Mercer (a pseudonym) v The Queen
[2015] VSCA 257
•17 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0037
| SCOTT MERCER (A PSEUDONYM)[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.
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| JUDGES: | MAXWELL P and BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 August 2015 |
| DATE OF JUDGMENT: | 17 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 257 |
| JUDGMENT APPEALED FROM: | DPP v [Mercer] (Unreported, County Court of Victoria, Judge Gaynor, 23 October 2014) |
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CRIMINAL LAW – Appeal – Sentence – Domestic violence – Assault (five charges), false imprisonment, intentionally cause injury, threat to inflict serious injury – Sentence three years six months, non-parole period two years six months – Whether manifestly excessive – Prolonged, brutal offending – Whether judge took into account withdrawn allegation of sexual penetration – Totality – Loss of opportunity to apply for parole under earlier sentence – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr I J Polak | Haines and Polites |
| For the Crown | Mr D A Trapnell QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
MAXWELL P
BEACH JA:
Introduction
On 5 August 2014, the appellant (‘SM’) pleaded guilty in the County Court to five charges of common assault, one charge of intentionally causing injury, one charge of threatening to inflict serious injury and one charge of false imprisonment. Following a plea hearing on 5 September 2014, SM was sentenced, on 23 October 2014, as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Common assault 5y 9m 4m 2 Intentionally causing injury 10y 18m Base 3 Common assault 5y 3m 1m 4 Common assault 5y 3m 1m 5 Threat to inflict serious injury 5y 9m 4m 6 Common assault 5y 9m 4m 7 Common assault 5y 3m 1m 8 False imprisonment 10y 18m 9m Total Effective Sentence: 3y 6m Non-Parole Period: 2y 6m Pre-sentence Detention Declared: 290 days[2] 6AAA Statement: 4y with a non-parole period of 3y Other orders:
- Forfeiture order
[2]While the amount of pre-sentence detention declared by the judge was 290 days, correctly calculated the relevant amount at the time of sentencing was in fact 261 days. On this appeal, the respondent submitted that we should correct the pre-sentence detention declaration pursuant to the provisions of the Sentencing Act 1991.
On 21 May 2015, SM was granted leave to appeal against sentence on the following grounds:
1.The learned sentencing judge erred in imposing a total sentence and a non-parole period that are manifestly excessive.
Particulars
The total sentence imposed and the non-parole period are manifestly excessive in light of:
(a) The appellant’s plea of guilty and remorse.
(b) Her Honour taking into account irrelevant considerations.
(c) The appellant’s significant steps taken towards rehabilitation.
(d) Totality.
(e) Cumulation orders.
2.The learned sentencing judge failed to give sufficient weight to totality, Renzella[3] time and the lost opportunity for parole.
[3]R v Renzella [1997] 2 VR 88 (‘Renzella’).
Circumstances of the offending
The offending occurred on the night of 15 April 2012. The victim (‘A’) was SM’s domestic partner. Their relationship had been ‘on and off’ for approximately 12 months. SM was 29 years old and A was 21. At the time of the offending, they were sharing a house. The day before the offending, SM accused A of seeking to leave him. He took her handbag and mobile phone and left the house.
SM returned to the house on the morning of 15 April 2012. He entered the house by kicking in the front door, breaking part of the lock and the chain. Once inside, SM smoked methamphetamine in the kitchen and was abusive towards A.
Later SM again left the house and returned, charging at A with a piece of the door that was broken earlier that morning. A ran from the house and was met outside by two friends, who were arriving for a barbecue they had planned. The barbecue went ahead, finishing after 10:00pm. Several of the guests consumed alcohol and at one stage SM and two other guests went to the bathroom to consume drugs.
After the guests left SM accused A of concealing drugs. SM then, with the assistance of A, stripped her naked. SM pulled A into the bed and repeatedly told her, ‘I will find what you’re hiding, you cunt. Just you wait.’
