R v Robazzini
[2010] VSCA 8
•12 February 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 656 of 2008
| THE QUEEN |
| v |
| TIZIANO GINO ROBAZZINI |
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| JUDGES | BUCHANAN and NEAVE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 2 February 2010 |
| DATE OF JUDGMENT | 12 February 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 8 |
| JUDGMENT APPEALED FROM | R v Robazzini (Unreported, County Court of Victoria, Judge Howard, 8 May 2008) |
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CRIMINAL LAW – Sentence – False imprisonment, causing injury intentionally and making a threat to kill – Adequate weight given to guilty plea – Whether sufficient weight given to appellant’s mental condition – Lack of sufficient evidence to link the appellant’s personality disorder to the offences – Appellant’s consumption of drugs and alcohol treated as an aggravating feature – Appellant aware of effects of consuming different drug cocktails – Total effective sentence five years and six months not manifestly excessive.
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| Appearances: | Counsel | Solicitors |
For the Crown | Mr S Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Appellant | Mr P J Doyle | Patrick W Dwyer |
BUCHANAN JA:
I agree with Neave JA, for the reasons her Honour has stated, that the appeal should be dismissed.
NEAVE JA:
On 6 May 2008 the appellant, Tiziano Gino Robazzini, pleaded guilty to one count of false imprisonment, three counts of causing injury intentionally and one count of making a threat to kill.[1] After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced him on 8 May 2008 as follows:
[1]The Crown withdrew the four other counts on the presentment as part of the negotiated plea.
Count
Offence
Term
Cumulation
1
False imprisonment
12 months’ imprisonment
3 months
2
Causing injury intentionally
18 months’ imprisonment
9 months
5
Causing injury intentionally
18 months’ imprisonment
9 months
7
Causing injury intentionally
18 months’ imprisonment
9 months
9
Making a threat to kill
3 years’ imprisonment
Base sentence
The orders for cumulation made by his Honour resulted in a total effective sentence of 5 years and 6 months’ imprisonment. His Honour fixed a non-parole period of 4 years’ imprisonment.
The appellant now appeals against that sentence.
Circumstances of the offending[2] and the offender
[2]The following facts are taken largely from the Crown opening, which was admitted save for allegations that the appellant assaulted the victim on two occasions in 2005.
The appellant had known the victim for approximately 30 years prior to committing the offences, which occurred on 30 and 31 May 2007. About a week earlier, on 23 May 2007, the appellant was sentenced by a County Court Judge to 18 months’ imprisonment on counts of falsely imprisoning and intentionally causing injury to another woman in 2006 (‘2006 offences’). As a consequence of that sentence being suspended for a period of 2 years, he was released from prison.
While on remand for the 2006 offences, the appellant remained in contact with the victim in this case. She came to Melbourne on the day of the appellant’s release, stayed with him overnight and took him to her home in Morwell. The appellant stayed at the victim’s home for about a week without incident.
During that week the appellant was unsuccessful in registering himself with a pharmacist to receive methadone, which he had been taking as a substitute for heroin while on remand. On 30 May 2007, the appellant took a cocktail of drugs, Valium, Serepax and painkillers, as well as some alcohol, having failed to locate a supply of methadone.
On the afternoon of that day, the appellant drove the victim to the central business district of Morwell and parked the car near a Salvation Army store. The appellant then repeatedly accused the victim of having affairs with other men while he had been in prison. The victim denied these allegations. The appellant told the victim to ‘tell me what I want to hear and I’ll stop doing it and leave you alone’ and hit her four times across her head and face. This assault, which opened a small cut on her ear, was the subject of count 2. The victim denied she had been with other men and explained that it would be a lie to say she had done so.
When the victim tried to get out of the car, the appellant stopped her by grabbing her pony-tail and pulling her towards him. This act was the subject of the false imprisonment count (count 1). He then drove to the premises of a medical practitioner, with whom he had an appointment. The victim waited in the car for the appellant while he was seeing the doctor.
A short time later the appellant and the victim visited another opportunity shop in which an employee asked the victim about the victim’s bleeding ear and the contusion to her mouth. She responded by saying that she must have scratched herself. The appellant and victim purchased a washing machine from this store and arranged for it to be delivered the next day.
