Cotter v The Queen [2011] VSCA 240 (15 August 2011)

Last Updated: 29 August 2011

SUPREME COURT OF VICTORIA

COURT OF APPEAL

	S APCR 2009 1003

SHANE JOHN COTTER
v
THE QUEEN

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JUDGES	NETTLE and NEAVE JJA and SIFRIS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 August 2011
DATE OF JUDGMENT	15 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 240
JUDGMENT APPEALED FROM	R v Cotter (Unreported, County Court of Victoria, Judge Sexton, 10 December 2009)

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CRIMINAL LAW – Conviction – Arson – Assault – Whether verdict unreasonable – Whether evidence left open reasonable hypothesis consistent with innocence – Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, applied

CRIMINAL LAW – Jury directions – Whether judge erred in essaying the meaning of reasonable doubt – R v Chatzidimitriou [2000] VSCA 91; (2000) 1 VR 493, applied

CRIMINAL LAW – Sentence – Whether a total effective sentence of six and a half years with a non-parole period of five years manifestly excessive – Applications dismissed

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Appearances:	Counsel	Solicitors

For the Applicant	Mr J M McLoughlin	Victoria Legal Aid

For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1 The applicant was presented for trial in the County Court at Ballarat on one count of intentionally causing injury (Count 1), alternatively, one count of recklessly causing injury (Count 2), one count of assault (Count 3); one count of threatening to inflict serious injury (Counts 4); one count of threat to kill (Count 5); and one count of arson (Count 6), to all of which he pleaded not guilty. Following trial, he was convicted of Count 1 (intentionally causing injury), Count 4 (threat to inflict serious injury) and Count 6 (arson) and, after a plea in mitigation of penalty, in which he also pleaded guilty on a separate presentment to one count of attempting to pervert the cause of justice, he was sentenced to a total effective sentence of six and a half years’ imprisonment with a non-parole period of five years. He now seeks leave to appeal against conviction and sentence.

The facts of the offending – assault and arson

2 All of the offences, except the attempt to pervert the cause of justice, were committed on 7 March 2007. At that time the applicant was living in an on-again-off-again relationship with the principal victim of the offences, Karen Johns, in her home at 216 Richards Street, Ballarat. The house was owned by the Ministry of Housing. Ms Johns’ daughter also lived there.

3 The applicant and Ms Johns were in the habit of drinking alcohol to excess. On 7 March 2007, the applicant began drinking around lunch time and continued to drink throughout the afternoon, spending some of the time with his father. While he was there, he received a telephone call from Ms Johns who told him that she intended to go out. He told her that, if she went anywhere, he would ‘trash’ her house.

4 Ms Johns remained at her house until the applicant returned to it at about 6.00 pm. Then she went with the applicant to a nearby house at 212 Richards Street to drink with a friend who lived there. An argument developed between them and Ms Johns left to go home. The applicant went after her and Ms Johns went to the house of a neighbour, Mrs Laurie, who lived around the corner in Francis Crescent. Ms Johns banged on the front door for help.

5 The applicant there caught up with Ms Johns and pulled her down the steps, on to the grass, where he punched and kicked her body and face. Ms Johns’ injuries included pain, bruising and laceration of her nose, and bleeding from her nose. Photographs[1] showing the injuries were tendered both at the trial and on the plea Those are the facts which comprised Count 1, intentionally cause injury, alternatively, Count 2, recklessly cause injury. Mrs Laurie said that while that was going on, the applicant threw a bar at her security door. Those are the facts which comprised Count 3, assault.

6 Later, the applicant was seen dragging Ms Johns back towards her house. Ms Johns gave evidence that she was unwilling to go with the applicant and that he pulled her by the hand.

7 Five to ten minutes after that, the applicant returned to Mrs Laurie’s house and threatened Mrs Laurie that she would get what Ms Johns got, but worse. Those are the facts which comprised Count 4, threat to inflict serious injury. Mrs Laurie felt threatened and told the applicant to get off her property or she would call the police. Mrs Laurie said that the applicant also threatened to kill her and her family and to firebomb her house. Those are the facts which comprised Count 5, threat to kill.

