Wills v The Queen
[2010] VSCA 235
•14 September 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2009 0809
| JESSICA ANNE WILLS | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | ASHLEY and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 14 September 2010 |
| DATE OF JUDGMENT | 14 September 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 235 |
| JUDGMENT APPEALED FROM | R v Wills (Unreported, County Court of Victoria, Judge Smallwood, 4 September, 2009) |
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CRIMINAL LAW – Sentencing – Recklessly cause serious injury – Unprovoked and unexplained knife attack on 60 year old victim – Appellant aged 26 – Plea of guilty – Exceptional personal circumstances going in mitigation – Sentence of 6 years’ imprisonment with 3 year non-parole period manifestly excessive – Appellant re-sentenced to 3 years and 6 months’ imprisonment with non-parole period of 21 months.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr D A Dann | Rainer Martini & Associates |
| For the Crown | Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
Jessica Wills appeals by leave against sentence imposed upon her in the County Court on 4 September 2009. Having pleaded guilty to the following offences, all committed on 27 November 2008, she was sentenced as follows:[1]
[1]The appellant also pleaded guilty to a summary charge of obtaining a drug by deception. On that charge she was convicted and discharged.
Count 1
Recklessly causing serious injury
6 years’ imprisonment (maximum penalty 15 years’ imprisonment
Count 2
Possession of drug of dependence (Cannabis L)
Convicted and discharged (maximum penalty 5 penalty units)
Count 3
Theft of pharmacy prescription
7 day’s imprisonment (maximum penalty 10 years’ imprisonment)
Count 4
Theft of clothing
7 days’ imprisonment (maximum penalty 10 years’ imprisonment)
The learned judge made no order for cumulation, and so the total effective sentence was 6 years’ imprisonment. He fixed a non-parole period of 3 years’ imprisonment. He stated that had the appellant not pleaded guilty he would have sentenced her to 7 years’ imprisonment with a non-parole period of 4 and a half years.
The appellant advanced submissions in respect of the following two grounds of appeal:[2]
Ground 1:
The Learned Sentencing Judge erred in his approach to the imposition of the head sentence.
Ground 3:
The sentence imposed is manifestly excessive.
[2]Although they were in fact argued as one.
The circumstances of the matter, and its aftermath for the victim of the assault, were described by the learned sentencing judge as follows:
7.The circumstances of the offending are serious indeed. On Thursday 27 November 2008 at approximately 7.30 pm, you and two, not co-offenders in this matter but in the Magistrates' Court, were at the Boronia Railway Station. You were yelling loudly and were clearly either drug or alcohol affected.
8.One Leslie Bennett, a 60 year old male who was not known to you or your co-offenders, was at the station re-organising his shopping. One co-offender, Shaddock, approached him and started to ask him for a lighter. He replied that he did not have money and did not smoke. She told him that she had not finished speaking and he replied that he did not care and just wanted to go home. Shaddock then spat in Bennett's face.
9.Bennett told Shaddock to ‘fuck off and go away’ whereupon Shaddock called for her boyfriend, Portelli, to come over. Portelli chased Mr Bennett and said, ‘I'm gonna punch the shit out of you, you're fucked.’ Mr Bennett tried to get away but Portelli whacked him on the back of the head, knocked him to the ground and kicked him. Mr Bennett's pants fell down.
10.He was rolling on the ground trying to get up and telling Portelli to leave him alone. Shaddock then joined Portelli in assaulting Mr Bennett. Mr Bennett was pleading with them to stop. At this stage, an off-duty police officer, a Mr Kendall, saw the altercation, ran over and produced his police badge and told Shaddock and Portelli to get away from Mr Bennett. They then moved away.
11.You had been in close proximity throughout this. Suddenly you moved towards Mr Bennett who was lying with his back on the ground in somewhat humiliating circumstances, stood over him and pulled out a knife from a case on your hip area. You have a prior finding of guilt for carrying a regulated weapon and I understand that it was not uncommon for you to carry such a weapon.
