Wyka v The Queen
[2020] VSCA 104
•1 May 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0062
| LISA WYKA | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2019 0121
| DEAN GARDINER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | NIALL JA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 March 2020 |
| DATE OF JUDGMENT: | 1 May 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 104 |
| JUDGMENT APPEALED FROM: | [2019] VCC 222 (Judge Lawson) |
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CRIMINAL LAW — Applications for leave to appeal against sentence — Pleas of guilty to home invasion, reckless conduct endangering life and lesser offences — Applicants entered through doorway to alcove of home of another with intent to assault and carrying loaded shotguns — Applicants fired total of seven shots (two from one gun, five from the other) into second door, endangering others — Total effective sentence of seven years’ imprisonment with non-parole period of five years imposed on each applicant — Whether judge sentenced on basis that each applicant fired seven shots instead of seven shots between them — Whether sentences manifestly excessive — Whether sentences manifestly disparate — Whether evidence of increased hardship of imprisonment resulting from COVID-19 pandemic founds independent ground of appeal — Both applications refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant (Ms Wyka) | Mr P J Smallwood | Galbally Rolfe |
| For the Applicant (Mr Gardiner) | Mr C K Wareham | Valos Black & Associates |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
NIALL JA:
I have had the advantage of reading, in draft, the reasons for judgment of Croucher AJA. I agree, generally for the reasons given by his Honour, that each application for leave to appeal against sentence must be refused.
I wish only to add the following. The evidence demonstrated that XY was violent, manipulative and erratic towards Lisa Wyka over an extended period of time and that he continued to try and torment her from his prison cell. No doubt that lamentable history clouded her judgment and represented a significant aspect of her thinking. However, her reliance on those facts as reducing her culpability in the offending, although not entirely misplaced, was substantially outweighed by a number of factors.
First, the law cannot condone revenge, particularly at the barrel of a gun.
Secondly, the law does not recognise a victim getting his just deserts.
Thirdly, although XY was the target of the conduct, the extreme violence involved in discharging seven rounds from two shotguns also endangered two other persons — one who was entitled to the protection of his home and the other was going about his work as a delivery driver. They were each confronted by disguised offenders armed with shotguns who discharged seven rounds.
Fourthly, Wyka was by the time of the offending in another relationship with Gardiner and had been able to move away from XY. No doubt XY was a continuing malign influence but her ability to avoid him and protect herself, including by involving the authorities, was greater given that separation. The offending could not be described as spontaneous or a product of the moment.
Fifthly, the objective gravity of the offending, which Croucher AJA fully describes, had to be reflected in the sentence imposed and left little room for reduced culpability to be overweighed in the sentencing synthesis.
This was not vigilante behaviour in the conventional understanding of that term but it shared a number of its basal characteristics. It was designed in part to punish or warn off XY and it bypassed the authorities. The reasons that such behaviour is deprecated applies equally to the present offending.[1]
[1]Director of Public Prosecutions v Whiteside and Dieber (2000) 1 VR 331; [2000] VSCA 142.
The sentences imposed were not manifestly excessive. Wyka’s personal history and harm suffered at the hands of XY did not require that she be given a lesser sentence than her co-offender.
The applications for leave to appeal should be refused.
CROUCHER AJA:
Overview
In the early hours of Saturday 24 June 2018, Lisa Wyka and Dean Gardiner charged through the front doorway of the home of Muzzafer Sozer in St Albans while armed with loaded shotguns. The moment Mr Sozer and his guest ‘XY’ saw the intruders coming, they fled in terror from the front door and through a second doorway, slamming the second door shut behind them. A hapless pizza delivery man, who just happened to be at the front door at the time, also fled through the front doorway and towards the second door, but was locked out and trapped in an alcove just in front of that second door.
That, however, did not stop Mr Gardiner or Ms Wyka. Between them, they fired a total of seven shots into that same door, thereby endangering the lives of those nearby. In the midst of that shooting frenzy, the pizza man, happily, was able to make good his escape.
After firing each gun until empty, the intruders hurriedly attempted to gather the spent cartridges. While they then made a hasty getaway, they were ultimately arrested two weeks later and charged with various offences.
On 28 February 2019, following pleas of guilty in the County Court to three offences including home invasion and reckless conduct endangering life, Ms Wyka and Mr Gardiner were each sentenced by the same judge to a total effective sentence of seven years’ imprisonment with a non-parole period of five years.
Both now seek leave to appeal against sentence.[2] Each applicant argues that his or her sentence should have been shorter than the other’s — in other words, they make competing complaints of lack of disparity of sentence. Ms Wyka alone takes three further grounds. First, she claims that the judge erred in sentencing on the basis that each offender fired seven shots. Second, she asserts that her sentence is manifestly excessive. Finally, after the oral hearing, Ms Wyka also sought to raise a further ground complaining that, as a consequence of the restrictions imposed following the worsening of the recent COVID-19 pandemic, her imprisonment has become more burdensome.
[2]Pursuant to ss 278-282 of the Criminal Procedure Act 2009 (Vic) (‘the CPA’).
In my opinion, there is no merit in either applicant’s complaint of lack of disparity with the other’s sentence. When all the similarities and differences are weighed in the balance, it was open to the judge to sentence each offender in the same way as the other.
While Ms Wyka’s non-parole period is, as a proportion of the total effective sentence, arguably heavy for a first offender who pleaded guilty at a very early stage, had reasonable prospects of rehabilitation and had suffered frazzled judgment as a result of her toxic relationship with XY, I am not satisfied that that or any other aspect of the sentence is manifestly excessive.
As for the specific error alleged, it is perhaps arguable that there is ambiguity in part of the judge’s reasons on this point. But, when the reasons are read as a whole, and regard is had to what is plain to see on the CCTV recording of the incident, I think it becomes clear that her Honour did not sentence on the basis that each offender fired seven shots. Instead, she sentenced on the basis that seven shots in total were fired between them, which is the fact of the matter.
Finally, I am not persuaded that the evidence concerning the increased burden of imprisonment resulting from the COVID-10 pandemic is admissible to establish a stand-alone ground of appeal. This, as I see it, is a matter for the Executive, not this Court. It might be different if there were error on some other basis and the Court were called upon to resentence. In those circumstances, evidence of the kind relied on in this application might be relevant to resentencing. But, as I say, that is not this case.
Accordingly, I would refuse leave to appeal in each case.
My more detailed reasons for those conclusions and proposed orders follow.
Summary of background, offending and procedural steps
I turn first to a summary of the background to, and circumstances of, the offending, as well as the steps taken to bring the matter to the County Court.
Relationships
At the time of the offending, Mr Gardiner was aged 32, and Ms Wyka was aged 34. They had been in an intimate relationship for some months. The couple had known each other for about nine years, having met through Mr Gardiner’s former wife.
Ms Wyka had previously been in a long-term relationship with XY, which had ended about nine months prior to the offending. While Ms Wyka never complained to police about him, it is clear enough that XY was violent and extremely abusive to her, and also very manipulative. Indeed, as will be seen, his manipulative behaviour continued beyond their relationship, including up to the evening of the offending, and has persisted since then, even from prison.
Ms Wyka also knew Mr Sozer as a friend of her younger brother. Hayden Cook, another person present at Mr Sozer’s home at the time of the offending, was also known to Ms Wyka.
Background events
The lead-up to the offending was set out in the prosecution opening. I hasten to add that none of the following background acts formed the basis of any of the charges against Ms Wyka, and she was not, and will not be, punished for them.
