R v Kerr

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 174 of 1998

THE QUEEN

ROBERT JOHN KERR

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JUDGES:	WINNEKE, P., CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 November 1998
DATE OF JUDGMENT:	24 November 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 125

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Criminal law - Sentence - Stalking and threat to kill - Continual harassment for several months of two physically disabled victims - Prisoner suffering chronic depression - Plea of guilty - Limited remorse - Sentence not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. R.A. Elston	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. S. Gillespie-Jones	Victoria Legal Aid

WINNEKE, P.:

I will invite Charles, J.A. to deliver the first judgment.

CHARLES, J.A.:

The applicant, who is now aged 62, pleaded guilty on 22 June 1998 in the County Court at Morwell to a presentment containing two counts of stalking (counts 1 and 2), one count of making a threat to kill (count 3), one count of damaging property (count 4) and one count of common assault (count 5). He admitted 25 prior convictions from 14 previous court appearances, including convictions for three charges of making harassing telephone calls in April 1990 and one charge of breaching an intervention order in 1993. Two victim impact statements declared by Susan Zent and Peter Roy Adams were tendered, and the learned judge during the plea heard evidence from five witnesses called on behalf of the applicant - Dr Hillol Das, a psychiatrist who gave evidence of the applicant's psychiatric condition, Dr Pam McLeod, Mrs Shirley June Bonning, Mrs Norma Jillian Watson, and a psychiatric nurse, Nicholette Mary Melville, who all gave evidence of the applicant's good character and his assistance to people in the community.
On 23 June the learned judge sentenced the applicant on each of counts 1 and 2 to 24 months', on count 3 to 12 months', on count 4 to 24 months', and on count 5 to six months' imprisonment, six months of the sentence imposed on count 4 to be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of 30 months' imprisonment. The learned judge fixed a non- parole period of 15 months. The applicant now seeks leave to appeal against sentence on the following substituted grounds, namely that -

1. The sentence was manifestly excessive.

2.

The learned judge erred in finding that the applicant was an appropriate vehicle for general deterrence.

3.

The learned judge failed to find that the applicant's chronic depression arising from a closed head injury was a mental disability reducing moral culpability.

4.

The learned judge erred in finding that the applicant had a violent and anti- social propensity demonstrated by his prior convictions.
5. The learned judge erred in finding that the applicant lacked remorse.

6.

The learned judge erred in finding that the applicant lacked insight into his wrongfulness.

7.

The learned judge erred in finding that there will be a significant risk of re- offending.

8.

The learned judge erred in finding that no progress had been made towards rehabilitation.