Count 9 related to a threat to kill made to the victim later that day. After visiting a friend’s house in Traralgon where the appellant and the victim each drank a can of pre-mixed whiskey, the appellant and victim travelled towards Moe. During this period, the appellant continued to accuse the victim of being unfaithful and to assault her, hitting her on the right arm and leg. At some point along the freeway the appellant pulled the vehicle over and told the victim to unfasten her seatbelt. The victim refused but eventually complied after being struck on the head and told that the appellant was going to kill them both by driving the car into a tree. She unfastened her seatbelt, believing the appellant would carry out his threat. The appellant drove away and some time later instructed her to refasten her seat belt.
When the appellant and the victim arrived in Moe, the appellant told the victim to wait in the car while he went inside a house. On his return the appellant drove for a short distance, and then told the victim to drive. While the appellant slept the victim drove the car until it ran out of petrol somewhere outside Moe. After the victim walked to a phone box and arranged for assistance from the RACV, the appellant resumed driving the car and continued to physically and verbally abuse the victim.
While driving, the appellant grabbed the victim by her hair and wedged her head between his lap and the bottom of the steering wheel and kept striking the back of her head with his free hand. He hit her a number of times, on one occasion striking her head with such force that her head collided with the window. He also struck her in the mouth, opening up a cut to her lower lip. That injury is the subject of count 5.
On their return to the victim’s home in Morwell, the victim told her daughter and her daughter’s boyfriend that she had been in a fight in a pub, as the appellant had instructed her. She then went to bed after being hit on the back of the head by the appellant.
The next day she was woken up by the appellant who demanded a cigarette. After the victim returned from her daughter’s room with a cigarette the appellant struck the victim’s arm, complaining that she had taken too long. This injury caused a significant amount of bruising and is the subject of count 7.
The police were then contacted by the victim’s daughter and her boyfriend, and arrested the appellant. During the interview he admitted that he had ‘[hit] her in the right arm and the right leg‘ and slapped her a couple of times. He also admitted that he ‘scratched her ear a little bit’ and had threatened to kill them both by driving the car into a tree but only ‘as a joke’. He denied punching her and also denied wedging her head between the steering wheel and his lap.
The appellant was aged 47 at the time of offending and was 48 when he was sentenced. His parents were Italian and his father was a heavy drinker who was often aggressive. The appellant was brought up in Reservoir and Fitzroy. As a result of being teased at school about his Italian name, he began responding aggressively and fighting, and developed an interest in guns. He left school at 15 and began drinking and using drugs, including heroin, as a teenager. He was married in his mid-20s and separated from his wife about 20 years later, in 2004. He has a son and a daughter, aged about 4 and 13 respectively at the time of sentencing. In the late 1980s he was employed at a local newsagency and later became the manager. He continued in that position until 2003 until he had a quarrel with the owner and was jailed for confronting him with a handgun and threatening to kill him.
After his marriage broke up in 2004 the appellant began to use drugs more heavily. He was out of work and had two heart attacks at that time. In March 2006, the appellant picked up a sex worker in St Kilda and spent two days consuming very large quantities of amphetamines, heroin and Valium, with her. He then thought that she had stolen drugs from him and with two others assaulted and treated her brutally. The victim of the 2006 offences was tied up with a rope, dragged around on all fours, struck with a hammer and punched in the face over a period of several hours. Prior to committing those offences the appellant had been on the Credit Bail Program and his urine samples had been free of illicit drugs for five months.
The sentences imposed for the 2006 offences were said to reflect the fact that the appellant had adhered to the Credit Bail Program conditions.[3]
[3]R v Robazzini (Unreported, County Court of Victoria, Judge Howard, 8 May 2008) (‘Reasons’), [46] – [49].
He admitted 73 prior convictions arising from 22 court appearances.[4] The majority of those convictions were for property offences, including multiple counts of theft, burglary, possessing stolen property, handling stolen goods and destroying and damaging property. However, six of those convictions were for violent offences, with four counts for assaulting a member of the police force, and the two 2006 offences of unlawful assault and causing serious injury intentionally.
[4]The judge referred to 72 prior convictions being admitted. The discrepancy is immaterial.
