R v Connolly
[2004] VSCA 24
•12 March 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 43 of 2003
| THE QUEEN |
| v. |
| DAVID JOHN RONALD CONNOLLY |
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JUDGES: | WINNEKE, P., COLDREY and BONGIORNO, A.JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 February 2004 | |
DATE OF JUDGMENT: | 12 March 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 24 | |
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Criminal law – Sentence – Sexual offences, stalking and recklessly causing serious injury – Principles concerning sentencing of youthful offenders discussed – Whether principles referred to in R. v. Tsiaras and R. v. Yaldiz applicable – Whether sentence manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. R. A. Elston | K. Robertson, Solicitor for Public Prosecutions |
For the Appellant | Mr. A.D. Halse | Paul A. Vale Pty. |
WINNEKE, P.:
I agree with Coldrey, A.J.A., and for the reasons which he gives, that the appeal against the sentences imposed by the County Court Judge should be allowed; that the sentences imposed below should be quashed and that in lieu the sentences proposed by Coldrey, A.J.A. be substituted.
COLDREY, A.J.A.
David John Ronald Connolly who is currently aged 21 appeals from a sentence imposed in the County Court at Melbourne on 20 February 2003. On that date he pleaded guilty to three counts of sexual penetration of a child under the age of 16 (Counts 1, 2 and 8); four counts of stalking (Counts 3, 4, 5 and 6); and one count of recklessly causing serious injury (Count 7).
On the three counts of sexual penetration, the appellant was sentenced to be imprisoned for three months with one month of each count being cumulative upon Count 7. On each of the four counts of stalking he was sentenced to be imprisoned for 12 months with 6 months of each count cumulative upon Count 7. On Count 7 itself, the appellant was sentenced to be imprisoned for 2 years 3 months. Each of the periods of cumulation to which I have referred, were directed to be served cumulatively upon each other, resulting in a total effective sentence of 4 years 6 months. A non-parole period of 3 years was fixed and 53 days pre-sentence detention was declared to have been served.
The maximum penalty under the Crimes Act 1958 for sexual penetration of a child aged under 16 years is 10 years; for stalking 10 years; and for the offence of recklessly causing serious injury 15 years.
The appellant admitted four previous findings of guilt from three Children's Court appearances between 13 August 1997 and 29 March 2000 and 14 previous
convictions from one Magistrates' Court appearance on 23 May 2001. It appears that subsequent to these offences, the appellant appeared before the Ringwood Magistrates' Court in July 2002 where he was convicted of breaching a Community Based Order given in relation to his May 2001 appearance. On that occasion a period of 2 months' detention in a Youth Training Centre for the breach of the Community Based Order, and 3 months for charges of theft was imposed. In that same month, on appeal to the County Court, a sentence of 3 months for (inter alia) theft of a motor vehicle was imposed. Accordingly, until shortly before the plea in the matter now before the Court, the appellant had been undergoing a period of detention at Malmsbury Youth Training Centre. The sentencing court was also informed that in October 2002 the appellant received an aggregate term of imprisonment of 30 days for three breaches of intervention orders, which period was wholly suspended for 12 months. This was the first period of detention he had experienced. On 11 November 2002, the appellant was charged with threatening to kill Fiona Ellis, the complainant in a number of the offences the subject of this appeal. On 28 May 2003 the appellant appeared in the Magistrates' Court and was convicted of one charge of making a threat to kill. He was sentenced to be imprisoned for 6 months concurrent with the sentence he is now undergoing in these matters. This matter had not, of course, been completed at the time of the instant sentencing.
The grounds of appeal are in these terms:
(1) The sentence is manifestly excessive;
(2) The sentence imposed offends against the principle of totality;
(3)The learned sentencing judge erred in imposing a custodial sentence in relation to Counts 1, 2 and 8 (sexual penetration);
(4)The learned sentencing judge erred in his assessment of the psychological and psychiatric evidence –
(a)the Judge failed to account adequately for the principles enunciated in R. v. Tsiaras,
(b)the Judge failed to attach sufficient weight to the psychiatric evidence when considering the prospects of rehabilitation;
(5)The learned sentencing judge erred by finding that Fiona Ellis was a 'battered woman';
(6)The learned sentencing judge could not have been satisfied beyond reasonable doubt that the appellant posed such a risk of further offending that a sentence for the overwhelming purpose of protection was warranted.
It should be noted that ground 3 was abandoned.
In order to consider the various grounds it is first convenient to outline the facts founding the offences upon which the appellant was sentenced.