The circumstances giving rise to these offences were as follows. The complainants, Susan Zent and Peter Adams, live at Yinnar South, in a remote area of Gippsland, on a property owned by Zent. Zent suffers from "20th century disease", a heightened allergic reaction to even the smallest traces of chemicals and pollutants in the atmosphere. Adams is a profoundly deaf mute, his only means of communication being by handwriting or sign language. The land owned by Zent was 12 acres in area and she managed a further 69 acres, most of her property being on a hillside opposite land upon which the applicant took up residence in December 1995. There was a water pump operated by Zent, situated on Crown land, which had been in place for many years and before Zent became the owner of the property. The pump was the subject of a water right which gave Zent permission both for the installation of that pump and for a pipe to traverse Crown land. Zent also had a diversion licence authorising her to take water for domestic and stock use from nearby Middle Creek. The pump was the only source of water for Zent's property.
Shortly after the applicant took up residence in his house property in December 1995 he commenced a course of conduct which lasted until 24 April 1996. On 14 January 1996 Adams, Zent and another were present on Zent's property when the applicant approached with a weed blower and wielded it in a threatening manner. On 17 January the applicant approached Adams and Zent, taunted them and, referring to Adams, said: "Don't worry, if the bastard comes anywhere near me, I'll really hurt him this time". On 18 January, the applicant, who lived with one Vicki Luciani, yelled to her in the presence of Adams and Zent, "Get the gun". The applicant then made a series of vomiting, barking, growling and chicken-like noises. On 30 January the applicant and Luciani approached Adams in the carpark of the Churchill Shopping Centre and drove slowly past Adams's car. On 2 February in the presence of Zent, the applicant made spitting noises and motions in her direction and said, "I hear you go by the name of Zent and Adams". He told Zent that if Adams went up the road beyond the applicant's house, he would not be coming back that way. On 11 February Adams and Zent had walked up along the road and past the applicant's house towards a small creek. The applicant called out to Zent that Adams had psychiatric problems. He told Zent to remove the pump because he claimed that it was on his land and also said, "You want shit, you'll get it". As Adams came back past the applicant's property, the applicant picked up a metal bar from the ground and threatened him with it. On 18 February the applicant was at the pump and on several occasions spat in the direction of Adams, who was nearby. The applicant and Luciani came across the fence and approached Adams yelling and gesticulating at him. The applicant said to Adams, "You shit, scum bag, one foot on my land and you're in hospital, you dumb bastard, Ned Kelly." He referred to a letter he had shortly before received from Zent's solicitors and said, "I got your solicitor's letter and I wiped my arse with it." The applicant then directed some remarks towards Adams such as "Woman molester" and also "There's a lot more trouble coming for you yet, just wait and see."
In February 1996 Zent contacted the Dispute Settlement Centre in an effort to resolve the difficulties between herself and Adams and the applicant. The applicant however declined to attend a mediation. On 10 March, whilst Zent was on her own property with some horses, the
along the road in front of her property, Luciani accelerated and drove directly towards Zent, passing very close to her. All these events gave rise to counts 1 and 2.
On 20 April 1996 Zent was again in her paddock, opposite the applicant's house, when the applicant from approximately ten metres away yelled out to her, "If you set foot on my property you'll be murdered", and spat in her direction (count 3).
On 21 April 1996 at about 3.10 p.m. the applicant and Luciani began to walk through their property in the direction of the water pump. The applicant attempted to dismantle the pump, and the pump was pushed a number of times and in effect was being jerked from one side of the fence to the other. An alloy pulley in the flywheel of the pump was damaged while the pump was being pushed and manipulated by the applicant. Repairs to the pump cost $85 (count 4).
Count 5 arose from the fact that Adams attempted to push the pump back to its original position, and the applicant then kneed him in the abdomen, at which Adams fell back rapidly onto the ground. As a result of this incident Adams suffered tenderness and bruising to the abdomen, and struck his head and suffered some swelling and tenderness, for which he later received medical attention at the Central Gippsland Hospital in Moe.
On 24 April 1996 the police went to the applicant's property. The applicant refused to accompany police back to Morwell police station for an interview and was then arrested. The applicant was argumentative and effectively declined to comment directly on the allegations put to him as to the stalking offences.
It is convenient to take first grounds 2 and 3. Mr Gillespie-Jones, who appeared in this Court on behalf of the applicant, submitted that the applicant had sustained closed head injuries after his head struck a windscreen in a head-on collision in 1986. This was said to have brought on clinical depression for which he is still being treated. Medical evidence on behalf of the applicant was given by Dr Hillol Das, a psychiatrist practising in Traralgon, who said that he was treating the applicant for chronic depression, and that when he first saw him he presented with "symptoms of depressed mood, not sleeping adequately, feeling stressed out, not having enough interest, having death wish" and that he was treated with a variety of anti-depressants. On the basis of this evidence, Mr Gillespie-Jones submitted that a person suffering from a serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence; and that the illness may well have a bearing on how the sentence is served. He submitted that specific deterrence also may be difficult to achieve and imprisonment will weigh more heavily on a person such as the applicant suffering from depression. Mr Elston, who appeared in this Court for the Crown, submitted in response that the learned judge had in the circumstances been required to take into account specific and general deterrence and that no more than appropriate consideration to these factors had been given in sentencing reasons. As to the medical evidence he pointed to the fact that, in cross-examination, Dr Das was asked -
"Let me just see if I understand the purport of your evidence, are you seeking to explain ... in any way his alleged conduct in respect of these offences by reference to his depression; ... I've never done that."
In support of his submissions, Mr Gillespie-Jones relied upon R. v. Tsiaras [1996] 1 V.R. 398, at 400. In the more recent decision of R. v. Yaldiz [1998] 2 V.R. 376, Winneke, A.C.J. said, at 383, of a group of cases including Tsiaras, that -
