R v Lacey
[2006] VSCA 4
•19 January 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 150 of 2005
| THE QUEEN |
| v. |
| ROBERT WAYNE LACEY |
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JUDGES: | CALLAWAY, CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 January 2006 | |
DATE OF JUDGMENT: | 19 January 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 4 | |
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Criminal Law – Sentence – Aggravated burglary – Intentionally causing injury – Affray – Whether overlapping nature of offences gave rise to double punishment – Whether sentencing judge gave insufficient weight to appellant’s modest criminal history and prospects of rehabilitation – Parity – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R.A. Elston, S.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr M.J.Croucher | David Tonkin & Associates |
CALLAWAY, J.A.:
I invite Vincent, J.A. to deliver the first judgment.
VINCENT, J.A.:
The appellant was, on 8 April 2005, found guilty by the jury on his trial in the County Court on one count of aggravated burglary (count 1), one count of intentionally causing injury to a person (count 2) and a count of affray (count 10). He admitted seven prior convictions arising from one court appearance in 1998.
After hearing a plea in mitigation of penalty, the learned sentencing judge, on 13 May 2005, imposed the following terms of imprisonment for these offences -
On count 1 - four years and six months;
On count 2 - three years and six months;
On count 10 - one year and six months.
Her Honour directed that six months of the sentence imposed on count 2 was to be served cumulatively upon that imposed on count 1. This created a total effective sentence of five years' imprisonment in respect of which a non‑parole period of three years and six months was fixed.
There were three co‑offenders in the incident which gave rise to these convictions and sentences, namely, Steven Lacey and Robert Lacey Junior, who are sons of the appellant, and a man named Gregory Eldridge.
In the case of Steven Lacey, the sentencing judge imposed a sentence of imprisonment for two years on the count of aggravated burglary (count 1) and, on the count of intentionally inflicting serious injury (count 2), imprisonment for 18 months. It was directed that three months of the sentence imposed on count 2 be served cumulatively upon that imposed on count 1. This created a total effective sentence of two years and three months, the service of the whole of which her Honour directed was to be suspended for a period of two years and three months.
Eldridge was sentenced by her Honour to imprisonment for two years and six months for the aggravated burglary (count 1) and to a term of two years' imprisonment for intentionally inflicting serious injury (count 2), six months of which was to be served cumulatively upon the other sentence imposed. The service of the whole of the then effective sentence of three years was suspended for a period of three years.
The fourth offender, Robert Lacey Junior, was, at the time of sentencing, awaiting trial before the Children's Court.
Having been granted leave to do so, the appellant seeks to have these sentences set aside, to be re-sentenced on the grounds that:
“1.The learned judge erred in failing to discount the individual sentences on account of the overlapping behaviour giving rise to each offence and in fixing sentences that doubly punished as a result.
2.The learned judge gave insufficient weight to or otherwise erred in her approach to the following factors:
(a)on the evidence of provocation or the motive for the offending;
(b) the appellant’s modest criminal history;
(c) the appellant’s prospects of rehabilitation;
(d) the appellant’s role in the assaulting the complainant.
3.The learned judge gave excessive weight to or otherwise erred in her approach to the following factors:
(a) the nature of the appellant’s defence;
(b) the appellant’s prior convictions;
(c)the fact that the appellant was the father of his co-accused.
4.The sentences imposed upon the appellant infringe the principle of parity amongst co-offenders.”
The Background
It appears that during the afternoon of Saturday, 19 July 2003 a number of telephone calls were made between the home of the appellant and that of his former partner, Gayle Heaton, and her then partner, Russell Ross, in Bundoora. There were differing versions as to who was making the calls and the sentencing judge made no finding as to who was responsible for them, save that she accepted that, for one reason or another, the appellant became very angry. At some time during the evening the appellant drove his sons, Steven and Robert Lacey Junior, from their home to the residence of a friend of the appellant, Gregory Eldridge, and woke him from a drunken sleep. The three visitors drank some alcohol with Eldridge and then all four proceeded to the house at Bundoora.
