R v McCluskey
[2002] VSCA 45
•18 March 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 82 of 2001
| THE QUEEN |
| v. |
| ROSS ANTHONY McCLUSKEY |
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JUDGES: | WINNEKE, P., CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | WANGARATTA | |
DATE OF HEARING: | 18 March 2002 | |
DATE OF JUDGMENT: | 18 March 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 45 | |
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CRIMINAL LAW - Appeal against sentence - Aggravated burglary, intentionally causing injury and driving whilst disqualified - Premeditated attack on victim in victim's own home - Whether judge erred in cumulating sentences - Sentence of three years and three months (minimum two years) not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C. and Mr R. Pirrie | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr G. J. Thomas | Victoria Legal Aid |
WINNEKE, P.:
I will invite Chernov, J.A. to give the first judgment.
CHERNOV, J.A.:
On 2 April 2001, the applicant, who is now aged 30, pleaded guilty in the County Court at Ballarat to one count of aggravated burglary, to one count of intentionally causing injury and to two related summary charges of driving whilst disqualified and driving an unregistered vehicle. The maximum penalties were, for aggravated burglary, 25 years' imprisonment and for intentionally causing injury, 10 years' imprisonment. The applicant admitted to 29 prior convictions from 11 previous court appearances between 18 June 1989 and 26 April 2000, including convictions for two charges of false imprisonment, aggravated burglary, assault occasioning actual bodily harm, assault in company and unlawful assault. He was also convicted, on 26 April 2000, the day before the present offences, of being in possession of a regulated weapon and being drunk in a public place. He appealed against those sentences and, by reason of that, was released on bail. The applicant had also previously been convicted of nine charges of driving a motor car whilst disqualified and of six charges of driving a motor vehicle whilst having in excess of the prescribed percentage of alcohol in his blood.
After hearing a plea in mitigation made on his behalf on 3 April 2001, on 11 April 2001 the applicant was sentenced to a total effective sentence of three years and three months' imprisonment. His Honour fixed a non-parole period of two years. On the count of aggravated burglary, the applicant was sentenced to two years' imprisonment, and on the count of intentionally causing injury, to 18 months' imprisonment; on the summary charge of driving whilst disqualified, four months' imprisonment, and he was disqualified from driving for a period of four years. His Honour ordered that 12 months of the sentence on count 2 and three months of the sentence on the summary charge of driving whilst disqualified be cumulated on the sentence imposed in relation to count 1. The applicant seeks leave to appeal against the sentence on seven grounds, which I will describe shortly. Before doing so, however, I will summarise the circumstances of the offending.
The applicant and his co-offender, Gregory Michael Clark, spent the afternoon and evening of 27 April 2000 drinking, principally at an hotel in Linton. The victim was well known to both of them. Clark was in fact the father of the victim's 17-year-old, pregnant de facto wife. While they were drinking, they discussed the victim, towards whom they felt a considerable animosity. They also spoke of the victim's relationship with Clark's daughter. It seems clear enough that by the late evening the co-offender's animosity towards the victim had intensified, having been fuelled, no doubt, by the intake of alcohol. Being in that state they decided to go to the victim's house for the purpose of assaulting him, and to enable Clark to speak with his daughter.
The offenders arrived at the victim's house at approximately 10.30 p.m. that night. The applicant banged on the front door and yelled for the victim to open it for them, or otherwise "it gets knocked in". After a while, the victim opened the front door to the applicant and tried to calm him down. The victim then opened the back door and let Clark into the house. By this stage, the applicant had gone out to his car and returned carrying a wood splitter. Although he did not attempt to use it in the house, the victim knew of its presence and was fearful of its potential use. In the kitchen area, notwithstanding that the victim had offered the applicant a drink, the applicant abused the victim who told him to leave. The applicant ignored this request, and although the victim wanted to call the police he was too frightened to do so. The applicant followed the victim to the bedroom, abusing him and asserting that the victim had been saying that the applicant was a child tamperer. Eventually, the applicant punched the victim a number of times, mainly in the head, causing a flow of blood from the injuries. The victim did not attempt to fight back because he believed that this would further aggravate the applicant. He managed to get away from the applicant and returned to the kitchen, but the applicant followed him and further assaulted him while continuing his tirade of abuse. He slammed the victim's head into the outside of the refrigerator several times and, when he fell, the applicant kicked him. After a pause, during which time the applicant regained his breath, the applicant grabbed the victim by his hair and dragged him out to the car, threatening to run over him. At the car the applicant slammed the door into the victim's head a number of times, causing further injury. They all then returned to the house, and after Clark received a goodbye kiss from his daughter, he and the applicant left. In the process of driving away, the applicant collided with the house. The car that the applicant was driving was unregistered, his licence had been cancelled and he had been disqualified from driving.
On the following day, 28 April 2000, the police interviewed the applicant, who admitted drinking alcohol and being involved in the assaults on the victim on the previous day. However, he claimed that he initially intended only to talk to the victim but an argument had flared up resulting in a fight. The applicant claimed that he did not bring the wood splitter into the house until late in the events of the previous evening. He denied assaulting the victim in the bedroom or outside the house.
It should be noted that the applicant knew that the victim had suffered head injuries some years previously. Whether due to that fact or otherwise, the victim briefly lost consciousness at the end of the applicant's assault on him, and on admission to hospital he presented with an altered conscious state. The victim's injuries included a three-centimetre laceration to the left brow, requiring sutures, and he had left peri-orbital bruising and neck bruising consistent with some elements of strangulation. In the victim impact statement, the victim stated that he still suffered some ongoing effects such as sleepless nights as a result of the attack.
