Rout v The Queen
[2016] VSCA 126
•30 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0216
| BENJAMIN ROUT | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 May 2016 |
| DATE OF JUDGMENT: | 30 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 126 |
| JUDGMENT APPEALED FROM: | [2014] VCC 1499 (Judge Maidment) |
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CRIMINAL LAW – Sentence – Election to renew application for leave to appeal against sentence – Aggravated burglary and other offences – Armed home invasion to steal money and drugs – Serious injury to an occupant and injury to others – Offences in 2006 not charged until 2010 – Applicant convicted at trial in 2014 – Total effective sentence 6 years’ imprisonment with non-parole period of 3 years and 8 months – Applicant sentenced in 2007 for similar offences committed in 2006 – Totality – Delay – Manifest excess – Application for leave to appeal against sentence refused.
CRIMINAL LAW – Sentence – Application for leave to appeal – Application to add ground – Fresh or new evidence – Evidence relating to gunshot wound and childhood sexual abuse – Evidence not fresh or new – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Respondent | Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
THE COURT:
Introduction
A jury empanelled in the County Court found the applicant guilty on 14 April 2014 of aggravated burglary[1] (charge 1), recklessly causing serious injury[2] (charge 3), intentionally causing injury[3] (two charges — charges 4 and 6), false imprisonment[4] (three charges — charges 8, 9 and 10) and obtaining property by deception[5] (charge 12).
[1]Crimes Act 1958, s 77(1). The maximum penalty is 25 years’ imprisonment.
[2]Crimes Act 1958, s 17. The maximum penalty is 15 years’ imprisonment.
[3]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
[4]False imprisonment is a common law offence. By Crimes Act 1958, s 320, the maximum penalty is 10 years’ imprisonment.
[5]Crimes Act 1958, s 81(1). The maximum penalty is 10 years’ imprisonment.
On 27 August 2014, the trial judge sentenced the applicant to be imprisoned according to the following table:
Charge Offence Sentence Cumulation 1 Aggravated burglary 4 years and 6 months Base 3 Recklessly causing serious injury 2 years and 9 months 12 months 4 Intentionally causing injury 15 months 3 months 6 Intentionally causing injury 15 months 3 months 8 False imprisonment 9 months — 9 False imprisonment 9 months — 10 False imprisonment 9 months — 12 Obtaining property by deception 1 month — Total effective sentence Six years’ imprisonment Non-parole period Three years and eight months’ imprisonment
By a notice dated 31 October 2014, the applicant sought leave to appeal against his sentence on three grounds.[6] Ashley JA refused leave to appeal on 23 February 2015.
[6]See fn 8 below.
Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant elected to renew his application with respect to the grounds upon which leave was refused, and sought to add a new ground, ground 5, which, as formulated, relied on asserted ‘fresh evidence’.
Ultimately, there were four proposed grounds of appeal as follows:
1. The learned sentencing judge erred in imposing a sentence which is disproportionate in totality, in light of the sentence imposed on the applicant by Judge Hart on October 2007.
2. The learned sentencing judge erred in his assessment of the applicant’s criminal history.[7][7]Ground 2 was abandoned.
3. The learned sentencing judge gave disproportionate weight to the applicant’s subsequent convictions.[8]
[8]At the time that the application for leave to appeal was determined, ground 3 was a particular — particular (d) — of what is now ground 4. During the hearing of the application in this Court, the practitioner appearing for the applicant accepted that, despite its having been pleaded as a separate ground, ground 3 should, in effect, be viewed as a particular of ground 4.
4. The sentence is manifestly excessive in light of:
(a) the applicant’s age at the time of the offending;
(b) current sentencing practices as they were at the time these offences were committed in 2006;
(c) the substantial delay in this case.
5. The applicant should be resentenced by this Court in the light of fresh evidence concerning:
(a) the additional burden of imprisonment arising from the impact of the gunshot wound suffered by the applicant shortly before he commenced his sentence;
(b) the connection between the sexual assault suffered by the applicant as a child and the applicant’s descent into drug abuse and offending.
For the reasons that follow, we would refuse leave to rely on ground 5, and would refuse leave to appeal on the remaining grounds.
The offending, arrest and trial
It is necessary to say something of the circumstances of the applicant’s offending and its aftermath.
At about 9.30pm on 14 February 2006, the applicant and other men entered a home in Caulfield South. They had their faces concealed and were armed with a knife and a machete. Their evident intent was to locate drugs and money.
