and Travis Raymond Bowling v The Queen

[2013] VSCA 248

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0276
TRAVIS RAYMOND BOWLING	Appellant
v
THE QUEEN	Respondent

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JUDGE	REDLICH and COGHLAN JJA and DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 August 2013
DATE OF JUDGMENT	12 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 248
JUDGMENT APPEALED FROM	Director of Public Prosecutions v Bowling (Unreported, County Court of Victoria, Judge Hogan, 16 December 2011)

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CRIMINAL LAW – Intentionally cause serious injury – Judge impermissibly enlarging Crown case as to the nature of the serious injuries – Evidence insufficient to establish ‘serious’ injury – Conviction quashed – Conviction for lesser offence of intentionally causing injury entered – Section 277 of the Criminal Procedure Act 2009.

CRIMINAL LAW – Sentence for intentionally causing injury – Victim who came to aid of another kicked to the head whilst on the ground – Sentence of 18 months’ imprisonment – Total effective sentence of four years and four months – Non-parole period of two years and three months.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Victoria Legal Aid
For the Respondent	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

1. Following a trial the appellant was convicted on 29 November 2011 on two charges of intentionally causing serious injury.  On each charge he was sentenced to three years and six months’ imprisonment, an order for cumulation of two years and six months being made on the second charge.  The appellant was therefore required to serve a total effective sentence of six years’ imprisonment.  A non‑parole period of four years’ imprisonment was ordered.[1]

   [1]DPP v Bowling (Unreported, County Court of Victoria, Judge Hogan, 16 December 2011).

1. On 19 March 2013 I granted the appellant an extension of time within which to file notices of appeal against his conviction and sentence on the second charge.  I granted leave to appeal against his conviction on the following ground:

The learned trial judge erred in directing the jury that they could take into account Ron Barassi's problems with memory when considering whether he had suffered a ‘serious injury’.

1. I also granted the appellant leave to appeal against his sentence on two grounds:

(1)The learned sentencing judge erred in the application of the totality principle.

(2)       The sentence imposed was manifestly excessive.

1. I refused the appellant leave to appeal against his conviction on the following further ground:

The guilty verdict of the jury on charge 3[2] is unsafe and unsatisfactory in that a jury acting reasonably could not exclude the possibility that persons other than the appellant were responsible for some or all of the injuries that were said in combination to amount to it a 'serious injury'. 

[2]Charge 3 is for present purposes the second charge.  The jury were not required to return verdicts on charges 2 and 4.

1. The appellant filed a Notice of Election in relation to this ground but at the commencement of the appeal, abandoned that application.

1. On the day prior to the hearing of the appeal, the Crown informed the Appeal Registry in writing that it conceded that the error alleged under ground 1 was made out, that the appeal against conviction should be allowed, the conviction on the second charge be set aside and that pursuant to the power under s 277(1)(c) of the Criminal Procedure Act 2009 a conviction for the lesser alternative offence of intentionally causing injury be entered.  These concessions should all have been made on the leave application. 

1. I turn to a summary of the facts.  At midnight on 31 December 2008, there were firework celebrations on the foreshore at St Kilda.  After the fireworks had finished, there was a significant flow of pedestrian traffic away from the beach to Fitzroy Street.  Tessa Green, the victim on the first count on the indictment, was in the back seat of a car that was stopped at a pedestrian crossing on The Esplanade, St Kilda.  She was in the car with two friends.  The lights were in their favour but they were unable to drive through the intersection because pedestrians were crossing the road against the lights.

1. As they waited, Ms Unwin, one of the passengers, made a comment to pedestrians that they should move out of the way.  One of them responded by saying, ‘Get fucked, you sluts’.  A male from the group then jumped onto the bonnet of the car and someone threw a bottle containing liquid into the car. 

1. The two passengers alighted and followed the man who had thrown the liquid.  One of the passengers, Ms Kelly, was pushed and kicked to the ground. 