On or about her 15th birthday (27 September 2000) Fiona Ellis ran away from her family home at 4 Ladonga Place, Rowville. She met the appellant who is some two years and three months older than her, at the Ringwood Railway Station. A relationship commenced which shortly became sexual with the couple residing at the home of Jodie Connolly, the appellant's sister, in Loughnans Road, Ringwood. Ms Ellis soon became pregnant and contacted her mother after becoming ill from taking excessive amounts of anti-nausea medication. Her mother collected her from Loughnans Road, Ringwood and she was taken to the Knox Private Hospital for treatment. Subsequently, in December 2000, she had a first trimester termination of her pregnancy.
The appellant's sister, Jodie Connolly, having died of a drug overdose at the end of 2000, the appellant commenced to reside at his mother's home at Wedge Crescent, Rowville. The relationship with Ms Ellis continued and she became pregnant on a second occasion. A first trimester pregnancy termination occurred in April 2001.
These forgoing events were the basis of Counts 1 and 2.
On numerous occasions after she had been with the appellant, Fiona Ellis appeared with black eyes and other injuries. Initially she claimed that the appellant was responsible, but this progressed to denials and implausible explanations such as having fallen over or having walked into things. Ultimately she refused to explain her injuries at all. Observations of the appellant's violent behaviour towards Ms Ellis were contained in a statement of a family friend, Ms Wendy Peirce. When she confronted the appellant about his behaviour she records him as responding: "She loves getting belted."
As a result of the observed injuries Ms Ellis' parents banned the appellant from the Ellis family home and ordered their daughter not to see him. The appellant ignored this ban, constantly telephoning the family and attending at the house demanding that Fiona come out with him. His behaviour included venturing on to the roof of the house apparently in an attempt to get inside. Other actions included covertly letting the family dog out of the yard after making a threat to harm it and taking a kitten and refusing to release it unless Fiona came home with him. His conduct created fear and anxiety in the Ellis family. It was particularly frightening for the two younger daughters of the household who were aged 11 and 14 at this time. The household took steps to counter the appellant's activities. These included changing telephone numbers and, ultimately, in May 2001, the whole family took out intervention orders against the appellant.
The events leading up to the obtaining of those orders are the subject of the four counts of stalking (Counts 3-6).
On 27 May 2001, Ms Wendy Peirce attended at the Connolly home having received a call from the appellant's aunt (Ms Joanne Badderly) who expressed the belief that the appellant had killed Ms Ellis. On arrival Ms Peirce saw bloodstains on the loungeroom floor and on a hand rail above the front steps of the house. The appellant had apparently told Ms Badderly that he had killed Fiona and buried her under some bark in the Kellet Reserve. A frantic search of the park revealed nothing and, subsequently, the appellant arrived back at the house reiterating that Ms Ellis was dead. Police and emergency services as well as a CAT team were called. Ms Peirce again spoke to the appellant who said that he had "belted the fuck out of her" but did not know where she was. The police attended at about 11.30 p.m. and, at the request of Ms Peirce, took the appellant to the Maroondah Hospital for psychiatric assessment. It appears the appellant left the hospital without being assessed.
Fiona Ellis returned to the Connolly home soon after 2.00 a.m. bleeding from injuries to her face and head and appearing to be in shock. On examination by ambulance officers called to the scene, she was observed to have a small laceration to the superior aspect to the head with congealed blood; bruising and swelling to the left eye and to the bridge of her nose and central/sternal traumatic chest pain. All these injuries produced increased pain on palpitation and Ms Ellis complained of a severe headache. Ms Ellis was admitted to hospital and was discharged to the care of her mother after 12 hours. This is the subject matter of Count 7 – recklessly causing serious injury.
Despite the intervention orders, the appellant continued to make contact by either attending at or telephoning the Ellis home in order to speak to Fiona Ellis and to get her to go out with him. The material indicates that she continued to return to her home with black eyes, bruising and injuries to her body.
In mid July 2001, Ms Ellis became pregnant to the appellant for the third time. Ms Ellis gave birth to a baby boy on 3 April 2002. The sexual penetration giving rise to this event is the subject of Count 8.
For completeness it should be noted that Ms Ellis was placed on an Interim Accommodation Order apparently made by the Family Division of the Children's Court requiring her to reside at a women's refuge. This was later extended to the newborn child. On Anzac Day 2002 Ms Ellis ran away from Cara House with the baby leaving a letter addressed to her mother and family stating that she was going to go with the appellant to give him another chance. It appears that from 6 May 2002 the couple resided at the Seaford Beach Caravan Park. The appellant was arrested on 16 May 2002 and Ms Ellis was located at the Caravan Park on the 28th of that month.