An occupant of the home, Julius Oderberg, was struck to the left cheek with the machete and to the hand with the knife, causing a deep cut to the webbing of his hand between his thumb and forefinger. The intruders demanded access to a safe, and asked, ‘Where’s the ice, where’s the Louie?’. Oderberg’s ankles were taped together. One man stood over him with a knife while others searched the house. The men stole a mobile telephone, a wallet and a set of keys from him.
Two brothers, Chris and James Szecsenyi, returned home to the premises. One of the men dragged Chris Szecsenyi into the lounge room and forced him to empty his pockets, and he handed over a wallet and a mobile phone. He was struck to the cheek with the machete, then forced to open the safe, which turned out to be empty. The offenders then restrained him with packing tape. James Szecsenyi was also injured by the offenders, and was also restrained before the offenders left the premises. After the offenders made their getaway, one of the Szecsenyi brothers telephoned police.
James Szecsenyi, who had been struck on the head with the machete, suffered a 3.5 centimetre wound to his forehead, requiring five sutures; bruising to the right eyelids; and a bruise to the right clavicle. Chris Szecsenyi suffered a number of abrasions and bruises to the forehead and eyes; a wound to the bridge of his nose; and abrasions and bruising to his neck and collarbone.
Police located three latex gloves in the front yard of a nearby house. The owner of that house told police the gloves had not been there the previous day, when he had been gardening.
Two weeks later, on 28 February 2006, someone using the applicant’s driver’s licence sold a Nokia mobile phone which had been stolen from Mr Oderberg to the ‘Buy and Sell’ shop in Dandenong.
Several years elapsed before the applicant was arrested on 13 October 2010. DNA linked him to the crime committed more than four years earlier on 14 February 2006. He gave a ‘no comment’ record of interview.
At the applicant’s trial, it was not contested that the offences occurred as alleged by the victims, the only issue being the reliability of the DNA evidence. (The victims were not required to give evidence, their statements being read by consent.) The applicant did not give evidence.
The trial commenced on 31 March 2014 and concluded on 14 April 2014, when the jury returned verdicts in the applicant’s absence. He failed to appear on 14 April 2014. That afternoon he was shot and seriously injured.
Grounds 1 and 4 — Totality and manifest excess
It is convenient to consider ground 1 and ground 4 together. Counsel for the applicant accepted that they were intertwined.
The applicant was born on 24 November 1982. At the time of the commission of the present offences in February 2006, the applicant was aged 24 years. Although he had prior convictions, at the time that the present offences were committed he had not previously been convicted of aggravated burglary or been sentenced to a term of imprisonment. Findings of guilt or convictions for violent offences on three occasions — including intentionally or recklessly causing injury; intentionally causing serious injury; and affray and intentionally causing serious injury — were all in the Children’s Court. Counsel for the applicant submitted that the sentence imposed neither adequately reflect the applicant’s youth, nor the fact that he had not previously been imprisoned.
Further, relying on Hogarth[9] it was contended that, although the sentence imposed for aggravated burglary is consistent with current sentencing practices, sentencing practices as at the date of the commission of the offence involved the imposition of less lengthy sentences. Whilst the present case represents a serious example of aggravated burglary, it is beyond the range of sentences that would have been imposed on a 24 year old offender, without a history of imprisonment, in 2006.
[9]Hogarth v R (2012) 37 VR 658 (Maxwell P, Neave JA and Coghlan AJA) (‘Hogarth’).
Further again, it was submitted that while the judge acknowledged the substantial delay, and that since 2010 the applicant had endured the stress of having these matters hanging over his head, that fact is not reflected in the sentence imposed.
With respect to totality, the applicant’s counsel submitted that, on 26 October 2007, the applicant was sentenced by Judge Hart for kidnapping, false imprisonment, robbery, threat to kill and theft committed on 4 March 2006 (that is, three weeks after the present offences occurred). He received an aggregate sentence of three years and six months’ imprisonment, with a non-parole period of 15 months. It was submitted that, other than acknowledging the failure of the applicant’s prospects of rehabilitation since the sentence of Judge Hart was imposed, the sentencing judge did not state what impact the sentence imposed by Judge Hart had upon the present sentence. Counsel argued that it was incumbent on the judge to consider the offending in both sets of offences, given the temporal proximity between them. It was submitted if the applicant had been sentenced on both sets of offences at the same time, he would not have received a notional total effective sentence of seven years and three months’ imprisonment with a non-parole period of four years and one month.[10] By his failure to moderate the sentence that he imposed for the present offences, the judge failed to reflect the principle of totality.
