Tomkinson v The Queen
[2010] VSCA 282
•22 October 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2009 0506
| WARREN ERNEST TOMKINSON |
| v |
| THE QUEEN |
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| JUDGES | ASHLEY and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 22 October 2010 |
| DATE OF JUDGMENT | 22 October 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 282 |
| JUDGMENT APPEALED FROM | R v Tomkinson (Unreported, County Court of Victoria, Judge Jenkins, 30 January 2009) |
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Criminal Law – Sentence – False imprisonment, intentionally causing injury and indecent assault – Total effective sentence of six years’ imprisonment with non-parole period of four years – Parity principle – Appeal allowed – Appellant re-sentenced to a total effective sentence of four years and nine months’ imprisonment with non-parole period of three years – Appeal decision without precedent value.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr L C Carter | Doogue & O’Brien |
| For the Crown | Mr B L Sonnett | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
Warren Tomkinson pleaded guilty in the County Court to two counts of false imprisonment (counts 1 and 2), two counts of intentionally causing injury (counts 3 and 4) and one count of indecent assault (count 5). The offences were committed at Mildura in the period 1 to 2 July 2008. On 30 January 2009 he was sentenced to three years’ imprisonment on each of counts 1 and 2, four years’ imprisonment on count 3, three years’ imprisonment on count 4 and two years’ imprisonment on count 5. With cumulation, the total effective sentence was six years’ imprisonment. The judge fixed a non-parole period of four years. At the same time, a female co-offender was sentenced to a total effective sentence of four years’ imprisonment with a non-parole period of two years.
Grounds
Now Tomkinson appeals by leave. He relies upon the following grounds:
1.The individual sentences, non-parole period and total effective sentence are manifestly excessive.
2.The individual sentences and the total effective sentence imposed on the appellant reflect unjustifiable disparity between him and the co-offender.
3.The learned sentencing Judge failed to the (sic) advise the appellant of the reliance that would be placed on depositional material and in doing so denied the appellant procedural fairness.
…
In granting leave, Redlich JA stated, succinctly, that ‘each of the grounds relied upon is worthy of a grant of leave’.
Circumstances
The appellant, a part aboriginal man, born 30 March 1960, was aged 48 at time of offending. The prosecutor described the relationship between the offenders and the victims, the circumstances of the offences, and the injuries sustained by the victims, when opening the matter, as follows:
… the accused in this matter are in a de facto relationship. At the time of the offending they had two children, they were aged five and three. They arrived in Mildura a few days before these offences were committed after coming down from Darwin with a friend. They’d lived an itinerant life, travelling around the country and staying in particular areas for relatively short periods of time. Upon their arrival in Mildura they began staying with an associate, Valerie Everett … in Mildura. They’d met Everett some eight years before while they were all working together in Yalta (sic). They’d stayed with Everett a number of times over those eight years for periods of about a fortnight. Dulcie Sampson, a neighbour and close friend of Everett’s, … had met both the accused some two or three years prior to these offences whilst both accused had been staying with Everett on one of the occasions that I’ve referred to.
… During the evening of Tuesday 1 July 2008, an argument broke out between the two accused and Everett. The second victim, Dulcie Sampson, was also present at the residence at the time. The argument broke out as a result of a dispute over a missing bank card which belonged to Everett. This argument led to a physical altercation between Tomkinson and Everett. Tomkinson and Everett were pushing each other, this led to Everett being pushed to the floor by Tomkinson, who then got on top of her and put his knee on her neck whilst grabbing a handful of her hair and yanking at it. At this point Cocks [the co-accused] was standing next to them, and she kicked Everett in the face and head area four or five times. Tomkinson then struck Sampson in the head before forcing Everett and Sampson into a bedroom at the residence, where he tied them up and bound them together using rope and fishing line. The rope and line were tied tightly around their necks, bodies, wrists and legs so that they were not able to move freely.
The victims were detained against their will in this manner for approximately three to four hours; the precise time’s not certain, Your Honour. During that time both accused entered and exited the room on a number of times. The victims were taunted and physically assaulted by both accused, both Tomkinson and Cocks punched Sampson in the face a number of times. Tomkinson told Everett that he was going to kill Sampson and make her watch, and then he was going to take her on a trip. After this threat Everett stated that she believed that either her or Sampson was going to die. At one stage Cocks entered the bedroom armed with a number of knives and was encouraging Tomkinson to stab the victims. Tomkinson then took one of the knives and pressed the blade against Everett’s neck, then pushed the tip of the knife into Everett’s right breast which caused a small puncture wound in her breast. At this stage Cocks was inciting Tomkinson telling him to ‘Cut her nipple off,’ and saying things like ‘Do it,’ or ‘Do you love her that much?’ Cocks then told Tomkinson to ‘Piss on her,’ referring to Everett. Tomkinson then removed his penis from his pants and urinated on Everett while she was bound. During this both accused were laughing and Cocks was inciting Tomkinson to urinate on Everett, on her face. Tomkinson then got close and urinated on Everett’s face, causing urine to go into Everett’s mouth. Throughout, Ms Sampson was still tied to Everett, and Tomkinson’s urine also splashed onto Sampson’s face.
