SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0235

GREGORY BALLANTYNE	Applicant	
		
v		
		
THE QUEEN	Respondent	

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JUDGE:	PRIEST and BEACH JA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	11 May 2020	
DATE OF JUDGMENT:	11 May 2020	
MEDIUM NEUTRAL CITATION	[2020] VSCA 115	
JUDGMENT APPEALED FROM:	DPP v Kellen (a pseudonym) [2019] VCC 1899 (Judge Smallwood)	

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CRIMINAL LAW – Appeal – Sentence – Making a threat to kill and carrying a loaded firearm with reckless disagreed for safety of persons – Applicant threatened to kill his wife – Plea of guilty – Total effective sentence four years and three months’ imprisonment with non-parole period of three years and six months – Whether sentence manifestly excessive – Whether non-parole period manifestly excessive – Whether sentencing judge erred in finding complete absence of remorse – Leave to appeal granted – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors	
			
For the Applicant	Mr P Tehan QC with 
Mr S Burt	Slades and Parsons	
			
For the Respondent	Mr P Smallwood	Ms A Hogan, Solicitor for Public Prosecutions	

Priest JA
BEACH JA:
Introduction
1	On 13 November 2019, the applicant pleaded guilty in the County Court to carrying a loaded firearm with reckless disregard for the safety of persons (charge 1), making a threat to kill (charge 2) and possessing of a drug of dependence (charge 3).  The applicant also pleaded guilty to five related summary offences, being contravention of family violence intervention order (two charges – charges 1 and 2), failing to store a category A/B long arm correctly (charge 5), failing to store category A/B long arm ammunition correctly (charge 8) and possessing a prohibited weapon (charge 9).
2	Following a plea, on 15 November 2019 the judge sentenced the applicant to be imprisoned for four years and three months, and fixed a non-parole period of three years and six months, in accordance with the following table:

Charge	Offence	Sentence	Cumulation	
1	Carrying a loaded firearm with reckless disregard for the safety of persons	18 months	3 months	
2	Making a threat to kill	4 years	Base	
3	Possessing a drug of dependence	1 month	—	
Relevant summary offences	
1	Contravention of family violence intervention order	3 months (aggregate sentence)	—	
2	Contravention of family violence intervention order			
5	Fail to store a category A/B long arm correctly			
8	Fail to store a category A/B long arm ammunition correctly			
9	Possessing a prohibited weapon			
Total Effective Sentence	4 years and 3 months’ imprisonment	
Non-Parole Period	3 years and 6 months	
Pre-Sentence detention	2 days	
Section 6AAA Statement	6 years’ imprisonment with 4 years and 6 months non-parole	
Other orders	Disposal order (drugs and baton); forfeiture orders (firearms and ammunition); forensic sample order	
3	The applicant seeks leave to appeal against sentence on three grounds:
1.	The individual sentences on charges 1 and 2 and the total effective sentence are manifestly excessive.
2.	The non-parole period is manifestly excessive and in particular:
(i) 	The ratio of 17.65% of the head sentence is manifestly low having regard to the fact that the applicant had no relevant prior convictions and his prospects for rehabilitation were relatively good;
(ii) 	The purported reason for this ratio that ‘… there is potently no remorse …’ … was not a good reason for denying the applicant a greater period of parole; and
(iii)	The learned sentencing judge erred in finding that in the circumstances there was ‘… potently no remorse …’ … .
3.	The learned sentencing judge erred in finding that there was a complete absence of remorse, and as a result the individual sentences, the total effective sentence and the non-parole period are manifestly excessive.
4	In supplementary written submissions dated 7 May 2020, counsel for the respondent fairly conceded that there ‘was an error in the non-parole period first imposed, and a different non-parole period should be imposed’.
5	We consider that the concession concerning the non-parole period was properly made, and that ground 2 must succeed.  As will appear, we are of the view that ground 3 should also be upheld in part, but that the first ground must fail.  In those circumstances, we will grant leave to appeal against sentence, allow the appeal and make orders that will result in the fixing of a new non-parole period.  The individual sentences on charges 1 and 2 (and the other individual sentences), and the order for cumulation, should, however, remain undisturbed.
The offending
6	At the time of the offending, Jodie Ballantyne, the applicant’s wife, was 46 years of age.  She and the applicant had been in a relationship for 14 years, married for 12 of those years.  Their daughter, Shani Ballantyne, was aged 13 years. 
7	The applicant’s offending had some very disturbing features.  Since it was fully described in the Summary of Prosecution Opening (‘Opening’) and in the judge’s sentencing remarks, we need not summarise it in any detail.  To emphasise the serious and worrying nature of the applicant’s principal offence, however, we have reproduced the following parts of the Opening:

5. 	At around 8:30 pm [on 9 October 2018] the [applicant] … threatened to kill himself by saying: ‘Oh well, that’s fine, I’m gonna grab the gun and shoot myself and you’re gonna watch every bit of it’.
…
7. 	The [applicant] then left the house and returned shortly after with one of his shot guns staying: ‘I told you I was serious, you are going to watch me shoot myself and kill myself’.
8. 	The victim then started screaming as she was terrified of what the [applicant] was going to do.  The [applicant] told the victim to ‘shut up’ ...
9. 	The [applicant] stood in front of the victim as she was seated in an armchair, holding the family dog.  The [applicant] held the shot gun in front of the victim and began swinging it like a baseball bat. [Charge 1 – Carrying a loaded firearm in a place with reckless disregard for the safety of another]
10. 	The [applicant] then turned the shot gun around and pointed it to his head saying: ‘How would you like me to do it?  How would you like to see it done?’  The [applicant] then pointed the barrel of the gun under his chin, then pointed it to his heart and said: ‘Maybe I just do it this way’.
11. The [applicant] then turned the gun around and pointed to the victim’s forehead, touching the victim’s forehead with the end of the barrel.  The [applicant] kept yelling at the victim saying that he is not being appreciated and that the victim does not know how hard it is to live with depression and anxiety.
12. 	The [applicant] then dug the gun in the victim’s eye socket pushing it in causing the victim pain.  The victim stated: ‘While this went on, I remember Greg saying things like he wanted to kill me slowly, so I can feel the pain that he feels with the depression and break me slowly.  All I could really think about was the rifle being put between my eyes and I was crying and pleading with him to stop’.  [Charge 2 – Making a threat to kill]
13. 	Whilst this was taking place the victim was looking straight at the TV as she was scared to look at the [applicant].  The [applicant] then turned around and fired one shot into the TV causing it to break.
14. The [applicant] then removed the magazine from the firearm and said to the victim: ‘1 down, [nine] to go’ and then the [applicant] said: ‘I told you I’m serious’ before placing the loaded magazine back in the gun and pointed it back to the victim’s head.
15.  This incident took around [three] hours where the victim was not allowed to go anywhere. ...
8	The Opening states that the applicant was interviewed on 14 November 2018, and describes the interview in the following terms: 
22.	During the interview, the [applicant] made full admissions to not storing the three firearms and ammunition in a correct manner.  The [applicant] made full admission to being in possessions of the 28 pink tables which he stated are ecstasy pills.  The [applicant] stated he uses the ecstasy as it makes him feel good.  The [applicant] made full admissions to possessing the extendable baton.  In relation to the Family Violence incident the [applicant] stated that he does not remember the incident and that all her [sic] remembered was a loud bang.  The [applicant] stated he suffers from severe depression and anxiety.
Ground 3: Judge’s finding of an absence of remorse
9	It is convenient to turn first to ground 3, which in effect asserts that the exercise of the sentencing discretion was infected by the judge’s finding that there was a complete absence of remorse (resulting in a manifestly excessive sentence).  
10	In a report dated 2 August 2019, Dr Simon Kennedy, a clinical and forensic psychologist who had assessed the applicant, said:
I have read the Summary of Prosecution Opening.  Obviously, this matter is for the Court, however the prosecution’s account of the incident differs with that of Mr Ballantyne with the primary issue being that Mr Ballantyne’s account is that he threatened self-harm with the gun whereas in addition, the prosecution’s opening outlines the alleged events, being that he threatened to shoot his partner, over a period of some three hours.
Mr Ballantyne has indicated that he does not remember much of the incident in question.  My understanding is that Mr Ballantyne is pleading guilty to two charges at least.
11	This part of Dr Kennedy’s report engaged the attention of the sentencing judge, so that, in the course of the plea, there was the following exchange with the applicant’s counsel:
[COUNSEL]:  … he doesn’t remember much of the incident in question.
HIS HONOUR:  Yes, well - - -     
[COUNSEL]:  It’s - - -  
HIS HONOUR:  Yes, that’s what he says, yes.  But he’s traversed – essentially that traverses the plea though.
[COUNSEL]:  Yes, I accept it does.
HIS HONOUR:  You’re not.  No, you’re not - - -     