SM became increasingly angry and aggressive during his questioning of A and began repeatedly slapping her to the face (charge 1, common assault).
SM then punched A to the side of the face with a clenched fist (charge 2, intentionally cause injury). A was in a foetal position on the side of the bed protecting her head before SM grabbed her by her hair and threw her back on the bed. A then sat up, with her feet on the floor. SM stood on her feet (charge 3, common assault).
SM then gestured to A with a wire coat hanger and said ‘Is this what it comes to. Is this what you’re making me do because you can’t tell the truth?’. He then whipped the coat hanger across A’s hand (charge 4, common assault).
SM continued to slap A, while A begged him to stop. At about this time, A lost control of her bladder and urinated on the bed, having previously been refused permission to go to the bathroom by SM.
SM began questioning A about her relationship with a friend who had attended the barbecue. A denied any relationship. SM grabbed A by the hair and banged her head against the wall and said, ‘I’m gonna knock you out, then wake you up and see what your answer is.’ SM told A, ‘I will cut your bush off, cunt. Do you think I won’t?’ (charge 5, threat to inflict serious injury).
SM punched A’s stomach with a clenched fist (charge 6, common assault) and pushed his knee into her chest while she was laying on her back, preventing her from breathing and damaging the bed (charge 7, common assault).
SM then grabbed A by the hair and took her to the kitchen and then back to the bedroom. He told her to get down on her belly, which she did. While SM was distracted by a noise which brought him to the window, A escaped and ran (naked) to a neighbouring house (some 20 houses away) where the resident (unknown to A) answered the door and A told her to lock the doors and call the police. Prior to this point, A had been confined by SM for a period of several hours (charge 8, false imprisonment).
A was later treated in hospital for a black eye, multiple bruises to her forehead and bruising to her cheekbone, inner ear, jaw, arms, wrists, elbows, buttocks, upper and mid-thigh. A also sustained abrasions to her ribcage and knees, as well as tenderness to her toes.
SM later visited a former girlfriend (J) and told her he had hit A with his fist and ‘hurt her bad’ because she would not do as he wanted, and that he could not stop hitting her. J observed that SM appeared to be affected by ice and alcohol.
The following morning SM asked J to drop him at his brother’s place to avoid police because of what he had done to A. He asked her not to tell anyone she had seen him and to tell the police he had gone to Tasmania. In fact, he went to Queensland.
On 10 May 2012, SM was arrested in Queensland approximately 100 kilometres from Mount Isa. An order for extradition was obtained from the Mount Isa Magistrates’ Court on the following Monday.
Appellant’s background
At the time of sentencing, SM was 31 years of age. He is the youngest of four children, born to parents who had emigrated from Lebanon.
SM completed secondary schooling to year 8, before undertaking a food and beverage course at Frankston TAFE. At age 15, SM started to work in the hospitality industry. In his mid-20s SM worked at Coca Cola. Later he worked intermittently as a carpenter’s labourer.
In terms of drug history, SM began smoking cannabis when he was 14. At the age of 16, he turned to amphetamines. At the age of 17, he began experimenting with ice, ecstasy and LSD.
SM has a fairly extensive prior criminal history. In 2002, he received a sentence of 12 months’ detention in a youth training centre for armed robbery and theft. In 2007, he was placed on a community based order and a suspended term of imprisonment of one month, for offending which included driving while disqualified and criminal damage.
In 2009, SM was sentenced to 12 months’ imprisonment to be served by way of an intensive correction order. The offending on this occasion consisted of unlicensed driving and refusing to accompany police for a breath test. In 2011, SM was sentenced to six months’ imprisonment, wholly suspended for an operational period of 18 months for similar offending. Later in the same year, SM was convicted of one charge of recklessly causing injury.
At the time of sentencing, SM had been in custody since his apprehension on 10 May 2012. On 18 December 2012, SM was sentenced for failing to comply with the intensive correction order previously imposed, breaching the suspended sentence previously imposed and driving offences including driving while disqualified, refusing to undergo a breath test and using a vehicle displaying altered number plates.