1. At this point, Tessa Green attempted to intervene and assist her friend.  She approached the person whom she had seen kicking her friend and said, ‘What are you doing?’.  Following this, Ms Green's hair was pulled by a woman with dark long hair, and Ms Green hit the woman in self‑defence.  The appellant, who was standing behind Ms Green, then struck her to the left side of her face with a closed fist (charge 1).  As Ms Green fell to the ground, she hit a chair occupied by Cheryl Barassi.  Ms Barassi, her husband, Ron Barassi, his cousin, Kenneth Barassi and another friend were seated at a table outside Santos on Fitzroy Street. 

1. Mr Barassi saw the blow to Ms Green's head, Ms Green falling to the ground and the appellant moving away.  He stood, and within seconds began to chase the appellant up Fitzroy Street, away from the beach.  Mr Barassi tackled the appellant to the ground.  They both landed on the ground.  A number of other young men began to kick Mr Barassi.  The appellant got up, turned to Mr Barassi and kicked him to the head a number of times (the second charge).

1. The assault continued until one Boris Kanter, the owner of a nearby bar, intervened.  The appellant then ran off up Fitzroy Street.

1. Mr Barassi was assisted back to his table and was attended by family who gave him ice for his injuries and he went home.  He attended at the Cabrini Hospital the next day, complaining of shoulder pain and reported that he believed he had been kicked in the head.  A CT scan of his head showed no internal bleeding.  He suffered bruising to the left temporal region, bruising around the left eye and behind his left ear extending down to the left side of his neck, and bruising and swelling to the right cheek.  He also had haemorrhaging and bruising into the right shoulder which likely resulted when he fell to the ground.

1. Ms Green suffered a fractured eye socket and a fracture towards the top of the nose and required surgery to reconstruct the orbital cavity with an implant.  She suffered bruising and swelling around the eyes and reduced visual acuity of the left eye.

1. There were two principal defences pursued at trial concerning the second victim, Mr Barassi.  First, the identity of the person who kicked Mr Barassi in the head was disputed.  Secondly, it was submitted that the injuries which Mr Barassi sustained to the head were not serious injuries. 

1. On the leave application I said that it seemed clear that the trial judge, in directing the jury as to what would constitute serious injury, instructed the jury that serious injury would include psychological injury, and in that context referred to the evidence of Mr Barassi that he had had difficulties with his memory since the assault. 

1. Her Honour told the jury: 

As I have said, you're entitled to take into account the combination of injuries to the head as you find them to be as well as any psychological impact if you find it attributable to those injuries.  You'll bear in mind that the evidence before you from Dr Jansen was that at the time of the injury Mr Ron Barassi was a 72‑year‑old man with a history of irregular heartbeat for which he was on Warfarin and you will bear in mind that Mr Barassi says that his memory has suffered as a consequence of this attack.

1. Her Honour earlier said to the jury that ‘injury includes psychological injury or impairment which may have arisen.’ 

1. Then her Honour whilst reciting the evidence of a critical Crown witness, added the observation: 

There is no need for me to tell you that the brain is inside the head.  You are entitled to use your commonsense and experience.

1. In a report to the Court the trial judge advised that a copy of those directions was given to the jury on the second day of its deliberations.

1. Obviously, if the Crown was relying upon the victim's loss of memory as an injury, it would have been necessary to call evidence establishing a causal connection between the appellant’s conduct and that loss of memory.  No such evidence was adduced.  It was not the case which the prosecution was seeking to mount during the trial. 

1. On the hearing of the appeal the Crown confirmed its written concession made the previous day that ground 1 had been made out. It accepted that her Honour's direction would have been understood by the jury as enlarging the scope of the serious injury upon which the prosecution relied and that loss of memory was not part of the Crown case. That concession was correct. It also conceded that the evidence did not establish that any loss of memory by the victim was a consequence of the assault. That concession was also correct. Finally, the Crown confirmed its concession that the conviction for intentionally causing serious injury could not stand as the injuries sustained by the victim were not ‘serious’ within the meaning of s 16 of the Crimes Act 1958.  It submitted that a conviction on the lesser offence of intentionally causing injury should be entered.  The appellant concurred in that proposal.