[10]In the written case, the applicant’s counsel put the notional sentence as 9 years and 6 months’ imprisonment with a non-parole period of 4 years and 1 month. We were informed that the applicant was released on parole after serving the non-parole period of 15 months.
The respondent submitted that the sentence was within range. It was submitted that the judge specifically took into account in the applicant’s age at the time of the offending and the impact of delay in this case, and can be assumed that these matters ‘were given appropriate weight in the context of the commission of serious examples of serious offences’. The applicant’s reliance on Hogarth, in an endeavour to try and demonstrate that the sentence imposed in this case reflects adherence to current sentencing practices rather than those previous to it, was misplaced, since, so it was submitted, Hogarth was concerned with a single victim; a plea of guilty; and a number of personal disadvantages that the applicant had suffered; all of which are different to the present case. In this case, there were three victims; each the subject of gratuitous violence; a trial was run; and there was an absence of remorse.
As to totality, the respondent submitted that the head sentence and non-parole period are ‘stern but sufficiently moderated including on the basis of totality’ because, first, the present are serious examples of serious offences including serious injury, injury, false imprisonment and aggravated burglary perpetrated against three victims; secondly, the sentence followed a trial and there was an absence of remorse; thirdly, the applicant’s prospects of rehabilitation properly are considered as ‘guarded’ in light of subsequent convictions; and, fourthly, the judge considered the delay, and the sentence imposed by Judge Hart, and gave them due weight.
Although the parties did not draw the Court’s attention to it — the Court itself raised the matter in the course of oral argument — it is important to note that Judge Hart’s sentence was the subject of an appeal to this Court by the Director of Public Prosecutions. The sentence was not given unreserved endorsement. Indeed, in Rout,[11] the sentence was described as ‘considerably inadequate’.[12] It was said that a more appropriate total effective sentence would have been 4 years and 6 months’ imprisonment, and, ‘[c]onsidering there to be a real prospect of rehabilitation, particularly for a still youthful offender, one might then fix a quite short non-parole period — say 2 years’.[13] Notwithstanding the ‘inadequacy of the sentence imposed’, however, ‘in light of the well-known authorities which have repeatedly stressed the limited circumstances in which this Court will intervene on a Director’s appeal’ (including double jeopardy[14]) the Court was not persuaded that ‘the sentence imposed ought attract this Court’s intervention’.[15]
[11]DPP v Rout [2008] VSCA 87.
[12]Ibid [118] (Ashley JA, with whom Warren CJ and Lasry AJA agreed) (‘Rout’).
[13]Ibid [117].
[14]Ibid [7] (Warren CJ). See now Criminal Procedure Act 2009, s 289(2).
[15]Ibid [119].
It was lamentable — and wholly unsatisfactory — that this Court’s reasons in Rout were not drawn to our attention. Indeed, in support of the totality complaint on ground 1, Judge Hart’s sentencing remarks were attached to the applicant’s written case without any hint that this Court had considered the sentence imposed by his Honour to be ‘considerably inadequate’. Quite obviously, the failure to refer to this Court’s earlier decision had the potential to skew our consideration of totality.[16]
[16]While we accept that counsel for the respondent was unaware of this Court’s reasons in Rout until we raised it in argument, astonishingly counsel for the applicant admitted to being aware of the decision but denied that his failure to make mention of it was misleading. Counsel for the applicant’s position on this issue was manifestly untenable and unsatisfactory.
When considering the effect of Judge Hart’s sentence, it is also important to understand that it was imposed following a contested trial in which, on 23 October 2007, a jury found the applicant guilty of kidnapping (count 1), false imprisonment (count 2), threat to kill (count 3), armed robbery (count 4) and theft (count 5). Ashley JA described the offending as follows:[17]
In the early hours of 4 March 2006, Victor Rudi, a German student who was visiting Australia, was asleep in the rear of his van, which he had parked in St Kilda. He was awakened by noises close by his vehicle. He saw a face at the window. Soon afterwards the vehicle was invaded by three men. He was punched in the face and demands were made for money and drugs. He had no drugs, but he offered money which he could obtain by use of a Visa card. He was driven in his vehicle to the vicinity of an ATM. In the course of the journey he was again assaulted, and he was threatened that he would be taken to the bush and killed. At the ATM he twice entered, mistakenly, the wrong PIN number. The offender who had accompanied him to the machine told him, in substance, ‘You’ve had [your] chances, but now it’s about your life, make no shit’. He withdrew $500 and handed it to the man. The man and his co-offenders decamped.
