Marocchini v The Queen

[2015] VSCA 29

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0249
SERGIO MAROCCHINI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 February 2015
DATE OF JUDGMENT:	25 February 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 29
JUDGMENT APPEALED FROM:	R v Marocchini (Unreported, County Court of Victoria, Judge Carmody, 27 October 2014)

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CRIMINAL LAW – Sentence – Recklessly causing serious injury – Criminal damage – Reckless conduct placing another person in danger of serious injury – Make threat to kill  –Assault police – Related summary offences – Appellant 45 years of age, married with four children, employed and of previous good character – No prior convictions – Whether sentence of imprisonment of 3 years and 3 months, with non-parole period of 2 years manifestly excessive – Sentence manifestly excessive in light of appellant’s previously unblemished record – Appeal allowed – Appellant resentenced to imprisonment for 4 months and community correction order of 3 years duration.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Alexander	George Defteros Solicitor
For the Respondent	Mr B Kissane SC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

ASHLEY JA
BEACH JA:

Introduction

1. On 23 October 2014, the appellant pleaded guilty in the County Court to two charges of criminal damage, one charge of reckless conduct placing another person in danger of serious injury, one charge of recklessly causing serious injury, one charge of making a threat to kill and one charge of assaulting police.  He also pleaded guilty to related summary offences of dangerous driving, resist police, possessing a dangerous article and using a tracking device.  On 27 October, the appellant was sentenced as follows:

Charge on Indictment/ Summary Charge	Offence	Maximum		Sentence	Cumulation
1	Criminal damage [s 197 (1) of the Crimes Act 1958]	10 years [s 197(1) of the Crimes Act 1958]		1 year	1 month
2	Criminal damage [s 197 (1) of the Crimes Act 1958]	10 years [s 197(1) of the Crimes Act 1958]		1 year	2 months
3	Reckless conduct endangering serious injury [s 23 of the Crimes Act 1958]	5 years [s 23 of the Crimes Act 1958]		1 year	6 months
4	Recklessly causing serious injury [s 17 of the Crimes Act 1958]	15 years [s 17 of the Crimes Act 1958]		2 years	Base sentence
5	Make threat to kill [s 20 of the Crimes Act 1958]	10 years [s 20 of the Crimes Act 1958]		1 year	3 months
6	Assault police [s 31(1)(b) of the Crimes Act 1958]	5 years [s 31 of the Crimes Act 1958]		6 months	3 months
Summary charge 11	Dangerous driving [s 64(2) of the Road Safety Act 1986]	Fine of 240 penalty units or 2 years [s 64(2) of the Road Safety Act 1986]		3 months	Concurrent
Summary charge 17	Resist police [s 52(1) of the Summary Offences Act 1966]	Fine of 25 penalty units or 6 months [s 52(1) of the Summary Offences Act 1966]		7 days	Concurrent
Summary charge 18	Possess dangerous article [s 7(1) of the Control of Weapons Act 1990]	Fine of 60 penalty units or 6 months [s 7(1) of the Control of Weapons Act 1990]		7 days	Concurrent
Summary charge 19	Using tracking device [s 8(1) of the Surveillance Devices Act 1999]	Fine of 240 penalty units or 2 years [s 8(1) of the Surveillance Devices Act 1999]		3 months	Concurrent
Total Effective Sentence:			3 years and 3 months
Non-Parole Period:			2 years
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:			42 days
S6AAA Statement: 5 years with non-parole period of 3 years 6 months’ imprisonment

1. On 18 February 2015, Ashley JA gave the appellant leave to appeal against the sentence imposed, on the single ground that:

The sentence in all the circumstances is manifestly excessive.

Circumstances

1. The offending substantially took place between about 6.30 pm and 7.30 pm on 1 April 2014.  The appellant was then a 45 year old man, married with four children.  He had no prior criminal history.

1. As at 1 April 2014, the appellant had been married for 17 years.  He, his wife and four children lived next door to a Mr and Mrs Villella.  For a period leading up to 1 April 2014, the appellant suspected that his wife was having an affair with Mr Villella;  whilst according to the appellant’s wife, the appellant was having an affair with Mrs Villella.