XY’s father had been contacted by Ms Wyka, via telephone, on 20 June 2018. During that conversation, Ms Wyka, who, obviously, was nearing the end of her tether, said that she was going to shoot XY in the back of the head, that she ‘would mutilate his body’ and that she hoped that ‘the police were listening to this’. Thereafter, there were text message exchanges between Ms Wyka and XY’s father concerning the return of some property.
Ms Wyka attended at XY’s home sometime between 20 and
23 June, asking for him, and was told that he was not home.
On 21 June 2018, Ms Wyka sent a threatening and abusive text message to XY, setting out her position.
On the following day, 22 June 2018, a total of 255 phone calls and messages were exchanged between Ms Wyka and XY. The contents of those communications are not fully known.
On 23 June 2018, XY and his friend Mr Cook were both visiting Mr Sozer at his home at 68 Harmon Avenue, St Albans, which is in a residential area. Mr Sozer lives at that address with his mother. Fortunately, his mother was not at home at the time of the offending (she was in hospital).
The same day, at 9:13 p.m., Ms Wyka sent an SMS text message to XY. It was of a very threatening and abusive nature. She followed it up with further messages addressed to him that were consistently of a threatening nature.
Between 10:12 p.m. and 12:38 a.m., a total of eight phone calls were attempted and messages were exchanged between Ms Wyka and Mr Sozer, the contents of which are not fully known. At that time, Ms Wyka was with Mr Gardiner at her aunt’s address in Spring Hill.
Between midnight and 1:00 a.m., the couple left that address in Mr Gardiner’s white 2008 Nissan Patrol utility and headed towards the home of Mr Sozer, understanding that XY would be there.
Thereafter, a series of text messages passed between Mr Cook and
Ms Wyka about XY cutting his wrists with a razor. Mr Cook pleaded with Ms Wyka to sort out the situation.
The offending
A short while later, Mr Gardiner and Ms Wyka drove past the home of Mr Sozer. Mr Gardiner parked his ute nearby, just down the street and around the corner. Mr Sozer was at home with Mr Cook and XY.
A little while later, at about 1:42 a.m., Manpreet Singh drove to Mr Sozer’s home to deliver a pizza. Mr Sozer went to meet Mr Singh at the front door, which is in a lobby-styled entrance area. XY joined him a moment later. Mr Cook remained in the lounge room.
In the meantime, Ms Wyka and Mr Gardiner had armed themselves respectively with an under-and-over shotgun and a single-barrel five-shot lever-action shotgun that they had brought with them in the ute. Each weapon had been fully loaded and placed in the vehicle by Mr Gardiner.
Footage from multiple CCTV cameras at Mr Sozer’s home showed Ms Wyka and Mr Gardiner sneaking along the street wearing disguises, and then turning into Mr Sozer’s driveway with their weapons raised in the firing position. As the two assailants approached the front door, XY and Mr Sozer turned quickly in fright and ran through a second main doorway to the home, slamming the door shut behind them. Mr Singh, also in fright, ran through the front doorway and into the alcove in front of the second door. But he was trapped because that door was closed before he could get there.
An instant later, Ms Wyka and Mr Gardiner followed Mr Singh into the alcove. The two intruders tried to force the second door open, but were unsuccessful. Mr Gardiner began firing at the closed second door. Some of his shots were fired while Mr Singh was standing near him and Ms Wyka. Mr Singh thought his life was over. A moment later, however, he stepped back out past Ms Wyka, who at this point was positioned a tad away from the second door, just out of the alcove. Mr Singh then turned and dashed through the front doorway and off down the street at a rate of knots. Neither offender made any attempt to stop Mr Singh. Immediately thereafter, Ms Wyka fired her two shots at the second door.
The two intruders then hurriedly gathered the discharged shotgun shells from the floor (but they missed two), and fled out through the front doorway and back down the street whence they came. As he ran past Mr Sozer’s car, which was parked in the driveway, Mr Gardiner smashed its front window with the butt of his shotgun. The two drove back to an address in Spring Hills and then on to St Kilda, where Mr Gardiner was working.
For his part, after running through the second doorway, XY jumped through a window into the back yard of Mr Sozer’s house, and over fences, and ran through Green Gully Reserve. He suffered minor injuries as a result. Mr Sozer ran to his bathroom, crouched into a ball and waited until the shooting stopped. Mr Cook, having heard the shots and commotion, lay on the floor before moving to the bathroom with Mr Sozer, where they both remained for about half an hour until police arrived.
At about 3:28 a.m., Ms Wyka sent a text message to Mr Cook. In colourful language, she requested that she be left alone and said that she did not love XY anymore.
Arrests, interviews and charges
Mr Gardiner and Ms Wyka were arrested about two-and-a-half weeks later, on 12 July 2018.
Police found the five-shot shotgun at an address associated with Mr Gardiner. They also found a stolen motor vehicle registration plate in Mr Gardiner’s possession, which formed the basis of a charge of handling stolen goods.
Police found the over-and-under shotgun at Ms Wyka’s home. Also found in her possession were sixteen cannabis cuttings and eleven cannabis plants. This material formed the basis of a charge of cultivating cannabis (for personal use).
When interviewed by police, Mr Gardiner made full admissions in relation to the home invasion. He said that Ms Wyka had informed him earlier in the night about a previous incident that she had experienced with XY. He attended to some cuts on her hands, which she told him were from the same earlier incident. This, together with the text messages that were being exchanged between XY and
Ms Wyka, had made Mr Gardiner very angry about XY’s treatment of her. That is why he participated in the offending.
In her police interview, Ms Wyka made some ‘no comment’ answers. She denied involvement in the home invasion and being with Mr Gardiner in the early hours of 23 June 2018 or the night before. She said she was at an aunt’s farm in Trentham and that she never fired a firearm. She made full admissions to cultivating the cannabis plants found and told police that that was done for personal use only.
Both applicants were charged with various offences and remanded in custody, where they have remained ever since.
Committal and pleas of guilty
Mr Gardiner and Ms Wyka each indicated pleas of guilty at a committal case conference in the Magistrates’ Court and accepted a straight hand-up brief committal to the County Court. Ms Wyka pleaded guilty to home invasion,[3] reckless conduct endangering life[4] and cultivation of cannabis.[5] Mr Gardiner pleaded guilty to home invasion, reckless conduct endangering life and handling stolen goods.[6] They honoured those pleas when arraigned on indictment in the County Court.
[3]Crimes Act 1958 (Vic) (‘Crimes Act’), s 77A (maximum penalty: 25 years’ imprisonment).
[4]Crimes Act 1958 (Vic), s 22 (maximum penalty: ten years’ imprisonment).
[5]Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘DPCS Act’), s 73 (maximum penalty: one year’s imprisonment).
[6]Crimes Act 1958 (Vic), s 88 (maximum penalty: 15 years’ imprisonment).