8 The applicant left Mrs Laurie's property but returned later asking for a key to Ms Johns' house. He said that he needed the key to get his ‘stuff’ from the house. He told Mrs Laurie that he knew Ms Johns was in the house, but that he could not get in. In fact, Ms Johns was not in the house. After the applicant pulled her away from Mrs Laurie's house, the applicant and Ms Johns had both gone back to the neighbour's house at 212 Richards Street. A short time after that, Ms Johns left that house and saw the police out front of her house at 216 Richards Street. She went to them, reported the assault and, after locking her house and setting the alarm, she was taken to hospital. The applicant was at that time inside 212 Richards Street and did not see her leave with the police.

9 After asking Mrs Laurie for the key, the applicant headed off in the direction of Ms Johns' house. He also went to the house of a next door neighbour and used a neighbour’s telephone to call his father to come and get him and his belongings. Another neighbour, in Richards Street, heard the applicant yelling outside Ms Johns' house to be let in, and saw the applicant outside the house throwing things at it. Later, that neighbour and Mrs Laurie heard the house alarm go off and later still the neighbour went outside and saw the red glow of a fire at Ms Johns' house and called the fire brigade (Count 6, arson).

10 As can be seen from the photographs which were Exhibit B on the plea, Ms Johns’ house was significantly damaged by the fire. A forensic scientist who examined the house following the blaze gave evidence at the applicant’s trial that, although there was no obvious source of accidental ignition, there was nothing to suggest that there was an accidental source. The fire was likely to have started at the end of the mattress in the master bedroom, close to where Ms Johns last saw the applicant’s belongings before she left with the police to go to hospital. The applicant’s belongings were later located at the applicant’s friend's house at 212 Richards Street; and it was clear that they had not been in the fire.

11 The Crown case at trial relied on those circumstances, including the applicant’s threat to Ms Johns to trash her house if she left, to prove that the applicant set fire to Ms Johns house with the intention of damaging her property, and that he removed his own property before he did so. In view, however, of the fact that there was no one was home when he entered the property, Count 6 (arson) related only to the destruction of property.

12 Ms Johns and Mrs Laurie both made statements implicating the applicant in the arson, assaults and threats.

The facts of offending – attempting to pervert the course of justice

13 After the applicant were arrested, he was remanded in custody. While in custody he spoke often by telephone to Ms Johns. Unbeknownst to either of them, their calls were recorded. It is apparent from the recordings that the applicant and Ms Johns reached a reconciliation. As a result, she no longer wished to give evidence against the applicant. She went to the applicant’s solicitor and signed a second statement to the effect that she wished to retract her first statement. Thereafter, the applicant made a bail application using Ms Johns' second statement as a basis to submit that the case against him was not strong. That application, however, was unsuccessful. The applicant and Ms Johns then discussed the possibility of Ms Johns going to Mrs Laurie and convincing her also to make a second statement retracting her first statement. Transcripts of the relevant telephone calls were attached to the Crown opening on the plea.

14 Ms Johns did go and see Mrs Laurie, and also telephoned her on several occasions, asking her to retract her statements against the applicant. Mrs Laurie felt pressured and eventually she went to the applicant’s solicitor and made a statement in which she retracted her previous statement, albeit maintaining its truth, and indicating that she did not wish to give evidence against the applicant. The next day, however, Mrs Laurie went to the police and reported what had happened.

15 The applicant and Ms Johns were charged with attempting to pervert the course of justice. The charges were listed for trial in June 2009 at Ballarat. After some days and some discussion, Ms Johns entered a plea of guilty to the count of attempting to pervert the course of justice and gave an undertaking to give evidence against the applicant in his trial on the assault and arson charges. She was sentenced before the applicant’s trial on those charges began.

