Maher v The Queen

[2011] VSCA 136

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0887

PAUL MAHER

v

THE QUEEN

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JUDGES	ASHLEY and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 May 2011
DATE OF JUDGMENT	12 May 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 136
JUDGMENT APPEALED FROM	(Unreported, County Court of Victoria, Judge Hampel, 20 October 2009)

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CRIMINAL LAW – Conviction – Plea of guilty – Whether appellant doubly punished – Facts supporting sentence on one count, as prosecution put its case, in substance punished by conviction and sentence on another count – Leave granted to appeal against conviction on first count – Appeal allowed – Conviction quashed – Judgment and acquittal entered.

CRIMINAL LAW – Sentence – Judge misinformed as to maximum penalty on some charges – Materiality conceded – Whether insufficient account of totality – Whether excessive cumulation of sentences – Appeal allowed and appellant re-sentenced.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D D Gurvich	Melinda Walker
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY, J.A.:

1. Paul Maher, a man born 3 December 1984, and so now aged 26, appeals by leave against sentence imposed upon him in the County Court on 20 October 2009.  He pleaded guilty to the offences which I now summarise, and was sentenced as follows:

Presentment

Count 1	Stalking, between 5 August and 27 August 2008	9 months’ imprisonment (4 months cumulated)
Count 2	Intentionally damaging premises by fire, with intent to endanger life, 27 August 2008	5 years’ imprisonment (1 year cumulated)
Count 3	Possession of an item with purpose of using it to damage premises in a way which he believed was more likely than not to endanger life, 27 August 2008	1 year’s imprisonment
Count 4	Entry as trespasser with intent to damage property, 18 October 2008	2 years and 6 months’ imprisonment (1 year and 6 months cumulated)
Count 5	Stalking, between 18 October and 21 October 2008	1 year and 6 months’ imprisonment (9 months cumulated)
Count 6	Entry as trespasser with intent to assault a person therein, armed with offensive weapons, between 19 and 21 October 2008	5 years imprisonment (Base sentence)
Summary charges uplifted from the Magistrates’ Court
(7)  Breach of Intervention Order, 27 August 2008		4 months’ imprisonment (1 month cumulated)
(8)  Breach of intervention order, 18 October 2008 (by making telephone calls to the complainant)		9 months’ imprisonment (2 months cumulated)
(9)  Breach of Intervention Order, 18 October 2008 (by attending and entering complainant’s residential premises)		9 months’ imprisonment  (2 months cumulated)
(10)  Breach of Intervention Order 21 October 2008 (by attending and entering complainant’s residential premises)		1 year’s imprisonment (3 months cumulated)
(11)  Aggravated cruelty to animal 21 October 2008		1 year and 6 months’ imprisonment (6 months cumulated)
(12)  Resist police 21 October 2008		14 days imprisonment

The total effective sentence was 9 years and 9 months imprisonment. 

The judge fixed a non-parole period of 6 years and 9 months imprisonment. 

The judge made a declaration of 409 days of pre-sentence detention.

Grounds of appeal

1. The appellant relies upon the following grounds of appeal:

Ground 1:The sentencing discretion miscarried in that the LEARNED  Sentencing Judge sentenced the appellant on the basis that the maximum penalty for three of the four summary charges of Breach of Intervention Order was 5 years imprisonment.

Ground 2:The LEARNED Sentencing Judge erred in failing to have sufficient regard to the principles of totality.

Ground 3:The LEARNED sentencing Judge erred in failing to have sufficient regard to the need to avoid double punishment.

Ground 4:     The Sentence imposed was manifestly excessive.

Circumstances

1. The judge described the appellant’s offending, and events which were peripheral to it, as follows:

2.All offences were committed by you were following the break-up of a five-year  relationship with a young woman by the name of Lynne Forehan. During the relationship a child Joshua, who was 18 months old at the time of the offences was born. Ms Forehan was the primary carer for Joshua, and tensions had arisen between you in relation to contact with him following the break-up of the relationship.  You felt aggrieved about the situation that you found yourself in, in relation to contact with the child.

3.On the fifth of August 2008 you went to Ms Forehan’s flat, by arrangement, to collect some belongings.  This was about two months after the relationship had come to an end.  According to the summary you were physically aggressive and threatening towards her.  You stayed at the flat until the following morning.  She was so afraid that she did not sleep for the entire night for fear of what you might do to her.  A few days later, you again went to the flat, by arrangement, this time to spend time with Joshua.  You again threatened to Ms Forehan. 

You told you had come to do the job properly, this time.  She was so afraid that she and her son left the flat and she went to live with her parents in Coolaroo.  A week after that, you went to her parents' home.  You began to argue with her father and brother.  The altercation became physical.  Ms Forehan witnessed you and her brother throwing punches at each other.  You then drove off, driving in such an erratic manner that Ms Forehan's brother was struck by your car.  He was uninjured.

4.As a result of these three episodes Ms Forehan obtained an intervention order  against you on the 14th of August 2008.  By that order you were prohibited from contacting her or coming within 200 metres of any premises where she lived.

