Kevin Beasley v The Queen
[2017] VSCA 154
•22 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0134
| KEVIN BEASLEY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | OSBORN and SANTAMARIA JJA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 May 2017 |
| DATE OF JUDGMENT: | 22 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 154 |
| JUDGMENT APPEALED FROM: | [2016] VCC 626 (Judge Pullen) |
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CRIMINAL LAW – Indictable offences and various summary offences – Applicant sentenced for indictable offence without arraignment or plea – Irregularity – Conviction set aside – Matter transferred to Magistrates’ Court by consent of parties – Criminal Procedure Act 2009 s 168.
CRIMINAL LAW – Application for leave to appeal against sentence – Reckless conduct endangering serious injury – Criminal damage – Common law assault – Aggravated burglary – Careless driving – Possession of a drug of dependence – Assault by kicking – Whether sentencing judge erred by failing to synthesise considerations relating to applicant’s long-term addiction to drugs – Whether individual sentence imposed on one charge and orders for cumulation on certain charges offended the principles of totality and resulted in manifestly excessive total effective sentence and non-parole period.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr T Kassimatis QC with Ms A I Burchill | Grigor Lawyers |
| For the Respondent: | Mr B F Kissane QC | Mr John Cain, Solicitor for Public Prosecutions |
OSBORN JA
SANTAMARIA JA:
On 9 May 2016, the applicant, now aged 28, pleaded guilty in the County Court to charges of reckless conduct endangering serious injury (Charge 1), criminal damage (Charge 2), common law assault (Charge 3) and aggravated burglary (Charge 4). The applicant was also sentenced for the following summary offences at the same time: careless driving (Summary Charge 8), possession of a drug of dependence (methylamphetamine) (Summary Charge 27) and assault by kicking (Summary Charge 29). Following a plea on that date and subsequently on 13 May 2016, the applicant was sentenced on 13 May 2016 as follows:[1]
[1]DPP v Beasley [2016] VCC 626 (‘Sentencing remarks’).
Charge No
Offence
Maximum
Sentence
Cumulation
Reckless Conduct Endangering Serious Injury
[Crimes Act 1958 s 23]5 years’ imprisonment 16 months’ imprisonment
10 months Criminal damage
[Crimes Act 1958 s 197]10 years’ imprisonment 10 months’ imprisonment 4 months Common law assault 5 years’ imprisonment 6 months’ imprisonment 2 months Aggravated burglary
[Crimes Act 1958 s 77]25 years’ imprisonment 3 years and 6 months’ imprisonment
Base Summary Charge 8 Careless driving
[Road Safety Act 1986 s 65]12 penalty units
Convicted and fined $300 — Summary Charge 27 Possession of a drug of dependence
[Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73]Not more than 30 penalty units or 1 year’s imprisonment or both 1 month imprisonment 7 days Summary Charge 29 Assault by kicking
[Summary Offences Act 1966 s 24]2 years’ imprisonment 2 months’ imprisonment 1 month Total Effective Sentence: 4 years, 11 months and 7 days’ imprisonment Non-Parole Period: 3 years and 6 months’ imprisonment Pre-Sentence detention declaration pursuant to section 18(1) of the Sentencing Act 1991: 196 days S6AAA Statement: 7 years’ imprisonment with a non-parole period of 5 years Other relevant orders: Forfeiture order in relation to Charge 27, licence cancelled and disqualified from driving for a period of 5 years from 30 October 2015 in relation to Summary Charge 8
Grounds of appeal
In his application for leave to appeal against sentence, the applicant has proposed the following grounds of appeal:
(a) the sentencing judge erred by failing to synthesise, in the exercise of her discretion, the applicant’s long-term addiction to drugs. In particular, the judge erred by finding that:
(i) there was no, or insufficient a, link between the applicant’s drug addiction and his offending on 14 September 2015; and
(ii) the applicant’s moral culpability was not affected or reduced as a result of the applicant’s immaturity, compounded as it was by his long-standing drug addiction.
(b) in all the circumstances:
(i) the individual sentence imposed on Charge 2; and
(ii) the orders for cumulation on Charges 1 and 2,
offended the principles of totality and resulted in a total effective sentence and non-parole period that are manifestly excessive.
