R v Wordie
[2003] VSCA 107
•13 August 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.139 of 2002
| THE QUEEN |
| v. |
| ROBERT JOHN WORDIE |
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JUDGES: | PHILLIPS, C.J., VINCENT, J.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 April 2003 | |
DATE OF JUDGMENT: | 13 August 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 107 | |
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Criminal Law – Sentencing – Appeal on ground of manifest excess – Intentionally causing serious injury – Stabbing of female partner – Attempted aggravated burglary of female victim's premises – Harassing of witness being female victim – Appellant in borderline range of intelligence and with deleterious medical conditions - Relevance of aboriginality – Sentences not excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G.J.C. Silbert | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr G.J. Thomas | Victoria Legal Aid |
PHILLIPS, C.J.:
I have had the benefit of reading the judgment of Cummins, A.J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefore.
VINCENT, J.A.:
I agree with the disposition of this matter as proposed by Cummins, A.J.A. I do so for the reasons advanced by him in his judgment which I have had the opportunity of reading in draft form.
CUMMINS, A.J.A.:
This is an appeal against sentence imposed upon the appellant following a plea of guilty by him to one count of intentionally causing serious injury (Count One) and one count of attempted aggravated burglary (Count Two). The victim of the first offence was Sandra Harrison, aged 44 years, with whom the appellant had a relationship. The offence occurred at North Fitzroy on 22 November 2000, when the appellant stabbed Ms Harrison a number of times to her chest and other parts. Count Two occurred at Collingwood on 7 July 2001 when the appellant (having been charged with Count One and having been released upon bail a term of which was that he not contact prosecution witnesses) went to the home of Ms Harrison and in an attempt to gain access thereto smashed a window. The appellant had numerous prior convictions. On Count One the appellant was sentenced to 8 years' imprisonment. On Count Two he was sentenced to 3 years' imprisonment. A summary offence (harassing a witness, being the victim Ms Harrison, on 16 December 2000) was also dealt with at the same hearing by the learned sentencing Judge. The appellant pleaded guilty to that charge and was sentenced to 3 months' imprisonment for that offence. His Honour directed that one year of the sentence imposed upon Count Two and all of the sentence imposed upon the summary charge be served cumulatively upon the sentence imposed upon Count One, making
a total effective sentence of 9 years 3 months' imprisonment. The appellant was directed to serve a minimum term of 5 years 9 months' imprisonment before becoming eligible for parole.
By notice filed 11 June 2002 application for leave to appeal was made on the following grounds:
(1) That the sentence was manifestly excessive in the light of the circumstances of the offences, the disabilities of the applicant, and the applicant's severe difficulties in a custodial environment;
(2) that the Judge erred in taking into account two incidents which were alleged to have occurred at court on 12 November 2001 and 8 February 2002 in passing sentence; and
(3) that the Judge erred in failing to take into account in fixing sentence the severe difficulties experienced by the applicant in a custodial environment.
On 25 October 2002 leave to appeal pursuant to s 582 Crimes Act 1958 was granted by a Judge of this Court.
At the time of the offence constituted by Count One, the appellant was 46 years of age. He had (upon later psychological testing) a full scale intelligence quotient of 75. He had 80 previous convictions (being 23 findings of guilt and 29 convictions) from 34 court appearances, including multiple convictions for assault, assault causing grievous bodily harm and assaulting police officers. All the convictions (apart from two arson convictions in the County Court and to which I shall later refer) were in the Magistrates' Court. Nearly all the convictions involved fines or community based orders. One, in 1979, for assault causing grievous bodily harm involved a wholly suspended sentence of six months' imprisonment. In 1985 the appellant was convicted of unlawful assault and resisting police and was sentenced to 2 months' imprisonment on each charge cumulatively with a total effective sentence of 4 months' imprisonment with such sentence to be served at an attendance centre.
The female victim was very seriously injured in the first offence and was lucky to be alive. Thereafter she lived in fear of the appellant.
The circumstances constituting the offences may be summarised as follows (taken from the agreed summary of evidence herein).
For about five months leading up to the event the subject of count 1, the appellant had been involved in a relationship with the victim, Sandra Lee Harrison. They had been seeing each other as a couple for that period of time, although they had known each other for slightly longer. The relationship was marked by the appellant's frequent drunkenness and by many violent acts by him towards Ms Harrison when he was drunk. His violent and aggressive behaviour towards her had been a cause of conflict in the relationship. Four times they had separated as a result, but the appellant would always ring up and apologise for his behaviour. This had always led to a reconciliation, but Ms Harrison had repeatedly told the appellant she would not put up with the behaviour any more. Prior to 22 November 2000, she had told the appellant that he needed to get away for a while to try to work himself out. She had told him that if his poor behaviour continued towards her she would break off the relationship. He agreed to go away, and had apparently planned a trip to Warrnambool.