I turn to the grounds of appeal that were argued before this Court.
It needs to be said immediately that the sentencing issues which faced the judge were complex and difficult and that his Honour applied himself assiduously in seeking to resolve them. Indeed the matter was before the sentencing court on three separate occasions and the judge obtained pre-sentence reports from a psychiatrist, Dr Nick Owens and a forensic psychologist, Mr Ian Joblin. These augmented psychiatric reports tendered on the plea on behalf of the appellant from Drs Lester Walton and Barrie Kenny and a psychological report from Ms Shona Innes who had undertaken consultations with the appellant when he was an inmate at Malmsbury Juvenile Justice Centre.
It was first argued on behalf of the appellant that the sentence imposed was manifestly excessive in all the circumstances. In developing this submission counsel called in aid the plea of guilty of the appellant at the earliest opportunity; the appellant's relative youth, being 17 and 18 at the commission of the offences and aged 20 at the time of sentencing; and the fact that the appellant was, and would be, serving his sentence in protective custody. (Apparently, the appellant is in protective custody 12 hours each day at his own request.) These are, of course, all matters which may ultimately mitigate any sentence imposed and the sentencing judge adverted to each of them in his reasons for sentence. It was, however, submitted that in acknowledging the pleas of guilty the judge did not specifically advert to the resultant saving of community costs and the alleviation of witness trauma. The answer to criticism of this nature is that it is quite unnecessary for a sentencing judge to intone mantra-like the necessary concomitants of a plea of guilty. It is factors such as these which provide the rationale for the benefit bestowed upon an offender as a consequence of a guilty plea. Insofar as the appellant was a young offender, the legal implication of this factor was present in the judge's mind throughout the plea and in his sentencing reasons. His Honour expressed himself as being acutely aware that the appellant was only 20 years of age. The Court of Appeal case of The Queen v Mills[1] is frequently cited in relation to young offenders and, in particular, the following propositions are quoted as relevant to the sentencing of youthful offenders:
"(i)Youth of an offender, particularly of a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
(ii)In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
(iii)A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s.5(4) of the Sentencing Act 1991.)"
[1](1998) 4 V.R. 235
No doubt a sentencing court will endeavour to implement these principles as far as is possible in sentencing a youthful offender but they are not to be regarded as immutable. In the context of the variety of fact situations and offenders with which courts have to deal, such factors as the seriousness of the offence or offences committed (and the just punishment therefore); the need for deterrence (specific and general); the offender's prospects of rehabilitation; and the need to protect the community may need to be reflected in the sentence imposed. This has been recognised in judicial statements in such cases as R. v. Edwards[2]; R. v. Missoka[3]; R. v. Tran[4]; and R. v. PP[5].
[2](1993) 57 A.Crim.R. 486
[3](Court of Appeal, 9 November 1995)
[4](2002) 4 V.R. 457
[5][2003] VSCA 100
In the instant case the judge clearly came to the conclusion, for reasons to which I shall subsequently refer, that the protection of the community was the sentencing principle to be accorded greatest weight in formulating an appropriate disposition.
It was further argued under cover of ground 1 that, in line with the principles enunciated in R. v. Renzella[6] greater regard should be had to the fact that the appellant had already served about eight months' detention prior to being sentenced for these offences and, further, had lost the opportunity of about three months' concurrency between November 2002, when the plea hearing commenced, and February 2003, when the sentences were handed down.
[6](1997) 2 V.R. 88
There is no doubt that the judge both in discussion during the plea and in his sentencing remarks was alive to this issue. In the latter he remarked:
"I've taken into account the time that you have already spent in custody on the Renzella principle, and am extremely conscious of what can amount to a crushing sentence, at least in the mind of one as young as yourself."
On the three counts of sexual penetration, each of which involved unprotected sex causing the complainant to become pregnant, the appellant was sentenced to 3 months' imprisonment. No objection was taken to these sentences but it was argued that the sentences for stalking and recklessly causing serious injury, whilst serious matters, attracted a higher sentence than appropriate to achieve the sentencing purposes outlined in the judge's reasons for sentence. In this regard counsel pointed to the initial inclination of the judge to release the appellant on adjourned undertakings pursuant to s.72 of the Sentencing Act 1991, for the stalking offences and his Honour's remarks that the minimum term he would ultimately impose would probably not reflect the seriousness of the offences.
