R v Roach
[2005] VSCA 162
•8 June 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 227 of 2004
| THE QUEEN |
| v. |
| VICKI LEE ROACH |
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JUDGES: | ORMISTON, CHARLES and CALLAWAY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 June 2005 | |
DATE OF JUDGMENT: | 8 June 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 162 | |
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Criminal Law – Sentencing – Burglary, theft, reckless conduct endangering persons, negligently causing serious injury – Threats falling short of defence of duress – Appellant's disadvantaged background – Factors relevant to sentencing for negligently causing serious injury – Six years' imprisonment with non-parole period of four years not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D.A. Trapnell | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr L.C. Carter | Robert Stary & Associates |
ORMISTON, J.A.:
In this matter I will ask Callaway, J.A. to deliver the first judgment.
CALLAWAY, J.A.:
The appellant, who is now aged 46, pleaded guilty in the County Court to one count of burglary (count 1), one count of theft (count 2), one count of conduct endangering persons (count 3) and two counts of negligently causing serious injury (counts 4 and 5). The maximum custodial penalties for those offences are ten years' imprisonment for burglary and theft and five years' imprisonment for conduct endangering persons and negligently causing serious injury. The appellant admitted 125 previous convictions or findings of guilt from 23 court appearances between February 1976 and January 2003. The last court appearance, accounting for ten of those previous convictions, should not have been included on the further presentment. Her previous convictions were mainly for drug related offences and offences of dishonesty, but there were also six driving offences, including careless driving and failing to stop after an accident. In March 2002 she had been sentenced to an intensive correction order on charges of burglary, theft, handling and recklessly causing injury. She breached the intensive correction order. The order was cancelled and she was sentenced to six months' imprisonment.
The learned judge heard a plea for leniency on the appellant's behalf, in the course of which she herself gave evidence. His Honour was mistakenly provided with an earlier version of the presentment in which count 3 was conduct endangering life. He was, however, correctly informed of the maximum custodial penalty and referred to it in his sentencing remarks. The error having been brought to his attention, after the sentence was passed, his Honour said that it would have made no difference: the appellant's driving still warranted two years' imprisonment, of which only 12 months would be made concurrent. A ground relating to the erroneous version of the presentment has been abandoned.
The appellant was sentenced to two years' imprisonment on count 1, 12 months' imprisonment on count 2, two years' imprisonment on count 3, three years' imprisonment on count 4 and 12 months' imprisonment on count 5. Directions for concurrency and cumulation resulted in a total effective sentence of six years' imprisonment, in respect of which a non-parole period of four years was fixed. The directions for cumulation and concurrency are imperfectly expressed. Among other things, the sentence imposed on count 4 should have been the base sentence, but the sentence does work and his Honour's intention is clear.[1]
[1]
Leave to appeal was granted on 1st April 2005. Omitting the ground that was abandoned, there are four grounds in the full statement filed pursuant to rule 2.09. They read:
"1.The learned sentencing judge erred in his assessment of the applicant's moral culpability by giving insufficient weight to the threats made to her by Mark O'Neill in the course of the offending.
2.The learned sentencing judge erred by giving little if any weight to the applicant's Aboriginality, including the impact of her childhood separation.
3.The learned sentencing judge erred by failing to impose, as was his stated intention, a '... lower than usual non-parole period'. (reasons for sentence, paragraph 34).
5.The individual sentences, non-parole period and total effective sentence are manifestly excessive."
Before turning to counsel's submissions I shall say something about the circumstances of the offences. At 3.45 a.m. on Saturday 14th December 2002 the owners of a milk bar in Mordialloc were awaked by the shop alarm. They heard voices inside the shop and telephoned the police. In the shop were the appellant and Mark O'Neill, who had gained entry by kicking in the front door. A nearby resident saw them emerge carrying a garbage bag. They had stolen $170 cash from the till, $8,200 worth of cigarettes and $580 worth of phone cards. Those events were the foundation for counts 1 and 2, except that the phone cards were not mentioned in count 2.
The stolen items were placed in the boot of O'Neill's car. The appellant drove off with O'Neill as the passenger. Neither of them was licensed. As she did so, the first police car arrived and began following them. The appellant increased her speed and the police car activated its emergency lights and siren. A chase ensued and other police vehicles were summoned by radio to assist. The appellant did slow her vehicle down in built-up Dandenong but, both before and after the built-up area, she greatly exceeded the speed limit, for example 130 kilometres per hour in an 80-kilometre per hour zone and 120 to 130 kilometres per hour along the South Gippsland Highway.
