Tedford v The Queen
[2020] VSCA 71
•26 March 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0272
| ALBERT TEDFORD | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, BEACH and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 March 2020 |
| DATE OF JUDGMENT: | 26 March 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 71 |
| JUDGMENT APPEALED FROM: | R v Tedford [2018] VSC 476 (Champion J) |
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CRIMINAL LAW – Appeal – Sentence – Attempted murder – Reckless conduct endangering persons of serious injury – Pre-committal pleas of guilty – Total effective sentence of 9 years’ imprisonment with non-parole period of 6 years – Whether individual sentence on reckless conduct charge and order for cumulation manifestly excessive – Applicant 77 years old at time of pleas – Poor health of applicant – Prior good character – Serious example of offending – General deterrence – Individual sentence on reckless conduct charge within range – Order for cumulation not manifestly excessive – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Ms C A Boston with Ms S Joosten | Giorgianni & Liang Lawyers |
| For the Respondent | Mr N Hutton | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA
T FORREST JA:
On 24 August 2018, the applicant was sentenced to eight years’ imprisonment on one charge of attempted murder (charge 1). He was also sentenced to two years and six months’ imprisonment on one charge of reckless conduct endangering persons of serious injury (charge 2). One year of the sentence imposed on charge 2 was made cumulative on charge 1. Thus the total effective sentence was nine years’ imprisonment. A non-parole period was set at six years.
In this application for leave to appeal against sentence, the applicant contends that the sentence imposed on charge 2 is manifestly excessive. The proposed ground is expressed as follows:
The individual sentence on Charge 2, order for cumulation, total effective sentence and non-parole period are manifestly excessive, having regard to the five-year maximum penalty for the offence, the fact that it was committed in the context of a suicide attempt, and the significant factors in mitigation, including the applicant’s early pleas of guilty, advanced age and ill health, and prior good character.
Background
We shall set out the background to the offending.
The applicant and his wife, Bridie Tedford, had conducted a relationship for 25 years. They had been married for eight years at the time of offending. In January 2017, the couple separated and Ms Tedford moved from the family house in Coburg to a bungalow at the back of the property. In October 2017, the applicant was aged 76 and Ms Tedford was 62.
On 16 October 2017, the applicant and Ms Tedford sat on the verandah of the applicant’s house. They consumed alcohol for a time. The applicant became argumentative. Ms Tedford suggested that he see a psychologist. At around 6.00 pm, Ms Tedford returned to her bungalow. The applicant telephoned his friend, BP, told him that he felt depressed, and said that he needed his wife to look after him in order to survive. He added that if anything were to happen to him, BP should make sure he claimed a Holden Kingswood motor car presently garaged at the applicant’s house.
Charge 1 — Attempted murder
Shortly before 8.00 pm, the applicant entered Ms Tedford’s bungalow and deadlocked the door behind him. He said to her, ‘I’ve got something for you.’ He was holding a kitchen knife with a blade of 15 to 20 centimetres. He stated that he had ‘taken enough’ of Ms Tedford and he set about a sustained attack on his wife. In total, he stabbed her 13 times, including defensive injuries, mostly to her chest area and arms. Ms Tedford also suffered blunt trauma injuries and lacerations to her face and scalp. No internal organs were compromised, and Ms Tedford was hospitalised for four days.
During the attack, the applicant stated that he was going to kill Ms Tedford and himself, that he loved her and she was going to leave him. Ms Tedford managed to escape after the applicant fell over and struck his head.
Charge 2 — Reckless conduct endangering persons of serious injury
The applicant drove away from the Coburg property. A dash camera recorded him in a confused, angry and emotional state of mind. He expressed disbelief that he had not killed his wife. He then discussed with himself how he could kill himself. He stopped the car near the Bell Street level crossing in Coburg. After some time, a train approached the crossing. The applicant accelerated his car into its path. The train struck the driver’s side of the applicant’s car, pushing it for a considerable distance. No one on the train was injured; in the two incidents, the applicant sustained minor injuries, including abrasions, bruising and lacerations (some incised).