It is clear from the plea transcript that his Honour, after reviewing all of the material, changed his mind about releasing the appellant on such undertakings. No complaint is made of that process and indeed the judge alerted counsel to his revised view and gave the parties the opportunity to make further submissions. Complaint is, however, made that the judge did not advert to any revised length of the non-parole period which may have been impacted upon by the imposition of custodial sentence for the stalking offences. It may be argued that it would have been desirable for his Honour to do so but the reality is that, by the third plea hearing, counsel had urged everything possible on behalf of the appellant.
Ground 2 was that the individual sentences and the cumulation ordered offended against the principle of totality so as to have a "crushing effect" upon the appellant. It is allied to the manifestly excessive ground, and, in the circumstances of this case, may be considered in conjunction with it..
Before finally considering these two grounds it is convenient to deal specifically with grounds 4 to 6.
Ground 4 averred that the judge had erred in his assessment of the psychological and psychiatric evidence both in applying the principles enunciated in R. v. Tsiaras[7] and in failing to attach sufficient weight to such evidence when considering the prospects of rehabilitation. All this evidence was reviewed by his Honour in his reasons for sentence. That review commenced with the report of Dr Lester Walton of 15 May 2001 which recorded the opinion that at that time, the appellant was a significantly psychiatrically disturbed youth with psychological problems which could not be controlled short of in-patient care. Although Dr Walton was of the view that poly substance abuse had produced "recurring episodes of toxic psychosis" he did not link these to the offences for which the appellant was then before the Court. He noted the appellant's psychological immaturity and also expressed the view that it would be premature to conclude that the appellant was "an unredeemable (sic) psychopath at this point". This assessment was made without knowledge of the appellant's stalking activities and prior to the appellant's assault upon Fiona Ellis.
[7][1996] 1 V.R. 398
Over a year later, in June 2002, the appellant was seen by Dr Kenny in relation to the current offences. Among the comments of Dr Kenny noted by the sentencing judge was that the appellant, even though only 19, had a well established personality disorder which was not amenable to psychiatric treatment. Dr Kenny described the appellant as having no impulse control and no desire to control those impulses (especially when using drugs). In the course of the interview with Dr Kenny, the appellant denied stalking Mrs Judith Ellis. According to the doctor he showed not the slightest concern about his situation and behaviour. All he wanted was to be with his girlfriend. Dr Kenny also expressed the view that the appellant would not adhere to any intervention order and that he "wouldn't see his [the appellant's] girlfriend as being an immediate risk unless and until they had an argument." A report of the psychologist Shona Innes was also considered by the judge. It described the appellant's behaviour in Malmsbury as including "sexualised behaviours, making threats to kill, physical bullying, property damage and refusing to follow staff direction." Sessions were directed at changing what Ms Innes described as "the anti-social and pro-harm cognitions that were apparent in David's discussions and writings." Nonetheless the appellant, whilst acknowledging the violence of his relationship with Fiona Ellis stated that "it did not matter in their relationship because his girlfriend made no complaints and because their relationship was so special that it was above the impact of violence." Indeed, the appellant expressed a lack of concern about facing the Court because he felt that he had done nothing wrong. Motivation to participate in sessions was attributed to the appellant's perceived need to meet the requirements of the Department of Human Services. In her report, Ms Innes concluded:
"… the progress [he] felt he had made in sessions was not parallelled by behaviour observed by unit and health staff. At the same time, he questioned the relevance of the psychological sessions to the Court orders indicating that his motivation for seeking treatment was still largely for external sources rather than a genuine internal desire to bring about change for himself."
These themes were continued in the pre-sentence report of Dr Nick Owens of December 2002. Initially the appellant claimed not to have committed any of the offences and, in relation to the assault on his girlfriend, showed no evidence of concern. The appellant maintained that the pleas of guilty were entered so he could serve his time and return to his girlfriend against whom he did not admit any acts of violence. In Dr Owens' opinion the appellant was not suffering from any psychiatric illness. He expressed concern at the appellant's prior conviction for cruelty to animals and concluded:
"My most basic concern is for the welfare of Mr Connolly's girlfriend and young son, given the nature of the offences and his difficulty in dealing with the reality of their occurrence. The risk of Mr Connolly re-offending against his girlfriend appears to be moderate to high. This man has a number of features suggestive of an immature and possibly anti-social personality disorder, and may have an enmeshed and possibly exploitative relationship with his girlfriend."