[17]Ibid [14].
As we have mentioned, the crux of the applicant’s submissions was that, ‘if the applicant had been sentenced on both sets of offences at the same time, he would not have received a notional total effective sentence of seven years and three months’ imprisonment with a non-parole period of 4 years and one month’. That is plain when regard is had to the applicant’s relative youth at the time of the commission of the offences; current sentencing practices at the time; and the delay. Hence, so it was submitted, the judge must have given insufficient attention to the principle of totality, and has produced a manifestly excessive sentence.
The applicant’s submissions do not persuade us that it is reasonably arguable either that the judge has failed to apply the principle of totality, or that the sentence otherwise is manifestly excessive.
It cannot be said that the applicant was racked with remorse. In written submissions made to the sentencing judge on the plea, the applicant’s counsel said that the applicant ‘maintains his innocence in relation to all counts’, and ‘concedes that he has not demonstrated any remorse’.
Counsel also submitted in writing that the applicant ‘concedes that the primary sentencing considerations for the Court are general and specific deterrence and that the offending is serious’. As to mitigation, the applicant’s counsel wrote that the applicant ‘submits that delay in this case requires weight to be given to the progress of the [applicant’s] rehabilitation and uncertain suspense as punishment itself’. Thus, ‘specific deterrence should be a lesser factor in sentencing the [applicant] and the Court should be as lenient as possible in sentencing’.
It cannot be gainsaid that the present offences were very serious. The judge described the aggravated burglary in this case as a ‘serious offence of its kind’. He said that the applicant’s manner of entry and disguise ‘were calculated to put the occupants of the premises in fear, possibly of their lives and to cause them enormous trauma’. The judge thought that the offence was ‘significantly aggravated by the gratuitous violence that was inflicted upon the three victims’, in circumstances where the applicant could have achieved his objectives ‘equally well … without inflicting any injury upon any of the victims’. Self-evidently, the applicant’s offending was deserving of stern punishment.
There were few factors before the judge going in mitigation of punishment. True it was that in February of 2006, aged 24 years, the applicant was a relatively youthful offender. But he had amassed an unenviable number of convictions for a range of offences (albeit those for violence were in the Children’s Court), in circumstances where he had previously been afforded considerable leniency. There was no plea of guilty and no skerrick of remorse.
Moreover, had a judge been called upon to sentence for the present offences, and those for which Judge Hart passed sentence, at the same time, in applying the principle of totality he or she would have had to have recognised that the two sets of offences represented a series of offending of the same or similar character. In those circumstances, we are not convinced that a lesser sentence than that imposed in the present case would have been appropriate (even if it be assumed for the sake of argument that sentencing practices were different at the time that the offences were committed[18]).
[18]Bavage v R [2012] VSCA 149, [10]; Stalio v R (2012) 223 A Crim R 261, 270 [11], 276 [39] and 283 [78].
As to delay, we accept that the applicant had the stress of the matters hanging over his head from the time of being charged up to the time that the charges were finalised by jury verdicts and sentence. As explained in Arthars,[19] the justification for taking delay into account as a mitigating factor rests upon the twin considerations of rehabilitation and fairness.[20] The Court observed:[21]
When considering whether a delay requires the element of fairness to be taken into account as a mitigating factor, the court must have regard to the degree to which the accused had control over the length of that delay. The observation in Merrett[[22]] is not to be understood as suggesting otherwise. Delay which is caused by prosecutorial process or the administration of the courts will carry more weight as a mitigating factor than any delay which is attributable to the actions of the offender. In R v Cockerell, Chernov JA (Winneke P and Buchanan JA agreeing) noted that delay which ‘cannot be attributed to the offender’ will constitute a powerful mitigating factor in sentencing;[23] in R v Tiburcy,[24] Maxwell P (Warren CJ and Buchanan JA concurring) referred to delay which was not ‘solely or even partly the fault of the accused’; and in R v Whyte, Winneke P (Bongiorno and O’Bryan AJJA agreeing) refused to disturb the finding of the judge below that delay, where ‘self-inflicted’ by the applicant, will carry little weight as a mitigating factor.[25]
Every case is different and the factors seen properly to affect the exercise of the sentencing discretion will vary according to circumstance. As Ormiston JA remarked in Nikodjevic: ‘one should therefore be cautious about asserting that there is a right to some automatic discount in every case of asserted delay’.[26] As such, an accused who pleads guilty, co-operates fully with prosecutorial authorities, and is still subject to an inordinate delay between the laying of charges and sentence for reasons beyond their control, will be entitled to have that delay taken into account as a ‘powerful mitigating factor to be given due recognition in the sentencing disposition’.[27] Where an accused absconds from bail or otherwise avoids being brought to justice,[28] or causes delay by refusing to provide any assistance to prosecutorial authorities, the significance of delay as a mitigating factor will be significantly reduced, despite having entered a plea of guilty,[29] even to the point of giving less credit for rehabilitation established during that period.[30]
[19]Arthars v R (2013) 39 VR 613 (Redlich and Coghlan JJA and T Forrest AJA).
