Smith v The Queen

[2013] VSCA 219

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0002

DAVID CHRISTOPHER SMITH	Appellant
	V
THE QUEEN	Respondent

---

JUDGES	BUCHANAN, NEAVE and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 August 2013
DATE OF JUDGMENT	30 August 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 219
JUDGMENT APPEALED FROM	DPP v Smith (Unreported, County Court Melbourne, Judge Hampel, 5 December 2012)

---

Sentence appeal — Burglary — Criminal damage — Stalking — Destruction and desecration victim’s belongings — Threats — Writing on walls — Tarot cards — Text messages — Stalking over a period of two days — Manifest excess — Sentence outside range supplied by prosecution — Judge not bound to sentence within the prosecution range — Manifest excess not an occasion on which to re-argue the plea in mitigation — Appeal dismissed.

---

Appearances:	Counsel	Solicitors
For the Appellant	Mr T Danos	Cameron Marshall
For the Respondent	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. I agree with Neave JA. 

NEAVE JA:

1. The appellant, David Christopher Smith appeals against the individual sentences and total effective sentence imposed on him, following his guilty plea in the County Court to one count of burglary, one count of intentionally causing damage to property and one count of stalking with intent to cause physical harm.  The sentences against which he appeals were as follows.[1] 

   [1]DPP v Smith (Unreported, Supreme Court of Victoria, Judge Hampel, 5 December 2012) (‘Sentencing Reasons’).

charge on indictment	offence	maximum	sentence	cumulation
1	Burglary Crimes Act 1958 s 76(1)	10 years Crimes Act 1958 s 76(3)	12 months	None
2	Intentionally damage property Crimes Act 1958 s 197(1)	10 years Crimes Act 1958 s 197(1)	27 months	Base
3	Stalking(intent to cause physical harm) Crimes Act 1958 s 21A(1)	10 years Crimes Act 1958 s 21A(1)	18 months	12 months
Total Effective Sentence:		3 years and 3 months
Non-Parole Period:		2 years and 1 month
Pre-sentence Detention Declared:		188 days
6AAA Statement:		6 years and 6 months imprisonment with the appellant becoming eligible for parole after serving 5 years of that sentence.
Other orders: Forensic sample retention order pursuant to s 464ZFB(1) of the Crimes Act 1958 Disposal order pursuant to s 78(1) of the Confiscation Act 1997 Compensation order pursuant to s 86 of the Sentencing Act 1991 requiring the appellant to pay the victim $45,000.

1. The appellant was granted leave to appeal on the sole ground that the sentences imposed were manifestly excessive.[2]

   [2]Smith v DPP (Unreported, Supreme Court of Victoria, Court of Appeal, Justice Osborn 15 May 2013) (‘Reasons of Osborn JA’).  Leave was refused on three other grounds, which were that:

   1) the sentencing judge erred in the finding she made relating to the events leading up to the offending,

   2) the sentencing judge wrongly took account of speculative matters,

   3) the sentencing judge wrongly rejected medical opinion evidence as to the applicant probable state of mind at the time of the offending.

   The appellant did not elect to renew those grounds.

Circumstances of the offending

1. The victim was the daughter of the appellant’s long-term de facto partner.  The appellant and the victim had always had a difficult relationship with each other and the offending occurred some time after a family function at which the appellant believed the victim had behaved rudely towards his parents.  The appellant made a number of attempts to contact the victim to arrange a meeting and ‘sort the matter out’.  The victim told him she did not wish to meet him.

1. On 25 May 2012 the victim left her apartment to visit her terminally ill grandmother in northern Victoria.  The apartment was left locked and empty overnight.[3]  On the same morning the appellant travelled from Geelong, carrying a bag containing tools later used to damage the victim’s apartment, including a soldering iron, wooden mallet, knives, cable ties, a jemmy bar, a power drill, a screwdriver, condoms and alcohol.[4]  The appellant used the jemmy bar to break into a rear window, unlock the latch and climb in.[5] Once inside, the appellant spent hours destroying the victim’s possessions and desecrating her belongings.  His actions included:

   [3]Sentencing Reasons [4].

   [4]Sentencing Reasons [4].

   [5]Appellants summary of relevant facts.

