Sean Moore Saxton v The Queen
[2017] VSCA 357
•5 December 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0089
| SEAN MOORE SAXTON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | SANTAMARIA and COGHLAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 November 2017 |
| DATE OF JUDGMENT: | 5 December 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 357 |
| JUDGMENT APPEALED FROM: | DPP v Saxton (Unreported, County Court of Victoria, Judge Ryan, 11 April 2017) |
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CRIMINAL LAW – Appeal – Four charges of recklessly cause injury and one charge of assault – Victim applicant’s wife – Family violence over several years – 7 months and 14 days’ imprisonment and 2-year CCO – Whether manifestly excessive – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Stary Norton Halphen James Dowsley & Associates |
| For the Crown | Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
SANTAMARIA JA
COGHLAN JA:
On 1 December 2016, the applicant pleaded guilty to four charges of recklessly causing serious injury and one charge of common law assault. The victim was the applicant’s wife. On 11 April 2017, the applicant was sentenced in the County Court as follows:
Charge Offence Maximum Sentence Cumulation 1 Recklessly cause injury [Crimes Act 1958 s 18] 5 years 3 months’ imprisonment and 2-year community correction order (‘CCO’) 1 month 2 Recklessly cause injury [Crimes Act 1958 s 18] 5 years 60 days’ imprisonment and 2-year CCO 14 days 3 Common law assault
[Common law & Crimes Act 1958 s 320]
5 years 4 months’ imprisonment and 2-year CCO Base 4 Recklessly cause injury [Crimes Act 1958 s 18] 5 years 3 months’ imprisonment and 2-year CCO 1 month 5 Recklessly cause injury [Crimes Act 1958 s 18] 5 years 3 months’ imprisonment and 2-year CCO 1 month Total effective sentence: 7 months and 14 days’ imprisonment and 2-year CCO Pre-sentence detention declaration 119 days Remand date 1 December 2017 Section 6AAA Statement 2 years’ imprisonment with non-parole period of 15 months Other relevant orders · Supervision
· Medical assessment and treatment
· Mental Health assessment and treatment
· Offending behaviour programs
The applicant now seeks leave to appeal his sentence.
Proposed ground of appeal
The applicant has proposed the following ground of appeal:
Ground 1 — That the sentence was manifestly excessive in all the circumstances.
Particulars of manifest excess
a) Failure to give any, or any appropriate, weight to the delay of nearly 3 years before charging;
b) Failure to give any, or any appropriate, weight to the particularly onerous time endured by the applicant on remand;
c) Failure to give any, or any appropriate, weight to contemporaneous and unqualified admissions and request for help from the applicant;
d) Failure to give any, or any appropriate, weight to the accused voluntarily seeking treatment for his Mental Health Issues;
e) Failure to give any, or any appropriate, weight to prior good character of the applicant;
f) Affording undue weight to the accused’s stated belief that he was trying to protect his children from the complainant;
g)Assessing the objective gravity of the offending as serious.
The argument that the sentences are manifestly excessive is based on each of the particulars, or a combination of them.
Circumstances of offending
The circumstances of the offending are set out in the judge’s sentencing remarks:
On 23 March 2017, your plea in mitigation was conducted. Tendered as Exhibit A on the plea was the further amended summary of prosecution opening which was read aloud in court. In summary, your offending occurred between September 2009 and October 2010. Your victim was your wife who you met in 1999 when you were both students at Melbourne University; you were married in 2002. Initially you lived in Moonee Ponds, with you working as a solicitor and your wife working as a librarian at Melbourne University. There are two children of the marriage, a boy born in 2006 and a girl born in 2008.
In October 2003, you suffered an epileptic seizure and this caused you to cease work as a solicitor. Your mental health deteriorated, which had an impact on your family. Over time, you forced your wife to relinquish all her financial independence to you. After the birth of your son, the relationship with your wife deteriorated and you argued repeatedly. In 2009, you became violent towards your wife.
In August 2009, you, together with your wife and young family moved from Moonee Ponds to Sunbury. The offences on the indictment occurred against a background of your increasing exercise of control over your wife, and the restriction of her freedom. Whilst you were at home or studying you demanded that she spend her free time at home with you and that she complete all chores within the home.
Sometime between 1 September 2009 and 22 September 2009, whilst you were at home with your wife, you became angry with her and you punched her with a closed fist to the face. This caused your wife to suffer a bruise beneath her right eye. (Charge 1)
On 9 October 2009, whilst at home with your wife, you again became angry with her for falling asleep and not spending time with you. You struck her numerous times to the head with an open hand. You told the complainant to leave the house and she fled to her parents’ home. (Charge 2)
Your marriage continued to deteriorate and your wife’s situation at work became precarious. Because of your controlling attitude towards her, your wife was frequently forced to remain at home during the working week and her frequent absences from work put her employment at risk.
