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Marrah v The Queen [2014] VSCA 119 (18 June 2014)

Last Updated: 19 June 2014

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0191

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CRIMINAL LAW – Sentence – Violence by male partner towards female partner – Breach of intervention order – Recklessly causing serious injury (RCSI) – Threat to kill – Rape – Injuries sustained comparatively minor – Crown concession that two of the three sentences imposed fell outside the available range – Sentences on RCSI and threat to kill represented statistical extremes – Sentences on RCSI and threat to kill manifestly excessive – One course of conduct involving discrete criminal offending – Total effective sentence more than was necessary to reflect offender’s total criminality – Azzopardi v The Queen (2011) 35 VR 43 applied – Appeal allowed.

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REDLICH JA

TATE JA:

1 The applicant seeks leave to appeal against sentences imposed in the County Court following the applicant’s plea of guilty to charges of making a threat to kill,[1] rape,[2] and recklessly causing serious injury.[3] Each of the offences occurred during a prolonged assault by the applicant against his domestic partner. He was sentenced as follows:

Circumstances of the offending

2 The complainant was 28 years old at the time of the offending, and had been in a relationship with the applicant for about two years. They have one child together, who at the time of the offending was one year old and in the care of the Department of Human Services (‘DHS’). Throughout the relationship there had been a number of family violence incidents, some of which were reported to the police and others which were not. A family violence intervention order was active at the time of the offending, with conditions that the applicant could not commit acts of family violence or damage the complainant’s property.

3 On 18 June 2012, the applicant and the complainant were arguing about his belief that she had been having sexual relations with other men. The verbal argument escalated into a prolonged assault by the applicant, during which he committed the three offences. The applicant punched the complainant, picked her up by her hair and threw her to the floor, kicked her several times — including to the head, as she lay on the floor — and banged her head on the floor. He also grabbed her around the neck as she was lying on the floor so that she could not breathe, and tried to open her legs while attempting to kick and stomp on her vagina. The complainant suffered bruising to various areas of her body, a fractured cheekbone, abrasions and superficial scratches. These actions provided the basis for Charge 1 (recklessly causing serious injury). In the midst of the assault, the applicant accused the complainant of having sex with other men. He got on top of the complainant and repeatedly shoved his fingers into her vagina, saying things like, ‘You fuckin’ let Troy and every cunt you know touch ya up there’. This constituted charge 2 (rape). The applicant subsequently released the complainant but then followed her into the kitchen, where he retrieved two knives from the drawer, told the complainant that he had sharpened them and then put them to her throat, abdomen and chest while threatening to kill her and her dog. At one stage, the applicant stood behind the complainant with one of the knives to her throat. The applicant told her that he would kill her if she called the police, saying ‘This will only take five years off my life, this will take yours forever’. The applicant also invited the complainant to choose which of the knives he would use to kill her. This constituted charge 3 (threat to kill).

4 The complainant’s injuries were observed by her Child Protection Case Manager when she attended the DHS office the next morning. The Case Manager took the complainant to hospital. The applicant was subsequently arrested, and gave a no comment interview.

The present application

5 The applicant seeks leave to appeal on the following grounds:

(i) That the sentencing erred in assessing the gravity of the threat to kill;

(ii) That the sentencing judge erred in failing to properly consider the relevance of the abuse suffered by the applicant in his formative years; and

(iii) That the sentences imposed, the orders for cumulation and the non-parole period are each manifestly excessive.

6 The Crown concedes that the sentences imposed on the charges of threat to kill and recklessly causing serious injury are manifestly excessive and that the applicant must therefore be resentenced on those charges.

Ground 1 — error in assessment of gravity of threat to kill

7 In her sentencing remarks, the judge referred to the threat to kill as follows:

The threat to kill was made in particularly cruel and chilling terms. You told [the complainant] it would only take five years off your life, whilst taking hers forever. As I shall refer to shortly in more detail, you have previously been convicted of manslaughter and served five years in prison before being released on parole. There could be no doubting your meaning or the seriousness of your threat.^[4]

8 The applicant submits that the judge fell into error in treating as a circumstance of aggravation that the words used in the threat to kill were particularly cruel because they implicitly referred to the applicant’s prior conviction and sentence for manslaughter.[5] He submitted that there was no evidence that the complainant knew about that conviction or appreciated the significance of the threat, and that the substance of the threat would therefore not have had the ‘particularly cruel and chilling’ effect found by the judge. The finding that there could be ‘no doubting [the applicant’s] meaning or the seriousness of [his] threat’ was also said to be unsupportable.