The sentences imposed
A joint plea hearing was conducted on 18 February 2019. Sentences were imposed on 28 February 2019, which are detailed in the following tables.[7]
[7]DPP v Gardiner [2019] VCC 222 at [109]-[111] & [121].
| Ms Wyka’s sentences | ||||||
| Charge No | Offence | Legislation | Max. penalty (prison) | Sentence (prison) | Cumulation | |
| 1 | Home invasion | Crimes Act, s 77A | 25 years | 5 years | Base | |
| 2 | Reckless conduct endangering life | Crimes Act, s 22 | 10 years | 3 years | 2 years | |
| 3 | Cultivate narcotic plant | DPCS Act, s 72B | 1 year | Convicted & discharged | N.A. | |
| Total effective sentence (‘TES’): | 7 years’ imprisonment | |||||
| Non-parole period (‘NPP’): | 5 years | |||||
| Pre-sentence detention declaration | 231 days | |||||
| Section 6AAA statement — TES: 9 years’ imprisonment | ||||||
| Section 6AAA statement — NPP: 7 years | ||||||
| Mr Gardiner’s sentences | |||||||
| Charge No | Offence | Legislation | Max. penalty (prison) | Sentence (prison) | Cumulation | ||
| 1 | Home invasion | Crimes Act, s 77A | 25 years | 5 years | Base | ||
| 2 | Reckless conduct endangering life | Crimes Act, s 22 | 10 years | 3 years | 2 years | ||
| 4 | Handle stolen goods | Crimes Act, s 88 | 15 years | 14 days | Concurrent | ||
| Total effective sentence (‘TES’): | 7 years’ imprisonment | ||||||
| Non-parole period (‘NPP’): | 5 years | ||||||
| Pre-sentence detention declaration | 231 days | ||||||
| Section 6AAA statement — TES: 9 years’ imprisonment | |||||||
| Section 6AAA statement — NPP: 7 years | |||||||
Instead of summarising the judge’s reasons for sentence separately, it will be convenient to address those reasons, where necessary, under each ground of appeal.
Ms Wyka’s Ground 3: Error in factual basis for sentence
Introduction
I turn first Ms Wyka’s Ground 3, which reads as follows:
Ground 3: The sentencing discretion miscarried as a consequence of the sentencing judge having been incorrectly told that [Ms Wyka] and her co-offender [Mr Gardiner] discharged seven shots each during the course of the offending, when in fact seven shots in total were fired.
This ground was added by leave granted at the oral hearing.
Ms Wyka’s submissions
Mr Smallwood, who appeared for Ms Wyka in this Court (but not below), began his submission under this ground by noting that the prosecutor told the judge the following at the plea hearing:[8]
[Mr] Gardiner had loaded both firearms with seven rounds. [Ms] Wyka has taken aim at the front door, where the three men were standing as she approached. [Mr] Gardiner has followed her, also raising his firearm in the direction of the three men. [Mr] Ibrahim pulled [Mr] Sozer inside and slammed the door shit. [Mr] Singh realised he had nowhere to go, and stood directly in front of the door.
The offenders struggled to force open the door and discharged seven rounds each through the door. Some of these shots occurred with [Mr] Singh standing directly between the two offenders. …
[8]Plea hearing (18 February 2019), T 7 (emphasis added). (See also Summary of Prosecution Opening, p 4.)
Mr Smallwood submitted that defence counsel on the plea was wrong to fail to put both of the foregoing highlighted assertions in issue, for they were contrary to the evidence. Instead, the evidence was that Mr Gardiner loaded both shotguns — which amounted to seven cartridges in total across the two guns — and that he fired the five shots from the five-shot shotgun held by him and that Ms Wyka fired two shots from the two-shot under-and-over shotgun.
Mr Smallwood then pointed to the fact that, in her reasons for sentence, the judge used language similar to that which was employed by the prosecutor:[9]
[29] Both Mr Cook and [XY] remained in the lounge room. [XY] then joined Mr Sozer at the front door, as he did so, Ms Wyka you and Mr Gardiner ran towards the front door and onto the porch of the house. Mr Gardiner, you were armed with an Adler A110 12 gauge, single barrel lever action five-shot shotgun and Ms Wyka, you were armed with a Akkar Churchill 12 gauge under and over shotgun. Earlier Mr Gardiner had loaded both firearms with seven rounds.
…
[47] The offending insofar as the home invasion and conduct endangering life charges are concerned, are both objectively very serious and serious examples of these two very serious offences. You entered a private residential property together, at night, with loaded weapons that you discharged firing seven rounds each through the front door, in the presence of an innocent bystander, Mr Singh.
[9]DPP v Gardiner [2019] VCC 222 at [29] & [47] (emphasis added).
In Mr Smallwood’s submission, these passages show that the sentence was imposed on an incorrect factual basis — namely, that each applicant fired seven shots (i.e. fourteen shots in total between them). Moreover, this error was materially relevant to the objective gravity of Ms Wyka’s offending (in respect of the offence of reckless conduct endangering life), her moral culpability and her role in the offending relative to the role of Mr Gardiner.
The Director’s submissions
Mr McWilliams, who appeared for the Director in this Court (but not below), agreed that the truth of the matter is that seven shots in total were fired, not seven shots each. But he submitted that, when regard is had to other passages in the judge’s reasons, and the CCTV footage, it is plain that her Honour did not make — and could not have made — the error attributed to her. He referred in particular to the following passages:[10]
[32] [XY] pulled Mr Sozer inside and slammed the door shut. Mr Singh realised he had nowhere to go and just stood directly at the front door. You both then struggled to force the door open and the seven rounds were discharged through the door. Some of those shots occurred with Mr Singh standing directly between you both. …
…
[36] Immediately after discharging the seven rounds, you were both seen collecting the bullet cases before running back towards Mr Gardiner’s vehicle. …
[10]DPP v Gardiner [2019] VCC 222 at [32] & [36] (emphasis added).
Each shotgun holds five and two shells respectively at a time. Further, it is apparent from the CCTV footage that there was no reloading by either offender. While Ms Wyka can be seen firing her two shots, Mr Gardiner was obscured, and it could only be inferred — for example, from the points of damage on the door and some of Mr Gardiner’s partly obscured movements — that he fired the other five. But it is plain that no more than seven in total were fired. Further, there is no suggestion that counsel at either end of the Bar table on the plea thought otherwise.
Accordingly, in Mr McWilliams’s submission, the judge’s use of the word ‘each’ in paragraph [47] of her reasons must be taken as meaning that each shot (of a total of seven) was fired through the door, and not that each offender fired seven shots. Similarly, the highlighted passage in paragraph [29] must be taken as meaning that seven cartridges in total were loaded into the two shotguns.
Discussion
In my view, Mr McWilliams’s submissions are to be preferred. While the language employed in paragraphs [29] and [47] of the judge’s reasons might be seen as ambiguous in isolation, it is clear, when the rest of the reasons are read and regard is had to the capacity of the two shotguns, as well as the absence on the continuous CCTV footage of any suggestion or evidence of reloading, that her Honour sentenced on the correct basis — namely, that only seven shots in total were fired.
In order to make out the complaint that the judge sentenced on the basis that fourteen shots were fired, not only would the other passages in the judge’s reasons have to be ignored, but it would have to be inferred that, while the offenders were in the alcove and just out of the CCTV camera’s view, between them, they managed to fire five and two shots respectively and then reload so as to be able to fire another volley of five and two shots respectively. But that inference is simply not open on the evidence, even as merely a reasonable possibility.
It also follows that, whatever defence counsel might have understood about this aspect of the facts upon the plea (about which no evidence was led), the judge understood those facts correctly and sentenced on that basis.
Accordingly, I would reject this ground.
Ms Wyka’s Ground 1: Manifest excess
Introduction
I turn now to Ms Wyka’s Ground 1, which reads as follows:
Ground 1: The individual sentences imposed on Charges 1 and 2, the order for cumulation …, the resulting total effective sentence and the non-parole period fixed are each manifestly excessive.
