Nathan Chatters v The Queen
[2019] VSCA 309
•17 December 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0230
| NATHAN CHATTERS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 December 2019 |
| DATE OF JUDGMENT: | 17 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 309 |
| JUDGMENT APPEALED FROM: | DPP v Chatters [2019] VCC 1716 (Judge Gucciardo) |
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CRIMINAL LAW – Appeal – Sentence – Recklessly causing injury and common assault – Total effective sentence of two years and six months’ imprisonment with non-parole period of one year and seven months – Whether parity principle infringed – Whether sentence manifestly excessive – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G F Connelly | Greg Thomas Barrister & Solicitor |
| For the Respondent | Mr C B Boyce QC | Ms A Hogan, Acting Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA:
Introduction
Both the applicant and Fallon Vorbach (‘Vorbach’) were tried in the County Court on an indictment which charged them with home invasion, charge 1; intentionally causing injury to Shayne Talbot (‘Talbot’), charge 2; alternatively, recklessly intentionally causing injury to Talbot, charge 3; and common assault to Jacqui Francese-Naylor (‘Francese-Naylor’), charge 4.
Ultimately, the jury found both the applicant and Vorbach guilty of charge 3, recklessly causing injury, and charge 4, common assault.[1] The jury also acquitted the applicant on the charge of home invasion, but could not agree on a verdict on that charge with respect to Vorbach. Subsequently, Vorbach pleaded guilty to a separate indictment which charged him with aggravated burglary arising out of the same circumstances which had given rise to the charge of home invasion.
[1]In light of the verdicts on charge 3, the judge directed verdicts of acquittal on charge 2.
Following pleas in mitigation conducted on 15 October 2019, on 18 October 2019 the judge sentenced the applicant to two years’ imprisonment on the charge of recklessly causing injury (charge 3), and to one year’s imprisonment on the charge of common assault (charge 4). Six months of the sentence on charge 4 was ordered to be served cumulatively with that on charge 3, leading to a total effective sentence of two years and six months’ imprisonment, upon which the judge fixed a non-parole period of 19 months.
Vorbach, too, was sentenced to two years’ imprisonment on the charge of recklessly causing injury (charge 3), and to one year’s imprisonment on the charge of common assault (charge 4). Additionally, Vorbach was sentenced to three years and six months’ imprisonment for aggravated burglary, that sentence becoming the base sentence. The judge ordered that two months of the sentence on charge 3, and four months of the sentence on charge 4, be served cumulatively with the base sentence,[2] leading to a total effective sentence of four years’ imprisonment, upon which a non-parole period of two years and eight months was fixed.
[2]In his oral reasons, the judge ostensibly directed that four months of the sentence on charge 3, and two months of the sentence on charge 4, be served cumulatively with the sentence for aggravated burglary. The signed Record of Orders, however, records that the judge ordered that two months of the sentence on charge 3, and four months of the sentence on charge 4, be served cumulatively with the base sentence.
The applicant seeks leave to appeal against sentence on two grounds:[3]
[3]The applicant required an extension of time in which to file a Notice of Application for Leave to Appeal. Given that the delay in filing the Notice was satisfactorily explained, we granted the extension of time.
1. It was not in all the circumstances reasonably open to impose on the applicant:
(a) the same sentences on charges 3 and 4 as were imposed on Vorbach; or
(b) a greater cumulation order on charge 4 than was imposed on Vorbach; or
(c) a cumulation order on charge 4 that is 4 months greater than that imposed on Vorbach.
2. The individual sentences, order for cumulation and non-parole period are manifestly excessive having regard to all the circumstances.
In our view, leave to appeal should be refused.