5.Over the next 13 days immediately following the making of the intervention order you harassed and threatened Ms Forehan by telephone, by voicecall and SMS message.  You also sent threatening messages to her mother Debra during this period. On the 27th of August 2008 following some harassing and threatening phone calls by you to Ms Forehan's mother, the police were called to the Forehan home in Coolaroo.  At 7 p.m., shortly after the police had left, you sent a further SMS message to Debra Forehan which indicated that you were aware that police had been to the house and then left.  You taunted her with the fact that police had not found you.

6.It is this conduct gives rise to Count 1 on the presentment, that of stalking. It also gives rise to the associated summary charge of breach of intervention order by making threatening phone calls for that 13 day period following the grant of the intervention order. 

7.Minutes before the last telephone call to Ms Forehan, that is the one indicating that you were aware that police had been at the property and left,  your parents discovered a suicide note you have left at their home and alerted the police to the fact that you may well be trying to harm yourself.  Not long after that, the same evening, Ms Forehan, her mother Debra, the child, Joshua, and another person were watching television in the lounge room of the Forehan home at Coolaroo.  They saw you at the window holding something which was flaming in your hands.  It was a Molotov cocktail which you threw into the rear yard of the house where it set the grass on fire.  Moments later, you threw a second Molotov cocktail through the front lounge room window where the family was sitting.  The glass shattered and the curtains and carpet in the lounge room caught alight.  The family fled to the back garden, to escape the flames in the loungeroom.  You rang Debra Forehan on her mobile telephone and said to her ‘you are all fucken dead’. It is this conduct that constitutes Count 2, arson endangering life and Count 3 possess an item with intent to damage property and endanger life.

8.By nine o'clock that same night your father had telephoned the police to tell them you had returned home and would surrender yourself.  The police went to your parents' home and arrested you.  Your car was searched and a petrol container was located.  You were unfit to be interviewed, due, I was told, to the effect of illicit drugs that you had taken. You were remanded in custody and remained in custody for 44 days before being released on bail on the 10th of October 2008.

9.Within eight days of your release, on the evening of the 18th of October 2008 you recommenced threatening and harassing Ms Forehan by telephone.  She had changed her telephone number since the August incidents to which I have already referred but you had somehow obtained her new number.  On that day, the 18th of October, you rang her on more than 20 occasions within the space of an hour.  You made threats to her, including words to the effect of "you can't hide forever".  The somewhat obscurely worded ‘You guys better get him before he gets me’ she certainly interpreted as a threat to her. It is this conduct that constitutes Count 5 of stalking and the associated summary charge of breach of intervention order by again making threatening phone calls.  I note that there was also one phone call made the following day, the 19th of October, which is included as part of the stalking and the summary offence of breach of intervention order.

10.The last of the threatening calls of the 18th of October to which I have just referred was made as Ms Forehan, with the child Joshua, was climbing the stairs to her flat.  She had returned to it, it would appear, after your arrest.  As she approached her flat, she saw that the door was open, and with considerable presence of mind, instead of going in, she retraced her steps and called the police.  When the police arrived they entered the flat.  It was empty, but it had been ransacked and thoroughly trashed.  Extensive damage had been caused to the contents of the flat.  You had forced entry, breaking both the security door and the front door.  You had tipped over Joshua's wardrobe and broken his bed.  You had slashed Ms Forehan's clothes and the  couch.  You had urinated on the bed and strewn her personal papers across the floor.  It is this conduct that gives rise to count of burglary with intent to damage property, that is Count 4, and the associated summary charge of breach of intervention order by breaching the ‘do not approach any place where she lives’ condition.  The police sealed the flat off, and treated it as a crime scene.  They took photographs, it would appear that night, but had not concluded their investigations.

11.On 21 October, that is three days later, the police returned to the flat to continue their investigations.  Some time between the time they had sealed the flat on the night of the 18th October and when they arrived on the 21st of October you had returned to the flat and broken in for a second time.  On the second occasion you caused further damage to Ms Forehan's personal belongings and furniture.  Ms Forehan's cat had been in the flat.  You killed it, strangling it , it would appear, with a telephone lead.

12.You were still in the flat when the investigating police went there on the 21st of October 2008.  The police found you lying under a bed sheet on the couch.  You had a backpack with you.  Frighteningly, that contained nine cable ties, gaffer tape and two plastic raincoats.  The police also found a flick knife in your possession. It is this conduct that constitutes Count 6 of aggravated burglary, the circumstance of burglary being an intent to cause serious injury, and the associated summary charges of breach of intervention order again by entering premises you were prohibited from entering, that is because a condition of the intervention order was not to go within 200 metres of any place where Ms Forehan was living, and also the charge of  aggravated cruelty to an animal, in respect of the killing of the cat.

13.When the police attempted to arrest you in the flat you were physically aggressive and agitated, and you resisted arrest by thrashing your body about.  This conduct gives rise to the final associated summary charge of resist arrest.  You were eventually subdued and the police placed you in the back of a divisional van with your hands handcuffed behind you.  In transit, they noticed that you had managed to move your hands from the back to the front of your body. They stopped and went to the back of the divisional van to investigate.  You extricated a flick knife from your underwear and began to stab yourself.  You needed to be subdued with capsicum spray.  You were taken to the Royal Melbourne Hospital, and you were remanded in custody.  Again, by reason of your drug-affected state you were unfit to be interviewed.