On 7 March 2010, you and your wife were at home in the study. You were teaching your wife to play chess on a computer. You became angry with her for making mistakes. You grabbed your wife by her left arm and twisted it. It made a cracking sound and you said to your wife, ‘I warned you to pay attention but you kept making mistakes.’ (Charge 3) You apologised to your wife for your conduct but added that she made you do it. Because of your indifference towards your wife and the pressures she felt because of your conduct towards her it took some days before your wife was properly attended to and on 11 March she received proper treatment and her arm was put in plaster.
On an evening in early August 2010, you were at home with your wife in bed when, for no apparent reason, you became angry and punched the complainant to the jaw. Your wife suffered a bruise to the jaw area. (Charge 4)
On 28 October 2010, when you and your wife were at home in the bedroom, you demanded that she give you a shoulder massage. She complied but kept falling asleep. You told your wife that she was falling asleep because she was not looking after you properly and that she would have to stay home from work the following Friday or Monday. When your wife said that staying away from work might result in her losing her job, you became angry and ultimately held her down on the bed with one hand and punched her numerous times with the other. (Charge 5)
Matters came to a head on 3 November 2010 when you called your wife while she was at work. You demanded that she return home to clean the stove. She was frightened to go home and so arranged to stay with her parents. Whilst discussing your wife’s decision to stay with her parents, you mentioned that you were experiencing suicidal thoughts. Some two days later, on 5 November, your wife received a telephone call from your father. Your father told your wife that you had been threatening to commit suicide. Your wife telephoned home to check on the welfare of your children and her mother called triple zero because of your suicide threats. Police intervened and you were admitted to hospital for psychiatric assessment. Effectively, this was the end of your marriage.
Your wife did not complain to police about your conduct until June 2012. You were interviewed under caution on 8 January 2013 and by this stage you were living in Creswick. You made admissions concerning your conduct but they were self-serving and to my mind bordered on the delusional. You asserted that you were forced to act in the way that you did because your wife was putting the safety of your children at risk. There is no evidence that this was the case.[1]
[1]DPP v Saxton (Unreported, County Court of Victoria, Judge Ryan, 11 April 2017) (‘Reasons’) [3]–[13].
Procedural history
It is necessary to set out briefly the procedural history of the plea hearing and sentence. The plea hearing commenced on 23 March 2017.[2] It was submitted on behalf of the applicant that a non-custodial sentence was appropriate. Toward the end of the hearing, the applicant’s counsel informed the judge that the applicant was to be sentenced in the Magistrates’ Court on 28 March 2017 for another offence, the disposition of which might affect the judge’s sentence. The judge therefore adjourned the proceeding to 31 March 2017 for further plea and sentence.
[2]It had been due to commence on 30 January 2017, but was adjourned on the day to allow the applicant further time to obtain a report on his mental condition.
The applicant was deemed unfit to appear on the resumption of the plea on 31 March 2017. It was revealed to the judge that the applicant had been sentenced in the Magistrates’ Court at Heidelberg the previous day to 14 months and 14 days’ imprisonment, and that the applicant was under psychiatric observation due to risk of self-harm. The judge queried whether a notice of appeal had been lodged, and said:
… I had intended to impose a term of further imprisonment on Mr Saxton with a community corrections order, but a short term of imprisonment.
The sentence of the Magistrates’ Court makes that untenable at this stage because he would be in custody when I had intended him to be at liberty undergoing a community corrections order. Now, once a notice of appeal is lodged, it’s stayed and then I can, subject to what we think ought to happen in the future — and I mean that in these terms, I want to be assisted by counsel in that respect — when he faced any appeal court, that appeal court would be faced with my sentence, not the sentence of the Magistrates’ Court. As an effective sentence, with one being the subject of an appeal then stayed, it may be that that might have some influence upon the judge who sits in appeal, or not, as the case may be.
The proceeding subsequently resumed on 11 April 2017. The hearing commenced with the issue of the appeal against the Magistrates’ Court sentence:
Counsel:… The solution, as best as the heads at the Bar table can come up with, is that … the appeal be lodged and then the appeal be listed in front of either Your Honour or another County Court judge to have the orders of the Magistrates’ Court set aside.
Judge: Whoever does that will be part heard in respect of that appeal.
Counsel:Yes. Whilst not seeking to influence the processes by which cases are allocated, there would be a significant advantage to all concerned should Your Honour remain in it rather than going through the significant amount of history that has come about.