12.Mr Bennett pleaded for you to leave him alone. You held the knife in your fist with the blade pointing down and used an overhand movement to plunge the knife into Mr Bennett's stomach. You then stabbed him in the right shoulder. An eyewitness said that, ‘On the second thrust she looked like she lifted her leg to use her bodyweight behind the blade.’ Mr Bennett asked you to stop, however it appears that you laughed and seemed to think it was a joke.
13.He tried to push you away, however you thrust the knife towards him again, cutting the finger on his left hand. Meanwhile Shaddock was trying to grab his bag which was sitting next to him. You then stopped, stood up and left the area with the two co-offenders and went towards the Knox pool. You disposed of the knife in a drain. You were followed by witnesses and were arrested in Penrith Street. As I have said, you were observed to be affected by alcohol, drugs or a combination of both.
14.I am clearly aware that you are to be sentenced for the crime of recklessly causing serious injury and no greater crime. You are not charged, or certainly not before me, with the assaults that had been carried out on Mr Bennett by Shaddock and Portelli. However, that is the context in which they left him alone. You, for whatever reason, decided to do what you did.
15.Mr Bennett was conveyed by ambulance to the emergency department at the Maroondah Hospital. As a result of the stabbing he sustained a five centimetre incised wound to his left lower abdomen through which his bowel was extruding. He received surgery to his bowel and a part of his bowel was removed. He also received wounds to his right shoulder and chest.
16.He was employed as a butcher but is unable to work due to his injuries. He also had a cut to his finger according to his victim impact statement. He was fearing for his life while you were stabbing him and after the third stab thought he may die. I have before me the victim impact statement of Mr Bennett and also a short statement from a police officer who has spoken to him subsequently.
17.Mr Bennett eloquently describes the circumstances in which he now finds himself. He uses at the end of his victim impact statement the expression, ‘Extremely distressed.’ It is probably something of an understatement. There has been economic loss, he has been unable to find work and he is unlikely to be able to do so. His circumstances are that at 60 years of age, as a butcher he is unable to work because of the ongoing physical injury to his shoulder. It is to be hoped that he will, but it seems unlikely.
18.He describes in that victim impact statement the continuing anxiety, fear and anger of trying to move around his local area and the train stations which he has used. He does not, as I understand it, have a car. He describes trying to recover from the operations.
19.There is also a victim impact statement from his daughter who describes, again eloquently, the emotional and psychological damage that offending such as this causes and how it is frequently ongoing.
20.Count 2 is possession of a drug of dependence which is a small amount. Count 3 was a theft of a pharmacy prescription of one of your co-accused. Count 4 was a theft of some clothing which you did not even have in your possession and I take no real interest in those matters in this particular situation. The uplifted charge was one of using the prescription or having used a prescription to obtain a drug.
The circumstances of the offending and of the impact upon the victim as thus described are not in dispute.
The appellant was then aged 26.
She was intoxicated, and drug-affected. As Nettle JA observed on the application for leave to appeal –
There was no apparent rational explanation for the attack, other than that it was committed whilst the [appellant] was under the influence of a self-administered cocktail of alcohol, cannabis, methadone and prescription and other medications, and possibly because of the underlying effects of some sort of psychological disability.
The appellant pleaded guilty at an early available opportunity. The judge found that she had displayed ‘appropriate remorse’.
The appellant had offended before. Particularly, she had been brought before the Magistrates’ Court in March 2001 on a charge causing injury intentionally or recklessly, and before the Magistrates’ Court on 3 December 2001 on a charge of possession of a regulated weapon. On each of those occasions, the proceedings were adjourned for a 12 month period without conviction.
A period which the appellant had spent on remand in respect of the presently relevant offences – 282 days – was the first occasion upon which she had been in custody. The judge accepted that this experience had had a salutary effect upon her.
The appellant is the mother of a small child. The judge accepted that gaol would therefore be a greater burden for her than for other prisoners.
A number of psychiatric reports were in evidence. The learned judge summarised the content of one of those reports this way:
29.… you grew up in the Ringwood area along with your older brother. Your father was murdered when you were five. That occurred a few months after your parents began a period of separation. Your father was stabbed and the person put on trial was acquitted.