9 There is no substance in this complaint. Her Honour was right to conclude that the applicant’s utterance that he would take the complainant’s life ‘forever’ but that he would have to serve a gaol term of five years was ‘cruel’ and particularly ‘chilling’. That conclusion did not depend upon the complainant knowing that he had a prior conviction, or that the non-parole period for that offence had been roughly five years. The utterance was also highly relevant to the applicant’s moral culpability, as it conveyed the impression of a calculated and cruel disregard for the consequences of killing the complainant.

10 Further, it was submitted that this was far from a grave example of such offending. That submission is also unsustainable. In order for a threat to kill to be established at law, it must be shown that a hypothetical reasonable person in the complainant’s position would have believed that the person making the threat would carry it out.[6] By his plea the applicant acknowledged that, viewed objectively, a reasonable person would have entertained such a belief. Here there was no issue that the complainant was placed in real and immediate fear that the applicant would carry out his threat. The sentencing judge was required to assess the objective gravity of the threat and the circumstances in which it was made to determine the order of seriousness of the offence.[7] As was ultimately conceded in oral argument, when regard is had to the circumstances in which the threat was made, it represented a serious example of the offence. The applicant was armed and was holding a knife to the complainant’s throat at the time the threat was made. He was clearly in a position to carry out the threat, which was uttered a number of times.

11 Although this ground is not made out, it will be necessary to fix a new sentence, as the respondent has conceded that the sentence on this charge is manifestly excessive.

Ground 2 — error in consideration of relevance of applicant’s abusive formative years

12 The applicant was born in 1964, and was 48 years old at the time of the offending. His upbringing was ‘marked by brutality and violence’;[8] he had been seriously physically and sexually abused during his formative years. The sentencing judge found that his upbringing did not equip him with the emotional and life skills that a ‘better circumstanced’ person would possess,[9] and that he was a ‘significantly psychologically damaged individual, by reason of [his] childhood experiences’.[10] He admitted prior convictions, and had received one term of imprisonment, for a manslaughter committed in February 2001.[11]

13 The sentencing judge’s findings relating to the applicant’s childhood and youth make for grim reading.[12] The applicant’s father left when he was two years old, and his mother’s new partner was a violent alcoholic who abused him, his mother and older siblings. At some stage between the ages of ten and 13, the applicant was sent to live with an uncle who, according to reports tendered at trial, also subjected him to physical and sexual abuse. His schooling was so limited that he is still unable to read or write properly, and he described having been made to do physically demanding manual work from the age of nine. Her Honour remarked as follows:

Although there are discrepancies in the reports about the nature of the abuse suffered at the hands of your stepfather and uncle, I accept for sentencing purposes that your childhood was marked by brutality and violence, and that such an upbringing does not equip a person with the emotional and life skills those better circumstanced are [sic]. Although none of the reports provided to me refer to this, it seems to me you were exposed to little in the way of resolution of personal conflict, except resort to violence.^[13]

14 The judge accepted the evidence of an expert, Dr Walton, that the applicant manifested his psychological damage in chronic depression, which had sustained significant improvement following the prescription of anti-depressant medication in custody, and that the fifth limb of Verdins therefore required that the sentence be moderated.[14] Her Honour discounted any other mitigation arising by reason of the Verdins principles, based upon an expert opinion provided by Dr Walton that:

[W]hile Mr Marrah’s background of privation, abuse and chronic depression may well be seen as having at least some relevance to aggressive conduct displayed by him, it is not my view that mental illness factors provide a comprehensive explanation of this man’s conduct.

Her Honour relied upon Dr Walton’s two reports in concluding that the applicant’s prospects for rehabilitation were very poor, and that there was a need for the sentence to reflect not only denunciation, just punishment, and general deterrence, but also specific deterrence and protection of the community.[15]

15 The applicant submits that her Honour erred in failing to take the applicant’s abusive upbringing into account in assessing his moral culpability. These circumstances, it is argued, should have reduced the degree to which the sentence should reflect the principles of denunciation and general deterrence, as the applicant was not an appropriate medium for their full application. The absence of specific reference to these factors in the sentencing remarks, it is said, bespeaks a failure to take relevant mitigating factors into account.

16 Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time,[16] and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour.[17] The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say that an offender's social disadvantage has the same mitigatory relevance for all of the purposes of punishment.[18] It may so explain the offender’s conduct that the offender’s moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender.[19] It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending.[20]

17 It will ordinarily be desirable that a sentencing judge make clear in the reasons for sentence the extent to which the offender’s deprived circumstances have moderated the weight given to personal and general deterrence in favour of other purposes of punishment, including rehabilitation. Here, the sentencing judge did mention the applicant’s abusive upbringing in the context of discussing the principles enunciated in Verdins.[21] They were used as a basis for her conclusions regarding prospects of rehabilitation. The reasons are otherwise silent as to the extent to which the applicant’s deprived circumstances were taken into account in mitigation of sentence.

