R v Grant
[2003] VSCA 53
•1 May 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 285 of 2002
| THE QUEEN |
| v. |
| TRACEY LEE GRANT |
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JUDGES: | CALLAWAY and BUCHANAN, JJ.A. and WARREN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 May 2003 | |
DATE OF JUDGMENT: | 1 May 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 53 | |
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CRIMINAL LAW - Sentence - Fresh evidence - Pregnancy at time of sentence - Findings of guilt in Children's Court considered - Error in sentencing discretion - Discretion re-opened - Plea - Leniency of original sentence - Reduction of sentence inappropriate - Seriousness of offences - Aggravated burglary - Common assault - Assaulting a police officer - Theft.
Crimes Act 1958 - Section 376(4).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr R. Backwell | Victoria Legal Aid |
CALLAWAY, J.A.:
I shall ask Warren, A.J.A. to deliver the first judgment.
WARREN, A.J.A.
The appellant, Tracey Lee Grant, appeals against sentence on the ground that fresh evidence has emerged since the time of sentence. The evidence relied upon is that at the time of sentence she was approximately three months pregnant but was unaware of her condition.
Counsel for the respondent drew the attention of the Court to an error in the further presentment where ten findings of guilt from five appearances in the Children's Court were alleged against the appellant between June 1988 and March 1991. The Court observed that those findings of guilt should not have been included.[1] Those matters were taken into account by the learned sentencing judge and referred to as forming part of the appellant's "prior convictions'. His Honour considered that those matters were "highly relevant" to the sentencing task. On the hearing of the appeal leave to amend the grounds was granted and the Court ordered that the appellant had leave to amend the notice of appeal by adding an additional ground reading:
"2.The learned sentencing judge took into account findings of guilt in the Children's Court made more than ten years prior to the plea."
[1]See s.376(4) of the Crimes Act 1958.
The error was conceded by the respondent. Accordingly, the discretion was re-opened and the appeal was conducted, in effect, as a plea. Counsel for both the appellant and the respondent were content with that course.
The events relating to conviction and sentence occurred on 7 February 2002. The appellant left the house where she was living about 3 a.m. At the time she was affected by alcohol and drugs. In the twenty-minute period between 4.10 a.m. and 4.30 a.m. the appellant gained entry to a nearby private home. She entered and searched the home whilst the occupants were sleeping. She stole a video card, disturbed the occupants of the house and threatened to put a gun to the head of one of them. When overpowered by one of the occupants the appellant apologised for her actions and eventually was escorted from the premises. The occupants of the first household then called the police. Meanwhile, the appellant continued her activities. She entered another nearby family residence whilst the occupants of that house were sleeping and stole four DVD discs and a watch. The family occupying the second household was awoken by the presence of the appellant. One of the male occupants discovered the appellant in the kitchen of the house with his wife’s handbag and chequebook. The male attempted to overpower the appellant and a violent struggle ensued, when the male was scratched and kicked by the appellant. At some point the appellant threatened to put a gun to the head of the man and inject his children with heroin. Eventually the appellant was overpowered, but not before the violent struggle was witnessed by the man’s three children, aged sixteen, fourteen and seven years.
The police were called and the appellant was taken into custody. At that point the appellant struggled with, jostled and assaulted three police officers. Eventually the appellant was placed in a divisional van. She then kicked the van doors open, thereupon injuring one of the police officers. The appellant escaped the van and was pursued by the injured officer. A further struggle ensued until the appellant was secured in the divisional van. The appellant was then taken to the Ballarat police station, where she provided a false name, address and date of birth to the police.
Ultimately the appellant was charged and pleaded guilty in the County Court at Ballarat to a total of ten counts, namely, two counts of aggravated burglary, three counts of common assault, three counts of assaulting a police officer and two counts of theft. The appellant was convicted and sentenced on 25 October 2002 to a total effective sentence of two years and nine months' imprisonment with a non-parole period of twelve months. The sentencing judge declared a pre-sentence detention period of 109 days.