The plea
In short, counsel for the applicant relied on the following matters:
·The applicant’s pleas of guilty were made at an early, pre-committal stage.
·The applicant was born in England, but raised and educated in Ireland until 16 years of age.
·He then came to Australia and completed an apprenticeship as a plasterer.
·He worked as a plasterer for about seven years and then as a technician’s assistant for two to three years. He subsequently worked as a taxi driver for around 30 years.
·He has been married three times. His 1964 marriage lasted 10 years; his 1978 marriage lasted about 16 years; and his relationship and subsequent marriage to Ms Tedford in total occupied 25 years.
·He has no biological children.
·His pleas of guilty ought result in sentencing benefits, including for the utilitarian value of the pleas and to encourage others to take a similar course. Counsel for the applicant did not contend that the applicant’s pleas were evidence of remorse, contrition or a desire to facilitate the course of justice.
·He is in poor health. In particular, he suffers from recurrent respiratory tract infections related to bronchiectasis; chronic sinus disease; common variable immunodeficiency; chronic sleep apnoea; gastroesophageal reflux; carcinoma of the prostate; previous rectal cancer, requiring the use of a colostomy bag; and previous right upper lobe wedge resection of the lung.
·Evidence was tendered that the applicant, in a custodial setting, would be at an increased risk of respiratory tract infections, including pneumonia. Prison will thus be more onerous.
·The applicant was 77 years old at the time of the plea.
·The court must avoid a ‘crushing’ sentence. What constitutes a ‘crushing’ sentence will vary from case to case, and will be influenced by a prisoner’s age and health.[1]
·Just punishment, general deterrence and denunciation remain primary sentencing considerations, however, protection of the community and specific deterrence are, for practical purposes, of little weight in the sentencing mix.
·It may be appropriate to moderate the head sentence and minimum term to give the applicant some prospect of release.
·The applicant effectively has no prior convictions and, as references tendered demonstrated, has been a hardworking, kind and caring man for most of his life.
·The offending is uncharacteristic for the applicant, although it was conceded that this offending had developed over some months.
[1]See R v Yates [1985] VR 141; R v Hunter (1954) 36 SASR 101; R v RLP (2009) 213 A Crim R 461, 475 [39]; R v Cumberbatch (2004) 8 VR 9.
The defence tendered a psychiatric report prepared by Dr Leon Turnbull. The applicant is intellectually intact and has suffered from depression for several years, although, with medication, was not actively depressed at the time of offending and at the time Dr Turnbull examined him.[2] A bundle of personal references were also tendered.
[2]On 6 July 2018.
As to charge 2, the defence contended that this was a lower range example of that offending.
The prosecutor, in opening, summarised the circumstances of the offending. Victim impact statements from Ms Tedford and her two daughters were tendered. The prosecutor accepted that the pleas were indicated at an early stage.
Orally, the prosecutor submitted that whilst no separate injury suffered by Ms Tedford, or their combination was, in fact, life threatening, the hand injuries required surgery. The injuries beyond scarring were and continue to be largely emotional. The prosecutor further submitted that this was a grave example of the offence, given that this was a sustained and frightening attack which only concluded as a result of the victim’s resilience and bravery.
On charge 2, the prosecutor put that the people at risk were the occupants of the train, including the train driver. He submitted that the reckless conduct could be viewed as a mid-range example of this offence, perhaps at the lower end of that range, with an appreciable but moderate risk of serious injury.
The prosecutor submitted that, as to cumulation, the moderating feature ought be totality. Whilst charge 1 is the centrepiece of the indictment, charge 2 ought not be forgotten, however, and is important in itself. His Honour observed that there was a five-year maximum on charge 2, ‘which rather [limited] the outcome’. The prosecutor accepted that the motivator for charge 2 was that the applicant was attempting suicide. The prosecutor further submitted that health was obviously a relevant factor and that the quality of medical care in a custodial setting was adequate. There was some premeditation to both offences, which constituted an aggravating feature. He submitted that this was a dreadful example of family violence. Whilst age and ill health are factors in the sentencing calculus, all the applicant could reasonably expect is a just sentence according to law.