Ms Wyka’s submissions
In Mr Smallwood’s submission, any assessment of Ms Wyka’s sentence had to pay careful regard to her tragic early life, as well as her more recent toxic relationship with XY, and the combined consequences of those experiences for her mental health and moral culpability.
Mr Smallwood referred to the report of psychologist Dr Matthew Barth, who said that Ms Wyka:[11]
presents as a woman with significant emotional, interpersonal and behavioural issues. She has experienced noteworthy periods of emotional distress since her unstable childhood which has manifested into behavioural problems as an adult, predominantly in the form of impulsive behaviour, aggression and heavy substance abuse. [She] has also suffered from other traumatic experiences in recent years which have further entrenched her emotional and behavioural difficulties.
[11]Report of Dr Barth (dated 4 February 2019), at p 9.
An only child, Ms Wyka’s parents separated when she was very young. Her mother abused heavy drugs. Both of her parents spent periods of time in gaol. When Ms Wyka was aged only 15, her mother died as a result of a heroin overdose. Ms Wyka found her mother’s body. These events impacted on her emotional wellbeing in a significant way. She subsequently ran away from home and began abusing drugs herself, as well as binge drinking. At 17, she was abusing drugs every day. Her life became very transient. She left school at the beginning of Year 11.
In about 2013, Ms Wyka began dating XY. That relationship was marked by physical violence and verbal abuse. There were many occasions when she exhibited obvious injuries, including to her neck and face. (Evidence from a friend called on the plea confirmed this.) XY forced her to have sex with him. He would punch her in the face. Both used methamphetamine (or ‘ice’). XY was constantly paranoid. Ms Wyka tried to leave him several times, but he always tracked her down and talked her into returning to the relationship. He threatened to harm her family. He threatened to harm her friends. On her report to Dr Mathew Barth, XY also raped her brother’s girlfriend.
As is sadly not uncommon, Ms Wyka did not report to police the severe and sustained family and sexual violence to which she was subjected. She was frightened about what XY might do.
XY has served multiple terms of imprisonment. His long criminal record reveals prior convictions for, amongst other offending, affray, intentionally causing injury, possessing a controlled weapon without excuse, armed robbery, aggravated burglary, unlawful assault, using threatening words in a public place and recklessly causing injury. He also has a history of drug offending.
In September 2017, Ms Wyka left the relationship. She lived at multiple different addresses in an effort to protect her physical safety. XY tried to find her. He threatened to post naked photographs of her on Facebook if she did not return to the relationship. On one occasion, in December 2017, when he did manage to locate her, she barricaded herself inside a friend’s bedroom, where she stayed for four days. She tried to hang herself during that incident. Ms Wyka desperately wanted XY to leave her alone, but he appeared to be obsessed with her. She was absolutely terrified of him. Friends had not been able to protect her.
In about April 2018, Ms Wyka commenced a relationship with Mr Gardiner.
On 21 June 2018, Ms Wyka sent a text message to XY. She said, amongst other things, that she was not going to let anyone hurt her again. She wanted him to leave her alone. She had, in her words, ‘been pushed to the edge’.[12] They subsequently exchanged a number of messages.
[12]Report of Dr Barth (dated 4 February 2019), p 6.
In the very early hours on 24 June 2018, Mr Cook sent the following messages to Ms Wyka:
[1] Hey lisa [XYs]. Cut himself with the butcherz knife. He is going to cut his wrists with razor his already bleeding whrre are you please sort this don’t. U love him.
[2] Lisa please he cut his wrist.
[3] Erol cut his wrist and walked off can we come over now
[4] Where abouts are you?
XY had not cut his wrists. He was with Mr Cook at Mr Sozer’s house. They ordered a pizza. Hence the arrival of Mr Singh.
After her arrest, when assessed by Dr Barth, Ms Wyka presented with notable emotional distress. She told him that she was ‘so sorry’ for the offending. She described it as ‘the biggest mistake of [her] life’. She said she ‘didn’t want to hurt anyone’, but that she ‘just wanted to be left alone’.[13] Dr Barth assessed Ms Wyka’s presenting symptoms as sufficiently severe to warrant diagnoses of an adjustment disorder with mixed disturbance of emotions, conduct and borderline personality disorder with antisocial features, cannabis use disorder and stimulant use disorder (in early remission in a controlled environment).[14] He opined that, given her history of emotional issues, she was at risk of developing more intense symptoms with respect to her adjustment disorder during her period in custody.[15] He also observed that her:[16]
response to her ongoing legal matters has been intense. When also considering her long-standing emotional lability, poor self-esteem, dysfunctional personality adjustment and her limited coping skills, she is likely to continue to have difficulty coping in the prison environment and is at risk of developing a more serious mood disturbance while in custody. [She] requires ongoing psychological treatment and close personal support if her emotional distress is to improve in the medium term.
[13]Report of Dr Barth (dated 4 February 2019), p 6.
[14]Report of Dr Barth (dated 4 February 2019), p 6.
[15]Report of Dr Barth (dated 4 February 2019), pp 7-9.
[16]Report of Dr Barth (dated 4 February 2019), p 10.
Extraordinarily, in Mr Smallwood’s submission, XY — who was himself arrested and remanded in custody soon after Ms Wyka’s offending — was able to continue to harass her while they were both in custody. He sent over 100 letters to her and her father. He said that he had told prison authorities that he was ‘still with’ her. Creepily, he said his scars ‘turned out pretty special’. He made an unsubtle threat towards Mr Gardiner, suggesting that he knew where he was being held: ‘Good luck to him is all I can say. I got a few boyz here classoed there[17] too, like to see how this turns out for him the dog’. He said he had been voted in as president of a group of prisoners who undertook weights training together. He said he had ‘bashed the fuck out of [two] … members’ of another gang. He told Ms Wyka that he wanted to speak with her over the phone, and that she should tell authorities that he was her boyfriend. He told her to put his mother on her visits list.
[17]A reference to where Mr Gardiner was being held.
Bizarrely, XY said that he was much more attracted to Ms Wyka since the offending. He asked her to marry him. He asked for her forgiveness. He told her that he had dreams about her. He indicated that he wanted to have conjugal visits with her. He said that he wanted to have an intervention order lifted. He told her to say that she wanted to speak with him too and to tell her lawyer to have that order lifted.
Mr Smallwood pointed out that, in her reasons for sentence, the judge said this to Ms Wyka:[18]
[54] Tragically, you failed to alert police to [XY’s] behaviour towards you over the years. Therefore, no steps were put in place to stop his abusive behaviour and to protect you from his further abuse. Whilst providing a context to your behaviour, it in no way excuses you for your behaviour on this night. There is no place in the law for vigilante behaviour of this nature and I consider that your moral culpability is also high.
[18]DPP v Gardiner [2019] VCC 222 at [54].
In Mr Smallwood’s submission, while Ms Wyka’s conduct was very grave, it was conduct that was completely out of character. It occurred in the broader context of her having been the victim of repeated physical violence and controlling and manipulative behaviour by XY. She was the victim of sustained mental and emotional violence, so much so that she presented with an adjustment disorder. XY refused to let her leave him. He ignored her human dignity. His abuse resulted in her, in company with Mr Gardiner, reacting in an extreme and serious way.