The appellant’s personal circumstances

1. The appellant was 24 at time of offending and 25 at time of sentence.  He had no prior convictions.  The second group of offences was, however, committed whilst he was on bail granted after the first series of offences. 

1. The appellant was held in custody between 21 October 2008 and sentence on 20 October 2009.  In that time he successfully completed a number of relevant courses.  The judge found that –

18.It is clear, abundantly clear, that you have shown a persistence in undertaking these courses and availing yourself of everything that has been offered to you whilst you were on remand.

and

20.It counts very much in your favour that you have undertaken these courses during your second extensive period of remand.  It shows that you are indeed doing your best to take advantage of the courses offered to you, and accepting that you must adapt to prison life.  By that I mean, it appears to me, that you have accepted the seriousness of the offences to which you have pleaded guilty are such that they will inevitably result in your serving a substantial period of imprisonment, and that you must therefore accept that and try and  make as best use as you can of the time and facilities available to you.

1. Concerning the appellant’s antecedents, the judge said this:

21.You grew up in Melbourne with a stable family.  You have three siblings, your parents are still together.  Although you are not close to your siblings you have continued parental support.  Your education was disrupted and finished early.  Although you had quite a lot of employment from the time you left school until some months before the commencement of these offences, your employment history was also disrupted by reason of your personality problems.  That also led to your disrupted schooling. 

….

25.Both Drs Kennedy and Sullivan diagnose you as having a clinically significant personality disorder, with borderline personality features. Dr Ong ruled out any major mental illness as does Dr Sullivan.  Specifically Dr Sullivan excludes any psychotic illness at any time related to the offences or generally.  Dr Sullivan also noted that you do not suffer any cognitive impairment.  You reported both to Dr Kennedy and to Dr Sullivan a long history of troubled behaviour.  Problems with anger or inability to control anger first manifested themselves when you were in primary school and to such an extent at that stage that it was thought necessary to attempt some interventions.  Your problems with anger have continued since then and they have affected your interpersonal relationships as well as your education and employment history.

26.That has been compounded by your substance abuse, starting with cannabis at the age of 13 and regular abuse of amphetamines since the age of 18.  All of those added to or compounded the problems caused by the underlying significant personality disorder.  Also, consistent with events that I have recounted concerning the nature of some of the threats made to Ms Forehan and her mother, the leaving of the suicide note for your parents before throwing the Molotov cocktails,  and the self harm in the divisional van following  your second arrest, you have a documented history of self harm. Dr Kennedy referred to it as directly related to situational events, a characterisation I accept.

27.I want to refer to some specific matters referred to by Dr Kennedy and by Dr Sullivan.  In his report Dr Kennedy said this.  At the time he examined you over a year ago after the first lot of incidents he was of the view that you were in an extremely fragile mental state with high levels of suicidality and self harm and that you had been in that state, that extremely fragile state, for the month between your incarceration and his assessment of you.  He said: 

‘It would appear that Mr Maher has had a problematic early life and his presentation and history would suggest that he is suffering from a personality disorder, with borderline personality features.  It would appear that the current criminal charges have evolved in the context of a highly conflictual relationship between himself and his ex-partner, the mother of his son.  The conflict has been about Mr Maher's access and ability to have contact with his son and there is some evidence that Mr Maher has been excluded from the relationship with his son.  Although it is clear that his own behaviour has probably been extremely difficult over and this complicates the picture involved with the child.’ 

28.He pointed out that you were at risk of self harm not only at that time but into the future.  At that time he was of the view that you were a person who was not prepared to accept help.  He recommended that you receive appropriate psychological and psychiatric attention in prison.  He expressed the opinion that you required several years of intensive psychological and psychiatric assistance to assist you with your personality difficulties and he noted that that would ultimately also assist with you remaining away from amphetamines and methamphetamine.  He noted that your addiction to those substances markedly affected your behaviour and your mental state over time.  He advised in-patient substance abuse treatment to avoid your returning to using substances and also vocational assistance to assist you in maintaining regular employment. 

29.He noted that with that treatment it was likely that your prognosis would improve dramatically and the chances of recidivism would decrease.  Unfortunately, shortly after that report was prepared, you were released on bail you returned to abusing substances and it is clear that you were substance-affected at the time of your arrest after the last incident.

30.Dr Sullivan, in his report, obtained a similar history from you to the one that you had given to Dr Kennedy.  He accepted that you had significant problems with drug and alcohol abuse and that there was an absence of past efforts at treatment.  But he said that your reports of alcohol and drug abuse were suggestive of poly-substance dependence, including alcohol, amphetamines and benzodiazepine abuse.  He noted that your accounts were uncorroborated but were certainly plausible.  I accept that you do have a significant longstanding history of substance abuse.  He then said this, referring to your reports of longstanding problems with anger, evident from primary school, and affecting your education, employment and relationships:

‘In addition he has marked interpersonal difficulties, mood regulation problems further impaired by substance abuse, and self-harm ideation and actions.  I agree with Dr Kennedy that these features are in accord with a borderline personality structure.’