Irregularity
At the commencement of the hearing, the applicant pointed out an error in the handling of what is described in the above grid as ‘Summary Charge 27’. The applicant pointed out that the charge comprised in s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (namely, possession of a drug of dependence) was, in fact, an indictable offence in respect of which the applicant had not been indicted or arraigned. The respondent accepted that there had been an irregularity.[2] In the circumstances, the conviction in respect of that matter — and the sentence — must be set aside. This Court may transfer the matter to the County Court or, with the consent of the applicant, transfer the matter to the Magistrates’ Court.[3] The applicant and the respondent concurred in this Court making an order that the matter be transferred to the Magistrates’ Court.
Circumstances of the offending
[2]See, eg, Nguyen v The Queen (2012) 272 FLR 58.
[3]Criminal Procedure Act 2009 s 168.
The First Incident: 14 September 2015
On Monday 14 September 2015 at about 6:12 pm, police officers in an unmarked vehicle observed a white BMW sedan make a right hand turn into Elizabeth Street, Melbourne, from the east bound lanes on Lonsdale Street. Police checks revealed that the registration number was that of a stolen car which had been stolen on 9 September 2015.
The police officers followed the vehicle travelling south bound on Elizabeth Street and were behind the vehicle as it neared Flinders Street. They then requested assistance from a further police unit.
At 6:14 pm, a second police vehicle containing Sergeant Gilmour and First Constable Schouten approached the intersection of Swanston and Flinders Streets. Sergeant Gilmour parked the second police vehicle on Swanston Street, blocking east bound traffic on Flinders Street, whilst the BMW and unmarked police vehicle were in the right hand lane of the east bound traffic approximately six car lengths from the intersection.
Constable Schouten exited the police vehicle and began walking towards the BMW. As he moved within three car lengths of the BMW, the applicant drove out of the right lane, across the left lane and up onto the footpath outside the Young and Jackson Hotel on the corner of Flinders and Swanston Streets.
The BMW paused momentarily whilst on the kerb and Constable Schouten approached the driver’s side of the vehicle, demanding that the applicant exit the vehicle. Sergeant Gilmour approached the passenger side of the vehicle at the same time, while the unmarked police vehicle parked behind the BMW in an attempt to block it in.
The applicant reversed into the unmarked police vehicle, turned onto the footpath and commenced driving along the crowded footpath. Sergeant Gilmour moved quickly out of the way to avoid being hit. As the BMW passed, Sergeant Gilmour hit the passenger window of the BMW with his extendable baton and yelled to people on the footpath to get out of the way.
Moments before the BMW reached the intersection of Swanston Street, the pedestrian light turned green, clearing some of the pedestrians from the footpath. Numerous pedestrians jumped out of the way as the applicant accelerated along the footpath. Another witness, who was at the intersection, said he felt the adrenaline kick in and knew he had to get out of the way as another male pushed him and a group of people into the Young and Jackson Hotel. A different witness at the intersection ran into the middle of Flinders Street to avoid being hit (Charge 1 of reckless conduct endangering serious injury).
At the corner of Flinders and Swanston Streets, the applicant turned left through a red light, drove north on Swanston Street and drove through another red light on Flinders Lane. The applicant turned left down Bourke Street Mall, continuing through a red light at the intersection of Bourke and Elizabeth Streets (Summary Charge 8 of careless driving). The applicant then drove into a ‘Secure’ car park entrance in Hardware Lane, damaging the boom gate (Charge 2 of criminal damage).
The Second Incident: 30 October 2015
The applicant is the former partner of Alexandria Apostolides, with whom he had one daughter, Arianna-Rose, who was two years of age at the time. In the weeks prior to the offending, the applicant was living sporadically at his mother’s house in Werribee. Ms Apostalides was also living at that address with Arianna-Rose. On 29 October 2015, the applicant arranged to spend time with Ms Apostolides and Arianna-Rose at the Werribee address. The applicant picked up Ms Apostolides at 9:00 pm and went to the Werribee address.
At approximately 12:00 am on 30 October 2015, the applicant left the Werribee address saying that he was going to see a friend. The applicant called Ms Apostolides prior to returning some time after sunrise that morning. During the phone call, the applicant was screaming, not making sense and telling her to ’fuck off’. Ms Apostolides asked the applicant to return her child car seat.
At approximately 7:30 am that morning, the applicant arrived at the Werribee address and entered the room where Ms Apostolides was sleeping. The applicant began to punch Ms Apostolides, dragged her out of bed, threw her on the floor and continued to punch her (Charge 3 of common law assault).