This trip was one topic of conversation when the appellant came over to Ms Harrison's house in Collingwood on the morning of 22 November 2000. They commenced to drink cans of Victoria Bitter at about 11 a.m. After a fairly short time, Ms Harrison became aware of a hunting knife that was in the pocket of the appellant's jacket. She asked him what he was going to do with it, and he said "I'm going to kill some bastard", or something similar to that. She asked him who, and he said "Never mind, I don't know … Don't worry about it". The appellant placed the knife back in the inside pocket of the jacket and the two kept drinking. They stayed at her house drinking beer and some vodka until about 5.30 pm. Then they left and went to the house of a friend of hers in Clifton Hill, and continued drinking beer. They stayed there for a couple of hours. During the time there, the appellant became quite argumentative with the friend. After some time, the appellant said that he wanted to go. Not wanting to cause trouble, Ms Harrison agreed to leave, although she was not yet ready to do so. They went to her car, and she drove the two of them away from Clifton Hill. The appellant was seated in the passenger seat, wearing his jacket.
Shortly before the stabbing, at about 8.45 pm, Ms Harrison was driving the car in a southerly direction along Brunswick Street, North Fitzroy. The appellant said to her, "Say you love me, say you're going to wait for me, I'll do something stupid". She said to him, "Gee, you're tough". He said "I'll show you how tough I am".
Ms Harrison then felt a very hard blow to her right breast, administered with what she initially thought was simply the appellant's left fist. He then yelled at her a number of times, in an aggressive tone of voice, "I'm going to kill you". Still believing she had only been punched, she asked him "What did you do that for?" He said to her, "I'm going to kill you, then I'm going to kill myself Sandra". At this point, he pulled his hand away from her chest and she could see he was holding the same knife she had seen earlier that day. She knew then that she had been stabbed, and she began to feel intense pain to her chest and started having trouble breathing. The medical evidence demonstrated that during the course of the attack, her lung was punctured by a stab wound, and the first blow was likely to have penetrated her chest and punctured her lung. The appellant then stabbed Ms Harrison to the chest again in the same place. She started to feel the blood pumping out of her chest. She put her right arm up across her chest to try to stop the blood flow. She continued to drive the motor car with her left hand and tried to pull over. She could see the blade of the knife as the appellant pulled it out of her chest, and as he prepared to stab her again, she said to him, "You're killing me. What about the kids?" He slashed at her a few more times, though only later did she become aware of injuries to her left breast and right forearm. Then the appellant stabbed towards her right breast forcefully again. This time she raised her right arm in an effort to protect herself. The blade of the knife went all the way through her forearm and then became stuck there, causing the appellant to forcefully wrench the knife out of her arm. In her victim impact statement Ms Harrison stated that when she was stabbed through the arm, the knife again penetrated her chest at the same time.
By this time, Ms Harrison had been able to swerve to the left and pull the car up in Brunswick Street, North Fitzroy, just to the south of the Brunswick Street oval near Freeman Street. At this point, she held onto the blade of the knife to try to avoid being stabbed again. She managed to undo her seat belt, open her door, and get out of the car. She collapsed in the middle of the southbound lane of Brunswick Street, causing a number of motorists to have to take evasive action to avoid hitting her. She yelled out to bystanders, "Stop him, he's going to kill me". It is apparent from the description of events that it was only the actions of the victim, in resisting and then fleeing from the continuing attack of the appellant, which prevented her from sustaining even more serious, or indeed, fatal injuries.
Many people, including an off-duty policewoman, came to the assistance of the victim. She was bleeding heavily on the ground and was heard to say to people, "I'm going to die".
The appellant was seen by a number of people to stagger in an apparently drunken state from the passenger side of the car towards his victim where she was lying on the roadway. Some people saw him fall to the ground and then continue to crawl towards her. The off-duty policewoman who was there assisting the victim saw the appellant stagger towards them, calling out and behaving in an obviously drunken fashion. He said he wanted to check on her, and despite the efforts of the officer, he persisted in trying to approach his victim, who was clearly terrified of this. She said of the appellant, "Don't let him near me. He'll stab me again". In the end, the officer arrested the appellant and made him sit on the ground. The appellant told the officer that they had had a domestic argument and that they had been arguing about the kids. The appellant continued to endeavour to approach his victim, and was restrained by the officer. The officer searched his pockets and could find no knife.