The offending
At the time of the offending, the applicant and Vorbach, who had known each other for some months, were living at a caravan park in Seaford. In the morning of 14 June 2018, at about 1.00 am, they travelled to a house in North Frankston occupied by Talbot and Francese-Naylor. They entered and were confronted by Francese-Naylor at the entrance of the house. At this point, Talbot was asleep in his bedroom. Francese-Naylor yelled out ‘Shane’ to try and wake him. Vorbach pushed past her and went towards the bedroom at the rear of the property. Talbot came out of his bedroom and punched Vorbach in apparent self-defence. Vorbach then struck Talbot to the head and face several times, causing him injury.
In his reasons for sentence, the judge’s narrative of what then occurred was as follows:
While this was taking place, [the applicant] remained in the background near the entrance. However, when Ms Francese-Naylor had struggled with Vorbach, [the applicant] came up to her and took her away from Mr Vorbach forcefully by her hair, dragging her down the hallway. [The applicant] told her to stop, to think about what she was doing, and that, ‘This has to happen’, inviting her to stop her interference with what Mr Vorbach was doing to Mr Talbot.
She has managed to move back towards Talbot and Vorbach, but by this stage, Talbot was getting up and was running out of the house. Having been knocked down, chased by you, Mr Vorbach, when this happened, [the applicant] again dragged Francese-Naylor towards the entrance by her hair a second time. She managed, however, to run out into the street but Talbot was gone.
Vorbach and the applicant then left. Talbot had received a laceration to his scalp which required seven stitches, and grazes and bruises to his knee and left toe.
It seems that the genesis of the offending may have been an unpaid loan. Talbot gave evidence that he had loaned Vorbach $150, which Vorbach had not repaid. Talbot said in evidence that as a result there was an earlier fight in which Vorbach had hit him once and he had hit Vorbach twice, knocking him out.
On 22 June 2018, police arrested the applicant and Vorbach at the caravan park. Vorbach made a ‘no comment’ interview. The applicant denied any involvement; denied knowing about Talbot and Francese-Naylor; and denied knowing where they lived or being there.
On charge 3, recklessly causing injury, the case against the applicant was put on the basis that he was complicit in the actions of Vorbach. In oral submissions, we were informed by counsel for the respondent that charge 4, common assault, was constituted by the second incident of the applicant dragging Francese-Naylor by the hair.
Ground 1: Parity
In his sentencing remarks, the judge made clear that Vorbach was the principal offender. He said:
Further, as to each of you, there should, in my view, be a measure of particular cumulation in relation to the offences in relation in recognition that the events described had three distinct aspects, each properly covered by a separate charge. Another issue is that of parity in your sentences.
However, in this regard, my view is that although I should vigilant to ensure that there is no sense of grievance which could arise from any disparity, there are significant distinguishing features which result in a measure of legitimate disparity between the two of you. The role played each of you is significantly different. The actual involvement is different, and, to my mind, the relevant culpability can be distinguished.
This was very much your enterprise, Mr Vorbach. Foolishly, Mr Chatters came along with you, being the principle [scil, principal] mover, to lend support and assistance which he did unfortunately provide.
Counsel for the applicant in this Court submitted that, given that his Honour found that the offending was ‘very much’ Vorbach’s ‘enterprise’, the ‘imposition of a lower sentence on Vorbach for the common offending is inexplicable’. (It will be remembered that, in the applicant’s case, six months of the sentence on the charge of common assault was ordered to be served cumulatively with the sentence on the injury charge; but in Vorbach’s case, four months of the sentence for common assault was ordered to be served cumulatively with the sentences on other charges.) It was Vorbach, counsel submitted, who was motivated to (and did) attack Talbot while the applicant ‘simply lent assistance by keeping Francese-Naylor out of the fray’.
As the passage extracted from his Honour’s sentencing remarks above shows, his Honour was well aware of the need to avoid unjustified disparity.
Plainly, Vorbach’s role overall was as ‘principal’, and the offending was largely his enterprise, ostensibly being to exact revenge on Talbot. That said, it was the applicant who was directly responsible for the unpleasant assault on Talbot’s female partner, forcefully dragging her down the hallway by the hair. Importantly, the applicant did so after Talbot had fled. Thus, the applicant’s role clearly was the more active with respect to the events constituting charge 4.