The applicant’s mother heard the commotion and the applicant asked for Arianna-Rose, who was sleeping. Both the applicant’s mother and Ms Apostolides tried to stop the applicant grabbing Arianna-Rose, and the applicant pushed them away.
The applicant picked up Arianna-Rose taking her outside and placed her in the front passenger seat of a vehicle through the driver’s door. The applicant entered the vehicle and closed the door. At the same time, Ms Apostolides opened the driver’s door and his mother went to the passenger door to grab Arianna-Rose. The applicant got out of the vehicle and began to punch and kick Ms Apostolides (also part of Charge 3 of common law assault).
The applicant then approached his mother and tried to grab Arianna-Rose. She tried to shield Arianna-Rose from the applicant, and he kicked his mother in her left leg causing her pain (Summary Charge 29 of assault by kicking).
A neighbour, Rhianon Walker, heard the screams and saw the commotion, and the applicant walked off. Ms Walker approached the fence and asked Ms Apostolides and the applicant’s mother if they were alright. Ms Walker invited them into her home, as both women were visibly distressed. When they were inside, Ms Walker locked the wooden front door and wire screen door and called 000. Whilst Ms Walker was on the phone, the applicant returned and started yelling and banging on the windows.
The applicant started to break the screen door yelling ‘I have got an AK-47. I am going to kill you all.’ The applicant broke the screen door, kicked in the wooden front door and entered the house (Charge 4 of aggravated burglary). When the applicant was in the house, he said to Ms Walker ‘I just want Arianna’ and told her to get off the phone. Ms Walker told the applicant to get out. When the applicant saw his mother, who was having a panic attack and lying on the floor, he left the house and drove away.
The police arrested the applicant later that day and found in his possession a small bag containing methylamphetamine (Summary Charge 27 of possession of a drug of dependence).[4] The applicant made a ‘no comment’ interview to police.
[4]See [3] above.
The applicant has a relevant prior criminal history, with appearances in court on ten occasions between 2006 and November 2013. The applicant’s prior offending has included dangerous driving, burglary, intentionally cause injury, criminal damage, reckless conduct endangering life, aggravated burglary and trafficking in drugs.
The prosecution accepted that the guilty plea was entered at the earliest opportunity.
Sentencing remarks
In her sentencing remarks, the sentencing judge took into account the applicant’s early plea of guilty. It had spared the community the need for a trial and it gave indication of ‘some’ remorse. However, given the applicant’s prior criminal history, the judge was concerned about the degree of his remorse. The judge narrated the applicant’s prior criminal history and noted that the applicant’s first court appearance was at Sunshine Children’s Court on 5 June 2006 and his most recent prior matter was on 12 November 2013.
The judge considered the following of particular relevance:
(c) on 9 October 2008, the applicant appeared in the Melbourne County Court (Judge Murphy) and was sentenced for a number of offences that included affray, causing injury intentionally and two counts of criminal damage for which he was sentenced to a youth justice order;
(d) on 18 February 2009, he appeared in the Melbourne County Court (Judge Smallwood) and was sentenced for a number of offences which included intentionally causing injury, reckless conduct endangering life, criminal damage and assault, for which he received a custodial sentence in a Youth Justice Centre;
(e) on 9 February 2010, he appeared in the Melbourne County Court (Judge Montgomery) for offences that included aggravated burglary — person present, and criminal damage, for which he was sentenced to a total of two years’ imprisonment, with a non-parole period of 18 months; and
(f) on 19 September 2013, he appeared in the Melbourne County Court for a number of offences including reckless conduct endangering life and trafficking methylamphetamine, for which he was sentenced to a total aggregate sentence of 20 months’ imprisonment, with a non-parole of 14 months.
The judge took into account a report from Mr Patrick Newton, Clinical and Forensic Psychologist, dated 4 May 2016, who had interviewed the applicant on 21 April 2016. That report contained a history that covered:
(g) ‘a chaotic and abusive family environment’ in which he had been abused by his stepfather;
(h) homelessness and an unstable lifestyle;
(i) some apprenticeship training but lengthy periods of unemployment;
(j) drug use that commenced with cannabis by the age of 14, amphetamines by the age of 16, and methamphetamine use from about the age of 18; and
(k) the applicant’s efforts to deal with his drug use had been minimal.
