R v Charles
[2007] VSCA 190
•4 September 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 184 of 2006
| THE QUEEN |
| v |
| LEANNE KIMBERLEY CHARLES |
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JUDGES: | MAXWELL P, KELLAM JA and WHELAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 September 2007 | |
DATE OF JUDGMENT: | 4 September 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 190 | |
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Criminal law – Sentencing – Intentionally causing serious injury – Threat to kill – Indigenous offender – Manifest excess – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell | Ms A Cannon, Solicitor for Public Prosecutions |
| The Applicant in person |
MAXWELL P:
Kellam JA will deliver the first judgment.
KELLAM JA:
The applicant, Leanne Charles, has sought leave to appeal her sentence on the single ground of manifest excess. She appears before us today without representation. Prior to her appearance today she provided to us two statements which demonstrate that she has indeed made quite remarkable progress during her time at the Dame Phyllis Frost Centre and at Tarrengower Prison. In addition, she has produced a document to us today. That document was prepared by Caraniche Pty Ltd, which is the organisation which conducts drug and alcohol programs at the Dame Phyllis Frost Centre. It confirms what she has told us in her two statements; that is, that she has made considerable progress and that she now has a clear understanding of the nature of many of the problems which have beset her life to date.
The statements that have been provided to us by the applicant are fulsome statements of the remorse which she now suffers and are insightful indeed in demonstrating that she now understands the effects upon her of difficulties that she has suffered earlier in her life. Her statements reflect well on her and reveal a clear understanding of the damage that she caused to her victim. One statement of particular insight, in my view, is this:
"When I was in my early days of incarceration I never felt sorry. Having the time to participate in personal development groups, I have huge changes in the way I think."
The material that has been put before us by the applicant demonstrates that she has made excellent progress. The programs provided by the corrections authority have had the desired consequence in her case. In appearing before us today she has reflected great credit upon herself and, indeed, my opinion is that her appearance today demonstrates that there is every likelihood that her life will turn a corner for much the better and that she will have the opportunity of living a good life as a mother of her four children.
Even though the matters that the applicant has put before us today reflect great credit upon her, the function of an appeal court is to examine whether the sentencing judge has made any identifiable error. I am grateful for the submissions made by Mr Trapnell in fulfilment of his duty in circumstances whereby the applicant is not represented. Those submissions reflect that he has analysed the judge's sentencing remarks carefully and endeavoured to see whether any error can be identified. He raised three matters with us that possibly and remotely could have been suggested to be errors. I accept with gratitude the submissions made by Mr Trapnell, but agree with him that in the end, each of the matters raised by him does not reveal error.
I turn to deal with the application for leave to appeal before us. On 15 June 2006, at the County Court at Shepparton, the applicant pleaded guilty to one count of causing serious injury intentionally, the maximum penalty for which is 20 years' imprisonment. At the same time, she pleaded guilty to one count of making threat to kill, the maximum penalty for which is 10 years' imprisonment. On 19 June 2006, she was sentenced to two years' imprisonment on the count of intentionally causing serious injury and to a term of one year’s imprisonment on the count of threat to kill. The sentencing judge directed that six months of the term of imprisonment ordered to be served on the second count be served cumulatively upon the sentence imposed on the first count, making a total effective sentence of 30 months' imprisonment. He set a non-parole period of 18 months' imprisonment.
As I have said, the applicant seeks leave to appeal on the ground that the sentence imposed upon her is manifestly excessive although this morning, in her submissions before us, she submits that the judge had failed to take into account sufficiently the difficulties that she had suffered in her past and to take fully into account her background history.