When they arrived the appellant drove his car, with the headlights ablaze, on to the front lawn, within metres of the front door, despite the existence of a driveway. The four men then burst into the house flailing the various weapons with which they had armed themselves. The sentencing judge accepted that the appellant was carrying a weapon of some kind, said by witnesses to be an iron bar, but she was unable to determine its exact nature. Steven Lacey had a wooden object described by her Honour as "a long handle of some sort". Eldridge was equipped with a torsion wrench and, consistent with his apparent state of sobriety, was carrying a can of beer in his other hand.
Present in the house at the time of this entry were seven people: Russell Ross, Gayle Heaton, Shannon Lacey, who was the 8 year old child of the appellant and Ms Heaton, Raymond Heaton, the brother of Gayle Heaton, Herbert Cummings, the step-brother of Russell Ross, Beverley Ross, who was the mother Russell Ross, and Annette Brown, a friend of Mrs Ross.
A fight broke out immediately and continued for some time. It commenced in the hallway and then continued into a bedroom and the lounge room. In the course of the episode Steven Lacey struck Russell Ross to the head with the wooden handle. Eldridge struck him to the right side of the face with the wrench and the appellant hit him on the arm. Ross fell to the ground from the blow struck by Steven Lacey. He was also kicked.
Eventually the appellant and his companions left the house and drove to a nearby shopping centre where the car was intercepted by the police. The appellant and Steven Lacey then left the scene on foot, but Eldridge and Robert Lacey Junior were arrested.
In the vehicle the police located a wooden handle and a metal bar. The victim, Russell Ross, sustained a seven centimetre laceration to his left forehead that required a number of stitches. He also sustained serious bruising and swelling to his left eye and to the left side of his face and to his left thigh and hip, to his ribs and back and also to his left shoulder and collar bone. A CT scan revealed mildly depressed fractures in both nasal bones and a fracture of the nasal septum. He reported having lost consciousness during the attack.
When subsequently interviewed and at trial the appellant denied that his two sons and he had taken weapons to Ross' home and said there that he went to pick up Shannon and go for a drive. He claimed that Robert Lacey Junior had gone to the front door and had become involved in an argument with Russell Ross during which Robert was attacked by someone with a hockey stick. He denied that he entered the house at that stage and that he had any involvement in the fight or assaults that took place.
With respect to the roles played by the various participants, the sentencing judge found that the appellant was the leader of the group and that filled with anger he went to the victim’s home with an aggressive purpose that he then fulfilled. Steven Lacey, she said, followed his “father’s poor example” and continued:
“I can understand how it might have been difficult for you not to become involved and to not become worked up in the whole affair. But you still made the decision, the choice to go in as hard as you did and knock Russell Ross unconscious in front of your mother and your youngest brother”.
Eldridge she characterised as a person "in the wrong place at the wrong time", and considered that in his physical and emotional circumstances he felt drawn to participate out of a misplaced sense of loyalty to Robert Lacey. However, she pointed out that he made a conscious decision to strike Russell Ross, a person who was unknown to him, a potentially very nasty blow in the face with a wrench.
The offences committed by the appellant were, as this brief outline makes clear, extremely serious. His level of culpability for their commission is high. Not only are the circumstances relative to these offences and the particular offender such that his conduct merits the imposition of significant punishment, but clearly gives rise to the need to attribute significance to the principle of general deterrence.
The resolution of personal disputes by the resort to the kind of armed attack for which the appellant was primarily responsible cannot be countenanced and it must be understood that the engagement in such behaviour will be likely to attract serious consequences to attend it.
In this context it is worthwhile drawing attention to the paragraph in her Honour's sentencing remarks which dealt with the consequences to one of the victims, Russell Ross, in this case. Her Honour said:
“In his victim impact statement tendered on the plea, he says that he still suffers from dizziness and loss of balance, which he puts down to middle ear damage resulting from the injuries to his head. He also considers that his memory loss and speech repetition arises out of these injuries. Because of his injuries, he said he did not work in his occupation as a truck driver for a period of time and had a reduced income on sickness benefits. He is still suffering, as a result of your joint attack on him, with anxiety, stress, depression, fear and a feeling of being unsafe. He no longer socialises externally, that is out of the home, with friends or family, and he has moved house several times as he believed that you, his attackers, were aware of his address and feared you would return to attack him again. He has clearly suffered significantly as a result of your vicious attack on him and the impact on his life is substantial.”