[20]Ibid 620 [25].
[21]621–2 [28]–[29].
[22][R v Merrett, Piggot and Ferrari (2007) 14 VR 392.]
[23](2001) 126 A Crim R 444, 447 [10].
[24](2006) 166 A Crim R 291, 296 [25].
[25](2004) 7 VR 397 (‘Whyte’), 404-5 [24]-[26].
[26][2004] VSCA 222, [22].
[27]Cockerell (2001) 126 A Crim R 444, 447 [10] (Chernov JA).
[28]Whyte (2004) 7 VR 397, 404 [24].
[29]See Day v The Queen [2011] VSCA 243 (Nettle JA).
[30]Whyte (2004) 7 VR 397, 404 [24].
In this case, the applicant made a ‘no comment’ record of interview when finally arrested, challenged the DNA evidence (the curial process being delayed whilst his solicitors obtained expert evidence) and contested a trial. Although, of course, he is not to be punished for doing so, any amelioration of sentence by virtue of delay is reduced, particularly in circumstances where it could not realistically be contended that there had been a marked rehabilitation during the delay.
As we have mentioned, the applicant’s counsel relied upon ground 3 — a complaint that ‘disproportionate weight’ was given to the applicant’s subsequent convictions — as a ‘particular’ of manifest excess. That was probably pragmatic, since, as an individual ground, ground 3 was devoid of merit.
In sentencing him, the judge remarked that the applicant had not gone as ‘far down the path of rehabilitation as one would have hoped or his Honour Judge Hart had hoped’. He stated that while the applicant had prospects of rehabilitation, those prospects were ‘guarded’.
On 27 March 2006, after the current offences were committed (and before the sentence of Judge Hart), the applicant was sentenced to a four month intensive correction order for intentionally causing injury and unlawful assault. The applicant breached the order, and on 12 October 2006 was sentenced to 94 days’ imprisonment.
Subsequently to the sentence imposed by Judge Hart, and prior to the imposition of the present sentence, on 9 May 2011 the applicant was sentenced to a community based order of 12 months’ duration for offences which included burglary, theft (of a bicycle and from a shop), possessing heroin, possessing a Schedule 4 poison, possessing a controlled weapon and driving offences. He breached the community based order. Thus, on 1 November 2013, the applicant was sentenced to three months’ imprisonment for theft of a motor vehicle; and on charges of unlicensed driving, failing to answer bail, possessing amphetamine and possessing a controlled weapon, he was fined in aggregate $2000. Despite the breach, the community based order was varied.[31]
[31]Subsequently to the imposition of the present sentence, on 23 October 2015 the applicant was convicted of breaching the community based order of 1 November 2013, and of possessing equipment for making identity documents, possessing a prohibited weapon, dealing with property suspected of being the proceeds of crime, possessing a drug of dependence, unlicensed driving and driving whilst disqualified. He was sentenced to be imprisoned for 4 months, such sentence running concurrently with the present sentence. A fine of $300 was also imposed.
Counsel for the applicant submitted that ‘these later convictions are not numerous, nor grave’. It was contended that the sentencing judge gave the applicant’s subsequent history excessive weight when assessing his prospects of rehabilitation. Further, it was submitted that the continued offending is consistent with an ongoing drug addiction ‘connected at least in part to the consequences of the childhood sexual assault suffered by the applicant’.
The respondent submitted that the subsequent convictions bear upon an assessment of applicant’s prospects for rehabilitation and are a proper foundation for the judge’s conclusion that those prospects are ‘guarded’.
