R v Dooley
[2006] VSCA 269
•4 December 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 232 of 2005
| THE QUEEN |
| v. |
| SHANE KEVIN DOOLEY |
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JUDGES: | CALLAWAY and REDLICH, JJ.A. and COLDREY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 August 2006 | |
DATE OF JUDGMENT: | 4 December 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 269 | |
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Criminal law – Sentencing – Theft and intentionally causing serious injury – Appellant mistakenly sentenced as serious violent offender – Discretion thereby reopened – Strong mitigating factors calling for exercise of leniency – Appellant resentenced to 4 ½ years’ imprisonment with non-parole period of 2 ½ years –Sentencing Act 1991, ss.6B, 6D.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K.G. Gilligan | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Ms F.L. Dalziel | Victoria Legal Aid |
CALLAWAY, J.A.:
I agree with Redlich, J.A.
REDLICH , J.A.:
The appellant pleaded guilty in the County Court to one count of theft (count 1) and one count of intentionally causing serious injury (count 2). He was sentenced to one month’s imprisonment on count 1 and five-and-a-half years’ imprisonment on count 2. These sentences were ordered to be served concurrently and a non-parole period of three years was fixed. The appellant appeals against his sentence and relies upon only one ground, namely that the learned sentencing judge erred in sentencing the appellant as a serious violent offender. Other grounds of appeal were either expressly abandoned or were not the subject of any submissions.
Part 2A of the Sentencing Act 1991 deals with the sentencing of serious offenders. Section 6B defines a “serious violent offender” to mean an offender (other than a young offender) who has been convicted of a serious violent offence for which he or she has been sentenced to a term of imprisonment or detention in a youth training centre. A “serious violent offence” means an offence to which clause 3 of schedule 1 applies. Part 2A applies, among other circumstances, when a court sentences a serious violent offender for a serious violent offence.
The offence the subject of count 2, intentionally causing serious injury, is a serious violent offence, but none of the appellant’s previous convictions[1] made him a serious violent offender. Only one of them fell within clause 3 of schedule 1, a conviction for making a threat to kill, but the appellant was not sentenced for that offence to a term of imprisonment or detention in a youth training centre. He was sentenced to be released on a community-based order.
[1]The appellant admitted 13 previous convictions from six court appearances between May 1997 and December 2003. They included convictions for cultivating, possessing and using a drug of dependence, causing injury recklessly, aggravated burglary, causing injury intentionally, unlawful assault and, as I have mentioned, making a threat to kill. None of them attracted immediate custodial sentences.
The judge, having been wrongly informed that the appellant was to be sentenced on count 2 as a serious violent offender, directed himself in accordance with s.6D(a) of the Sentencing Act, which obliged him to regard the protection of the community from the offender as the principal purpose for which the sentence on that count was imposed.
Counsel for the appellant submitted that as a consequence of treating the appellant as an offender to which the provisions of ss.6B and 6D applied, the sentencing judge must have imposed a longer sentence than otherwise would have been required. It was submitted that protection of the community would not have loomed large as a sentencing consideration as the appellant did not have a history which was of such a nature as to make protection of the community a major factor. I do not stay to consider whether such conclusions necessarily follow from the sentencing judge’s reasons or the sentence imposed, as counsel for the respondent, as one would expect, properly conceded that the learned sentencing judge, having been misinformed by the parties as to the appellant’s status, erred in sentencing the appellant as a serious violent offender. The Crown concedes that a material error has been made which vitiates the judge’s exercise of the sentencing discretion. Accordingly, it is for this Court to consider for itself what sentence is appropriate.
