Russo (a pseudonym) v The King
[2024] VSCA 40
•22 March 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0019 |
| HARRY RUSSO (A PSEUDONYM) | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | NIALL and BOYCE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 February 2024 |
| DATE OF JUDGMENT: | 22 March 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 40 |
| JUDGMENT APPEALED FROM: | 2022 VCC 2104 (Judge Hampel) |
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CRIMINAL LAW – Appeal – Sentence – Whether sentencing judge erred by applying ‘broad‑brush’ approach to sentencing on charges of common law assault, intentionally cause injury and make threat to kill – Hoy v The Queen [2012] VSCA 49 applied – R v Albanus [2004] VSCA 236 distinguished – Error established.
CRIMINAL LAW – Appeal – Sentence – Whether applicant entitled to subjective benefit due to a willingness to facilitate the course of justice by pleading guilty in face of ‘weak’ prosecution case – Phillips v R (2012) 37 VR 594 applied.
CRIMINAL LAW – Appeal – Sentence – Whether there is a reasonable prospect of reduction to the total effective sentence – Criminal Procedure Act 2009, s 280(1)(b) – Case of ‘family violence’ – No reasonable prospect of reduction to total effective sentence – Leave to appeal refused.
Criminal Procedure Act 2009, s 280(1)(b).
Hoy v The Queen [2012] VSCA 49, applied; R v Albanus [2004] VSCA 236, distinguished; Kalala v The Queen (2017) 269 A Crim R 1, Pasinis v The Queen [2014] VSCA 97 & Skeates (a pseudonym) v The King [2023] VSCA 226, discussed.
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| Counsel | |||
| Applicants: | Mr D Dann KC | ||
| Respondent/s: | Ms J Warren | ||
Solicitors | |||
| Applicants: | Avi Furstenberg | ||
| Respondent: | Office of Public Prosecutions | ||
NIALL JA
BOYCE JA:
Introduction
The applicant pleaded guilty in the County Court to offences of violence committed upon his former wife (‘ZF’). He pleaded guilty to offences of breaching a court order that was designed for ZF’s protection. He pleaded guilty, also, to assaulting ZF’s son. All this offending took place between 2013 and 2017.
There were two indictments. The first indictment contained the offences involving ZF. The second indictment concerned ZF’s son. The first indictment contained nine charges of common assault,[1] three charges of causing injury intentionally,[2] one charge of conduct endangering persons,[3] two charges of make threat to kill[4] and three charges of persistent contravention of a family violence intervention order.[5] The second indictment contained one rolled-up charge of common law assault.[6] On 1 December 2022, the applicant was sentenced as follows:
[1]Contrary to Common Law.
[2]Contrary to s 18 of the Crimes Act 1958.
[3]Contrary to s 23 of the Crimes Act 1958.
[4]Contrary to s 20 of the Crimes Act 1958.
[5]Contrary to s 125A of the Family Violence Protection Act 2008.
[6]Contrary to Common Law.
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
Indictment J13301739.C 1 Common assault 5 years 3 years 1 month 2 Common assault 5 years 3 years 1 month 3 Causing injury intentionally 10 years 5 years Base 4 Common assault 5 years 3 years 1 month 5 Common assault 5 years 3 years 1 month 6 Common assault 5 years 3 years 1 month 7 Causing injury intentionally 10 years 5 years 2 months 8 Conduct endangering persons 5 years 3 years 2 months 9 Common assault 5 years 3 years 1 month 10 Make threat to kill 10 years 5 years 3 months 11 Common assault 5 years 3 years 1 month 12 Causing injury intentionally 10 years 5 years 2 months 13 Make threat to kill 10 years 5 years 3 months 14 Common assault 5 years 3 years 1 month 15 Common assault 5 years 3 years 1 month 16 Persistent contravention of family violence intervention order 5 years 12 months 1 month 17 Persistent contravention of family violence intervention order 5 years 12 months 1 month 18 Persistent contravention of family violence intervention order 5 years 12 months 1 month Indictment J13301739.D
1 Common assault 5 years 3 years 12 months Total Effective Sentence: 8 years imprisonment Non-Parole Period: 6 years imprisonment Pre-sentence Detention Declared: 78 days Section 6AAA Statement: Total Effective Sentence: 12 years
Non Parole-Period: 8 years
Other Relevant Orders:
1. Forfeiture Order
The applicant seeks leave to appeal against sentence on three grounds:
(1)The Sentencing Judge erred in her approach to the issue of totality by failing to impose appropriate individual sentences.
(2)The Learned Sentencing Judge erred in failing to recognise that the applicant’s guilty plea was worthy of additional credit, on account of the potential difficulty with the prosecution case at any trial.
(3)The individual charges, total effective sentence and non-parole period are manifestly excessive.
For the reasons that follow, we would refuse leave to appeal.
Circumstances of the offending
The applicant and ZF met in 2011. ZF was employed as the applicant’s book-keeper. In April 2012, the applicant and ZF commenced living together. ZF’s two children also lived with the couple. On 18 March 2017, the applicant and ZF were married. Over the course of their relationship, the applicant was violent to ZF as well as to ZF’s son.
