Lord v The Queen
[2017] VSCA 29
•24 February 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0194
| AARON LORD | Applicant |
| v | |
| THE QUEEN | Respondent |
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DETERMINED ON THE PAPERS
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| JUDGES: | TATE and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF JUDGMENT: | 24 February 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 29 |
| JUDGMENT APPEALED FROM: | DPP v Lord [2016] VCC 1259 (Unreported, County Court of Victoria, Judge Smallwood, 25 August 2016) |
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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Sentence – Election to renew application for leave to appeal against sentence – Applicant sentenced to five years and seven months’ imprisonment with a non-parole period of three years and nine months on one charge each of armed robbery, making a threat to kill, intentionally causing injury and false imprisonment – Whether sentence manifestly excessive – Whether trial judge erred in classifying false imprisonment as one of worst possible examples of this offence – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances |
TATE JA
PRIEST JA:
Introduction
On 25 August 2016, the applicant pleaded guilty in the County Court to one charge of armed robbery,[1] one charge of making a threat to kill,[2] one charge of intentionally causing injury[3] and one charge of false imprisonment.[4]
[1]Crimes Act 1958, s 75A. The maximum sentence is 25 years’ imprisonment.
[2]Crimes Act 1958, s 20. The maximum sentence is 10 years’ imprisonment.
[3]Crimes Act 1958, s 18. The maximum sentence is 10 years’ imprisonment.
[4]Common law. By virtue of s 320 of the Crimes Act 1958, the maximum sentence is 10 years’ imprisonment.
The judge imposed a total effective sentence of five years and seven months’ imprisonment, with a non-parole period of three years and nine months’ imprisonment, in accordance with the following table:
Charge Offence Sentence Cumulation 1 Armed robbery 3 years 3 months 2 Threat to kill 1 year 2 months 3 Intentionally cause injury 1 year 2 months 4 False imprisonment 5 years Base Total effective sentence 5 years and 7 months’ imprisonment Non-parole period 3 years and 9 months imprisonment Pre-sentence detention 285 days Section 6AAA statement 8 years and 6 months’ imprisonment with a non-parole period of 5 years and 6 months
The applicant sought leave to appeal against the sentence on two grounds:
1. That the total effective sentence imposed was manifestly excessive having regard to the following particulars:
(A) The nature and gravity of the offence including the injuries to the victim and the applicant’s personal circumstances such as age, and mental health condition namely, borderline anti-social personality disorder.
(B) The principles in Karpinski and Renzella cases.
(C) That the sentence imposed on the armed robbery offence having regard to nature and gravity and the personal circumstances of the applicant was excessive.
2. That his Honour erred in classifying the false imprisonment as one of the worst possible examples.
Weinberg JA refused the application for leave to appeal on 20 December 2016.[5]
[5]Lord v The Queen (Unreported, 20 December 2016, Weinberg JA) (‘Leave reasons’).
Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant sought to have the application determined ‘on the papers’ by this Court.
For the reasons that follow, we too have determined that the application for leave to appeal against sentence should be refused.
The offending
We gratefully adopt the description of the applicant’s offending set out by Weinberg JA in his reasons:[6]
[6]Leave reasons [4]–[17].
On the morning of 4 June 2015 the victim, CP, received a text message from the applicant. The message asked him if he would assist in moving a kitchen cabinet at the applicant’s home.
At around 11:00 am the applicant collected the victim and drove him to the applicant’s home. The men then went into the lounge room. At that stage, two co-offenders, Troy Briscoe[7] and Rheannon Vanek[8] came into the room.
[7]Briscoe was sentenced to a total term of six years’ imprisonment with a non-parole period of four years for his involvement in this offending.
[8]Vanek, who faced fewer charges than either of the other co-offenders received a sentence of nine months’ imprisonment, combined with an 18 month Community Correction Order.
Charge one — armed robbery
The applicant locked the front door, and Briscoe stood guard. CP sat down. The applicant said, ‘Where’s my money, cunt?’, and told CP to empty his pockets. It seems that CP owed the applicant $200 as payment for some ‘ice’ that the applicant had provided to him. CP said that he had given the money to a third party, who was meant to pass it on to applicant.