18 The Crown’s concession that two of the three sentences imposed fell outside the range of sentences available to the sentencing judge means that, in some unidentifiable way, the sentencing judge fell into error. Thus, the applicant contends that it can be inferred that the errors are the result of a failure to accord these mitigating circumstances sufficient weight. Given the extent of attention given to the applicant’s background on the plea, we would not conclude from the absence of a statement that the deprived circumstances were treated as a moderating influence on other punitive sentencing principles that her Honour failed to take them into account as part of the instinctive synthesis.[22] But it does follow that, in some unidentifiable way, factors relevant to the sentencing task were not given appropriate weight in the sentencing calculus so that the residual ground upon which a discretionary judgment may be challenged is enlivened.[23]

Ground 3 — manifest excess

19 The applicant submits that the sentences imposed for recklessly causing serious injury and for the threat to kill represent statistical extremes. In the case of recklessly causing serious injury, for all those sentenced in all courts for that offence between 2006–7 and 2010–11 where it was the base sentence, only two received a sentence of eight years or more,[24] with similar statistics applying to different periods.[25] A similar submission was made in relation to the threat to kill: of all those sentenced in all courts between 2007–8 and 2011–12 with threat to kill the base sentence, only one person received a sentence higher than four years.[26] It was submitted further that none of the charges are at the upper end of seriousness for the relevant offences.

20 It is submitted that the gravity, as well as the ongoing consequences, of the serious injury constitute two important yardsticks for measuring the seriousness of an offence of recklessly causing serious injury. But these are not the only indicators as to the seriousness of such an offence. For example, an extensive history of violent offending will also be relevant. Here, the objective gravity of the offending is rendered more serious because the injuries were inflicted over an extended period of time, in a domestic setting and in breach of a family violence intervention order.

21 The Crown’s concession that the sentence is manifestly excessive rests primarily on the nature of the injuries inflicted. Sentences imposed for intentionally or recklessly causing serious injury offences in the worst category of cases, and which have attracted sentences of the order here imposed, have generally been for offending involving the infliction of catastrophic physical injuries, often accompanied by permanent brain damage.[27] In comparison to these, the complainant’s injuries — which comprised a collection of bruises and abrasions, tenderness, superficial scratches and an undisplaced fracture of the cheekbone — must necessarily be seen as less serious. Although sentencing statistics have their limitations for comparative purposes,[28] in this case they support the conclusion that this sentence is significantly out of step with current sentencing practice for serious injury offences.

22 In relation to the threat to kill, the applicant conceded at the oral hearing that this offending did in fact constitute a particularly serious example of the offence due to the presence of the weapon, as well as the fact that the threat was repeated several times and in circumstances where the means of carrying it out were readily at hand. Furthermore, we reject the notion that the threat was less serious because its execution was expressed as potentially occurring in the future, rather than immediately. The knife held to the complainant’s throat constituted an aspect of the threat itself, and lent it an immediacy which precludes any such argument. However, as the Crown unequivocally accepted, the sentence imposed fell well outside a sound exercise of the sentencing discretion.

23 The applicant must be resentenced on these charges.

24 We reject the applicant’s submission that the sentence on the charge of rape is manifestly excessive. The sentence may be viewed as towards the upper end of the range of sentences available for this category of the offence, but it was one well within the permissible range. The rape itself involved considerable violence, quite apart from the surrounding violence which has been separately punished under the charge of recklessly causing serious injury. The applicant restrained the complainant and repeatedly rammed his fingers into her vagina whilst insisting that she had been unfaithful to him. The assault took place in the complainant’s own home, in a domestic context in which she had the right to feel safe. The rape was motivated by a desire to control and to punish, a fact which, as the applicant conceded, certainly renders it no less serious than a rape motivated by a desire for sexual gratification. In such circumstances, it can hardly be said that a sentence of six years was excessive. This aspect of the ground of appeal fails.

25 The gravity of the offending was aggravated by the fact that the applicant was at the time the subject of an intervention order, which he flagrantly disregarded. Offending of this nature is too often perpetrated by men whose response to difficulties in a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable. The sentences must convey the unmistakeable message that male partners have no right to subject their female partners to threats or violence. The sentences must be of such an order as to strongly denounce violence within a domestic relationship.

26 The task of sentencing for multiple offences requires, not only that the individual sentences be within the range available for the relevant category of seriousness, but also that the aggregate sentence is a ‘just and appropriate measure of the total criminality involved’.[29] In Azzopardi v The Queen,[30] Redlich JA sought to explain the principle of totality and the need to ensure that the aggregate sentence is commensurate with the gravity of the whole of the offending and the offender’s just deserts. That is normally achieved by making parts of each individual sentence wholly or partially concurrent. The degree of cumulation ordered must make the aggregate sentence proportionate to the offender’s overall criminality. In cases such as the present, where the sentences represent parts of one course of conduct involving discrete criminal offending, in order to reflect the gravity of the whole of the offending less cumulation will ordinarily be required than where the sentences represent separate episodes or transactions.