The sentencing judge summarised the facts that related to the various charges. Charges 1 to 5 on the first indictment spanned the period from September 2013 to December 2014. The judge’s summary proceeded as follows.
Charge 1 is a charge of common assault where you kicked [ZF] in the face. No explanation, reason or context is provided for how that came about. She was knocked unconscious and taken to hospital by ambulance. Whilst at the hospital awaiting treatment, she said to you ‘you did this to me’. You then made her leave the hospital with you, before she could be assessed and treated.
Charge 2 is a charge of common assault. You became jealous when [ZF] spoke about her ex-partner, the father of her children, at a social function where, on leaving the function, you punched her, pushed her over and then when she was in the car punched her to the eye, causing a black eye, and swollen eyes and lip. You told her sister, who had been at home babysitting the children, that she had got drunk and fallen over.
Charge 3 is a charge of intentionally cause injury. On that occasion, having discovered that [ZF] had lunch with a female friend who you had told her not to see, punched her so hard that she fell over in the bath and you dislodged one of her teeth. Her children called the police and when the police arrived you told them that she had fallen over in the shower. That was a lie that she maintained as she continued to seek dental treatment for the broken tooth.
Charge 4 is a charge of common assault. You had become angry with [ZF] because she was upset and crying about something concerning one of her children. The crying was apparently disturbing you, so you hit her across the wrist so hard with a television remote control that she ultimately needed to seek medical attention to ensure that the wrist was not broken.
Charge 5 is a further charge of common assault. On this occasion for no stated reason, you pulled [ZF] by the hair, threw her into a butcher’s block in the kitchen, hit her in the ribs and threw her from a deck to the ground one metre below. She went to hospital to have her ribs x-rayed because of the pain and discomfort that she suffered.[7]
[7]Reasons for Sentence [6]–[10] (‘Reasons’).
A Family Violence Intervention Order was taken out in July 2014. That order was, apparently, later revoked on ZF’s application. The judge’s summary of the offending concerning Charges 6 to 18 continued; this covered a period from 2014 to 2017.
… Charge 6 occurred, that is a further charge of common assault ... [ZF] was pregnant. She had decided to leave the relationship and wanted to terminate the pregnancy because of the violent nature of the relationship. You did not want her either to leave or to terminate the pregnancy. On discovering that she was trying to leave, you assaulted her, kicking her in the stomach, causing her to fall back and bruise her back.
Charge 7 is one of intentionally cause injury. Again, it occurred when [ZF] was trying to leave you. You grabbed her by the throat and choked her. She put her hand up to your face in order to try and push you away and stop you choking her. You bit her hand so badly that it required suturing. When she went to hospital, she said she had cut her hand on glass.[8]
[8]Ibid [11]–[13].
The judge noted that the applicant ‘continued to threaten and assault [ZF] over the next year or more’.[9] The applicant ‘threatened to send sexual, intimate images of [ZF] to the principals of the schools her children attended’.[10] It was not long after this that ZF applied to have the intervention order withdrawn. There appeared to have been a period of separation followed by a reconciliation. In 2017, ZF was sentenced to a term of imprisonment. The judge’s summary continued.
[9]Ibid [14].
[10]Ibid.
Charge 8 is a charge of reckless conduct endangering a person. The two of you were having dinner. You took [ZF’s] phone from her to check who she was in contact with. She demanded the phone back and you refused to give it back to her unless she got into the car with you. When she got into the car, you drove away and whilst travelling at about 80kph, removed her seat belt, opened the door of the car and pushed her out of the car. She fell onto the road and you ran over her bag containing the phone, just missing her.
Charge 9 is a charge of common assault. That is on the same occasion as charge 8 where you had already thrown her out of a moving car. You told her that you would forget about it if she got back into the car. You kicked her so hard that she involuntarily urinated.
Charge 10 is a charge of threat to kill. You had been to Queensland with [ZF] and there you had asked her to marry you. She said no. You then assaulted her by kicking her. The assault occurred in or just outside a restaurant and the Queensland police were called. The police then took out an intervention order on [ZF’s] behalf. She and you returned to Melbourne shortly after that.
On your return you said to her, “I’ll never leave you alone. I’ll kill you and myself”. That constitutes Charge 10 of threat to kill.
Charge 11 is a charge of common assault. On that occasion an argument broke out after she had refused your sexual advances. You punched her to the side of her face and punched her in the eye. Police were called and found [ZF] hiding in the bedroom with her son. She was taken to hospital. You told police that you had been the victim, that you had been assaulted by [ZF] and that you were simply defending yourself.
Charge 12 is a charge of intentionally causing injury. On that occasion, [ZF] told you that she would not marry you, and that the relationship should come to an end. You grabbed her by the throat and choked her. She took a box cutter and held it towards you. You took it from her and slashed her on the arm with it. That slashing was so severe that she required many sutures in the arm. When she was taken to hospital for treatment, you said that she had slashed her arm by accident.
Charge 13 is a charge of threat to kill. Following an argument you said to [ZF], “I’ll kill you and say that you killed yourself”.
