Wallace v The Queen

[2012] VSCA 114

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0396

DALE WALLACE

Appellant

v

THE QUEEN

Respondent

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JUDGES	MAXWELL ACJ and BUCHANAN JA
WHERE HELD	MELBOURNE
DATES OF HEARING	27 April 2012
DATE OF JUDGMENT	8 June 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 114
JUDGMENT APPEALED FROM	DPP (Vic) v Wallace (Unreported, County Court of Victoria, Judge Parsons, 27 October 2010)

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CRIMINAL LAW – Appeal – Sentence – Intentionally cause serious injury, criminal damage – Victim very seriously injured – Prior convictions for violence – TES 6 y 6 m, NPP 4 y 6m – Whether non-parole period manifestly excessive – Whether accorded with judge’s stated intention – No ‘usual’ non-parole period – Importance of specific deterrence and protection of the community – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P A S Skehan	Victorian Aboriginal Legal Service
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL ACJ

BUCHANAN JA:

Summary

1. This sentence appeal concerns the fixing of a non-parole period.  As will appear, the total effective sentence imposed on the appellant was 6 years and 6 months’ imprisonment.  The non-parole period was 4 years and 6 months’ imprisonment, representing 69 per cent of the head sentence.  The ground of appeal is that the non-parole period failed to give effect to the judge’s stated intention to order ‘a much longer than usual’ period of parole, or was manifestly excessive, or breached the principle of totality.

1. The principles governing appellate review of a non-parole period are clear, as follows:

1.        The non-parole period is the minimum term which justice requires be served.[1]

[1]Power v The Queen (1974) 131 CLR 623, 629; Bugmy v The Queen (1990) 169 CLR 525, 538-9 ; I R J v The Queen [2011] VSCA 376, [52]; Singh v The Queen [2011] VSCA 333, [27].

2.        There is no ‘usual’ non-parole period.[2]

[2]R v Tran [2006] VSCA 222, [27]–[28]; R v Alparslan (2007) 170 A Crim R 205, 208-9; R v Ng [2009] VSCA 218, [28]; Green v The Queen [2011] VSCA 236, [17];  Romero v The Queen (2011) 206 A Crim R 519, 526–7 [25]–[26].

3.        The question to be determined is whether, in all of the circumstances of the case and of the offender, it was reasonably open to the sentencing judge to fix the non-parole period which the judge fixed.[3]

4.        Exceptionally, the Court may be persuaded that the non-parole period manifestly failed to give effect to the sentencing judge’s stated intention, in which case error is established and the sentencing discretion re-opened.[4]

[3]

[4]R v Hill [2004] VSCA 116, [29].

1. For reasons which follow, we have concluded that the non-parole period of 4 years and 6 months accorded with the judge’s stated intention and was not manifestly excessive.  The appeal must therefore be dismissed.

Background circumstances[5]

[5]Paragraphs 4–12 are taken from the Registrar’s Neutral Summary, which was agreed by the parties.

1. On 27 October 2010, the appellant (now aged 26) pleaded guilty to one count of intentionally causing serious injury and one count of criminal damage.  He was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Causing Serious Injury Intentionally	20y	6y	Base
2	Criminal Damage	10y	12m	6m
Total Effective Sentence:		6y 6m
Non-Parole Period:		4y 6m
6AAA Statement:		7y 6m with a non-parole period of 6y

1. The sole ground of appeal relates to the non-parole period.  As originally drawn, the ground contended that the judge erred:

(a)in failing to give effect to his intention of fixing a non-parole period that was shorter than usual or a parole period that was longer than usual;  and

(b)in fixing a non-parole period that was disproportionately high and manifestly excessive in view of the factors in mitigation, including the applicant’s admissions, his early plea of guilty, his genuine remorse, his youth and his mental health.

An additional ground was added, by leave of the single judge who gave leave to appeal, contending that the non-parole period infringed the principle of totality

1. The appellant was aged 21 at the time of the offending and the victim was aged 55. They had known each other for about 2 months and had become good friends. The appellant would occasionally stay in a spare room at the victim’s Housing Commission flat.

1. On 18 September 2006, the appellant rang the victim and arranged to meet him at the flat of a mutual friend, Linda Watson.  The victim joined the appellant and Watson at her flat and they drank some wine.  The appellant asked the victim if he could get some of his belongings from the victim’s flat.  The victim told him to wait until he finished drinking.  The appellant became aggressive and shoved the victim to the floor.  Watson intervened and told both men to leave.

