Wasif v The Queen
[2022] VSCA 182
•1 September 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0097 |
| FADY WASIF | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | NIALL and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 August 2022 |
| DATE OF JUDGMENT: | 1 September 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 182 |
| JUDGMENT APPEALED FROM: | [2022] VCC 1172 (Judge Hampel) |
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CRIMINAL LAW – Application for leave to appeal against sentence – Resentencing following breach of community correction order – Original sentence of 11 months 14 days’ imprisonment and community correction order for two years for offences of intentionally damaging property, stalking, theft, attempt to pervert the course of justice and breach of bail – Plea of guilty to charge of breach of community correction order – Failure to attend a number of appointments as required by corrections authority – Applicant resentenced to 22 months’ imprisonment – Whether sentence manifestly excessive – Principle of parsimony – Section 5(3) of Sentencing Act 1991 – Application for leave, and appeal, allowed – Applicant resentenced to 12 months’ and 14 days imprisonment.
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| Counsel | |||
| Applicant: | Mr P Smallwood | ||
| Respondent: | Ms A Roodenburg | ||
Solicitors | |||
| Applicant: | Theo Magazis & Associates | ||
| Respondent: | Solicitor for Public Prosecutions | ||
NIALL JA
KAYE JA:
On 29 October 2019 the applicant pleaded guilty in the County Court to charges of intentionally damaging property, stalking, theft and attempting to pervert the course of justice. He also pleaded guilty to a summary charge of failing to answer bail. On 30 October 2019 he was sentenced to a total effective sentence of 11 months and 14 days’ imprisonment in combination with a two year community correction order (‘CCO’). Subsequently, on 21 July 2022 the applicant pleaded guilty before the County Court to one charge of failing without reasonable cause to comply with the CCO. On that date, the CCO was cancelled, and the applicant was resentenced to a total effective sentence of one year and ten months’ imprisonment with a non-parole period of 14 months.
The applicant seeks leave to appeal against the sentence imposed on 21 July 2022 on the following grounds:
(1)the sentence contravened the common law principle of parsimony;
(2)the sentence was more severe than that which was necessary to achieve the purposes for which the sentence was imposed and therefore contravened s 5(3) of the Sentencing Act1991;
(3)the sentence was manifestly excessive because the wrong type of sentence was imposed.
Circumstances of offending
The applicant was born in November 1985 and was 33 years of age at the time of the offending for which he was first sentenced in 2019.
In 2010, the applicant commenced a relationship with the complainant which lasted for seven years. They were married in August 2017, and there were no children of the relationship.
In December 2018, the complainant discovered that the applicant had been involved in a sexual relationship with another woman, KC. The complainant learnt of the affair when the applicant was arrested and interviewed in relation to offences against KC. Notwithstanding that discovery, the complainant continued to live with the applicant in an endeavour to repair the marriage. However, in late January or early February 2019 she found a number of text messages on the applicant’s telephone from another female. As a result, she separated from the applicant and left the matrimonial home.
Initially, the separation was reasonably amicable. However, on 5 March and 6 March 2019 the applicant then engaged in conduct which constituted the charge of stalking (charge 2). That conduct commenced on 5 March with a text message he sent to the complainant in which he said that he knew where she was, that he had left a surprise in her car, and that she must answer the telephone because ‘I’m not joking now’. He then, between 8.30 pm and 11.05 pm on that date, attempted to telephone the complainant on 93 occasions.
As a result of that conduct, the complainant informed a friend about the text messages. The friend drove to the street near the address where the complainant was then residing, and there observed the applicant’s vehicle with the applicant standing next to it. About ten minutes later, he noticed that the applicant’s vehicle had moved down the street closer to where the complainant was then staying. The applicant was in the vehicle and was looking around. That conduct formed part of the charge of stalking (charge 2). At that point, the applicant intentionally damaged the complainant’s vehicle by breaking the driver’s side window, causing damage to the right side mirror and removing the windscreen wiper. He then left the scene before police arrived. That conduct was the subject of the charge of intentionally damaging property (charge 1).
The applicant then sent further abusive text messages to the complainant threatening to go to the place where she was staying and to start trouble there. That conduct also formed part of charge 2 (stalking). In the meantime, on being advised that the applicant was present outside the address where she was staying, the complainant left the premises via a back entrance into an alleyway, and made her way to her parents’ house.