Sentencing remarks
In sentencing the appellant his Honour referred to the following as mitigating factors:
· the appellant’s dysfunctional childhood and entrenched poly-drug addiction;
· the fact that he had previously led a productive working life and maintained a successful marriage and that he had avoided any convictions between 1993 and 2003;
· his lack of a personal relationship or other similar support in the years prior to these offences;
· his medical condition, which included his coronary arterial disease, the residual medical and psychological effects of his long term drug abuse, past diagnosis of hepatitis C and chronic low back condition. His Honour noted however that it had not been submitted that his medical condition would make imprisonment more onerous for him, that there had been no medical problems related to his incarceration over the past 11 months and that his general practitioner had said that his long term prognosis depended on his ability to abstain from illicit drug use;
· the fact that he had had a clear urine analysis during his period in prison; and
· his guilty plea.
His Honour said that the fact that these offences were committed only seven days after the offender received a suspended sentence for the 2006 offences was an aggravating circumstance. He rejected the submission made by defence counsel that the appellant’s moral culpability was affected by the fact that he had resorted to a cocktail of drugs because he could not get methadone.
His Honour said that:
You had the alternatives of trying to get methadone from the hospital or a doctor, but in any case you knew from previous experience that when you took an excess of drugs you lost control, became disinhibited and broke the law. Accordingly, I consider your conduct in becoming drug affected to be an aggravating feature of your offending, consistent with the principle outlined by the Court of Appeal in R v Hay.[5] You did not take drugs inadvertently. You knew what you were doing and acted intentionally in the commission of the offences.[6]
[5][2007] VSCA 147, [33] (Maxwell P), [17]–[18] (Buchanan JA with whom Whelan AJA agreed).
[6]Reasons, [59].
His Honour referred to a report by Dr David Phillips, the appellant’s general practitioner, a report by Mr Ian Joblin, a forensic psychologist and Dr Richard Keuneman, senior psychiatry registrar at the Victorian Institute of Forensic Mental Health. These reports were prepared in relation to the 2006 offences and were also tendered in support of the appellant in the plea hearing to which this appeal relates.
The judge said that although Mr Joblin’s report indicated that the appellant had a personality disorder, he did not say there was a link between the disorder and the 2006 offences. Further, neither of the reports indicated whether the appellant suffered from a personality disorder at the time of the 2006 offences and, if so, what effect the personality disorder had on the offences he had committed. Nor was there any material which suggested that a sentence of imprisonment would weigh more heavily on the appellant than it would on a person not suffering from a personality disorder. In these circumstances he did not consider that Verdins[7] principles were relevant in sentencing the appellant.
[7](2007) 169 A Crim R 581.
Finally, his Honour said that the offences were part of a continuing course of conduct involving three separate incidents over two days, that the assaults were cruel and unprovoked and terrified the victim, who believed she was going to be killed. His Honour considered that the appellant had poor prospects of rehabilitation.
Grounds of appeal
The grounds of appeal were as follows:
1.The learned sentencing judge erred in his assessment of the mitigating weight of the appellant’s guilty plea.
2.The learned sentencing judge erred in the exercise of his discretion to make orders for cumulation.
3.The learned sentencing judge erred in his consideration of the relevance of the appellant’s psychological state.
4.The learned sentencing judge erred in his consideration of the relevance of the appellant’s drug use at the time of offending.
5.The total effective sentence and non-parole period imposed are manifestly excessive.
Ground 1
Counsel’s submissions
Ground 1 alleges that the judge failed to attribute proper weight to the appellant’s guilty plea. Counsel for the appellant submitted that the judge had erred in relying on the following considerations to give diminished weight to the plea:
·the appellant’s admissions to police were not ‘full and frank’;
·a contested committal was conducted after which the appellant reserved his plea;
·the appellant could have pleaded guilty to certain counts at the committal;
·the appellant’s defence response, prepared for the case conference, denied assaulting or threatening the victim; and
·the plea was entered at the ‘last available’ opportunity in circumstances where there had been ample time for the appellant to negotiate with the Crown
In support of this ground, counsel relied on the recent decision of this Court in DPP v Pennisi.[8] In that case the Crown Prosecutor relied on the respondent’s failure to plead guilty to manslaughter when he was arraigned, in support of the submission that the sentence imposed on him was manifestly inadequate. The Court dismissed the appeal and in the course of doing so noted that:
The lateness of the plea offer certainly diminishes the value which might have been attached to an earlier plea. However, it was an offer which, if accepted, would have had the utilitarian benefit of preventing the necessity for a trial. As far as his failure to plead on arraignment is concerned, we accept counsel for Pennisi’s argument that there is, rightly or wrongly, a perception that there is a forensic disadvantage in pleading guilty to manslaughter in a murder trial, even where intent is the only real issue. Whether this is a correct perception or not is beside the point. Once the Crown has rejected the plea offer made before trial, there is no utilitarian purpose to be served by an accused pleading guilty to manslaughter on arraignment, even if, had he done so, he might have been able to have it taken into account on questions of remorse, contrition or the like.[9]
[8][2009] VSCA 322 (‘Pennisi’).
