Vella v The Queen

[2018] VSCA 30

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0257

SAMANTHA VELLA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 February 2018
DATE OF JUDGMENT:	20 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 30
JUDGMENT APPEALED FROM:	DPP v Vella (Unreported, County Court of Victoria, Judge Stuart, 13 November 2017)

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CRIMINAL LAW — Sentence — Appeal — Intentionally causing injury — Stabbing — Applicant sentenced to 2 years’ imprisonment with non-parole period of 14 months — Whether manifestly excessive — Leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Smallwood with Ms M Brown	Dr Martine Marich & Associates
For the Crown	Mr M D Phillips	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

1. Samantha Vella, the applicant, is aged 35 years.[1]

   [1]Her date of birth is 13 August 1982.

1. On 9 November 2017, she pleaded guilty in the County Court to one charge of intentionally causing injury.[2]  She had originally entered a plea to this charge on 6 July 2017, the day listed for a contested committal (but prior to any evidence being called).

   [2]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.

1. Following a plea hearing, on 13 November 2017 a judge of the County Court sentenced the applicant to be imprisoned for two years, and fixed a non-parole period of 14 months.[3]

   [3]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the applicant’s plea of guilty he would have sentenced her to be imprisoned for three years, with a non-parole period of two years.

1. The applicant now seeks leave to appeal against the sentence on two grounds, as follows:

1.   The Learned Sentencing Judge erred in his sentencing discretion by imposing a sentence which in all of the circumstances was manifestly excessive.

Particulars

(a) The Learned Sentencing Judge gave insufficient weight to:

(i) the circumstances of the offending and the applicant’s honest belief that Mr Whittle was in danger;

(ii) the applicant’s plea of guilty;

(iii)the applicant’s personal circumstances;

(b) The Learned Sentencing Judge gave excessive weight to:

(i) the applicant’s prior criminal history;

(ii) the applicant’s past history of breaching court orders;

(iii)the need for community protection.

2.   The Learned Sentencing Judge failed to have regard to the principle of totality.

1. For the reasons that follow, leave to appeal should be refused.

Circumstances of the offending

1. In October 2016, the applicant was the partner of Corey Whittle, now aged 40 years.[4] 

   [4]His date of birth is 22 August 1977.

1. The applicant’s offending occurred at a private residence in Werribee, which was owned and occupied by Raphaele Messina.  At any given time, a number of residents occupied the residence, although neither the applicant, Whittle or the applicant’s victim, Freddi Koeleman, did so.

1. At about 11.26 am on 26 October 2016, Mr Koeleman parked his car in the driveway of the residence, and went inside where Mr Messina and several others were to be found.

1. A minute or so later, the applicant and Whittle were driving past Messina’s residence when their car lost power.  They got out of their car and pushed it up the driveway of the residence, parking it behind Koeleman’s vehicle.  Koeleman came outside, and he and Whittle argued.  The two then began to fight physically, striking each other.  They fell onto the ground in the driveway, wrestling.

1. Whilst Mr Koeleman and Whittle wrestled, the applicant approached Koeleman with her hand raised above her head.  In her hand she held a knife that she had procured from inside the residence prior to there being any physical altercation.  She then stabbed Mr Koeleman in the back whilst he was engaged with Whittle on the ground, the stabbing being captured on CCTV footage.  Having stabbed Mr Koeleman, the applicant immediately ran and handed the knife to an unknown male standing at the front door of the residence.  Mr Koeleman was then able to get to his feet, and he reached to his back where he had been stabbed.  His shirt was off.

1. With respect to the circumstances of the applicant’s offending, the following aspects were the subject of agreement between the prosecution and defence:

(a)that it was an unexpected encounter;

(b)that there had been an altercation between Whittle and the victim in 2014;

(c)there is one stab wound;

(d)that [the applicant] and Whittle were not armed when they came to the house;

(e)there is no evidence the victim was armed;

(f)whilst Whittle and the victim were wrestling [the applicant]  stabbed the victim; and

(g)[the applicant]  had an honest but unreasonable belief that Whittle was in danger.

1. The applicant bears no criminal responsibility for what happened next, but when Mr Koeleman bent down to pick up his shirt from the ground, Whittle kicked Mr Koeleman to the left side of his head with his right leg, rendering Mr Koeleman unconscious.  Mr Koeleman fell onto the concrete driveway.  Whittle then approached the unconscious Mr Koeleman and kicked and stomped on his head multiple times.