In total, SM was sentenced to 12 months and 211 days’ imprisonment. Pre-sentence detention of 222 days (back to the time of his apprehension in May 2012) was declared. But for being in custody in relation to the offending the subject of this appeal, the sentence imposed on 18 December 2012 would have expired on 6 December 2013, with SM being eligible for parole on 10 May 2013.
On 19 September 2013, SM was sentenced in the County Court, in respect of charges of theft from a shop, intentionally damaging property, contravening a family violence intervention order (three charges), failing to answer bail (two charges) and criminal damage, to a term of imprisonment of four months, two months of which was ordered to be served cumulatively upon the sentence SM was then serving.
At the time of the sentencing the subject of the present appeal, SM, while in custody, had completed a number of programs relating to drug and alcohol abuse, anger and mood management, and communication skills. Additionally, urine drug screening tests reported an absence of drugs in SM’s system.
The judge’s reasons
The judge commenced her reasons for sentence with a description of the circumstances of SM’s offending.[4] Unfortunately, the description of the offending included a statement that SM had penetrated A’s vagina with his fingers. This alleged penetration was the basis of a charge of rape which had been withdrawn. We return to this issue below.
[4]DPP v [Mercer] (Unreported, County Court of Victoria, Judge Gaynor, 23 October 2014) [2]–[12] (‘Reasons’).
The judge then turned to SM’s personal circumstances and his prior criminal history, before dealing with a report from Mr Jeffrey Cummins, a consulting clinical and forensic psychologist, who had examined SM on 17 August 2014. The judge set out two passages of Mr Cummins’s report as follows:
At interview he repeatedly emphasised there was no excuse for his offending behaviour. In my opinion, he appeared to be genuinely and rigorously remorseful concerning his offending.
…
In my opinion, drugs and alcohol would have had a disinhibiting effect at the time of his offending and he may at that time have been experiencing a heightened level of paranoia which was drug and/or alcohol-induced. Nevertheless, his offending occurred against a relationship background which was clearly characterised by turbulence.[5]
The judge then referred to Mr Cummins’ opinion that, based upon his assessment, SM’s prognosis ‘would appear to be guardedly favourable’.[6]
[5]Ibid [18]–[33].
[6]Ibid [43].
The judge then addressed the seriousness of the offending and its impact on A in these terms:
The offending, of course, is extremely serious. Whilst the injuries suffered by [A] were not in and of themselves, or even in combination, such that you have been dealt with for the infliction of serious injury, they were nevertheless numerous, widespread over her body, inflicted in a humiliating situation, where she was confined and forced to strip naked over a period of hours and you caused her such terror that she ran naked from her home, running in this condition for a distance of about 20 house blocks before seeking help from people previously unknown to her. This was a very nasty and serious example of domestic violence, and when you told Mr Cummins that you deserved to be dealt with by way of a sentence of imprisonment, you were absolutely correct.
In her victim impact statement, [A] said she had suffered a huge emotional and psychological impact as a result of your offending. She continues to experience what she described as vivid and frightening nightmares of being trapped and about to die on at least about a monthly basis. She suffered extreme depression and, shortly after this attack, experienced her first panic attack, having then gone on to suffer close to ten panic attacks in the subsequent two years. On a couple of those occasions she has ended up in hospital. She has developed major anxiety, finds it difficult to socialise with friends and family, finds it difficult to cope in public places and detailed one occasion where she suffered a panic attack in a bank for no reason. She stated she was healing well and was a stronger person today but would never be the same again. She said the physical injuries she suffered healed about a month after the crime. I should add that the consequences she has described are utterly unsurprising to this court and are commonly experienced by victims of nasty domestic violence such as this.[7]
[7]Ibid [44]–[45] (emphasis added).
As to the timing of the plea and remorse, the judge said:
The plea was entered at a very late stage, essentially just before trial. A contested committal was conducted and I have had access to the intercept material, namely to telephone conversations you had with other persons from the gaol, and the way in which you spoke of [A] on some occasions does not line up with the embarrassment and remorse you expressed to Mr Cummins.
