
Probably as a result of foetal alcohol syndrome, the applicant — who is aged 31 years — has an intellectual disability, possessing a full scale IQ of 54. He is of Aboriginal descent, and grew up being subjected to parental drug and alcohol abuse, violence, estrangement from his parents and the death of many family members (including his father, who died when the applicant was 13).
On 8 October 2015, in the County Court, the applicant was sentenced to be imprisoned for an aggregate of six months for breaches of a supervision order. He seeks leave to appeal against that sentence. In our opinion, for the reasons that follow, the application should be refused.
The supervision order
The application arose from the following circumstances. In January 2006, when aged 21 years, the applicant committed a very serious rape. He broke into the home of a 25 year old woman who was eight and a half months’ pregnant, and by the use of force penetrated her vagina with his penis to the point of ejaculation.
Following a Crown appeal, in November 2009 the Court of Appeal substituted a total effective sentence of five years and six months’ imprisonment, with a non-parole period of four years, for a sentence of four years and six months’ imprisonment, with a non-parole period of two years and six months, imposed on the applicant in the County Court after he pleaded guilty to one count of rape and one count of aggravated burglary. The applicant was released on this sentence on 7 September 2013.
On an application by the Secretary to the Department of Justice,[2] in the County Court on 4 December 2013, the applicant was made subject to a supervision order (‘the order’) pursuant to the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘the Act’). The order commenced on 4 December 2013, and was to remain in force for a period of five years.
[2]Now the Secretary to the Department of Justice and Regulation. See Serious Sex Offenders (Detention and Supervision) and Other Acts Amendment Act 2015, s 29(2).
Previous breaches of the supervision order
Up to July 2015, the applicant was twice dealt with for breaches of the order. First, on 4 March 2014, the applicant was sentenced on five charges of having breached the order, the breaches having been committed as follows. On 21 and 27 December 2013, the applicant breached the order by going to visit family in New South Wales without permission, not wearing his ankle bracelet, and, on one occasion, drinking alcohol. He was remanded in custody on 28 December, and, on 30 December 2014, was released on bail with a condition that he reside at Corella Place, Ararat.[3] Then, on 20 February 2014, whilst living at Corella Place, he was found to be in possession of illegal drugs which also constituted a breach of the order. For these breaches, the applicant was sentenced to an aggregate term of one month’s imprisonment. Secondly, on 19 May 2015, the applicant was dealt with in relation to two charges of having breached the order and two charges of having committed an indictable offence whilst on bail. It seems that, on 9 December 2014, the applicant moved from Corella Place into a unit in Swan Hill. On 19 December 2014, he breached the order by drinking alcohol and failing to comply with his curfew, and was remanded in custody. The applicant appeared before the County Court on 5 February 2015, and the judge varied the order so as to require him to wear a bracelet which could monitor his alcohol use. He was released on bail at the same hearing. On 18 March 2015, however, he breached the order by consuming illegal drugs. The applicant was thus charged and remanded in custody on 23 March 2015. On 19 May 2015, in the County Court, the applicant was sentenced to an aggregate term of ‘time served’ — 105 days’ imprisonment — and was released back into the community.
[3]Corella Place is a transitional facility for sex offenders who have completed sentences of imprisonment, but who are subject to supervision orders.
The sentence for the current breaches of the supervision order
As we have mentioned, the applicant was charged with two breaches of the order,[4] and, in the County Court,[5] on 8 October 2015, was sentenced in aggregate to six months’ imprisonment. The breaches arose from the following circumstances. After he was released in relation to the sentence imposed on 19 May 2015, the applicant resided in a unit at Swan Hill. On 17 August 2015, he complied with a request to complete a drug screen test, which returned a positive result for amphetamine, methylamphetamine and cannabis (charge 1 —breach of supervision order). A few days later, on 20 August 2015, he complied with a request to complete a drug screen which returned a positive result for amphetamine and methylamphetamine (charge 2 — breach of supervision order). He was charged with these breaches on 21 August 2015, and was remanded in custody until being sentenced on 8 October 2015.
[4]Section 160(1) of the Act provides that, ‘An offender must not, without reasonable excuse, fail to comply with a condition of a supervision order’. The maximum penalty is imprisonment for five years.
[5]By s 177(5) of the Act, the County Court may grant a summary hearing for an offence against s 160. That is what happened in this case.
The applicant seeks leave to appeal against the sentence imposed on 8 October 2015 on the following grounds:
1. The sentence imposed is manifestly excessive.
2. The learned judge erred in not moderating the sentence on the basis of the harsh conditions of imprisonment experienced by the Applicant during his remand period.