"It is true that the courts in those cases expressed the view that serious psychiatric illness falling short of legal insanity is relevant to sentencing because, inter alia, a person suffering from such an illness is not an appropriate vehicle for general deterrence: see Tsiaras at 400. But it must be remembered that in each of the cases to which I have referred the accused was suffering either from schizophrenia or a schizophrenic type illness which obscured the mental intent to commit the crime with which he had been charged. ... Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused."
See also R. v. William Lewis, unreported, Court of Appeal, 20 April 1998, at 8-9.
In the light of the evidence of Dr Das, in my view the learned judge gave such weight to general and specific deterrence as was appropriate. There was no basis in this evidence upon which it could properly be argued that the applicant's mental condition was such as to reduce his moral culpability. Grounds 2 and 3 therefore fail.
In support of ground 4, Mr Gillespie-Jones argued that the applicant had no prior convictions since February 1963, save for the convictions for breach of an intervention order and making harassing telephone calls. He submitted that the calls were made to his then father-in-law in relation to conduct as between husband and wife, and did not justify the comment made by the learned judge that these convictions demonstrated his propensity for violence and anti-social behaviour. There is nothing in this point. Having regard to the applicant's behaviour from December 1995 to April 1996, which was not contested and evidence of which was supported by a video-tape, the learned judge was clearly entitled to find - indeed no other conclusion would have been open - that the applicant had a propensity for violence and anti-social behaviour. Ground 4 fails.
Mr Gillespie-Jones argued grounds 5 to 8 together. His submissions were based upon the statement as to the applicant made by the learned judge in sentencing reasons that -
"Your apparent lack of remorse and lack of insight into your wrongfulness and in a person with your prior convictions leads me to conclude that there is a significant risk of your re-offending."
It was submitted that the only basis for this finding was the applicant's record of interview in which the bulk, but not all, of the accusations were denied. The pleas, and the applicant's actions in moving at a considerable cost from his then place of residence, it was submitted, supported a view of remorse. The submission was that the prior convictions could do little other than confirm that there is small risk of re-offending, given that this was a dispute between neighbours. It was submitted that his Honour's finding was unreasonable.
As Mr Elston pointed out, however, the learned judge did not in fact conclude that the applicant had no remorse. Reference was made to the applicant's plea of guilty, albeit that he had indicated a preparedness to do so only on the last working day prior to the scheduled commencement of his trial. His Honour continued -
"You are, nonetheless, entitled to have that fact taken into account in
your favour and I do so.
His Honour afterwards said that the he credited the applicant with "only such limited degree of remorse as is consistent with your plea of guilty."
Nothing in the record of interview indicated remorse for any of the applicant's actions, the bulk of which, as Mr Gillespie-Jones conceded, were denied. In my view, having regard to the behaviour exhibited by the applicant over a period of several months, and taking into account the applicant's answers during his record of interview, the learned judge was entitled, subject to the plea of guilty, to conclude that the applicant lacked remorse and insight into his behaviour and further to conclude that there was a significant risk of the applicant re-offending. As to ground 8, the learned judge plainly did not disregard the question of rehabilitation and did not in my view err in his conclusion that "the applicant had made no progress towards rehabilitation". None of grounds 5 to 8 is made good.
I turn then to the submission that the sentences were manifestly excessive. Mr Gillespie-Jones submitted that these counts all arose from a dispute between neighbours. The learned judge had found that there was no provocation from the complainants for the applicant's actions, although the two female occupants of the applicant's house were in fear at least of Adams, who is said to be the owner of several guns. He pointed to the fact that the applicant had helped a number of people in the district and had left his premises, selling his property at a loss of $10,000. He submitted that although the applicant had pleaded guilty to making a threat to kill, the threat was in reality no more than hypothetical and that the declining of a genuine defence should give weight to considerations of remorse. The damage to the pump had cost only $85 to repair and the pump had in fact been on the applicant's side of the fence, and the applicant in this respect had acted on legal advice. He submitted in effect that none of the offences was serious enough to justify the severity of the sentences that were imposed and that his Honour, in reaching his conclusions, had ignored the many good works to which the witnesses called on behalf of the applicant had testified.
In making submissions during the plea, the applicant's counsel had accepted that in all the circumstances a custodial sentence was not outside the range of consideration. His Honour had had the benefit of victim impact statements both from Zent and Adams and had correctly found that there were aggravating factors in the conduct of the applicant which made the only appropriate disposition one by way of custodial sentence. The offences for which the applicant was sentenced were serious ones. The applicant was well aware of the physical disabilities of each of his victims; indeed, as the learned judge said, "The conduct in which the applicant indulged over several months was apparently designed to exploit as fully as he was able to, the discomfort of both of his victims." The offences were, as Mr Elston submitted, callous and cruel, and the continuing physical intimidation of both victims was accompanied by ridiculing and mocking behaviour designed to harass and frighten both victims. In arriving at his conclusions, the learned judge made specific reference to the age and health of the applicant and after considering all appropriate circumstances set a minimum term which was half the total effective sentence. Even the offence of damaging property, the sentence for which might be thought somewhat high, was in effect a malicious attempt to interfere with the sole source of water to Zent's property.
In my view, the sentences imposed were in each case plainly within range, and ground 1 also fails. I would dismiss the application.

WINNEKE, P.:

I agree.

BUCHANAN, J.A.:

I also agree.

WINNEKE, P.:

The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.

[1998] VSCA 125

24 November 1998