Having considered Mr Newton’s report, the sentencing judge said to the applicant:
Your insight, however, remained at an unsophisticated level and, as Mr Newton noted, your ability to maintain your abstinence in the community was untested.
In the opinion of Mr Newton, you presented with a history of conduct disorder in childhood, together with prominent features of anti-social personality, although those diagnoses, he said, failed to meet the criteria for anti-social personality disorder. You were an immature man.
Turning to his opinion, your drug addiction attracted a diagnosis of severe and chronic substance abuse disorder with regard to methamphetamine and cannabis in early remission in a controlled environment, that is, in prison.
Whilst you had some heightened anxiety and depression as a result of your current legal proceedings, those were, in the opinion of Mr Newton, within normal bounds for a person in your situation.
In terms of furthering your rehabilitation, Mr Newton recommended you participate in treatment programs, drug education and counselling, training and living skills. Upon your eventual release, you would require extensive support and assistance to engage successfully in the community. You would be at risk of relapse to substance misuse following your release.[5]
[5]Sentencing remarks [88]–[92].
The sentencing judge said that she considered that both incidents involved offending of a serious nature and that the offending, particularly during the second incident, would have been very distressing to the applicant’s victims. She rejected a submission that there should be a combined sentence involving incarceration and a community corrections order. She said:
In my opinion, to impose such a combination disposition as urged, would not adequately or appropriately reflect all relevant sentencing considerations in your case, but would rather in my opinion, result in a manifestly inadequate sentence.[6]
[6]Ibid [123].
Counsel for the applicant referred the sentencing judge to R v Lacey[7] and said that the applicant’s moral culpability had been affected by his drug taking since he was a teenager as well as the chaotic circumstances of his upbringing and the abuse that he had suffered. The judge did not consider Lacey of particular assistance. She said:
[7](2007) 176 A Crim R 331 (‘Lacey’).
In my opinion, that decision has very limited application when sentencing you. At the least, very different offending was involved. Lacey involved a charge of trafficking in heroin and involved the offender ‘trafficking’ to provide funds to support his own drug addiction. That is not the case on the facts before me. It was in that context, that is Lacey, of that offending that the court referred to the decision of R v Nagy … R v Burchard … and R v McKee …
The court also noted in Lacey:
The offender’s addiction will only call for mitigation of punishment where it is established on the balance of probability that there is a link between that addiction and the commission of the offences.
Regarding the latter, there is a real issue as to whether your addiction to drugs was the cause of your offending on 14 September and 30 October 2015, and in that regard, I note the report of Mr Newton (paragraph 24) which I read out earlier in these sentencing remarks.[8]
[8]Sentencing remarks [113]–[115] (citations omitted).
The sentencing judge concluded her remarks as follows:
[Counsel for the applicant] submitted that your immaturity reduced your moral culpability for your offending, together with your history of drug use and disadvantaged background. I do not agree. In my opinion, your moral culpability in both these instances of your offending is high.
[Counsel for the applicant] submitted your mother had been visiting you in custody, and that Ms Apostolides was intending to return to the Magistrates’ Court to relax the condition that you not be permitted to have contact with her, or to have the intervention order currently in place withdrawn in its totality.
[Counsel for the applicant] conceded general deterrence was a relevant consideration when sentencing you.
[Counsel for the applicant’s] primary submission was that the appropriate way to deal with you for all of these offences was a term of imprisonment, together with a community correction order. I discussed with [counsel for the applicant] the limitation of such a combination disposition including the maximum period of imprisonment that could be so ordered.
[The prosecution] submitted an immediate custodial disposition was the only appropriate sentence and that a combination disposition would not be appropriate in all the circumstances.
[The prosecution] submitted when considering Lacey, your drug addiction, the need for a term of imprisonment for your offending, outweighed any consideration that should be given to reduction in your moral culpability.
Turning to your rehabilitation prospects, I have grave concerns, in particular given your prior and relevant criminal offending. Although one cannot, however, give up hope of your eventual rehabilitation, and in fixing an appropriate sentence, I must seek to maximise your chances of rehabilitation as they may be.
I have carefully considered [counsel for the applicant’s] submission on disposition. In my opinion, to impose such a combination disposition as urged, would not adequately or appropriately reflect all relevant sentencing considerations in your case, but would rather in my opinion, result in a manifestly inadequate sentence.