Charge 14 is a charge of common assault. You pushed [ZF] into a wall and choked her. She kneed you in the groin to make you stop. You left the house, and came back some hours later, and made sexual advances. [ZF] said no. You grabbed her by the throat pushed her onto the bed, and with both hands around her neck, pushed her down into the pillow until she felt her neck crack.
Charge 15 is a charge of common assault. On that occasion, following an argument in the car over [ZF] wanting to tell her family that she anticipated being sentenced to a term of imprisonment, you struck her, punched her to the eye twice and then tried to push her out of the car.
Charges 16, 17 and 18 are three charges of persistent breach of a Family Violence Intervention Order. Each charge spans a period of one month, that is the statutory period for such a charge and occurred over three consecutive months while [ZF] was serving the term of imprisonment to which I have already referred.
In total, during that time, of the 332 calls recorded from or to [ZF] on the prison Arunta system, 281 were calls that were between you and her. Over 100 of those over that three month period involved economic, electronic, financial, psychological and emotional abuse of her.[11]
[11]Ibid [15]–[25].
While ZF was serving the term of imprisonment that was imposed upon her in 2017, the applicant remained in the family home with her two children. The children, by this stage, had grown up and were described by the judge as having ‘just’ become adults.[12] During this period the applicant assaulted one of ZF’s sons. This was the offending included on the second indictment. The judge described this particular offending.
You punched him in the face while you were in the car taking him to the prison to see his mother. Then, having ordered him to get out of the car, you drove along the footpath straight at him at speed, just missing him as he jumped over a fence to get out of your way.[13]
[12]Ibid [3].
[13]Ibid.
The plea
At the plea the applicant submitted that he should be afforded credit for his guilty pleas on account of their utilitarian benefit. It was also submitted, however, that extra credit ought accrue because the applicant had, by virtue of his plea, exhibited a willingness to facilitate the course of justice. Such willingness was said to have arisen because the applicant’s pleas were delivered in the face of a Crown case that was described by the applicant as ‘weak’. The weakness inherent in the Crown case was said to derive from ZF’s dubious credit. The applicant, at the plea, focussed in this respect upon ZF’s criminal record. ZF’s record included offences of dishonesty resulting in the imposition of terms of imprisonment. Reliance was placed, also, on alternative and inconsistent accounts that ZF had given concerning some of the charges. An expert report had been commissioned by the prosecution which cast doubt on whether ZF was telling the truth about her having been bitten on the hand. There was a forged medical reference that ZF had provided to police. These matters, in combination, were said to make the Crown case ‘weak’.
The applicant relied upon the utilitarian aspect of his pleas of guilty entered, in particular, in a COVID setting as well as the impact that COVID would have upon his experience in custody. The applicant submitted that his guilty pleas should be treated as if they had been entered at the first available opportunity given that notwithstanding they were entered close to trial, this was only after the prosecution agreed not to proceed with a number of rape charges.
Sentencing reasons
In the Reasons the judge addressed the impact that the applicant’s offending had upon ZF. Various decisions of this Court which deal with the need for sentences imposed in cases of ‘family violence’ to ensure appropriate recognition is afforded to general deterrence and denunciation were cited by the judge.[14] The judge noted that the applicant’s offending was ‘a very serious example’ of this particular type of offending,[15] and that ‘[e]ach incident in itself was a serious example of its type, in terms of violence of the conduct, and the surrounding circumstances’.[16] Her Honour found that ‘[m]any of the hallmarks of coercive control [were] present in the circumstances’[17] of the present case, and thus the decisions of this Court dealing with ‘family violence’ had ‘particular and powerful application’.[18]
[14]The judge quoted from relevant dicta of this Court expressed in Kalala v The Queen (2017) 269 A Crim R 1 and Pasinis v The Queen [2014] VSCA 97.
[15]Reasons [31].
[16]Ibid [33].
[17]Ibid [34].
[18]Ibid [35].
The judge accepted the utilitarian value of the early pleas of guilty and noted that they should be afforded more weight than a court-door plea. However, her Honour rejected the applicant’s submission that the guilty pleas were worthy of additional credit by reason of weaknesses said to be inherent in the prosecution case. The judge did not accept that the applicant was remorseful. The issue of remorse and any willingness on the applicant’s part to facilitate the course of justice will be dealt with in greater detail later in these reasons.
The judge accepted there would be ‘additional onerousness of imprisonment by reason of covid’[19] and took into account the uncertainty caused by a delay of some four years during which the applicant had had rape charges (ultimately withdrawn) hanging over his head. As to the applicant’s criminal history, the judge stated:
I accept that you are to be treated for the purposes of Charge 1-6 as a person without any previous convictions, for Charges 7-13 you had one conviction only that counts as a previous conviction, one for unlawful assault, and for Charges 14-18 and for Charge 1 in relation to the victim [ZF’s son], you had a further conviction for unlawful assault, intentionally destroying property and contravention of the Family Violence Intervention Order.
So you come before the Court in respect of all charges as a man of either no, or relatively limited criminal history, and I take that into account. You had gotten to the age of 36 before any criminal convictions at all were amassed against your name. Again, I take that into account in your favour.[20]
[19]Ibid [44].