Convictions which occur before[32] or after[33] an offence for which a person is to be sentenced are relevant to the imposition of sentence.
[32]Veen v The Queen (No 2) (1988) 164 CLR 465; R v McInerney (1986) 42 SASR 111, 113; R v O’Brien and Gloster [1997] 2 VR 714; Weininger v The Queen (2003) 212 CLR 629; R v Bui; R v Beedar (2002) 224 LSJS 286; R v McNaughton (2006) 66 NSWLR 566.
[33]R v Poulton [1974] VR 716; R v Kane [1974] VR 759; R v Rumpf [1988] VR 466; R v Bui; R v Beedar (2002) 224 LSJS 286; Director of Public Prosecutions v Rongonui (2007) 17 VR 571.
In light of the appellant’s offending in the period since he committed the present offences, in our opinion it could not sensibly be contended that the applicant’s prospects of rehabilitation are other than guarded. Undoubtedly, those prospects will be improved if the applicant is able to overcome his drug problem. The judge recognised as much when he observed:
I note the remarks of His Honour Judge Hart in October 2007, where he was referred to a letter from both of your parents who were expressing not too different sentiments from those that are expressed in the letters that they have provided me. His Honour Judge Hart had taken the view that there were signs, he said many signs, that you are progressing well along the rocky path to ultimate rehabilitation. That was in 2007. I think everybody that has supported you must be a little disappointed with the fact that you have not gone a bit further down that path.
However, it seems that you are not without talent and I suspect that you have got many good qualities about you. I also suspect that those qualities are not likely to shine through unless and until you do get a firm grip on your substance abuse problems.
We are unable to detect any error in the sentencing judge’s approach.
Ground 1, 3 and 4 must fail. They are not reasonably arguable.
Ground 5 — Fresh evidence
We would, as we have said, refuse leave to add proposed ground 5. It is not reasonably arguable.
As formulated, the proposed ground contended that the applicant should be resentenced by this Court in the light of ‘fresh’ evidence concerning ‘the additional burden of imprisonment arising from the impact of the gunshot wound suffered by the applicant shortly before he commenced his sentence’, and ‘the connection between the sexual assault suffered by the applicant as a child and the applicant’s descent into drug abuse and offending’.
Significantly, counsel for the applicant conceded in oral argument that the evidence was not ‘fresh’, but maintained that the evidence was ‘new’. In McLachlan,[34] Chernov JA (with whom Winneke P and Vincent JA agreed) said:[35]
It seems plain enough that evidence of an event occurring after sentence is not admissible if it is led merely to show that the sentence imposed is excessive, or, put another way, that the sentence turned out to be excessive.[36] But evidence of an event occurring subsequent to the sentence may be admitted, in the court’s discretion, in order to avoid a miscarriage of justice, if it shows the true significance of a relevant circumstance that existed at the time of sentence, even though its existence was then not known.[37] …
[34]R v McLachlan (2004) 8 VR 403.
[35]Ibid 406–7 [10].
[36]R v Babic [1998] 2 VR 79 at 80, 82 per Brooking JA.
[37]See, for example, R v Eliasen (1991) 53 A Crim R 391, R v Morgan (1996) 87 A Crim R 104, R v Babic at 80–2 (and the cases referred to there), R v WEF [1998] 2 VR 385 at 388–9 per the President and R v Rostom [1996] 2 VR 97 at 99 per Charles JA and R v Rawlings [2003] VSCA 157 at [15]–[17] per Batt JA.
Redlich JA set out the principles to be applied in Nguyen:[38]
[38]R v Nguyen [2006] VSCA 184, [36] (footnotes omitted).
It is common ground that this Court may, in limited circumstances —sometimes described as ‘rare and exceptional’ — permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
(i) the new evidence must relate to events which have occurred since the sentence was imposed;
(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(v)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(vi)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.
In our opinion, no miscarriage of justice would result from a failure to receive the evidence said to be new. Indeed, the Court ought to discourage endeavours — such as this was — to have a ‘second bite of the cherry’, and to run a new plea in place of that conducted before the sentencing judge.
When sentencing the applicant the judge noted that the applicant had been shot on the day of the verdict, and said that he had ‘no evidence as to what effect that might have on you now, other than what is in the letter from the Melbourne Remand Centre, and what effect it might have on your future and your determination to rehabilitate yourself’.