On the following day, 6 March, the applicant was observed by a friend of the complainant driving her vehicle. The applicant did not have permission to drive the vehicle since they were separated. That conduct constituted charge 3 (theft). On the same day, the applicant attempted to telephone the complainant twenty-five times. He left a number of voicemail messages on her telephone stating that he needed her to contact him, and that, if she did not do so, ‘it was just going to get worse’. He also sent her an email saying that the more she avoided him, the ‘harder he was going to go’. The email concluded ‘your choice, I hope you are not that dumb’. That conduct also formed part of charge 2 (stalking).
The complainant reported the theft of her vehicle to the police. Police located the applicant and arrested him at his home address on 6 March 2019. He was refused bail. On the following day, 7 March 2019, the complainant was granted a family violence intervention order against the applicant.
The police subsequently ascertained that the applicant had a second mobile telephone registered under his name. The police were able to locate that telephone which had been placed inside the boot of the complainant’s vehicle attached to a charging cable. That process had enabled the applicant to monitor the location of the complainant’s vehicle. That conduct also formed part of charge 2 (stalking).
On 24 April 2019, while the applicant was in custody, he telephoned his mother and requested her to talk to the complainant and to persuade her to say that she had permitted the applicant to use her motor vehicle in order to repair the damage he had occasioned to it. That conduct formed the offence that was the subject of charge 4 (attempt to pervert the course of justice).
On 31 January 2019, the applicant had been granted bail to attend the Heidelberg Magistrates’ Court on 5 March 2019 in respect of a charge which had been laid against him in December 2018 of stalking KC. The applicant failed to attend Heidelberg Magistrates’ Court on 5 March 2019, that conduct constituting the related summary offence of failing to answer bail.
As mentioned, the applicant pleaded guilty to those charges in the County Court on 29 October 2019. After a plea presented on his behalf, he was sentenced on the following day to a total effective sentence of 11 months and 14 days’ imprisonment in combination with the two year CCO on charges 2 and 4. That sentence was constituted as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1
Intentionally damage property
10 years’ imprisonment
3 months’ imprisonment
-
2
Stalking
10 years’ imprisonment
9 months’ imprisonment
Base
3
Theft
10 years’ imprisonment
3 months’ imprisonment
-
4
Attempting to pervert the course of justice
25 years’ imprisonment
6 months’ imprisonment
2 months
Related Summary Offence
4
Fail to answer bail
2 years’ imprisonment
30 days’ imprisonment
14 days
Total Effective Sentence:
11 months and 14 days imprisonment in combination with a 2 year Community Correction Order[1] (‘CCO’) on charges 2 and 4.
Pre-Sentence Detention
238 days
Section 6AAA Statement:
3 years’ imprisonment with a non-parole period of 2 years
Other relevant orders:
Forfeiture order, forensic sample order pursuant to s 464ZF of the Crimes Act 1958, drivers licence suspended for a period of
3 months[1]The CCO was imposed in relation to charges 2 and 4 only.
The applicant was released from custody on 18 April 2020. On 2 December 2021, he was convicted by the Sunshine Magistrates’ Court and fined $600 on one charge of contravening the family violence intervention order which the complainant had obtained against him on 7 March 2019. The breach was constituted by the conduct of the applicant on 22 May 2020 posting a video on the social media platform TikTok using his profile in which he tagged the complainant’s TikTok profile. The video depicted the applicant surrounded by text talking about the lost relationship between himself and the complainant.
The applicant completed his service of the CCO on 18 April 2022. On 30 May 2022, he was charged with one count of without reasonable excuse failing to comply with the conditions of the CCO. As mentioned, on 21 July 2022 he was resentenced to a total effective sentence of 22 months’ imprisonment with a non-parole period of 16 months. That sentence was constituted as follows:
Charge
Offence
Maximum
Sentence
Cumulation
2
Stalking
10 years’ imprisonment
18 months’ imprisonment
Base
4
Attempting to pervert the course of justice
25 years’ imprisonment
12 months’ imprisonment
3 months
Related Summary Offence
5
Contravening a CCO[2]
3 months’ imprisonment
1 month imprisonment
1 month
Total Effective Sentence:
1 year and 10 months’ imprisonment
Non-Parole Period:
1 year and 4 months
Pre-sentence Detention:
337 days[3]
[2]Contrary to s 48E of the Sentencing Act 1991.