[COUNSEL]:  No.
HIS HONOUR:  - - - I make that very clear, but he is.
[COUNSEL]:  It’s certainly the - - -     
HIS HONOUR:  And it doesn’t help you a lot in the remorse stakes, that’s for sure.
[COUNSEL]:  No - - -      
HIS HONOUR:  Other than the plea of guilty, there’s no evidence of remorse, is there?
[COUNSEL]:  No.
HIS HONOUR:  No.
[COUNSEL]:  No, and I - - -     
HIS HONOUR:  No, just none.
[COUNSEL]:  No submission made to that.
HIS HONOUR:  No.
[COUNSEL]:  The only explanation I can proffer is - - -     
HIS HONOUR:  We don’t – look, there isn’t – it doesn’t aggravate the situation.  I just wanted to – again, natural justice, [Counsel].  I’m just      
[COUNSEL]:  Thank you, Your Honour. …
12	We do not agree that the applicant’s claim of amnesia ‘traverses the plea’.  For the purposes of charge 2, the applicant’s plea of guilty involved acceptance that he had made a threat to his wife to kill her, intending that she would fear that the threat would be carried out.  Whether or not the applicant’s claimed lack of memory was true, in no sense did it go against his admission of the elements of the offence constituted by the plea of guilty.  It is probable that the judge’s contrary view influenced the manner in which he assessed the issue of remorse. 
13	In his reasons for sentence, the judge said:
You are now 48 years of age.  You pleaded guilty to these matters at a reasonably early opportunity and you must get the utilitarian benefit of that.  In these circumstances, as your counsel conceded the other day during the course of the plea, there is absolutely no remorse.  That is not an aggravating feature.  It simply means that you do not get the benefit of one in these circumstances.  It could have been very strong mitigatory material.
14	After referring to another passage of Dr Kennedy’s report, which recounted the applicant’s assertion that he has never threatened to kill his wife, and that his intention was to shoot himself, the judge stated:
That is palpably untrue and simply makes very clear the total absence of remorse in this situation. … 
15	When dealing with the circumstances of charge 2, the judge said:
… You had the means and ability to carry out that threat in an instant and indeed fired a shot during the course of it all.  It is a, as I have already indicated, a very serious example of threat to kill.  One can always think of worse examples but in this particular situation, with the total absence of remorse, it is difficult to actually come up with one.
16	Finally, in a passage which is relevant to the conceded ground of appeal, when giving his reasons for fixing the non-parole period, the judge said:
I direct in these circumstances where there is potently no remorse, that you serve a minimum term of three and a half years before becoming eligible for parole.  
17	It seems clear from Dr Kennedy’s report — Dr Kennedy had administered a battery of well-accepted psychological tests — that the applicant has had a long history of depression and alcohol abuse, having ‘suffered from a major depressive disorder from at least his late teens or early 20s on an intermittent basis’.  He had made a number of suicide attempts.  Over the years the applicant had received clinical psychology treatment and anti-depressant medication.  He had also ‘other drugs such as Ecstasy and other prescription drugs to self-medicate in an unhelpful manner’.  Dr Kennedy considered the risk of suicide to be more significant than family violence.  Importantly, in the ultimate paragraph of his report, Dr Kennedy expressed the view that the applicant
presents with appropriate insight and commitment to make improvements and has already ceased alcohol and prescription medication. These factors would also be a necessity and should remain abstinent from alcohol and drugs.  This may require separate counselling.
18	In our opinion, the judge’s categorical findings that there is ‘absolutely no remorse’, a ‘total absence of remorse’ and ‘potently no remorse’, does not sit comfortably with the applicant’s guilty pleas — which were entered early — or with Dr Kennedy’s view that the applicant ‘presents with appropriate insight and commitment to make improvements and has already ceased alcohol and prescription medication’. 