31.He noted that there was no clear indication of psychotic illness even when drug affected, and that although you described impaired judgment and worsened anger when drug affected, that it was not clearly associated with psychotic features.  The paranoia that you described was likely to reflect intoxication, withdrawal and a personality derived attitude towards others rather than something which was delusionally based.

32.He noted that there was no indication of cognitive impairment and that your longstanding lowered mood may reflect a chronic dysthymia or lowered mood, but was also in accord with the clinically significant personality disorder that had been diagnosed.  He noted your mood appeared to have worsened as the relationship broke down and that in association with increased substance abuse you may have been clinically depressed.

33.      He then went on to say this -

‘Mr Maher does not appear to have a clear understanding of the fear created by his actions and tends to attribute his behaviour to his substance abuse at the time.  Nevertheless, he has exhibited a sustained and severe attack upon his ex-partner, and notwithstanding his frustration at her behaviour following the relationship breakdown has engaged in grossly aggressive behaviour.  As part of his difficulty in coping with the relationship breakdown is likely associated with personality disorder he should in future be wary of entering relationships unless engaged in some form of psychological treatment to assist him in managing the emotional demands of a relationship.’

35.Dr Sullivan went on to recommend that you be assessed for the High Intensity Corrections Victoria Violence Reduction Program and that you should participate in protracted drug and alcohol treatment.  On enquiry by me of [your counsel], and having checked with you, Mr Maher, I was told that you were prepared to submit to assessment and participation in those programs.  They hold great potential for providing real assistance to you, which will not only assist in your rehabilitation but will also assist in protection of the community, a significant feature in your case. 

36.      Dr Sullivan went on to say this:

‘For any community based disposition or parole period he should remain subject to stringent monitoring of substance use with a low threshold for breach of any order should he engage in substance abuse.  Mr Maher should henceforth avoid benzodiazepines as they may paradoxically worsen aggression.  He may benefit from sustained treatment with mood stabilisers, antidepressants or antipsychotic medication to assist him in managing his anger.  A Forensicare review prior to proposed release into the community would be warranted to determine if mental health intervention could assist him to remain free of future offending.’

37.Characteristically, with the careful way in which Dr Sullivan expresses himself in his report, these seem to be very sensible and moderate suggestions. 

The judge’s conclusions

1. The judge expressed these conclusions:

38.These offences to which you have pleaded guilty are clearly from the detailed recounting I have given, very serious and warrant significant punishment.  The fact that they occurred in the context of the end of a relationship and as a result of tensions over contact with the child that you and Ms Forehan shared, is in my view a matter that adds to the seriousness of the conduct.  I do not see it in any way as a mitigating feature, that it arose because you were angry about what you perceived to be inadequate contact with your child following the break-up of the relationship.

39.The offences were not just serious in themselves as individual offences but were made more serious, in my view, because they were persistent, escalating and very frighteningly dangerous.  They involved repeated and flagrant breaches of the Intervention Order which had been made after the first two weeks of the offending behaviour.  The last two episodes occurred after you had already been arrested and charged with the first three offences, which were themselves very serious, and could have caused real harm or death to people.  But after you had spent 44 days in custody and had then been released upon bail, you commenced the re-offending within 10 days only of your release upon bail.

40.I share the concerns that Dr Sullivan expressed in relation to your lack of insight and his guarded prognosis about your future prospects of remaining offence free and the concerns that you must understand you have should you form a relationship with anybody else. 

41.It is clear, therefore, that punishment, denunciation and deterrence, both specific and general, weigh very heavily in the sentencing mix.  You must understand, Mr Maher, and others who are confronted with the end of a relationship, and conflicting wants, needs or wishes in relation to contact with children born of the relationship, that resort to violence, threats, intimidation, wanton destruction of property and behaviour designed to intimidate cannot be tolerated.  People must be permitted the autonomy to end relationships .  People must have the responsibility to ensure that contact with children whose parents separate is not itself fraught by and marred by violence.  It is harmful to children if they experience violence or threats between their conflicting parents.  The threats and violence exhibited by you could have had a significant harmful effect on that child.  So, it seems to me that there must be an understanding that a love for a child or a desire to have contact with a child cannot justify threats and harm to the child’s other parent.  That is deleterious to the child.  It is not a justifiable means of expressing anger about the conduct of the other parent.

42.Having said that, it is clear from what I have recounted that you are not without prospects for rehabilitation, particularly as evidenced by the courses that you have undertaken in prison and your continued assertion of your preparedness to undertake the further intensive courses which you no doubt understand will be very difficult.

43.It is difficult to place to much weight on a person’s demeanour in court, but it seems to me that there has been a significant change in your demeanour in court from the first time you were before me on 31 July to the occasion last week and again today.  Last week and today you seemed to be much more engaged in the proceedings and much more responsive to what was going on than you were on the previous occasion.  That is consistent with the difference in what Dr Kennedy noted and the changes evidenced by your doing the courses during your second longer period in custody and the changes noted by Dr Sullivan.  That reinforces what I have seen and what I have been told in relation to the courses that you have undertaken in prison. 