1. I agree that the orders now proposed by the parties will correctly reflect the state of the evidence at trial.  The appeal against conviction should be allowed, the conviction quashed and in lieu thereof a conviction for intentional causing injury be entered.

1. I turn then to the appeal against sentence.  As the appellant is now to be sentenced for a lesser offence the Crown rightly concedes that the sentencing discretion must be re-opened and that a sentence less than that previously imposed on the second charge now be fixed.   

1. The appellant has not sought to challenge the sentence on the first charge, it being a sentence that was well within the discretion of the sentencing judge for what was very serious assault.  He seeks to have a sentence now imposed on the second charge which reflects the fact that it was a lesser offence than the first charge and that he is no longer to be sentenced as a serious offender.  Attention was drawn to the sentencing statistics which show that the median sentence for the offence of intentionally causing injury in the higher courts is 12 months’ imprisonment.  While it is accepted that an order for cumulation is necessary, it should be one that will produce a total effective sentence that will not infringe the principle of totality.  He submits that the two assaults should be viewed as part of one transaction.  But as this Court has repeatedly stated, notwithstanding that the course of criminal conduct spanned only a short space of time, separate sentences must be imposed and an order for cumulation made which reflects the fact that there were multiple victims.  And where within the course of conduct there are discrete acts constituting separate offences or resulting in separate victims, the sentences must adequately reflect those matters.

1. The appellant is now 30 years of age.  As the sentencing judge found, he had a quite dysfunctional family life as a child, an absent father and a mother suffering from a bipolar disorder and depression.  Her Honour did not accept the evidence of a forensic psychologist, called on the plea, that the appellant suffered from a dysthymic disorder but did accept that his dysfunctional background had caused psychological damage including anxiety and distress and some degree of mood disturbance which had been aggravated by drug abuse.  She accepted that these problems would make prison more burdensome for the appellant.

1. The appellant has some prior convictions for violence arising from drug use but has never previously been sentenced to a term of imprisonment.  The sentencing judge was guarded concerning the appellant’s prospects for rehabilitation, partly because the appellant had shown no remorse and limited insight into his offending and had done little to address his substance abuse.  Her Honour considered that until he had a prolonged period of abstinence from deleterious substances he would not address his psychological issues.

1. At the time of hearing the appeal he had been in custody for some 21 months.  We were informed that he was about to successfully complete an anger management programme and had been participating for two months in a methadone programme to address his heroin addiction.  The Crown accepted that the appellant has now taken some steps towards rehabilitation

1. Those who come to the assistance of others are entitled to the full protection of the law.  An assault caused by kicking to the head of the victim whilst he was on the ground and being kicked by others is a serious example of the offence of intentionally causing injury.  The appellant is fortunate that Mr Barassi did not sustain more serious injuries.  Taking account of the matters in mitigation to which I have already referred, the delay, now almost five years, in the resolution of these matters, and having regard to the need to fix a sentence which in accordance with the principle of totality properly reflects the overall criminality of the appellant, I would impose a sentence of 18 months on the second charge.  I would order that

10 months of that sentence be cumulated on the sentence on the first charge making a total effective sentence of four years and four months.  I would fix a period of two years and three months before the appellant is eligible for parole.

COGHLAN JA:

1. I have had the advantage of reading the draft reasons of Redlich JA and agree that the appeal against conviction should be allowed and the conviction quashed.  I also agree that a conviction for intentionally causing injury should be entered in the records of the court and the appellant re-sentenced as proposed by his Honour.

DIXON AJA:

1. I have had the advantage of reading in draft the reasons of Redlich JA.  I agree, for the reasons that he gives, that the appeal against conviction should be allowed, the conviction quashed and in lieu thereof a conviction be entered for intentionally causing injury.  I also agree that the appellant should be re-sentenced as his Honour proposes.  

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