Later in his reasons, having briefly summarised the applicant’s personal history, the judge observed: ‘There does not seem to me to be anything in that history which could come close to excusing the kind of conduct that you got yourself involved in, in relation to the matters for which I have to sentence you’.
As we have mentioned, a judge of this Court refused leave to appeal on 23 February 2015, prompting the applicant to file a notice of election. Prior to the election being heard, in anticipation that the applicant wished to raise a fresh evidence ground, on 13 October 2015 the Court made an order in chambers under s 317 of the Criminal Procedure Act 2009 for the production of documents held by Justice Health. When the application then came on for hearing on 21 October 2015, the legal practitioner appearing as counsel for the applicant informed the Court that he required still further material so that he could endeavour to make good the proposed fresh evidence ground. In the result, the hearing of the application was adjourned, and the Court made orders pursuant to s 317 for the production and management of further documents in the custody of the Department of Justice and Regulation.
Material relevant to the fresh evidence ground included affidavits of the applicant sworn 17 October 2015 and 23 October 2015; an affidavit of the applicant’s mother, Fiona Rout, affirmed 19 October 2015; affidavits from the applicant’s solicitors, affirmed 16 October 2015 and 19 October 2015; reports of Ms Carla Lechner, consultant psychologist, dated 15 October 2014 and 28 June 2015; various prison medical records relating to the applicant; and notes of counselling sessions conducted by Dr Terri Roberton with the applicant between 11 June 2014 and 21 July 2014.
It was submitted that the content of the affidavits, Justice Health medical records and the reports of the psychologist, Ms Lechner, establishes credibly that imprisonment is considerably more onerous for the applicant than for an ‘ordinary’ prisoner because of the physical and psychological consequences of the gunshot wound. It was submitted that this matter is of particular significance because, although he was alerted to the injury (and to the fact that the applicant had needed psychological counselling), it appears that the sentencing judge did not regard the event as bearing on whether prison would be more onerous for the applicant. In those circumstances, so it was submitted, justice requires that the sentencing discretion be reopened and the applicant be re-sentenced by this Court.
On the issues of the applicant’s moral culpability and prospects for rehabilitation, it was submitted that the sentencing judge made a specific finding that nothing in the applicant’s history excused (or, by implication, explained) his drug abuse and offending. It was argued that the applicant’s subsequent disclosure of the sexual assault and its effects upon him provides some explanation for his use of drugs and consequent offending. The connection between the applicant being victim of a sexual assault and his drug use is a significant mitigating matter. Moreover, it was submitted that the disclosure ‘provides real hope for the applicant’s rehabilitation as a result of the consequences of the sexual assault being properly addressed’. Whilst it was conceded that evidence of the sexual assault and its impact on the applicant is not ‘fresh’ in the strict sense, nonetheless it was submitted that the material provides an explanation for its not previously being disclosed. In particular, there appears to be a connection between the gunshot wound and the disclosure. In those circumstances, so it was submitted, in the interests of justice it was open to the Court to receive and act on the evidence.
The respondent submitted that the applicant having been shot on 14 April 2014, by the time that the plea was heard on 27 August 2014, the applicant had been in custody with his gunshot wound for four months. In a report dated 15 August 2014, tendered on the plea, Dr Terri Roberton, a clinical and forensic psychologist attached to the Metropolitan Remand Centre, identified the applicant as having suffered from ‘ a range of anxiety-related symptoms’ in response to being shot, but, at the conclusion of treatment in July 2014, the applicant ‘reported a significant decrease in the presence of anxiety-related symptoms’. Thus, so the respondent submitted, the evidence relating to the effects of the gunshot wound is neither new nor fresh, in that it was available to the applicant at the time of sentence, but a forensic decision must have been made to not explore the matter further despite Dr Roberton’s report. Further, it was submitted that the proposed evidence relied upon since that report does not demonstrate the true significance of facts in existence at the time of sentence.[39] The report of Ms Lechner, relied upon by the applicant in support of the submission that imprisonment is a greater burden upon him as a result of receiving the gunshot wound, does not explain how prison is a greater burden for the applicant. It appears that Ms Lechner has not considered the material obtained pursuant to subpoena from Justice Health, which shows that in January 2015 the applicant reported that he had no recent panic attacks; in February 2015 he reported that he was relatively fit and well; in March 2015 he declined a referral to a psychiatrist (although referred himself to the forensic team in September 2015); and, as recently as September 2015, he reported that his leg was ‘ok’.