Background facts
It is necessary to describe briefly the circumstances of both the offending and the personal history of the applicant as found by his Honour. The offences took place on 2 January 2004 at a house in Mooroopna where the victim lived with her five children. The applicant had commenced drinking alcohol early in the morning of that day. At approximately 10 am she attended at the home of her victim in company with another person. She had known the victim for some time. When she arrived at the victim’s home the applicant was invited into the house. Once they were inside the house, an argument erupted between the applicant and her victim. The applicant was upset with her victim because the victim had her five children living with her, whilst the Department of Human Services had obtained a custody order concerning the applicant’s two sons who were living with and in the care of her mother. Before entering the house the applicant had picked up an empty wine bottle from the front porch. In the course of the argument the applicant struck her victim over the head a number of times with that bottle. The victim was also punched, kicked and scratched and had her hair pulled by the applicant. These events took place whilst the victim’s five children were present at the premises. After some time the applicant ceased attacking the victim but after that she located a long cylindrical pipe from a vacuum cleaner and then resumed the attack by striking the victim a number of times with it. In consequence of these attacks the victim suffered extensive multiple bruising to her right arm, left arm, left leg and right leg. In addition she suffered lacerations and bruising to her face and head. She sustained two black eyes and there was evidence of damage to her left middle ear. Unpleasant and extensive as these injuries were the victim appears to have suffered no permanent impairment. These events form the factual basis of Count 1, the count of causing serious injury intentionally.
Having left the house of the victim the applicant was locked out of the premises. This caused her to become irate and she threatened to kill the victim’s six-year-old son should he not let her back into the house. This caused the six-year-old to become extremely frightened. These facts form the basis of count 2, the count of threat to kill.
His Honour's sentencing remarks, contain a detailed analysis of the personal history and background of the applicant. The applicant was 24 years of age at the time of the offences, having been born on 22 March 1979. The applicant is of Aboriginal descent, her father being a Koori from Mooroopna and her mother being an Aboriginal woman from the Sydney area. Her father died of motor neurone disease when the applicant was aged approximately 11 years, and thereafter the applicant attended seven different primary schools and was educated to Year 10 at Nambour High School in Queensland. At the age of approximately 17 years, she commenced a relationship with a man in Nambour. That relationship produced a son, Arlo. When Arlo was aged three, his father was killed in a motor vehicle accident, and thereafter the applicant began a new relationship and gave birth to her second son, Daniel. Those two children were children who were the subject of the discussion with the victim at the time of the offence.
At the time of the offence and at the time of sentencing, both sons were living with and being raised by the mother of the applicant at Mooroopna. The applicant had formed a further relationship with an Aboriginal man from South Australia when she was approximately 20 years of age, and subsequently she gave birth to a daughter. At the time of sentencing, the applicant was expecting the birth of a fourth child to the same partner.
Prior to the commission of the offences, the applicant had appeared in court on six previous occasions and had 24 prior convictions which included offences of causing injury recklessly, assault in company, and causing injury intentionally, as well as what might be described as alcohol-related street offences.
It will be recalled that the offences took place on 2 January 2004. A contested committal hearing took place on 15 June 2004, at which the applicant was committed to stand trial at the County Court, Shepparton at the sittings commencing on 1 October 2004. The applicant was granted bail on condition that she reside at a women's drug and alcohol rehabilitation treatment centre. She breached the condition of her bail by leaving that centre and moving to Horsham. She did not appear at the County Court sittings commencing on 1 October 2004. Her whereabouts were unknown until April 2006, when, after she had a dispute with her mother, police executed a warrant for her apprehension.
There was evidence before his Honour of convictions for assault on 19 April 2004 and of a suspended sentence imposed on 10 March 2006 upon the applicant for breach of a community-based order. His Honour stated specifically that he did not take those convictions into account, apart from their relevance to the rehabilitative prospects of the applicant. There was evidence before his Honour that the applicant had abused alcohol and been a drug user for a considerable period of time. It is apparent that the applicant had consumed a considerable amount of alcohol on the day of the offence with which his Honour was concerned. His Honour noted that the applicant had entered Bridgehaven, a residential drug and alcohol treatment clinic, on 16 February 2006, with her daughter, in order to engage in a four-month residential drug and alcohol treatment program. There was a report before his Honour from a social worker at that clinic. The report stated that the applicant's urine drug screenings had shown a steady decline in THC levels, demonstrating a period of abstinence from alcohol and other drugs and a decreasing use of cannabis during her time at the clinic. His Honour took that report into account as showing some “positive signs”. Having observed that the applicant appeared to have the support of her mother and others in the community, he said:
"I consider that you do have some ability to reform yourself and become a worthwhile member of the community. Obviously, before you can establish your place in the community, you need to be able to control your drug and alcohol use and to curb your anger and potential for violence."