Submissions to the sentencing judge
In the County Court, counsel for the Secretary to the Department of Justice and Regulation told the judge that Corrections Victoria had attempted to assist the applicant to abstain from drugs, but that the applicant had chosen to stay on drugs. Counsel accepted that the principles in Verdins,[6] Terrick[7] and McKee[8] applied, and that the judge would recognise that the applicant suffered intellectual deficits, compounded by his abuse of illicit substances. It was accepted that the applicant’s moral culpability was reduced, but it was contended that the applicant’s behaviour cannot be permitted to continue. Counsel argued that the supervision scheme ‘can’t survive for supervision if these types of wanton breaches are allowed to go by way of punishment of a small order, particularly in circumstances where this is now the third instance of a set of breaches of [the judge’s] order within a period of something in the vicinity of 20 months of a five year order’.
[6]R v Verdins (2007) 16 VR 269 (‘Verdins’).
[7]DPP v Terrick (2009) 24 VR 457 (‘Terrick’).
[8]R v McKee (2003) 138 A Crim R 88 (‘McKee’).
The applicant’s counsel relied on Verdins principles in relation to the applicant’s intellectual deficits, and on Terrick and McKee with respect to chronic disadvantage. It was submitted that the applicant’s moral culpability was reduced, and both general and specific deterrence should be moderated.
Counsel spoke of the applicant’s relationships with his four children — aged 14, 13, 11 and 9 years — none of whom were in his care. The applicant had been engaging with the Department of Human Services in an attempt to establish regular access to the youngest child (who was in foster care), with a view to commencing the process of allowing the child to live with his other children (who were cared for by the applicant’s ‘auntie Helen, [his] mother figure’). Two of the applicant’s aunts were chronically ill, and the applicant was concerned about being unable to support his family should they pass away. Counsel submitted that the applicant recognised that he was letting down his children, and was concerned about his inability to act as a father figure to his children in the way culturally he is expected to.
The applicant had instructed counsel that it was only around the time he had been drug-screened that he had relapsed into drug use, although he had known at the time that it was not allowed under the order. She submitted that the applicant had otherwise been complying with the order and participating in supervision sessions, and was not ‘just flagrantly disregarding the fact of the supervision order’. Counsel accepted that, against the background of the pending charges, the judge could not conclude that there had been no other offending. It was submitted, however, that the present offending was of the same level of seriousness as the offending dealt with on 19 May 2015.
The recent period in custody had, counsel submitted, been a difficult one, due to the applicant’s inability to make contact with his family, and because of his concern that he may lose access to his accommodation in Swan Hill.
Sentencing remarks
In sentencing the applicant, the judge adopted her earlier sentencing remarks of 14 March 2014 and 19 May 2015, and said:[9]
I will have both sets of reasons for sentence appended to today’s reasons for sentence and I have taken into account that it is conceded by the Secretary that there is a reduced moral culpability on the same bases as I had found before. On the other hand it is conceded on behalf of [the applicant] that it is very similar offending. Although at the same level of seriousness, I have taken into account that it is repeat offending and that the scheme must be given some credence by recognition of repeat offending breaching the supervision order.
So I won’t formally go through all those matters again because they have been referred to only some months ago.
[9]Emphasis added.
Earlier in her sentencing remarks, she had said:[10]
… [T]hese things where you go back on the drugs always cause this problem that we are back here at court and it has all the other impacts on you being away from your kids now, being away from family, especially your aunties, not being able to be on the medication that you have been on, that has been helping you.
So this is what happens if you do not stay away from the drugs or the people who tempt you with the drugs. I know it is sometimes a really hard choice but you have to get it through that if you make the wrong choice: that is what happens. I have said to you before if you keep coming back, it is more gaol time, more time away from your kids and family.
I do though see that we are getting some small improvements. The first time you came back for breaking the condition of your order I think it was about ten days from the making of the order to when you first did something wrong. The second time you came back was about six weeks from the order. This time there is three months. So you are getting better at staying out of trouble, doing the right thing but you have got to do it for longer. You have got to do it, full stop. …
I am a bit encouraged by the fact that you have stayed clean for longer this time, but of course I am discouraged by the fact that we are back here again. So you have just got to understand what happens if you break the conditions. I know that the people from Corrections have been talking to you about these things and it might not be much fun having people to tell you how to run your life, but what they are telling you is the way you have got to go about things otherwise you are back here.
[10]Emphasis added.