·           Smashing the mirror in the bedroom.

·           Removing all the victim’s clothes from the cupboards and urinating on them.

·           Defecating in the laundry basket and smearing faeces on the walls.

·           Removing condoms from the bedside table and throwing them around the room.

·           Placing lubricant inside a condom and placing it on the bed near some pillows.

·           Removing a vibrator and KL Jelly from the bedside table and throwing it on the bed.

·           Tipping oil all over the victim’s bed which soaked through the bed sheets and the mattress.

·           Placing the victim’s diary on the bed with a page removed and placing another page in the diary with quotes about justice and forgiveness.

·           Writing in black marker on the bedroom walls ‘pull your head in bitch’ and ‘too late to apologise, too late cunt’.

·           Laying two tarot cards on the bedroom drawer which signified ‘justice’ and ‘death’.

·           Butting out a number of cigarettes on the bedroom drawers.

·           Leaving a black plastic box containing plastic cable ties, a knife and pliers on the floor next to the bed. 

·           Consuming and leaving a number of beer cans and a bottle of Wild Turkey bourbon next to the bed.

·           Leaving the jemmy bar on the bedroom drawer and a tape measure and screw driver on the window sill.

·           Writing in lighter marker on the bedroom wall, ‘hope you like what I’ve done with the place’.

·           Smashing the shower screen.

·           Damaging the bath tub, basin and taps.

·           Throwing all the items from the bathroom cupboard into the bath tub.

·           Using the soldering iron to carve illegible writing onto the coffee table.

·           Smashing photo frames and glasses.

·           Taking items out of the cupboards leaving them strewn around the room.

·           Butting out cigarettes on the couch.

·           Smashing the computer and the Bose sound dock.

·           Writing the letter F on the wall in blue pen.

·           Writing the word ‘bitch’ on the wall of the dining room in black marker.

·           Using a cigarette to burn out the victim’s face in a photograph.

·           Empting flour and sugar onto the floor of the kitchen and walking it around the house leaving footprints.

·           Smearing blood on the back door.

·           Damaging the fridge with a hammer.

1. On Saturday 26 May 2012 the victim arrived home to discover the damage.  At 1:03 pm, approximately 45 minutes after discovering the damage to the apartment, the victim received a text message which read:

Hey (redacted), you are one really disturbed unit.  PULL YOUR FUCKING HEAD IN BITCH! Thanks for making me feel such a part of the family.  You really should have apologised for bagging my family to Prue, Dave.  PS I hope you like what I have done with your place.  It only took me 14 hours.  That was going to happen to you to CUNT -lucky for you I got tired of waiting.  I guess it wasn’t in (sic) the cards for you to die last night? Love as always your good friend Dave.[6]

[6]Sentencing Reasons [5].

1. The learned trial judge described the appellant’s actions in the following terms:

This was not just an angry act of wanton destruction of property.  It was wholesale deliberate invasion of her home (for her, a loved and private place where she felt safe) and a violation of her privacy in every way imaginable.  You handled her underwear and all her clothes; her diary and other private papers and the contents of her kitchen, bathroom and laundry cupboards You deliberately and systematically befouled her clothing and her bedding, urinating and defecating on them.  No personal item or piece of furniture was untouched.  You defaced, damaged and destroyed her furniture and the contents of her apartment, not by random blows but by employing a variety of methods and tools, damaging the various items in varying ways.  You used lit cigarettes, a hammer, a soldering iron and other tools to damage furniture; you smashed her computer and sound system; you poured foodstuffs and toiletries on to the floors; you defaced photographs, obliterating her face in some, with lit cigarettes; you defaced her passport and laid out Tarot cards symbolising death and justice; you wrote vile, angry, abusive and threatening words on the walls directed at her; you sent her a threatening, taunting text message at a time you believed her to be home and would have seen what you had done.[7]

[7]Sentencing Reasons [5].

1. On 30 May 2012, some five days after the offending occurred, the appellant rang his father who arranged his surrender to the police.  He was charged and indicated his intention to plead guilty at the earliest possible stage.[8]

   [8]Sentencing Reasons [7]-[8].