1. Another male, Arnold Davis, then retrieved the knife used to stab Mr Koeleman.  At approximately 11.34 am, Whittle and the applicant returned to their vehicle but could not start it.  Davis helped push the vehicle whilst in possession of the knife, wrapped in a white cloth.  The applicant steered the vehicle whilst Davis and Whittle pushed it further down the street.  After stopping the vehicle, the applicant and Whittle then walked to Whittle’s nearby family home.  Davis threw the knife wrapped in cloth onto the roof of another house in the street.

1. At approximately 11.41 am, police and ambulance staff arrived at Messina’s residence.  Mr Koeleman was rushed to the Royal Melbourne Hospital (RMH) in a critical and life threatening condition.  En route to the RMH, the ambulance had to stop for Mr Koeleman to be intubated.

1. Police arrested the applicant and Whittle on 4 November 2016.  The applicant made a ‘no comment’ interview.

1. Whittle pleaded guilty to one charge of causing serious injury intentionally in circumstances of gross violence,[5] the circumstance of gross violence being put on the factual basis that Whittle rendered his victim unconscious by a kick to the head and then kicked and stomped on his head multiple times causing serious injury.[6]

   [5]Crimes Act 1958, s 15A.

   [6]On 21 December 2017, Whittle was sentenced to be imprisoned for five years, with a non-parole period of three years and four months.  See DPP v Whittle [2017] VCC 2017 (Judge Cohen).

1. Mr Koeleman remained in the Intensive Care Unit at RMH until 3 November 2016, and within the hospital on a ward until 16 November 2016.  He was then transferred to the Royal Talbot Rehabilitation Hospital in Kew where he remained until just before Christmas 2016.  At RMH, Mr Koeleman was diagnosed and treated as a multi-trauma patient.  He underwent urgent surgery for an acute left subdural haematoma on the day of the incident and again the next day.  Mr Koeleman’s principal injuries included the left acute subdural haemorrhage, together with bilateral traumatic subarachnoid haemorrhages, right pinna haematoma and a large left periorbital haematoma.  He received a left pneumohaemothorax directly from the stabbing.

1. The injuries for which the applicant is directly responsible are those occasioned by the stab wound to Mr Koeleman’s back.  A doctor described the injuries as follows:

-     Adjacent to the left oblique fissure in the left upper lobe there is a wedge shaped pulmonary contusion, with small pneumatocoele, with the apex directly medially.  This likely represents the direct trajectory of the knife into the lung parenchyma.

-     There is also a small to moderate left haemopneumothorax.

-     There is a chip fracture to the inferior surface of the posterior left 7th rib from the knife entry.

-     Multiple small gas locules overlying the posterolateral left hemithorax.

-     Bilateral dependent consolidation, in this setting likely aspiration.

-     No further displaced rib or sternum fracture. No aortic or great vessel injury.  No pericardial effusion.

1. Although the Court is constrained to approach the matter on the basis that Mr Koeleman did not suffer ‘serious injury’,[7] the physical injury that he suffered was severe, and must be regarded as being a grave example of simple injury, only failing to cross into the domain of ‘serious injury’ (as that term must now be understood) by a hair’s breadth.

   [7]The definition of serious injury is found in s 15 of the Crimes Act 1958.

The plea hearing

1. On the plea, the applicant’s counsel submitted that the CCTV footage demonstrated that Mr Koeleman had initiated the fight with Whittle; that he was on top of Whittle at the point at which the applicant intervened; and that her intervention had been swift and confined.  Counsel referred to a previous incident in 2014, in which Mr Koeleman hit Whittle to the head with a hammer.  That previous assault, which the applicant had witnessed, and her knowledge of Mr Koeleman’s past violence, explained why she was so quick to arm herself with a knife, and why she believed that Whittle was in danger.

1. Counsel accepted that the applicant’s criminal history was reasonably extensive and that she had previously breached sentencing orders.  It was submitted that much of her history reflected her chronic drug abuse.  Notwithstanding the applicant’s history of breaching orders, counsel submitted that a combination sentence of imprisonment, being the time already served — 153 days — and a community correction order (‘CCO’) was appropriate.  Counsel relied on the contents of a psychological report from forensic psychologist, Ms Carla Lechner, and a letter from the applicant’s mother, which suggested that she was in need of and willing to accept treatment and support.

1. In a considered submission, the prosecutor submitted to the sentencing judge that a combination sentence was within range.

