R v McDonald
[2004] VSCA 196
•21 October 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 316 of 2003
| THE QUEEN |
| v. |
| DARREN JAMES McDONALD |
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JUDGES: | WINNEKE, P., CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 October 2004 | |
DATE OF JUDGMENT: | 21 October 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 196 | First Revision: 3 November 2004 |
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Criminal Law – Sentencing – Aggravated burglary (3 counts), committing an indecent act with a child under sixteen (2 counts), theft, burglary – Four discrete episodes of criminal offending – Orders for partial cumulation in respect of counts in each group of discrete offences - Cumulation not vitiated by uncertainty and not unauthorised by Sentencing Act 1991 – Total effective sentence of seven years’ and three months’ imprisonment with non-parole period of five years not manifestly excessive – Sentencing Act 1991, s.16(1) – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S.E. Pullen | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Ms H. Spowart | Victoria Legal Aid |
WINNEKE, P.:
I invite Chernov, J.A. to deliver the first judgment in this matter.
CHERNOV, J.A.:
On 18 March 2003 the appellant, Darren James McDonald, who is now aged 38, pleaded guilty in the County Court at Ballarat to one presentment containing three counts of aggravated burglary, two counts of committing an indecent act with a child under 16 years of age, five counts of theft and one count of burglary. The offence of aggravated burglary attracts a maximum custodial sentence of 25 years and each of the offences of theft, burglary and committing an indecent act with a child under sixteen years of age attract a maximum penalty of 10 years' imprisonment. The appellant admitted 44 prior convictions from ten court appearances between 1985 and 2001, including convictions for a range of dishonesty offences. The crimes in question were committed on 1 July 2001 and 2 August 2001 in the Ballarat area and became known locally as the “Candlelight Burglaries”. After hearing on 18 March 2003 a plea in mitigation of sentence made on the appellant's behalf, in the course of which there was tendered in evidence the psychiatric report of Dr Lester Walton dated 9 April 2002 as well as victim impact statements and other material, his Honour sentenced the appellant on 24 March 2003 to a total effective sentence of seven years and three months' imprisonment and directed that he serve a minimum term of five years’ imprisonment before becoming eligible for parole. His Honour declared that the period of time the appellant had spent in pre-sentence detention was 565 days. Having regard to the grounds on which the appellant relies in support of his appeal, to which I will refer later, it is necessary to set out the sentences of imprisonment imposed by his Honour in respect of each count. His Honour first dealt with counts 1 to 4, the circumstances of which I will refer to later, imposing the following custodial sentences:
Count 1 (aggravated burglary) - three years
Count 2 (theft) - six months
Count 3
(indecent act with a child under the age of 16 years) - three years
Count 4
(indecent act with a child under the age of 16 years) - three years
The learned sentencing judge then directed that two years of the sentence imposed on counts 3 and 4 be cumulated on count 1. His Honour treated the sentences imposed on counts 3 and 4 as being prima facie concurrent (pursuant to s.16(1) of the Sentencing Act 1991 - "the Act") and, on that basis, his Honour directed that two years of the "effective sentence on counts 3 and 4 be served cumulatively on the effective sentence of three years on counts 1 and 2, making an effective sentence on counts 1 to 4 inclusive of five years".
His Honour then imposed the following sentences of imprisonment in respect of counts 5 to 7 (which were concerned with the appellant's second set of offending conduct to which I will refer later): count 5 (aggravated burglary) - three years, counts 6 and 7 (theft) - three months and six months respectively. His Honour then directed that one year of the effective sentence of three years on these counts be served cumulatively "on the sentences so far passed". In respect of count 8 (burglary) and count 9 (theft) (which were referable to the appellant's third set of offending behaviour) his Honour imposed sentences of imprisonment of three months and six months respectively and directed that "three months of the effective sentence of six months on counts 8 and 9 be served cumulatively on the sentences so far passed". As to the remaining two counts (which were concerned with the appellant's fourth group of offending conduct) his Honour sentenced the appellant to three years' imprisonment on count 10 (aggravated burglary) and three months' imprisonment on count 11 (theft), directing that "one year of the effective sentence of three years on [these counts] be served cumulatively on the sentences so far passed".
By notice filed 11 November 2003 the appellant sought leave to appeal against the above sentences on a number of grounds, to which I will refer later. On 30 July 2004 a judge of this Court granted the appellant leave to appeal against the sentences.