Apart from their differing roles in the offending, the applicant’s and Vorbach’s criminal antecedents were different. Although Vorbach had relevant prior convictions for violence — and breached a community correction order (‘CCO’) imposed for assault and other offences by the present offending[4] — his criminal history was less serious than the applicant’s, leading the judge to consider his prospects of rehabilitation to be ‘guarded’.
[4]On 31 May 2018, Vorbach was convicted of assaulting an emergency worker on duty; unlawful assault; and being drunk and disorderly in a public place, and was sentenced to a CCO of 12 months’ duration, with a condition that he perform 120 hours of unpaid community work. He was also fined $700 on a charge of using a carriage service to harass.
By way of contrast, as the judge observed, the applicant has a ‘very long and significant criminal record, comprised of 47 pages, and listing an extraordinary number of criminal proceedings and sentences’, leading the judge to assess his prospects of rehabilitation as being ‘very guarded’. Without setting it out in any detail, the applicant’s criminal record commenced when he was 17 years old. He was first incarcerated in December 1994, shortly after he turned 18 years, [5] and since then has spent long periods in custody. His prior convictions largely relate to thefts, burglaries, aggravated burglaries and driving offences, with some convictions for offences of resisting arrest, assaulting police and common assault.
[5]His date of birth is 28 November 1976.
Further, the judge was able to find some remorse in Vorbach’s case. Prior to committal, he had offered to plead guilty to home invasion and intentionally causing injury to Talbot, but that offer surprisingly was rejected by the prosecution because there was no agreement on the charge of common assault on Francese-Naylor. Given that he had offered to plead guilty to the very charges upon which the jury could not agree, the judge said in sentencing Vorbach that
you [scil, your] plea should reflect and be accepted not only to reflect that early offer as an attempt on your part to accept responsibility and facilitate the course of justice, but also reflect that ultimately there is a level or remorse attaching to the plea which the prosecution cannot gainsay.
The principles that guide the Court when considering a complaint of disparity were conveniently summarised in Collins:[6]
The principles governing parity are well-established.[7] Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed.[8] However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did.[9] When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.[10]
[6]Collins v The Queen [2015] VSCA 106, [23] (Whelan, Santamaria and Beach JJA) (citations as in original).
[7]See Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; and Roujnikov v The Queen [2015] VSCA 97, [24]–[25] (Weinberg and Kyrou JJA).
[8]Lowe v The Queen (1984) 154 CLR 606; R v Postiglione (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462.
[9]Roujnikov v The Queen [2015] VSCA 97 quoting McCloskey-Sharp v The Queen [2015] VSCA 87, [17] (Osborn JA).
[10]Hilder v The Queen [2011] VSCA 192, [38]–[39] (Maxwell P).
As was made clear in Postiglione,[11] different sentences imposed on co-offenders may reflect different degrees of criminality or different circumstances:
The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them).[12] In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. …
[11]Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ) (‘Postiglione’). (Citation as in original; emphasis added.)
[12]See Lowe v The Queen (1984) 154 CLR 606 at 610-611, per Mason J.
In our view, the differences between the applicant’s and Vorbach’s criminal histories; the judge’s differing assessment of their prospects of rehabilitation; and the judge’s finding of remorse in Vorbach’s case, together justify the apparent disparity in the orders for cumulation.
Moreover, in making orders for cumulation between the individual sentences in Vorbach’s case, his Honour undoubtedly was required to bear the principle of totality in mind (albeit that the judge did not specifically mention totality in his sentencing remarks). Depending on the circumstances, totality has the potential to lead to different results for co-offenders facing sentence for different offences.[13] We consider the orders that his Honour made to be consistent with the proper application of the principle of totality, bearing steadily in mind that ‘[t]he parity principle between co-offenders continues to operate as a consideration in sentencing notwithstanding the application of the totality principle to one offender’.[14]
[13]See Postiglione, 304 (Dawson and Gaudron JJ); 306, 313 (McHugh J); 341–3 (Kirby J).