The Grounds
Ground 1
In support of the complaint that the learned sentencing judge fell into error in not discounting the individual sentences imposed on account of the overlapping behaviour involved in each of them, counsel for the appellant emphasized the concession made by the prosecutor in the court below that the count of affray was effectively based upon the actions of the appellant that provided the foundations for counts 1 and 2 and that, accordingly, a submission for concurrency with respect to the sentence of affray could not be resisted.
It is clear enough that the judge accepted that as the acts encompassed by counts 1 and 2 were committed in the course of the affray, the sentence imposed for that offence should be made wholly concurrent. However, the assertion was advanced in this court that this did not address in any adequate fashion the issue of the imposition of double punishment which Mr Croucher argued was not avoided simply by making such an order.
In this context reliance was placed upon a passage in the joint judgment in the High Court in Pearce v. R.[1] where their Honours pointed out the need for a sentencing judge in such a situation to impose appropriate sentences for the separate offences but, when doing so, to be astute to avoid the imposition of double punishment and to bear in mind that each sentence handed down constitutes the imposition of a separate punishment whether or not it is to be served concurrently with some other sentence.
[1](1998) 194 C.L.R. 610.
It is, of course, well recognised that although it is sometimes extremely difficult to separate the bases of punishment in situations where a number of offences are committed within the ambit of a single incident or enterprise, the sentencing judge must endeavour to do so and address the issue of possible overlapping by moderating the individual sentences and the making of orders for concurrency.
In the present case, whilst the invasion of the victim's home was undertaken for the obvious purpose of assaulting at least Russell Ross, the affray was a quite separate offence which involved the creation of fear in a number of other persons. As I have pointed out, there were seven people in the house at the time. The victim of count 2 was, as counsel for the respondent has submitted before us, not the only victim of the affray. In other words, the making of affray in this case was, of itself, a serious offence involving separate elements and other victims and required the imposition of separate and significant punishment. Similarly, the invasion of the victim's home when armed and in the company of other armed persons for the purpose of assaulting the occupant was not only a separate offence, but one which merited punishment whether or not any assault occurred or fight takes place.
As a matter of principle, in my view it would not be correct to involve the conduct involved in the affray as subsumed within the counts relating to what transpired in the house, nor to regard those matters as overlapping to the extent that counsel has urged before us. Of course, there had to be recognition by the sentencing judge of the need to tread carefully and to avoid the imposition of double punishment upon the appellant. There is, in my view, nothing in her remarks or in the sentences at which she arrived to suggest she was not mindful of this consideration or failed to take it into account in an appropriate fashion. In other words, I am unable to detect any error in Her Honour's approach to this aspect either as to the applicable principle or by inference arising from the disposition ordered.
Grounds 2 and 3
These grounds contain a number of complaints which I will address in the order in which they have been argued by Mr Croucher before us.
First, it has been contended that the sentencing judge treated as an aggravating feature the appellant's denial of responsibility and the nature of his defence which was effectively that only his sons entered the house and that he had no part whatever in anything untoward that transpired.
There can be no doubt that in describing the appellant's behaviour generally as cowardly the sentencing judge indicated, and I consider understandably, that she was singularly unimpressed by the way in which he acted throughout this entire matter. She was entitled, when assessing his moral culpability for sentencing purposes, to have regard to the fact that he recruited his two sons, one of whom suffered from a degree of intellectual disability, while the other was very young, as well as a drunken friend to assist him to attack with weapons the victim in his own home. She was also entitled to take into account his refusal to accept responsibility when considering whether the appellant provided any significant indication of remorse and whether specific deterrence was to assume significance as a sentencing consideration in the circumstances. Her remarks were forceful, but do not constitute a sufficient basis, in my opinion, for concluding that she might have fallen into what would be characterised as the fundamental error of penalising the appellant for pleading not guilty.
