R v Bloomfield; R v Davidson; R v Wilson
[2009] VSCA 302
•17 December 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 953 of 2008
| THE QUEEN |
| v. |
| DANIELLE BLOOMFIELD |
| and |
No. 970 of 2008
| THE QUEEN |
| v. |
| RONALD DAVIDSON |
| and |
No. 960 of 2008
| THE QUEEN |
| v. |
| TRACEY LEE WILSON |
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JUDGES: | WARREN CJ, NEAVE JA and KING AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 August 2009 | |
DATE OF JUDGMENT: | 17 December 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 302 | |
JUDGMENT APPEALED FROM: | R v Danielle Bloomfield, R v Tracy Wilson, R vRonald Davidson (Unreported, County Court of Victoria, Judge Duckett, 18 December 2008) | |
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CRIMINAL LAW – Sentences - Aggravated burglary – Intention to cause injury – Theft – Whether offending a single criminal activity - Whether error in order for cumulation - Parity.
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| APPEARANCES: | Counsel | Solicitors |
| For the applicant Bloomfield | Mr K Doyle | Matthew White & Associates |
| For the applicant Davidson | Mr R F Edney | Chris McLennan & Co |
| For the applicant Wilson | Mr C Mandy | Dowling MacGregor Solicitors |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
WARREN CJ:
The three applicants, Danielle Bloomfield, Ronald Davidson and Tracy Lee Wilson, were convicted and sentenced together following events at a shared accommodation house in Reservoir on 12 January 2007. Each applicant seeks leave to appeal sentence. It is appropriate, therefore, to consider and determine the three applications together. Further, the applicant Davidson seeks reinstatement of his application for leave to appeal on the grounds of mistake on the part of his lawyers.
For some time prior to 12 January 2007, the applicant Bloomfield lived at the Reservoir house with four others, including one Danny Scott (‘Scott’) and one Sarah Hepplethwaite (‘Hepplethwaite’). On about 8 January 2007, Bloomfield was evicted from the house by the manager, leaving certain belongings behind. Bloomfield failed to return keys in her possession which gave access to her former room and to the front door of the house. On 12 January 2007, Bloomfield returned to the house accompanied by Davidson and Wilson, and an unknown male. They gained access to the house using Bloomfield’s unreturned keys. Upon entering the house, Davidson and the unknown male entered the room occupied by Hepplethwaite and Scott without permission and refused to leave. Both Hepplethwaite and Scott were in the room at that time with another resident. Davidson shouted abuse and swore at Scott. Davidson and the unknown male then set about attacking Scott by punching, elbowing, and kicking him in the face and head. The unknown male also threatened to rape Hepplethwaite. Both Scott and Hepplethwaite were threatened with further violence if the police were summoned.
The door to the room remained open as these events unfolded. During this time, Bloomfield and Wilson had set about removing the belongings Bloomfield had left behind upon eviction. Bloomfield yelled encouragement to Davidson during the assault, saying she would come and ‘cave in’ Hepplethwaite’s head. Davidson and the unknown male continued to attack Scott, save for a short time when the latter went out of the room but then returned to pursue the attack. Scott fell to the ground unconscious and the assault continued.
Wilson and Bloomfield then also entered Scott and Hepplethwaite’s room without permission. Bloomfield went through Hepplethwaite’s handbag and removed some sunglasses. She also took a mobile telephone and other items belonging to Hepplethwaite, including clothes. Further, Bloomfield grabbed Hepplethwaite and threw her to the ground. Both Bloomfield and Wilson set about punching her. Wilson grabbed Hepplethwaite by her hair, pulled her to her feet, and held up her head at which time Bloomfield punched Hepplethwaite in the face a number of times giving her a black eye. After assaulting Hepplethwaite, Wilson suggested the attackers leave. They left the room and the house and were heard to drive away.
The precise duration of the assaults is unclear. Hepplethwaite said ‘they kept us in the room for about an hour and a half, almost two, while they assaulted us, threatened us and stole our belongings’. Scott, who lost consciousness, said they were held for one hour. He suffered bruising, swelling, and pain to the upper body. Hepplethwaite suffered a black eye, swelling, bruising to the head and right wrist, and overall soreness. She was very frightened and thought the applicants would kill her and Scott. Scott and Hepplethwaite were later taken to hospital by ambulance. They did not report the attack to police until the next day due to fear of the applicants.