You sought to flee the consequences of your actions, were unco-operative with police in your interview and sought to blame [A]. I do not necessarily express the expressions of remorse you made to Mr Cummins. You have a long history of drug and alcohol abuse. You have a persistent offending history and I accept Mr Cummins' view that your prospects of rehabilitation must be judged to be guarded.[8]
[8]Ibid [48]–[49].
In conclusion, the judge said:
Generally speaking, the courts are expected to take a very stern view of nasty, violent, domestic offending in this case, aggravated by the false imprisonment you imposed upon [A], together with the humiliation of her circumstances. As I have said, this is a serious example of such offending behaviour.
In my view, and it was not seriously argued otherwise, there is no other appropriate disposition other than a term of imprisonment to be immediately served. To date, you have spent about 22 months in prison. In my view, this does not appropriately reflect the seriousness of your offending.[9]
[9]Ibid [54]–[55].
The judge then passed sentence. Her Honour was told that pre-sentence detention amounted to 290 days, not including the day of sentencing. There was then the following exchange between the judge, the prosecutor and defence counsel:
PROSECUTOR: Also Your Honour, before we close, my learned friend has a misgiving about I think parole and whether or not that was taken into account as well, the fact that he lost his opportunity for parole whilst serving time.
HER HONOUR: It was never ever mentioned to me on the plea. So I don't see why I ‑ ‑ ‑
DEFENCE COUNSEL: It was, Your Honour.
HER HONOUR: I don't think it was, [counsel]. All right, well I will state the following.
PROSECUTOR: Yes, Your Honour.
HER HONOUR: I note that you have been in custody since your arrest in 2012, and that you have therefore been in custody for a period of 896 days, 606 days of that was served as a sentence for other offending. That means there is pre-sentence detention of 290 days.
I note that you lost your opportunity for parole because of these matters. These are all matters that I have taken into account in determining the appropriate sentence in this matter.[10]
[10]Ibid [98]–[104].
The reference to the lost opportunity for parole relates to two periods of time during which SM would have been eligible for parole in relation to the sentence imposed on 18 December 2012: first, the period from 10 May 2013, when he became eligible for parole, up to 19 September 2013, when he received an additional two months cumulated on the sentence he was then serving; and secondly, the period from 19 November 2013 (when the two months cumulation sentence was completed) to 3 February 2014 (when the sentence imposed on 18 December 2012, as extended by the sentence imposed on 19 September 2013, was completed).
SM’s submissions
SM argued grounds 1 and 2 together. SM contended that the total effective sentence and non-parole period were manifestly excessive when one had regard to SM’s plea of guilty and remorse, SM’s significant steps taken towards rehabilitation while in custody and totality. As a particular of his manifest excess ground, in his written case, SM contended that the judge took into account a number of irrelevant considerations. However, in oral argument, SM confined this aspect of his case to a complaint that the judge took into account the earlier alleged sexual penetration of A. It was submitted that, as this incident related to the charge of rape which was not proceeded with, it should not have been used as an aggravating feature in sentencing SM for the offences for which he had pleaded guilty.
As to totality, SM submitted that the exchange between his counsel and the judge following sentencing discloses that, notwithstanding what her Honour said, the judge did not have regard to SM’s loss of the opportunity of being paroled on the December 2012 sentence because he was in custody for the present offending.
SM conceded that, in her reasons for sentence, the judge expressly referred to the fact that he had been in custody since May 2012, and expressly dealt with the sentences imposed upon SM subsequent to being taken into custody. He contended nevertheless that the judge did not expressly refer to principles of totality in her reasons for sentence. As the oral argument progressed, it became plain that SM’s principal complaint concerned totality. The sentence imposed, on top of SM’s time in custody from May 2012, was said to be a very long sentence when regard was had to all of the offending for which SM was sentenced on 18 December 2012, 19 September 2013 and 23 October 2014.