The applicant then began swinging a golf club, which was in the lounge room, at CP from a distance of about three metres. By then, visibly agitated, he said to CP ‘You owe me over $500’. He aimed the golf club at CP’s knee and said ‘500 bucks is pretty much a kneecap. Convince me I shouldn’t do it.’ The applicant then demanded that CP contact friends or family to get the money. While CP was making these calls, Briscoe held a knife to his throat.
Vanek then obtained another knife from the kitchen. She returned to the lounge room armed with that knife.
Charge two — threat to kill
Briscoe said to CP, ‘if you slip up and tell anyone, I’ve got no problem killing you’ (first part of charge two). The applicant said to Briscoe, ‘Not just yet.’
Charge three — intentionally causing injury
Next, the applicant swung the golf club at CP. As a result, CP was struck by the club on his leg and hand. The applicant then took another swing at CP’s legs but he managed to avoid being struck a second time. Vanek brought a tarpaulin into the room and laid it out in an effort to avoid getting blood all over the area. The applicant then said to CP, ‘Get on your knees. You’re going to die today’ (second part of charge two).
Briscoe tied a cord around CP’s neck, and used it to choke him into unconsciousness. When, shortly afterwards, CP regained consciousness, the three offenders were all taking turns to punch and kick him. The applicant again tied the cord around CP’s neck and choked him. On this occasion, Briscoe stopped the applicant just as CP was about to lose consciousness again.
Charge four — part one of false imprisonment
Briscoe ‘hog tied’ CP. The applicant and Briscoe told CP that they were going to take him down to the bush and kill him. They said no one would miss him (part of charge two — threat to kill).
The three co-offenders dragged CP in the tarpaulin into the back yard. Briscoe used a cigarette to burn the back of CP’s neck (part of charge three).
They then put CP into the boot of the applicant’s car. Briscoe told him to be quiet, or he would kill him ‘then and there’ (part of charge two – threat to kill). The offenders struck CP several times to his head and feet, and locked him in the boot.
The applicant and Briscoe then drove the car around for a time, with CP still locked in the boot.
On returning to the applicant’s house, the applicant opened the boot and said, ‘We’re going to hold you hostage in the shed until you can work out how to pay me. For your sake, you want to hope that your ex pays up tomorrow.’
False imprisonment continues
The applicant and Briscoe put CP in a shed, the door of which was secured with a cable tie, barrel nut and bolt set. CP eventually escaped during the night and called the police.
On 5 June 2015, a medical examination of CP at hospital revealed:
· slight nasal tenderness;
· marked bruising around the eye;
· tender and swollen nose and occiput;
· ligature marks around his wrists and ankles;
· a three centimetre burn on the back of the neck; and
· a visible bruise on the right upper thigh.
After examination, the victim was discharged, his treatment consisting of analgesia.
The applicant was arrested at about 5.00 am on 5 June 2015. When interviewed by police, he agreed that he had picked up CP the day before and taken him back to his address. When they got there they ‘cracked a can and sat down. That’s about it’. Asked if he recalled pointing a golf club at CP, demanding $500 from him, and threatening to hit his knee with the club, the applicant replied ‘Nuh’. And when asked if he struck CP with the golf club or threatened to kill him, the applicant declined to comment. The applicant denied allegations of committing an armed robbery or falsely imprisoning CP.
The sentencing remarks
The judge noted that the applicant is younger[9] than Briscoe[10] and has fewer prior convictions. Moreover, the applicant had not had ‘as much difficulty in the prison system since [he was] locked up as [Briscoe] has’. Whilst Briscoe ‘was actively involved’ in the offending, it was ‘clear’ that the attack on CP was the applicant’s idea. Parity ‘has to play a part’, the applicant was to receive ‘a lesser sentence’ because of his age and ‘somewhat lesser priors’ (‘which do not involve that much violence, but certainly involve serious offending’).
[9]The applicant was aged 23 at the time of offending, and is now aged 25 years. His date of birth is 19 February 1992.
[10]Briscoe was aged 31 years at the time of offending, and was 32 when sentenced. Vanek was aged 28 years at the time of offending, and was 29 when sentenced. The victim, CP, was aged 30 years at the time of the offending.