19	Notwithstanding the sentencing judge’s emphatic and uncompromising view, we consider that there was some evidence of remorse to be drawn from the early pleas of guilty, and from the applicant’s insight and incipient commitment to reform.  To that extent, the first part of ground 3 — that the sentencing judge ‘erred in finding that there was a complete absence of remorse’ — is made out.  The second part of the ground — that ‘as a result the individual sentences, the total effective sentence and the non-parole period are manifestly excessive’ — presents greater difficulty.  As we will discuss under cover of the first ground, we consider the contention that the individual sentences and the total effective sentence are manifestly excessive to be unsustainable.  On the other hand, we consider that the contention that the non-parole period is manifestly excessive is made out (so much, as we have said, being conceded by the respondent).
Ground 1: A manifestly excessive sentence
20	It is convenient next to consider ground 1.
21	Despite the manner in which the first ground was formulated, in supplementary written submissions dated 8 May 2020, counsel for the applicant submitted that, save for the sentence on charge 2, it was not proposed to submit that the individual sentence on any charge is manifestly excessive.  That was a realistic approach, particularly given that we consider the sentence imposed on charge 1 to be lenient, and the cumulation ordered to be moderate.
22	For the reasons that we will develop, we consider that the sentence on charge 2 is not manifestly excessive.  In our opinion, it is well within the range of sentences open in the sound exercise of discretion.
23	In their submissions, counsel for the applicant emphasised that, despite the applicant’s plea of guilty, the sentence on charge 2 represented forty per cent of the available maximum penalty.  Apart from Morin — in which there had been a plea of not guilty — there was no other case in which an offender had been sentenced to four years’ imprisonment for making a threat to kill.  Moreover, sentencing statistics reveal that, in the years 2009–10 and 2013–14, only one person was sentenced to three years’ imprisonment for making a threat to kill, the most common length of imprisonment imposed being less than one year.
24	Further, counsel submitted that the applicant, who had left school at age 16 and who had principally worked in dairies, had only one (irrelevant) prior court appearance.  The applicant was diagnosed with long-term mental health problems from his teenage years — mainly depression and anxiety — with related suicidal ideation.  In the time shortly before the incident, counsel submitted, the applicant had deteriorating mental health, and there had been acute stressors on his relationship with his wife (including financial problems and allegations of infidelity).  A major motivator of the applicant’s conduct was his (irrational) intention to kill himself so as to make his wife appreciate the depth of his depression and anxiety.  Moreover, the applicant had pleaded guilty early, in circumstances where any trial essentially would have boiled down to word against word.  He had good prospects of rehabilitation.  Finally, counsel submitted that the applicant’s mental condition would make imprisonment more burdensome.
25	Although, of course, it is always possible to imagine worse examples, the conduct founding charge 2 constituted a very serious example of the offence of making a threat to kill.  Whilst he dug the gun into his wife’s eye socket — as she cried and pleaded with him to stop — the applicant told her that he wanted to kill her slowly.  Shortly afterward, he shot the television, before once more putting the gun to his wife’s head, threatening to shoot her.  Unsurprisingly, the applicant’s wife — who was entitled to feel safe in her own home and to look to the applicant for protection and comfort — said in her victim impact statement that the applicant’s
actions to taunt me over a period of hours whilst holding a gun lead me to feel absolutely terrified, vulnerable, helpless and physically and emotionally exhausted.  [His] actions made me feel I had no control over the situation and I honestly felt that this was the night he would take my life as he threatened to kill me.
26	Balancing the seriousness of the applicant’s offence against the mitigating features, we are not persuaded that the sentence imposed on charge 2 is anything other than proportionate to the gravity of the applicant’s offending.  And as we have said, not only are we not persuaded that the sentence on charge 2 is manifestly excessive, but we are of the view that the order for cumulation (and thus the total effective sentence) cannot be said to be manifestly excessive.
27	On the assumption, however, that it might sensibly be argued that the sentence of four years’ imprisonment imposed on charge 2 does not accord with current sentencing practices, it does not automatically follow that the sentence is manifestly excessive.  As Gageler and Gordon JJ made clear in Dalgliesh, current sentencing practices do not set boundaries on the sentence that a court may reasonably impose.  They observed:
The approach to current sentencing practices described by the Court of Appeal appears to have originated in its decision in Director of Public Prosecutions v CPD.  The approach was adopted in the present case before the decision of this Court in R v Kilic.  It manifests the error identified in Kilic of treating current sentencing practices as fixing quantitative boundaries within which future sentences were required to be passed.
Section 5(2)(b) [of the Sentencing Act 1991] does not in terms provide that current sentencing practices set boundaries on what a court may reasonably impose as a sentence.  The court must have regard to current sentencing practices, as well as every other matter listed in s 5(2).  Current sentencing practices stand in the same position as every other matter listed in s 5(2).  There is nothing to suggest that current sentencing practices should be treated in a conceptually different manner from any of the other listed matters.  Of course, an express purpose of the Sentencing Act is to promote consistency of approach in the sentencing of offenders, to which the requirement in s 5(2)(b) may contribute.  But that purpose, which reflects the well-recognised importance of consistency in the application of sentencing principles, provides no basis for treating s 5(2)(b) as though it were a statutory command to sentence within a ‘band’ derived from current sentencing practices.
Sentences are not binding precedents, but are merely ‘historical statements of what has happened in the past’. …
28	Bearing in mind both the observations in Dalgliesh concerning current sentencing practices and the limitations of so-called comparable cases and statistics, it seems clear enough that the sentence imposed on charge 2 is more lengthy than the general trend of sentences for the offence of threat to kill imposed in other relatively recent cases.  Every case must, however, turn on its own facts.  Sentences in comparable cases (so-called) are not precedents which must be applied unless capable of being distinguished.  Even were the sentence imposed in this case on charge 2 — by comparison with sentences imposed in other cases — to be considered stern, we consider that it punishes the applicant to an extent and in a manner which is just in all of the circumstances.
29	Ground 1 cannot be upheld.
Ground 2: An excessive non-parole period
30	In Power, it was said that the purpose of fixing a non-parole period is
to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence. 
31	As Winneke P said in Mulvale, the fixing of a non-parole period requires
discrete consideration of those factors which exist in the material before the court which bear upon the question of when the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision.
32	In supplementary written submissions, counsel for the respondent submitted that, in circumstances where the applicant entered an early guilty plea, and had no relevant prior convictions, the judge erred in fixing a non-parole period of the length that he did.  It was fairly conceded that the sentencing judge’s finding ‘that the applicant was not remorseful did not justify the imposition of such a relatively high non-parole period’.  We agree.
33	The non-parole period fixed by the sentencing judge must be set aside.  Having due regard to the principles that inform the fixing of a non-parole period, we would substitute a period of two years and six months for that first imposed.  In light of the applicant’s mental health, and his difficulties with alcohol and drugs, it is in the community’s interest that he have available to him the opportunity of an extended period on supervision on conditional release. 
A further matter relating to the recorded orders
34	The Record of Orders signed by the judge on 15 November 2019, purports that, as part of the aggregate sentence imposed on the summary charges, the applicant was convicted and sentenced on summary charges 6 and 7.  Summary charges 6 and 7 were not, however, before the judge, the Notice of Related Summary Offences under s 145 of the Criminal Procedure Act 2009, dated 7 May 2019, transferring only summary charges 1, 2, 5, 8 and 9.
35	We will therefore make an order amending the record of Orders, deleting reference to charges 6 and 7.
Conclusion
36	We would grant leave to appeal and allow the appeal.  The non-parole period fixed by the sentencing judge should be set aside and in lieu a period of two years and six months fixed.  Further, the Record of Orders should be amended to delete the references to summary charges 6 and 7.  All other orders of the County Court should be confirmed.  
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