27 In our view, the orders for cumulation did not produce an aggregate sentence that was commensurate with the gravity of the whole of the offending. As Redlich JA said in Azzopardi:

Once the sentence satisfies the punitive and mitigatory sentencing objectives for the offender’s overall conduct, the sentence is then proportionate to the offender’s criminality. ... No justification then exists for a more severe sentence, proportionality and just deserts defining the outer limits of punishment. ... The aggregate sentence must be arrived at that is sufficient punishment, but no more than is necessary to satisfy those sentencing objectives. ... If the aggregate sentence is not a just and appropriate measure of the total criminality, the sentencing judge will have assigned the incorrect weight to the various sentencing objectives in fixing the individual sentences or in the method of aggregation of the sentences or both.^[31]

28 A reduction in the individual sentence for Charge 1, which is to be the base sentence, and a reduction in the order for cumulation on Charge 3 will produce a sentence which, in our view, is no more than proportionate to the applicant’s total criminality.

Orders

29 We would grant leave to appeal, allow the appeal against sentences on Charges 1 and 3 and resentence the applicant as follows:

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^[1] Contrary to s 20 of the Crimes Act 1958 (Vic).

^[2] Contrary to s 38 of the Crimes Act 1958.

^[3] Contrary to s 17 of the Crimes Act 1958.

^[4] Director of Public Prosecutions v Wati Marrah (Unreported, County Court of Victoria, Hampel J, 20 September 2013) [‘Sentencing remarks’], [19].

^[5] The applicant’s non-parole period for the manslaughter conviction had actually been four years and nine months — see Sentencing remarks, [30].

^[6] See R v Leece (1995) 125 ACTR 1, 2; Barbaro v Quilty [1999] ACTSC 119, [69]-[75] (Higgins J).

^[7] Ashdown v The Queen  [2011] VSCA 408. 

^[8] Sentencing remarks, [26].

^[9] Ibid.

^[10] Ibid [27].

^[11] For details of the applicant’s criminal history in Australia and New Zealand, see [29]–[37] of her Honour’s Sentencing remarks.

^[12] See Sentencing remarks, [21]–[26].

^[13] Sentencing remarks, [26].

^[14] Sentencing remarks, [27]. See R v Verdins [2007] VSCA 102; (2007) 16 VR 269 (‘Verdins’), 276 [32]: impaired mental functioning may be relevant to sentencing in circumstances where the existence of a condition, or its foreseeable recurrence, at the date of sentencing would mean that a given sentence could weigh more heavily on the offender than on a person of normal health.

^[15] Sentencing remarks, [62].

^[16] Bugmy v The Queen [2013] HCA 37; (2013) 87 ALJR 1022 (‘Bugmy’), 1032 [44].

^[17] See DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457.

^[18] Bugmy [2013] HCA 37; (2013) 87 ALJR 1022, [44].

19. ^[19] R v Engert (1995) 84 A Crim R 67, 68 (Gleeson CJ); Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 476 (Mason CJ, Brennan, Dawson and Toohey JJ); Bugmy [2013] HCA 37; (2013) 87 ALJR 1022, [44].

^[20] Munda v Western Australia [2013] HCA 38; (2013) 87 ALJR 1035, 1045 [54].

^[21] [2007] VSCA 102; (2007) 16 VR 269, 276 [32].

^[22] Compare DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457, 459-60 [5].

^[23] House v The King [1936] HCA 40; (1936) 55 CLR 499.

^[24] Sentencing Advisory Council, Sentencing Snapshot 126: Causing Serious Injury Recklessly in the Higher Courts, 5.

^[25] See R v White [2010] VSCA 261, [20].

^[26] Sentencing Advisory Council, Sentencing Snapshot 143: Making a Threat to Kill in the Higher Courts, 5.

^[27] See for example DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457, in which sentences in the order of 11 years were imposed for intentionally causing serious injury and recklessly causing serious injury, and Arthars v The Queen [2013] VSCA 258, in which this Court dismissed an appeal against sentences of nine years, six months and 10 years’ imprisonment for intentionally causing serious injury.

^[28] See R v Hili [2010] HCA 45; (2010) 242 CLR 520, 536–7 [53]–[55]; Hudson v The Queen (2010) 30 VR 610, 616–9 [27]–[37] in particular.

29. ^[29] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307–8 (McHugh J), 321 (Gummow J), 340-1 (Kirby J).

^[30] (2011) 35 VR 43 (‘Azzopardi’).

^[31] Ibid 61-3 [61]–[66].