The police arrested Davidson and Wilson a few days later at an address where the police found Hepplethwaite’s mobile telephone and some of her cactus plants. Bloomfield was arrested about three weeks later. She had Hepplethwaite’s sunglasses and the keys to the house at Reservoir in her possession.
Each of the applicants were formally interviewed by the police. Wilson gave a largely no comment interview. Davidson said in his interview that he went to the Reservoir house with Bloomfield to collect the clothes left behind following eviction, that an argument had broken out, that there was some pushing, and that Scott fell over a chair. When asked whether anyone was punched he replied no. Davidson otherwise made a largely no comment interview. Bloomfield made full admissions and was co-operative, as acknowledged by the prosecution. Bloomfield said Hepplethwaite ‘copped a kicking from me … because she was getting smart’. She admitted punching Hepplethwaite’s face. Bloomfield said she went into the room to ‘smash’ Hepplethwaite.
In connection with the events at the Reservoir house on 12 January, Bloomfield was presented on a count of aggravated burglary (Count 1), a count of theft (Count 2) and a count of intentionally causing injury to (Hepplethwaite) (Count 3). In relation to Counts 1 and 3, Bloomfield was jointly presented with Wilson. Davidson was presented on a count of aggravated burglary (Count 1) and a count of intentionally causing injury (to Scott) (Count 2).
There were committals contested by each of the applicants. Wilson indicated a plea of guilty in October 2008. It is not entirely clear when, but it appears Bloomfield and Davidson also pleaded guilty in October 2008.
Bloomfield was aged 34 at the time of sentence, suffered from untreated alcoholism, and had poor prospects of recovery. She suffered a dysfunctional and abusive childhood resulting in her being placed in state care between the ages of seven to sixteen. She was the victim of physical and sexual abuse in a number of relationships. Bloomfield was psychologically assessed as being moderately depressed and having a borderline personality disorder. The sentencing judge found she had poor prospects of rehabilitation, with previous convictions for burglary, theft, handling stolen goods, aggravated burglary and recklessly causing serious injury. The latter two convictions led to a sentence of imprisonment for two years, wholly suspended for two years. The sentencing judge noted from the report of a forensic psychologist that Bloomfield was emotionally immature with a limited ability to reflect on the impact of her behaviour both on herself and others. More specifically, his Honour observed that Bloomfield was ‘emotionally and behaviourally’ unstable and engaged in self-destructive behaviour. His Honour also observed that there was little distinction in criminality between the roles of Bloomfield and Davidson in the subject offending.
Significantly, the sentencing judge found as to the behaviour of Bloomfield:
The grievances you had give you no justification for your conduct. On the pretext of a visit to your former home to collect belongings that you had left behind, you recruited three associates to unlawfully enter and assault the tenants who were still living in the rooming house. Your anger was directed in particular towards Sarah Hepplethwaite, a former associate who had arranged for you to move into the Reservoir home.
Bloomfield was convicted and sentenced following pleas of guilty as follows:
Count 1 – aggravated burglary – two year’s imprisonment.
Count 2 – intentionally causing injury – 18 month’s imprisonment.
Count 3 – theft – six month’s imprisonment.
Nine months of the sentence on Count 2 and the sentence on Count 3 for Bloomfield was ordered to be served cumulatively on each other and on Count 1. The total effective sentence imposed on Bloomfield was three years and three months’ imprisonment. A non-parole period of two years was fixed. The judge declared a period of five years with a minimum of three years pursuant to Section 6AAA of the Sentencing Act.
Davidson was 41 at the time of sentence. Between 1984 and 2006, he had 24 court appearances for various offences. In March 2002 he was sentenced to a term of three months’ imprisonment. He had known Bloomfield for ten years and she had sometimes been referred to as his ‘lady friend’. Davidson had been drinking on the day of the offending.
Davidson came from a socially fragmented background. He was forced to leave home at 14 years of age which resulted in ongoing homelessness, educational disadvantage, and led to physical trauma and alcohol and drug consumption from a young age. This later developed into drug and alcohol dependence. Davidson has three children from two different relationships. He was assessed as having an IQ of 71. In the three year period before sentence, Davidson worked part-time in the chemical industry. He had earlier gained permanent accommodation in public housing. Davidson was convicted and sentenced following pleas of guilty as follows:
Count 1 – aggravated burglary – two year’s imprisonment.