Of some significance was a conviction imposed in September 2012, which resulted in the applicant being sentenced to 14 months’ imprisonment. The judge summarised the circumstances of the applicant’s offending on that occasion:[11]
That sentence included false imprisonment and recklessly cause injury and threat to kill. The circumstances of the offending that gave rise to that were that you and another went to an address and abused a victim through a doorway over some unknown matter. One would suspect drug debts, but anyway a number of you then forced your way into this man's unit, assaulted him by punching and kicking him.
He has attempted to get to his phone to call the police, however you, Mr Lord, have taken his phone, removed the battery. You have then held him down on the couch and using a knife from his kitchen held it to his throat. You warned him not to tell anyone or you would do worse. The three of you then forced him to walk to a shopping centre where he was made to withdraw a hundred dollars from his bank account and then a further $600.
He was then walked back to his house or his unit where other things were stolen from him. He received head injuries, including a black eye and bruising to his face, head and soreness over his body. In your situation, Mr Lord, that also has a very unfortunate echo as to what occurred to the gentleman in this case, and whilst … you were given that sentence back in 2012 for that type of offending, and you don’t seem to have learned a lot.
[11]Emphasis added.
The judge also took into account a report of a forensic psychologist, Mr David Ball, dated 23 August 2016, who regarded the applicant as having a problem with ‘anti-social and self-defeating personality features’, and as satisfying the criteria for severe ‘anti-social personality disorder’. As the judge described it, Mr Ball thought the applicant to be a ‘person who has had a difficult childhood who has a personality disorder who has resorted to the use of drugs, and all that in combination has resulted in violent offending against other people’. There was no suggestion, however, that Verdins[12] considerations were enlivened.
[12]R v Verdins (2007) 16 VR 269.
As to the applicant’s prospects of rehabilitation, the judge assessed his risk of re-offending as ‘relatively high’.
Finally, we note that the judge said that he had taken into account ‘the Renzella time’, although ‘not in a mathematical way’.[13]
[13]The circumstances of ‘the Renzella time’ (so-called) are described at [32] below.
Ground 2 — One of the worst examples of false imprisonment?
It is convenient to turn first to the second ground, which, it seems, asserts specific error.
In the written case, it was submitted for the applicant that the sentencing judge ‘may have erred in classifying the false imprisonment as one of the worst examples’. Although it was acknowledged that the offending was serious — as is reflected by the prescribed maximum penalty and the particular circumstances of this offence — it was submitted that ‘the injuries sustained by the victim could not be put towards the higher end’. Thus, so the applicant submitted, it was not open to the judge to sentence the applicant as if the false imprisonment in this case fell into ‘the worst category’. The exercise of the sentencing discretion was thereby vitiated.
The respondent submitted that, insofar as he seeks to classify the seriousness of the false imprisonment merely by reference ‘to the nature and level of injuries inflicted on the victim’, the applicant’s contentions are misconceived. Thus, a serious instance of false imprisonment might not involve any injuries at all, whereas very serious injuries might arise from a relatively minor false imprisonment. It was submitted that the acts constituting the false imprisonment were aggravated by the preceding events. Three offenders were present, repeated threats of death were made (and a tarpaulin placed beneath the victim), and the victim was repeatedly assaulted — using a variety of weapons over a protracted period — resulting in multiple injuries and the loss of consciousness.
Further, the respondent submitted that from the time that the false imprisonment commenced, there was further violence meted out to the victim, which included him being hog-tied, threatened with being taken into the bush and killed, dragged in the tarpaulin to the backyard, burned on the back of his neck, shoved into the boot of the car, threatened that he would be immediately killed unless he was quiet and kicked to the head while in the boot. Thus, the judge was correct to find that, after he had effectively been ‘tortured’ over a period of time, the victim believed he was being taken to be executed. The victim was held captive in the boot of a car for about half an hour, during which period he must have felt terror and absolute dread, believing he was to be executed, until being removed and locked in another confined space, where he remained captive for an extensive period. Therefore the judge properly found that the offending was a ‘particularly ugly’ example of false imprisonment.