One of the witnesses who had seen the appellant at the scene had seen him leaning into the car from the outside on the passenger side, apparently doing something. The car was parked close to the front fence of 576 Brunswick Street. After searching in the front of the car and failing to find the weapon used in the attack, the police officer looked for the knife in the front garden of that address. She found it embedded in the ground not far from the fence. It is apparent that it must have been hidden in that location by the appellant prior to his approaching the victim and being restrained. The size and shape of the knife can be seen in photographs 23-25 tendered on the plea. The blade had a length of about 16 cm.
Ms Harrison was taken by ambulance to St Vincent's Hospital. The medical evidence by way of statement established that Ms Harrison had a very substantial stab wound to the right breast which had penetrated the lung, causing the seepage of air into the chest cavity. There was blood also present in the chest cavity. Treatment was by insertion of an intercostal catheter. The wound to the right breast was of such a size as to be consistent with the account of Harrison that she was stabbed more than once (photographs 28-29). This injury to the right chest was a life-threatening injury. The next most serious wound was one to the right forearm. The knife had gone the whole way through the arm, with an exit wound on the inside of the arm. The size of the wound was such that it required 17 stitches on the entry side and 6 stitches at the exit site. The victim has been left with a significant loss of function to the right arm. There was a relatively minor stab wound to the left breast and a minor wound to the left arm.
The appellant was arrested at the scene and taken to Fitzroy Police Station where he was placed in a cell due to his intoxicated state. He was interviewed the next morning in a tape recorded interview commencing at 8.12 am. It was largely a "no comment" interview.
The circumstances of the summary charge – harassing a witness - were as follows. The appellant was granted bail at the Melbourne Magistrates' Court on 23 November 2000 on charges including attempted murder, with conditions that he live in Lucknow, not contact prosecution witnesses, and not enter certain suburbs in Melbourne. On Saturday, 16 December 2000, about three weeks after the stabbing and the granting of bail, the appellant telephoned Ms Harrison in breach of his conditions of bail. When she asked him why he had stabbed her, he said that it wasn't meant for her, but that she must have said something to upset him. She yelled at him, and he said if she was going to be mean to him that he would "put her under". He went on to say he was not threatening to kill her and had not rung to talk about it and it should never have happened. Harrison was very scared as a result of this phone call, and the threat contained in it.
The appellant was interviewed by police in relation to this matter. The appellant answered "no comment" to questions.
The circumstances constituting Count Three – attempted aggravated burglary - were as follows. As a result of the harassing witness charge, the appellant was arrested and remanded in custody for a time. On 27 April 2001 he was committed for trial on the original charge (which was attempted murder). A bail application was made on his behalf on 6 June 2001, and he was released on bail on strict conditions including that he reside in Ballarat with his daughter, abide by a curfew, not consume alcohol, and not contact prosecution witnesses. In breach of these conditions, on Friday, 7 July 2001, the appellant attended at the home of a prosecution witness in Collingwood. He was asked to leave and he did. That witness telephoned Ms Harrison to warn her of what had happened. As a result, she asked a friend of hers, Tony Bordonaro, to stay the night at her home, as she was scared. At about 3.30 am, Ms Harrison was awoken by the sound of smashing glass, and the screaming of her intellectually disabled daughter on the ground floor of the two storey home. Ms Harrison and Bordonaro went downstairs. They could see that the back gate was open, but could see no other damage, so they went back upstairs. They then heard something that sounded like the smashing of a window. They went back downstairs, and they could hear that someone was trying to smash his way through the front window of the house, which was covered in a thick mesh, making access difficult. Ms Harrison could see an arm coming through the window. Bordonaro armed himself with a stick. He approached the window and could see the shape of a person standing at the broken window, trying to push the steel screen in. He was hitting the screen with a brick. Bordonaro hit at the hands of the person with the stick, and then called the police. He then leaned outside and saw the appellant sitting underneath the window. He hit the appellant with the stick and told him to go away. The appellant did so. A subsequent check revealed there was another window broken as well.
The appellant was arrested some hours later in Collingwood. He was drunk. He was arrested and interviewed. Again, it was a largely "no comment" interview, although the appellant denied interfering with the witness. He gave no account of why he had attended at the premises in question.