As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
There is also the need for specific deterrence when sentencing you, given your prior relevant criminal history.
I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of you re-offending. This continues to concern me.
I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
In sentencing you, I take into account principles of totality and proportionality.[9]
[9]Ibid [116]–[128].
Contentions of the applicant
The applicant submitted that the sentencing remarks betrayed a number of errors.
(1) The sentencing judge had improperly confined the relevance of Lacey to cases that were factually similar. This Court has on several occasions said that the principle in that case is of general application where an offender’s moral culpability was affected by (1) the onset of addiction at a very early age, (2) a background of disadvantage, and (3) being under the influence of drug use at the time of offending.
(2) The judge had not put him fairly on notice that he had not established that he was influenced by drugs at the time of the first incident.
(3) There was an inconsistency: the judge had discounted the influence of drugs on moral culpability but had taken it into account when assessing prospects of rehabilitation. The applicant referred to Wright v The Queen.[10]
(4) On the basis that the community was better protected by fostering rehabilitation, the applicant contended that a community correction order should have been imposed.
(5) Finally, the applicant said that the sentence of 10 months’ imprisonment for the charge of criminal damage was manifestly excessive. In another context, the offence would have merited no more than a fine. The Court could not allow the whole context of the first incident to colour the criminal damage; the applicant had been punished separately for the offence of reckless conduct endangering serious injury.
[10][2015] VSCA 333.
Contentions of the respondent
The respondent submitted that all the sentences were within range. The relative punishments for reckless conduct endangering serious injury and criminal damage were explained by the separate maximum sentences for each offence. On the charge of reckless conduct endangering serious injury, the judge sentenced the applicant to 16 months’ imprisonment for an offence that had a five year maximum. In respect of the criminal damage charge, the judge had sentenced the applicant to 10 months’ imprisonment for an offence that had a 10 year maximum. The respondent said that, given the prior convictions of the applicant, a custodial sentence for criminal damage was all but inevitable. The respondent said that the judge had not misapplied Lacey. Rather, her Honour had considered that the need to protect the community was a weightier consideration in all the circumstances.
Ground 1: specific error
In the present case, there were two separate incidents some six weeks apart that led to the charges. The first incident on 14 September 2015 involved the driving through the city and, finally, driving through the boom gate. The initial driving was highly dangerous to other people. The applicant has acknowledged as much by his pleas of guilty. In respect of the first incident, he was sentenced to a total of 26 months’ imprisonment.
The sentencing judge took as the base sentence the conviction for aggravated burglary that arose in the second incident about which no complaint is made. In order to ensure that the punishment was not oppressive, the judge provided for a degree of cumulation in respect of each sentence.
In respect of each incident, we do not accept that the sentencing judge fell into error in her application of Lacey.[11] The judge’s remarks in relation to Lacey have been set out above.[12]
[11](2007) 176 A Crim R 331.
[12]See [28]–[29] above.
Immediately after counsel for the applicant had addressed the judge on Lacey, the transcript records the following interchange between the judge and the prosecution:
The Court: All right, what do you have to say about Lacey point?
Counsel:That the nature of the offending involving serious risk to the public and also serious — I shouldn’t say serious — and domestic violence is such that a period of imprisonment … is warranted.
The Court:Yes — no, I’ve got that. I mean I note that, that’s what you said, yes, all right.
Counsel:If it’s a balancing exercise, I’m saying that it’s — Your Honour, if you’re balancing and Lacey and the problems of addictions as opposed to the serious nature of the offending
The Court: I see.
Counsel:The Crown submission here is that the serious nature of the offending outweighs it.
The Court:I understand what you’re saying. How’d you go with the priors?
Counsel for the applicant is correct in his submissions that the principles in Lacey are not confined solely to cases of drug trafficking; they are of general application. However, we do not think that the judge’s reasons should be interpreted as denying the proposition in Lacey that, where drugs are involved in the commission of an offence, the circumstances in which an offender may have become addicted to drugs can have a bearing on his or her moral culpability. However, this is only one of the circumstances that must be considered when a court is tasked with sentencing drug-affected offenders. The judge did not say that Lacey was irrelevant; she said that it had ‘very limited application’ when sentencing the applicant. It seems that, in doing so, she was comparing the sheer gravity of the applicant’s offending with what might have been less serious conduct (‘very different offending’). It is plain that the judge adopted the submission of the prosecution when she said:
[The prosecution] submitted when considering Lacey, your drug addiction, the need for a term of imprisonment for your offending, outweighed any consideration that should be given to reduction in your moral culpability.[13]
[13]Sentencing remarks [121].
