McBain v The King

[2022] VSCA 257

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0147

SHELLEY MCBAIN	Applicant
v
THE KING	Respondent

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JUDGES:	KYROU JA, KIDD and LASRY AJJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2022
DATE OF JUDGMENT:	24 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 257
JUDGMENT APPEALED FROM:	[2022] VCC 1382 (Judge Hawkins)

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CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence – Common law assault and criminal damage – Total effective sentence of 10 months’ imprisonment – Whether lack of parity with co-accused’s sentence justified – Leave to appeal refused.

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Counsel
Applicant:		Mr VC Nath
Respondent:		Ms J Warren
Solicitors
Applicant:	Buscombe & Madden Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
KIDD AJA
LASRY AJA:

Introduction and summary

1. On 23 May 2022 in the County Court, the applicant, now aged 47 years, pleaded guilty to the offences of common law assault and criminal damage arising from an incident on 8 February 2021 involving a neighbour. Her co-accused in that offending was her daughter, Jessica Strebs.

2. Following a plea heard on 2 August 2022, the applicant was sentenced on 8 August 2022 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Common law assault	5 years	7 months	Base
2	Criminal damage	10 years	3 months	3 months
Total Effective Sentence:		10 months’ imprisonment
Non-Parole Period:		N/A
Pre-sentence Detention Declared:		82 days
Section 6AAA Statement:		Total Effective Sentence of 18 months Non Parole-Period of 12 months

1. Strebs also pleaded guilty to common law assault and criminal damage arising out of the same incident, and a summary charge applicable to her only of committing an indictable offence whilst on bail. The sentence imposed on her was as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Common law assault	5 years	6 months	Base
2	Criminal damage	10 years	3 months	Concurrent
Related Summary Offences
Commit indictable offence whilst on bail	3 months	1 month	1 month
Total Effective Sentence:		7 months’ imprisonment
Non-Parole Period:		N/A
Pre-sentence Detention Declared:		173 days
Section 6AAA Statement:		Total Effective Sentence of 15 months Non Parole-Period of 9 months

Proposed grounds of appeal

1. On 7 October 2022, the applicant applied for leave to appeal against her sentence on three grounds:

   Ground 1: The sentence imposed on the charges and the order for cumulation in respect of the charge of criminal damage are manifestly excessive;

   Ground 2: The learned Sentencing Judge failed to take into account the [applicant’s] mental impairment; and

   Ground 3: The learned Sentencing Judge imposed a sentence which was manifestly disparate in comparison to that imposed on the co-accused for the same offending.

2. However, at the commencement of the hearing of the application counsel for the applicant formally abandoned ground 2. Further, in the course of argument, the applicant’s counsel also formally abandoned ground 1.

Extension of time

1. On 7 October 2022, the applicant filed an application for an extension of time within which to file a notice of application for leave to appeal. The applicant requires an extension of time because the time provided for in s 279(1) of the Criminal Procedure Act 2009 to file a notice of application for leave to appeal, being 28 days after the date of sentence, expired on 5 September 2022.

2. The application for an extension of time is supported by an affidavit of the applicant’s solicitor, affirmed on 6 October 2022. Having considered the evidentiary material in support of an extension of time, and in the absence of objection by the respondent, we will grant such an extension.

Circumstances of the offending

1. The circumstances of the offending were not in contention on the hearing of the plea. At approximately 2:00 am on 8 February 2021, the complainant, Zanda Green, who was asleep in her unit, woke up and realised her partner had left her home. Because of that she became upset, began yelling out his name and was ‘wailing’.

2. The applicant and Strebs, who lived in the neighbouring unit, were heard mocking the complainant. They were yelling but initially the complainant could not understand what they were saying. The complainant left her unit to see her niece who lived a short distance away and to call police. As she left her unit, the applicant was waving around a hard object and said to the complainant, ‘let’s go, wanna play cricket?’. The applicant also threatened to bash the complainant. That is the factual basis of charge 1 — common law assault.

3. Strebs joined in abusing the complainant, throwing two aluminium posts at her and, together with the applicant, continued to verbally abuse her.

4. The complainant ran to her niece’s house. As she left, she heard windows in her premises smashing. In particular, she saw both the applicant and Strebs at the exterior of her unit smashing her lounge room windows and yelling abuse including ‘you’re fucked cunt’.

5. The complainant called police and returned home around one hour later. She did not see the applicant or Strebs at her property, so she entered and locked the door.

6. Soon after, the applicant and Strebs returned, yelling ‘come out and fight you weak cunt’. Both women began smashing windows (charge 2 — intentionally damaging property). In addition, Strebs climbed onto the frame of the lounge room window, with what appeared to be a golf club saying, ‘you’re fucked you cunt’, and tried to fit her head through the window but did not actually enter or attempt to enter the unit.

7. The complainant held up a chair to block the window, yelling out that she had called police. The applicant and Strebs broke the bathroom window and then returned to their home. Police arrived shortly after.

Arrest and committal

1. The applicant and Strebs were arrested at the scene and conveyed to the Ballarat Police Station.

2. In their records of interview, both the applicant and Strebs admitted their involvement in a confrontation with the complainant but denied having assaulted her or causing damage to her unit.

3. A contested committal proceeded on 28 October 2021 presumably consistent with what was said in the records of interview. The applicant and Strebs were both committed for trial. Guilty pleas were entered on 23 May 2022 following a case conference held in the County Court.