Throughout the ordeal, the victims were pleading with both accused to let them go. After approximately three to four hours, Tomkinson untied the victims, at which time they requested to go to the hospital, however he would not let them leave the residence. A short time later, at this stage approximately 4.30 am, Tomkinson and Cocks began arguing between themselves. At this time Everett and Sampson went into the bedroom where they escaped out a front window, and then they went to the hospital which was located only a few hundred metres away. Police were notified of the incident by hospital staff. Both witnesses were examined and treated at the hospital.
Everett believes that if Cocks had not been there, Tomkinson would have untied them a long time before he did. She states Cocks was instigating the violence and inciting Tomkinson. The defendant’s children were present at the residence throughout the incident. As a result of the assaults, the victims received the following injuries.
Everett: severe abrasions and cuts to the neck, chest, wrist and legs; small puncture wounds and bruising to the right breast; bruising to both upper arms and outer corner of her lips, pain, and temporary loss of mobility in the neck and severe emotional trauma.
Sampson suffered bruising and swelling to the left and right cheeks, nose and left knee; abrasions and pain to the neck, wrists, arms and shoulder; soreness to the ribs and stomach, and emotional trauma.
The prosecutor’s opening was largely reproduced in the judge’s sentencing remarks at paragraphs 4 to 16. Her Honour identified counts 1 and 2 as being constituted by the appellant tying up the victims, and then detaining them for three to four hours. She identified count 3 as being constituted by the co-offender kicking the victim Everett to the head four or five times. She treated a blow by the appellant to the victim Sampson in the head as the conduct constituting count 4. Finally, the indecent act, count 5, was constituted by the appellant urinating on Ms Everett. The judge treated the appellant and the co-offender, in accordance with the opening, as acting in concert.
The aftermath of the offending
The appellant and the co-offender were arrested on the morning of 2 July 2008. The appellant made a no-comment record of interview. The co-accused implicated the appellant.
At a committal mention on 24 October 2008 the appellant pleaded guilty to the charges upon which he was later presented. That was the earliest available opportunity to do so.
Each of Ms Everett and Ms Sampson made victim impact statements. They deposed to continuing physical and/or emotional sequalae of the incident.
Plea
Counsel for the appellant below relied upon –
(1) The appellant’s relatively good work record and (until recently) stable relationship (of 10-11 years) with the co-accused.
(2) The plea of guilty, which the judge accepted was a significant mitigating factor.
(3) The fact that, although the appellant had prior convictions for driving offences, and some for violence, the last conviction had been 11 years previously. The judge considered, however, that the prior convictions for violence (albeit not resulting in imprisonment) made specific deterrence an important sentencing objective.
(4) The appellant’s remorse, concerning which the judge said: ‘it is difficult to assess the extent of your genuine remorse beyond the concession to be afforded to you by reason of your guilty pleas’.
(5) The offending being committed when the appellant had consumed a significant quantity of wine, and had smoked two to three bongs of marijuana. The judge stated that she did not consider there to be any mitigation arising from those facts, or from there having been a physical altercation between the appellant and Ms Everett before the offending began. But she noted that, when the incident was over, it was the appellant who untied the victims and gave them a cup of tea.
Sentencing remarks
Other then matters to which I have already referred, the learned judge identified a number of aggravating features of the offending. Thus:
(1) The children of the appellant and the co-accused were in the house when the offending occurred.
(2) Ms Everett was a long-standing friend who had offered shelter in the past and again on this occasion.
(3) The victims were females, and had given no offence.
(4) The ordeal was ‘prolonged, frightening and humiliating’.
(5) The victims were so tied up that any attempt to break free ‘would have caused further injury’.
The judge identified general deterrence, specific deterrence (in the case of both offenders), protection of the community, prospect of rehabilitation (uncertain for both the appellant and the co-accused), denunciation and just punishment as relevant considerations. She described the offences as inexplicable and as ‘represent[ing] amongst the worst examples of each kind of offence charged’.
Resolution
In my opinion, it is only necessary to consider ground 2 in order to conclude that the appeal should be allowed and the appellant re-sentenced.
The so-called parity principle is well-known, and need not be re-stated yet again.
As I have said, the offences were opened and were treated by the judge as having been committed in concert.