That bare recitation of the evidence demonstrates the seriousness of the counts, particularly Count One, preferred against the appellant. The maximum penalty on Count One is 20 years' imprisonment, on Count Two, 20 years' imprisonment, and on the summary offence 12 months' imprisonment or a fine of $12,000 or both.
Ms Harrison was 46 years of age at the time of sentence of the appellant. Before the learned sentencing Judge was a victim impact statement of Ms Harrison together with a comprehensive psychological report and other reports. The victim impact statement and psychological report established the injury and trauma suffered by Ms Harrison. Ms Harrison was one of eight children. Both her parents were alcoholics. They separated when she was 12 years old. She left school after Year Eight and took various jobs. She had two longer term relationships and has three children, at the time of sentence aged 26, 23 and 16. The youngest, a daughter, suffered from ataxic cerebral palsy, epilepsy and severe mental retardation (intelligence quotient range of 25 to 35). Ms Harrison had been her full-time carer since she was born. One of the other reports before His Honour attested to the care and devotion given over time by Ms Harrison to her afflicted daughter. The psychological report concerning Ms Harrison stated that as a consequence of the offences she suffers severe post-traumatic stress disorder and severe clinical depression. That report and her own statement are eloquent of the extreme fear she suffers concerning the appellant. That fear is wholly understandable. She also suffers continuing physical injury and disability as a consequence of the attack upon her by the appellant constituting Count One.
The appellant was aged 47 years at the time of sentence. He was born at Yallourn, the child of a Scottish father and an aboriginal mother. He was substantially brought up by a foster family at Framlingham via Warrnambool. He has a number of half siblings. He was educated in Warrnambool to Year Nine and then went to Melbourne where he undertook a number of manual occupations. He was married at the age of 21. The marriage lasted about eight years. There were three children of the marriage. A daughter, who gave evidence before His Honour, said that the appellant was not violent to his wife but was an alcohol drinker. The marriage failed and the appellant began to drink more heavily, to the extent that ultimately he sustained a number of health problems including liver disease and diabetes. The appellant married again but that marriage also failed. During the time of the second marriage the appellant sustained many (but by no means the first) of his numerous prior convictions, including two convictions of arson in respect of his former (second) wife's home and for which he was sentenced to a total of 18 months' imprisonment with a minimum term of 12 months. That was in 1988. In 2000 the appellant commenced a relationship in Melbourne with Ms Harrison.
Upon the plea a number of medical reports in relation to the appellant were tendered. The learned sentencing Judge accurately summarised that material as follows:
"[The reports] attest to a variety of physical illnesses and disabilities almost all of which can be directly attributed to alcohol abuse over a very long period. As at June 2001 you were taking some nine different medications ranging from anti-depressants to anti-inflammatory drugs for joint pain. At different times you have been diagnosed with tuberculosis and meningitis, as well as a variety of other ailments of lesser import.
You were assessed by Mr James Drury, a clinical neuro-psychologist, on 28 September 2001. He notes your sorry alcohol history as having involved the equivalent of about 20 pots of beer per day for 30 years. He noted your medical history and the diseases you have contracted over the years as well as the injuries you have suffered, largely in altercations with the police. He assessed your general intelligence as being "borderline"; about 95% of your age group would perform better on most tasks.
Mr Drury's summary of your psychological status is depressing, although he does note that despite the enormous quantity of alcohol you have consumed you do not appear to have sustained marked brain damage. He thought that impulsive and inappropriate outbursts, such as occurred during the court hearings to which I have referred, could be attributed to frontal lobe disinhibition caused by alcohol abuse.
You were also assessed by Dr Robert Hjorth on 18 October 2001. Dr Hjorth is a neurologist. He thought that you were suffering from severe peripheral neuropathy which accounted for your unsteadiness in walking. He thought you had only a marginal understanding or grip on the world and your relationship with it. He thought you were bewildered and lacked understanding of many of the questions he asked. He noted particularly the impoverished nature of your life, having lost your parents at an early age, having had an inadequate education and having suffered from an absence of job skills.
Mr Bernard Healey, another psychologist, also assessed you on 27 and 28 October 2001. His detailed report repeats much of what has been said by the other assessors to whom I have already referred. Overall his opinion does not alter the picture presented although he does note that you would not have been in a position to form a clear intent at the time of the offending on 22 November 2000 -–doubtless one of the reasons the Crown accepted your plea of guilty to intentionally causing serious injury rather than attempting to prove a charge of attempted murder."