1. As a result of a complaint about the disturbance, two security officers knocked on Watson’s door.  The appellant was verbally abusive and aggressive towards the officers and one of the officers called the police.  The appellant and the victim went to the victim’s flat.  The appellant held one of the victim’s golf clubs and said ‘You’re going to cop it now’.  The appellant hit the victim with the club about 10 times across the back of the head, back, arms, ribs and legs.  The appellant repeatedly said he was going to kill the victim.

1. Neighbours heard noises, caused by the appellant’s assault on the victim, for approximately 10 minutes before security and police arrived.  The police and security noticed that the appellant appeared to have blood on his hands and to be in an agitated and drug-affected condition.  He was forcibly restrained.  There were blood smears on the walls outside the front door and on the entrance wall.  There were blood droplets on the ground outside the front door and in the doorway entrance to the lounge-room.  Four separate broken shafts of golf clubs were found and there was blood smeared on the furniture in the lounge and dining room and on the carpet.  The top of the coffee table, rear of the stereo speaker, entertainment unit, top of the television and mobile phone were damaged or broken.

1. The victim was taken by ambulance to hospital.  He was critically ill, from multi-trauma secondary to the assault.  The victim had multiple serious injuries, including rib fractures, a flail chest, multiple facial fractures and a broken arm.  He was treated in intensive care and required the assistance of a breathing machine. 

1. The appellant was arrested and interviewed by police later that day.  He made some admissions but claimed that he and the victim talked first in the victim’s flat, then argued, followed by a ‘fist thing’, after which the victim tried to push him out of the house.  The appellant said that this made him upset because he had paid rent to the victim but had never been given his own key and that the victim had hurt him by trying to push him out of the flat.  

1. The appellant admitted he had nearly killed the victim but said that he had not meant to do that.  The appellant failed to appear at the contested committal hearing date on 2 August 2007 and was extradited from Queensland on 13 August 2010.  He offered to plead guilty to these charges on 7 September 2010.

1. On the plea, the prosecutor submitted that the applicable sentencing range was a total effective sentence of 7 to 9 years, with a non-parole period of between 5 and 7 years’ imprisonment.

The judge’s stated intention

1. In the course of his sentencing reasons the judge said this:

It was the submission of your counsel in the circumstances, which I accept, that it is appropriate in your circumstances to order a much longer than usual non-parole period in order that, hopefully, you can derive some benefit from the parole officers and what they can put in place for you when you are released from prison.[6]

It is quite clear from the context, and from the discussion on the plea, that his Honour intended to refer here to ‘a much longer than usual parole period’.  His Honour had said to defence counsel in the course of argument on the plea:

I think there is certainly a good opportunity for a longer than usual parole period to ensure that he does get that help;  I certainly agree with that submission.

And again later:

I think the appropriate thing will be to, obviously, alert the Parole Board to the existence of this [psychologist’s] report and make a provision for a longer-than-normal parole period in order that he can have the advantage of the Parole Board’s supervision when he is released, and that would be the way of approaching it, I think.

[6]DPP (Vic) v Wallace (Unreported, County Court of Victoria, Judge Parsons, 27 October 2010), [21] (‘Reasons’).

1. The argument for the appellant is that a non-parole period set at almost 70 per cent of the head sentence is ‘at the high end of the spectrum in both proportional and absolute terms’.  According to the written submission:

While there is no single correct non-parole period – whether in absolute or proportional terms – in any given case, in view of the total effective sentence in the present case, a shorter-than-usual non-parole period and a longer-than-usual parole period would be something around a 50/50 or 55/45 ratio – so a non-parole period in the order of three-and-a-quarter to three-and-a-half years, thereby allowing for about three to three-and-a-quarter years of supervision by the Parole Board.

1. Since there is no ‘usual’ non-parole period, the use of phrases such as ‘shorter-than-usual’ and ‘longer-than-usual’ is unhelpful.  As this case illustrates, the use of such phrases by a sentencing judge is apt to create false or unrealistic expectations, which then give rise to appeals.  We would respectfully suggest that sentencing judges discontinue the use of such phrases.  By contrast, no difficulty is created if a sentencing judge states that the non-parole period is ‘shorter than it would otherwise have been’ – for example, because of the offender’s efforts towards and/or prospects of rehabilitation.

1. In the present case, it seems clear that the non-parole period which the judge fixed was precisely what he intended.  So much is evident from the following statement in the sentencing reasons:

That results in an effective sentence of six and a half years.  I direct that you serve a minimum term of four and a half years before becoming eligible for parole.  As I have noted that is a significant non-parole period, the reasons for that I have already expressed in the sentence.[7]

(Once again, it is plain from the context that his Honour was intending to refer to ‘a significant parole period’.) 