[20]Ibid [46]–[48].
Insofar as totality was concerned, the judge observed:
Having regard to the number of charges here, and the need to avoid a sentence that is crushing, whilst each individual sentence must reflect the seriousness of the individual offence, totality must be given proper deference so as to make the overall sentence reflective of the overall offending taken as a whole.[21]
[21]Ibid [54]-[55].
The judge, in the end, was unable to make any ‘affirmative finding’ in the applicant’s favour ‘in relation to prospects for rehabilitation based on [the applicant’s] conduct since this offending ceased’.[22] The judge assessed the applicant’s prospects of rehabilitation as ‘no better than guarded’.[23] The judge observed that:
Nothing was put on the plea to displace the overwhelming evidence that you are, and remain, a real threat to any woman unfortunate to attract your interest.[24]
[22]Ibid [59].
[23]Ibid [67].
[24]Ibid [65].
The judge considered that general and specific deterrence ‘play a significant role in the sentencing mix’ along with denunciation and protection of the community.[25]
[25]Ibid [66].
Towards the very end of the Reasons, and just prior to imposing sentence, the judge outlined the approach that she would take to the imposition of individual sentences on each of the charges. What the judge had to say in this regard is important when it comes to the resolution of the applicant’s ground 1. Thus it is as well to set out in full what her Honour had to say.
Now given the number of charges and the time over which they occurred, assessing individual sentences and the overall sentence is a difficult task. There is no point to be served in seeking to draw fine distinctions between each of the offences of common assault, each of the offences of intentionally cause injury, or the individual circumstances of the threats to kill.
Whilst there is a distinction to be drawn between the fact that you had no previous convictions in respect of Charges 1-6, only one conviction in respect of [ZF] of the Charges 7-13 and two sets of convictions in relation to her, for the last two assault charges and the three family violence breach orders, in my view no real distinction can be made for the purpose of overall sentencing.
So what I have decided to do, because I consider that each of the common assault offences are in themselves serious, I see no point in drawing fine distinctions measurable by weeks, months or years between the individual common assault charges. Each of them is serious, for the reasons that I have detailed.
Similarly, I see no purpose in fine and ultimately meaningless distinctions between the sentence for the intentionally cause injury charges, or for the sentences to be imposed in respect to the threats to kill. So what I have sought to do is to impose the same level of sentence for each of those clusters of charges, but to reflect the cumulative effect of them by modest cumulation orders, in order to mark each one separately and to achieve, as best I can, an overall sentence that reflects the overall offending. That is the structure that I have fixed upon.[26]
[26]Ibid [68]–[71] (emphasis added).
Grounds 1 & 3
Applicant’s submissions
The applicant argued grounds 1 and 3 together.
The applicant noted that for every individual charge of common assault a sentence of three years had been imposed; that for every individual charge of intentionally cause injury a sentence of five years was imposed; and that for each charge of threat to kill a sentence of five years was ordered. Also, for each individual charge of persistent breach of a family violence intervention order the judge had imposed a sentence of 12 months’ imprisonment.
It was submitted that if a distinction measured, say, in six to 12 months should have been drawn between individual sentences imposed for the offence, for instance, of common assault then it was inappropriate to have imposed the same individual sentence in respect of each and every common assault charge. Moreover, totality did not allow for the ‘imposition of inappropriately inflated individual sentences’. It was submitted that in failing to impose appropriate individual sentences the sentencing discretion had miscarried.
It was submitted, more generally, that the individual sentences, the total effective sentence, and the non-parole period were manifestly excessive in light of:
(a)the guilty pleas;
(b)the utilitarian benefit of the pleas with witnesses being spared the ordeal of giving evidence;
(c)the ‘Worboyes’ consideration;[27]
(d)additional credit due to the applicant for the pleas of guilty on account of the complainant’s ‘credibility issues’;
(e)the delay of four years between the charges being laid and sentencing;
(f)the fact that for a large part of that delay the applicant had had four charges of rape hanging over his head;
(g)the applicant’s very limited criminal history; and,
(h)the increased burden of imprisonment on account of the impact of the COVID‑19 pandemic on prison life.
[27]Worboyes v R (2021) 96 MVR 344.
In further particularisation of these grounds, the applicant submitted that the sentences imposed for the offences of threat to kill were out of step with current sentencing practices where, for relatively serious examples of this offence, a sentence in the vicinity of ‘upwards of 12 months’ imprisonment’ ought to have been imposed.[28]
[28]DPP v Reynolds [2022] VSCA 263, [16] was relied on.
It was emphasised that for charges 10 and 13 the applicant was not armed with a weapon and nor did he make threats towards multiple victims.
Oral submissions made in support of these grounds were, however, more focussed. The applicant concentrated, in particular, upon the manner in which the judge had chosen to differentiate between the different categories or species of the applicant’s offending when it came to the imposition of individual sentences. The applicant called into question, in this regard, the judge’s reasoning that is extracted at paragraph 18 above. The applicant submitted that it was an error of sentencing principle to impose ‘the same level of sentence for each of [the] clusters of charges’ in circumstances where it was apparent that her Honour’s conception of a ‘fine distinction’ was something potentially measurable in ‘months’ or even ‘years’. By no means could it ever be said that a difference potentially measurable in ‘years’ could ever properly attract the descriptor ‘fine distinction’.