The judge’s sentencing reasons
In sentencing the applicant, the judge described the attempted murder offence as a ‘very serious example of attempted murder’,[3] a ‘vicious assault’,[4] and ‘entirely unjustified and unprovoked’.[5] The applicant
inflicted a sustained attack on [his] wife with a knife, causing multiple blunt-force injuries and penetrating stab wounds to her body, head and limbs. Finally, and significantly, [the applicant’s] wife was exposed to substantial psychological trauma.[6]
[3]R v Tedford [2018] VSC 476, [27] (‘Reasons’).
[4]Ibid [28].
[5]Ibid.
[6]Ibid [27].
The judge was satisfied that the applicant’s intent during the attack was to kill his wife and then himself, and did the best he could to realise his intentions.[7] The attack only stopped as a result of his wife overpowering him and fleeing.[8] The judge was also satisfied that there was a ‘moderate degree of planning’ involved with the attack:
In the period leading up to these events, you were unable to accept the relationship breakdown, and you made comments to both your wife and a friend that suggest you were forming an idea to end her life and yours. Shortly before your attack, you entered the bungalow and deadlocked the door. I regard this as the point at which I can be confident you had decided to kill your wife. You used the routine of maintenance for your own medical needs as providing the opportunity and location for the events that would occur.[9]
[7]Ibid [28].
[8]Ibid [29].
[9]Ibid [30].
In relation to the reckless conduct offence, the judge accepted that the applicant made a genuine attempt to kill himself,[10] however, the judge considered that the applicant ‘knew exactly what [he] was doing’[11] and described the applicant’s conduct as ‘objectively serious conduct that can be distinguished from a case of negligent or reckless driving’.[12]
[10]Ibid [32].
[11]Ibid [33].
[12]Ibid [34].
Victim impact statements
Three victim impact statements were provided to the judge, one from the victim and one from each of the victim’s two daughters. The victim has been diagnosed with post-traumatic stress disorder, and suffers from tinnitus, headaches and pain in her eye, as well as scars on her body which still hurt and disfigurement to part of her left hand. She experiences terrible nightmares, and is constantly in fear of being attacked. She also fears for the safety of her children.
One of the daughters said in her victim impact statement that she felt physically ill upon seeing her mother’s injuries in hospital after the incident. She described feeling confused, shocked and angry in the days following the attack. She has also suffered financial loss as a result of the applicant’s actions.
The judge also considered the victim impact statement by the other daughter, but at her request, did not refer to it in his sentencing reasons.
Personal circumstances
In sentencing the applicant, the judge took into consideration his personal circumstances as set out by counsel for the applicant on the plea.[13] His Honour further noted that the applicant had insisted to Dr Turnbull that he had complete amnesia in respect of his offending as a result of his use of Valium, despite Dr Turnbull finding that he had no memory difficulties with other events in his life. He said that while alcohol and Valium may have impaired the applicant’s memory, the applicant was still able to operate a vehicle, and hospital records did not indicate that the applicant was obviously affected by alcohol or drugs.
[13]We have summarised these circumstances at paragraph 9 above.
Sentencing considerations
The judge considered that in sentencing the applicant for the attempted murder offence, general deterrence and denunciation were the key considerations:
Violence towards a partner in a relationship, or in a failing relationship where a partner wishes to leave, must be firmly deterred and condemned by the courts.[14]
…
The use of violence of the kind inflicted on your wife must be strongly denounced by the courts on behalf of the whole community. Such violence is utterly unacceptable, and must be condemned.[15]
[14]Reasons [48].
[15]Ibid [50].
The judge did not consider that the sentence needs emphasis on specific deterrence or protection of the community, as the applicant’s ‘unblemished background and the situational circumstances associated with [his] failing marriage do not lead to a conclusion that there is a high risk that [he] may offend again in future’.[16]
[16]Ibid [52].
General deterrence was, however, an important consideration in sentencing the applicant for the reckless conduct offence:
… those who contemplate driving vehicles deliberately in front of moving trains need to be deterred. The consequences are so potentially serious that there exists a significant question of public policy in passing a sentence that treats such offending sternly.[17]
[17]Ibid [49].