His Honour took into consideration the comments of members of the Court of Appeal in R v Fuller-Cust[1] that, although “race is not a basis of discrimination in the sentencing process”, in the context of a particular case the disadvantages suffered by an offender by reason of his or her indigenous background may be a relevant mitigating circumstance. It is clear that his Honour gave careful consideration to those matters. His Honour noted the hardship the applicant would suffer by giving birth to a child in custody, as well as the hardship of separation from her other children. His Honour gave consideration to the delay in sentencing, but observed that the cause of that delay was the departure by the applicant to Horsham in breach of her bail obligations.
[1][2002] VSCA 168.
Notwithstanding the matters of mitigation before him, his Honour considered that a combination of all of the circumstances of the case, which included the fact that a most serious assault involving the use of a weapon had occurred in the home of the applicant's victim whilst her five children were in the house, called for a sentence of imprisonment. Fortunate as it was that no permanent injuries were sustained by the victim, the beating she received was nevertheless of considerable severity. As the judge said, the threat to kill the young child was inexcusable and a cause of trauma for him. His Honour considered that general deterrence was an important sentencing consideration, given the nature of the offending, and in particular the use of violence on a person in her own home. He considered that specific deterrence was an important sentencing consideration, given the prior convictions of the applicant for offences of violence.
As stated above, the applicant seeks leave to appeal on the ground that the sentence is manifestly excessive. As I have said already, the function of this Court is to determine whether the sentencing judge has made an identifiable error or whether the sentence is manifestly excessive. Notwithstanding the submissions made to us by the applicant, it is not this Court's function to review the progress of the applicant over the time since sentence, irrespective of how well, in the circumstances of this case, that progress appears to have proceeded.
The question of whether a sentence is manifestly excessive does not admit of much argument. The question raised is whether the sentence is outside the range of sentences available to his Honour in the exercise of sound discretionary judgment. Once the relevant circumstances are ascertained, then the sentence appears plainly excessive or it does not. The difficult task before his Honour was to fix a sentence that reflected the gravity of the offence and of the offending and the applicable sentencing principles, taking into account the personal and other mitigating factors of relevance.
In my view, the sentencing judge acted in accordance with all relevant sentencing principles and the total effective sentence, the non-parole period and the individual sentences and the part cumulation thereof cannot be said to be manifestly excessive in all the circumstances of this case. I would therefore dismiss the application.
MAXWELL P:
I agree, for the reasons which his Honour has given, that the application should be refused.
I would wish to be associated specifically with what his Honour has said about the progress which Ms Charles has made and about her embracing of the opportunities which have been provided to her while she has been in gaol. It is a rare enough experience in this Court to see such an inspiring case of rehabilitation during a period of incarceration.
Drug and alcohol difficulties are, as the procession of cases before this Court demonstrates, often very difficult to shake off. As Kellam JA has said, it is greatly to your credit, Ms Charles, that you have done that and are continuing to do that. It is very difficult for anybody to appear on their own behalf in court, and in this Court, and I share Justice Kellam's view that you have shown yourself to be someone who can continue to take steps in a positive direction.
It is very gratifying for a sentencing court, and an appeal court, to see that an institution like Tarrengower can provide such constructive support to someone like Ms Charles, who is ready to embrace the opportunities she has been given.
Finally, I want to endorse what Kellam JA said about the excellent assistance provided by Mr Trapnell.
WHELAN AJA:
For the reasons set out by Redlich JA on 27 October 2006 and the reasons given by Kellam JA today, I agree that the application for leave should be refused.
MAXWELL P:
The order of the Court is:
Application refused.
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