Circumstances of the offences
On 2 December 2004, the appellant was staying temporarily with his wife at the residence of Peter Garvey. That day, the appellant consumed alcohol, amphetamines and cannabis throughout the day, and fell asleep in Garvey’s bed. At around 1.30am Garvey returned home and was upset to find the appellant asleep in his bed, as the appellant and his wife were meant to be sleeping on a mattress in the lounge room. Garvey woke the appellant and told him to leave the house. As the appellant was packing to leave, an argument developed between the appellant, his wife and Garvey whilst the appellant was still very substantially affected by drugs and alcohol. It appears that the victim was loud and threatening. The appellant picked up a fold-out knife from Garvey’s bedside table and proceeded to use it in a savage assault on Garvey. Garvey was stabbed to the head, and then to the forearm as he raised his arms to protect himself. The appellant then stabbed Garvey for a third time, this blow connecting with the victim’s head with such force that a 5-6cm long portion of the knife blade snapped off and lodged in his skull, near his left temple. The appellant continued to stab Garvey with the broken blade, inflicting several shallow cuts to the face and head. In an attempt to escape the assault, Garvey suffered a further stab wound to the chest. The appellant then threw Garvey to the floor, stabbing him to the back of the head and neck as he did so. While Garvey was on the floor the appellant kicked him 10 to 12 times to the head and body. He also stomped on Garvey’s head, injuring his left hand which was covering his head. The appellant’s wife then intervened, and the appellant ceased the assault and left the premises with the knife.
Garvey was treated in hospital for his injuries. He suffered deep lacerations to his left forearm and right temple, and superficial lacerations to the neck and chest and bruised ribs. The most serious of his injuries was a deep laceration to the left side of his face, where part of the knife blade had lodged. The injury caused numbness to Garvey’s left check, and the left half of his nose and upper lip.
For the respondent it was submitted that the sentence imposed was an appropriate one for such a serious offence. Although the appellant had not previously served a term of imprisonment, attention was drawn to the appellant’s prior convictions for crimes of violence.
Ms Dalziel, who appeared in this Court on behalf of the appellant, submitted that there were a number of factors which called for some moderation in the appellant’s sentence. Heavy reliance was placed upon the appellant’s difficult personal circumstances in the period immediately prior to the commission of these offences. The appellant, who was 34 at the time of these offences, had become a heavy user of illicit drugs. As a consequence of his prior conviction in July 2002, to which I have already referred, the appellant obtained a place at Galiamble, a drug and alcohol rehabilitation centre in St Kilda.
I draw upon the learned sentencing judge’s reasons for sentence in describing the appellant’s circumstances:
“The period of your time at Galiamble was very productive. You found beneficial support in this environment. You took a leadership role in group counselling and Alcoholics Anonymous sessions. You in fact considered obtaining work as a social worker within the Koori community. It was whilst at Galiamble that you met Cassie and after leaving Galiamble you commenced living with Cassie. You married on 28 June 2003 and in the following May, 21 May 2004, your daughter, Bella, was born.
I referred earlier to the letter of reference from Ms Soo and the report from Mr Crewdson. Mr Crewdson’s report in detail, sets out the health problems encountered by Cassie. It sets out that Cassie had been a working girl with an unstable and extensive history of schizophrenia, schizoaffective disorder, poly-substance abuse and she was also burdened with a borderline personality disorder. You, Mr Dooley, were not only Cassie’s husband, you were her carer.
In this difficult situation Cassie had only two days prior to this offence [been] discharged from hospital after a particularly disturbing and florid state building up over a six month period since the birth of Bella. During this difficult period in your life the Department of Human Services had intervened as the Department perceived that there was cause for their intervention to preserve Bella’s wellbeing. After a Children’s Court hearing, of which you were in, Bella was placed in your custody. You then in turn sought your parents’ help, who by this time had moved to Wodonga. You placed Bella with your mother and father and this placement in turn did cause some anguish to Cassie’s parents. A letter of reference from Ms Soo reflects upon these various stressors in your life as does the report from Mr Crewdson. Mr Crewdson recognized your past difficulties with poly-substance abuse and violence and then says this behaviour, that is, the offences you are now before this Court on, appear to have been a culmination of a series of events placing you under a degree of stress which you were ill-equipped to handle. Mr Dooley, you have moved to Wodonga to reside with your friend, Mr Garvey, so as to be nearby to your parents and Bella.