The neuro-psychologist Mr J. Drury assessed the appellant's full scale intelligence quotient (upon W.A.I.S.) as 75.
In his reasons for sentence, the learned sentencing Judge correctly said of the victim's injuries:
"Had she not received timely medical assistance she would almost certainly have died."
His Honour noted that at the time of the offence constituting Count One, both Ms Harrison and the appellant had been drinking alcohol over a period of some 9 hours and that at the committal Ms Harrison had said that they were both equally drunk. His Honour relevantly proceeded:
"However, she was apparently able to drive a motor vehicle from Clifton Hill to the point at which you committed this assault and you were able to commit the assault and attempt to dispose of the weapon."
Plainly His Honour was sensitive to the important considerations both as to cause and disposition deriving from the appellant's aboriginality. His Honour stated:
"You present an extremely difficult sentencing problem. The offences for which you must be sentenced are serious indeed and your sentence must reflect that seriousness. On the other hand it is not difficult to characterise your life as being one of extreme sadness, robbed at an early age of meaning, ambition or realistic hope. This is due partly to an early introduction to alcohol and its subsequent long term abuse, and partly to the immense social deprivation of being a virtual orphan in a community in which so many indigenous people like you suffer a completely dislocated and dysfunctional existence for reasons which have been much examined but which are far too complex to go into in these sentencing remarks. Suffice to say, they are undoubtedly a product of unjust and immoral social alienation to which indigenous people have been subjected in this country for far too long. Until these issues are seriously addressed there will be many more offenders like you who will have to be sentenced to long prison terms because this society generally neither knows nor cares how to do any better. Such sentences as I am about to impose on you are no help in seriously tackling the problem of which your offending is only a small part. As a judge, however, I am able to do nothing else but obey the law's commands. The remedy, if there is one, lies elsewhere."
His Honour then correctly reviewed relevant sentencing principle and imposed sentence upon the appellant which I have stated. As to the minimum term, His Honour stated:
"This somewhat longer than usual parole period is fixed so as to enable you to serve about one third of your sentence, subject to supervision, in the community."
Ground 1 of the appeal is:
"The sentence was manifestly excessive in the light of the circumstances of the offences, the disabilities of the applicant and the applicant's severe difficulties in a custodial environment."
Ground 3 is:
"The Judge erred in failing to take into account in fixing sentence the severe difficulties experienced by the applicant in a custodial environment."
Before this Court counsel for the appellant argued grounds 1 and 3 together. Counsel properly conceded that Count One was serious and that the injuries suffered by the victim were life-threatening. He also properly conceded that the cumulation of sentences ordered by His Honour was not inappropriate. He concentrated upon the sentence imposed upon Count One. In thoughtful and comprehensive submissions, counsel for the appellant submitted that by reason of a range of factors the sentences imposed by the learned sentencing Judge were manifestly excessive and those factors were not properly reflected in the sentences imposed. Those factors were the influence of alcohol, the cluster of physical and intellectual disabilities of the appellant, two incidents of suicidality in custody, the appellant's aboriginality and immense social deprivation and his pleas of guilty. Counsel submitted that "a substantial issue as to his ability to survive the sentence is raised". Counsel further submitted that the non-parole period set did not properly reflect the matters in mitigation.
As to the influence of alcohol in the events leading up to and constituting Count One, His Honour's sentencing remarks above cited demonstrate that he was conscious of that matter and also that he understood its limitation. The most unfortunate cluster of physical and intellectual disabilities of the appellant were apparent to His Honour, who demonstrated close awareness of the medical and psychological material before him. Although His Honour did not refer in terms to the two incidents of suicidality of the appellant in custody, it cannot be thought that His Honour was unmindful of them, both for general and lamentable reasons and because they were referred to in the report of Dr Tuck of 4 June 2001 which report His Honour generally referred to. The appellant's aboriginality and most unfortunate social deprivation plainly were at the forefront of His Honour's mind. Counsel for the appellant submitted that 'aboriginality does not distinguish the appellant for sentencing purposes' but that the deprivation suffered in the past by the appellant and which was in substantial part a consequence of his aboriginality has relevance for sentencing. I wholly agree. Appropriate considerations were reviewed and considered by Eames J.A. in R. v. Fuller-Cust[1] and for which I am indebted. In the present case the learned sentencing Judge was plainly, and rightly, sensitive to those considerations. His Honour also was clearly aware of the appellant's age, his prognosis, and the burden of imprisonment upon him. The circumstance that the appellant pleaded guilty exercised His Honour's consideration both of itself and as to remorse. Counsel for the appellant in this Court also referred to "an apparent lack of motive". As to that, His Honour correctly observed that "whilst it obviously arose out of the relationship between you" His Honour declined to speculate as to its precise character. All in all it is clear that His Honour carefully addressed all relevant considerations.