Count 2 – intentionally causing injury – 18 months’ imprisonment.
Nine months of the sentence imposed on Count 2 was ordered to be served cumulatively on Count 1. The total effective sentence for Davidson was two years and nine months’ imprisonment. A non-parole period of one year and nine months was fixed. The judge declared a period of five years with a minimum term of two years and nine months pursuant to section 6AAA of the Sentencing Act.
Wilson came from a severely disadvantaged background. She was raised by her grandparents and father. Her father was repeatedly imprisoned at which times she returned to the care of her mother. In 1998, whilst studying Year 12, her father was convicted of murder and sentenced to a long jail sentence. His imprisonment led to Wilson and her siblings losing their family home. She managed to complete Year 12. Wilson formed a relationship with a drug addict leading to her own use of heavy drugs and later cannabis and alcohol. At the time of the sentence, Wilson held employment as a child-carer. Her employer provided a very supportive reference on sentence. Wilson suffered from various health issues including bulimia and anorexia. At the time of sentence, his Honour noted that Wilson had a less significant criminal record than Bloomfield and Davidson and that her sentence was the first time she faced immediate imprisonment.
Wilson was convicted and sentenced following a plea of guilty as follows:
Count 1 – aggravated burglary – two years’ imprisonment.
Count 2 – intentionally causing injury – twelve months’ imprisonment.
Six months of the sentence imposed on Count 2 was directed to be served cumulatively on Count 1. The total effective sentence imposed on Wilson was two years and six months’ imprisonment. A non-parole period of nine months was fixed. The judge declared a period of three years and six months’ with a minimum term of 18 months for the purposes of section 6AAA of the Sentencing Act.
Bloomfield
Bloomfield applied for leave to appeal on the sole ground that the sentencing judge erred in ordering total cumulation in relation to Count 3 (Ground 2).[1] At the outset, I observe counsel for Bloomfield did not challenge his Honour’s finding that there was little distinction in criminality between Bloomfield and Davidson. This approach was adopted notwithstanding that it was Davidson and the unknown male who were the principal perpetrators of violence over a longer and more sustained period. By contrast, Bloomfield’s actions constituting the assault were over a shorter period and involved blows to Hepplethwaite’s face. Nevertheless, it was Bloomfield who induced her co-offenders to enter the premises and, indeed, it was Bloomfield who encouraged Davidson.
[1] Grounds 1, 3 and 4 were abandoned.
It was submitted for Bloomfield that the theft of the telephone, clothing and other items was so closely linked in time with the other offending and surrounding events that the offending constituted one criminal activity, or, ‘a single transaction’, in the words of counsel for Bloomfield. Accordingly, so the argument ran, error was perpetrated when partial cumulation on Count 2, and total cumulation on Count 3, was ordered upon the base sentence of Count 1.
I am unable to accept the argument. It is clear from Bloomfield’s perspective that the assault on Hepplethwaite was her primary intent. The theft of the belongings was gratuitous, occurred after entry, and was separate and subsequent to the original intent of entry.
It was also submitted for Bloomfield that the order for total cumulation constituted error in the context of the sentencing discretions open to the sentencing judge. Again, I am unable to accept the submission. Bloomfield’s offending with respect to each count was separate, and the sentence was within range and open to his Honour in the circumstances.
I would therefore refuse the application for Bloomfield.
Davidson
The application for leave to appeal sentence by Davidson was deemed dismissed pursuant to the rules for failure to file an outline of submissions within time.[2] An application for reinstatement was filed together with a supporting affidavit to the effect that there had been error on the part of Davidson’s lawyers with respect to the filing date. Before considering the application for reinstatement, it is convenient to consider the merits of the application itself.
[2]Rule 2.09.3(1)(a) Supreme Court (Criminal Procedure) Rules 2008.
The applicant Davidson relied on two categories of grounds. The first concerned the sentencing judge’s treatment of Davidson’s plea of guilty and his Honour’s fixing of the non-parole period (Grounds 1 and 4). The second concerned supposed errors in the treatment of parity (Grounds 2, 3 and 5). A ground of manifest excess was abandoned.