44.Also important to take into account in your favour are your relative youth; you were only 24 at the time and this would appear to be your first major relationship.  It was a long-term, five year, relationship; your lack of previous convictions; the fact that this is your first time in custody; and your pleas of guilty to the charges.  All of those, therefore, I take into account in your favour.

45.In addition to the usual problem of reconciling the number of charges with the total sentence so that it conforms with the principle of totality, that is, making sure that the total effective sentence is not disproportionate to the overall offending, I must bear in mind the following: that serious as the offences are, in the way that I have described and characterised them, it was a relatively short period overall in which they were committed; that it was marked by persistence, escalation and increasingly frightening behaviour;  and was not stopped by the matters such as the making of the Intervention Order, your being remanded or then your being released on bail.

46.There are four separated episodes.  The first two occurred over a three week period, or strictly speaking, the first over that three week period, the second at the end of that three week period.  The re-offending commenced a very, very short time after your lengthy remand in custody.  The last two episodes were committed over a three day period. 

47.For those reasons I consider that it is not appropriate to make the sentences on Counts 1 and 2, that is the first stalking, and the arson, totally concurrent.  They are different types of offending and can probably be seen as two different episodes.  The arson is a different type of conduct from the range of acts rolled up in the first stalking charge.

48.Count 3, the count of possession of a dangerous item, is as I see it rolled up with the arson charge and therefore I propose to make the sentence on Count 3 totally concurrent. 

49.As for the last two episodes leading to Counts 4, 5 and 6 on the presentment, the burglary, the aggravated burglary and the second stalking charge, they were all committed whilst you were on bail.  There is therefore a presumption that those sentences should be wholly cumulative on the earlier sentences.  However, it is clear that to do that would offend the principle of totality.  So, what I have attempted to do is to take into account, in fixing individual sentences for the offences, for the offences committed whilst on bail and whilst the Intervention Order was in force, but adjusting the cumulation and concurrencies so as to make sure that the total effective sentence does not offend totality.

50.So far as the summary offences are concerned, I have made modest partial cumulation orders for the breach of the Intervention Orders charges because they reflect a separate wrongdoing from the stalking or other charges and they also represent a flouting of the court order in respect of the Intervention Order.

51.So far as the charge of aggravated cruelty to an animal is concerned, I consider that one of the most serious examples of charges of this type, and not only for the cruelty itself in killing the animal but for the circumstances in which it occurred.  Whether it occurred as an act of revenge or as a warning to Ms Forehan, it was calculated, callous and terribly cruel.  I consider the maximum penalty available for that offence as very low, having regard to the conduct itself.  And therefore the sentence that I have imposed on that charge is much closer to the maximum available than would normally be thought appropriate having regard to the fact that you have pleaded guilty.  However, as it is rolled up as part of the last episode, and bearing in mind the importance of imposing the sentences that I think are right for the individual offences and then adjusting the concurrency and cumulation orders to reflect the overall wrongdoing I have imposed a significant sentence for it, but I have made most of it concurrent with the sentence for the aggravated burglary. 

52.The Crown made submissions in respect of the sentencing range.  It submitted that the total effective sentence should be in the range of 10 to eight years and the non-parole period should be in the range of eight to six years.  [Your counsel] submitted that that was too high and submitted in particular that there should be, having regard to the need to reflect your youth and the attempts you have been making since your long remand to do what courses you can that have been available to you, to assist you, that there should be a greater than usual gap between the head sentence and the non-parole period.

53.Submissions about range are obviously helpful, but obviously the sentencing discretion ultimately is mine.  And although I have taken some time to explain my reasoning and to set out the submissions about the sentencing range it is important to bear in mind that ultimately there is a process of intuitive synthesis where all of the circumstances, both those which make the offences serious, which make these serious examples of such offences and the matters that count in your favour, are balanced against each other.

54.It is important to guard against simple arithmetical calculations.  It is important not to simply divide the total effective sentence by the number of offences, or concentrate on the partial cumulation orders in order to suggest that that in some way diminishes the seriousness of the individual offences.  It does not.  What I have attempted to do, consistently with what the authorities direct me to do, is to impose what I consider to be the appropriate sentence for each individual offence but then by the use of partial cumulation or concurrency orders to fix on a total effective sentence that reflects the overall criminality and the matters that count in your favour.  I also consider that it is appropriate to impose a larger than usual gap between the head sentence and the non-parole period.  This is for a number of reasons:  your youth; your preparedness to undertake rehabilitative courses; and also, having regard to Dr Sullivan’s cautions, to which I have already referred, about the need for strict supervision and control of you upon release, the importance of allowing considerable time for the Parole Board to subject you to supervision and monitor you on release should it see it appropriate to release you upon parole.  Of course, you understand that a parole decision is not mine, it is one that the parole authorities make having regard to the matters that I am referring to, and the way in which you serve the sentence that I impose upon you.