Mr Smallwood conceded that Ms Wyka fell to be punished for her offending and that its gravity had to be reflected in the sentence. The law could not — and cannot — countenance violent conduct, especially violent conduct that involves the use of guns and creates a risk to human life. General deterrence had to be given meaningful weight. In his submission, however, the explanation for Ms Wyka’s offending was critical to the assessment of her culpability and blameworthiness. It was clearly relevant to the determination of the appropriate sentence.[19]
[19]Counsel referred to R v AWF (2000) 2 VR 1 (where the offender’s history of sexual abuse was considered in the context of the assessment of his moral culpability).
In Mr Smallwood’s submission, that Ms Wyka, a first-time offender who had pleaded guilty at an early stage, was sentenced to a total effective sentence of seven years’ imprisonment reveals that that context — that background of abuse — was not sufficiently accounted for in the sentencing process. Further, in his submission, the fifth and sixth of the Verdins[20] propositions applied in her case,[21] and, having regard to the steps that she had taken towards rehabilitation since her offending, the likelihood of her reoffending was low.[22]
[20]R v Verdins (2007) 16 VR 269 at 276[32] (per Maxwell P, Buchanan and Vincent JJA).
[21]DPP v Gardiner [2019] VCC 222 at [98].
[22]DPP v Gardiner [2019] VCC 222 at [99].
Mr Smallwood submitted that there must have been some misapplication of principle when the sentencing function was performed. Having regard to Ms Wyka’s subjective circumstances, the sentences imposed on the offences in Charges 1 and 2, the order for cumulation, the resulting total effective sentence and the non-parole period fixed are just far too long.
The Director’s submissions
In the main, Mr McWilliams adopted the written submissions that had been drafted on behalf of the Director by another and filed ahead of the hearing.
It was submitted that the sentence imposed was not wholly outside the range of sentences available to the judge, such as to enable this Court to determine that something went plainly wrong in the exercise of the sentencing discretion.
The offences were both correctly characterised as serious examples of their kind. The offending involved a degree of planning, and the use of loaded firearms, and it took place in the middle of the night. The home invasion involved entry with intent to assault, and the possession of weapons. The seriousness of the reckless conduct offence was demonstrated by the endangerment of four victims, and in particular, the very close proximity of Mr Singh (a victim with no connection to the matter whatsoever), and the persistence involved in the conduct, as shown by the firing of multiple shots. The judge’s remark, to the effect that that offence involved ‘recklessness of the highest order’,[23] was apt.
[23]DPP v Gardiner [2019] VCC 222 at [33].
A degree of cumulation was required, having regard to the duration and nature of the reckless conduct offence. There was also an element of gratuity in that offending, since the offenders’ asserted motivation — to ‘scare’ XY and to ‘teach him a lesson’[24] — had already been achieved by virtue of the fact that, when at the front door, XY (and Mr Sozer) saw the offenders’ firearms and retreated in fright into the house prior to the shooting.[25]
[24]Report of Dr Barth (dated 4 February 2019), at [31].
[25]DPP v Gardiner [2019] VCC 222 at [31]-[32].
The sentencing purposes of just punishment, general deterrence and denunciation were paramount, notwithstanding that Ms Wyka could call upon various mitigating factors in her aid.
In particular, the judge accepted Dr Barth’s conclusions to the effect that Ms Wyka’s time in custody would be more difficult as a result of her mental health conditions, and that those conditions may be exacerbated by incarceration. Her Honour expressly said that the fifth and sixth of the principles laid down in Verdins[26] had been enlivened and that she took those factors into account.[27]
[26]R v Verdins (2007) 16 VR 269 at 276[32] (per Maxwell P, Buchanan and Vincent JJA).
[27]DPP v Gardiner [2019] VCC 222 at [98].
The judge also accepted that Ms Wyka had been subject to abuse and controlling behaviour at the hands of XY, and that this provided context for her offending behaviour,[28] as well as Mr Gardiner’s.[29]
[28]DPP v Gardiner [2019] VCC 222 at [53]-[54].
[29]DPP v Gardiner [2019] VCC 222 at [41].
In the Director’s written response, it was submitted that there was insufficient evidence to establish the requisite link between a condition or state of mind and her offending which would render Ms Wyka’s conduct less serious and reduce her moral culpability. I did not, however, understand Mr McWilliams’s submissions to go quite so far. Instead, I understood him to submit that, notwithstanding such moderation of her moral culpability as there might be, there was still no error in the judge’s conclusions that Ms Wyka’s moral culpability was ‘high’ and that her conduct was ‘vigilante’ in nature.
In all the circumstances, submitted Mr McWilliams, it could not be concluded that either individual sentence, the order for cumulation, the total effective sentence or the non-parole period was manifestly excessive.
Discussion
I should mention at the outset that no one could fail to have deep sympathy for Ms Wyka in view of her tragic early life and the unrelenting abuse she suffered at the hands of XY during and beyond their relationship. All of that information was helpfully put before the judge by defence counsel on the plea and reiterated painstakingly by Mr Smallwood in this Court. In my view, however, despite those impassioned submissions, no aspect of this sentence is manifestly excessive. Let me explain why.
The offending was just so grave. Ms Wyka turned up to a private home in the dead of night with Mr Gardiner, each disguised and each holding a loaded shotgun, intent upon at least frightening XY with violence of some description. Whatever his past violence towards her, whatever incessant and manipulative behaviour XY may have engaged in that evening right up until the period before they entered the front yard of the home, and whatever opprobrium might have been (and still might be) due to him, Ms Wyka had no right to take the law into her own hands by confronting him in that foreboding and violent manner.
Less still, once she and Mr Gardiner realised (which they must have) that others were there at the front door — namely, Mr Sozer and the unfortunate and totally blameless Mr Singh — was there any justification for carrying on with this idiotic, yet profoundly dangerous, plan. Indeed, both should have desisted at that very moment. However, not only did they continue with their headless plot, but they pursued those who fled through the open door with assault in mind, thereby committing the home invasion as they crossed the threshold.
Worse still, Mr Gardiner, with whom Ms Wyka was complicit, then fired — not once, not twice, not thrice, but five times — at the second door, emptying his shotgun of all five of its shots. For all they knew, any one or more of Mr Sozer, Mr Cook or XY could have been just behind that door. And, of course, Mr Singh was right there, on the offenders’ side of the door, fearing for his life. But, then, as if that were not enough, having effectively let Mr Singh past while Mr Gardiner was shooting away — which small act, I suppose, showed a shred of decency — Ms Wyka, perhaps even more gratuitously, fired her two shots at the door, in quick succession.
This, of course, was all caught on the CCTV cameras. It is chilling and very confronting to watch. Indeed, I dare say it is hard to overstate the gravity of this behaviour, whatever its motivation.
But, as I say, this is where the motivation, such as it might be, must fall away as a mitigating factor, at least to a substantial extent. While Mr Cook may have been passing on text messages from the odious XY, and while Mr Sozer was allowing him to be at his premises, there could be no justification for scaring the life out of them, and less still for endangering their lives (or XY’s life) by letting off seven shots through the door. None. And then there is poor Mr Singh, who was just trying to earn a living delivering pizzas. It strikes me as even more heinous to follow him through the doorway with loaded guns pointed in his direction and to let off shots while he remained caught up in the midst of some harebrained scheme to teach a lesson to a wife-beater who would just not go away. For every terrifying moment up until he was allowed to pass, Mr Singh was not to know that he was never to be an intended target of the offenders’ violence.