I now turn to describe the circumstances of the offending conduct referable to the above counts. At about 6.30 a.m. on 1 July 2001 the appellant entered unlawfully a bungalow or games room at the rear of a house in Ballarat. The house was occupied by a family, with two young girls, then aged five and nine years. The appellant's unlawful entry constituted count 1 on the presentment - aggravated burglary. Once inside the house the appellant took twelve stubbies of beer from the fridge and drank approximately one and a half of them. He then entered into the main house through an unlocked door while carrying the remainder of the stolen beer and took a candle from the mantelpiece which he lit. He used the light from the candle to make his way through the house, stealing cigarettes and cash (totalling $240) from wallets in the kitchen and the family room as he went. The theft formed the basis of count 2. The appellant then entered the bedroom of the two girls. He awoke them, telling them that he was their "dad", pulled down the pyjamas first of one victim then of the other, and proceeded to lick the genital area of each. This offending conduct was the subject of counts 3 and 4. The appellant left the house by the back door, still carrying the remainder of the stolen beer, and used keys that he had taken from the house to start the utility that belonged to the young victims' father. He used the vehicle to transport the stolen beer to his own house in Ballarat and then returned the vehicle to the victims' house and walked home from there. No charge was laid in respect of the appellant's unlawful use of the utility.
Approximately a month later, at about 1.30 a.m. on 2 August 2001, the appellant forced open a window at the rear of another house in Ballarat in which its occupant and her two children, then aged nine and five years, were asleep. He climbed into the house through the open window. That conduct comprised count 5 on the presentment. He ransacked the kitchen cupboards, locating a Commonwealth Bank keycard with the PIN number. He again used a candle to navigate through the house where he stole a plastic shopping bag containing five cans of alcohol. This conduct formed count 6 on the presentment. The appellant then walked down the passageway holding the candle and opened the front door. This awoke the sleeping occupant, who called out, thinking it was one of her children letting the cat out. She could hear a cigarette lighter flicking on and off and heard the appellant mumble something. The appellant then left the house, taking the keycard and the alcohol with him. After leaving the premises he walked to an automatic teller machine and there used the keycard that he had stolen to withdraw three separate amounts of $200 each. The theft of that money comprised count 7.
The appellant then proceeded to the rear of another house in Ballarat. There he gained entry to an unlocked garden shed. That entry comprised count 8 on the presentment. While in the shed he stole a cordless drill, a sander, a steering wheel, a radio cassette player and an Akubra hat, all of which had a value of approximately $900. This theft comprised count 9 on the presentment. He also gained entry to an unlocked old vehicle, but no charge was laid in relation to it.
The appellant then walked further down the street and, at approximately 2.30 a.m., entered a house through its rear door. That conduct was the subject of count 10 on the presentment. The occupant was awoken by the sound of coins being rifled on his kitchen bench and heard the lighting of a match. He could see the appellant's reflection in his fish tank and called out. The appellant ran out through the back door, taking with him the occupant's wallet, which contained approximately $70 in cash and personal papers. This comprised count 11 on the presentment.
The appellant's offending conduct received notoriety in the Ballarat community. The level of fear and concern about the "Candlelight Burglaries" was such that a meeting of concerned citizens was held in August 2001. The appellant was arrested in the early hours of 5 September 2001. Later that day the police executed a search warrant at his house. When interviewed by the police on 5 September 2001 the appellant made a "no comment" record of interview and was remanded in custody. At his request he was further interviewed on 17 September 2001 and made admissions to the offences committed at the first house (being the subject of counts 1 to 4).
At the time of the offending the appellant was a sad case. He had a long history of depression, alcohol and drug abuse that started at the age of 12, problems with his mental health, and was, particularly at that time, upset about his personal circumstances, including being concerned by the placement in a foster home of his four-year-old son and by the recent death of his father. The appellant was brought up in the Stawell area. He left school at the age of 17, having completed Form 3. He worked in a variety of manual occupations, including garbage collection, general labouring and as a bricklayer's labourer. As I have mentioned, the appellant had severe alcohol and drug problems and is plainly a recidivist. Indeed, at the time of the offending the appellant had consumed alcohol, ecstasy and Rohypnol. Dr Walton's report makes plain, however, that there is no evidence that the appellant suffered from alcohol and drug related brain injury. Dr Walton could provide no insight as to why the appellant engaged in "out of character" offending against young children and concluded on this issue that the offendings in question did not warrant the appellant being formally diagnosed as a paedophile. I put to one side for the moment the appellant's psychiatric illness, which he experienced when he was first incarcerated and which, according to Dr Walton, was largely resolved by the date of the report. I note that, while in prison, the appellant had undergone psychiatric intervention. He spent some months at the Thomas Embling Hospital in Kew. He was then moved to the Melbourne Assessment Prison and was later placed in St Paul's Psychiatric Unit in prison. We were told by his counsel that he is now serving his sentence in protective custody at the prison in Ararat. The appellant undertook in prison various rehabilitative activities, including a drug education course conducted by Moreland Hall, and, in an effort to improve his future employment prospects he gained, amongst other recognitions, a fork-lift ticket.