16 After the jury was empanelled in the applicant’s trial, there was some publicity in the local newspaper which compromised the evidence. The jury was thus discharged and the venue for trial was changed to Melbourne. The trial of the arson and assault charges ran from 2 July and 8 July 2009 and resulted in the applicant’s conviction of those charges. Shortly after the jury delivered its verdict, the applicant pleaded guilty, on a separate presentment, to the count of attempting to pervert the course of justice.

Application for leave to appeal against conviction

(i) Ground 1 – Conviction of Count 4 unreasonable/not supported by evidence

17 The first proposed ground of appeal is that the conviction on Count 4 (threat to inflict serious injury on Mrs Laurie) is unreasonable, in that it is not sufficiently supported by reliable evidence.

18 The Crown case at trial was that the offence was constituted of the applicant shouting at Mrs Laurie in a threatening manner that she was going to get what she deserved just like Karen [Ms Johns] but worse or that she was going to get what Karen got but worse. The applicant contends that since the injury was inflicted on Ms Johns was injury simpliciter, as opposed to serious injury, it was not possible for the jury to be satisfied beyond reasonable doubt that what the applicant threatened to inflict on Mrs Laurie was serious injury.

19 I reject the contention. The judge directed the jury on the meaning of serious injury and of the need for them to be satisfied that the applicant threatened to inflict serious injury as opposed to mere injury. Given that Mrs Laurie saw the applicant assault Ms Johns; that the applicant then threatened Mrs Laurie with ‘what Karen got but worse’; and that anything appreciably worse than was inflicted on Ms Johns was in my view bound to be serious injury, I think it plain that it was reasonably open to the jury to conclude that what the applicant threatened to visit on Mrs Laurie was serious injury.

20 Counsel for the applicant argued that, even if that were so, the evidence in support of the count was plainly too unreliable for the jury to be satisfied of the relevant facts beyond reasonable doubt. In his submission, it was attended by the following deficiencies:

1) Although other witnesses (Baden Laurie, Mr Gale and Mr Ryan) would have been within earshot of the threat, none of them gave evidence of having heard it.

2) Mrs Laurie gave evidence for the first time at trial of the following matters, which she had not previously mentioned:

a. the applicant said Ms Johns was getting what she deserved and called her a slut and such like as he punched her;

b. the applicant said he would firebomb Ms Laurie’s house;

c. after the applicant left Mrs Laurie’s house for the first time, with Ms Johns, Mrs Laurie knew they had gone to 216 Richards St, and not 212 Richards St, because she had heard the gate of 216 Richards St.

3) Ms Laurie’s account of the assault on Ms Johns’ was inconsistent with Ms Johns’ account. Ms Johns denied that she had been punched in the head but Mrs Laurie maintained that the applicant knelt on Ms Johns’ back and punched Ms Johns in the head some 10 or more times.

4) Ms Laurie’s evidence was that, after the assault, Ms Johns and the applicant walked back to 216 Richards St. But Ms Johns said that they walked in the opposite direction to 212 Richards St, and that was where Ms Johns’ blood was found.

5) At the committal hearing, when Mrs Laurie was challenged as to whether she would have been able to make the observations she claimed to have made, in view of the plum tree in her garden, Mrs Laurie wrongly recalled that the tree had been much smaller at the relevant time.

21 I do not think those criticisms to be persuasive. The limitations and inconsistencies in the evidence were exposed at trial in the course of Mrs Laurie’s cross-examination and the judge referred to them in some detail in her charge to the jury. Questions of credibility and reliability, including the assessment of competing versions of events, are pre-eminently questions for the jury. There is nothing irrational or so improbable about the jury’s conclusion in this case as to cast doubt on their assessment. It is not open to say that they must have had a reasonable doubt about it.[2]

22 Counsel for the applicant submitted that the verdicts of acquittal of Count 3 (assault on Mrs Laurie) and Count 5 (threat to kill) were inconsistent with the verdict of guilty of Count 4 (threat to inflict serious injury on Mrs Laurie), given that the threat to kill and the assault were alleged to have occurred in the course of the same sequence of events in which the threat to kill was alleged to have been uttered. In counsel’s submission, there was no rational basis for the jury to have accepted Mrs Laurie’s evidence as to Count 4 and at the same time to have rejected her testimony as to the other two counts. The fact that they had done so, he submitted, strongly implied that the verdict returned on Count 4 was a compromise verdict.