[39]R v Nguyen [2006] VSCA 184, [36].
Furthermore, the respondent submitted that the disclosure of the applicant’s sexual assault and the purported connection to the applicant’s descent into drug use does not constitute fresh evidence. The history provided by the applicant discloses that he was assaulted by older children and adults at or about the time of the sexual assault, but the applicant does not identify the sexual assault as the beginning of his descent, nor does his mother (to whom he had earlier disclosed the assault). It was submitted that the matters relied upon were known (and available) to the applicant at the time of sentence, but were not put before the sentencing court.
In our view, the fact of the applicant having been shot should neither be regarded as fresh nor new evidence in the manner contemplated by authority. So far as he was able to do so on the material that was provided to him, the judge took into account the effects of the gunshot injury and the applicant’s efforts to deal with those effects. He observed:
… I have also been provided with a letter from Corrections Victoria Metropolitan Remand Centre concerning the efforts that you have made to deal with the effects upon you of the incident which occurred on the last day of the trial, and led to you being shot.
… You had a period in hospital as a result and no doubt you suffered both the physical and the emotional effects of that incident.
I have no evidence as to what effect that might have on you now, other than what is in the letter from the Melbourne Remand Centre, and what effect it might have on your future and your determination to rehabilitate yourself. …
Even were the material concerning the injury to the applicant’s leg to be considered new evidence, we would not be persuaded that it could have any real impact on the applicant’s sentence. In his affidavit of 23 October 2015, the applicant recounted that he has been receiving fortnightly physiotherapy for his leg injury which has improved his range of movement. He has also taken on light duties in the prison laundry (which involves sitting and folding sheets), but he continues to suffer nerve pain. There was scant material, however, to show in any meaningful way that, due to his injury, imprisonment would be more burdensome for the applicant than for other prisoners. So far as we were able to see, the available material suggested that the applicant was coping relatively well with any residual psychological effects of the wounding.
Moreover, we do not consider the material relating to the applicant’s sexual abuse to be fresh or new. The applicant was aware of the sexual abuse, yet he chose not to rely upon it in mitigation. But even were the abuse to be considered new or fresh evidence, any link to the present offending must be seen as tenuous. At best, it was one of a constellation of factors leading to the applicant’s substance abuse.
In a case of sexual offending against children, where there was evidence that the applicant had himself been sexually abused as a child by his father, Ormiston JA observed in AWF:[40]
Clearly evidence of this kind is relevant, certainly where there is no dispute as to the existence of the abuse and there is some expert evidence which would connect that abuse with the offender's subsequent misbehaviour. One should be careful, however, not to assume that abuse of that kind will automatically lead to some reduction of sentence. Otherwise there might be a plethora of unfortunate experiences put forward as the basis for similar reductions. In general it is not so much the cause that is important: rather it is the consequences which flow from those earlier events. If there is evidence to link them to a condition or state of mind which is a proper basis for viewing the criminality of an offender as less serious and for saying that specific or general deterrence (or both) should have a smaller part to play in the overall sentencing process, then that condition will have a greater relevance and significance.
[40]R v AWF (2000) 2 VR 1, 4 [6].
As we have mentioned, the applicant’s counsel suggested that there was a link between the applicant’s childhood abuse and his drug problem and associated offending. In her report of 15 October 2014 (prepared for the purposes of other criminal proceedings), Ms Lechner opined that the applicant ‘was the victim of sexual abuse as a child (not disclosed until many years later), this affecting his adolescent development’. Ms Lechner also thought that the ‘origins of his drug addiction date back to this time’. She added that the applicant ‘developed symptoms of PTSD’ at this time, and that ‘he appears to have suffered no learning, social or behavioural problems’ until the assault at ages eight or nine. In her second report, Ms Lechner stated that the ‘combination of [the applicant’s] PTSD condition, depressed mood (both undiagnosed and untreated) and his drug use, undermined his capacity for sound decision making, judgement, reasoning and capacity for impulse inhibition’.
The fact that the applicant’s drug problem arose from his troubled history, however, was not lost on the sentencing judge. He took it into account. We are unable to see that the interests of justice demand that the evidence relied upon as new be taken into account by this Court. No miscarriage of justice will flow from a failure to do so. The evidence could make no meaningful difference to the sentence first imposed.
Proposed ground 5 is without substance.
Conclusion
For these reasons, leave to add ground 5 is refused, and leave to appeal on grounds 1, 3 and 4 must be refused.
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