In sentencing the applicant, the judge had a further reason for discounting the significance of Lacey. She pointed out that the Court had said in that case that an offender’s drug addiction ‘will only call for mitigation of punishment where it is established on the balance of probabilities that there is a link between that addiction and the commission of the offences’.[14] In the present case, she said that there was doubt that the applicant’s drug addiction had played any part in his conduct in either incident.[15] The applicant contends that this was an error and that there was a plain evidentiary foundation that linked the applicant’s drug abuse and his offending in the first incident.
[14]Lacey (2007) 176 A Crim R 331, 334 [16].
[15]Sentencing remarks [115].
The only evidence before the sentencing judge on this point was the report of Mr Newton. In his report, Mr Newton had referred to the fact that the applicant was intoxicated with methamphetamine, alcohol and cannabis at the time of the first incident and that he
had told him of ‘clear signs of physical dependence on the drugs he has abused’. The report continued:
Not only has he developed a significant level of tolerance to the drugs’ effects, but he has also suffered withdrawal symptoms when he has been forced to abstain from or reduce his intake of the drugs. His drug use has been compulsive and its noxious impacts have permeated almost every area of his life. Moreover, the mounting toll of his drug use upon his mental and emotional stability and the cumulative effects of his inability to participate in mainstream society in any but the most marginal fashion have further reinforced his sense of alienation and isolation from the world at large. In this manner his drug addiction has been maintained by physical, psychological and social factors which have rendered it resistant to his relatively scant previous efforts at abstinence.
Mr Beasley’s intoxication with methamphetamine and (potentially) with other substances would have impaired his already suspect judgment further and would have been likely to disinhibit him and increase his level of impulsivity. I do not consider, however, that it would have obscured his ability to form the intention to commit the various offences with which he has been charged, or that he would not have been capable of understanding the nature and likely consequences of his actions at the relevant times.
Reflecting the absence of treatment, Mr Beasley’s insight into his drug addiction remains largely intuitive.
In the circumstances, we do not see any error in the sentencing judge’s conclusion that ‘there [was] a real issue as to whether [the applicant’s] addiction to drugs was the cause of [his] offending on 14 September’.[16] Particularly, we reject the applicant’s submission that the finding that there existed a material causal link between his drug addiction and the first incident was irresistible. Mr Newton’s report indicated that, though the presence of drugs would have been likely to affect the applicant’s ability to think clearly, it remained the case that he would have understood the wrongfulness of his conduct and its likely consequences.
[16]Ibid.
We do not think that the judge’s remarks betray any error in the application of Lacey. The sheer gravity of the applicant’s conduct and its menace to his family and the rest of society called for stern punishment.[17] Given the applicant’s prior criminal record, the judge was correct in holding that specific deterrence was a relevant consideration.[18]
[17]Ibid [126].
[18]Ibid [125].
Ground 2: Manifest excess
The ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options’ available to the sentencing judge. It must be demonstrated that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which she did if proper weight had been given to all the relevant circumstances of the offending and the offender.[19]
[19]R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ), 568 [56] (Bell and Gageler JJ); R v Kilic (2016) 91 ALJR 131, 140–1 [36].
In respect of the first incident, we think that the sentence for criminal damage is outside the range of that reasonably open. The maximum sentence for a contravention of s 197 of the Crimes Act 1958 (criminal damage) is 10 years’ imprisonment. The maximum sentence for a contravention of s 23 of the Crimes Act 1958 (reckless conduct endangering serious injury) is five years’ imprisonment. No doubt all that was understood by the sentencing judge. It is probable that that understanding explained the sentencing: the sentence for criminal damage was a lower proportion of the maximum sentence for that offence; the sentence for reckless conduct endangering serious injury was a higher proportion of the maximum sentence for that offence. Nevertheless, in the present case, the conduct involving in the charge of reckless conduct endangering serious injury was immeasurably more grave than the conduct involving the destruction of the boom gate.[20] The applicant’s conduct in driving onto and along crowded footpaths in the city requires little comment. No one was killed or injured; but, the applicant’s reckless conduct placed many in danger of serious injury. In our view, taken in itself, the sentence for criminal damage was manifestly excessive.