[9]Ibid [11].
Counsel submitted that, in the circumstances of this case, a forensic decision had been made that no guilty plea to any of the offences should be entered at the committal and that his Honour had erred in giving lesser weight to the guilty plea, because of this forensic decision.
Counsel further submitted that his Honour should not have taken account of the appellant’s denial of the assaults alleged by the Crown in the defence response relied upon at the case conference. Counsel submitted that the appellant had pleaded guilty to the various counts on the presentment once the Crown had agreed to charge him with a count of intentionally causing injury, rather than with a count of intentionally causing serious injury. The Crown had not entered into plea negotiations with the appellant’s counsel until shortly before the trial and therefore bore some responsibility for the lateness of the plea.
Counsel for the Crown submitted that the judge had simply recited the matters he had taken into account in determining the weight that should be given to the appellant’s guilty plea. No offer to plead to any of the offences was made on behalf of the appellant until shortly before the trial. He relied on R v Donnelly[10] in which Charles JA said that ‘[t]he assessment of an appropriate discount for a plea of guilty will vary greatly depending on many matters which include the strength of the case against the accused’.[11] Counsel said that the case against the appellant was a strong one and the judge had taken account of all relevant matters in assessing the weight of the plea.
[10][1998] 1 VR 645.
[11]Ibid 648.
Conclusion on ground 1
In my opinion ground 1 is not made out. In Pennisi a plea offer was made on behalf of the respondent, although he did not enter a guilty plea when he was arraigned. By contrast, in this case no formal plea offer was made until very shortly before the trial.
The judge took the guilty plea into account, commenting that the appellant’s guilty plea ‘sav[ed] considerable costs, time and inconvenience to the court and to witnesses’ and spared the victim the ordeal of being cross-examined at trial. He said that this was ‘very much a matter to be taken into account in [the appellant’s] favour’.[12]
[12]Reasons, [53].
The judge correctly noted that the guilty plea did not reflect any remorse on the part of the appellant. Although the plea had the utilitarian benefit of saving the costs of a trial, it was negotiated at the door of the court, after the victim had been cross-examined at a contested committal. As Nettle JA said in R v DW:
It is one thing to plead guilty at the door of the court when it looks like the game may be up. The law takes the view that that is worth a discount. But it is quite another to plead guilty immediately and thereby save the victims and the community any further burden. That is likely to attract a much larger discount and a good deal more respect.[13]
[13]R v DW [2006] VSCA 196, [19].
The case against the appellant was a strong one and he could have made an offer to plead to at least some of the offences at a much earlier stage in the proceedings.
Section 5(2)(e) of the Sentencing Act 1991 requires the court to have regard to the accused’s guilty plea and ‘the stage in the proceedings at which the offender did so or indicated an intention to do so’. The sentencing judge has a broad discretion as to the discount which should be given for a plea of guilty. Neither the judge’s sentencing reasons, nor the actual sentence imposed, indicate that he failed to take appropriate account of the appellant’s guilty plea.
Ground 3
Counsel’s submissions
Ground 3 alleges that his Honour erred in dealing with the appellant’s mental condition. Counsel for the appellant submitted his Honour erred in two respects. First, contrary to R v Verdins[14] the judge had taken the view that the appellant had to have a definitive psychiatric diagnosis, before his mental disorder or condition was relevant to the exercise of the sentencing discretion. In support of that submission he referred to his Honour’s statement that it was ‘clear that Dr Keuneman did not reach a concluded view and he gave no definitive diagnosis’.[15]
[14](2007) 16 VR 269 (‘Verdins’), 270-2 (Maxwell P, Buchanan and Vincent JJA).