[1](2002) VSCA 168 at [78]-[88] especially [79].
Ground One upon analysis devolves into a ground of manifest excess. His Honour rightly modified the sentences (individual, total and non-parole period) because of the factors stated in the preceding paragraph. However given the brutal and life-threatening character of the offence constituting Count One, the vulnerability of the victim, the persistence of the attack, the resort yet again by a man to violence against a woman in order to resolve his emotional problems, and the total lack of justification or excuse for the appellant's conduct, in my view the sentences imposed, far from being excessive, were necessary and proper. Grounds one and three fail.
Ground two is of a different order.
Ground two is:
"The Judge erred in taking into account two incidents which were alleged to have occurred at court on 12 November 2001 and 8 February 2002 in passing sentence."
Those incidents arose against this background. The day after the stabbing (Count One) the appellant was granted bail on conditions which included a condition not to have contact with any prosecution witnesses. Less than a month later the appellant telephoned Ms Harrison and made the threat which was the substance of the summary charge. He was then taken into custody until committal for trial in respect of Count One. He was again remanded in custody and not granted bail until 6 June 2001. On that date the appellant was granted bail upon strict conditions including that he reside in Ballarat with his daughter, observe a curfew, not consume alcohol and not have contact with prosecution witnesses. In direct breach of those conditions, one month later the appellant committed the offence which constitutes Count Two, and in persistent and frightening circumstances. The appellant was returned to custody.
The learned sentencing Judge continues the narrative:
"On 12 November 2001 this matter was listed before Teague J for the purpose of your formally pleading to the presentment filed against you and the summary offence to which I have referred. This short procedure was to take place in Court 1 in this building. Ms Harrison was present and as you were led towards the dock in that Court you walked behind her. As you did so you struck her on the back of the head and pulled her hair. This event occurred before Teague J had entered the court room.
This further assault on Ms Harrison was not the subject of any charge but was referred to by her in a psychologist's report annexed to a subsequent victim impact statement which she filed following your original plea hearing before me on 22 November. Upon receiving this report the Crown requested that you not be sentenced until the matter was further mentioned. The vacation and other Court business meant that that mention could not occur until 8 February 2002 on which occasion your counsel raised no objection to a second victim impact statement being filed by Ms Harrison, annexing the psychologist's report. Accordingly that statement was filed and you were further remanded in custody for sentence.
Shortly after 8 February 2002 my Associate was contacted by the Crown with a request that your sentencing be once again deferred to enable further material to be put before the Court relating to an incident which occurred between you and Ms Harrison immediately after the mention on 8 February in or in the vicinity of the court room in this building in which that mention was conducted.
Last month the Crown provided the Court and your solicitors with a further six statements of people who had been present at the mention on 8 February which deposed to your having used threatening words towards Ms Harrison on that date in the court room after I had left the bench. Thus, the matter was listed again on 24 May 2002 for consideration of this further evidence, on which date your counsel informed the Court that he could get no meaningful instructions from you in respect of those statements and that he had no submission to put in respect of them.
It appears that on 8 February after the Court adjourned you were being led from the Court when you shouted towards Ms Harrison words to the effect "Don't break down Sandra, don't break down, don't break down love 'cause you will be dead". As would be expected the witnesses who depose to this event vary somewhat as to what they say you said but it is clear that no matter what words you used you were uttering some kind of threat towards Ms Harrison. She became distressed and began to cry.
I set out the details of these two incidents not because they are themselves the subject of any charges before the Court but to explain the inordinate delay in your being sentenced and to record them as evidence which renders somewhat hollow the submission made on your behalf that you have exhibited real remorse in respect of this vicious attack that you perpetrated on Ms Harrison some 18 months ago."
There is no substance in ground 2. The learned sentencing Judge did not sentence the appellant for his conduct last described. His Honour, in a measured passage, correctly had regard to that supervening conduct only as to delay and as to assessment of remorse. This ground fails.
In my opinion the appeal should be dismissed.
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