The final report was from the forensic psychologist Mr Ian Joblin. He agreed with the opinions of Drs Walton and Kenny including the views of Dr Kenny that the appellant had a very disturbed personality structure and a development that was grossly impaired. Further, Mr Joblin recorded:
"This man on presentation at the time of my interview with him [13 December 2002] was somewhat obsessed by the injustices of the system trying to interfere in the relationship between him and his girlfriend. He places much of the blame for this on his girlfriend's mother. That is an obviously an issue relating to his impulsivity and obsessional attitude."
There were queries raised in the various reports about the potential for organic brain damage arising both from protracted solvent abuse and a motor accident which occurred in February 2002 (after these offences) in which the appellant lost consciousness for two days. However, on the material before the judge, he found himself unable to reach any conclusion as to whether these were factors affecting the appellant's mental functioning. On the material such a finding could not be impugned.
Further, in my view, the extent of the psychiatric material before the sentencing court was not such as to attract the operation of the principles enunciated in R. v. Tsiaras and R. v. Yaldiz[8] so as to moderate the weight which might otherwise be given to general and indeed specific deterrence.
[8][1998] 2 V.R. 376
It was further submitted that the judge should not have arrived at the conclusion that the prospects of the appellant's rehabilitation were dismal or, (this was effectively ground 6), that there was a moderate to high risk of the appellant re-offending such as to require the protection of the community to assume predominance in the sentencing matrix.
The general approach to these issues was enunciated in R. v. Storey[9] by a Court of Appeal of five judges. It is sufficient to quote the headnote encapsulating the joint reasons of Winneke, P., Brooking and Hayne, JJ.A and Southwell, A.J.A.:
"In sentencing there is no onus of proof. Nor is there any relevant distinction between circumstances of aggravation and circumstances of mitigation or between circumstances of offence and circumstances of the offender. The relevant distinction is between facts adverse to the interests of the offender (in the sense of being likely to result in a more severe sentence) and facts favourable to the offender. The judge may not take facts into account in the way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt but, if there are circumstances which the judge proposes to take into account in favour of the offender, it is enough if those circumstances are proved on the balance of probability."
[9][1998] 1 V.R. 359
The majority view was further explained in R. v. Pickard[10]. In a joint judgment Winneke, P. and Charles, J.A. remarked (paras.3-4):
"Almost every day sentencing judges assess and balance risks of re-offending and prospects of reform as part of the intuitive process of sentencing without the need to articulate their findings in terms of standards of proof. But if there is a dispute and the judge resolves it adversely to the interests of the accused by assessing the risk of re-offending to be such as to warrant an aggravation of penalty then the judge must be satisfied of the existence of such an aggravating factor according to the standard of which the majority spoke in R. v. Storey [1998] 1 V.R. 359 at 371. …
An assessment by the judge of the risk of a prisoner re-offending is not a feat which requires any refinement of thought process. If the judge is satisfied that the accused constitutes such a risk that the penalty to be imposed should reflect an aspect of specific deterrence, it will be because he or she has no doubt that the accused poses such a risk. In our view, it is not a question of distinguishing between degrees of risk. It is simply because the judge perceives that the risk is such that the penalty should be one which will deter the accused from re-offending. The greater the judge perceives the risk to be, the more heavily specific deterrence will weigh in the instinctive decision as to the appropriate sentence. …"
[10][1998] VSCA 50
Applying those principles to the instant case, it was open to the judge to be satisfied to the requisite standard, on the basis of the psychiatric and psychological material that, despite his youth, the appellant's prospects of rehabilitation were bleak. It is significant, however, that his Honour did not totally discount such prospects. On the material, including the expert opinions and the breach of the intervention orders by the appellant, it was open to the judge to be similarly satisfied of at least the possibility of the appellant re-offending against the complaint and her family. In these circumstances protection of the community was an important sentencing consideration. Finally the various reports before his Honour well and truly justified his finding that there was a lack of any genuine remorse.
It was also asserted (and this was ground 5) that the sentencing judge erred in finding that the complainant was "a battered woman". It should be said immediately that there was abundant material in admissions to witnesses such as Ms Wendy Peirce and to psychiatrists and psychologists to enable a finding that the appellant had assaulted Fiona Ellis on numerous occasions. However, the actual description used in the Court – "battered wife syndrome" was not that of the judge but of an investigating police officer (Senior Constable Simon Peeters). The sub-text of this ground of appeal was that the sentence imposed for recklessly causing serious injury was impermissibly inflated on the basis of the many uncharged assaults. This would have breached the principles set out in R. v. De Simoni[11] and R. v. Newman and Turnbull[12]. However, a reading of the judge's sentencing remarks reveals that he was alert to the requisite approach. For example, in the course of his reasons for sentence his Honour commented (p.77):
"I must be careful not to sentence you for counts which are not before this Court. However, of significance is that the charge of reckless injury [sic] cannot in any way be said to be an isolated incident and must be viewed without that mitigating factor."