1. In the event, the appellant bought a tracking device at an Aldi store, and installed it on his wife’s vehicle.

1. The appellant’s wife, it appears, had just the same intention with respect to her husband’s vehicle.  But she had not got around to doing anything about it by the time when the events the subject of the impugned sentence occurred.

1. In the early evening of 1 April, the appellant’s wife left home after an argument between them, saying that she was going out to get petrol.  She left him with their four year old son.

1. The appellant then used the tracking device to ascertain that his wife’s car had gone to a church car-park.  This gave rise to summary charge 19, use of a tracking device.

1. The appellant noticed that Mr Villella’s car was not in the vicinity of his home.  The appellant suspected that something was going on. He drove to the car-park.  There, he saw his wife talking with Mr Villella between their parked cars.

1. The appellant then drove his vehicle at quite a high speed over a footpath, a grassed area and a median strip, and rammed into the back of his wife’s car, pushing it into Mr Villella’s car.  This conduct gave rise to charges 1 and 2, intentionally causing damage to property.

1. Mr Villella suffered no injury, but the appellant pleaded guilty to a charge (charge 3) of recklessly engaging in conduct placing Mr Villella in danger of serious injury.

1. In the incident which we have described, the appellant’s wife suffered injury to one of her arms when it was jammed in the front passenger door of her car.  That event gave rise to charge 4, recklessly causing serious injury.  According to Mrs Marocchini’s evidence on the plea, we add, the injury ‘healed to perfect’.

1. After Mr Villella assisted the appellant’s wife to free her arm, the appellant began driving his vehicle around the car-park at a fast speed, as though he was trying to run over them.  This conduct was the basis of summary charge 11, of driving in a dangerous manner.

1. The appellant then drove to a soccer ground in the same suburb in order to pick up his three daughters.  He got out of his car holding a pinch bar and chisel (summary charge 18, possess dangerous article).  When the appellant’s daughters ran over and one of them asked what he was doing, he replied that he was going to ‘fucking kill your mum’.  This was the conduct giving rise to charge 5, making a threat to kill.  The oldest daughter, who had heard what he said, became very frightened.

1. The appellant left the soccer ground, but soon after returned with his brother.  He tried to get his daughters to go with him, but was confronted by other parents, who prevented him from doing so.

1. Police arrived at about 7.30 pm.  The appellant was highly agitated.  There was an unsuccessful attempt to calm him down.  The appellant pulled one police officer in close, grabbed at the officer’s firearm and yelled, ‘Just shoot me, you cunts’.  This was the conduct embraced by charge 6, assaulting a police officer.

1. Other members of the police then struggled with the appellant.  He resisted, but was eventually overpowered, handcuffed and taken to a police station. This conduct was the subject of summary charge 18, resist police.

1. When interviewed by police, the appellant made admissions. He frankly explained why he had acted as he did.

1. The matters arising from the appellant’s conduct were resolved at a committal case conference on 25 June 2014.  A summary jurisdiction application was heard and refused on 14 July.

1. On the plea, the appellant’s wife gave evidence in his support.  She stated that she had forgiven him and needed him back as her husband.  That is so although, released on bail after 37 days on remand – his release being on quite strict conditions which included inhibition on contact with his family – an intervention order had been put in place to protect her.  Because of that order and/or the bail condition to which we referred a moment ago, he had been living with his mother.  He had enjoyed only limited access to his children.  He had gone back to work as a self-employed builder.

1. While the appellant’s wife gave evidence supportive of the appellant on the plea, in answer to a question as to whether the appellant had provided any financial support to her since being released on bail, the appellant’s wife said ‘No’.  The judge noted this fact in his reasons for sentence.[1]  Given the state of the evidence before the judge, one could hardly be critical of him for noting this fact.

   [1]DPP v Marocchini (Unreported, County Court of Victoria, Judge Carmody, 27 October 2014) (‘Reasons’).