[3]The pre-sentence detention calculation recognised the 11 months that was imposed on, and served by, the applicant on 30 October 2019 on charges 1 and 4, but did not include the 14 day order for cumulation made on the summary charge of failing to answer bail.
Background Circumstances
The applicant was born in Lebanon in 1985. At that time, Lebanon was in the throes of a lengthy and violent civil war. His family migrated to Australia in 1988. The applicant attended Sacred Heart Primary School in St Albans and undertook his secondary education at Keilor Downs College. He had difficulties in his primary schooling and in the first years of his secondary education, but by the middle of his secondary education he managed to settle down and complete the Year 12 Victorian Certificate of Education. In 2004 to 2005, he then undertook an Advanced Diploma in Mechanical Engineering which he successfully completed. In the following year, 2006, he completed a three month pre-apprenticeship to become an electrician.
In 2007, the applicant joined the Australian Army. He undertook a plumbing apprenticeship through combat engineering and remained in the army for four years. During that time, he volunteered for deployment in Afghanistan, where he served for six months, performing plumbing work. He also participated in surveillance and patrols, and assisted with the security of various villages, providing protection from insurgents.
Shortly before the completion of the six months’ deployment, the applicant returned to Melbourne in order to attend to his father who had been diagnosed with terminal cancer. By that time, his father was unable to speak and he passed away shortly after the applicant’s return.
The applicant decided not to return to the army, and he re-entered civilian life, completing his plumbing apprenticeship. He then obtained employment for some years at Melbourne Airport. In 2016, he commenced employment with a real estate company as a skilled tradesman.
After the applicant’s return from Afghanistan, he commenced using methylamphetamine. Notwithstanding his abuse of that drug, his relationship with the complainant remained stable for some time. However, by the time that they married in 2017, some issues had arisen in the relationship. In June 2018, he commenced an extramarital relationship with KC. However when KC ascertained that the applicant was married, she broke off the relationship. As a result, the applicant increased his use of methylamphetamine and became obsessed about KC. In that context he engaged in conduct that was the subject of the charge, stalking KC, in respect of which he was charged in December 2018. He was released on bail until 5 March 2019.
The plea on 29 October 2019
On the plea, counsel for the applicant relied on the plea of guilty which, it was submitted, was entered at the earliest practical stage in the proceeding. The applicant had no previous convictions. He was a person of previous good character, with an excellent work history, having served in the army including a period of voluntary deployment in Afghanistan. It was submitted that the applicant had good prospects of rehabilitation. Character references compiled by his mother, his sister and his employer were tendered on his behalf. In her character reference, the applicant’s mother described the applicant’s initial difficulties in his education, his efforts to overcome those difficulties, and his dedication and commitment to his employment and to his family. She also described the difficulties that the applicant had experienced while on remand since 6 March 2019.
On the plea, counsel for the applicant conceded that a period of imprisonment was warranted and unavoidable, and submitted that such a sentence should be combined with the imposition of a CCO.
In response, counsel for the prosecution accepted that a combination sentence would be within the range of sentencing options available to the court.
Judge’s reasons for sentence 30 October 2019
In her reasons for sentence in respect of the original offences,[4] the judge considered that the offence constituted by the charge of stalking (charge 2) was a serious example of that kind of offence. Her Honour noted that the applicant’s conduct was an attempt to exert control over his wife and to subject her to his will. He was not prepared to accept her decision to terminate their relationship, and he pursued her, although she had made it clear that she wished to have nothing further to do with him.[5] Her Honour considered that the offence constituted by charge 4 (the attempt to pervert the course of justice) was at the lower end of the scale of seriousness for offences of that kind.[6]
[4]DPP v Wasif [2019] VCC 1775 (‘the first sentencing reasons’).
[5]Ibid [25]–[28].
[6]Ibid [29].