Finally, SM submitted that, in any event, all of the offending occurred over one evening and, in the circumstances, the orders for cumulation were excessive.
The respondent’s submissions
The respondent submits that the sentence imposed was not manifestly excessive, and that the judge correctly dealt with each of the issues about which SM makes complaint.
As to the judge’s reference to the formerly alleged sexual penetration, the respondent submitted that when her Honour came later in her reasons to recite the offending for which SM was to be sentenced, she made no reference to that matter.[11] Accordingly, it was submitted, the error earlier made was not material.
[11]See [29] above.
The respondent conceded that the judge did not in terms specifically refer to the principle of totality but argued that the failure to mention a matter did not justify the inference that that matter was not properly considered. The respondent relied on authority to the effect that a judge’s reasons for sentence ‘must be read and understood against the background of what was said by counsel and the judge during the course of the plea’. The respondent then relied upon the extensive discussion about totality during the plea, and to the numerous references the judge made to the issue in debate with counsel. Further, the respondent contended that the judge’s statement, after sentence was imposed, that she took into account the relevant matters, cannot be gainsaid.
Finally, the respondent submitted that even if SM could demonstrate error, no different sentence should be imposed having regard to the seriousness of the offending.
Analysis
In arguing that the sentence was manifestly excessive, SM sought to cavil with the judge’s treatment of his plea of guilty and the issue of remorse. The judge said that the plea of guilty was entered at a very late stage.[12] That statement was literally true, but arguably did not reflect the fact that SM had originally been charged with two charges of rape and that, once those charges were withdrawn, he had pleaded guilty to the charges for which he fell to be sentenced by the judge.
[12]Ibid [48].
Further, it would appear that at the committal SM had indicated a willingness to plead guilty to the ‘assault-based charges’ (although not the false imprisonment charge). While there is no specific ground contending that the judge erred in her treatment of SM’s plea of guilty, in arguing manifest excess SM contended that he should at least be given credit for an intention to plead guilty to the assault charges at an earlier stage than that identified by the judge.
SM makes a similar argument in respect of remorse. We see no basis for criticism of the judge’s treatment of remorse. We are nevertheless prepared to proceed on the basis that the plea of guilty was more timely than suggested by the judge, and that it was also evidence of some remorse.
We deal next with the reference in the reasons to digital penetration of A. This was, plainly enough, an error. Remarkably, however, the parties to this appeal made the same error when they approved the Registrar’s Neutral Summary, prepared for the appeal, which contained the same erroneous statement of fact.
The error is presumably to be explained by her Honour having inadvertently referred to the prosecution opening for the trial of the rape charges, that being the trial which was about to commence when the matter resolved into the pleas of guilty with which her Honour had to deal. A revised opening had been prepared for the plea, which did not mention the (alleged) digital penetration.
On a reading of the plea transcript and the sentencing reasons as a whole, we are satisfied that the error was immaterial. As the respondent pointed out, her Honour’s analysis of the seriousness of the offending made no mention of this matter.[13] Had her Honour viewed the digital penetration as an aggravating factor, she would undoubtedly have referred to it as such, given the intrinsic seriousness of an act of sexual penetration.
[13]See [29] above.
While SM relies upon Renzella, the first point to be noted is that there was no ‘dead time’ of the kind described in Renzella in the present case. Every day SM was in custody before sentencing by the judge was either taken into account as pre-sentence detention or was a day served under a sentence imposed for other offending. That said, because SM was in custody awaiting sentence for the present matters, he lost the opportunity to apply for parole in respect of the sentence imposed on 18 December 2012. This fact, together with the entirety of the period during which SM was in custody from May 2012, fell to be taken into account by the sentencing judge in the overall sentencing synthesis.