[20]Similarly, the conviction for the assault on his partner (for which he received a sentence of 6 months’ imprisonment) related to conduct immeasurably more grave than the destruction of the boom gate.
In respect of the second incident, we see no error in the punishment that has been imposed. The applicant brutally assaulted both his de facto partner who is the mother of his child and his own mother. When the women took refuge in a neighbour’s house, the applicant broke into the house claiming that he had an AK-147 and threatened to kill them all. The situation must have been terrifying.
The sentencing judge attached to her reasons the sentencing remarks of three other County Court judges called upon to deal with the applicant’s violence. The judge was surely correct in identifying the need for the protection of members of the community[21] and being sceptical of the applicant’s rehabilitation prospects.[22]
[21]Sentencing remarks [126].
[22]Ibid [122].
We dismiss the contention that the sentences (other than the sentence for criminal damage) were manifestly excessive. The gravity of the offending, the need for just punishment, denunciation, specific and general deterrence, and protection of the community well justified the sentences imposed.
Resentence
In respect of the sentence for criminal damage, we would grant the application for leave to appeal and allow the appeal. We would set aside the sentence imposed below and, in lieu thereof, the appellant is sentenced to a term of imprisonment of four months. We would order that there be one month’s cumulation on the base sentence.
Otherwise, we would dismiss the application for leave to appeal against sentence. We would maintain the sentences in respect of Charges 1, 3 and 4 and Summary Charge 29 together with the cumulation imposed with respect to them by the sentencing judge.
We would declare pursuant to s 6AAA of the Sentencing Act 1991 that but for the applicant’s pleas of guilty we would have fixed a total effective sentence of seven years’ imprisonment with a non-parole period of five years.
In the event, after the conviction in respect of Summary Charge 27 is set aside, the resentence on the charge of criminal damage, the revision of the order for cumulation of that sentence on the base sentence and the adjustment of the non-parole period, the applicant must serve the following sentence:
Charge No
Offence
Maximum
Sentence
Cumulation
Reckless Conduct Endangering Serious Injury
[Crimes Act 1958 s 23]5 years’ imprisonment 16 months’ imprisonment 10 months Criminal damage
[Crimes Act 1958 s 197]10 years’ imprisonment 4 months’ imprisonment 1 month Common law assault 5 years imprisonment 6 months imprisonment 2 months Aggravated burglary
[Crimes Act 1958 s 77]25 years’ imprisonment 3 years and 6 months’ imprisonment Base Summary Charge 8 Careless driving
[Road Safety Act 1986 s 65]12 penalty units
Convicted and fined $300 — Summary Charge 29 Assault by kicking
[Summary Offences Act 1966 s 24]2 years’ imprisonment 2 months’ imprisonment 1 month Total Effective Sentence: 4 years and 8 months’ imprisonment Non-Parole Period: 3 years and 3 months’ imprisonment Pre-Sentence detention declaration pursuant to section 18(1) of the Sentencing Act 1991: 601 days S6AAA Statement: 7 years’ imprisonment with a non-parole period of 5 years Other relevant orders: Licence cancelled and disqualified from driving for a period of 5 years from 30 October 2015 in relation to Summary Charge 8
In summary, the Court will order:
(l) there be leave to appeal against conviction in respect of Summary Charge 27;
(m) the appeal against conviction be heard instanter and allowed;
(n) the order of the County Court on 13 May 2016 with respect to Summary Charge 27 (including the forfeiture order) be set aside;
(o) Summary Charge 27 be transferred by consent to the Magistrates’ Court at Melbourne for hearing on 3 August 2017 in accordance with law;
(p) leave to appeal be granted against the sentence imposed with respect to Charge 2 only;
(q) the appeal against such sentence be heard instanter and allowed;
(r) the sentence of 10 months’ imprisonment upon Charge 2 be set aside and a sentence of four months’ imprisonment be substituted in lieu thereof;
(s) one month of the term of imprisonment imposed upon Charge 2 be cumulated upon the sentences otherwise imposed in respect of Charges 1, 3 and 4 and Summary Charge 29;
the sentences otherwise imposed in the County Court on 13 May 2016 be affirmed with respect to Charges 1, 3, and 4 together with the sentences imposed on Summary Charge 8 and Summary Charge 29 and the cumulation imposed with respect to Charges 1, 3 and Summary Charge 29 upon the sentence imposed in respect of Charge 4 and upon each other also be affirmed;
(t) the total effective sentence of imprisonment and non-parole period fixed in the County Court on 13 May 2016 be set aside and a total effective sentence of four years and eight months’ imprisonment with a non-parole period of three years and three months be substituted in lieu thereof;
(u) the Court declares pursuant to s 18(1) of the . a period of XX days by way of pre-sentence detention;
(v) the Court declares pursuant to s 6AAA of the Sentencing Act 1991 that but for the applicant’s pleas of guilty it would have fixed a total effective sentence of seven years’ imprisonment with a non-parole period of five years in respect of Charges 1, 2, 3 and 4 and Summary Charges 8 and 29; and
(w) the order of the County Court with respect to cancellation of the applicant’s driver’s licence and disqualification from driving be affirmed.