23 I am not persuaded by that either. There are a number of rational bases on which the jury might have drawn the distinction. One suggested by the Crown is that in the case of Count 3, wherein the applicant was alleged to have thrown a metal bar at Mrs Laurie’s security door, Mr Ryan who was close by gave evidence that he did not see or hear the applicant throw the bar. Contrastingly, in the case of the threat to inflict serious injury, the only witness who claimed to be in earshot, Baden Laurie heard the applicant’s and Ms Johns’ voices, albeit he could not hear what they said, and heard Mrs Laurie tell the applicant to get off Ms Johns. Another possible rational basis for the distinction is that while Mrs Laurie was consistent throughout about the threat of serious injury, she did not mention the threat to kill in her statements to police or at the committal hearing, and the bar which she said was thrown at the security door.

(ii) Ground 2 – Conviction on Count 6 unreasonable

24 Proposed Ground 2 is that the conviction sustained on Count 6 is unreasonable, because on the evidence there was a reasonable possibility that the fire originated by accident either in an electrical appliance or as a result of a dropped cigarette. Counsel for the applicant made the point that the case on arson was entirely circumstantial, comprised of:

1) the applicant’s animus against Ms Johns and his threat earlier in the day to ‘trash her place’;

2) his presence at the scene reasonably proximate in time to the fire;

3) his removal of his possessions from the room where the fire occurred; and

4) the absence of any apparent accidental cause of the fire.

25 The crime scene examiner, Ms Noble, was an expert in arson detection. She gave evidence that intentional ignition was the most likely cause of the fire. She accepted, however, that she could not exclude the real and not remote possibility of accidental ignition as a result of a malfunctioning electrical appliance independently of the applicant or a dropped cigarette or match. Her preference for deliberate ignition was objectively based on the absence of any evidence pointing firmly to an accidental cause. But she acknowledged that there was no evidence of deliberate ignition and that, if there ever had been any evidence pointing to accidental ignition by a match or cigarette butt, it could possibly have been destroyed in the fire. Counsel also relied on the fact that there was evidence that the applicant may have been affected by alcohol at the relevant time. In counsel’s submission, that made it more likely that the applicant could have unwittingly done something (such as dropping a cigarette; for he was a smoker) which started the fire. It was significant, too, counsel contended, that the applicant had not gone far after the fire – he was found asleep in his clothes at 212 Richards Street – and that, when he was found, there was no trace of accelerant found on him or his clothes.

26 It followed, in counsel’s submission, that this was a very different case to one such as Wilson v The Queen[3] or Neilan v The Queen[4] where, although the accused’s explanation of events was not accepted, there was a powerful circumstantial case supporting an inference of guilt. In contrast, counsel said, in this case the circumstantial case was relatively weak and hence the Crown failed to exclude the reasonable possibility of a cause independent of the applicant of which he was not aware and, therefore, about which he could not speak.