In the circumstances, the judge was of the view that denunciation, general deterrence and specific deterrence were important sentencing factors.[7] Her Honour accepted that there were positive factors in relation to the applicant’s prospects for rehabilitation. In particular, he had no previous convictions, and he had strong support from his mother and sister, a good work history and good employment and vocational skills. On the other hand, during his period in custody he had failed to complete a men’s behaviour change program and he had not engaged in a drug rehabilitation counselling program.[8] The judge regarded the applicant’s remorse as being limited. Overall, her Honour considered that the applicant’s prospects for rehabilitation were ‘fair’.[9] She accepted that the applicant had pleaded guilty at a relatively early stage in the proceeding, and that he was entitled to the full benefit of the plea for its utilitarian value.[10]
[7]Ibid [31], [42]–[44].
[8]Ibid [48]–[52].
[9]Ibid [55].
[10]Ibid [54].
The judge accepted that the appropriate sentencing disposition that was contended for by both parties, namely, that the applicant be sentenced to a term of imprisonment to be followed by his release on a CCO.
Breach of CCO
The applicant was released from prison on 18 April 2020. He completed the term of the CCO on 18 April 2022. Subsequently on 30 May 2022, he was charged with failing to comply with the conditions of the CCO contrary to s 49 of the Sentencing Act. The charge contained the following particulars of the contravention of the CCO:
(1)The applicant had failed to attend for supervision as directed on seven dates, namely: 15 December 2020, 29 December 2020, 2 July 2021, 4 August 2021, 25 November 2021, 4 January 2022, and 9 February 2022.
(2)The applicant had failed to attend drug assessment and treatment (including testing) as directed on five dates, namely: 9 November 2020, 10 December 2020, 21 December 2021, 12 February 2022, and 9 February 2022.
(3)During the operational period of the CCO, the applicant was convicted by the Sunshine Magistrates’ Court on 2 December 2021 for contravening a family violence intervention order and fined $600. As mentioned, that offence was committed by the applicant on 22 May 2020 and was constituted by his conduct in posting a video on the social media platform TikTok in which he tagged the complainant’s profile. The video depicted the applicant, surrounded by text, talking about his lost relationship with the complainant.
Report of Sunshine Community Correctional Services
In their joint report dated 30 May 2022, the advanced case manager and supervised court case manager of Sunshine Community Correctional Services stated that the applicant’s engagement with the service had been superficial despite frequent prompting. Although he presented as agreeable and accommodating, he lacked depth and insight into his offence pathway and triggers. When the service received notification of the family violence incident in May 2020, the applicant’s engagement with the service about that matter was superficial, and he was not particularly forthcoming about the dynamics of the relationship between himself and the complainant.
The applicant engaged in goal setting discussions relating to obtaining employment and furthering his overall circumstances. In that regard, the applicant demonstrated motivation to achieve his goals and desist from criminal conduct, which was evidenced by him securing fulltime employment as an afterhours plumber in December 2021 and building a positive support network. However, his overall compliance with supervision sessions was sporadic, and he incurred seven unacceptable absences. Nevertheless, he remained engaged with the service until the expiry of the order in April 2022.
The applicant participated in a RAPIDS assessment on 23 April 2020. Following that assessment he was referred for the KickStart Treatment Program through Odyssey House. However, due to the COVID-19 pandemic there was significant delay in commencing treatment. During that delay period the applicant remained engaged with the service and was forthcoming about his abstinence. He demonstrated insight into the consequences of his previous substance use and its connection with his offending.
After the delay resulting from the COVID-19 pandemic, the applicant was required to undergo a further assessment. However, he failed to attend two scheduled assessments on 9 November and 10 December 2020. He attended and participated in an assessment that was fixed for 9 March 2021, and was referred for a standard episode with Footscray Odyssey House to focus on relapse prevention. He successfully completed that course, attending his last session on 14 May 2021.
On 20 November 2021, the applicant attended to undergo a drug urine screen, but he was unable to do so because of the high volume of patients at the centre at the time. Subsequently, he failed to attend testing on three occasions which have already been mentioned, namely, 21 December 2021, 12 January 2022 and 9 February 2022. On 14 January 2022, the service was notified by Victoria Police that the applicant had tested positive for methylamphetamine on a roadside oral fluid test, as a result of which his driving licence had been suspended.