[15]Reasons, [62].
Secondly, the judge should have inferred that the appellant’s personality disorder had reduced his moral culpability and required general deterrence to be ‘sensibly moderated’ in sentencing him. Counsel submitted that his Honour had wrongly considered that because the psychiatric or psychological reports did not deal specifically with the appellant’s moral culpability for the offences, no such inference could be drawn. In R v Wise[16] Ashley JA said that it was not sufficient for a psychological or psychiatric report to simply refer to an offender’s abnormal mental state, without explaining how it was relevant to the matters required to be taken into account under Verdins[17] principles. However this did not preclude the Court from making inferences relevant to Verdins in appropriate cases.
[16]R v Wise [2007] VSCA 266, [31].
[17](2007) 16 VR 269, 276.
Counsel for the appellant submitted that the expert reports showed that the appellant’s personality disorder compromised his ability to deal with conflicts in relationships. The opinions expressed required the judge to infer that the disorder influenced the appellant’s reactions to the victim’s alleged infidelity and reduced his moral culpability.
Counsel for the respondent submitted that the judge took proper account of the authorities governing the use of psychological and psychiatric reports for sentencing purposes. He referred to the discussion during the trial between the judge and the appellant’s defence counsel about the use of the psychological reports and to his Honour’s reasons relating to the lack of evidence of a link between the appellant’s mental condition and his offending.[18]
Conclusion on ground 3
[18]Reasons, [60]-[68].
When read in context, it is clear that his Honour’s remark that Dr Keuneman did not make a definitive diagnosis was simply a description of the contents of that report. His Honour clearly appreciated that Verdins is not concerned with the classification or diagnosis of a particular mental condition, but with the effect of that condition in reducing the offender’s moral culpability or its relevance to other matters discussed in that case. Accordingly I would reject the submission that his Honour did not apply Verdins because of Dr Keuneman’s failure to refer to a definitive diagnosis.
Dr Keuneman’s report also said that there was no evidence to suggest that the appellant had a major depressive disorder and that his mood symptoms were probably connected with his illicit drug use. Alternatively they might reflect ‘an underlying low-grade dysthymic disorder’ which is ‘often a common (and defining feature) of a borderline and/or antisocial personality structure’.
Dr Keuneman did not consider that the appellant’s depressive symptoms had any direct relation to the 2006 offences and said that his description of the offences suggested that they were instrumental, in the sense that the assaults and threats were intended to threaten or coerce the victim into handing back items which he believed were missing. Dr Keuneman considered that the appellant’s threshold to developing acute anger and aggression was lowered by the disinhibiting effect of drugs. He noted that the appellant:
… [had] a prior history of similarly serious and apparently violent threats to kill in 2003, again apparently instrumentally motivated, and in the context of reported heavy amphetamine [use] around that time …
Mr Joblin’s report said that:
… Mr Robazzini is appropriately diagnosed with a personality disorder. That means that when he encounters difficulties he responds in a certain manner and that had been the situation over all of his life.
His Honour took the view that there was insufficient evidence to link the appellant’s personality disorder to the offences for which the appellant fell to be sentenced and no evidence suggesting that the sentence to be imposed would weigh more heavily on the appellant than on a person not suffering a personality disorder.
I have some difficulty with his Honour’s comment that there was no evidence as to whether the appellant suffered from a personality disorder at the time of the offending. As I understand it, a personality disorder is a condition with a continuing effect and does not have a sudden onset as may be the case for depression or some other forms of mental illness.
However I do not consider that his Honour erred in concluding that there was ‘an abundant lack of necessary evidence and opinion’ on the link between the appellant’s personality disorder and his offending.
It was not shown that the appellant’s reasoning capacity was affected by a personality disorder. As discussed above, the appellant, in his police interview, denied having done more than giving the victim ‘a couple of slaps’ and said he had not punched her, evidencing a clear understanding that it would be wrong to do so. He said that the threat to drive the car into a tree was ‘a joke’. He also instructed the victim to explain her injuries to her daughter by saying that she had got into a fight in a pub.