27 Counsel also sought to contrast this case with Plomp v The Queen,[5] on the basis that, in that case there was powerful evidence that the applicant had much to gain from the death of the deceased (his wife); that he lied about the state of their relationship before her death; and he told his new girlfriend that his wife was dead. Here, by comparison, counsel submitted, the evidence of the applicant’s ‘motive’ or more accurately, animus nocendi, was slight and that it was remote in time from the commencement of the fire. The threat to ‘trash’ Ms Johns’ house was made much earlier in the day, when Ms Johns told the applicant over the telephone of her intention to got out. He responded that: ‘If you‘re going away, I will trash your house’. As events transpired, Ms Johns did not go out. Instead she went with the applicant to 212 Richards St to drink with their friend. It was there that began the argument which culminated in the applicant’s assault on Ms Johns later at Mrs Laurie’s house. Additionally, although there was evidence of the applicant having been angry later in the evening, when he could not get back into Ms Johns’ house, in counsel’s submission, there was no evidence of any threat to property made at that later stage, and there was evidence, given by Ms Johns, that it was not unusual when she and the applicant had fought for the applicant to take his possessions and leave the house to stay with his father until the applicant and Ms Johns later made up.

28 There is some force in those submissions. Evidently, this was not the strongest of circumstantial cases of arson. Depending on the view which one takes of the evidence, one might have a reasonable doubt about the applicant’s guilt. That said, the question for this court is not whether the jury might have entertained a doubt about the applicant’s guilt but whether the jury acting rationally were bound to or must have entertained a reasonable doubt about the applicant’s guilt.[6] I do not accept that they were or did.

29 Despite the identified weakness in the Crown case, there were also some strengths in terms of the sequence and increasing violence of events over the afternoon and evening leading up to the conflagration:

1) Although the threat to trash Ms Johns’ house was in terms conditioned on Ms Johns ‘going away’ against his wishes, and at that stage she did not do so, it was open to the jury to reason that the intention to trash the house was likely to have revived if, for some other reason the applicant became displeased with Ms Johns.

2) Plainly, the applicant did become displeased with Ms Johns; so much so that he abused her and intentionally injured her and decided to move out of the house.

3) There was evidence given by Robert Gale of seeing the applicant at between 8.30 pm and 9.00 pm calling for Ms Johns to come out of the house, not knowing that by that stage she had gone to the police.

4) Mr Gale gave evidence of seeing the applicant throw two items at the house, which made a thudding sound.

5) It is apparent that the applicant thereafter got into the house: it may be inferred from the fact that he removed his clothes from it, and thus would then have realized that Ms Johns had ‘gone away’.

6) It was only 15 to 20 minutes later that Mr Gale heard Ms Johns’ house alarm and saw the house on fire.

7) It follows, therefore, that the applicant had motive and opportunity and that he was the only person in the house at or around the time it caught fire.

8) There was no evidence that he was smoking when he entered the house or began to smoke in the house. Nor was there any suggestion that he was prone when in the house accidentally to drop a butt or match. There was, therefore, nothing from which to infer, as opposed to speculate, that he may have dropped a cigarette butt or match inside the bedroom.

30 All things considered, I am not persuaded that any weaknesses as there were in the Crown case were so significant that the jury were bound to have a reasonable doubt about the applicant’s guilt.

(iii) Ground 3 – Misdirection as to the required standard of proof

31 The third proposed ground of appeal is that the judge misdirected the jury as to Count 6 by instructing them that a hypothesis consistent with innocence must have sufficient strength before there could be an acquittal.

32 In the course of directing the jury as to how to approach their consideration of Count 6, the judge said this:

Now, in this case the defence has argued that the fire may have been started accidentally and pointed to the fact that accidental causes could not be excluded by the expert, Rachel Noble. You do not need to be convinced that the fire was caused accidentally in order to find the accused not guilty. You must acquit the accused if you find this explanation to be reasonable in the light of all of the evidence, and this is because the burden is on the prosecution to exclude all reasonable hypotheses that are inconsistent with the accused’s guilt. If they cannot do so, you must give the accused the benefit of the doubt and find him not guilty.