On 14 December 2021, the applicant successfully completed the LINCS in Families Program via Zoom. The program was a one-day workshop focussed on supporting participants to develop skills and strategies to maintain healthy relationships and manage conflict. The facilitators of the program provided positive feedback concerning the applicant’s participation during the program, the insight that he displayed, and his ability to identify his values and strengths.
In conclusion, the authors of the report recommended that the applicant’s CCO be cancelled and that he be resentenced on the original charges.
Plea submissions concerning breach of CCO
On the plea in respect of the breach of the CCO, counsel for the applicant noted that the offending, constituting the breach of the intervention order, consisted of a very short video, the content of which was not abusive, and which comprised the applicant’s retrospective contemplation as to what he had done wrong. Counsel further submitted that overall the applicant had displayed some motivation and had taken advantage of the opportunities provided by the CCO. While there had been some relapse in relation to the positive drug test, nevertheless the applicant had returned to being abstinent, and had gained employment, working five days each week from Thursday to Monday performing plumbing work for a real estate agency. In addition, the applicant had entered into a new relationship which was proceeding amicably. Based on those matters, counsel submitted that the judge should confirm the previous order so that the applicant could continue with it and complete the men’s behavioural change program provided by the service.
In response, counsel for the prosecution submitted that the judge should adopt the recommendation of the community correctional services, cancel the CCO and resentence the applicant on the original offending.
Judge’s reasons for resentencing
In resentencing the applicant[11] the judge noted the contents of the report of Sunshine Community Correctional Services. Her Honour concluded that in view of breaches by the applicant of the CCO, by both non-compliance and by further offending, and in light of his superficial engagement with the service, the only appropriate disposition was to convict the applicant for breach of the CCO, to cancel the order, and to resentence the applicant to a term of imprisonment.[12] Her Honour considered that a further CCO was not appropriate for the following reasons:
You had your chance and you showed your attitude to it and I see no reason why you should be given another chance where you do not demonstrate a genuine commitment.
I must take into account the compliance you had on the Community Correction Order and that was significant. However if you want to deal with your drug use it is up to you. If you want to engage in further programs in relation to men’s behaviour in relationships that is up to you. But I do not see absent any evidence of motivation and commitment any purpose in directing you do that.[13]
[11]DPP v Wasif [2022] VCC 1172 (‘the second sentencing reasons’).
[12]Ibid [22].
[13]Ibid [23]–[24].
Submissions
In support of the three proposed grounds of appeal, counsel for the applicant submitted that, in substance, the applicant had substantially complied with the CCO. Counsel referred to the report of the Community Correctional Service that the applicant had remained engaged with Corrections until the expiry of his order, that he had demonstrated motivation to achieve his goals and to desist from criminal conduct, and that he had secured fulltime employment. In addition, the applicant had successfully completed the standard episode of drug counselling, he had successfully completed the LINCS in Families program, and he had continued to complete his relevant treatment conditions. Counsel further noted that the applicant had pleaded guilty to the contravention of the CCO, and that the judge was required to take into account, as a mitigating circumstance, that a further sentence of imprisonment would be more onerous as a consequence of the restrictions relating to the circumstances in which prisoners are now incarcerated as a result of the COVID-19 pandemic.
In those circumstances, it was submitted that the sentence imposed by the judge, on 21 July 2022, contravened the common law principle of parsimony, and that, contrary to s 5(3) of the Sentencing Act, it was more severe than that which was necessary to achieve the purposes for which the sentence was imposed. Accordingly, it was submitted, the sentence was manifestly excessive. Counsel contended that the applicant’s sentence should be set aside, and that, in lieu of that sentence, the CCO made on 30 October 2019 should be confirmed.
In response, counsel for the respondent noted that, pursuant to s 83AS of the Sentencing Act, the Court, in dealing with the contravention of a CCO, should resentence the applicant afresh.