Next, in her sentencing remarks, when addressing the appellant's prior convictions, her Honour said:
“You have only one prior appearance in September 1998, resulting in seven convictions, being four cannabis matters, a breach of an intervention order and assaulting police. I find nearly all of these relevant to my sentencing you today, even though I am told you no longer smoke cannabis.
The conviction for supplying a drug of dependence to a child, I am told, is in relation to your son, Steven Lacey, and that is in keeping with my view of your poor attitude towards parenting of your sons and your failure to set a good example for them to follow.
The breach of intervention order shows lack of regard for a court order, and the resisting and assault of police shows an element of violence. You received a suspended sentence at the time, which you apparently satisfactorily completed.”
The argument was advanced on behalf of the appellant that these convictions were "old" and incurred at a time when the appellant was "at a low ebb" and that the breach of the intervention order involved no violence. What was significant, it was said, was that at the age of 43 years he had only one previous court appearance. The assertion that the prior convictions were old lacked substance and they clearly possessed relevance. They had been incurred only five years previously and involved assault, the breach of a court order and assumed significance with the level of the culpability of the appellant in recruiting his sons to assist him on this occasion.
I do not consider that it has been demonstrated that her Honour fell into error in her approach to the appellant's prior criminal history either by reason of her failure to apply or misapplication of proper principles or by the weight attributed to that history as reflected in the sentences imposed.
Third, it was submitted that her Honour's finding that she was not satisfied that the prospects of the appellant's rehabilitation were low, but rather that they were only reasonable, was not sustainable on the evidence. I do not agree and, without repeating what has been set out above, consider that there was an adequate foundation for the adoption of this view.
Fourth, it was submitted that her Honour fell into error in the role attributed by her to the appellant in this matter. I think it is evident from what I have said above that I consider that this claim also lacks substance.
Similarly, I have detected no error in her Honour's remark that even if Russell Ross, who denied doing so, had made threatening phone calls to the appellant's home, "that is no excuse for the outbreak of violence which then followed", and I would draw attention in this context to the remarks that I have earlier made with respect to the employment of violence in such circumstances and to the significance of general deterrence as a sentencing consideration.
Ground 4
It has been contended by this ground that the sentences imposed upon the appellant infringe upon the principle of parity amongst co‑offenders. In dealing with this aspect her Honour stated:
“I was not addressed on the issue of parity of sentence but I have
considered it. It seems to me the differences between the prisoners are such that parity principles are difficult to apply. Robert Lacey does not get the benefit of having pleaded guilty, although he has the least prior convictions. Steven Lacey is still a young man for whom rehabilitation must be considered the primary sentencing purpose, has pleaded guilty, and has an intellectual disability severe enough to make him eligible for Disability Client Services, but has the highest number of prior convictions, particularly for violent offences. Eldridge has pleaded guilty, has prior convictions from many years ago, but in his life circumstances which may be considered exceptional. The other co‑offender, Robert Lacey Junior, has not yet been dealt with and will, I understand, be sentenced under the Children's Court regime in any event. In the end I have moderated the sentence that I would otherwise have otherwise imposed on Robert Lacey Senior in order to attempt to avoid a sense of injustice from him receiving a disparate sentence despite the differences I have outlined.”
Without setting them out seriatim it is apparent that in addition to the matters specifically mentioned by Her Honour in this passage, the differences between the three co‑offenders were numerous and highly significant in the determination of the appropriate sentence in each case. I am unpersuaded that the principle of parity has been breached in the sentences handed down on the appellant.
In summary, I do not consider that it has been demonstrated that the learned sentencing judge fell into error in any specific respect and the sentences were, I consider, within the range of those available in the proper exercise of sentencing discretion. It follows that in my opinion this appeal should be dismissed.
CALLAWAY, J.A.:
I agree.
CHERNOV, J.A.:
I also agree.
CALLAWAY, J.A.:
The order of the Court is – Appeal dismissed.
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