While Dr Turnbull reported that the applicant regretted his offending, the judge found that there was little evidence of remorse on the part of the applicant. The judge concluded that the applicant’s prospects of rehabilitation should be regarded as good, given the situational nature of his offending and his old age. It was also accepted by the judge that the guilty pleas were ‘at the earliest practical opportunity’[18] and clearly had utilitarian benefits, particularly that the victim of charge 1 did not have to give evidence and relive the traumatic experience.
[18]Ibid [55].
This application
As we have observed, the application is confined to the sentence on charge 2 and the order for cumulation. The applicant contended that a sentence of 50 per cent of the maximum sentence on charge 2 was in itself wholly beyond the range available to the judge, given the following circumstances:
·The offence was motivated by ‘hopelessness and despair’. This can be contrasted with cases involving thrill seeking or evasion of police. Moral culpability is lower in the instant case.
·No one was actually harmed.
·The judge sought to deter those who may be guilty of a more serious charge.
·The judge’s categorisation of the sentence being in the mid-range is disputed.
·The sentence imposed on charge 2, being 50 per cent of the maximum, failed to give sufficient weight to the suite of mitigating factors, including guilty pleas, good character, good prospects of rehabilitation, age, ill health and totality.
·Whilst some cumulation was warranted, the principle of totality called for a considerable degree of concurrency, particularly given that the offences occurred within a period of one and half hours.
In response, the respondent contended that the sentence imposed on charge 2 falls within the permissible range and that his Honour correctly characterised the offending which constituted charge 2 as objectively serious and more grave than, for example, reckless or negligent driving. It was inherently dangerous. The judge took into account and gave appropriate weight to each relevant sentencing factor, including the early pleas, the maximum penalty on charge 2, that the applicant was attempting suicide, his advanced age, his ill health and his previous good character, although he noted a distinct lack of remorse. Further, the respondent submitted that there were strong public policy grounds to seek to deter those who would attempt suicide at the risk of harming others.
Analysis
In our view, this application ought be refused. As this Court routinely observes, arguments of manifest excess are difficult to establish.[19] To succeed, an applicant must demonstrate that the impugned sentence is ‘wholly outside the range’ of sentences available for that particular offence in the relevant circumstances.[20] Sentencing is a discretionary exercise, and in the absence of identifiable error, an applicant must demonstrate that the sentence imposed was not reasonably open.
[19]See, eg, DPP v Karazisis (2010) 31 VR 634, 662–3 [127]–[128] (‘Karazisis’); DPP v Zhuang (2015) 250 A Crim R 282, 295 [40]; DPP (Cth) v Ramos [2018] VSCA 290, [39]; DPP v Macarthur [2019] VSCA 71, [59]–[60].
[20]Karazisis (2010) 31 VR 634, 662–3 [127].
Similarly, arguments for excessive cumulation must fail unless an applicant can demonstrate that the order for cumulation is manifestly excessive. In DPP v Grabovac,[21] Ormiston JA, with whom Winneke P and Hedigan AJA agreed, explained the different ways a sentence for multiple charges could be structured to reflect the sentencing principles of totality.[22] The sentences on individual charges could be moderated so as to reach an appropriate total effective sentence, or alternatively, unmoderated sentences could be imposed on individual charges, and moderation could be achieved through the moderation of orders for cumulation. Whilst the latter approach is preferable,[23] what is important, whichever method is chosen, is that the final total effective sentence be a just and appropriate aggregate sentence, reflective of an appropriate measure of the overall criminality.
[21][1998] 1 VR 664.
[22]Ibid 675–84.
[23]See, eg, DPP v Green [2020] VSCA 23, [94]; DPP v Drake [2019] VSCA 293, [25]; Lim v The Queen [2018] VSCA 64, [25]; DPP v West [2017] VSCA 20, [48]–[49].