Counsel noted that when the judge imposed the original sentence on the applicant, she warned the applicant that if he did not comply with the CCO, he would be resentenced and would be likely to spend further time in custody. Counsel submitted that the applicant, in effect, had ignored that warning. He committed a further serious criminal offence against the same complainant within one month of the commencement of the CCO. Further, it was submitted, the failure of the applicant to comply with the CCO throughout the course of the order reflected adversely on his prospects of rehabilitation, and placed weight on the need for specific deterrence by way of resentence. In that connection, counsel noted that the applicant had failed to attend supervision on seven occasions, had failed to attend treatment on two occasions, and had failed to submit for testing on three occasions. In that context, the applicant failed to submit for testing during a period in which he had tested positive to methylamphetamine at a roadside oral fluid test in January 2022, which had resulted in the suspension of his licence to drive a motor vehicle. Counsel submitted that it is significant that that circumstance occurred towards the conclusion of the term of the CCO and after the applicant had undergone supervision in respect of his use of illicit drugs. In addition, during the period of the CCO, the applicant had committed a further offence only one month after his release from prison. In those circumstances, it was submitted that it was open to the judge to conclude that there had been a substantial failure by the applicant to comply with the terms of the CCO imposed on him. Accordingly, counsel submitted that the sentence imposed on the applicant, on resentencing, did not breach the common law principle of parsimony, and did not contravene s 5(3) of the Sentencing Act.
Counsel further submitted that the sentence imposed on the applicant was not manifestly excessive. The judge found that the offence of stalking was a serious example of that offence. The offence was committed on the day after the applicant had failed to appear in the Magistrates’ Court on another charge of stalking an unrelated victim and after the family violence intervention order for the same victim had been served. In those circumstances, the sentencing purposes of denunciation, general deterrence and specific deterrence were significant considerations. Counsel further submitted that a measure of cumulation between the contravention offence and the other two offences was necessary, in order to give appropriate effect to those sentencing principles.
Legal principles
Section 83AD(1) of the Sentencing Act provides that an offender, who is subject to a CCO, must not contravene that order without reasonable excuse. Section 83AS(1) provides that if a court finds a person guilty of an offence under s 83AD, the court must either vary the order, or confirm the order, or cancel the order. Section 83AS(1)(c) and (d) in effect provide that if the court cancels the order, it might either make no further order with respect to the offence with respect to which the order was originally made, or alternatively it may deal with the offender for the offence, with respect to which the offence was made, ‘in any manner in which the court could deal with the offender as if it had just found him or her guilty of that offence’. In the latter case, the appropriate approach is to cancel the CCO, and to sentence the offender afresh. The pre-sentence detention, declared under s 18(4) of the Sentencing Act, would include the time already served by the offender under the original sentence of imprisonment.[14]
[14]Luu v The Queen [2018] VSCA 92, [23] (Ferguson CJ, Osborn and Beach JJA); Bieljok v The Queen [2018] VSCA 99, [4] (Weinberg, Beach and Hargrave JJA).
The longstanding common law principle of parsimony is directed to ensuring that a just and appropriate sentence is imposed, by requiring that, in each case, such sentence is no more than that which is commensurate with the offending, taking into account all the relevant circumstances of the case, including the subjective circumstances of the offender.[15] The principle is, in essence, encapsulated in s 5(3) of the Sentencing Act, which requires that a court must not impose a sentence that is ‘more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed’.
[15]Compare NOM v DPP (2012) 38 VR 618, 640 [68] (Redlich and Harper JJA and Curtain AJA); [2012] VSCA 198; R v Storey (1998) 1 VR 359, 366 (Winneke P, Brooking and Hayne JJA and Southwell AJA).
The appropriate test, for a ground of appeal based on manifest excess, is well established. It is a stringent test, requiring the applicant to demonstrate that the sentence in question was wholly outside the range of sentencing options available to the sentencing judge. In other words, it must be established that the sentence was not reasonably open to the sentencing judge, if proper weight had been given to all the relevant circumstances both of the offending and the offender.[16]
[16]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
Analysis and conclusion
It is convenient to consider the three proposed grounds of appeal together, as, in substance, they are directed to the same point.
The starting point, in considering those grounds, is that the offence of stalking is, of its nature, a serious offence. In essence, it consists of an offender engaging in a course of conduct in respect of a particular victim with the intention of causing physical or mental harm to the victim, including self-harm, or of arousing apprehension or fear in the victim for his or her own safety, or that of another person.[17] The seriousness of such offending is reflected by the maximum prescribed sentence of 10 years’ imprisonment.
[17]Crimes Act 1958, s 21A.