[14]Ibid 343 (Kirby J).
The first proposed ground cannot be upheld.
Ground 2: A manifestly excessive sentence?
In submitting that the sentence was manifestly excessive, the applicant’s counsel submitted: first, that the applicant’s act of complicity on the charge of recklessly causing injury to Talbot was his assault on Francese-Naylor which was, itself, for the purpose of preventing her from entering the fray in support of Talbot; secondly, that care needed to be taken to avoid double punishment; thirdly, that the applicant’s offending was not and could not be aggravated on the basis of planning or vengeance; fourthly, that the applicant’s role was fleeting and confined; and, fifthly, the applicant’s childhood deprivation had to be given some weight.[15]
[15]Counsel cited Bugmy v The Queen (2013) 249 CLR 571.
The approach to a ground claiming that a sentence is manifestly excessive was summarised in Leimonitis:[16]
As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[17] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[18] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[19] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[20]
[16]Leimonitis v The Queen [2018] VSCA 98, [32] (Priest JA).
[17]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]-[52].
[18]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[19]Ibid.
[20] Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].
At the time that the plea was conducted by counsel on the applicant’s behalf, the applicant had been in custody for 480 days. Counsel submitted that ‘480 days is within the range of sentences that could be imposed for this offending‘. The prosecutor apparently agreed, submitting that ‘in relation to [the applicant], all the prosecution can say is that the submission made by my learned friend, [applicant’s counsel], is within range’. Although his Honour did not refer to this joint position in his reasons for sentence, given the sentence that he imposed on the applicant, he must be taken to have rejected the submissions made.
We are not persuaded that the individual sentences, the total effective sentence effected by the order for cumulation or the non-parole period are manifestly excessive. The offending occurred in the dead of night against the victims in their own home, where they were entitled to feel safe, in circumstances where there was little by way of mitigation. Thus, there was not the ameliorating influence of a plea of guilty, and there was not much material which could have justified a finding that the applicant’s moral culpability was reduced.
Counsel for the applicant in this Court relied on Bugmy,[21] but not much was put before the sentencing judge to establish that the applicant was subject to relevant childhood deprivation or abuse. In written submissions on the plea, counsel submitted without elaboration that the applicant
was born in Tasmania. He is the 3rd youngest of 7 children. He is of Aboriginal descent. His childhood was traumatic. He was separated from his family at age 8. His mother died when he was 12. He has spent the majority of his adult life in custody. …
[21]Bugmy v The Queen (2013) 249 CLR 571.
The applicant’s counsel also relied on a Service Summary prepared by Forensicare’s prison Mobile Forensic Mental Health Service. With respect to the applicant’s childhood, it simply stated:
Mr Chatters is a gentleman of Aboriginal background with a fragmented and traumatic personal history. According to available file information, Mr Chatters experienced significant stressors in childhood and was separated from his family and raised in an Aboriginal camp in Tasmania. He has largely declined to discuss any childhood traumatic experiences and it is noted that he has spent the majority of his adult life in various episodes of incarceration. There is also some suggestion that he was treated unfairly during his incarcerations in Tasmania and spent up to six years in solitary confinement. Mr Chatters was last released in November 2017 after serving a three-year sentence, and was remanded into custody again after approximately 6-7 months in the community.
General and specific deterrence, denunciation and just punishment each had to be given appropriate weight in the sentencing exercise, in circumstances in which there was scant material going in mitigation. Indeed, given the applicant’s appalling record, the sentencing judge’s opinion that the applicant’s prospects of rehabilitation should be viewed as ‘very guarded’ may be somewhat generous.
In all of the circumstances, we regard the sentence as falling well within the appropriate range.
We would not uphold the second proposed ground.
Conclusion
Leave to appeal against sentence is refused.
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