Ground 1

1. The judge was told on the plea that the first offence of breach of an intervention order carried a maximum penalty of two years’ imprisonment, and that the second to fourth offences of that kind carried a maximum penalty of five years’ imprisonment.  The judge said nothing about the maximum penalty for any of those offences, but the sentences which she imposed on charges 8–10 were substantially greater than the sentence passed on charge 7, likewise the orders for cumulation.

1. Counsel for the Crown conceded that the judge had been misinformed.  The effect of the relevant legislation was that the higher maximum penalty only applied to an offender who, at the time of committing the relevant offence, already had a previous conviction recorded for that offence.[1] 

   [1]Crimes (Family Violence) Act 1987, s 22; Kennan v Mears (Supreme Court of Victoria, unreported, 25 January 1990).

1. Counsel for the Crown further conceded that the error in this case was material, and that the sentences imposed were of ‘significant magnitude’.  Specific sentencing error was, in these circumstances, conceded.

Ground 2

1. Counsel for the appellant submitted that all the offending was inter-related, although there were different episodes of offending.  Moreover, counsel submitted, there was direct overlap between groups of offences –

(a)       counts 2, 3 and charge 7

(b)      count 4 and charge 9

(c)       counts 5 and 6 and charges 10 and 11.

1. Counsel rightly accepted that, particularly in circumstances where some offences were committed whilst the appellant was on bail, there must be some cumulation. But he submitted that the orders made for cumulation showed that insufficient regards had been had to totality.  He instanced the extent of cumulation imposed in respect of the sentences on counts 4 and 6, and the sentences on counts 5 and 6.

1. Counsel for the Crown submitted that the following classes of offences warranted substantial concurrency:

(a)       counts 2, 3 and charge 7;

(b)      count 4 and charge 9;

(c)       counts 5, 6 and charges 10 and 11.

1. He contended, however, that there was no fault in the extent of cumulation ordered in respect of the sentences on counts 4 and 5.

1. In my opinion, the conduct the subject of counts 4 and 6 was sufficiently separate in time and content, to justify an extent of cumulation of the sentence on the former count upon the sentence on the latter count.  The same may be said of the conduct the subject of counts 5 and 6.  

1. I turn to the relationship between, on the one hand, the stalking counts and the burglary and aggravated burglary, and, on the other hand, the breaches of the intervention order.  It appears to me that the distinct criminality of the offending means that there should be some cumulation between the sentences imposed.  Breaches of the intervention order were, in terms, disobedience of a court order.  It would be inappropriate if that was not reflected in the breaches having a real impact upon sentence.  But, to meet the totality point, some amelioration of the individual sentences for the breaches and on  the other counts is, in my view, required. 

Ground 3

1. Counsel for the appellant sought leave to appeal against conviction on count 3, notwithstanding that his client had pleaded guilty to that count.  No application for extension of time within which to give notice of application for leave to appeal against conviction has been filed or served.  No explanation has been given why the appellant pleaded guilty, or why the supposed fault was not detected in the period limited for bringing an application for leave to appeal against conviction.  But, counsel argued, the merits of the matter were so clear that his client should be permitted to appeal against conviction on count 3, and the appeal should be allowed.

1. Counsel did not contend that the elements of counts 2 and 3 were the same.  Nor did he argue that it was an abuse of process for count 3 to have been laid against his client.  His submission was rather that, as the prosecution had laid out its case, the facts supporting sentence on count 2 left no criminality unpunished which could be the subject of punishment on count 3.

1. In support of his submissions, counsel referred to the prosecutor’s opening on the plea:

The Crown submits that on count 3, that essentially forms part of the facts on count 2, and any sentence on count 3 could in fact be concurrent with count 2.

1. Counsel also referred to these passages in the sentencing remarks:

   They saw you at the window holding something which was flaming in your hands.  It was a Molotov cocktail which you threw into the rear yard of the house where it set the grass on fire.  Moments later, you threw a second Molotov cocktail through the front lounge room window where the family was sitting.  The glass shattered and the curtains and carpet in the lounge room caught alight.  The family fled to the back garden, to escape the flames in the loungeroom.  You rang [the victim’s mother] on her mobile telephone and said to her ‘you are all fucken dead’. It is this conduct that constitutes Count 2, arson endangering life and Count 3 possess an item with intent to damage property and endanger life.

   and

   Count 3, the count of possession of a dangerous item, is as I see it rolled up with the arson charge and therefore I propose to make the sentence on Count 3 totally concurrent. 

2. Counsel’s argument in short, was that, so far as could be ascertained, the Crown had put its case on count 3 as possession of the Molotov cocktails in the moments before they were used to start the fires the subject of count 2.[2]  It was not a case that the appellant had, after manufacturing the devices, possessed them whilst travelling to the vicinity of the complainant’s home.  Neither was it the Crown case that count 2 referred to one of the devices, and count 3 to the other. 

   [2]This assumes that Count 2 could be applied to the fire in the rear yard of the premises – a matter which the Crown opening left unresolved.

1. In support of his submissions, counsel referred to the reasons of Hayne J in R v Sessions,[3] and to R v Le,[4] R v Sari,[5] R v Bradley[6] and R v Langdon.[7]

   [3][1998] 2 VR 304, 313-314.