In the present case, as the judge noted in sentencing the applicant on 30 October 2019, the conduct of the applicant, in relation to the complainant, constituted a serious instance of the offence of stalking.[18] It consisted of several instances of conduct by which the applicant sought to exert control over his wife, and to overbear her will, in circumstances which could only have been particularly intimidating for her. On this application, it is not in issue that the sentences originally imposed on the applicant, both individually, and the total effective sentence, were appropriate. In sentencing submissions in respect of the original offences, counsel for the applicant had correctly accepted that the only appropriate disposition for the offending must include the imposition of a sentence of imprisonment, albeit combined with a CCO.
[18]First sentencing reasons, [25].
The breaches of the CCO, engaged in by the applicant, constituted repeated failures by him to comply with the basic requirements of the Community Correctional Services. Each of those requirements had been directed to his rehabilitation. In addition, the applicant, during the period of the CCO, breached an intervention order that had been obtained against him by the complainant, that breach being constituted by the applicant tagging the complainant’s profile on the social media platform TikTok on which he had posted a video in which he had spoken about their lost relationship.
In those circumstances, the judge was correct to consider that the sentencing purposes and the specific deterrence and denunciation assumed some significance in determining the appropriate disposition arising from the breach by the applicant of the terms of the CCO.
On the other hand, there were a number of mitigating circumstances relevant to the question of whether any further sentence should be imposed on the applicant, and, if so, the nature of that sentence.
The applicant had pleaded guilty to the offences, for which he was previously sentenced, and he pleaded guilty to the charge of failing to comply with the conditions of the CCO. In each instance, those pleas were of significant utilitarian value. The original plea spared the complainant from the ordeal of being required to give evidence in respect of the offending that was the subject of the charge of stalking (charge 2). The plea of guilty, to the charge of failing to comply with the terms of the CCO, had the effect that the relevant officers of the Community Corrections Services were not required to give evidence concerning the extent and nature of the breaches by the applicant of that order.
In addition, the applicant had no previous convictions. He had a history of regular gainful employment, and had served in the armed forces in Afghanistan. He had available good family supports. Apart from the offending for which he was originally sentenced, and his breach of the CCO, he was otherwise of good character.
It is particularly relevant that the applicant had completed the whole of the two year period of the CCO. As the judge noted, the applicant had complied with the CCO to a significant extent.[19] He had engaged with the Community Corrections Services in goal setting discussions directed to obtaining employment and bettering his overall circumstances. As the report of the Community Corrections Services has stated, the applicant demonstrated motivation to achieve his goals and to desist from ‘pro-criminal behaviour’. During that period he had secured full-time employment as an after-hours plumber and he had built a positive support network.
[19]Second sentencing reasons, [24].
In addition, the applicant had participated in treatments directed to his long-standing addiction to methylamphetamine. It is apparent that he took significant steps to address that problem. He did relapse in that respect, but, as is often the case, the pathway to curing a long-standing and entrenched addiction is not always straightforward.
It was also to the applicant’s credit that he did complete the LINCS in Families program, which focussed on the development of skills and strategies to maintain healthy relationships, on conflict management, and on the development of positive relationships with others. In that respect, the facilitators of the program provided positive feedback concerning the applicant’s participation during the program, the insight that he had displayed, and his ability to identify his values and strengths.
The fact that the applicant breached the family violence intervention order, which had been granted in favour of the complainant, just one month after his release from prison in April 2020, is a matter of concern. On the other hand, the conduct of the applicant that constituted the breach consisted of the publication by the applicant on the social media platform TikTok of a video, in which he tagged the complainant’s profile, and in which the applicant indulged in a short retrospective reflection as to what he had done wrong in his relationship with the complainant. Apart from that episode of offending, the applicant had not committed any other offences during the whole period of the CCO.
In those circumstances, notwithstanding the applicant’s breaches of the CCO, nevertheless, during the two year period in which it was operational, the applicant did quite evidently take a number of steps that were directed to his rehabilitation, and to addressing the issues that had played a material role in the offending for which he was originally convicted.
At the time at which the applicant was charged with breach of the CCO, he had already completed the full two year term of the CCO. As this Court explained in Boulton v The Queen,[20] a CCO, by its nature, has inherent punitive elements.[21] In sentencing the applicant for breach of the CCO, it was necessary for the judge to take into account that in the respects in which the applicant had complied with the CCO, and served the term of it, he had thus undergone a material punitive process in respect of the original offending.