I now turn to consider the submissions of Ms Spowart for the appellant in support of the grounds of appeal.
Grounds 1 and 2 - the total effective sentence, the non-parole period and each of the individual sentences is manifestly excessive
These grounds can be considered together. It was submitted under cover of these grounds that the sentences are manifestly excessive having regard to the mitigating circumstances applicable here, more particularly the appellant's confession to the police, his plea of guilty, the fact that the offences occurred over two nights and the fact that the appellant's state of mind and judgment were, at the time of the offences, impaired by substance abuse. It was also said that the conduct constituting counts 3 and 4 was unpremeditated and of short duration and that the conduct constituting the remaining counts was "unremarkable".
The relevant question is whether the sentences imposed by his Honour, including the total effective sentence, are outside the range of sentences that were reasonably open to him, taking into account the seriousness of the offences and the appellant's offending conduct and balanced against matters personal to him, including any other mitigating factors and having regard to the relevant sentencing principles. That the offences committed by the appellant were very serious is apparent from the maximum custodial sentences prescribed by Parliament in relation to them, to which reference has already been made. The appellant's offending conduct was of a most serious kind. The sexual offences against the young girls were particularly distressing and, not surprisingly, had a detrimental effect on them and, no doubt, on their parents. Similarly, the burglaries put the occupants of the houses that he burgled in great fear for their safety. Moreover, the offending conduct involved at least some degree of premeditation and was carried out on two nights across a relatively lengthy period. On those nights, the appellant burgled four separate houses, in the middle of the night, when it must have been obvious to him that there were occupants who were asleep at the time and were likely to be frightened, if not terrified, upon discovering an intruder. As such, I consider that it is an over-simplification to put forward as a mitigatory factor, as the appellant's counsel did, that the offending took place on only two nights. It was also said by counsel that his Honour's finding that the offending conduct was premeditated was unsupported by the evidence, but I consider that it was open to his Honour so to conclude that the appellant planned to enter the subject premises and to burgle them. The appellant's sexually deviant behaviour towards the young girls may not have been premeditated in the relevant sense, but it was embarked upon against young children, one of whom was of a similar age to his son, and it is difficult to accept that he did not realise, notwithstanding his impairment by substance abuse, that his assault on them would terrify them and his conduct was likely to have a significant detrimental effect on them into the future. I also note that the appellant's criminal history is substantial and the current offending breached the suspended sentence that was imposed on him on 2 February 2001, although the matter was not drawn to his Honour's attention during the hearing of the plea in mitigation. I consider that his offending conduct and criminal history demonstrate a wanton disregard on his part for the law.
There are, however, a number of mitigating factors that operate in the appellant's favour, to most of which I have already referred and all of which were plainly taken into account by his Honour in his sentencing disposition. This includes his plea of guilty and demonstrated remorse and his confession to the police at the second interview, although, as I have said, that confession was limited to the first set of offences. Also, as I have noted, his Honour had regard to the appellant's prospects of rehabilitation and recognised his efforts towards that end, but was nevertheless understandably concerned about the appellant's prospects of success in that regard. For completeness, I mention that his Honour was also aware, and took into account for sentencing purposes, the fact that the appellant's state of mind was to some extent affected by his use of alcohol and drugs. As Ms Pullen for the respondent pointed out, however, it could not be said that the appellant had no knowledge of what he was doing. He was sufficiently clear-headed as to be able to perform a number of acts requiring some degree of alertness, such as finding a series of unlocked doors, telling a young child that he was her father (probably in order to keep her quiet while he molested her), and locating and repeatedly using a keycard and PIN number to extract funds from the bank account of one of his victims.