1. In the result, the judge ordered an assessment by Community Corrections, who deemed the applicant unsuitable for a CCO because of her history of breaching orders.  It was noted, however, that if a CCO was ordered, a condition imposing Judicial Monitoring was recommended.

Submissions in this Court

1. In support of the first grounds of appeal, the applicant’s counsel submitted that the sentence of two years’ imprisonment was wholly outside the range of sentences reasonably available in the circumstances of the case. 

1. The following factors, it was submitted, were important when considering the gravity of the applicant’s offending:

·     there was no premeditation or planning; [8]

[8]In the written case it had been contended that the applicant was not armed prior, but rather obtained a knife from the kitchen of the residence after the fight between Whittle and Mr Koeleman commenced.  During the hearing in this Court, however, counsel did not seek to maintain that contention.  Indeed, our viewing of the CCTV footage seems to establish that the applicant obtained the knife prior to any fight commencing.

·     the applicant stabbed Mr Koeleman once when he appeared to have the upper hand;

·     the applicant played no role in the serious assault following the stabbing;

·     Mr Koeleman’s previous assault on Whittle led to the applicant’s honest belief that Whittle was in danger, and thus her recourse to a knife; and

·     the sentencing judge characterised the stabbing injury as a ‘relatively minor injury’ (although it was fortunate to be so).

1. Further, so counsel submitted, the judge regarded the plea of guilty as being entered at the earliest possible opportunity.  The applicant had been subject to an unstable childhood and exposure to domestic violence from her father.  She had a long-standing heroin addiction which commenced at age 15, and she had experienced violence in her own domestic relationships.  Whittle,  who was facing a lengthy term of imprisonment for violent offending, was the second long-term partner of the applicant.  Her relationship with him had contributed to her drug use and to the deterioration of her relationship with her mother and daughter.  The applicant was, however, making efforts to reform, including attempting to resume a positive relationship with her daughter.  Ms Lechner, the psychologist, was of the view that the applicant suffered from major depressive disorder, opioid use disorder and post-traumatic stress disorder, referable to domestic abuse experienced and witnessed by the applicant since childhood.  Counsel submitted that the fact that the applicant had indicated an acceptance that she required long-term methadone treatment, and a willingness to undergo psychological counselling, were positive factors.

1. It was not disputed that both the applicant’s prior criminal history and her history of breaching orders operated against her, and warranted some caution so far as her prospects for rehabilitation and her suitability for a further CCO were concerned.  But, so it was submitted, her history of breaching orders was not surprising, given the dysfunction of much of her adult life.  It was contended that, acting on the applicant’s criminal history, the judge gave ‘excessive regard’ to the need for community protection, such that the sentence was disproportionate to the applicant’s crime.[9]

   [9]Citing Veen v The Queen (No 2) (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ).

1. With respect to ground 2, which claims that the judge failed to have regard to the principle of totality, the applicant’s counsel relied on the fact that the applicant had spent a total of eight months in custody up to the time of being sentenced.  Hence, on 11 January 2017 the applicant had been sentenced to three months’ imprisonment in the Magistrates’ Court for a range of offending, including assaulting a police officer.[10]  That sentence expired on 3 February 2017.  From that time the applicant commenced serving pre-sentence detention for the present matter.  She served a further five months (153 days) until being granted bail on 6 July 2017, and was on bail until she was sentenced on 13 November 2017.  It was submitted that, in imposing a further period of imprisonment and returning the applicant to custody, the sentencing judge ought to have had regard to the three months’ imprisonment that the applicant had served for unrelated matters during the period on remand for the current matter.  The principle of totality required so much.  Insofar as the sentencing remarks fail to advert to this fact, error is demonstrated, notwithstanding that the applicant’s counsel made no submission concerning totality to the trial judge.

   [10]The charges included committing an indictable offence whilst on bail; shop-stealing (three charges); receiving stolen goods; dealing with the proceeds of crime; unlicensed driving; hindering police; and assaulting police.

Discussion

1. The Community Correction Order Assessment Outcome Report, dated 9 November 2017, received by the judge, assessed the applicant as being unsuitable for a CCO for the following reasons:

Ms. Vella has had prior involvement with Community Correctional Services (CCS), having been subject to a total of ten Orders.  This includes three Parole Orders, in 2012, 2013 and 2015, two Community Based orders (CBO) in 2001 and 2007, a CBO-Community Work (CBO-CW) in 2001, three CBO-Fine Default (CBO-FD) in 2003, a Community Correction Order-Community Work (CCO-CW) in 2016.  Of these, only the CBO in 2001 has been successfully completed.