The applicant’s argument proceeded at two levels. First, he contended that the sentence of two years and six months’ imprisonment for charge 2 was manifestly excessive. Next, he contended that regardless of the success of this first argument, the order for cumulation was also manifestly excessive; thus resulting in a manifestly excessive aggregate sentence and minimum term before parole eligibility.
Manifest excess
We do not accept that the sentence on charge 2 was wholly outside the range available to his Honour in the exercise of his sentencing discretion. Whilst we agree with the judge that this sentence sits somewhere in the mid-range of seriousness for this type of offending, we consider that this type of comparative characterisation of this offence is of relatively little utility. There are so many variables that each impugned course of conduct will, in all probability, be so significantly different from others as to defy useful comparison. In the present case, for instance, the degree of physical risk to the individuals in the train population descended as their location moved towards the rear of the train. To those at the front, including the train driver, the risk of serious injury arising from a vehicle suddenly appearing in the train’s immediate path must be considerable. Other variables will be the speed of the train, and the size and speed of the motor vehicle.
In our view, it is of more utility to focus on the objective gravity of the conduct said to constitute charge 2. We agree with his Honour that the applicant’s conduct ‘lacked insight and was selfish’.[24] He carried it out to satisfy his own needs, regardless of the risk he created to others.
[24]Reasons [33].
We further consider that the applicant’s conduct on charge 2 was ‘objectively serious’ and that general deterrence was important. In particular, we agree with and wish to emphasise the following observation by the sentencing judge:
Furthermore, those who contemplate driving vehicles deliberately in front of moving trains need to be deterred. The consequences are so potentially serious that there exists a significant question of public policy in passing a sentence that treats such offending sternly. Accordingly, I regard general deterrence to be a significant sentencing factor in respect of both offences to which you have pleaded guilty.[25]
[25]Ibid [49].
There is no error in this reasoning. Those who selfishly disregard the risks they impose upon others to satisfy their own suicidal ends can expect to pay a substantial price if those ends are not achieved. In the present case, the applicant knew what he was doing, and made a deliberate decision to use a speeding train as a means of ending his life, regardless of the wider consequences. The principles of general deterrence must assume real weight in the sentencing mix.[26]
[26]See, eg, R v Clark [2005] VSC 633; DPP v Clark [2010] VSCA 64.
Whilst a sentence of 50 per cent of the maximum available upon a plea of guilty to a man in the applicant’s circumstances can reasonably be viewed as ‘stern’, we are not persuaded that it is beyond the range of sentences reasonably available to his Honour.
Even if this conclusion is incorrect and our overall sentencing discretion were to be opened, the very modest sentence on charge 1 would have been adjusted upwards to achieve a similar aggregate sentence as to that imposed by the sentencing judge. It follows, in that hypothetical situation, that there would be no reasonable prospect that this Court would reduce the total effective sentence, despite there being an error in the sentence on charge 2 as initially imposed.[27]
[27]Criminal Procedure Act 2009 s 280(1)(b).
Cumulation
The second component of this argument is that cumulation of one year upon the base sentence of eight years on charge 1, is, in itself, manifestly excessive. In our view, this argument cannot be sustained. As we have said, the sentence on charge 1 is, in our view, moderate in all the circumstances. It represents less than a third of the maximum penalty available for what was an appalling example of domestic violence, committed with homicidal intent. Whilst old age, ill health and an almost pristine criminal history all counted in the applicant’s favour, in the face of his conduct towards his wife, it could not count for a great deal.
In considering the extent of cumulation to be ordered, his Honour took into account the temporal and circumstantial relationship between the offences. His Honour stated specifically that he took into account the principle of totality as a moderating feature. In saying this, his Honour was saying no more than that he had reviewed the aggregate sentence and considered whether it was just and appropriate, having regard to the overall criminality involved in both sets of conduct.[28]
[28]Mill v The Queen (1988) 166 CLR 59, 63; R v Piacentino (2007) 15 VR 501, 507 [32] (Eames JA); Postiglione v The Queen (1996) 189 CLR 295, 308 (McHugh J).
In our view, the applicant has failed to establish that the cumulation ordered by the judge is manifestly excessive.
Conclusion
Leave to appeal against sentence is refused.
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