Notwithstanding the force of the mitigating factors to which I have referred, the aggravating circumstances were, as I have explained, considerable. The principles of general deterrence and denunciation of the appellant's conduct were of particular importance to the sentencing disposition. I also consider that special deterrence and just punishment were not irrelevant principles to apply in the sentencing process. Whether a sentence is outside the relevant range does not admit of much argument. Ms Spowart said everything that could be said in favour of the appellant's grounds of appeal, but I consider that, in light of the matters to which I have referred, neither the individual sentences imposed, the aggregate sentence for each period of offending nor the total effective sentence are manifestly excessive. In particular, I mention that I think the non-parole period is unexceptional given the appellant's prior record and doubtful prospects of rehabilitation.
It follows that I consider grounds 1 and 2 should fail.
Ground 3 - error in cumulation
As I have explained, his Honour sentenced the appellant, in the first instance, by reference to each separate or distinct episode of offending conduct. That is unsurprising given that each episode resulted in an invasion of a separate group of legally protected interests. The learned judge considered in respect of each set of criminal conduct that the sentences imposed on the individual counts should not be served wholly concurrently because this would result in a sentencing disposition that did not clearly or fairly reflect the criminality of the enterprise or the totality of all the crimes committed. Hence, his Honour's decision to order some cumulation of the sentences imposed on counts forming part of a discrete period of offending behaviour and, ultimately, to determine a total effective sentence of seven years and three months' imprisonment.
Under cover of ground 3 it was first submitted that the orders for cumulation produce uncertainty such as to vitiate the sentence. More particularly, it was said, it is impossible to determine from his Honour’s cumulation orders to which actual count the cumulation refers. Thus, it was said, the resultant sentences are bad for uncertainty. Subject to exceptions which are not relevant here, and which I shall therefore disregard, s.16(1) of the Act provides for a presumption of concurrency in respect of sentences imposed in respect of multiple offences, stipulating that “every term of imprisonment imposed on a person by a court must be served concurrently with any uncompleted sentence or sentences of imprisonment unless otherwise directed by the court.” In that respect, the sentencing judge is given a very wide discretion[1], although he or she must take care when ordering cumulation that the sentence is not crushing and does not offend the principle of totality. Each effective sentence and the total effective sentence must be a just and appropriate measure of the total criminality involved.[2] This requirement applies, as I have said, just as much to the effective sentence imposed in respect of each set of criminal conduct as it does to the total effective sentence that is ultimately passed. It is not claimed for the appellant that the effective sentences and the total effective sentence breach the principle of totality, but even if such a contention were implicit in the appellant's submissions, I would reject it. I consider that, as I have explained, the sentences were not outside the relevant range and each effective sentence reflected the serious criminality of the offending episode to which it relates. And the total effective sentence similarly reflects the totality of the appellant's criminal behaviour.
[1]Attorney-General v. Tichy (1982) 30 S.A.S.R. 84 at 92-93 per Wells, J.
[2]Postiglione v. The Queen (1997) 189 C.L.R. 295 at 307-308 per McHugh, J.
Furthermore, I do not accept the appellant's claim that it cannot be determined from his Honour's sentencing remarks to which actual counts the cumulation refers. Strictly,[3] in making orders for cumulation, his Honour should have specified that whole or part of the sentence imposed on a particular count should be served cumulatively upon that imposed on another count. But, had he done so, and given the prima facie presumption of concurrency, the same result would have been achieved, both in respect of the effective sentences imposed for each set of offending and in respect of the overall, total effective sentence imposed. For example, as the sentences imposed on counts 3 and 4 were wholly concurrent, having not been made the subject of an order for cumulation, it made no difference and produced no uncertainty to cumulate two years of the effective sentence on those counts on the effective sentence for counts 1 and 2. Similarly, given that the individual sentences imposed on counts 5 to 7 were wholly concurrent, it did not produce uncertainty to cumulate one year of the effective sentence of three years for those counts on the effective sentence for counts 1 to 4. The same can be said in respect of his Honour's remaining orders for cumulation. Accordingly, I consider that there is no uncertainty in respect of his Honour’s orders for cumulation as was contended for by the appellant.
[3]See R. v. D.H [2003] VSCA 220 at [14].
Consequently, I consider that the appellant's claim that the orders for cumulation produced uncertainty, and thus vitiate the sentence, must fail.