Plea hearing

1. The plea hearing occurred on 2 August 2022. Counsel for the applicant relied almost totally on the written submissions which had been filed. Those submissions contained an acceptance of the summary of prosecution opening. In explaining how the incident on 8 February 2021 came to occur, it was claimed on her behalf that the applicant and Strebs had previously been assaulted by the complainant.  

2. The applicant’s personal circumstances were summarised, including the fact that she has three adult children. It was submitted that the plea was an early one and indicative of remorse. 

3. Based on a report from the Court Integrated Services Program (CISP), it was asserted that the applicant had been diagnosed with PTSD and had an acquired brain injury. She was said to be on the National Disability Insurance Scheme. It was further asserted that she suffered from depression for which she was being medicated. 

4. As to what could be made of the applicant’s mental state, it was submitted on her behalf that she had an acquired brain injury and therefore had a cognitive impairment. However, it was noted that ‘unfortunately’ there was no psychological evidence available to support the application of the principles developed by this Court in R v Verdins.[1] It was then argued that some ‘amelioration’ of the sentence ‘may be justified’ having regard to the previous diagnoses. Apart from reference to two CISP reports, the most recent of which was October 2021, the issue of the applicant’s mental state was taken no further.

   [1](2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102 (‘Verdins’).

5. The written submissions also referred to the applicant’s history with alcohol and drugs. They also dealt with the applicant’s prior criminal history. It was accepted that the applicant’s prospects of rehabilitation were ‘guarded’.

6. It was finally submitted that since the applicant had served 82 days of pre-sentence detention, that was a sufficient sentence.

7. Other than to submit that a sentence of imprisonment was warranted for the offending, the prosecutor did not make any other submissions so far as the applicant or Strebs were concerned.

Sentencing remarks

1. The sentencing judge referred to the incident on 8 February 2021 as a violent neighbourhood dispute which was ‘moderately’[2] serious. She noted that both specific and general deterrence were relevant sentencing factors.[3] In relation to the applicant, the judge accepted that the continuing personal supports that she has are important for her rehabilitation. Her Honour also noted that there was no evidence to establish that the applicant had a cognitive impairment and, also, that her counsel had accepted that there was no evidence to support the application of the Verdins principles.[4] She referred to the applicant’s polysubstance abuse issues, her criminal record and the fact that at the time of this offending she was on a 12 month community correction order (‘CCO’).[5] Her Honour concluded that she would afford a measure of amelioration of sentence having regard to previous diagnoses.[6]

   [2]DPP v McBain [2022] VCC 1382, [12] (‘Reasons’).

   [3]Ibid.

   [4]Ibid [28].

   [5]Ibid [29]–[31].

   [6]Ibid [28].

2. Given the gravity of the offending and having regard to the principles set out in s 5 of the Sentencing Act 1991, her Honour concluded that a term of imprisonment was just for both the applicant and Strebs. Her Honour also determined that a term of imprisonment was necessary to reinforce specific and general deterrence.[7]

   [7]Ibid [37].

3. The respective roles of the applicant and Strebs in the course of their offending was characterised as the same. However the Court had evidence of Strebs’ cognitive deficits and other conditions. The judge noted that, obviously, Strebs was younger than the applicant and was due to give birth to her fifth child. In the judge’s view, these matters warranted different sentences.[8]

   [8]Ibid [38].

Consideration

Ground 3

1. As we have already noted, the only ground pressed on the applicant’s behalf before us was the third ground of appeal, being that the judge imposed a sentence ‘which was manifestly disparate in comparison to that imposed on the co-accused for the same offending’. In argument, counsel for the applicant submitted that the sentence on charge 2 was made cumulative on the sentence for charge 1 in the case of the applicant but the sentence imposed on Strebs for charge 2 was to be served concurrently with the sentence on charge 1. That difference was at the heart of the complaint made about the applicant’s sentence.

2. The judge did not, in terms, explain why that structural difference in the two sentences occurred. However, even if that were to be the subject of criticism, we do not think the sentence ultimately imposed on the applicant could be regarded as excessive, noting that the ground asserting manifest excess was abandoned.

3. In total, Strebs was sentenced to 3 months less than the applicant. Counsel for the applicant submitted that the difference in the two sentences gives rise to a justifiable sense of grievance.

4. The judge made no distinction between the applicant and Strebs based on the role of each in the offending. It is also true that Strebs was on bail when she committed the offences the subject of charges 1 and 2. However, she was charged accordingly and separately sentenced for that offence. It may have been significant in her Honour’s reasoning that the sentence to be imposed on Strebs regarding her having committed an indictable offence while on bail was required — in the absence of a direction to the contrary — to be served cumulatively on the other sentences pursuant to s 16(3C) of the Sentencing Act 1991.

5. In our view there is no merit to ground 3. The judge was well entitled to sentence the applicant as she did and the following differences between the circumstances of the applicant and Strebs are sufficient to justify a lesser sentence for Strebs:

   (a)she is the daughter of the applicant and 18 years younger;

   (b)she suffered from significant childhood disadvantage;

   (c)she has four young children and at the time of being sentenced was pregnant with her fifth child;

   (d)her safety and stability were at risk because of regular family violence at the instigation of her partner who is also the father of two of her children;

   (e)a lengthy neuropsychological report from 2019 revealed a history of learning difficulties, a head injury, substance abuse and mental health issues. She suffers from verbal and cognitive impairments; and

   (f)her offending was not committed whilst she was subject to a CCO (it was however committed whilst she was on bail but, as we have said, she was charged separately with committing an indictable offence whilst on bail).

6. For the above reasons, we will grant the application for an extension of time to apply for leave to appeal but refuse leave to appeal.

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