[20](2014) 46 VR 308; [2014] VSCA 342.
[21]Ibid 331 [85] and following.
In sentencing the applicant for breach of the CCO, the judge imposed sentences on charges 2 and 4 that were double the period of the sentences that her Honour had imposed originally. As we have noted, the conduct of the applicant comprising the offence of stalking was particularly serious. However, he had no previous convictions. There were a number of mitigating circumstances including his pleas of guilty. In addition, it was necessary for the judge to take into account, as a mitigating circumstance, that the applicant would be serving any further term of imprisonment imposed on him in the restricted circumstances of incarceration that Corrections Victoria had been required to impose on prisoners as a result of the current COVID-19 pandemic.[22]
[22]Worboyes v The Queen [2021] VSCA 169, [36] (Priest, Kaye and T Forrest JJA).
In those circumstances, and taking into account the mitigating circumstances relied on in respect of the original sentences imposed on the applicant, we are driven to the conclusion that the sentence of 18 months’ imprisonment imposed by the judge in respect of charge 2 of the offence of stalking, was wholly outside the range of sentencing options available to her Honour. The sentence was not reasonably open to the judge if appropriate weight had been given by her Honour to the mitigating factors to which we have referred.
Further, the sentence of 12 months’ imprisonment, imposed on charge 4, of attempting to pervert the course of justice, was, in our view, manifestly excessive. As her Honour correctly noted in the first sentencing reasons, the conduct of the applicant, constituting that offence, was at the ‘lower end of the scale of seriousness’ for offences of that type.[23] Again, taking into account the relevant mitigating circumstances, we consider that the sentence imposed by the judge on the applicant, in respect of that offence, was wholly outside the range of sentencing options available to her Honour.
[23]First sentencing reasons, [29].
In those circumstances, it is necessary to determine the appropriate disposition pursuant to s 83AS(1) of the Sentencing Act.
We do not consider that it is appropriate, in the circumstances of the case, to make no further order with respect to the offence for which the CCO was originally made. Nor do we consider that it would be appropriate to confirm the original CCO, as submitted by counsel for the applicant. The term of that CCO has been completed and such an order would be equivalent to a disposition making no further order in respect of the original offending. Such a disposition would, in our view, fail to give appropriate weight to the gravity of the original offences, and, in particular, the offence of stalking. Ultimately, in our view, the appropriate course is to cancel the CCO, and to resentence the applicant on charges 2, 4 and 5.
In resentencing the applicant, we bear in mind that, after the applicant had served the term of imprisonment that expired in April 2020, he had re-entered the workforce, and had not engaged in any further offending for a period of two years. The original sentence of 9 months’ imprisonment on charge 2 was imposed by the judge in combination with the two year CCO. In view of the breaches by the applicant of the CCO, it is necessary and appropriate to impose a higher sentence for that offence. On the other hand, the offending that was the subject of charge 4 (attempt to pervert the course of justice) fell very much at the lower end of the scale of seriousness for offences of that kind. Taking into account the fact that the applicant has served the whole term of the CCO, we consider that, for the purposes of totality, it is appropriate only to increase the sentence in respect of that charge by one month, and to reduce the period for which the sentence, on that charge, is to be cumulated on a sentence imposed in respect of charge 2. For the same reasons, we consider that it is appropriate that there be no cumulation in the sentence imposed in respect of charge 5 (breach of the CCO).
Taking into account the matters which we have discussed, we therefore resentence the applicant as follows:
On charge 2 – the applicant is sentenced to 12 months’ imprisonment.
On charge 4 – the applicant is sentenced to 7 months’ imprisonment.
The sentences on charges 1, 3 and 5 are confirmed.
It is directed that 14 days of the sentence on charge 4 be served cumulatively with the sentence imposed on charge 2. Otherwise, all other sentences imposed on charges 1, 3, 4 and 5 are to be served concurrently with the sentence imposed on charge 2 and with each other. Accordingly, the total effective sentence is, 12 months and 14 days’ imprisonment.
Subject to confirmation by counsel, it is declared that the applicant has already served 379 days to 1 September 2022 as presentence detention, and pursuant to s 18(4) of the Sentencing Act it is directed that that period be reckoned as already served under the sentence.
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