Mr Crewdson also reports there was some sexual tension, he found as it well may be, that you had concerns at this time relative to Cassie’s infidelity with Garvey. Mr Dooley, Mr Crewdson notes in his report that you had fallen asleep in Mr Garvey’s bed after an extravagant binge on drugs and alcohol. It is reported by Mr Crewdson that, and I quote him:
‘This very serious attack reflects the actions of a drunken and drug intoxicated Koori man in a state of mental disintegration following months of caring for his severely disturbed schizophrenic wife who is probably also suffering from post-partum depression. He has little memory of the events and is horrified by the accounts of his actions and the dramatic impact of the forensic photographs. He is well aware what the outcome might well have been a lot more serious and is having difficulty in handling the revulsion which he feels for the frenzied nature of his attack.’
That all supports and endorses your expressions of remorse. I accept these comments as an accurate and concise state of affairs.”
It is to be observed that the learned judge fully accepted that the appellant was genuinely remorseful and horrified by his offending conduct. His Honour accepted that the appellant had demonstrated an excellent work ethic and expressed optimism for the appellant’s prospects of rehabilitation. His Honour noted that whilst on remand the appellant had undergone anger management and industry courses. Counsel for the appellant emphasised the successful efforts the appellant has made to rehabilitate himself whilst in prison. Since being sentenced the appellant has successfully participated in numerous drug re-education programs and has completed training for various forms of employment during his period of incarceration. Reports tendered on the appeal indicate that the appellant has been a reliable and conscientious participant in work programs and is, it appears, a model prisoner.
It was submitted on the appellant’s behalf that this Court should take into account that the appellant was finding the burden of his first time in custody particularly onerous. The Court was invited to take into account that the appellant’s wife, who, it would seem was dependent upon him, had for the fourth time since the appellant had been placed in custody been admitted as an involuntary in-patient at a mental institution. In the meantime, the appellant’s child remained with his parents in Wodonga. Counsel for the appellant did not submit that the hardship suffered by the appellant’s family constituted “exceptional circumstances” which could be taken into account.[2] It can be accepted, as counsel for the appellant submitted, that the appellant’s family circumstances, as presently known to the Court, will make imprisonment a greater burden for him.[3]
[2]R v Holland (2002) 134 A Crim R 451 at [3] per Batt JA; [49]-[56] per O’Bryan AJA; R v Duy Duc Nguyen [2006] VSCA 184 at [31].
[3]R v Duy Duc Nguyen at [31], [43]-[44].
In addition to urging that this Court should impose a lower head sentence than that imposed by the sentencing judge, it was further submitted that as the appellant had good prospects for rehabilitation and would benefit from a longer period of parole supervision, his non-parole period should be a shorter one than usual. Before this Court counsel for the respondent did not seek to take issue with the suggestion that such a course was appropriate.
Although the sentencing judge believed that he was constrained to sentence the appellant on count 2 as a serious violent offender, I discerned from his Honour’s reasons and the sentence imposed that his Honour was moved to impose a lenient sentence. The sentence which I propose is also a lenient one having regard to the severity of the appellant’s assault on Mr Garvey. But there is a place for the exercise of mercy where the Court’s sympathies are reasonably engaged as a consequence of the appellant’s general remorse, his sincere efforts towards rehabilitation and the additional burden of custody as a consequence of the plight of the appellant’s family. The learned sentencing judge had these objectives in mind in imposing the sentence that he did. It is 16 months since the appellant was sentenced and his further period in incarceration has served to confirm the conclusions reached by his Honour as to the appellant’s prospects for rehabilitation. The unchallenged submission that a short non-parole period should be imposed is in my view a sound one. Accordingly I would re-sentence the appellant as follows:
Count 1 1 month’s imprisonment
Count 2 4½ years’ imprisonment
I would fix a minimum term of 2½ years’ imprisonment before the appellant becomes eligible for parole.
COLDREY, A.J.A.:
I also agree with Redlich, J.A.
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