In the course of his sentencing remarks the sentencing judge observed that the occupants of the houses were terrified by the appellant’s actions and he described the facts of the case as “most serious and quite unpleasant”. The learned judge none the less took account of mitigating factors in determining the sentence: first, that the appellant pleaded guilty and that the plea reflected true remorse; secondly, medical reports including that of Dr Lester Walton, consultant psychiatrist; thirdly, that the appellant had not been involved in any further trouble since the incidents on 7 February 2002. The sentencing judge regarded the prospects of rehabilitation as reasonably good and noted in particular the desire of the appellant to cure her drug and alcohol addictions. The sentencing judge took into account the victim impact statements tendered by the Crown made by members of each of the disturbed households. The sentencing judge took account further of the need for deterrence, in particular, concerning the matter of aggravated burglary. The judge took account of the desirability of imposing a shorter non-parole period than might otherwise be appropriate in order to facilitate the rehabilitation of the appellant.
On the basis of these matters the learned sentencing judge sentenced the appellant as follows: on count 1 (aggravated burglary) - imprisonment for two years; count 2 (common assault) - six months; count 3 (theft) - three months. The judge ordered that the sentences be served concurrently, resulting in an effective sentence on those counts of two years. The judge further sentenced the appellant on count 4 (aggravated burglary) to imprisonment for two years; on count 5 (theft) - three months' imprisonment; on count 6 (common assault) - six months' imprisonment; on count 7 (common assault) - six months' imprisonment. That is an effective sentence on counts 4, 5, 6 and 7 of two years, and his Honour directed that six months of that period be served cumulatively upon the sentences on counts 1, 2 and 3. As for the remaining counts, the sentencing judge sentenced the appellant on each of counts 8, 9 and 10 (each being a count of assaulting a police officer in the execution of duty) to six months' imprisonment, making a total effective sentence on counts 8, 9 and 10 of six months' imprisonment, and directed that three months of that sentence be served cumulatively upon the sentences already passed. The effective sentence in all, therefore, as I have already indicated, was a period of two years and nine months' imprisonment and a minimum term of one year was directed before the appellant was eligible for parole.
The offences perpetrated by the appellant were serious and carried substantial penalties: aggravated burglary – 25 years' imprisonment; common assault – 5 years' imprisonment; theft – 10 years' imprisonment; assaulting a police officer – 5 years' imprisonment.
The notice of application for leave to appeal against sentence was filed on 7 November 2002, thirteen days after sentence. The basis for the application was that the appellant was pregnant at the time of sentence but unaware of her condition. It seems likely, therefore, that the appellant became aware of her pregnancy during the period between 25 October and 7 November 2002. On 7 February 2003 the appellant was granted leave to appeal by Vincent, J.A.
I turn then to the matters to be considered in re-sentencing the appellant. I echo the remarks of the learned sentencing judge that the facts of the case are serious and quite unpleasant. Indeed it would have been a terrifying experience for the occupants of the two households invaded by the appellant. So much is borne out by the victim impact statements. Uniformly the occupants of the households no longer feel secure in their homes, sleep lightly and wake at any noise. One of the appellant’s victims provided a vivid description of recalling the threat made by the appellant, “Do you want a gun to your head?” The victims of the appellant have described that their personal lives have changed permanently. Indeed the occupants of the first home invaded have received psychological assessment and the report of a psychologist, Ms M. Murphy, described the victims as suffering variously severe traumatic stress reaction, anxiety and post-traumatic stress disorder. She states:
“It is clear that the aggravated burglary has had a serious psychological effect. This assessment indicates that it has produced enduring changes in their psychological function, feeling of security, social confidence and emotional stability. They are now no longer able to feel safe in their home and it has taken them a considerable amount of time to be able to move about in the areas of their home where the intruder came in.”
Ms Murphy concluded that the victims would require ongoing psychological support. The occupants of the second household invaded by the appellant suffered similarly. The victim impact statements filed in their regard reveal similar difficulty in sleeping and experiencing fear. The statements are especially alarming as they include descriptions of the impact of the invasion on the children of the second household. They suffered nightmares, difficulty in concentrating, impact on their school work and extreme fear at sudden noises. They too have required counselling.
In the Court below the learned sentencing judge had before him the psychiatric report of Dr Walton concerning the appellant. I have considered that report. Dr Walton described the appellant as suffering difficulties from August 2001 when she used amphetamines intravenously and thereafter became a regular user of typically around two grams per day, combined with the consumption of up to two bottles of bourbon per day. Dr Walton described the appellant as also taking valium sometimes to excess. It seems from Dr Walton’s report that the appellant went to Queensland in January 2002 with her two children and her mother for a holiday but there was a falling-out. As a consequence the appellant returned to where she was living at Ballarat without her children. On the evening of 7 February 2002 she had an argument with her partner and took Rivotril tablets. Dr Walton described the drug as being one with multiple actions but essentially as being a central nervous system depressant. The appellant informed Dr Walton that she estimated she consumed about nine Rivotril tablets and woke three days later in the cells of the Ballarat police station.