1. However, in this Court, the appellant, without objection, relied upon an affidavit, sworn by the appellant’s wife on 20 February, to the effect that her evidence before the judge of the appellant providing no financial support  to her was wrong.  The appellant’s wife explains her error by reference to the stress associated with giving evidence, and to her misunderstanding the question asked of her.  In the affidavit, the appellant’s wife details the not insignificant financial support in fact provided by the appellant to her since the appellant’s release on bail.  The Crown, with conspicuous fairness, took no issue with the matters deposed to by the appellant’s wife in her affidavit.

Analysis

1. As the judge noted, the offending in this case was serious.[2]  There were a number of aggravating features, including that the appellant had his four year old son in his vehicle at the time of the offending.  Notwithstanding these matters, on the plea, it was submitted on behalf of the appellant that a community correction order (‘CCO’) was the appropriate sentencing disposition. 

   [2]Reasons [41].

1. However, in sentencing the appellant, the judge accepted a submission made by the prosecutor that ‘the only appropriate sentence was imprisonment’.  That submission was made before this Court’s guideline judgment was delivered in Boulton v The Queen.[3]

   [3][2014] VSCA 342 (‘Boulton’).

1. In Boulton, this Court said that a CCO is, and should be seen as being, intrinsically punitive.  Additionally, the Court said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a term of imprisonment.  As Maxwell P said in Sherritt v The Queen:[4]

   [4][2015] VSCA 1, [46]–[47].

The Court in Boulton emphasised that, if the CCO is to serve the purpose which Parliament quite clearly envisaged for it, sentencing courts (including this Court) need to rethink the conventional wisdom about whether prison is really the only option.  The Court was at pains to spell out the grave disadvantages of imprisonment, both for the offender and for the community, and the unique advantages of a CCO in enabling real punishment to be imposed at the same time as advancing the offender’s rehabilitation in a way no prison term ever can. 

In Boulton, the Court said:

‘The availability of the CCO dramatically changes the sentencing landscape.  The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence. 

The CCO option offers the court something which no term of imprisonment can offer, namely, the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-management and self-control and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places.  The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide. 

In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her.  On this analysis, if defence counsel submits that a CCO would be appropriate, it is no answer for a prosecutor (or a judge) to say, ‘How could a CCO be appropriate given that an offence of this seriousness has always received imprisonment?’  As we have endeavoured to explain, that question should mark the beginning, not the end, of the court’s consideration.

…

The views we have expressed are reinforced by the recent insertion into the Act of s 5(4C).[5]  This provision came into force on 29 September 2014, after the completion of argument in the present proceeding.  The new subsection provides as follows:

[5]We interpolate that although s 5(4C) had been in force for almost a month at the time of the plea hearing (unlike the cases in Boulton), and that this section had application in relation to the appellant’s offending (see s 154(3) of the Sentencing Act 1991, as inserted by s 6 of the Sentencing Amendment (Emergency Workers) Act 2014), there was no reference to it during the plea hearing or in his Honour’s reasons for sentence.

A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.

… 

… What is most powerful about s 5(4C) is that it prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to:

(a)       the purposes for which sentence is to be imposed on the offender;  and

(b)whether those purposes can be achieved by a CCO to which one or more of the specified (onerous) conditions is attached.

The process of deliberation which this provision requires should assist in the reconceptualisation of sentencing options to which we have referred.  In particular, that process will throw into much sharper focus the distinction we have sought to draw, between the narrow punitive purpose (and effect) of imprisonment, on the one hand, and the multi-purpose character of the CCO.  The sentencing court should ask itself a question along the following lines:

Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?’[6]

[6]Boulton [2014] VSCA 342, [113]–[115], [117], [120]–[121].

1. In relation to combining a CCO with a term of imprisonment, the Court in Boulton said:

The availability of the combination sentence option adds to the flexibility of the CCO regime.  It means that, even in cases of objectively grave criminal conduct, the court may conclude that all of the purposes of the sentence can be served by a short term of imprisonment coupled with a CCO of lengthy duration, with conditions tailored to the offender’s circumstances and the causes of the offending.[7]

[7]Ibid [141].