The judge’s reasons

1. At the plea hearing neither the Crown nor the appellant clearly identified the acts which provided the basis for the appellant’s plea of guilty to the stalking charge.[9]  In her sentencing reasons her Honour said that:

The messages you scrawled on her walls and left on her phone were calculated to strike a fear of personal harm into the victim.  Chillingly, the bag which you left behind contained items not necessary for destroying her property but which were capable of use to restrain and harm the victim, a point not lost on her when your bag was found.  It is hard to imagine what else you could have done to show her your hatred of her and to destroy not just her property but her sense of safety.[10] 

…

However, in my view the stalking charge warrants separate consideration and significant cumulation.  Although the stalking is confined to a period of a day, the nature of the threats scrawled on the walls and the display of the Tarot cards and contained in the text message seen against the background of the damage done to the apartment were clearly designed to instil fear in the victim for her future safety.  It is clear you achieved your aim.

Despite your assertion you will leave her alone and your consent to the intervention order, she remains terrified, understandably so.  That for her is a continuing legacy of your offending and one which words can do little to dispel.  So the stalking conduct, in my view, is separate from the causing damage charge and is made worse because it deliberately capitalised on the damage you did and the messages scrawled on the walls to instil fear in the victim that you would pursue her and that when you chose to strike again at a time of your choosing she (not her property) would next suffer your angry and malicious violence.[11]

[9]The Crown’s written submission attempted to differentiate between the acts relevant to charge 2 and those supporting charge 3.  

[10]Reasons [39].

[11]Reasons [58]-[59].

1. In sentencing the appellant her Honour had regard to the terrifying effect of the offences on the victim, whose victim impact statement described the fear she suffered and the ongoing emotional and financial effects of the offending on her life.  Her Honour also took account of the distress which the victim’s mother, father and aunt described in their victim impact statements, which they experienced because of the serious psychological effects which the offending had on the victim. 

1. Her Honour had regard to the appellant’s intelligence, his excellent employment history and the fact that although he was aged 40 he had no prior convictions.  Having considered psychiatric reports from Dr Simon Mitchell, who had treated the appellant for depression and Dr Alan Jager, who provided a report for sentencing purposes, her Honour rejected the appellant’s argument that the offending was triggered by an adverse response to an anti-depressant medication.  Nevertheless she was satisfied that the appellant was suffering from depression, which would make his imprisonment more burdensome than for a person not suffering from that condition and took this into account in sentencing him.

1. Because of comments that the appellant had made when he was first assessed by Dr Jager, the judge was not satisfied that he was genuinely remorseful about the effect of his conduct on the victim.  However she had regard to the fact that he had consented to the making of a compensation order of $45,000 in favour of the victim and that his parents had bought out the joint tenancy interest which he had shared with the victim’s mother, after their relationship ended as a result of the offending.  Her Honour expressed some concern about the effect of the appellant’s alcohol abuse on the likelihood of him re-offending, but concluded that the appellant had good prospects of rehabilitation.  Finally, she said that she had moderated the sentence which would otherwise be imposed because the appellant would serve the balance of his sentence in protective custody, as the result of threats made to him in prison, following a television program which described the circumstances of the offences and their effect on the victim.

The appellant’s submissions

1. In his written submission the appellant contended that the sentences imposed by her Honour fell outside the range of sentences which could be imposed in the reasonable exercise of her sentencing discretion having regard to:

1.The fact that the sentence imposed was considerably in excess of the range expressed by the Crown,

2.The appellant’s lack of prior convictions;

3.His early guilty plea;

4.His family support, good work history and his loss of employment as a consequence of the offending;

5.The loss of the appellant’s relationship with his de facto partner (the victim’s mother);

6.The contribution of his medication to his bizarre behaviour;

7.His remorse.

1. Because the appellant was not granted leave to challenge her Honour’s finding that his medication did not explain his offending the particular in 6 cannot be relied upon.  Nor was there any ground of appeal alleging that her Honour erred in finding that the appellant was not remorseful.

1. In his oral submissions the appellant also relied on the fact that the appellant had surrendered himself to the police and that he had paid compensation to the victim for the damage to her property.  He argued that during the plea the prosecutor had submitted that the total effective sentence should fall within the range of one and a half and two years’ imprisonment, with a non-parole period of between nine and fifteen months.  He submitted that the judge should not have gone outside the range, without indicating her intention to do so.