In elucidation of how this erroneous approach must materially have contorted the sentencing process, the applicant cited the instance of the sentence imposed on charge 4 (common assault). This was the charge that alleged that the applicant had struck the complainant to the wrist with a remote control. It was put that in a case where the offender had pleaded guilty to this particular offence in circumstances that included all the mitigatory matters listed above a sentence of three years (which represented 60% of the maximum) was clearly manifestly excessive and was likely to be explained by the approach to sentencing where ‘months’ or ‘years’ had been relegated to a ‘fine distinction’.
The applicant cited the sentences imposed on the threat to kill charges. According to research undertaken by the applicant’s legal representatives, there had never before been a sentence of five years’ imprisonment imposed for the offence of threat to kill. Particular reliance was placed on the charge 10 sentence in this respect. Again, it was put that not only were the threat to kill sentences manifestly excessive but that the excessiveness was likely explicable by the judge’s seemingly mechanistic approach to the process of sentencing on individual charges.
Counsel made reference to sentences imposed at 50% of the maximum penalty for the offences of intentionally cause injury and sentences at 60% of the maximum for the conduct endangering serious injury charges. The applicant submitted that these sentences were manifestly excessive in circumstances where all the mitigatory matters — as already listed — were at play, including the pleas of guilty.
Respondent’s submissions
The respondent submitted that the judge had not erred as contended for by the applicant. Rather, the judge had ‘carefully considered the circumstances of each of the offences when formulating her sentence’. The applicant’s argument which contended that the judge had applied a mechanistic approach was simply a ‘structural argument’. It was submitted, relying on what Callaway JA had to say in R v Albanus,[29] that the judge was entitled to take a ‘broad-brush’ approach to what was an exceedingly difficult sentencing exercise. It was submitted that so long as the individual sentences and total effective sentence were within range then there was no necessary error in the sentencing judge’s approach.
[29][2004] VSCA 236, [9] (‘Albanus’). In Albanus, the applicant had been sentenced to six months’ imprisonment on two charges of common assault. One involved throwing a fire extinguisher at a man who had been pestering the applicant’s girlfriend; the other involved throwing the fire extinguisher at a police officer who had attended in order to assist.
The respondent focussed, in particular, upon the charge 1 sentence and submitted that, notwithstanding a sentence of three years was imposed, a sentence of four years could arguably have been within range. The respondent pointed to other instances of offending where the applicant might have received greater individual sentences. The endangerment offence which involved the applicant pushing the complainant out of a car travelling at 80kms per hour (charge 8) was cited as a relevant example in this respect. It was submitted that the base sentence, the five-year term imposed in respect of charge 3, was ‘well within range’. A similar submission was made concerning the occasions where lacerations were caused (charges 7 and 12).
The respondent submitted that it was wrong to look at each instance of offending in isolation given that the complainant had been subjected to a relationship of protracted violence. Indeed, it was the context or background of an ‘incredibly violent relationship’ that could explain, for example, sentences of the magnitude imposed for the threat to kill offending.
The respondent emphasised that the orders for cumulation, certainly on the first indictment, were very low. Thus, whatever could be said about the individual terms, the total effective sentence was ‘certainly well within range’. As to the one year’s cumulation on the second indictment, the respondent submitted that this was unremarkable in view of the fact that this offending involved a separate victim and the relevant charge was a ‘rolled-up’ charge.
The respondent emphasised that the courts must respond to family violence by imposing appropriate sentences that satisfy the need for general deterrence, denunciation and appropriate punishment.
Consideration
The applicant’s submission that the judge committed an error of sentencing principle in her approach to the imposition of sentence on individual charges on the first indictment has some force.
It is apparent that her Honour, in the exercise of the intuitive synthesis, saw no point in drawing ‘fine’ or ‘ultimately meaningless’ distinctions when it came to the imposition of individual sentences on each of the respective charges of common assault, intentionally causing injury and threat to kill. As it happened, all instances of common assault attracted imprisonment of three years; all instances of intentionally causing injury five years; all instances of threat to kill five years.
Such an approach to sentencing, often described as ‘broad-brush’, will sometimes be appropriate. For instance, in Hoy v The Queen,[30] Redlich JA observed:
When a sentencing judge is required to impose terms of imprisonment on a large number of counts, it has often been recognised that the sentencing judge may, within limits, adopt a ‘broad-brush’ approach to the fixing of sentence. For example, such an approach may be appropriate where there was an ongoing fraudulent course of conduct, a single fraudulent or common enterprise or where the criminal behaviour on counts was of a similar and repetitive nature.
There is much authority to the effect that sentences imposed in such circumstances need only be roughly proportional to the gravity of the offences and the amount taken. This is not the first time that it has been necessary to state that structural objections to the sentences imposed in such cases is to be discouraged unless they reveal error in the instinctive synthesis. Where a judge is entitled to adopt a broad-brush approach, disconformity between sentences on particular counts will not usually provide a sufficient basis to impugn the instinctive synthesis.[31]
[30][2012] VSCA 49 (‘Hoy’).