As the appellant's vehicle approached the intersection with Webb Street, Narre Warren, the traffic lights were red. Ahead, in the centre of three lanes and stationary at the lights, was a Holden Commodore driven by 21-year-old Nathan Hahn. He saw the approaching police car in his rear view mirror and then a second set of lights directly behind him and closer still. He tried to move his vehicle forward to escape the appellant's vehicle but the latter, travelling at 134 kilometres per hour, smashed into him from the rear. At the time of driving, the appellant had alcohol, oxazepam, temazepam, two kinds of diazepam, morphine and a metabolite of tetrahydrocannabinol in her blood. Her blood alcohol reading was .034 per cent. Count 3 related to the entirety of the driving.
The impact caused both vehicles to be engulfed in flames. Mr Hahn could not escape. The doors could not be opened and the police were driven back by heat and flames. Fire extinguishers were of no avail. The police thought the occupants must have perished, but Mr Hahn managed to escape through the window. He was on fire, with extensive burns and melted hair. He was airlifted to hospital with burns to 45 per cent of his body, comprising his scalp, face, ears, back, arms, knees and internally to his airway. He required several operations, extensive skin grafts and the insertion of wires into his fingers. His victim impact statement and those of his mother and brother make, as one would expect, distressing reading. Quite apart from the terrible pain he endured, Mr Hahn has been scarred externally and emotionally for life. The injuries to him are the subject of count 4.
Count 5 relates to the injuries sustained by O'Neill, who was also conveyed to hospital. He suffered forehead abrasions, lacerated gums, a deep open laceration to the left knee, full thickness burns to the right leg and abrasions to the right wrist. The appellant sustained injuries that included fractures to her ribs, wrist, sternum and skull.
The judge referred to the circumstances of the offences and the terrible injuries sustained by Nathan Hahn. His Honour read from Mrs Hahn's victim impact statement and said that he hoped that the sentence passed would demonstrate how seriously the courts and the community view such offending. Unfortunately, as has often been observed, the maximum penalty for negligently causing serious injury is out of kilter with the maximum penalties for related offences. The only response open to the courts, in cases of such gravity as the present, is to impose a term of imprisonment as close to the maximum as other principles of sentencing will allow. Those principles include, but are not limited to, any entitlement to a discount for pleading guilty.
His Honour also referred to the appellant's personal background, including her having been removed from her mother at the age of two and raised by foster parents in circumstances in which, after leaving them, she became delinquent and addicted to drugs. She formed a series of damaging relationships with men, of which that with O'Neill was only the most recent. Mr Carter submitted that his Honour attached insufficient weight to the link between the appellant's childhood separation and her subsequent offending, but the plea and the sentencing remarks show that he took full and sympathetic account of her background. For that reason, in my opinion, there is nothing in ground 2 and I do not propose to say anything more about it.
The judge also referred to the appellant's attempts to rehabilitate herself, but recorded that Mr Simmons, a psychologist whose report was before the court and who gave evidence on the plea, was of the view that no real progress had been made in that regard. His Honour accepted that the appellant was genuinely remorseful and had "some comprehension" of the enormity of her conduct and its effects on Mr Hahn. I shall say more later about his assessment of her evidence and the threats referred to in ground 1. He concluded his sentencing remarks as follows:
"32. I take into account in sentencing you your background as set out in the reports of Mr Simmons. I accept that you were the subject of abusive behaviour and threats from O'Neill; your judgment was clearly clouded at the time, as I previously mentioned. You pleaded guilty and saved the community the time and expense of a trial, and more importantly, you saved Mr Hahn the further ordeal of giving evidence. When coupled with what I find to be genuine remorse, you are entitled to and receive a substantial discount to the sentence I would otherwise impose but for that plea.
33. The crimes you have committed are extremely serious. The burglary was substantial and the proceeds significant. Your driving was a genuine deadly danger to members of the public and the collision and injury to Mr Hahn were the near inevitable consequences of your behaviour. In my view, general deterrence must be the paramount sentencing consideration for offences of this type. To drive in the manner you did in an attempt to avoid apprehension is simply outrageous. When combined with the injuries you caused Mr Hahn a substantial period of imprisonment is required to deter others minded to act in a similar way.