30.You told the psychiatrist that you had a good relationship with your mother and brother. At primary school you were not subject to disciplinary action and indeed in Grade 6 were school captain and sports captain. In high school you were suspended once for smoking. You had no difficulties academically and found some classes unchallenging and boring. You apparently had a wide circle of friends and tended to mix with a variety of groups. You told him that you had a tendency to stand up for people who were being teased or bullied and were involved in the orientation of overseas students. You were not involved in fights. You stated to him that you were no longer able to cope with school in Grade 12 after you were involved in court proceedings which I will refer to in a moment.
31.You told him that you had been in three significant intimate relationships. Your first boyfriend died in a motorcycle accident when you were 17 and you subsequently began using heroin. You met your second boyfriend once you were taking methadone and you remained together for some five years until you left him because he kept returning to heroin. He subsequently committed suicide on the anniversary of your break-up. There was information that he told you he was going to do it and that you apparently retain some feelings of guilt in relation to that suicide occurring.
32.You subsequently had an on again, off again relationship with a man who currently has control of your two year old son. You told the psychiatrist, and I accept, you have been subject to physical abuse in that relationship and that upon your ultimate release you do not intend to continue with it.
33.You told him that you worked a variety of jobs including secretarial work and food preparation and had worked for roughly about a tenth of your adult life. Insofar as substance abuse is concerned, you began using heroin intravenously in around 2000 in the circumstances that I have described and used it for two years before commencing methadone. You are still on methadone and are endeavouring to reduce and indeed ultimately get off that whilst in custody.
34.You reported some cannabis use but not heavy. You had previously been a heavy drinker and have experienced alcohol withdrawal. You told him that you had been using prescribed benzodiazepines for many years and that your use of these had greatly increased in the 12 months leading up to your imprisonment. You reported using other prescription drugs and it is obvious from the counts that are in front of me that they were not always lawfully obtained. There has been some erratic amphetamine use.
His Honour expressed these conclusions:
36.I accept that you were a victim of prolonged childhood sexual abuse and that you have experienced symptoms of post-traumatic stress disorder during the court case when the man accused by you of abusing you, and I accept that he did, was being prosecuted. Your main symptoms involve frequent flashbacks and nightmares relating to the abuse. You also describe hyper-vigilance and emotional numbing with predominantly low mood. You said that you had been unable to complete Grade 12 as a result of your symptoms despite having been previously a competent student. I note also from your mother and from yourself that you have a desire to endeavour to complete your education.
37.You told him that you had not found counselling to be helpful and that you were encouraged to externalise your emotions by smashing immobile objects. You believe that led to you feeling more rather than less angry and distressed. You told him that you are re-experiencing symptoms for approximately six months before gradually resolving. I think importantly in this situation you have stated that two or three weeks before this offence you coincidently, believe at least, saw your alleged abuser at Ringwood Court and this resulted in a brief resumption of your symptoms and that you had not felt your normal self. You denied any current symptoms of post-traumatic stress or mood disorder. That of course is whilst being interviewed in prison.
38.The circumstances are that it is impossible to totally determine what brought all this about. It is easy to feel a great deal of sympathy and to understand how this might have occurred where you, having had a father murdered at a very young age, having been abused over an extended period of time by an adult male who you then watched acquitted and then having seen him again, were in no frame of mind to be making rational decisions necessarily.
39.You were intoxicated. I do not accept what you said in your interview about only having had a couple of drinks. I think that is probably nonsense and I accept that you probably cannot remember the vast bulk of this. One can theorise as to why the attack was launched and as I have said, hence the great deal of sympathy.
40.I have taken into account the psychiatric condition described even though you now describe no symptoms of it. The prospects of your rehabilitation and re-offending are dependant, I think, on ultimately long term treatment. It is somewhat comforting that your criminal history is not a lot worse than it actually is. You only have the relatively minor assault matter that I have referred to. However the conduct on this occasion was of such a nature and of such great violence, there has to be a perception and indeed an action towards protection of the community.
His Honour accepted the submission for the appellant that there should be a longer than usual opportunity for parole.