[31]Ibid [17]–[18] (citations omitted).
Nettle JA, in Hoy, had this to say:
Punctilious identification of distinguishing features as between offences doubtless has a role to play in some sentencing exercises. But, in cases like this, involving multiple counts of systematic and serious fraud, its utility tends to be limited.[32]
[32]Ibid [25].
The essence of the applicant’s complaint was, however, that it was evident that the judge’s conception of a ‘fine distinction’ was one that was potentially ‘measurable by weeks, months’ or perhaps even ‘years’. Any distinction, in a case like the present, measurable in ‘months’ or ‘years’ — with the greatest respect — does not seem readily to attract the adjective ‘fine’. Were it otherwise, the ‘brush’ might be thought to be overly ‘broad’.
Whilst we think it was defensible for the judge not to make any distinction concerning the applicant’s prior convictions such as they were at different points in the chronology; and whilst the judge’s notion of a ‘fine distinction’ measurable potentially in ‘years’ was made expressly referable only to instances of common assault, it is difficult to conclude with confidence that her Honour’s rather broad conception of ‘fine’ did not infect the sentences imposed on the charges of intentionally causing injury or threat to kill.
Certainly, application of a ‘distinction’ that was measurable in ‘years’, and conceived of as ‘fine’, was perhaps most evident when it came to a comparison between the charge 4 common assault sentence and other, objectively more serious, instances of that particular offence. But even if only instances of common assault were affected by the judge’s overly broad‑brush, this still represented 50% of the charged criminality dealt with on the first indictment.
Leaving aside whether distinctions in ‘months’ or ‘years’ were in fact made between the separate charges of intentionally causing injury, on the one hand, and the instances of make threat to kill on the other, in circumstances where there were only two instances each of these particular charges, it is difficult to conclude that the circumstances of those charges alone permitted, in the manner described in Hoy, utilisation of the so-called broad-brush approach.
If, as we consider it to be the case, the judge erred by sentencing in accordance with the broad-brush approach (either by applying that principle too broadly or by applying it at all), we are not persuaded that this error can be overcome simply by asking whether any individual sentence produced as a result of this exercise was manifestly excessive. In this sense, Albanus (relied on by the respondent) is distinguishable.
In Albanus, the applicant was sentenced to six months’ imprisonment on two charges of common assault. One such charge (count 4) involved the throwing of a fire extinguisher at a man who had been pestering the applicant’s girlfriend; the other (count 5) involved throwing the same fire extinguisher at a police officer who had attended the scene in order to assist the earlier victim. A submission was made complaining about the sentence imposed on count 4 on the basis that the count 5 conduct was essentially the same, and yet the latter offending had been committed upon a police officer in the execution of her duty. The judge had imposed the same sentence on counts 4 and 5 and had ordered the same level of cumulation on each charge. Counsel submitted that a lesser sentence ought to have been imposed on count 4 as well as a lesser amount of cumulation on that charge. In answer to that submission, Callaway JA characterised this submission as a ‘structural argument’ that was of a type that ought be ‘discouraged’.[33] His Honour continued:
It is only against individual sentences and orders for concurrency and cumulation that an appeal may be brought: see R. v. Boucher. If the sentence on count 4 is within the range and the measure of cumulation directed is justified, no complaint can be made by way of comparison with the sentence imposed on count 5 unless the disconformity is such as to impugn the instinctive synthesis. Usually, that is not the case because, within limits, a judge is permitted to adopt a broad-brush approach in fashioning an appropriate total effective sentence in a case like this.[34]
[33]Ibid [9].
[34]Ibid.
Although asking the question whether a sentence was within range might be an acceptable means of resolving the issue that presented itself in Albanus, this case was different. For one thing, in Albanus there was no suggestion that the sentencing judge had included within adoption of the ‘broad-brush’ approach to sentencing on individual charges (an approach which was thought to be permissible in that case) a distinction that was measurable potentially in years.
The applicant’s contention of principle made under cover of ground 1 must, in our view, be upheld. In other words, as difficult as the present sentencing exercise may have been, we do not consider that adopting a ‘broad-brush’ approach was appropriate in this case; alternatively, if perhaps in some limited instances adoption of this approach was proper, we are not persuaded that the judge applied it correctly. As indicated, it is no answer to this complaint of error simply to say that certain individual sentences may not — by hindsight analysis — be manifestly excessive, or, indeed, is it such an answer to submit that the total effective sentence is within range. The applicant was, in our view, entitled in this case to have the sentencing discretion brought to bear properly upon each individual charge in the conventional manner.
Ground 2
Although the applicant’s success on ground 1 makes it strictly unnecessary to consider grounds 2 and 3, in the event of re-sentence by this court the applicant would contend that he is entitled to extra credit due to his willingness to facilitate the course of justice given that his pleas were offered in the face of a ‘weak’ prosecution case. As foreshadowed above, it is now necessary to turn to that issue.
Ought the applicant be accorded a subjective benefit for having entered pleas of guilty in the face of a ‘weak’ prosecution case?
