Whiteford v The Queen
[2016] VSCA 26
•4 March 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0153
| BENN ARTHUR WHITEFORD | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BONGIORNO and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 March 2016 |
| DATE OF JUDGMENT: | 4 March 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 26 |
| JUDGMENT APPEALED FROM: | DPP v Whiteford (Unreported, County Court of Victoria, Judge Montgomery, 17 July 2015) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Theft – Common assault – Breach of Family Violence Intervention Order – Aggregate sentence of 5 years’ imprisonment with non-parole period of 3 years – Totality – Manifest excess – Totality principle not infringed – Sentence not manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms S J Keating | Revill & Papa Lawyers |
| For the Crown | Mr B F Kissane QC | Mr J Cain, Solicitor for Public Prosecutions |
BONGIORNO JA
BEACH JA:
Introduction
On 17 July 2015, the appellant pleaded guilty in the County Court to one charge of aggravated burglary (charge 1), one charge of theft (charge 2), one charge of common assault (charge 3) and two summary charges of contravening a Family Violence Intervention Order (summary charge 4 and summary charge 5). The maximum term of imprisonment for aggravated burglary is 25 years.[1] The maximum term of imprisonment for theft is 10 years.[2] The maximum term of imprisonment for common assault is five years.[3] The maximum term of imprisonment for contravening a Family Violence Intervention Order is two years.[4] Following a plea hearing the judge imposed an aggregate sentence of five years’ imprisonment,[5] and fixed a non-parole period of three years.
[1]Crimes Act 1958, s 77(2).
[2]Crimes Act 1958, s 74(1).
[3]Crimes Act 1958, s 320.
[4]Family Violence Protection Act 2008, s 123(2).
[5]See s 9 of the Sentencing Act 1991.
On 12 August 2015, the appellant filed a notice of application for leave to appeal against sentence. The appellant’s notice set out his proposed grounds of appeal as follows:
1.The learned sentencing judge erred by treating text messages sent by the [appellant] to the victim, prior to the instant offending, as evidence of premeditation in relation to charges 1–3.
2.The total effective sentence and non-parole period imposed were manifestly excessive and offend the principal of totality in view of:
(a) the objective seriousness of the offending; and
(b) remorse reflected in the plea of guilty.
On 7 October 2015, Priest JA granted the appellant leave to appeal on ground 2 but refused leave to appeal on ground 1. Pursuant to s 315(2) of the Criminal Procedure Act 2009, the appellant elected to renew his application for leave to appeal on ground 1, in addition to pursuing his appeal on ground 2. However, at the commencement of her oral submissions, counsel for the appellant abandoned ground 1.
The offending
The appellant was 38 years of age at the time of the offending. He had previously been in a relationship with the complainant. The relationship ended some months before the offending. On 26 August 2014, the complainant obtained an interim Family Violence Intervention Order. On the same day, the appellant was served with a copy of this order.
On 4 September 2014, at about 1:00 am, and in breach of the intervention order, the appellant attended the address of the complainant. The complainant was at home with her 10 year old son at the time. The appellant turned off the power to the house before using a crowbar to force his way inside the backdoor. These events constituted charge 1 (aggravated burglary) and summary charge 4 (contravening a Family Violence Intervention Order). While the appellant was originally charged with aggravated burglary on the basis of an intention to assault, on the plea, and after negotiation, the Crown accepted that the aggravated burglary was committed with an intent to steal rather than an intent to assault.
The complainant heard a noise coming from the backdoor and left her room to investigate. The appellant confronted the complainant at the doorway of her bedroom. During this confrontation, the appellant said to the complainant ‘you know what’s going to happen’. This put the complainant in fear for her safety. These events constituted charge 3 (common assault).
The complainant screamed out to her son to run next door. He ran from the property and notified the neighbours. The complainant also ran to the neighbours’ property. The police were notified and attended the scene.
The appellant stole a number of items before leaving the property, including the complainant’s mobile phone and her purse. These facts constituted charge 2 (theft).
Subsequently, on 5 and 6 September 2014, the appellant sent the complainant two emails, in which he expressed apology for his conduct. These emails were sent in breach of the intervention order. The sending of these emails constituted summary charge 5 (contravening a Family Violence Intervention Order). Police arrested the appellant on 6 September 2014. The appellant gave a partial ‘no comment’ interview.
The judge’s reasons for sentence
The judge commenced his reasons for sentence by noting that the appellant had a ‘very substantial criminal history’, which included an appearance in September 2012 where the appellant was given an 18 months aggregate sentence of imprisonment for burglary and related offences.[6] The judge then referred to the victim impact statement, and the fact that both parties accepted that a term of imprisonment should be imposed.
[6]DPP v Whiteford (Unreported, County Court of Victoria, Judge Montgomery, 17 July 2015) (‘Reasons’) [2].