The personal circumstances of the appellant are gleaned also from the report of Dr Walton. She was educated to second form level and left school at 14 years. She seems to have had little employment save for six months as a shop assistant. About two years before the subject incidents she completed a personal care assistant course. The appellant left home and moved to Melbourne from Ballarat when she was 17 and became pregnant at the age of 18. She has sons aged ten and three. Apparently there have been ongoing custody disputes with the father of the children. Dr Walton adverted to the relationship with the father of the children as having been characterised by recurring violence. None the less it appears that the appellant was in a contented de facto relationship during 2002 and that it was trouble free. The Court was informed by counsel for the appellant, Mr Backwell, that the appellant has continued in her de facto relationship with her partner, Mr Williams, and that he has been supportive of her while she has been in custody. Save for these general personal circumstances, the Court was told little about the family of the appellant and her relationships. In summary, Dr Walton described the appellant as being of normal intelligence but of having come close to developing a drug-induced paranoid psychosis. However, as at September 2002 when he wrote his report, Dr Walton expressed the opinion that the appellant did not require formal psychiatric treatment. He specifically expressed an opinion that the appellant did not have a defence of automatism available to her, but none the less, he considered that the drug misuse of the appellant was relevant to her bizarre behaviour. He observed that on the day he assessed her she was highly motivated to avoid risk to her continuing custody of her children. The learned sentencing judge was also provided with a report by a psychologist, Mr Tony Flynn, relating to the appellant. In a brief report Mr Flynn described her attendance before conviction and sentence at counselling sessions and assessed her as having adopted a positive lifestyle.
The other matter urged before this Court on behalf of the appellant is that she is pregnant and that the expected date of birth of the child is about 8 May 2003. The only evidence before the Court in this respect is a brief report from Dr Jenni Jenkins dated 27 November 2002. In the report Dr Jenkins stated that the appellant is pregnant and that her due date is the end of April 2003 and stated that the appellant is under antenatal care at Bendigo Health Care Group. There is no other evidence before this Court. The Court was informed by Mr Backwell during the plea this day that he was instructed that there has been a development in relation to the medical supervision of the appellant in that there is a concern as to her present blood sugar levels and there is a possibility, therefore, that the appellant may be induced to deliver her child four days hence on 5 May 2003. However, there was no medical evidence before the Court in this regard. There was also no evidence before the Court as to the special needs or requirements of the appellant in relation to her pregnancy or the pending birth of her child.
It seems to me that this is clearly a different situation from that before the Court in R. v. Moss[2]. In that case the appellant required special treatment for her pregnancy in the nature of a caesarian section delivery immediately before she became eligible to be released on parole. In the present case the Court was informed that the appellant is due to be released on parole on 7 July 2003, approximately two months hence. In practical terms, if the appellant was sentenced on a basis to enable her to be released very close to the expected date of the birth of her child, namely 8 May 2003 or earlier, on present calculations, allowing for a declaration of pre-sentence custody, the appellant would serve a minimum term of imprisonment of a little over ten months. Clearly account is taken of the fact that the appellant pleaded guilty and through Dr Walton demonstrated remorse. There are some prior convictions in the Magistrates' Court, although I observe there are no relevant prior convictions in relation to violence.
[2]Unreported, Court of Appeal, 13 March 1997.
Taking the most favourable view of the circumstances of the appellant, it must be said that a minimum sentence of ten months, in light of the seriousness of the charges of which the appellant was convicted and sentenced, would be extremely, if not extraordinarily, lenient and, I think, inappropriate. I cannot ascertain a basis for more leniency to the appellant than has already been shown. Weighing these matters up, it seems to me that there is no proper basis in the circumstances of this case on which the sentence below should be decreased. It also follows that it is unnecessary to deal with the original ground of appeal. In all the circumstances I am satisfied, therefore, that the appeal should be dismissed.
CALLAWAY, J.A.:
I agree. As in R. v. Moss, the greatest possible leniency, and perhaps a little more, has already been extended to the appellant. [3]
BUCHANAN, J.A.:
[3]Unreported, Court of Appeal, 13th March 1997. See also R. v. Frazer [2001] VSCA 101 at [46]- [47].
I agree.
CALLAWAY, J.A.:
The order of the Court is:
Appeal dismissed.
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