During assessment, Ms. Vella attributed her non-compliance with previous Orders primarily to the influence of her former partners.  She indicated that her co-accused in the current matter was a negative influence on her, and indicated that ongoing drug use also contributed to both her offending and non-compliance.  Ms. Vella reported that since she is no longer in a relationship with her co-accused, she believes she would be in a better position to comply with a CCO should one be imposed.  She also reported that she is living with her mother, and as a result has daily access to her daughter.  Ms. Vella also reported she now has a licence and a car, indicating that this would assist her compliance with any further order imposed.  However, given Ms. Vella’s history of non-compliance with community based dispositions, she has been assessed as unsuitable for a further Order.

1. As  her criminal history reveals, the applicant’s compliance with court orders has been dismal.  She has consistently breached community based dispositions and suspended sentences of imprisonment.  The applicant’s first convictions — for theft and multiple traffic offences — were recorded in September 2000, when she had just turned 18.  Thereafter, she has repeatedly offended, and has amassed a large number of convictions for theft and attempted theft, receiving stolen goods, obtaining property by deception, dealing with the proceeds of crime, bail offences, and a plethora of traffic offences.  Significantly, she has prior convictions or findings of guilt for unlawful assault (in 2007, 2009 and 2014) and for weapons offences (in 2007).  And in the County Court on 14 September 2010, she was imprisoned for three years and nine months, with a non-parole period of two years, for armed robbery and other offences.

1. In our opinion, the applicant’s offending was very serious.  She obtained the knife before any physical fight had erupted, and she approached and stabbed her victim from behind, giving him no opportunity to defend himself.  Plainly, the use of the knife was an aggravating feature of the offence.  And as we have said, the injuries caused by the applicant’s actions were severe, and must be viewed as falling within the upper reaches of seriousness for simple injury.

1. As against the gravity of the applicant’s crime, there is not much by way of mitigation.  True it is that the applicant pleaded guilty — and she must be given full benefit for that plea — but her actions were captured on CCTV footage, in circumstances where she could not realistically have contested the fact that she stabbed the victim from behind.

1. Moreover, the applicant’s prospects of rehabilitation are extremely poor.  Her history of consistent offending, and her multiple failures to abide by relevantly lenient sentencing dispositions, makes that abundantly clear.  Although she is not again to be punished for her prior infractions, the applicant’s antecedents bear directly on her moral culpability, her prospects of rehabilitation and the need for community protection, and emphasise the importance of specific deterrence in the sentencing process.[11]  Furthermore, when viewed against the background of her prior offending, the applicant’s expressed aspiration to reform is not persuasive.

   [11]R v O’Brien and Gloster [1997] 2 VR 714, 718.

1. In order to make good the assertion that the sentence is manifestly excessive, the applicant must demonstrate that, having regard to all factors relevant to the exercise of the sentencing discretion, the sentence is outside the range of those open in the proper exercise of the sentencing discretion.  Put another way, the applicant must show that it was not reasonably open to the sentencing judge to impose the sentence which he did if proper weight had been given to all the relevant circumstances of the offending and of the offender.  As has been said many times previously, manifest excess is a conclusion which does not depend upon attribution of identified specific error.  And it is a conclusion that ordinarily does not admit of much in the way of argument or elaboration.[12]  Excess is, or is not, plainly apparent; and a sentence is, or is not, unreasonable or plainly unjust.  The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[13]

   [12]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v The Queen [2013] VSCA 4, [12]; Allen v The Queen (2013) 36 VR 565, 573 [51]–[52]; Haddara v The Queen [2016] VSCA 168, [86]; Nguyen v The Queen [2017] VSCA 262, [38].

   [13]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).

1. Instinctively synthesising all relevant considerations, we find ourselves unable to conclude that the impugned sentence is so obviously excessive that there must have been some miscarriage in the trial judge’s discretion.  Indeed, if anything, the sentence strikes us in all the circumstances as being moderate.  We are unpersuaded that there is any totality error as asserted.  In our opinion, the sentence was well within the range of sentences open in the proper exercise of the sentencing discretion, paying due regard to the principle of totality and the sentence of three months’ imprisonment that the applicant had served for unrelated offending. 

Conclusion

1. For these reasons, the application for leave to appeal against sentence should be refused.

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