The applicant seized on the following remarks made by the judge in the course of the plea by counsel for Vanek. The judge said:[14]
But insofar as false imprisonments go, they don’t get much worse, do they? When you put a bloke in the back of the car and have him being beaten and there’s three of you, whether she had it or not, there’s weapons involved. He’s told he’s going to be killed on a number of occasions. He’s told he's going to be taken into the bush and executed. He’s then put in the boot of a car and driven around for half an hour. What do you reckon that’s going to do? …
…
Yes. Insofar as, I don’t care what the background of it is, and ice and all that sort of stuff, that’s all very well, and people operate within milieus, if I can put it that way, but that’s about as bad a false imprisonment as you get, isn’t it, per se? You’re being put in a boot, total darkness by three people who have been basically torturing you for a couple of hours and you're taken out in the bush to be executed. …
[14]Emphasis added to this and succeeding extracts.
It is important to take note of some of the other observations made by the judge. Thus, later, in discussion with counsel for Briscoe, the judge remarked:
I can indicate to you this is — I said to [counsel for Vanek] — this is a bad, bad, bad, bad false imprisonment.
Later still, shortly before the plea in mitigation by the applicant’s counsel commenced, the judge observed:
I just want to make it clear in terms of the seriousness of it. I mean this bloke was tortured. I’ve seen the photos of the burns on his neck. That’s not just a dab, that’s nasty stuff, and I’m not going to berate counsel with it or put you in a position where you sort of keep arguing things that are inarguable. This is a very serious assault and false imprisonment in my view.
Moreover, counsel for the applicant accepted that the false imprisonment was a ‘bad example’ of the offence in the following exchange:
[COUNSEL] Of course I rely on the well-worn principles of totality and parity and parsimony. Totality is going to be significant and submission three is the false imprisonment charge substantially encompasses the offending conduct. It was a bad false imprisonment. So that would be the base or the head sentence that Your Honour would be considering.
HIS HONOUR: Look, as I say, I have to think this through but that would be my view, that the false imprisonment would be the head sentence.
In the written case, the applicant also sought to rely on the following observations in the judge’s sentencing remarks:
… The offending has got to be regarded in my view as very serious. I have indicated already during the course of the plea that I regard the unlawful imprisonment as a particularly ugly example of that crime.
From the foregoing, it may be seen that, in discussion on the plea, the judge described the false imprisonment in this case as ‘bad’ and ‘very serious’, and as ‘about as bad a false imprisonment as you get’, in circumstances where ‘they don’t get much worse’. And in his sentencing remarks, the judge described the false imprisonment as ‘very serious’ and ‘a particularly ugly example of that crime’.
In our view, the judge’s descriptions of the false imprisonment were entirely apt. It must be borne in mind that the false imprisonment in this case was a continuing offence. Quite apart from what had transpired before the false imprisonment began — which provided the context — once the false imprisonment commenced, the hapless victim was hog-tied, repeatedly threatened with death, dragged in the tarpaulin to the backyard, burnt on the neck, put into a confined space, kicked to the head and subjected to other violence. The confinement, assaults and threats of death to which CP was subjected over a relatively protracted period must have been nothing short of terrifying for him. Indeed, the judge was justified in finding that the victim had effectively been ‘tortured’. Any assessment of the gravity of the offence required attention to those aggravating features.
Although, of course, the instant offence was not the worst example[15] of false imprisonment imaginable — the judge did not say that it was — nonetheless it was an ugly, bad, very serious example of the crime, in circumstances where, as a matter of experience, worse examples are not common. We are unable to see that the sentencing judge erred in his assessment of the gravity of the offence.
[15]See R v Kilic (2016) 339 ALR 229, 234–5 [17]–[20].
Ground 2 is without substance.
Ground 1 — Is the sentence manifestly excessive?
In the written case, a number of the applicant’s submissions in support of the first ground were expressed somewhat tentatively.
Thus, it was submitted that ‘the sentence may have been excessive after having regard to the injuries sustained by the victim’, and that ‘the majority of the injuries alleged by the Crown in an agreed prosecution opening were not a direct result of the false imprisonment offence and this may have resulted in a sentence being manifest excess’. We take the gravamen of the complaint overall to be, however, that the sentence of five years’ imprisonment imposed on the charge of false imprisonment is excessive, particularly having regard to the relatively minor injuries sustained by the victim as a direct result of that offence. Moreover, it is submitted the sentence ‘may have been outside the range’ when regard is also had to the plea of guilty, remorse, the applicant’s age, his anti-social personality disorder and ‘Renzella time’.[16] It was further submitted that, recognising that the maximum penalty for false imprisonment is ten years’ imprisonment, once the early plea of guilty and Renzella time were taken into account, the individual sentence of five years imposed for the offence ‘may have been manifestly excessive’.