It is the fact that the appellant was sentenced more heavily on each count than was the co-accused. It is also the fact that the extent of cumulation on each of counts 1, 4 and 5 was proportionately greater in the appellant’s case than in the co-offender’s case. It is further the fact that the judge did not give a patent explanation why there should be such differentiation.
In some respects, it may be said, the appellant’s involvement in the offending was more serious than that of the co-accused. It was he who tied the women up. It was he who urinated on Ms Everett. But, as against that, the count 3 offence was constituted by the co-accused kicking Ms Everett in the face and head four to five times, whilst the count 4 offence consisted of the appellant striking Ms Sampson in the head. Again, whilst the appellant made threats to kill (not the subject of a discrete count, but a circumstance of aggravation of the false imprisonment) it was the co-accused who incited the appellant to cut Ms Everett’s nipple off, and it was the co-accused who told the appellant to ‘piss on’ Ms Everett. Further, it was the appellant who untied the victims and gave them a cup of tea before they made their escape. Further again, Ms Everett stated that if the co-accused had not been there, she believed that the appellant would have untied Ms Sampson and herself a long time before he did; and that the co-accused was instigating the violence and inciting the appellant.
In all, the gravity of the offending, in which I include circumstances of aggravation, was at least not worse in the appellant’s case than in the case of the co-accused; and arguably less serious. The sentences passed on count 3, particularly, I find inexplicable.
Counsel for the Crown relied in this Court upon differences in the antecedents of the offenders. The appellant had prior convictions whilst the co-offender had none. Again, there was evidence that the co-accused was a person of low intellect who had allowed herself to be dominated by the appellant over a period of years.
The appellant’s relevant prior convictions were for offences dealt with between December 1986 and April 1997. In December 1986 he was fined small amounts for resisting arrest and assaulting a police officer. In July 1990 he was given a $100 bond for assault occasioning bodily harm. In April 1997 he was fined for the same offence and for assault. These convictions were relevant as bearing upon the need for specific deterrence and prospects of rehabilitation.
On the other hand, the judge treated specific deterrence as a major objective in the sentencing disposition for both the appellant and the co-accused. She referred to the conduct of the co-accused in ‘seriously inciting’ the appellant.
Again, as to prospects of rehabilitation, the judge really drew no distinction. She said, of the appellant, that the ‘potential for lasting rehabilitation must remain uncertain unless and until you take positive steps to rehabilitate yourself and in particular, refrain from alcohol abuse’. She said, of the co-accused, that ‘in my view your prospects of rehabilitation are uncertain at best and will be dependent upon your willingness and capacity to submit to psychological counselling’.
It follows that the judge did not differentiate between the two offenders in the respects particularly relied upon by the Crown in this Court as justifying the disparate sentences.
This is not a case in which it is said that the sentences imposed upon the co-offender were inadequate. The consequences for a parity argument which might arise in such a case thus do not arise. On the other hand, the sentences imposed on the co-offender inhibit, to an extent, re-sentencing the appellant.
Parity does not require that the sentences passed on the appellant and the co-accused should be identical. I consider that the appellant should be re-sentenced as follows:
Count 1 - 3 years
Count 2 - 3 years
Count 3 - 2 years
Count 4 - 2 years
Count 5 - 2 years
Taking the sentence on count 1 as the base sentence, I would cumulate three months of the sentence on count 3, six months of the sentence on count 4 and one year of the sentence on count 5 on each other and on the sentence on count 1. The total effective sentence would be four years and nine months’ imprisonment. I would fix a non-parole period of three years’ imprisonment. I would confirm the other orders made below.
I would declare that, had the appellant gone to trial and been convicted, I would have sentenced him so as to produce, with cumulation, a total effective sentence of five years and six months’ imprisonment; and that I would have imposed a non-parole period of four years.
My reasons involve no novel principle nor the extension or qualification of established principle. They are without precedent value.
WEINBERG JA:
I agree for the reasons given by Ashley JA that this appeal should be allowed and the appellant re-sentenced as his Honour has proposed.
ASHLEY JA:
The orders of the Court will be as follows, subject to anything counsel might wish to say:
(1) The appeal is allowed.
(2) The sentences imposed below are set aside and in lieu thereof the appellant is sentenced as follows:
Count 1 - 3 years' imprisonment.
Count 2 - 3 years' imprisonment.
Count 3 - 2 years' imprisonment.
Count 4 - 2 years' imprisonment.
Count 5 - 2 years imprisonment.
The Court directs that three months of the sentence on count 3, six months of the sentence on count 4 and one year of the sentence on count 5 is served cumulatively on each other and on the sentence imposed on count 1. The total effective sentence is thus four years and nine months' imprisonment, a non-parole period of three years is fixed. The other orders made below are confirmed. The Court declares the period of 842 days, including this day, is to be reckoned as already served under the sentence and it orders that there be noted in the records of the Court the fact that that declaration was made and its details.
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