With respect to both categories, it was submitted that the relevant comparison was between Davidson and Bloomfield. It was contended that when the respective sentences and orders for cumulation were scrutinized together with the comparative declarations made under Section 6AAA of the Sentencing Act, Davidson’s plea of guilty was treated disproportionately to Bloomfield’s. An attempt at a careful mathematical analysis was undertaken by counsel for Davidson to reveal a percentage differential between the head sentence and non-parole period of the applicants Bloomfield and Davidson. The analysis was informative, but its precision did not allow for, or take account of, Davidson’s very poor criminal history, particularly that part of his history devoted to acts of dishonesty.
I am of the view that parity does not arise here for two reasons. First, the different criminal histories of the two offenders to which I have referred. Secondly, the different circumstances relating to each of Bloomfield and Davidson’s involvement in the events at the Reservoir House, explained earlier in these reasons. In essence, parity does not arise due to these differing circumstances and due to the nature of Davidson’s criminality being worse than that of Bloomfield. It follows that I would refuse the application for reinstatement on the basis that the application for leave to appeal sentence was, in any event, wholly unmeritorious and such an extension would be futile.
Wilson
Turning to the applicant Wilson, his Honour observed that her role in the violence came later in the attack. His Honour also took account of her significantly lesser criminal record as compared with her co-offenders and, it seems importantly, that this occasion was the first time Wilson faced an immediate custodial sentence.
It was submitted for Wilson that her criminality in the overall offending was less significant and that the judge failed to take sufficient account of her lack of prior offences and her likelihood of re-offending. It was also submitted that there was error in the orders for cumulation.
These submissions are persuasive. On the facts, Wilson’s overall offending was less significant than that of her co-offenders. Further, Wilson proffered much higher prospects for rehabilitation and presented a far lower likelihood of re-offending. Neither of these matters were taken into account and hence error in the sentencing discretion is made out and the sentencing exercise is re-opened.
I would re-sentence Wilson to one year’s imprisonment on Count 1 and nine months’ imprisonment on Count 2. I would order that three months of the sentence imposed on Court 2 be served cumulatively on Count 1 giving rise to a total effective sentence of one year and three months imprisonment. I would direct the same minimum term as that imposed by the trial judge, namely nine months. Pursuant to section 6AAA of the Sentencing Act, I would have imposed a total effective sentence of three years’ imprisonment with a minimum term of 18 months before being eligible for parole.
It follows I would grant leave as sought by the applicant Wilson, set aside the sentence below and re-sentence the applicant as indicated.
NEAVE JA:
I agree with the Chief Justice, for the reasons she gives, that Bloomfield’s application for leave to appeal against sentence and Davidson’s application for re-instatement should be refused.
In my opinion, the circumstances of Wilson’s offending warranted the imposition of sentences at the lower end of the range for the offences of aggravated burglary and intentional infliction of injury. According to the Sentencing Snapshots produced by the Sentencing Advisory Council, in the years 2002-3 to 2006-7 the median length of imprisonment for aggravated burglary was 2 years and the median sentence for causing injury intentionally, was 1 year.[3]
[3]Sentencing Advisory Council, Sentencing Snapshot No. 38: Sentencing Trends for Aggravated Burglary in the Higher Courts of Victoria, 2002-03 to 2006-07, December 2007, 5; Sentencing Advisory Council, Sentencing Snapshot No. 41: Sentencing Trends for Causing Injury Intentionally or Recklessly in the Higher Courts of Victoria, 2002-03 to 2006-07, February 2008, 6.
Although Wilson admitted 11 prior convictions arising out of four court appearances she had not been convicted of a violent offence since 1999, when she was convicted of recklessly causing injury. Her last conviction for any offence was in 2003.
In my opinion the sentence imposed on Wilson did not adequately reflect the difference between her contribution to the offending and the contribution of her co-offenders. Bloomfield initiated the burglary and the assault on Hepplethwaite. The additional infliction of injury on Scott by Davidson involved a more sustained and vicious attack than the intentional infliction of injury on Hepplethwaite, in which Wilson participated.
In addition I consider that the sentence imposed on Wilson should have given greater weight to the fact that she had better prospects of rehabilitation than her co-offenders.
For these reasons, I agree with the Chief Justice that Wilson’s application for leave to appeal against sentence should be granted and that Wilson should be re-sentenced as her Honour proposes.
KING AJA:
I agree with the reasons given by the Chief Justice and with the orders proposed by her Honour.
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