Later his Honour remarked (p.79):
"As I have said, I must be careful to sentence you only for the count you have pleaded guilty to and not for other conduct. The circumstances of that assault are such that in my view there can be no mitigation of any real import."
[11](1981) 147 C.L.R. 383
[12][1997] 1 V.R. 146
On a review of the judge's reasons for sentence it cannot be said that his Honour made any findings which were not open to him or that he failed to advert to the relevant sentencing principles or apply them erroneously. The ultimate question, however, is whether the sentence imposed is manifestly excessive. The appellant appeared before the Court with a history of drug abuse and a poor work record after having ceased his education at year 7. He had a number of prior convictions, and the judge was entitled, despite his youth, to regard the appellant as having minimal prospects of rehabilitation.
Further, he was entitled to conclude that the appellant's likelihood of re-offending was such that community protection was an important sentencing element. Additionally, this was a case where specific deterrence was also relevant and, perhaps to a lesser extent, general deterrence.
All that having been said, it is my view that the sentences imposed, both individually and as cumulated to produce a total effective sentence, are manifestly excessive. The appellant was a youthful offender at the time of these offences. His criminal record was relatively innocuous albeit that it contained the disturbing prior convictions of aggravated cruelty upon an animal (often a pre-cursor to future violence). On the basis of Dr Walton's report, he was beset by "psychological problems" about the time of this offending. Further, this was to be the appellant's first extended period of incarceration in an adult gaol.
The offences of stalking (described by his Honour as "a reign of terror") have been briefly detailed earlier in this judgment. In the counts on the presentment, the period covered was two months between 1 April and 31 May 2001. Thereafter a period of almost one year elapsed before the appellant was arrested. Although he breached the intervention orders it is not suggested in the witness statement that the stalking continued outside the dates charged in any systematic or concentrated form.
The Crown accepted that the appellant's conduct was for the purpose of attempting to have Fiona Ellis leave the family house and come with him either for a short time or permanently. Indeed, Dr Kenny saw his stalking (in relation to Mrs Ellis) as "out of frustration that she has been trying to keep him away from her daughter." It must also be remembered that the stalking, although it affected four individuals during this two month period, constituted but one course of conduct. Even accepting that a sentence of one year on each count was within the sentencing range bearing in mind the protection of the community that his Honour sought to achieve, in my opinion the cumulation of six months on each count was too great. To that extent ground 2 is made out.
In relation to the offence of recklessly causing serious injury, the offence did not, of course, involve any specific intent and the evidence reveals that the injuries occasioned to the complainant were at the lower end of seriousness. Whilst the actions of the appellant surrounding this assault were callous and the assault itself could not be looked at as an isolated incident for the purpose of mitigation, the sentence of 2 years 3 months was at the high end of the general tariff for this offence. In the circumstances of this particular assault it was, in my view, outside the range of available sentences.
In terms of the minimum sentence, it is clear that the judge initially had in mind a relatively low minimum period bearing in mind that the appellant had
already served about five months' detention at the time of the plea hearing which period had, by the time of sentencing, expanded to about eight months. In changing his mind and imposing the three year non-parole period the judge was effectively creating a situation where the minimum period of the appellant's incarceration was 3 years 8 months. It is difficult in the circumstances to discern where any Renzella case-type credit was given to the appellant. Accordingly, having concluded that his Honour's sentencing discretion has miscarried, I would propose that the appellant be re-sentenced as follows:
On Count 7, that of recklessly causing serious injury, I would sentence the appellant to a period of imprisonment of 1 year 9 months. I would cumulate 3 months of the sentences imposed for stalking (Counts 3-6) upon Count 7 and I would leave in place the present period of cumulation on Counts 1, 2 and 8. This would produce a total effective sentence of 3 years. I would direct that the appellant serve a minimum of 2 years before becoming eligible for parole.
BONGIORNO, A.J.A.:
I have also had the advantage of reading, in draft, the reasons prepared by Coldrey, A.J.A. I agree in them and in the orders that his Honour proposes.
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