Next, the judge referred to submissions that had been made to him as follows:
On the prosecution's behalf, [the prosecutor] described the offending as serious offending. It was not a spur of the moment idea and looking at the relationship, I have to look at the context of it as displayed by the numerous text messages he referred to in the depositions.
On your behalf, your counsel submitted I should take into account your plea of guilty which I do. As to the timing of the plea of guilty, it was last week that it was indicated the matter would not proceed to trial. As I understand the negotiations, they were entered into at committal and foundered on the issue of what the intent was for the aggravated burglary, in that initially you were charged with an aggravated burglary, intent to assault. The matter has been settled on the basis of intent to steal, with an additional charge of common law assault. I am told by the prosecutor, there was also an issue of the defence wanting the matter dealt with summarily.[7]
[7]Reasons [4]–[5].
The judge then referred to the fact that there was a committal at which the complainant was cross-examined, and the fact that the matter resolved just prior to the scheduled trial date. The judge noted that the appellant’s plea was ‘not an entry of plea of guilty at the earliest opportunity’. However, the judge accepted that the appellant’s plea of guilty was entered at a reasonable stage of the proceedings. His Honour went on to say that the plea was also an acceptance of responsibility by the appellant for his offending. Further, the judge noted that the appellant’s plea saved the Court the time and expense of a trial, before going on to say that the appellant would be given an ‘appropriate discount for that plea of guilty’.[8]
[8]Reasons [6]–[8].
Next, the judge dealt with further background circumstances concerning the appellant. In the course of describing these matters, the judge set out what occurred in the early hours of 4 September 2014 as follows:
You had been drinking and I am told you decided to go around about 1 am to her house to talk about the settlement. You were also concerned about some of your property that was still at the house. You knocked on the backdoor, the TV lights were on, no answer. You went to the front door, no answer. You turned off the power, no response — went back to the back door. I am told that you saw the complainant who motioned you to go. You did not accept any of that. You grabbed a crow-bar and entered the property. You do not recall what it was you actually said, but you accept what is in the prosecution summary of what is said.[9]
[9]Ibid [11].
Finally, the judge said:
In sentencing you — you have probably heard this said to you a number of times — I have to take into account a number of factors; general deterrence. That is, I have to impose a sentence that will deter other people in the community from committing these sorts of crimes, and that is a very important factor because the community is sick and tired of men who are disappointed in relationships and not accepting it, and going around and in your case, breaking into the premises of the complainant in the middle of the night, when it should have been clear to you that she certainly did not want you to come in. This was in contravention of an Intervention Order she had taken out. Secondly, I have to be concerned with specific deterrence; that is, somehow to try and get it in your mind to stop offending. I have to express my denunciation of your conduct. Well, that is easily said - it was appalling. Very frightening for the complainant and all arose out of your failure to accept that the relationship was over. It was all about you. Nothing about her.
On the other hand, your counsel submits that I could have some confidence that you have prospects of rehabilitation because you have a solid work record and the context of the offending. The context of the offending does not give me much confidence about prospects of rehabilitation, but certainly, I do take into account the fact that you can actually get a job in a profession that no doubt returns a good income, and as I said, I take a positive view of what is occurring to you whilst you are in custody.
Looking at your criminal history, your counsel says, well, you have no priors for offences against women and that is true, but you have lots of priors for all sorts of other things, including dishonesty, violence, drugs, possessing weapons, and that is a very small part of the consideration that the history does not reflect the fact that you have not breached an intervention order before. You did it twice here, and you do not have any offences of violence against women.[10]
[10]Ibid [15]–[17].
The abandoned ground 1
Ground 1 having been abandoned, it is not necessary for this Court to express a view about it. It is sufficient for present purposes to note the contents of the texts relied upon by the Crown as giving context to the offences for which the appellant fell to be sentenced. As typed, those texts read:
You took every thing i own you thru me away like shit you will pay one way or another for the stuff went missin on your watch you.picked wrong bloke to use i garentee that you wont know when but.i will cunt
and:
ill give you to the end of the day to do the right thing and treat me like a person and then if you decide you will let this go away by not talking about it i will have only one option and i will follow this thru i swear on all six kids extended family dead family and every ounce of strength i have do you fucking understand me?
During the course of the plea, the appellant’s counsel sought to put the appellant’s offending in context. It was put that the appellant was frustrated and experienced resentment at the cessation of the relationship between the appellant and the complainant. It was this submission that provoked the prosecutor to refer to the texts (which were in the depositions) and which had not been referred to in the prosecution summary, or earlier in the plea. Following the appellant’s counsel’s submissions, the following exchange occurred:
[PROSECUTOR]: Your Honour, this is serious offending on any view, Your Honour. You’ve been given some background, but what I’d ask Your Honour to do is to peruse the depositions and particularly the text messages that were being sent. You’ll find those at p.73 through to p.131. Just, for example two messages.