[16]See R v Renzella [1997] 2 VR 88 (‘Renzella’). See also Karpinski v The Queen (2011) 32 VR 85.
Finally, the applicant submitted that the sentence of three years’ imprisonment for armed robbery ‘may have also been excessive’ in light of the ‘gravity and nature of the offence’, and having regard to mitigating features.
The respondent pointed to a number of serious features of the applicant’s offending, which it is unnecessary to recapitulate. It was submitted that the judge paid due regard to the mitigating circumstances, including the guilty plea, the applicant’s age, his very unfortunate upbringing (including growing up around violence and being physically punished) and other aspects of his background, his difficulties in the prison system (including being in lockdown) and the delay in the charges being finalised (albeit not in a significant way). It was pointed out that — as the applicant’s counsel had acknowledged on the plea — Verdins principles were not enlivened.
With respect to Renzella time (so-called), the respondent submitted that the applicant was remanded on the day of his arrest on 5 June 2015 and, like Briscoe, remained in custody until his sentence on 25 August 2016 — a total of 447 days. Unlike Briscoe, however, during that 447 day period, the applicant served sentences with respect to unrelated matters. First, on 11 June 2015, the applicant was sentenced to a total of four months’ imprisonment, with two days’ pre-sentence detention being declared. This sentence lapsed on 8 October 2015, representing a total of 120 days in custody. Secondly, on 24 September 2014, the applicant was sentenced to a total of 42 days’ imprisonment. This sentence lapsed on 9 November 2014, involving a further 42 days in custody. Thus, so it was submitted, the judge properly declared 285 days as pre-sentence detention pursuant to s 18 of the Sentencing Act 1991 (representing 447 days since arrest, less the 162 days during which the applicant was serving sentences). The respondent submitted that the judge clearly had regard in his sentencing remarks to what he called the ‘Renzella time’ and ‘the loss of opportunity to [order] concurrency’. These remarks followed observations in the course of the plea hearing to the applicant having ‘basically nearly six months of Renzella time’, with 162 days having ‘been eaten up by other matters’. The respondent further contended that the applicant’s time in custody related to service of sentences for separate offending as opposed to a period in detention for a charge for which he was ultimately convicted (or the charge was withdrawn). In a ‘broad and practical way’, the sentencing judge took into account the periods of unrelated detention, and the loss of the potential opportunity to order a degree of concurrency, so as to arrive at a just and appropriate sentence.
When refusing leave, Weinberg JA said:[17]
Taking a broad view of the applicant’s conduct, I cannot conceive of how it could be said that a sentence of five years and seven months’ imprisonment for protracted offending of this gravity, amounting to what could fairly be described as ‘torture’, was wholly outside the range. The applicant’s moral culpability was great. His conduct was cruel, and could even be said to be malevolent. His actions, in attacking his victim in a group were cowardly, and deserving of strong condemnation.
I can detect no error in the sentencing judge’s approach to his task. If anything, the ultimate result so far as the applicant was concerned could properly be regarded as moderate. He was certainly treated appropriately, if not generously, in relation to Renzella time. I see no reasonable prospect that either of his proposed grounds of appeal might succeed.
[17]Leave reasons [56]–[57].
We agree.
We would add this. As the judge observed, the offending for which the applicant was sentenced in September 2012 ‘has a very unfortunate echo as to what occurred to the [victim] in this case’, and notwithstanding that sentence, the applicant does not ‘seem to have learned a lot’. Thus, in our view, quite apart from the need for general deterrence, just punishment and curial denunciation to be adequately reflected in the sentence imposed on the applicant, specific deterrence was of heightened importance. As Charles JA said in O’Brien:[18]
It is of course clear that no principle of sentencing requires that more severe sanctions be administered to those who persist in their criminal behaviour. But an adverse criminal record may impact on the sentencing process in a number of ways; for example, as an indicator of the offender’s moral culpability, his prospects of rehabilitation, his dangerous propensity and the community’s need for protection, and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence.
[18]R v O'Brien & Gloster [1997] 2 VR 714, 718.
Ground 2 is without merit.
Conclusion
The application for leave to appeal against sentence must be refused.
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