[7]Reasons, [31].

1. A period of 2 years under the supervision of parole officers is properly described as ‘a significant period’ of parole.  That remark having been made by the judge immediately after he had specified the length of the non-parole period, it cannot be doubted that his Honour regarded the period fixed as the appropriate one in the circumstances of the case.  It follows that this is not one of the exceptional cases where the result arrived at manifestly fails to achieve the stated intention of a sentencing judge.

Manifest excess and totality

1. In common with many offenders, the appellant suffered a dysfunctional childhood and a troubled life as an adult.  The appellant’s parents separated when he was young.  A brother to whom the appellant was close committed suicide when the appellant was 13.  The appellant’s mother began to drink heavily and use drugs.  The appellant left home and lived with an uncle and later in shelters and in State care.  He told a psychologist that he had worked as a homosexual prostitute for several years.

1. The appellant left school after completing year 10.  He has had a number of short lived jobs.  His last employment was in 2006.  Since then he has spent most of his time in custody.  The appellant has used alcohol, cannabis, amphetamine and heroin beginning in his early teens, but does not appear to have developed an addiction to drugs.

1. In support of the contention that the non-parole period was ‘disproportionately high and manifestly excessive’, the appellant relied on the following matters in mitigation:

(a)       he had made extensive admissions;

(b)      although he had remained in Queensland for about 3 years between the offending and the hearing, he had pleaded guilty and had indicated an intention to do so at an early stage;

(c)       he felt true remorse;

(d)      he was only 21 when the offending took place;  and

(e)       while the diagnoses were not clear, he had a history of mental health problems, including clinical depression, borderline schizophrenia and borderline personality disorder.

1. We are not persuaded that the non-parole period was outside the range reasonably available to the sentencing judge in these circumstances.  The judge gave careful consideration to each of these mitigating factors, but had also to give appropriate weight to the gravity of the offending and to the appellant’s criminal record. 

1. As the sentencing judge said, this was ‘an inexplicable and extraordinarily violent attack on a defenceless and elder man’.  The victim suffered very serious injuries, as a result of which he has been unable to work and has been in receipt of a disability pension ever since. 

1. The appellant had prior convictions for violence.  As the Crown submission noted, only weeks before committing these offences the appellant had pleaded guilty to four counts of recklessly cause injury.  On that occasion he had received an adjourned undertaking, with a condition to obey all lawful directions to attend for assessment and treatment in relation to drug and alcohol issues.  As his Honour correctly said, specific deterrence was therefore a matter of some importance.  His Honour also correctly identified general deterrence as being ‘of considerable importance in a case such as this’. 

1. In considering the question of the protection of the community, the judge said he must

bear in mind the likelihood of your re-offending, which I find to be a real prospect in view of your current circumstances, unless of course, there is a significant change in the way in which you take the various drugs to which I have referred.[8]

As to rehabilitation, the judge said:

Although one can never give up hope of your eventual rehabilitation, sadly and unfortunately, there is little before me at this stage to suggest there is any great likelihood of that.  Nevertheless, in fixing an appropriate sentence, I have sought to maximise the chances of your rehabilitation, as there may be.[9]

[8]Reasons, [24].

[9]Ibid [22].

1. At the adjourned hearing, reliance was placed on the appellant’s history of incarceration in the period since July 2007.  Counsel argued that the non-parole period breached the principle of totality.  We disagree.  It is true that, since he was first imprisoned in July 2007 for breaching an intensive corrections order, the appellant has spent lengthy periods in custody.  But these are largely referable to a sentence of 3 years, imposed in November 2007 for drug offences, and to successive breaches of parole following his release in May 2008.  As counsel properly acknowledged in argument, those events tended to reinforce the conclusion of the sentencing judge that there was a ‘real prospect’ of the appellant reoffending, and ‘no great likelihood’ of rehabilitation.

1. As we have said, the judge paid careful attention to each of the mitigating factors on which the appellant could rely, including his plea of guilty, the delay between charge and sentence and his ‘tragic’ personal circumstances.  In our view, it was well open to his Honour in the circumstances of the case to fix the non-parole period which he did.

1. We would dismiss the appeal.

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R v Merritt (2008) 191 A Crim R 272, 277–8 [24]; R v Sotto [2009] VSCA 70, [27]–[28];

Le v The Queen

[2011] VSCA 42, [44]; Gray v The Queen [2010] VSCA 312, [21].