To be sure, I accept that there were important factors to weigh in mitigation. They included Ms Wyka’s reduced moral culpability (such as it was), her early pleas of guilty, her remorse, her previous good character and lack of prior convictions, and her prospects of rehabilitation. Also relevant was the added burden of prison for her given her mental state and the risk that prison would become even more difficult as her mental health deteriorated. I should add that I would assume, in Ms Wyka’s favour, that XY’s disturbing behaviour while she has been in prison would make — and will continue to make — her time all the more troubling.
In my view, however, in light of such grave offending, and even allowing the fullest possible weight to the matters in mitigation, the purposes of general deterrence, denunciation and just punishment still had to be given considerable prominence in the sentencing mix. Specific deterrence and protection of the community were of less importance than otherwise, because of Ms Wyka’s pleas of guilty, remorse, prior good character and reasonable prospects of rehabilitation, as well as the judge’s finding that the likelihood of her reoffending was low.[30] I think those same factors also dictated that very substantial weight must be given to the sentencing purpose of rehabilitation.
[30]DPP v Gardiner [2019] VCC 222 at [99].
When all of those competing and complementary considerations are considered, including the principle of parsimony,[31] I am satisfied that it was well open to the judge to impose the individual sentences, the level of cumulation and the resulting total effective sentence she imposed. Indeed, some might say that, despite the mitigating factors, this sentence was lenient for such outrageous and risk-laden offending.
[31]See s 5(3) of the Sentencing Act 1991 (Vic).
As I indicated at the commencement of these reasons, my only concern about this sentence is the non-parole period. In particular, I think that a non-parole period of five years, not in absolute terms, but as a proportion of the total effective sentence of seven years’ imprisonment, is arguably heavy given the mitigating factors mentioned earlier. While there is no usual or set proportion, I think it is arguable that a non-parole period of over 71 percent of the total effective sentence, as it is here, in Ms Wyka’s particular circumstances (and, for that matter, Mr Gardiner’s), invites scrutiny. This is especially so when no particular reasons were given by the judge for what seems to be a relatively high non-parole period.[32]
[32]See, for example, R v VZ (1998) 7 VR 693 at 697[13] (per Callaway JA).
However, as Callaway JA said in R v VZ:[33]
[I]t is apparent from the authorities to which I have just referred that a non-parole period cannot be fixed unthinkingly by some such method as taking two years, or one third or one quarter, off the head sentence. All the relevant factors have to be taken into account. They are many and varied. I mention only three of them, because they bear on this case. The first is that a non-parole period has a penal element: … . The second is that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period: … . The third, which requires no citation of authority, is that a prisoner's prospects of rehabilitation are almost always a significant consideration. …
[33]R v VZ (1998) 7 VR 693 at 697-698[15] (citations omitted).
Thus, on further reflection, I think it would have been open for the judge to conclude that the penal element of the non-parole period and the sentencing purposes of general deterrence and denunciation would be undermined were the non-parole period to be less than the five years upon which she settled.
That I might have weighed matters differently and imposed a shorter non-parole period is not to the point. The question is whether that particular period was open to the judge in the sound exercise of her discretionary judgment — or, put another way, whether it is manifestly excessive.
In the end, despite the force of Mr Smallwood’s submissions, I am not satisfied that the non-parole period is manifestly excessive.
Accordingly, I would reject this proposed ground of appeal as well.
Ms Wyka’s Ground 2 and Mr Gardiner’s Ground 1: Parity
Introduction
I turn now to each applicant’s complaint that his or her sentence ought to have been less than the other’s in view of the principles concerning parity among co-offenders.
Ms Wyka’s Ground 2 reads as follows:
Ground 2: That [Ms Wyka] was not sentenced to a lower sentence (with respect to Charges 1 and 2) than that imposed upon [Mr] Gardiner infringed the principle of parity.
Mr Gardiner’s sole ground, Ground 1, reads in this way:
Ground 1: In all the circumstances … the total effective sentence and non-parole period imposed on [Dean Gardiner] … and … the total effective sentence and non-parole period imposed on his co-offender Lisa Wyka gave rise to a justifiable sense of grievance.
While each applicant’s case must be considered on its own merits, the nature of each ground necessarily invites comparison of the two sentences and each offender’s role and personal circumstances relevant to sentencing.
Mr Gardiner’s submissions
Mr Wareham, who appeared for Mr Gardiner in this Court (but not at the plea), submitted that the following factors compelled the imposition of a lesser sentence on his client vis-à-vis Ms Wyka.
First, Mr Gardiner, unlike Ms Wyka, made a confession in his police interview upon arrest. In particular, Mr Gardiner admitted that he:
(a) was angry with XY because of the way he had been treating Ms Wyka;
(b) took the firearms to the address in question;
(c) saw the victims as he and Ms Wyka approached the address; and
(d) discharged the shotgun and attempted to retrieve the fired cartridges.
Mr Wareham submitted that these admissions were demonstrative of Mr Gardiner’s remorse and of his facilitation of the course of justice. Ms Wyka, by contrast, made a partial ‘no comment’ interview and denied involvement in the (relevant) offending.
Second, the consequence of his conviction and sentence is that Mr Gardiner is likely to be deported to New Zealand. He had come to Australia when in his early-twenties and never applied for citizenship. This prospect, the judge accepted, will make his time in custody more burdensome. Further, there will be additional punishment inflicted upon him because deportation, if it occurs, will involve separation from his daughter, who lives in Australia.[34]
[34]DPP v Gardiner [2019] VCC 222 at [65]-[67].
I would add two further factors to that list. First, the CCTV recording shows that it was Ms Wyka who was leading the way when walking along the street towards Mr Sozer’s home and when turning into the driveway. Further, Ms Wyka raised her shotgun and pointed it at the victims before Mr Gardiner did as they walked quickly towards the front door while Mr Singh, Mr Sozer and XY were gathered there.
Secondly, I think it is clear that, while the judge regarded both applicants as having favourable prospects of rehabilitation, her Honour assessed Ms Wyka as a ‘low’ risk of reoffending and as having ‘reasonable’ prospects of rehabilitation, whereas she assessed Mr Gardiner as a ‘negligible’ risk of reoffending and as having ‘excellent’ prospects of rehabilitation.[35]
[35]DPP v Gardiner [2019] VCC 222 at [71] & [99] (although see also [104], where her Honour said she was “satisfied that there is little likelihood of both of [the offenders] reoffending, having regard to [their] personal circumstances currently”).
In Mr Wareham’s submission, the judge ought to have reflected these factors in a lesser sentence on Mr Gardiner vis-à-vis the sentence imposed on Ms Wyka. The failure to do so, he submitted, gives rise to a justifiable sense of grievance in Mr Gardiner. As a result, this Court should intervene and reduce the sentence accordingly.
Ms Wyka’s submissions
Mr Smallwood conceded that some features of the case were common to Ms Wyka and Mr Gardiner. For example, both pleaded guilty at the earliest stage; neither had prior convictions; and both were otherwise of good character.
Initially, Mr Smallwood also conceded that their roles, after arriving at Mr Sozer’s house, were indistinguishable. However, upon raising the point argued under cover of Ground 3 at the hearing, he sought to withdraw that concession. This was because, on the correct view of the facts, Mr Gardiner fired five shots whereas Ms Wyka fired only two. He also added, ‘for completeness’, that Mr Singh was not standing between Mr Gardiner and Ms Wyka when the latter fired her two shots. Further, it was Mr Gardiner who tried to force open the door.