1. In arguing manifest excess, the appellant focussed mainly on the sentence of 18 months imprisonment for stalking.  He contended that because the stalking was limited to acts of the appellant while he was in the victim’s flat and when he sent her the SMS on the following day, the sentence imposed for this offence was manifestly excessive.  In support of that submission he relied on the sentences imposed in number of other stalking cases, where the offender had prior convictions for stalking and/or the stalking took place over a longer period than was the case here.[12]

   [12]Wilson v the Queen [2012] VSCA 40, (three stalking offences involving the posting of material from social networking websites on pornographic sites; application for leave to appeal refused against a total effective sentence of 15 months with a non parole period of six months). Duncan v the Queen [2011] VSCA 351, (sending of intimidating emails; appeal dismissed against a sentence of two years and nine months’ imprisonment with non parole period of two years and three months. Carroll v the Queen [2011] VSCA 150 (multiple counts of sexually motivated stalking, burglary, theft, aggravated burglary and using telephone to menace twelve different victims over eight months; appeal dismissed against a total effective sentence of 12 years with a non-parole period of 10 years. The base sentence, which was for stalking, was five years).

Conclusion

1. As has frequently been observed, the ground of manifest excess is difficult to make out.  As Maxwell P said in R v Abbott:[13]

With respect, these points are all properly made and well founded in the material.  But the ground of manifest excess is not an occasion on which to re‑argue the plea in mitigation.  The ground of manifest excess will only succeed where it can be shown that the sentence was ‘wholly outside the range of sentencing options to the sentencing judge.

The ‘range’ for this purpose is the range within which it would have been reasonable for a sentencing judge to sentence this appellant for this offence in these circumstances.  …That is a stringent requirement, difficult to satisfy.  It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance.  Sentencing is not the task of appellate courts, except where clear error is shown.  Where the ground of appeal is manifest excess, error will only be shown where it can be demonstrated that the sentence is obviously wrong in the sense I have described, that is, it is a sentence which no reasonable judge could have imposed in the circumstances.[14]

[13][2007] VSCA 32.

[14]Ibid [13]-[14].

1. The sentence imposed on charge 3 (stalking) was stern, when compared with the sentence for that offence in a number of other cases, but in my opinion it was well within the range of her Honour’s sentencing discretion.  Whilst the stalking lasted for a relatively short period, the threats scrawled on the walls of the victim’s flat, the leaving behind of the bag containing cable ties, the display of the tarot cards, and the vile, hate-infused text message sent to the victim, were calculated to terrify her and did so, having lasting effects on her and her family.  

1. Charges 1 and 2 involved considerable planning.  The sentences imposed for these offences were lenient, taking account of the vindictive and sustained nature of the damage caused to the victim’s flat and possessions.  The total effective sentence imposed was also well within the reasonable exercise of the judge’s sentencing discretion.  The sentencing range put forward by the prosecutor was, in my view, too low, even when the mitigating factors on which the appellant was entitled to rely were taken into account, and did not adequately reflect the grave nature of the offending.

1. It is trite law that a judge is not bound to sentence within the prosecution range.[15]  There was no ground of appeal alleging that her Honour had breached natural justice in failing to indicate that she intended to depart from the range.  But

even if the appellant had relied on such a ground it would not have succeeded.   The appellant’s counsel had the opportunity to make extensive submissions on the factors which were to be taken into account in mitigation of sentence and could have done no more, even if the judge had indicated in advance that she did not accept the sentencing range put forward by the prosecutor.  It is not necessary for a sentencing judge to indicate his or her reaction to all the submissions made by counsel, prior to sentencing an offender.[16] 

[15]R v MacNeil-Brown [2008] VSCA 190,  GAS v R; SJK v R (2004) 217 CLR 198, 210-211 at [28]‑[30]; Talbot v R; Dux v R [2012] VSCA118 [56]-[57].

[16]Va v The Queen [2011] VSCA 426, [24].

1. For these reasons I would dismiss the appeal.

PRIEST JA:

1. I agree with Neave JA.

- - -