At the hearing of the plea in mitigation, evidence was led to the effect that, since the offending, the applicant had achieved a degree of rehabilitation. He lived with his sister and had remained alcohol free; had undertaken ongoing alcohol counselling; had sought anger management counselling; and had obtained regular employment as a fork-lift driver. Moreover, it was put that the applicant fully appreciated the criminality of his offending. The applicant's counsel appearing at the hearing of the plea in mitigation submitted to his Honour that in those circumstances, and since the applicant had already spent 105 days in custody, a wholly suspended sentence was within the range of sentencing options that were available. At the end of the hearing of the plea in mitigation, his Honour adjourned the matter for sentencing and remanded the applicant in custody. As I have said, on 11 April 2001, his Honour imposed on the applicant the sentences of imprisonment which I have already described.
I now turn to the grounds of the application and the arguments in support put forward by Mr Thomas on the applicant's behalf. It is not necessary to recite these grounds here, because Mr Thomas told the Court that his main submission was that the sentence was manifestly excessive and that the other grounds were mere particulars of it. Thus, he argued, first, that the applicant, having pleaded guilty at an early stage, was entitled to a substantial sentencing discount for that plea. He contended that his Honour did not give sufficient weight to that mitigating factor. In my view, it is difficult to discern, from his Honour's sentencing remarks, any failure on his part to give due weight to that factor.
Secondly, it was claimed that the applicant's prior convictions should be looked at in the context of his rehabilitation. Thus, said Mr Thomas, most of the serious driving offences were alcohol related but the applicant had ceased drinking alcohol and, therefore, he was unlikely to commit offences of this nature again. Similarly, said counsel, many of the non-driving offences occurred some time ago. Thirdly, argued Mr Thomas, his Honour's cumulation of the sentences failed to reflect the applicant's rehabilitation and his early plea of guilty in particular. Mr Thomas also submitted that the applicant's moral culpability for the offence was reduced because he assaulted the victim when he was enraged by the victim's unjustified allegation that the applicant was a child molester.
But, as I have said, it is clear enough that his Honour took the applicant's plea of guilty into account in determining the sentence, as he did the applicant's change of lifestyle since the offending. Furthermore, the applicant's criminal history, which is extensive and includes the commission of the offences in question whilst on bail, was clearly relevant to the questions of the applicant's remorse and rehabilitation. It is an aggravating factor which his Honour was entitled to take into account for sentencing purposes. The applicant's moral culpability for the assault was not much reduced even if the victim told others that the applicant was a child tamperer. The assault was premeditated, was carried out in the victim's home and was vicious. The applicant's moral responsibility was not diminished by what the victim was supposed to have done, even to the extent hinted at by the applicant.
In determining whether a sentence is manifestly excessive, it is not a question of what sentence an appellate court would have imposed had it been in the shoes of the sentencing judge, but rather whether the sentence is outside the range of those properly available to the sentencing judge. In my view, for the reasons I have given, the sentence imposed on the applicant is within the range. His Honour was required to fix a sentence which properly reflected the gravity of the offence and of the offending, taking into account matters personal to the applicant including mitigating factors and the applicable sentencing principles. In my view, that his Honour did this is made clear by his sentencing remarks. The offences to which the applicant pleaded guilty, particularly those with which he was charged on presentment, were very serious indeed, as is demonstrated by, inter alia, Parliament's imposition of the maximum penalties to which I have already referred. The circumstances of the offending were also serious. The applicant went to the victim's home, late at night, with the intention of causing him injury. He gained unlawful entry after he threatened to break down the door. He then proceeded to abuse the victim verbally and physically. It was a cowardly assault, given that his co-offender was present and it was well known that he bore animosity towards the victim. Put shortly, the applicant's conduct was a premeditated, arrogant, cowardly and vicious invasion of the victim's home and of his person. In the circumstances, the principles of general and specific deterrence were very important sentencing considerations, as was the need for the court to express its denunciation of such conduct. His Honour, of course, properly balanced those aggravating factors against the applicant's personal circumstances and the other mitigating matters to which I have referred.
In my view, the partial cumulation of the sentences in this case was not excessive having regard to the facts to which I have referred. In fact it could be said that the cumulation was moderate. His Honour recognised that the applicant was charged with two offences but that they essentially formed part of one transaction such as to attract the operation of the totality principle. The charges of aggravated burglary and intentionally causing injury were sufficiently disparate to justify some cumulation. That is even more so in the case of the sentences imposed with respect to the summary charges of driving while disqualified. Given those circumstances, it is my view that his Honour made no relevant error and, as I have said, the sentences imposed on the applicant were within range, as was the total effective sentence.
In my view, for these reasons, the application should be dismissed.
WINNEKE, P.:
I agree, for the reasons given by Chernov, J.A., that the application for leave to appeal against the sentences imposed by his Honour and the total effective sentence should be dismissed.
Mr Thomas, who appeared for the applicant in this Court, did not contend, and could not reasonably have contended, that the individual sentences imposed by his Honour for the offences alleged against the applicant were manifestly excessive. He limited his contention to the proposition that his Honour could be seen to have erred by cumulating as much as he did of the sentences on count 2 and the summary offence upon the penalty of two years which he imposed on count 1. It is a very difficult task facing an applicant for leave to appeal against sentence to attack what really is a discretionary exercise which is best achievable by the judge who is responsible for initially exercising the sentencing discretion. For this Court to interfere with a judge's orders for cumulation it would have to be very clear indeed that the discretionary exercise of his Honour had gone very wrong. I can see no reason for interfering with the discretion exercised by his Honour as to his cumulation orders.
For the reasons given by Chernov, J.A. and the additional reasons which I myself have given, I would dismiss the application.
CHARLES, J.A.:
I agree that the application should be dismissed, for the reasons given both by the President and by Chernov, J.A.
WINNEKE, P.:
The formal order of the Court is that the application for leave to appeal against sentence is dismissed.
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