Mr Smallwood accepted that, unlike Ms Wyka, Mr Gardiner made full admissions when interviewed. Further, he accepted that, although there was evidence of remorse by both offenders, the judge concluded that Mr Gardiner’s remorse was illuminated by his full co-operation with police.[36] Finally, he accepted that Mr Gardiner alone had the mitigating factor concerning the likelihood of deportation.
[36]DPP v Gardiner [2019] VCC 222 at [68].
In Mr Smallwood’s submission, however, these matters were outweighed by four factors:
(a) First, and most significantly in his submission, as argued under cover of Ground 1, the behaviour directed towards Ms Wyka by XY, and the context that that provided in explaining her conduct, was critical to the assessment of her culpability.
(b) Second, two of the Verdins propositions applied in her case.
(c) Third, it was Mr Gardiner who provided and loaded the shotguns.
(d) Fourth, as explained a moment ago, Mr Gardiner fired five shots and tried to force open the second door while Mr Singh was present, whereas Ms Wyka fired only two shots and had no part in forcing the door after Mr Singh had decamped.
Mr Smallwood submitted that, in view of the foregoing, it can be seen that the imposition of the same sentence gives rise to a justifiable sense of grievance in Ms Wyka. The only remedy, he submitted, is to reduce her sentence accordingly.
The Director’s submissions
Mr McWilliams submitted that it is clear that the judge had regard to parity principles when considering the sentences of the two applicants.[37]
[37]DPP v Gardiner [2019] VCC 222 at [102]-[104].
In his submission, overall, it was open to treat each offender’s role in the offending as more or less equal. Each offender was responsible for the actions of the other. In any event, there is no meaningful difference between their roles when, while only firing two shots herself, Ms Wyka must be regarded as complicit in Mr Gardiner’s firing of five shots and his attempt to force the door. In so far as there might be any difference, submitted Mr McWilliams, that is more or less offset by Ms Wyka’s leading the charge to the front door and being the first one to raise her weapon at those standing there at the time.
All of the other factors personal to the applicants, again, may be weighed in a way that those in favour of one applicant are more or less offset by those in favour of the other.
In Mr McWilliams’s submission, in those circumstances, neither applicant could have a justifiable sense of grievance about his or her sentence vis-à-vis the other’s.
Accordingly, in each case, this proposed ground of appeal should fail.
Discussion
In short, I prefer Mr McWilliams’s submissions.
In my view, the differences in their respective roles either balance each other out or are so minor as to make no meaningful difference in the gravity of the offending of each offender.
While Ms Wyka’s time in custody is rendered more burdensome by her mental health difficulties and XY’s disturbing behaviour, Mr Gardiner’s time is also made more burdensome by the risk of deportation.
While Ms Wyka’s moral culpability, I accept, was reduced somewhat as a result of her treatment by XY, as I have sought to explain under cover of her Ground 1, her offending was still very serious, and the judge rightly concluded that her moral culpability was high, because she continued with the planned offending when it was apparent that there were persons other than XY at the door or in the house, persons who could not sensibly be regarded as blameworthy but rather were more properly described as innocent victims. Further, it is not as if XY had come to Ms Wyka and inflicted violence upon her on this occasion. Instead, she took the violence to XY, and happened to involve three other victims in her offending as well.
In any event, I think that Mr Gardiner’s full admissions, greater remorse and stronger prospects of rehabilitation are of sufficient weight to offset Ms Wyka’s reduced moral culpability, such as it is.
Further, in respect of each of the other differences between the offenders identified by counsel, it was open to the judge to weigh those factors in a way that resulted in the same sentences being imposed on both.
In juxtaposing the foregoing factors as I have, I do not suggest that that is the only way in which these factors might be weighed or contrasted. Nor have I mentioned every conceivable difference between them. Instead, the point is to show that it was open to the judge to weigh the major competing factors in a way that would suggest to her that, in the sound exercise of the discretion reposed in her, the same sentences should be imposed on each applicant.
In those circumstances, I am not satisfied that either Ms Wyka or Mr Gardiner could have a justifiable sense of grievance about the respective sentences imposed.
Accordingly, I would reject each applicant’s proposed ground of appeal concerning parity.
Ms Wyka’s Ground 4: COVID-19 pandemic — added burden of imprisonment
Introduction
On 6 April 2020, following the hearing of these applications on 17 March 2020, Mr Smallwood’s instructing solicitors filed a further written submission and an affidavit sworn by Ms Wyka (on 3 April 2020). In the written submission, Mr Smallwood sought leave to file the affidavit and add a fourth ground of appeal in the following terms:
Ground 4: New evidence establishes that imprisonment is more burdensome for [Ms Wyka] as a consequence of the COVID-19 pandemic.
Mr Smallwood made it clear that Ms Wyka did not wish to supplement the further written submissions with oral submissions. Instead, she is content that a determination on this proposed ground be made on the papers.
The Director subsequently (on 21 April 2020) filed submissions opposing this proposed ground.
Ms Wyka’s evidence
Ms Wyka is serving her sentence at Dame Phyllis Frost Centre (‘DPFC’). On 21 March 2020, all personal visits to DPFC were suspended because of the COVID-19 pandemic.
Ms Wyka’s father usually visited her for about two hours each week. He does not have a landline telephone. So she calls him on his mobile phone, which is expensive, and limits the amount of time she can afford to speak to him. She is also worried about his health, as his immune system is compromised.
Ms Wyka is also concerned about her 81-year-old grandmother. They are very close. Her grandmother is hearing impaired, which means telephone calls are of no assistance.
Activities and programmes — including the Intensive Residential Drug and Alcohol Treatment Programme in which Ms Wyka had been engaging — have been suspended as well. This means Ms Wyka has had to cease her weekly community group, counselling group, focus group and individual counselling session. This programme was her main focus. Her sporting and recreational activities — such as volleyball and bingo — have also been suspended.
Ms Wyka is unsure what impact there may be on the availability of her specialist medical appointments.
As a result of these changes, Ms Wyka feels isolated and depressed. She stays in her cell most of the day. Nightly lockdowns are earlier than they were and morning unlocking of cells occurs later.
Ms Wyka’s submissions
Mr Smallwood submits that the foregoing evidence shows that, since the hearing of this matter, imprisonment has become more burdensome for Ms Wyka as a result of the COVID-19 pandemic and its related consequences.
He submitted that the pandemic has resulted in unprecedented and unique circumstances that, from a sentencing perspective, can inform the assessment of the burden of imprisonment[38] as well as the assessment as to what is in the best interests of the community and of the offender.[39]
[38]R v Madex [2020] VSC 145 at [51] (per Incerti J).
[39]R v Madex [2020] VSC 145 at [61] (per Incerti J).
Counsel also referred to the recent remarks of Priest and Weinberg JJA in Brown (aka Davis) v The Queen:[40]
[48] With regard to the COVID-19 pandemic, and the submission put forward on behalf of the applicant in that regard, we readily acknowledge that this is a matter that is certain to come before this Court again in the immediate future. In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court (and others) should deal with this crisis as regards its effect upon relevant sentencing principles. We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.
[40]Brown (aka Davis) v The Queen [2020] VSCA 60 at [48].
Mr Smallwood submitted that the impact of the pandemic on Ms Wyka falls to be assessed in circumstances where material before the sentencing court confirmed that imprisonment was already more onerous for her because of her subjective circumstances. The new evidence, in combination with that material, illuminates just how difficult imprisonment is for her.