34. I take all factors relevant to you into account in sentencing you, and intend to reflect your prospects of rehabilitation by the imposition of a lower than usual non-parole period. I am unable to accede to the request of your counsel and your own request in Exhibit A, your letter to the Court, that I sentence you to a community-based disposition. Your criminal record is simply too extensive and your crime is too serious for such a course."
Mr Carter argued ground 1 first, beginning with the appellant's evidence on the plea. She said that, following the burglary and theft, when she saw a police car, she intended to pull over and did in fact slow down. The reason she continued to drive was that O'Neill threatened to kill her. He continued to urge her to go faster. She took his threat seriously because she had previously been subjected to violence from him and he had boasted of his violence to others. The judge accepted that evidence but, counsel said, he gave insufficient weight to the duress, falling short of a defence, exerted by O'Neill. There was no express finding in the sentencing remarks that the appellant's moral culpability had been reduced and general deterrence was said to be the paramount sentencing consideration when, by reason of the threats, the appellant's conduct was not the product of reasoned decision-making.[2] Alternatively, ground 1 was relied on as a particular of manifest excess.
[2]Counsel referred to Fox and Freiberg, Sentencing, 2nd ed., at para. 3.409.
It is true that, although he did not accept all the appellant's evidence, the judge did accept that O'Neill's threats motivated the appellant to drive as she did and that she took those threats seriously because of the history of violence directed towards her. There was an element of "battered woman" syndrome. Nevertheless, his Honour said, the police were present and protection would have been immediately available to her. I appreciate that she would have feared what O'Neill might do subsequently, but it is one thing to engage in shop-lifting or the like under a threat of violence; it is another thing altogether to engage in conduct so dangerous that it results in the kind of injuries sustained by Mr Hahn. General deterrence is not excluded by threats. On the contrary, general deterrence may provide a counter-threat. The judge was not in error in saying that general deterrence must be the paramount sentencing consideration for offences of the kind the subject of counts 3 to 5 and that a substantial period of imprisonment was required to deter others minded to act in a similar way. I do not consider that his Honour undervalued the threats from O'Neill, particularly when the sentences he imposed on counts 3 to 5 are taken into account.
It is convenient to deal with grounds 3 and 5 together. Mr Carter argued that, notwithstanding the judge's observation that he was fixing a "lower than usual" non-parole period, a non-parole period of four years in relation to a head sentence of six years' imprisonment was not unusual. That is so, but his Honour may have meant only that the non-parole period was lower than might otherwise have been the case. The real question, as counsel acknowledged, is whether a lower non-parole period was called for. In my opinion, it was not. As Mr Trapnell pointed out, the judge took a guarded view of the appellant's prospects of rehabilitation. Her recent breach of an intensive correction order was significant. That order was imposed following the commission of a domestic burglary in company with another male co-offender, in the course of which the victim was assaulted by the appellant and she drove away from the scene, damaging property in the course of escaping.
Mr Carter further argued that the individual sentences and the total effective sentence were manifestly excessive, having regard to the matters to which he had referred in his earlier submissions, the appellant's "early guilty plea", "the accepted evidence of genuine remorse" and the influence of O'Neill. All the offences being part of a continuing episode, he contended that a greater measure of concurrency was warranted. Counsel referred to the maximum penalties and concluded by submitting that excessive weight had been given to the impact on Mr Hahn, whilst there had been a failure to reflect a degree of mercy in the sentence.
I quite understand that the appellant is entitled to consideration because of her disadvantaged personal background, but the judge was not bound to show more leniency than he did, and he certainly did not give excessive weight to the impact on Mr Hahn. Three years' imprisonment on count 4 was a moderate sentence. His Honour acknowledged, in the passage that I have read from the sentencing remarks, that the appellant's plea of guilty entitled her to a substantial discount. In addition to the matters to which he referred, it is to be borne in mind that the plea to the counts other than count 3 was first indicated in November 2003 and the plea to count 3 was forthcoming when the Crown agreed that that count should be conduct endangering persons rather than conduct endangering life. Nevertheless, in my opinion, when full account is taken of those matters, it cannot be said that the individual sentences or the total effective sentence are outside the range.
I would dismiss the appeal.
ORMISTON, J.A.:
I agree.
CHARLES, J.A.:
I also agree.
ORMISTON, J.A.:
The order of the Court therefore is that the appeal be dismissed.
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Compare R. v. Heinz; Director of Public Prosecutions v. Heinz [2005] VSCA 124 at [14] and
[84]-[85].
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