1. The appellant contends that the total effective sentence overstated the overall criminality of his offending and that, in particular, it infringed the totality principle.  Notwithstanding the seriousness of the appellant’s offending, and the aggravating circumstances to which the judge had proper regard, we accept the appellant’s submission that, in all of the relevant circumstances, the sentence imposed upon the appellant was outside the permissible range.  Such doubt as might have existed about this is resolved by the application of the principles enunciated by this Court in Boulton (a judgment, which we have said, was delivered after the judge sentenced the appellant).  Indeed, during the course of argument, senior counsel for the Crown fairly conceded that, in the light of Boulton, the sentence imposed in the County Court was excessive.

1. The appellant’s offending took place over a relatively short period of time on one day.  At the time, the appellant was a 45 year old man, married with four children.  He had an unblemished prior record and, by the time of the plea hearing, the support of his wife — who was the principal victim.  There were no matters pending, and the evidence disclosed the appellant to be a hardworking and generous man.[8]

   [8]Reasons [39].

1. Consistently with what this Court subsequently said in Boulton, the proper exercise of the sentencing discretion dictates that the appellant should have been sentenced to a CCO of appropriate length, coupled with a short term of imprisonment.  That is the course we now propose to adopt.  This is not to downplay the seriousness of the appellant’s offending.  But the fact that the appellant was, until the time of his offending, a hardworking and productive member of the community with an unblemished character means that the objectives which a court must seek to achieve in sentencing for offending of this kind can be achieved by the combination of a shorter term of imprisonment than that imposed by the judge, coupled with a CCO.  The position may have been different, if the appellant had had any significant prior criminal history. 

Orders

1. The appeal will be allowed and the sentence imposed by the County Court on 27 October 2014 will be set aside.  In lieu, the appellant will be sentenced on charges 1, 2, 3 and 4 and summary charge 11 to a term of imprisonment of four months and a CCO of three years’ duration with a condition that he perform 300 hours of unpaid community work, treatment and rehabilitation conditions, and a supervision condition (as recommended in the pre-sentence report[9] received by the Court this morning).[10]  It is appropriate, as part of the sentence imposed on these charges, to impose an aggregate sentence of imprisonment as they (charges 1, 2, 3 and 4, and summary charge 11) were very much part and parcel of the one course of conduct.[11]

   [9]See s 8A of the Sentencing Act 1991.

   [10]Cf ss 9(1) and 40(1) of the Sentencing Act 1991. As to the treatment and rehabilitation conditions to be ordered, see s 48D(3)(e) and (f) of the Sentencing Act. As to the supervision condition, see s 48E.

   [11]Cf ss 9(1) and 9(3) of the Sentencing Act 1991.

1. On charges 5 and 6, and summary charge 19, the appellant will be sentenced to terms of imprisonment of one month.  On summary charges 17 and 18, the appellant will be sentenced to terms of imprisonment of 7 days.  The sentences on charges 5 and 6 and summary charges 17, 18 and 19 are to be served concurrently upon each other and concurrently with the term of imprisonment imposed in respect of charges 1, 2, 3 and 4 and summary charge 11.

1. Finally, as a result of the dangerous driving charge, the appellant’s licence to drive a motor vehicle was cancelled by the judge, and the appellant was disqualified from driving for two years.  The appellant submitted that this Court should vary the period of disqualification down to the minimum period provided by the legislation, six months.[12]  No doubt the two year disqualification period ordered by the judge was not of great moment in the court below, because of the length of the non-parole period ordered by the judge (two years).  While the Crown submitted that we should not interfere with the disqualification period ordered by the judge, we think that the purposes for which we will impose the sentence we have foreshadowed (including, as they do, the appellant’s rehabilitation) would be impaired by such a lengthy disqualification period.  In the circumstances, the period of disqualification will be varied to six months, commencing on 27 October 2014 (the date the judge cancelled the appellant’s licence).

   [12]See generally, s 64(2) of the Road Safety Act 1986 and ss 89 and 89A of the Sentencing Act 1991.

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