In his submission, that evidence justifies a lower sentence than that which she is currently serving. Ms Wyka still has about five years and three months before her total effective sentence expires, and about three years and three months before she will become eligible for parole. Those terms, in his submission, are too long given the burden that Ms Wyka is exposed to every single day in gaol.
The Director’s submissions
Mr McWilliams submits that the proposed evidence is not properly regarded as ‘new or fresh evidence’ and is therefore inadmissible. While the rise of the pandemic may well be ‘rare and exceptional’, the consequences of it for Ms Wyka are not. Nor does the proposed evidence shed new light on, or demonstrate the true significance of, facts in existence at the time of sentencing. The consequences of the pandemic are not exclusive to Ms Wyka, but apply to all prisoners.
Mr McWilliams conceded that, if one of the other grounds were to succeed, it may be that the proposed evidence would be relevant to resentencing. That said, the matters raised in the affidavit would not, in his submission, compel the imposition of a different sentence.
Discussion
In R v Nguyen,[41] Redlich JA (with whom Maxwell P and Neave JA agreed) said this about leading evidence on appeal of events that have occurred since sentence:
[41]R v Nguyen [2006] VSCA 184 at [36]-[37].
[36] It is common ground that this Court may, in limited circumstances — sometimes described as “rare and exceptional” — permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
(i) the new evidence must relate to events which have occurred since the sentence was imposed;[42]
[42]R v Eliasen (1991) 53 A Crim R 391 at 394; R v Rostom [1996] 2 VR 97 at 101; R v WEF [1998] 2 VR 385 at 388; R v Wooden [2006] VSCA 97 at [7].
(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;[43]
(iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;[44]
(iv)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;[45]
(v)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error,[46] or whether it was manifestly excessive; and
(vi)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.[47]
[37] The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.[48]
[43]R v Smith (1987) 44 SASR 587; R v Eliasen (1991) 53 A Crim R 391 at 394; R v Rostom [1996] 2 VR 97 at 99; R v WEF [1998] 2 VR 385 at 389; R v Holland (2002) 134 A Crim R 451 at 452[2] & 457[35]; R v McLachlan (2004) 8 VR 403 at [10]; R v SH [2006] VSCA 83 at [9].
[44]R v Babic [1998] 2 VR 79 at 80 & 82; R v McLachlan at [10]; R v WEF [1998] 2 VR 385 at 388.
[45]Knightsv R (1993) 70 A Crim R 105 at 109-110; R v Maniadis [1997] 1 Qd R 593 at 597; R v Ahmed [2005] VSCA 279 at [11].
[46]R v Ahmed [2005] VSCA 279 at [18]; R v SH [2006] VSCA 83 at [25]-[26].
[47]R v Eliasen (1991) 53 A Crim R 391 at 396; R v Rostom [1996] 2 VR 97 at 103; R v SH [2006] VSCA 83 at [25]. The reference to ‘miscarriage of justice’ is found in such cases as R v McLachlan (2004) 8 VR 403 at [10] and R v Ahmed [2005] VSCA 279 at [11].
[48]R v Eliasen (1991) 53 A Crim R 391 at 396; R v Rostom [1996] 2 VR 97 at 102-3. The test is different in New South Wales and Queensland. See R v Fordham (1997) 98 A Crim R 359 at 377-378; R v Durocher (2003) 58 NSWLR 581; R v Maniadis [1997] 1 Qd R 593.
While it must be accepted that the advent of the COVID-19 pandemic is a “rare and exceptional” event, I am not persuaded that evidence of its effects on the added hardship of Ms Wyka’s imprisonment is admissible in support of the proposed stand-alone ground pleaded.
In my view, it is the third of those principles summarised by Redlich JA in Nguyen that must be applied in this case. In R v Babic,[49] Brooking JA (with whom Winneke P and Ashley AJA agreed) said this:[50]
Evidence of an event occurring after sentence which is said to make the sentence passed excessive will not be received, the correct analysis being, in my view, not that the evidence will not be received as a matter of discretion, but that it will not be received because it is not admissible.
The suggestion that some subsequent event has made a sentence, when passed, excessive is a matter for consideration by the Executive in the exercise of the prerogative of mercy, not by an appellate court: … .
[49]R v Babic [1998] 2 VR 79.
[50]R v Babic [1998] 2 VR 79 at 80-81.
While Babic was decided 23 years ago and at a time when sentence applications were governed by s 568 of the Crimes Act, and while there has been some relaxation of the strict rules concerning receipt of evidence on such applications, I think that the basic principle stated by Brooking JA still should be regarded as applying to sentence applications governed by ss 278-282 of the CPA, at least in the circumstances of this case. In particular, I think that that principle applies in this case to deny the admissibility of the evidence in support of the stand-alone ground raised by Ms Wyka.
As I see it, changes in circumstances such as these are matters for the Executive, not this Court. If it were otherwise, then any significant change in a prisoner’s conditions of incarceration occurring after sentence could amount to a basis for coming to this Court and asking that his or her sentence be reduced, irrespective of any error in the sentence when passed. That would be an unsatisfactory state of affairs, as there would be almost no finality in sentencing decisions, and it is likely that this Court would be flooded with unmeritorious applications.
Nor is this a case in which the evidence concerning the consequences of the COVID-19 pandemic, to use Redlich JA’s description of the second principle, “demonstrate[s] the true significance of facts in existence at the time of the sentence”. Bringing the point back to Mr Smallwood’s submission, while the evidence in Ms Wyka’s affidavit, in combination with the evidence showing that prison was already more onerous for her because of her particular subjective circumstances, may illuminate just how difficult imprisonment is for her now, that does not bring the evidence within the second principle stated by Redlich JA. The COVID-19 pandemic is a completely new and exogenous factor that, I expect, has made — and will continue to make — prison harder for all (or at least the overwhelming majority of) prisoners.
That the pandemic is likely to affect all prisoners in a similar way, not just Ms Wyka, is another reason in and of itself suggesting that this is a matter for the Executive, not this Court. For example, it may be that the Secretary to the Department of Justice and Community Safety, pursuant to s 58E(1) of the Corrections Act 1986 (Vic), will reduce the length of sentences or non-parole periods being served by any prisoner “on account of good behaviour while suffering disruption or deprivation … (a) during an … emergency existing in the prison … or (b) in other circumstances of an unforeseen and special nature”. Plainly enough, the consequences for prisoners of the COVID-19 pandemic could be regarded as falling within s 58E(1). It is not this Court’s function, on appeal, to second-guess, double-up on or otherwise seek to make orders accommodating that or any other action that might be deemed fit to be taken by the Executive in response to the added hardship imposed on prisoners by reason of the COVID-19 pandemic.
None of the foregoing denies the possibility that, if there were error on some other basis and the Court were called upon to resentence, it might be considered appropriate to have regard, in imposing a new sentence, to the added burden of imprisonment as a result of restrictions imposed in the wake of the COVID-19 pandemic. But that is not this case, as there is no such error. That said, the decision whether evidence of this kind might be taken into account in that way on a resentencing — or, for that matter, what impact, if any, such evidence might have on sentence in view of any Executive action that might have been taken — is a decision that must await a case in which the issue arises squarely for determination.
Accordingly, I would refuse to admit Ms Wyka’s affidavit evidence and reject proposed Ground 4 of her application.
Conclusion and proposed orders
Since I have rejected each of Ms Wyka’s proposed grounds of appeal, I would refuse her application for leave to appeal.
Equally, since I have rejected Mr Gardiner’s sole proposed ground of appeal, I would refuse his application for leave to appeal.
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