SM’s submission that the judge failed to take into account totality was premised on three propositions: first, that the judge’s reasons for sentence did not expressly refer to the principle of totality; secondly, that the judge could not have properly taken into account totality because, prior to passing sentence, the judge did not know the amount of pre-sentence detention, nor the amount of SM’s time in custody between May 2012 and October 2014, in respect of which a declaration of pre-sentence detention could not be made; and thirdly, that the judge erred in stating, at the conclusion of the sentence, that the question of SM’s loss of the opportunity to obtain parole was never mentioned to her on the plea.
SM’s submissions must be rejected. A close reading of the plea transcript discloses that the judge was well aware that, at the time of the plea, SM had been continuously in custody from May 2012 to the date of the plea (September 2014), and that only 243 days of this custody could be taken into account as pre-sentence detention. As was discussed at a number of points during the plea, the balance of SM’s time in custody fell to be considered by reference to principles of totality.
In her reasons for sentence, her Honour referred specifically to the fact that SM had ‘spent about 22 months in prison’ and that this did not ‘appropriately reflect the seriousness of [SM’s] offending’.[14] This was a direct response to SM’s submission on the plea that the pre-sentence detention, together with the balance of SM’s time in custody (approximately 22 months), constituted a sufficient period in custody to adequately punish him for the offending for which he fell to be sentenced and the offending for which he had previously been sentenced on 18 December 2012 and 19 September 2013.
[14]Reasons [55].
While SM submitted on the plea that he had also lost the opportunity of parole during the periods to which we have referred, the totality point fell to be determined, not merely by reference to a loss or losses of opportunity to obtain parole, but rather by reference to the total time SM had in fact been in custody (and would be in custody following her Honour’s sentence) for all of his offending. The question of the loss of an opportunity to apply for parole did not add anything to SM’s totality argument. Had he been able to obtain parole in respect of the 18 December 2012 sentence and then been bailed for the present offending, the pre-sentence declaration made by the judge would have been that much less than the one that fell to be made at sentence.
While her Honour was in error in saying that the loss of opportunity of parole had not been relied on, she was plainly right to say subsequently that that matter had been taken into account by her as part of the overall totality argument.
SM was sentenced to a total effective sentence of three years and six months’ imprisonment, with a non-parole period of two years and six months in respect of a serious example of serious offending. This Court has said on many occasions that domestic violence will not be tolerated, and that general deterrence is a very important sentencing principle in the sentencing disposition which must be, and must be seen to be, condemned by the courts.[15] To borrow from what this Court said recently in Filiz v The Queen,[16] offending of this nature is too often perpetrated by men whose response to conflict with a partner is one of violent rage. Such a response is utterly unacceptable. This Court has made it clear, and will continue to make it plain, that offending of this kind will attract serious consequences.
[15]See, eg, R v Gojanovic [2002] VSC 467, [31]; R v Robertson [2005] VSCA 190, [13]; DPP v Smeaton [2007] VSCA 256, [21]–[22]; R v Hester [2007] VSCA 298, [19].
[16]Filiz v The Queen [2014] VSCA 212, [21] (Maxwell P and Redlich JA).
Remembering that manifest excess is a difficult ground to make out (an appellant having to show that the sentence imposed was wholly outside the range of sentencing options available to the judge), it cannot be said that the sentence imposed in this case was manifestly excessive. Indeed, having regard to the objective seriousness of SM’s conduct, and giving full effect to considerations of totality, we think the sentence imposed by the judge was, with respect, entirely appropriate.
Further, we see no basis for complaint regarding the orders for cumulation made in respect of all of SM’s offending that was the subject of the present charges. In its totality, the offending was prolonged, humiliating and brutal. It warranted a total effective sentence of at least that imposed by the judge. In our view, the level of the sentence imposed shows that the judge plainly moderated her sentence by reference to totality and the fact that SM had lost the opportunity for parole in relation to the sentence imposed on 18 December 2012.
Conclusion
While the judge’s declaration of pre-sentence detention should be corrected to reflect the fact that it was 261 days at the time of sentencing (and not 290 days), the appeal must be dismissed.
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