The applicant’s argument in this respect appears to rely quite heavily on the reasons of Redlich JA and Curtain AJA in Phillips v R.[35] According to their Honours, the fact that an offender pleads guilty in the face of a weak Crown case may provide subjective grounds for leniency on the basis of a willingness to facilitate the course of justice. This benefit is additional to the utilitarian, or objective, benefit that may flow on account of a plea of guilty.[36] But the strength, or otherwise, of a prosecution case may have no bearing on an offender’s subjective state. It does not always follow, for instance, that where a plea is entered in the face of a strong or overwhelming Crown case that an offender will be precluded from obtaining mitigatory benefits connected with the plea that are of a subjective variety such as the existence of remorse.[37] It is a matter of context to be determined by reference to the circumstances of each individual case.[38]
[35](2012) 37 VR 594 (‘Phillips’) (reasons in which Maxwell P agreed at 598 [1]–[2]).
[36]Phillips, 605 [36] (Pt 8).
[37]Ibid 612 [61], 613 [64], 614–6 [68]–[73].
[38]Ibid.
Obviously enough, for the applicant’s submission to succeed in this case it must first be established that the present Crown case could legitimately be characterised as ‘weak’.
The problems with the Crown case identified by the applicant were, as was put on the plea, said to relate to various ‘credit issues relating to the complainant’. The applicant in this Court essentially repeated what had been put in this regard on the plea. It is unnecessary to repeat in any detail what has already been summarised above.
The respondent took issue with the applicant’s initial premise, namely, that the Crown case could properly be described as either compromised or weak. The respondent submitted that, to the contrary, there was a ‘wealth of corroborating evidence’ directly connected with a number of charges and that this evidence had the capacity to restore the complainant’s credit generally.
The respondent listed this corroborating evidence in some detail. For instance, in respect of charge 1 — where it was alleged that the complainant had been knocked unconscious by the applicant — there were relevant hospital records. As to charge 2 — where the allegation was that the complainant had been punched in the eye — there was a photograph taken of the complainant’s injuries as well as medical records. For charge 3 there were dental records. The alleged offending in respect of charge 7 (the biting of the hand) was corroborated by hospital records. On charge 11 there was evidence that police had attended the victim’s home and observed swelling to the victim’s eye and lip as well as grazes to her neck and forehead. The complainant had also made a contemporaneous complaint to police. Hospital records of medical treatment supported the commission of charge 12 (the box cutter to the arm). The complainant had required sutures. In respect of charge 15, the victim’s son saw the injury to the victim’s eye. As to charges 16 to 18 (the persistent breaches of family violence orders), these were all recorded on the prison Arunta system.
It was submitted that in the face of this corroborative evidence the applicant was certainly not entitled to the subjective benefit sought as a result of pleas made in the face of a weak Crown case. The Crown case simply was not weak.
In determining whether the applicant is entitled to the particular subjective benefit that he seeks it is helpful to examine in some detail the manner in which the sentencing judge dealt with the significance of the applicant’s pleas.
Although the plea was a late one — it having been indicated on the first morning of the trial after charges of rape were withdrawn — her Honour observed that:
The resolution involved not proceeding with rape charges which had initially been laid and which were ultimately not pursued.[39]
[39]Reasons [38].
In view of the fact that the resolution achieved had first been floated after committal, about 8 months prior to sentence, the judge was persuaded, as her Honour put it, to:
Give the guilty pleas more weight than a court door plea would normally obtain.[40]
[40]Ibid [39].
Dealing directly with the precise issue now under discussion, the judge held that she:
[Did] not consider the case was a weak one, and that the guilty plea in the circumstances requires more weight than would ordinarily be given to a guilty plea because of its significance in advancing the interests of justice.[41]
[41]Ibid [40].
In her Honour’s view, the ‘circumstances detailed in the prosecution summary’ demonstrated:
a very powerful case and the matters that were relied on as going to the credibility of the complainant… are of little moment.[42]
[42]Ibid [41].
The sentencing judge took into account the utilitarian benefits that flowed consequent upon the applicant’s pleas of guilty. In particular, the sentencing judge took into account ‘as reducing the sentence otherwise appropriate’ that the guilty pleas meant that the victim and her son were ‘spared the ordeal’ of having to give evidence, ‘spared the indignity of being challenged on the truthfulness of their account, and spared the experience of having yet again to relive the circumstances’.[43]
[43]Ibid [42].
When it came to subjective matters that might accrue to the applicant’s benefit, the judge rejected that the applicant was remorseful. The judge said that she was:
Not satisfied, for reasons I will detail later, that the guilty pleas evidence, or were accompanied by any remorse.[44]
[44]Ibid [43].
It is necessary to set out what her Honour had to say concerning remorse because it provides a helpful context against which the applicant’s case for subjective benefit may be assessed more generally.
Troublingly, no evidence of any insight, contrition or preparedness to change your attitude to relationship with women was placed before me on the plea. Apart from those court door guilty pleas there is no evidence of any acceptance of responsibility for your conduct and no evidence of any acknowledgement of its wrongness.