It was next argued under this ground that his Honour's cumulation orders are not authorised by the Act. In particular, it was said that the learned sentencing judge impermissibly imposed an aggregate sentence for each discrete episode of offending. In support of that contention the appellant relied on R. v. Troy Christie[4]. I have already said that s.16(1) of the Act operates to impose concurrency in respect of sentences imposed in relation to multiple offences unless the judge otherwise directs. In exercising the wide discretion to give a direction for cumulation, the sentencing judge is entitled, in order to reflect the total criminality of a discrete episode of offending, to order partial cumulation in respect of the relevant sentences before considering the appropriateness of the total effective sentence. In my view, Christie does not decide to the contrary as the appellant would have it. In that case the sentencing judge imposed an aggregate sentence without imposing separate sentences on the relevant counts. This plainly did not occur here. Rather, each count was the subject of an individual sentence and cumulation orders were made in respect of multiple counts, the sentences of which were to be served wholly concurrently. Moreover, as Ormiston, J.A., with whom Winneke, P. and Hedigan, A.J.A. agreed, explained in D.P.P. v. Grabovac[5]:
" … The ordinary principles as to cumulation require that the sentencing judge should as far as practicable identify separate events, 'episodes', or 'transactions' giving rise to specific counts or groups of counts and to recognize them by ordering at least a degree of cumulation. This is to avoid the appearance that an offender may commit a series of crimes after the first such crime with effective impunity if all sentences for a series of unconnected offences were to be served concurrently. Difficulty arises not so much in providing for a degree of cumulation, but in having proper regard to the principle of totality and in avoiding the imposition of an inappropriately crushing sentence."
[4][2000] VSCA 183.
[5][1998] 1 V.R. 664 at 676.
The difficulty envisaged by Ormiston, J.A., namely, avoiding the imposition of a crushing sentence, does not arise in this case for the reasons given. The learned sentencing judge here did no more than aggregate the sentences he had imposed in relation to a particular episode of offending in order to reflect the total criminality of that episode. It seems to me plain enough that such a course is authorised by the Act, as recognised by the principles explained in Grabovac.
Consequently, I consider that ground 3 must fail.
Ground 4 - no or insufficient weight given to appellant's mental illness
It was submitted under cover of this ground that Dr Walton's report and other evidence showed that, upon incarceration, the appellant suffered from an episode of psychological illness and was treated in the prison system. I have already referred to these matters. The appellant contended that this demonstrated the appellant's mental illness at the time of the offending and should have been, but was not sufficiently, taken into account by his Honour as is required by R. v. Tsiaras[6]. There is no doubt that his Honour gave due weight to the fact that the appellant had a fuddled mind at the time of the offending that was brought on by substance abuse. I consider, however, that there was no evidentiary basis for the learned sentencing judge to treat such impairment as moderating to any relevant degree the principles of general and specific deterrence. As Dr Walton explained in his report, and as I have already mentioned, it was highly likely that the appellant's psychological
disturbance emerged after he was incarcerated and it seems to have been the result of delirium tremens suffered by the appellant that were complicated by drug withdrawal. This illness seems to have been substantially resolved by 9 April 2002. Importantly, and as I have also mentioned, Dr Walton stated that there was no evidence that the appellant was suffering from any alcohol or drug related brain injury. In the circumstances, I consider that the psychological material that was before the sentencing judge was not such to attract the operation of the principles stated in Tsiaras, requiring him to moderate the weight that might otherwise be given to general and specific deterrence.
[6][1996] 1 V.R. 398.
I mention for completeness that, for the reasons I have briefly stated, I also reject the appellant's submission that his Honour's observation that the appellant must have understood the probable consequences of his actions on all the occupants involved and not only the children whom he had sexually violated, was not open to the sentencing judge.
Consequently, I consider that ground 4 should fail. In the circumstances, I would dismiss the appeal.
WINNEKE, P.:
I agree that the appeal should be dismissed. I think that Ms Spowart said all that could be said in support of the arguments advanced on behalf of the appellant. In the long run, it seems to me that the sentences imposed and the total effective sentence and the non-parole period were well within the range available to the judge in this case.
VINCENT, J.A.:
I agree that this appeal should be dismissed for the reasons advanced by Chernov, J.A. I would also like to commend Ms Spowart for her skilful presentation of submissions on her client's behalf.
WINNEKE, P.:
The formal order of the Court is that the appeal is dismissed.
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