33 A little later in the charge, her Honour added:

Just on what is reasonable, I give you the following directions. You cannot act upon some fanciful supposition or possibility that cannot reasonably be inferred from the facts you find proved. A reasonable hypothesis or explanation must possess some degree of acceptance or credibility. It must rely upon something more than mere conjecture. However there need not be positive evidence supporting that hypothesis. Even in the absence of such evidence a hypothesis may be reasonable so long as it is consistent with the evidence accepted by you. You may only consider alternative hypotheses which are consistent with the fact you find to have been established. You cannot have regard to any hypotheses or explanations which are inconsistent with the facts you have accepted.
On the other hand, the bare possibility of innocence should not prevent you from finding the accused guilty if the inference of guilty is the only inference reasonably open upon a consideration of all the facts. The mere existence of a conclusion consistent with innocence therefore will not necessarily mean that the prosecution have failed to establish its case. The existence of that conclusion might be regarded by you as of little weight in the circumstances of the case, and that is a matter for you.
You must not engage in speculation or make guesses. Although it will often be a matter of speculation as to whether one of these explanations did occur, and so you would not go down that path, there is no speculation involved in considering whether those hypotheses are reasonable possibilities, so there is a difference between considering whether the hypotheses are reasonable possibilities, and considering whether they occurred. So you may, indeed must, consider whether the hypotheses are reasonable possibilities, but you must not engage in speculation or make guesses about whether they occurred.

34 Counsel for the applicant contended that the effect of those directions, taken together with the Ms Noble’s testimony that there was no evidence of an accidental cause of the fire, was calculated to convey to the jury that they could not consider it reasonably possible that the fire started accidentally unless there was some evidence to support that proposition. Further or alternatively, in counsel’s submission, the judge thereby contravened the proscription of attempts to explain the meaning of reasonable doubt.[7]

35 I reject both contentions. The first is directly contradicted by the judge’s express direction to the jury that:

However there need not be positive evidence supporting that hypothesis. Even in the absence of such evidence a hypothesis may be reasonable so long as it is consistent with the evidence accepted by you.

36 As to the second, it appears to me that her Honour did no more than warn the jury against entertaining fanciful or unreal possibilities.[8] Possibly, it was unnecessary to do so, because it is not immediately apparent to me that there were too many fanciful possibilities that were suggested.[9] But, essentially, that was a question for her Honour. Taken as a whole, including her Honour’s summary of the evidence pertinent to Count 6, her directions cannot have failed to convey to the jury that they could not convict the applicant of Count 6 if they considered that the totality of the evidence left open an alternative reasonable possible hypothesis consistent with innocence.

Appeal against sentence

(i) Ground 1 – Finding of fact

37 The first proposed ground of appeal against sentence is that the judge erred in her findings of fact in relation to Count 1 (intentionally causing injury).

38 The judge found that the applicant punched Ms Johns. It is contended that, because Ms Johns’s evidence was that she was not punched, it was not open to the judge to find otherwise.

39 In my view that contention should be rejected. Mrs Laurie was clear in her evidence that she saw the applicant pin Ms Johns to the ground with his knee and punch her repeatedly. It was open to the judge to accept that evidence. Ms Johns was in some respects an unreliable witness who demonstrated that she was prepared to make false statements in what she conceived to be the best interests of the

39 applicant. Contrastingly, Mrs Laurie was consistent in her statements as to having seen the applicant punch Ms Johns.

(ii) Ground 3 – Parity

40 The complaint under Ground 3 is that, because Ms Johns was sentenced on the count of attempting to pervert the course of justice to 30 months’ imprisonment, of which 27 months was suspended, the sentence of three years and six months’ imprisonment imposed on the applicant on the same count offends the parity principle.

41 That point cannot be accepted either. As the judge made clear in her sentencing remarks, the disparity between the sentences was warranted for a number of reasons:

1) Ms Johns gave an undertaking to give evidence against the applicant in the trial of the assault and arson charges. That entitled her to a substantial discount on sentence to which the applicant was not entitled.[10]

2) The applicant was the principal offender. It was his idea to procure Mrs Laurie to change her evidence and the idea of it was for his benefit. The applicant preyed on Ms Johns’ vulnerability to get her to do his bidding. As the judge found, Ms Johns was vulnerable to the applicant, and her actions were very much influenced by the applicant and by Ms Johns’ need to be with the applicant.[11]

3) The applicant admitted substantial prior convictions, including convictions for offences of causing injury including serious injury, assault, threats, destroying property and arson.[12] Contrastingly, Ms Johns’ only prior convictions were for traffic offences.[13]

4) The judge expressed some reservation about the applicant’s prospects of rehabilitation dependent upon his ability to deal with his alcohol consumption and take prescription medication as required.[14] In contrast, the judge was satisfied that Ms Johns’ prospects of rehabilitation were reasonably good.