CROUCHER AJA:
Introduction
I have had the benefit of reading the judgment of Osborn and Santamaria JJA in draft. I agree, for the reasons their Honours give, with the orders they propose. I wish to add only the following remarks.
Sentence application and re-sentencing
In my view, the sentences imposed for the offences in Charge 1 (reckless conduct endangering serious injury), Charge 3 (common assault) and Summary Charge 29 (assault by kicking) were modest.
The applicant’s driving of the BMW was very dangerous. It is no exaggeration to say that very serious harm might have been caused to police and several civilians. It would have been open to impose a heavier sentence for that offence. While the level of cumulation was firm, I think it was well open to the judge.
The assaults were nasty offences. The applicant’s behaviour in punching and kicking Ms Apostilides and kicking his mother, both in the presence of his two-year-old daughter, was both cowardly and disturbing. Again, it would have been open to impose a heavier sentence, and a greater level of cumulation, for each offence.
The aggravated burglary in Charge 4 was also a very serious offence. The applicant kicked his way into the home of Ms Walker, who was only trying to help the other terrified women, while threatening to kill all inside. It was well open to the judge to impose a sentence of three-and-a-half years’ imprisonment and make it the base sentence.
It is only the sentence, and the order for cumulation, on the offence of criminal damage in Charge 2 that is afflicted with any error. While the behaviour in driving the car through the boom gate had a serious element to it, I agree that the resulting sentence of 10 months’ imprisonment, and the order for four months’ cumulation, are both manifestly excessive.
I am not satisfied that either the total effective sentence or the non-parole period is manifestly excessive or otherwise fails adequately to take account of totality. Allowing fully for the matters in mitigation, including the applicant’s early pleas of guilty, the two sprees of offending required a total effective sentence and non-parole period of the order imposed by the judge. In my respectful opinion, her Honour was manifestly correct to reject the submission that a community correction order combined with a prison sentence would be an appropriate sentence.
Nor am I satisfied that, other than the new sentence and order for cumulation in respect of the offence of criminal damage and the consequential setting aside of the sentence and order for cumulation on the drug offence because of a fundamental irregularity, any different sentence or order for cumulation should be passed or made in respect of the other offences.
Accordingly, I agree that, while the new sentence on the offence of criminal damage should be four months’ imprisonment with one month’s cumulation, and while the conviction, sentence of one month’s imprisonment and direction for seven days’ cumulation in respect of the drug offence must be set aside, no other orders on sentence should be altered. It follows that I agree that the resulting total effective sentence should be four years and eight months’ imprisonment with a non-parole period of three years and three months.
The drug offence
Had the drug offence (in ‘Summary’ Charge 27) been before this Court as part of the re-sentencing exercise, I would have proposed setting aside the order for cumulation and directing that the one month sentence be served concurrently with the other sentences. It appears that the offence involved a small amount of methylamphetamine for personal use. When regard is had to totality, I do not think it was open to add seven days’ cumulation of that sentence upon the other sentences, for the offence added virtually nothing to the overall seriousness of the offending. Indeed, it would have been open to convict and discharge the applicant on this offence.
I agree that the charge should be remitted to the Magistrates’ Court, since there is an irregularity in the conviction and given that that is what both parties submitted should occur. However, in the grander scheme of things — including the length of the total effective sentence and non-parole period the applicant is serving and the nature of the offence — it hardly seems worthwhile burdening that (already very busy) court with a single charge of this type in this particular case. It is of course a matter for the Director, but I think a reasonable course for all concerned might be to withdraw the charge.
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