It was in all the circumstances described, and having regard to his conclusion that the offence of recklessly causing serious injury was ‘at the higher end’ of that offence, that his Honour sentenced the appellant as he did.
In this Court, counsel for the appellant accepted the ‘particularly serious’ character of the offending, with its ‘very significant consequence for the victim’. Nonetheless, counsel submitted, the judge had made a number of findings favourable to the appellant. I interpolate to say that they were findings to which I have already referred in these reasons. Further, counsel submitted, to the limited extent that statistics can be of any value, they indicated that in this case the sentence passed was very much in excess of both the average and median sentences for the offence as imposed by higher courts between 2004 and 2009 – being in excess by a factor of about three.
Counsel for the respondent emphasised in his submissions the maximum penalty for the offence, the concededly ‘very serious’ circumstances of the offending, his Honour’s justifiable characterisation of the case as being ‘at the high end of the range’, and his acceptance that this was a ‘horrific, unprovoked attack.’ Counsel further submitted that the learned judge had taken proper account of all the circumstances which were accepted as going in mitigation. Again, he relied upon four particular instances in which this Court has recently dealt with the particular offence.
It was the judge’s duty to pass a sentence which in his opinion was required having regard to all the circumstances of the offence – in which I include the consequences for the victim – and of the offender. It is our duty to consider whether the appellant has satisfied us that a different sentence should have been passed; and, if so satisfied, to pass such sentence as we think ought to have been passed. In a case where the appellant’s complaint is that the sentence is manifestly excessive, the task of making out the complaint is burdensome. As has often been said, it is not a matter of this Court simply substituting a different verdict because it would have done things a little differently.
Against that background of principle, I consider that the sentence imposed, albeit that the judge had regard to all relevant circumstances, was manifestly excessive. Given that the incident was admittedly very serious, likewise its effects upon the victim, it was a large step to sentence a young woman (1) who had not been imprisoned before, (2) who had been subjected to prolonged sexual abuse as a child, (3) who had been an intimate bystander to murder and deaths for which she bore no blame, (4) who had been subjected to physical abuse by the father of her young child, (5) whose psychological well-being had been much affected by the matters to which I have just referred, and (6), who had descended into alcohol and drug abuse from which she was making an apparently genuine attempt to extricate herself, to a sentence about three times heavier than the average and median sentences for the particular offence.
I would allow the appeal and sentence the appellant to 3 years and 6 months' imprisonment, with a non-parole period of 1 year and 9 months' imprisonment. I would make an appropriate declaration in respect of pre sentence detention.
Finally, I wish to emphasise this: like the judge below, I have concluded that the appellant should have the opportunity of a proportionately lengthy period of parole. Her quite extraordinary personal circumstances point in that direction. If she is granted early parole, it will be of first importance that both the parole authorities and she work together to make a success of the opportunity offered. Acknowledging that her successful rehabilitation would not remedy the victim’s injuries and continuing distress, it would still be best that some good come out of her senseless and serious offending.
WEINBERG JA:
I agree.
ASHLEY JA:
The orders of the Court will be that:
1. The appeal is allowed;
2. The sentence below is quashed;
3. In lieu thereof the appellant is sentenced as follows:
Count 1 - 3 years and 6 months' imprisonment
Count 2 - convicted and discharged
Count 3 - 7 days' imprisonment;
Count 4 - 7 days' imprisonment.
The total effective sentence is thus 3 years and 6 months' imprisonment
4. The Court fixes a non-parole period of 1 year and 9 months' imprisonment.
It is declared that the period of 657 days not including this day has already been served pursuant to the sentence, and it is ordered that the fact that that declaration has been made, and its details, be entered in the records of the Court.
The Court further declares, pursuant to s 6AAA of Sentencing Act, that had the appellant not pleaded guilty it would have sentenced her on Count 1 to 4 years and 9 months' imprisonment, and that it would have imposed the other sentences referred to in paragraph 3 of our orders. The Court would have made no order for cumulation. The total effective sentence would have been 4 years and 9 months' imprisonment. The Court would have fixed a non-parole period of 2 years and 6 months' imprisonment.
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