Judge: Yes. When would that appeal likely to be listed before me.
Counsel:Well it would be my hope and I’m not sure if this is possible, but if it’s feasible, it could be listed at least for mention before Your Honour today and I’d liaise obviously with the criminal trial listings directory and ensure that that takes places.
Judge: All right.
Counsel: And then Your Honour could set the order aside, sentence on the County Court and then have the appeal at a date – – –
Judge: To be fixed.
Counsel: – – – to be fixed convenient for the parties.
Judge: All right. I’m amenable to that …
Before the judge sentenced the applicant for this matter, he set aside the Magistrates’ Court sentence and adjourned the hearing of the appeal. The conduct the subject of the appeal related to violent behaviour towards his new partner.
In the event, the judge heard the appeal on 12 May 2017 and sentenced the applicant to be imprisoned for 10 months. That sentence was to be served concurrently with the sentence the subject of this application. It did effectively postpone the date of commencement of the CCO until the two sentences had been completed.
It emerged at the hearing of this application on 3 November 2017 that the applicant has served the custodial portion of the sentence imposed by the judge. In addition, we were informed that the applicant has been committed for trial at Ballarat in a case due to start early next year.
Sentencing remarks
The judge’s sentencing remarks were carefully expressed. After describing the applicant’s offending, extracted above, the judge noted the history of the prosecution, and the causes of delay:
… You were served with a hand-up brief in this matter on 23 October 2013 and a committal took place on 14 February 2014 during which your wife was cross-examined. A trial date of 12 March 2015 was fixed but was adjourned to 29 February 2016, owing to fitness issues in respect of you. On 22 February 2016, because of your conduct at a directions hearing, a CATT team[3] was summoned and you were hospitalised. The trial date was adjourned until 28 November 2016.[4]
[3]Crisis Assessment and Treatment Team.
[4]Reasons [15].
The judge referred to a psychiatric report by Dr Best tendered on the applicant’s behalf, and accepted that the applicant’s ‘mixed borderline and narcissistic personality structures’ meant that gaol would be more onerous for the applicant and increase the risk that his mental condition would deteriorate.
The judge recorded the matters personal to the applicant.
When dealing with the applicant’s guilty pleas, the judge said:
It was accepted that your conduct was cowardly and fell a long way short of the minimum standard appropriate for a husband. [Your counsel] emphasised the utilitarian benefit of your plea and that your plea was evidence of remorse. Further, he submitted that your plea should be regarded as one entered at the earliest opportunity. However, your offer to plead guilty to what were effectively the alternative charges on the trial indictment came at the commencement of the trial and there had been no offers of settlement made by you prior to that point in time.[5]
[5]Ibid [28].
As to evidence of remorse, the judge said:
[Your counsel] emphasised that you had made significant admissions in the record of interview and had cooperated with authorities and had even made contemporaneous admissions to a priest during the course of your offending conduct. Whilst it is true you made admissions as to your offending conduct to the police, you justified your conduct by alleging against your wife that she was placing your children in danger. There is no evidence before me to support this allegation and to my mind any remorse that you express is qualified. You have little insight into your offending.[6]
[6]Ibid [29].
The judge noted the applicant’s lack of criminal history and subsequent offending:
You are a man without prior conviction. However, I was informed that you had been charged with a number of subsequent offences which were generally described as a stabbing that was to be heard in the Magistrates’ Court at Heidelberg on 28 March, as well as sexual offences that will be the subject of committal proceedings in the future. I was informed that on 24 February you were sentenced in the Magistrates’ Court to one month’s imprisonment for contravention of an intervention order and served some 12 days of that sentence prior to lodging an appeal and being bailed. I must take that time into account when sentencing you …[7]
[7]Ibid [35].
The judge considered that the applicant’s prospects of rehabilitation were ‘guarded’.[8]
[8]Ibid.
The judge also referred to the medical evidence following the sentence in the Magistrates’ Court on 30 March 2017 that led to his failure to attend the County Court on 31 March 2017:
… You reacted badly to the sentence of imprisonment and would not speak and refused to eat. You were put on suicide watch and placed in a Muirhead cell.
On 1 April you decided to go on a hunger strike ‘until I went home.’ On 3 April you reported to a psychiatric registrar that the sentence of 14 and a half months imposed by the Magistrates’ Court at Heidelberg was ‘very unexpected’ by you and you felt aggrieved by it. You were still in a Muirhead cell but you exhibited no evidence of mood or psychotic disorder. The following day you were seen by a psychologist who noted that you engaged well and that a reaction to the sentence of imprisonment caused you to feel unable to eat, but by 1 April you had deliberately decided to starve yourself as it allowed you to take control of something.[9]
[9]Ibid [37]–[38].