42 The differences between the respective roles and personal circumstances of the applicant and Ms Johns are such that the applicant is not entitled to feel a justified sense of grievance as to the difference between the sentences imposed on him and Ms Johns on the count of attempting to pervert the course of justice.

(iii) Ground 4 – Effects of fire

43 Under Ground 4, counsel for the applicant submitted that judge erred in sentencing the applicant on Count 6 (arson) on the basis that Ms Johns and her daughter had lost a great deal of personal property as a result of the fire.[15] Counsel argued that there was no evidence of any such damages and no victim impact statement from which it might be inferred.

44 I reject the argument. The judge noticed that a victim impact statement had not been filed, but observed that:

[I]t is clear from the depositions and the evidence I do have before me that there was considerable suffering on the part of [Ms Johns and Mrs Laurie] as a result of [the applicant’s] actions. Ms Johns suffered injuries caused intentionally by you, and she and her daughter also lost a great [sic, deal] of property as a result of the fire.[16]

45 Plainly, there was evidence the loss of property caused by the fire. The photographs of Ms Johns’ house,[17] together with Ms Noble’s evidence at trial, established that there was extensive fire and smoke damage to the house and to items of property within the house. Ms Johns also gave evidence at trial of the bedroom being burnt and the rest of the house being covered in soot. Evidently, the judge acted on that evidence in accordance with the prosecutor’s submission on the plea that, although there was no direct evidence of the value of damage to the house, her Honour should look at the photographs in order to form a view as to the extent of the damage.

(iv) Ground 2 – Forgiveness

46 Under Ground 2, counsel for the applicant submitted that the judge had given too little weight to the fact that Ms Johns had forgiven the applicant for the offences which he committed against her.

47 There is no substance in that point either. The judge expressly took into account the fact of Ms Johns’ forgiveness.[18] But she was not greatly impressed by it and, given the facts of this case, nor should she have been. As Eames JA said in R v Sa:[19]

One reason why courts do not allow the wishes of the victim to determine the sentence to be imposed is that the victim might not always be able to assess what is in his or her own best interest. For example, when considering what weight to give to factors of general and specific deterrence in a case of a woman assaulted by her partner a sentencing judge would be minded to have regard to the imperatives which might motivate a battered wife to plead for leniency towards her attacker. In such circumstances the sentencing judge might be cautious about giving undue weight to such a plea for leniency.

48 More precisely, the point of principle made in R v Skura[20] was that the fact that the victim had forgiven his attacker was capable of affecting the assessment of the gravity of the offence and of the offender’s prospects of rehabilitation. The case is not authority for the proposition that, just because a victim forgives his or her attacker, the attacker should necessarily receive a lesser sentence. The weight to be given to the victim’s attitude varies according to the circumstances of the case. As a rule, it is only in relatively exceptional circumstances that forgiveness will have a substantial effect.[21] Comparison between the facts in R v Skura[22] and the facts in this case demonstrates the point. In Skura, there was evidence (in the form of the applicant’s husband’s victim impact statement) that applicant’s offending had not affected the applicant’s husband adversely, and that the applicant’s prospects of rehabilitation were enhanced by the applicant’s husband’s willingness to assist her in dealing with her serious personality disorders. In contrast, here, there was evidence that the applicant’s offending had damaged Ms Johns and the applicant’s prospects of rehabilitation were problematic.