   [4][2009] VSCA 247, [6]-[8].

   [5][2008] VSCA 137, [53]-[60].

   [6][2010] VSCA 70, [13],[25].

   [7](2004) 11 VR 18, 38-39, [114]-[117].

1. Counsel for the Crown conceded that the sentence imposed on count 3 was excessive.  The appellant, he submitted, had been doubly punished, with respect to count 3, because of the substantial sentence imposed on count 2. But it had nevertheless been proper to record a conviction on count 3.  Counsel reasoned this way:

29.In this case, counts 2 and 3 differ in a temporal sense – count 3 is directed to the anterior possession of the ‘molotov cocktail’ device and count 3 focuses on the use of the device to destroy property/endanger life.  As the appellant entered the property carrying the device with the requisite intent, he had committed an offence without doing anything more.  Thus, the analogy of burglary and going equipped to steal charges is quite apt – a burglar who has in possession the necessary tools for breaking and entering may be lawfully convicted of going equipped to steal even though he has also been punished for the commission of a burglary.

30.Turning to double punishment, again, this principle was examined by McHugh, Hayne and Callinan JJ in their joint judgment in Pearce v R –

‘To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common.’

31.In approaching any issue as to double punishment, the High Court warned that ‘the enquiry is not to be attended by excessive subtleties and refinements – [i]t should be approached as a matter of common sense, not as a matter of semantics.’

32.Perhaps the best illustration of the operation of these two principles can be found in the decision of this Court in R v Sessions.  In that case, the offender pleaded guilty to 1 count of rape and 1 count of causing serious injury recklessly.  The offences arose from a single act when the offender pushed his finger into a young victim’s vagina and in doing so caused serious injury.  The Court of appeal held that the law did not permit the offender to be convicted f both offences as that would be to punish him twice for the same act.

33.In allowing the appeal, Hayne JA observed –

‘But where, as here the act for which the applicant was to be sentenced on count 1 was the same act as he was to be sentenced for on count 2 and there was no fact or matter that should be taken into account in sentencing on one count that would not be taken into account in sentencing on the other count it was, in my view, oppressive and unfair to punish him twice.  The conviction on count 2 should be quashed.’

34.Returning to the facts in this case, the Appellant was to be punished for having custody of the relevant device before he launched it through the window of the house.  Whilst it is true that counts 2 and 3 had a very close connection and substantial overlay, there remained a remnant of criminality in count 3 after sentence had been imposed on count 2.

35.However, given the strong nexus between the relevant counts, a sentence of 12 months imprisonment on count 3 infringes the principle of double punishment in light of the sentence of 5 years imprisonment imposed on count 2 – in all the circumstances, a discharge (with conviction) was the appropriate punishment.

1. In response to my question, counsel for the Crown agreed that the logic of the Crown’s position meant that a small sentence should be imposed on count 3, rather than that there be a bare conviction.

1. The written Crown opening was made an exhibit on the plea. The judge’s recitation of the facts of counts 2 and 3 set out at [20] above is in conformity with the opening. This shows that the factual substratum relied upon by appellant’s counsel in this Court was correct.

1. The case is not akin to Sessions.  There, the one piece of conduct constituted the actus reus of the two offences.  It was illusory to break down the penetration of the victim’s vagina into an initial, and then a continued, penetration.

1. Sessions does, however, make the presently-relevant point, by reference to the Sentencing Act, that conviction is an element of an offender’s punishment. An offender is not to be punished twice for the same act or omission (in Victoria, a principle stated by s 51(1) of the Interpretation of Legislation Act 1984).  For that reason, concurrency of sentence is not enough.

1. Le involved a man convicted, inter alia, of reckless conduct placing another in danger of serious injury, recklessly causing injury, and being a prohibited person who possessed, and used, an unregistered firearm. The offences were committed when, in the case of a dispute about a motor vehicle purchase, the appellant produced a pen pistol and discharged it at another man, the man suffering injury. The actus reus of three counts was identical – that is, firing the pistol. This Court concluded that two of the convictions should be set aside – either by application of s 51 of the Interpretation ofLegislation Act1984, or else as a miscarriage of justice.

1. In that case there was  a necessary and entire coincidence of the actus reus.

1. In Sari, the Crown conceded that the appellant had been subjected to double punishment, whether by conviction on a count of criminal damage when the appellant had already been convicted on a count of riot, or else because part of the sentence on the former count was cumulated on the sentence passed on the latter.  The criminal damage was done in the cause of the riot.  The Court permitted an application for leave to extend time for making application for leave to appeal against conviction, and the making of the latter application, to be pursued orally.  The applications were successively granted and the appeal succeeded.

1. Sari, then, was a case in which the actus reus of the criminal damage count was part of the conduct which constituted the riot count.

1. Bradley was a case in which counts of reckless conduct endangering life and intentionally causing injury were founded on the same conduct.  The appellant had fired a gun repeatedly in the direction of a police officer.  One of the bullets struck the officer.