Discussion
It is convenient first to turn to the second ground of appeal, which claims that judge ‘erred in failing to reduce the sentence to compensate for the harsh conditions of imprisonment endured by the applicant’.
Counsel told the judge that, in the 49 day period the applicant was remanded prior to sentence, he had been denied prescribed Buprenorphine[11] and Seroquel.[12] No evidence was forthcoming on the plea, however, to demonstrate that any failure to provide these medications in fact increased the burden of incarceration on the applicant. But, in any event, although the judge expressed her sentencing remarks in language designed to aid the applicant’s comprehension of them — and, of course, must be read in that light — it is clear that the judge did take into account that the applicant had been denied his medications during the relevant period. We do not accept, as counsel submitted, that the judge ‘simply regarded the lack of medication as part and parcel of the experience of imprisonment’. Such a submission ignores the realities of the manner in which her Honour endeavoured to convey the import of her remarks to a man with a full scale IQ of 54.
[11]Buprenorphine is used to treat opiate dependence.
[12]In the applicant’s case, Seroquel was used to treat bipolar disorder.
There is nothing in ground 2.
Under the umbrella of ground 1, which asserts simply that ‘[t]he sentence imposed is manifestly excessive’, counsel for the applicant submitted that the judge had erred in ‘increasing’ the sentence ‘to give the scheme some credence by recognition of repeat offending’. Further, it was submitted that the judge had given insufficient weight to the efforts made by the applicant to comply with the order.
It is not perspicuous to us from the judge’s sentencing remarks that she purported to increase the sentence to give credence to the relevant scheme through the recognition of repeat offending. Similar and repeated offending is — all other things being equal — a matter which bears on an offender’s moral culpability, prospects of rehabilitation, dangerous propensity and the increased importance of specific deterrence.[13] So far as we can divine from her remarks, the judge was doing no more than recognising that she had to balance the applicant’s reduced moral culpability and the fact that his was repeat offending, in circumstances where the purposes of the statutory scheme may be defeated by repeat conduct. As Redlich and Beach JJA observed in Heath:[14] ‘Persons subject to supervision orders must be aware of the significance of those orders and the seriousness with which sentencing courts will view a breach’.
[13]R v O’Brien and Gloster [1997] 2 VR 714, 718.
[14]R v Heath (a Pseudonym) v The Queen [2014] VSCA 319, [25].
As to the second submission made under cover of ground 1, whether the judge failed to give sufficient weight to the efforts made by the applicant to comply with the order may only be discerned as a matter of inference from an examination of the sentence imposed in light of all factors relevant to its imposition. This invites scrutiny of the other matters relied upon in mitigation, including that the applicant ‘is not a good vehicle for general deterrence’; he has a ‘much reduced ability to change his behaviour’; the circumstances of the offending are ‘no more serious than the previous breaches’; relapse into drug addiction during treatment is ‘a common occurrence’; and ‘this type of breach is distinguishable from a deliberate flouting of the order (e.g. a failure to attend for a drug screen when directed or a failure to attend appointments as required)’.
Whether the applicant has made efforts to comply with the order in the manner submitted is clouded by the fact that there has been an investigation into the applicant’s conduct — seemingly commenced 21 August 2015 — in which serious violent conduct against women (and the abuse of the drug ice) is alleged. As a result, he has been remanded in custody for committal in March 2016, bail having been refused. Although, of course, we make no finding about whether the applicant engaged in the violent conduct and drug use alleged, nonetheless it cannot unequivocally and confidently be asserted that the applicant has made the efforts to abide by the order as submitted by counsel. On the assumption that efforts to comply with the order would be a matter in mitigation, we note that no positive material was put before the sentencing judge to demonstrate compliance with the order.
Previous similar breaches of the order attracted sentences of one month’s and three and a half months’ (ie 105 days) imprisonment. The two breaches the subject of the present application represented the third occasion upon which the applicant has been dealt with by a court for failure to adhere to the order. Although it may be acknowledged that the applicant does not represent a vehicle for the application of general deterrence, personal deterrence remains important. It is plain from the available material that — despite his intellectual disability — the applicant understands that he is bound to obey the conditions of the order. It also seems clear that he is capable of comprehending that he will be punished for breaching the order. More lenient sentences in the past have not been sufficient to deter him from breach of the order. Thus, we fail to see that an aggregate sentence of six months’ imprisonment — in the circumstances, a relatively modest increase on previous sentences — legitimately can be described as being wholly outside the range of sentences open in the proper exercise of the sentencing discretion.
We would not uphold ground 1.
Conclusion
The application for leave to appeal against sentence should be refused.
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