Regarding the gravity of the applicant’s offending against his wife, the judge stated:
I regard your offending as serious. Against a background of ever-increasing control over your wife, you assaulted her on five occasions and on one of those occasions broke her arm. Your wife live in fear of you. Her employment was put in jeopardy. Violent conduct by a husband towards his wife within the home is a cancer in our community. In my view, the principles of general and specific deterrence apply to you, as do the sentencing principles of just punishment and denunciation.[10]
[10]Ibid [40].
Submissions
In the written case for the applicant dated 17 May 2017, the particulars are repeated, and the evidentiary propositions supporting the complaints are set out under each particular, except for particular (c). Although, under the heading ‘Assessing the objective gravity of the offence as serious’, the following paragraphs appear:
There were a number of factors in this case which is submitted place it at the middle to lower range for these offences:
(a)The injuries sustained (broken arm excepted) were at the lower end of the scale;
(b) The broken arm sustained was neither intended nor reckless;
(c) There was no use of weapons;
(d) The applicant pleaded guilty. This:
i.facilitated the administration of justice,
ii.spared witnesses the trauma and inconvenience of giving evidence on trial,
iii.reflected an acceptance of a degree of responsibility, and
iv.reflected a degree of remorse.
(e)The applicant made significant admissions in his Record of Interview.
(f)The applicant made admissions to, and requested assistance from a family friend.
(g)The significant delay in the prosecution of the matter.
(h)The OPP submitted that a term of immediate imprisonment was not called for.
(i)A wholly suspended sentence was open for this offending.
The objective gravity of these offences is at the lower end of the range for Recklessly Causing Injury and Common Law Assaults. It is submitted that, taking all relevant sentencing matters into consideration, any required period of incarceration should have been wholly suspended.[11]
[11]Written Case for the Applicant dated 17 May 2017 [43]–[44].
It seems that the matters set out in (d) above may be referable to particular (c) in the ground of appeal. Alternatively, paragraphs (d) to (i) are put in support of the proposition that a suspended sentence was open and ought to be have been imposed.[12]
[12]The offences having been committed before the abolition of suspended sentences in this State.
In oral argument, emphasis was placed upon delay, absence of prior convictions, the burden of imprisonment, the plea of guilty reflecting some remorse, and the nature of the relationship with his wife to support the argument that the sentence was manifestly excessive and that it was not open to the judge to impose an immediate custodial sentence.
The respondent submitted that before a sentence can be said to be manifestly excessive it must be one which is wholly outside the range. It was submitted that the individual sentences, orders for cumulation and the total effective sentence were within the range.
It was submitted that it could not be said ‘something has gone obviously, plainly and badly wrong in the sentencing discretion’.[13]
[13]Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P).
The respondent dealt with each of the particulars. The respondent did not accept, by reference to the sentencing remarks, that the judge had not dealt with or had any proper regard to the matters set out.
It was submitted that the judge was entitled, considering the evidence as a whole, to regard the offending as serious.
Analysis
Having considered the judge’s sentencing remarks, we accept that the judge did deal with all of the matters put to him and gave them sufficient weight.
The offending in the present case was serious. It stemmed from what was an abusive relationship between the applicant and the victim, who was vulnerable and frightened of the applicant. In Kalala v The Queen,[14] this Court discussed the scourge of domestic violence in the community in dealing with a conviction for incitement to murder. Maxwell P and Redlich JA said:[15]
The trial courts of this State are imposing sentences for family violence offences with increasing frequency. This Court has repeatedly emphasised the need to condemn family violence, in line with community expectations.[16] In Filiz v The Queen, the Court acknowledged the ‘shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44.’[17]
[14][2017] VSCA 223.
[15]Ibid [59]–[61].
[16]See, eg, Pasinis v The Queen [2014] VSCA 97 (‘Pasinis’); R v Robertson [2005] VSCA 190; R v Earl [2008] VSCA 162; Smith v The Queen [2010] VSCA 192; R v Hester [2007] VSCA 298; DPP v Muliaina [2005] VSCA 13.
[17][2014] VSCA 212 [23].
In the present case, there were mitigating circumstances which the applicant could call in his aid and to which the judge duly had regard. In our opinion, these factors did not detract from the objective gravity of the offending. The principles of general deterrence, denunciation and just punishment loom large in a case such as the present.
We are satisfied that the sentence imposed was open to the judge. If anything, it was merciful.
Conclusion
The application for leave to appeal should be refused.
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