1. Again, that was a case in which the conduct which constituted the count of recklessly causing injury was part of the conduct which constituted the reckless endangerment.

1. In Langdon, the appellants were convicted of trafficking an illicit drug, and with possession of that drug. Gillard AJA, in giving the leading judgment, concluded that ‘the traffickable quantity possessed was realistically the balance of the stock held for trafficking’; and that ‘the possession was part and parcel of the trafficking’.[8]  The convictions on the possession counts were quashed.

   [8]R v Langdon (2004) 11 VR 18, 39 [117].

1. The circumstances in Langdon involved less clear coincidence of conduct than did the other authorities to which I have referred.  The decision turned, as I see it, on the application of an approach which avoided ‘excessive subtleties and refinements’.[9]

   [9]Pearce v R (1998) 194 CLR 610, 623 [42] (Mc Hugh, Hayne and Callinan JJ).

1. In the present case, I do not doubt that the Crown could have pursued counts 2 and 3 in a way which demonstrated that quite discrete conduct was relied upon in each instance.  It might have been said, for instance, that count 3 was established by the appellant, having made the devices at a place distant from the victim’s home, then transporting them to the vicinity of that home with relevant intent.  Alternatively, it might perhaps have been said that count 3 was constituted by possession of one of the devices, and that the act of arson was constituted by using the other device to start the fire within the premises.  In this Court, indeed, counsel for the Crown characterised the count 3 conduct in the first of the ways just mentioned.  But neither of those ways was the way in which the Crown put its case below; and it should not be permitted to put a different case on appeal.

1. I have considered whether the appellant’s guilty plea to counts 2 and 3 permits a conclusion that he understood that the case against him was being put in a way which differentiated the conduct, as a matter of substance, upon which the Crown relied as being relevant to the two counts.  But I could not so conclude.  The statement of facts opened by the prosecutor was said to be agreed.  But it gives no hint of any such differentiation.

1. As the Crown did put its case, I allow that there was, logically, a moment when the incendiary devices were possessed with relevant intention antecedent to the act(s) being done with relevant intention which constituted count 2.  But it would be very artificial to break up the conduct so as to justify punishment on two counts.  In my opinion, avoiding excessive subtleties and refinements, and having regard to the case as it was conducted, the appellant should not have been punished, by conviction, on count 3. 

1. I would treat the appellant as having made oral application for extension of time to give notice of application for leave to appeal against his conviction on count 3.  I would grant the application.  I would treat the appellant as having given notice of application for leave to appeal against conviction on that count.  I would grant the application and allow the appeal,[10] quash the conviction on count 3, and direct a judgment and verdict of acquittal on that count.

   [10]This was the course adopted in Sari.

Ground 4

1. Appellant’s counsel submitted that, although there could be no denying the seriousness nature of the offending, and the terrifying ordeal to which the victim was subjected, and although a stern sentence was called for, yet the mitigating circumstances identified by the judge were weighty.  Despite the ‘very disturbing nature’ of the offending, the overall sentence was, counsel submitted, impermissibly great.

1. Counsel for the Crown submitted that there was ‘much to be said for the arguments raised by the appellant’, notwithstanding that the prosecutor had advanced a head sentence range of eight to ten years’ imprisonment and a non-parole period range of six to eight years.  He submitted specifically that the sentence on the animal cruelty charge was ‘stern.’

1. The sentencing errors exposed by grounds 1 to 3 necessitate the appeal being allowed and the appellant being re-sentenced.  It is inevitable that, as counsel for the Crown specifically accepted, the sentence overall must be a lesser one.

1. For that reason, nothing much is to be gained by separately considering ground 4. 

1. I add only this.  It was not submitted for the appellant that the evidence of the appellant’s personality disorder, made the worse by his drug use, called into play any aspect of the sentencing considerations mentioned in R v Verdins.[11]

   [11](2007) 16 VR 269.

Re-sentencing the appellant

1. Having regard to all the matters which I have mentioned, I would re-sentence the appellant as follows:

Count 1:        9 months’ imprisonment (3 months cumulated).

Count 2:        4 years’ imprisonment (1 year cumulated).

Count 4:2 years and 6 months imprisonment (1 year and 3 months’ cumulated).

Count 5:        12 months’ imprisonment (3 months cumulated)

Count 6:        5 years imprisonment (base sentence)

Charge 7:       3 months’ imprisonment (1 month cumulated)

Charge 8:       4 months’ imprisonment (1 month cumulated)

Charge 9:       4 months’ imprisonment (1 month cumulated)

Charge 10:     4 months’ imprisonment (1 month cumulated)

Charge 11:     1 year’s imprisonment (3 months cumulated)

Charge 12:     6 months imprisonment.

1. The total effective sentence would be eight years and four months’ imprisonment. For the reasons expressed by the judge at [54] in her sentencing remarks,[12] I would fix a non-parole period of five years and nine months’ imprisonment.

   [12]Cited at [7] above.

1. Had the appellant been convicted after trial, as at present advised I would have imposed an overall sentence of  ten years imprisonment; and I would have fixed a non-parole period of seven years and four months’ imprisonment.

BONGIORNO JA:

1. I agree.

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