The appellant had a long history of violent offending. As Dr Keuneman noted, a number of the previous offences committed by the appellant were motivated by his intention to force victims to do as he wished. In this case, the appellant hit the victim because he wanted to force her to admit to infidelity. In my opinion his Honour correctly concluded that there was insufficient evidence that the appellant’s moral culpability, or the significance of general or specific deterrence, was reduced because the appellant had a personality disorder.
Ground 3 therefore fails.
Ground 4
Ground 4 alleges that the judge erred in treating the appellant’s consumption of drugs prior to offending as an aggravating feature.
Counsel for the appellant challenged his Honour’s reliance on R v Hay,[19] a case in which consumption of alcohol was treated as an aggravating feature because of the offender’s knowledge of his propensity to act violently when drunk. That case was distinguishable, it was said, because the appellant in this case was unaware that the combination of drugs he took would cause him to act violently. Counsel submitted that, as in R v Arvanitidis,[20] there was insufficient evidence to support a finding that the appellant was aware of the consequences of taking the drugs that he took before he offended.
[19][2007] VSCA 147.
[20][2008] VSCA 189, [42] (Redlich JA).
Counsel for the appellant referred to R v Martin in support of the submission that the judge was required to consider ‘what the probable consequences of the ingestion of the particular drug by the particular offender were, and whether the offender foresaw those consequences’.[21] It was said that the appellant’s experience in 2006 of acting violently after taking particular drugs could not have made him aware that he might also act violently if he took different drugs.
[21](2007) 181 A Crim R 352, 361 (Maxwell P, Nettle and Redlich JJA).
Before committing the 2006 offences, he had taken a significant quantity of heroin, amphetamines, cannabis and Mogadon and Valium tablets. By contrast, he had taken tranquillising drugs (Valium and Serepax), painkillers and alcohol before this incident of offending. Further, the drugs were taken as a substitute for methadone, which he had been unable to obtain, so that his drug taking could not be considered as involving pre-meditation in the sense described by Buchanan JA in R v Hay.[22] For these reasons his Honour was required to treat the appellant’s ingestion of drugs as a neutral factor in sentencing him.
[22][2007] VSCA 147, [18].
Counsel for the Crown submitted that there was sufficient evidence to support his Honour’s findings.[23] He argued that the appellant’s ingestion of a cocktail of drugs and alcohol occurred only seven days after he had been sentenced for violent offences also fuelled by the ingestion of a cocktail of drugs. Thus the appellant must have been able to foresee the possibility that he would act violently if he took another such cocktail.
Conclusion on ground 4
[23]DPP (Vic) v Dowie [2009] VSCA 154, [19]-[20] (Maxwell P, Vincent JA and Coghlan JJA); DPP (Vic) v Avci [2008] VSCA 256, [45]–[47] (Maxwell P, with whom Buchanan and Redlich JA agreed). DPP (Vic) v Smeaton [2007] VSCA 256, [14] (Nettle JA, with whom Maxwell P and Dodds-Streeton JA agreed).
In my opinion his Honour correctly treated the appellant’s drug taking as an aggravating factor. The logical implication of the submission made by counsel for the appellant is that drug or alcohol consumption at the time of offending cannot be treated as an aggravating factor unless the appellant has previously offended after taking exactly the same drug or drugs (and perhaps even the same quantity of that drug). That view should be rejected.
The question the judge was required to ask himself was whether the appellant could reasonably have foreseen that he might act violently if he took a cocktail of drugs. The appellant had been a poly-drug user for many years. In 2003 he threatened to kill his employer with a gun, when he was a user of amphetamines and cannabis. The 2006 offences also occurred after he had taken a mixture of illicit and legal drugs. He had some understanding of the effects of drugs on him, reporting to Dr Keuneman that:
… for over 30 years he had noticed a tendency in himself towards recurrent anger and ‘snapping easily‘ at other people, which he himself ascribed largely to his many years of drug usage.
Dr Keuneman observed that the appellant had ‘some insight into the role of a lifetime of illicit drug use … and his propensity to act erratically or violently with these substances on board’. Mr Joblin also said that the appellant’s drug use had a disinhibiting effect. It can be assumed that he was aware of these opinions.