49 Further, to adopt and adapt Neave JA’s analysis in R v CLP,[23] it was necessary for the judge to keep in mind that there were in effect multiple victims - since the house was owned by the State; Mrs Laurie was directly injured; and Ms Johns’ daughter suffered damage to property and emotionally because of the fire. Ms Johns’ domestic relationship with the applicant was also likely to led her to support a lenient sentence.

(v) Ground 5 – Manifest excessiveness

50 Finally, under the heading of Ground 5, counsel for the applicant contended that the individual sentences, orders for cumulation and non-parole period were all manifestly excessive. Largely, however, that submission repeats the contentions of specific error which I have rejected.

51 I do not consider that the individual sentences, total effective sentence or non-parole period is manifestly excessive. One can see from the judge’s sentencing

remarks that her Honour had regard to the relevant sentencing considerations. They included the gravity of the offending, the applicant’s lack of remorse, his antecedents and the consequent need for specific deterrence, as well as the mitigative effects of Professor Crowe’s report as to the improvements in the applicant’s behavior since being placed on medication in custody, the applicant’s personal history and family background, his plea of guilty and delay.[24] There is no doubt that the non-parole period is lengthy by comparison with the total effective sentence. But it seems to me that the applicant’s prospects of rehabilitation are sufficient to warrant it.

52 In any event, in light of the many competing considerations with which her Honour was faced, and the need for her to balance them one against another, I am not persuaded that the individual sentences, total effective sentence or non-parole period are beyond the range of a sound exercise of sentencing discretion.

Conclusion

53 It follows that I would refuse the applications for leave to appeal against conviction and sentence.

NEAVE JA:

54 I agree.

SIFRIS AJA:

55 I also agree.

NETTLE JA:

56 The order of the Court is that the applications for leave to appeal against conviction and sentence are refused.

- - -

[1] Exhibit C.

[2] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596–597 [113].

[3] [1970] HCA 17; (1970) 123 CLR 334.

[4] [1992] VicRp 5; [1992] 1 VR 57.

[5] [1963] HCA 44; (1963) 110 CLR 234.

[6] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596–7 [113].

[7] Cf Dawson v The Queen [1961] HCA 74; (1961) 106 CLR 1, 18 (Dixon CJ); Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584, 595, (Kitto J) and 605 (Windeyer J); Green v The Queen [1971] HCA 55; (1971) 126 CLR 28, 31–33 (Barwick CJ, McTiernan and Owen JJ); R v Chatzidimitriou [2000] VSCA 91; (2000) 1 VR 493, 495–498 (Phillips JA); and R v Cavkic [2005] VSCA 182; (2005) 12 VR 136, 141 (Vincent JA).

[8] Cf R v Chatzidimitriou [2000] VSCA 91; (2000) 1 VR 493, 503 (Callaway JA in dissent, but not on this point); R v Hettiarachchi [2009] VSCA 270, [53].

[9] Cf R v Hettiarachchi [2009] VSCA 270.

[10] R v Johnston [2008] VSCA 133; (2008) 186 A Crim R 345, 350 [18]; R v Johns [2010] VSCA 63, [10].

[11] Sentencing remarks [32] and [40].

[12] Ibid [24].

[13] See and compare R v Johns [2010] VSCA 63, [20].

[14] Sentencing remarks [29].

[15] Ibid [18].

[16] Ibid [18].

[17] Exhibit B on the plea.

[18] Sentencing remarks [35].

[19] [2004] VSCA 182, [39] (Eames JA); see also R v CLP [2008] VSCA 113, [31]–[36] (Neave JA).

[20] [2004] VSCA 53.

[21] R v Hester [2007] VSCA 298, [9] (Chernov JA).

[22] [2004] VSCA 53, [13] (Eames JA, Buchanan JA agreeing), [48] (Smith AJA).

[23] [2008] VSCA 113, [32].

[24] See also and compare Mok v The Queen [2011] VSCA 38, [11] (Hargrave AJA).

Authorities Cited17

Referred to (17)