It was notable that on the plea the only matters that were put before me in relation to the circumstance of the offending were victim blaming or responsibility shifting, e.g. pointing to the evidence that [ZF] had given the explanations for her injuries which did not implicate you at the time that she was seen by police, paramedics, at hospitals or doctors rooms, or dental surgeries, the assertion, as if it were a mitigating factor, that it was [ZF] who had initiated the phone calls from the prison where you had abused and threatened her in breach of the intervention order, and a gratuitous detailing of [ZF’s] criminal history for dishonesty.
A psychological report was tendered at the last minute, and it contained an explanation or justification for your conduct which sat at odds with the facts which, by then, you by your guilty plea and by your acceptance of the prosecution summary had admitted. Again, that reinforces the concerns I have about the absence of any evidence of contrition or remorse, acceptance of responsibility or preparedness to change your ways.
The psychological report is of very limited value. Despite the fact that I had granted an adjournment of the plea so a report could be obtained, the psychologist was not given any detail in relation to any of these offences, or apparently any indication of the charges before me. The material provided to the psychologist in relation to pending charges addressed a different, less serious and more limited set of circumstances.
The history and explanations provided by you to Mr Cunningham sat at odds with these charges and the admissions constituted by your pleas and acceptance of the prosecution summary in respect of them. So in that sense, the content of the psychological report serves only to support my conclusion that there is no evidence of remorse, contrition, acceptance of responsibility or preparedness to change your ways. The one positive that can be taken from it is that there is no evidence of any mental illness or psychological condition that would prevent you from engaging in rehabilitative programs addressing the causes of the offending, should you choose to do so.[45]
[45]Ibid [60]–[64].
It is apparent that the sentencing judge was not in any way satisfied that the Crown case was weak, indeed she thought that the prosecution case was strong. The judge was also entirely unpersuaded that the applicant was subjectively remorseful, although this conclusion derived from evidence that had nothing to do with the strength of the Crown case.
It seems to us that not only was it open to the judge to reject the contention that the applicant ought be afforded some subjective benefit (that is to say, on account of him having exhibited a desire to facilitate the course of justice) for having pleaded guilty in the face of a weak prosecution case, in point of fact that conclusion was entirely correct.
Whether describing the Crown case as ‘very powerful’ was apt, it certainly could not be described as ‘weak’.
But even if — in the alternative — the Crown case was ‘weak’, the general evidential context to which an appeal must be made in this field of endeavour according to Phillips hardly established a desire on the applicant’s part to facilitate the course of justice. If anything, the applicant’s pleas had all the hallmarks of a pragmatic decision taken by the applicant upon the Crown’s decision to withdraw the more serious rape charges. A resolution of this nature had earlier been ‘floated’ but not pursued, when the resolution was pursued it became a reality.
It follows that we would reject Ground 2.
Sections 280(1)(b) of the Criminal Procedure Act 2009
Is there a reasonable prospect of reduction to the total effective sentence?
But the existence of sentencing of error will not avail the applicant if ‘there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence’ despite the error committed.[46]
[46]Criminal Procedure Act 2009, s 280(1)(b).
The applicant’s position was that there was such a reasonable prospect. The applicant did not impugn the orders for cumulation imposed upon the base sentence on the first indictment. It was contended, nevertheless, that there ought be a reduction to the total effective sentence on that indictment because the base sentence was apt to be reduced, namely, the five-year term imposed on charge 3. Whilst the applicant did not complain about the orders for cumulation on the first indictment, he did contend that there should be a reduction in the cumulation of one year ordered on the second indictment.
Does there exist a reasonable prospect of reduction to the total effective sentence, notwithstanding error, taking into account all the circumstances of the case — matters that include those in mitigation relied upon by the applicant in this Court? This Court must consider for itself what it regards the appropriate sentence, both in terms of its individual components and total effective sentence, should be.
Having done that exercise, we do not think that such a reasonable prospect exists.
This was a case of ‘family violence’. The sentencing judge was very much alive to this aspect of the case. Her Honour cited important pronouncements of this Court referable to the need properly to punish offenders who engage in this form of offending. Those general pronouncements were relatively recently repeated by this Court in Skeates (a pseudonym) v The King.[47]
[47][2023] VSCA 226.
In our view, taking into account the nature of the applicant’s offending and then giving due weight to all matters that can be said in favour of the applicant by way of mitigation, there is no reasonable prospect that this Court would impose a lesser total effective sentence despite the error of sentencing principle that has been established.
More particularly, even if it could successfully be maintained that certain of the individual sentences imposed in the County Court should be reduced (including the base sentence) in line with the applicant’s submissions, and even if the level of cumulation on the second indictment was to be reduced as sought by the applicant, it seems to us that on any re-sentencing exercise the orders for cumulation on the first indictment (to which the applicant understandably took no issue) would need to be increased and thus would more than compensate for any such reduction.[48] The levels of cumulation ordered in the County Court were, in our view, simply derisory.
[48]As was appreciated at the oral hearing in this Court, any resentencing exercise would have to factor in that charges 14 to 18 on the first indictment and the charge of assault on the second indictment were committed in breach of a CCO imposed on the applicant on 13 December 2016.
Conclusion
Leave to appeal must therefore be refused.
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