HIS HONOUR: Do those text messages form part of the charges or not?
[PROSECUTOR]: No, no. This is the lead up to the intervention order, Your Honour.
HIS HONOUR: It’s admitted by the defence that his behaviour was abusive and harassing.
[PROSECUTOR]: We say it was more than that and it might explain the position that the complainant felt that she was in when the aggravated burglary occurred. Just two examples …
HIS HONOUR: I in fact read them the other day but refer me to the two examples.
[PROSECUTOR]: One at p.74 and another one at p.94. They give you some flavour as to what was going on and they also, in my submission, explain some of the feelings that are expressed by the complainant in the victim impact statement. This is not, in our submission, just a spur of the moment idea to go around there to have a talk about the intervention order and the property settlement, something more sinister than that. If that were the case, Your Honour …
HIS HONOUR: I can only sentence him on the basis of what he has pleaded to.
[PROSECUTOR]: Yes, that’s right, that’s right, but it’s put that he has gone around there to have a negotiations session at 1 o’clock in the morning, turning the power off and entering with a crowbar. …
HIS HONOUR: Did you want to say anything about the text messages, [defence counsel]?
[DEFENCE COUNSEL]: Your Honour, they don’t form part of any of the charges.
HIS HONOUR: No, but you’ve put the context of the relationship as part of your plea.
[DEFENCE COUNSEL]: Yes, absolutely, Your Honour, and I agree and made submissions in my plea that his behaviour in not accepting the relationship and being abusive and harassing of her was part of the backdrop.
HIS HONOUR: That’s shown by the text messages.
[DEFENCE COUNSEL]: That’s right, Your Honour. They’re not part of the case but they’re part of the lead up and it’s a lead up that we concede, Your Honour.
As this exchange shows, the appellant’s counsel on the plea accepted that the texts sent by the appellant were part of the lead up to the offending. That concession was correctly made by the appellant’s counsel, and no issue is now taken in relation to it by the appellant in this Court. Accordingly, we now turn to the ground upon which the appellant has been given leave to appeal.
Ground 2: manifest excess/totality
In ground 2, the appellant complains that the total effective sentence and non-parole period imposed were manifestly excessive and offend the principle of totality in view of the objective seriousness of his offending and the remorse reflected in his plea of guilty. In support of this ground, the appellant:
(a) submits that the circumstances of his offences are ‘at the lower end in seriousness’;
(b) notes that all of his offences occurred within a limited period of time on 4 September 2014, and then again on 5 and 6 September 2014;
(c) asserts that the judge wrongly found that there was no evidence of remorse before the Court (in support of this assertion, the appellant contends that the two emails he sent to the complainant on 5 and 6 September were evidence of remorse); and
(d) seeks to show that his sentence was excessive by comparison with sentences imposed in other cases involving offending over a longer period of time and/or offending involving more significant threats or violence.[11]
[11]See for example Johnston v The Queen [2013] VSCA 362; and Evison v The Queen [2014] VSCA 132.
These complaints must be rejected. First, the appellant’s offending was serious offending. This Court has said on many occasions that offending of this kind against domestic partners or former domestic partners is serious.[12] Secondly, the fact that the appellant’s offending occurred over limited timeframes does not detract from the seriousness of this offending.[13] Thirdly, it is not correct to assert that the judge ‘found that there was no evidence of remorse before the Court’. In fact, the judge said that there was no evidence of remorse apart from the appellant’s plea of guilty.[14] We see no error in that statement. Further, the appellant’s reliance upon the emails that constituted summary charge 5, as evidence of remorse, is misconceived. Fourthly, we see nothing in the decisions and sentences imposed in the so-called comparable cases relied upon by the appellant that suggests that the sentence imposed on the appellant was, in all the circumstances, outside the permissible range.
[12]Cf Filiz v The Queen [2014] VSCA 212; and Mercer (a pseudonym) v The Queen [2015] VSCA 257.
[13]Cf Hogarth v The Queen (2012) 37 VR 658.
[14]Reasons [11].
As has been said many times before, manifest excess is a difficult ground to make out. The test for manifest excess is whether the sentence was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[15] Reasonable minds might differ as to whether the sentence imposed in this case was at the higher end of the permissible range. That, however, is not the test. The short answer to ground 2 is that, when one has regards to the circumstance of the appellant’s offending and all of his relevant background, it cannot be said that the sentence imposed by the judge was wholly outside the permissible range; nor can it be said that the sentence infringes the principle of totality.
[15]R v Abbott (2007) 170 A Crim R 306.
It follows that ground 2 must be rejected.
Conclusion
The appeal must be dismissed.
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