If a person acts violently after taking a legal or illicit drug for the first time, he may be unaware of the effect that the drug may have on him, so that his drug use should not be taken into account as an aggravating factor. In this case however, the appellant had used a number of different drugs for many years. He was well aware that they had a disinhibiting effect on him. His moral culpability is not reduced because the ‘cocktail’ he took before he committed these offences was not precisely the same as the different mixtures of drugs he may have taken on other occasions when he acted violently.
At first sight the submission that his Honour should not have regarded the appellant’s drug use as an aggravating factor because he had tried to obtain methadone before committing the offences, was more attractive. In Sebalj,[24] this Court held that an offender who suffered a psychotic reaction while attempting to withdraw from drugs was entitled to rely on his psychosis as a mitigating factor. However the circumstances of this case differ substantially from those in Sebalj, where the applicant had tried to see a doctor and sought help from the police and admission to a hospital before his psychosis caused him to kill his girlfriend. I agree with his Honour that in this case the appellant should have made greater attempts to obtain assistance from a doctor or the hospital, because of his awareness of the effect of drugs upon him.
Grounds 2 and 5
[24][2006] VSCA 106.
Counsel’s submissions
Under these grounds the appellant contends that the judge erred in the orders he made for cumulation and that the total effective sentence was manifestly excessive.
Counsel for the appellant submitted that the false imprisonment (count 1) was constituted by his client holding the victim’s pony-tail to prevent her from leaving the car and occurred while he was assaulting her (count 2). His client had been sentenced to 18 months’ imprisonment on the latter count and the judge should therefore have ordered that the sentence imposed on count 1 be served concurrently with the sentence imposed on count 2. In support of that submission counsel referred to the judge’s description of the false imprisonment as being of a ‘technical’ nature and of ‘very short duration’.[25]
[25]Reasons, [13] and [74].
He further submitted that the sentence imposed on the base count (i.e. count 9) was at the higher end of the statistical range for that offence, according to the Sentencing Snapshot.[26] The judge was therefore required to consider the totality principle to avoid constructing an excessive total effective sentence.
[26]Sentencing Advisory Council, Sentencing Snapshot No 87: Making a Threat to Kill, June 2009, figure 6.
Counsel said that the fact that 2 years and 6 months of the total effective sentence of 5 years and 6 months was the product of cumulation, showed that the orders for cumulation were excessive. The offences occurred within a short period of time and a much greater degree of concurrency should have been ordered.
Counsel for the respondent submitted that his Honour had identified the factual circumstances that distinguished count 1 from count 2 and that the order for cumulation was a modest one.[27] The individual sentences and the total effective sentence were appropriate having regard to the continuing nature of the offending, the effect on the victim and the appellant’s long history of violent offending.
[27]Reasons, [11]-[13] and [74].
Conclusion on grounds 2 and 5
In my opinion grounds 2 and 5 are not made out. I consider that the orders for cumulation fell within the range of the sentencing judge’s discretion. His Honour was required to have regard to the nature of the offences, the fact that they were spread out over a period of two days and the victim’s frightening ordeal.
The appellant behaved with appalling cruelty to a woman who had attempted to help him after he was released on a suspended sentence. The threat to kill (count 9) was a serious offence. The victim was terrified and believed that she would die. In her victim impact statement she said that as a consequence of the offences she suffered from anxiety attacks, did not feel comfortable with men, and was unlikely to become involved in another relationship.
The appellant’s only excuse for the abuse was that he believed the victim had been unfaithful to him. He had no compunction in attacking a woman with whom he was in an affectionate relationship. He showed no remorse for the offending, and in his police interview, attempted to minimise the effect of what he had done.
The appellant had extensive prior convictions for violent offences, including false imprisonment and making a threat to kill. Only seven days before these offences occurred the appellant had been released on a suspended sentence of imprisonment for conduct of a similar nature. His history of violence required general and specific deterrence to be given considerable weight.
As has frequently been said by this Court the ground of manifest excess ‘does not admit of much argument’ and is difficult to sustain.[28] In my opinion neither the individual sentences, the total effective sentence nor the non-parole period fell outside the range of the reasonable exercise of the judge’s sentencing discretion.
[28]R v Abbott (2007) 170 A Crim R 306, 309 (Maxwell P); R v Langdon (2004) 11 VR 18, 30-2 (Gillard AJA).
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