Barlow v The Queen

[2012] VSCA 37

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0270

DARREN MICHAEL BARLOW
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WARREN CJ and HARPER JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 February 2012
DATE OF JUDGMENT:	29 February 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 37
JUDGMENT APPEALED FROM:	DPP v Barlow (Unreported, County Court of Victoria, Judge Dean, 3 October 2011)

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CRIMINAL LAW – Appeal against sentence – Appellant punched victim in face fracturing eye socket and cheek bone – Appellant kicked feet of second victim from under him, causing victim to fall – Appellant pleaded guilty to one count of recklessly causing serious injury with respect to first victim and one count of assault with respect to second victim – Appellant sentenced to total effective sentence of 2 years and 3 months with a non-parole period of 12 months – Whether sentence of 6 months’ imprisonment with 3 months cumulation in respect of assault count manifestly excessive – Whether sentencing judge erred in failing to consider remorse at time of sentence rather than during period immediately following commission of offence – Appeal allowed – Appellant resentenced to 2 years’ imprisonment with a non-parole period of 9 months – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms C A Boston	Haines & Polites
For the Respondent	Mr M Roper	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

1. The appellant pleaded guilty in the County Court at Melbourne to one charge of recklessly causing serious injury and one charge of common assault.  He was sentenced as follows:

Count	Maximum Penalty	Sentence	Cumulation
1.        Recklessly causing serious injury	15 years	2 years	Base
2.        Assault	5 years	6 months	3 months

Total effective sentence:	2 years and 3 months
Non-parole period:	12 months
6AAA declaration:	TES of 3 years with NPP of 18 months

1. The facts may be briefly stated.  On 23 December 2009, the appellant, then aged 25, attended the Mordialloc Sporting Club.  The two victims of his offending had been drinking at that location for some time.  One of them, Tristan Rowe, had been ejected from the premises because he was intoxicated and had been racially abusing a member of staff.

1. Mr Rowe and the other victim, Simon Lodge, were standing on the footpath outside the premises when they made some comment about the appellant’s girlfriend which he regarded as insulting.

1. It is unclear to us as to what was said, indeed the same prevailed before his Honour, the sentencing judge. 

1. The appellant was unable to recall what was said and there was no other evidence, for example, from the appellant's girlfriend, if indeed she had heard what was said.

1. In any event, the appellant then attacked Mr Rowe, punching him to the face with his right hand causing him to fall to the ground and lose consciousness.  The attack was a savage attack. 

1. The appellant then turned to Mr Lodge and asked him if he ‘wanted a go’.  Mr Lodge adopted a defensive stance at which point the appellant kicked Lodge's feet out from under him, causing him to fall heavily to the ground.  Meanwhile Mr Rowe lay unconscious on the ground.  He sustained multiple fractures to the eye socket and cheekbone and swelling over the left cheek.  He subsequently, a few days later, underwent surgery at the Monash Medical Centre and had two plates and 13 screws inserted into his eye socket and cheek. 

1. Mr Lodge was not injured save for a graze to the left elbow, some soreness to the left hip and a small graze to the right elbow.  There were no victim impact statements filed with the Court.

1. On 28 December 2009, hence only a few days after the offending, the appellant and his girlfriend left Australia on a pre‑planned trip to Asia.  Indeed, the trip had been planned for some time.  They were away for the best part of a year.  When the appellant returned, he was arrested and charged.

1. The appellant contested the original charges at committal, it seems on the basis of identification.  Ultimately he pleaded guilty.

1. The sequence of events was that the committal occurred on 4 July 2011, a directions hearing was held on 14 June 2011, the plea was entered on 25 July 2011, that is three months after the committal hearing.  We were not informed as to when the first charge was altered from intentionally causing serious injury to recklessly causing serious injury.

1. In any event, ultimately the appellant pleaded guilty.  He now appeals his sentence, leave having been granted by Weinberg JA.  He relies upon two grounds, namely that the sentencing judge erred in failing to find that he was remorseful or in finding that he was remorseful only to a limited degree (Ground 1) and that the sentence imposed on Charge 2 and/or the order for cumulation were manifestly excessive (Ground 2).

1. In his sentencing remarks, his Honour considered but rejected a submission to the effect that the appellant was genuinely remorseful for what he had done.  His Honour observed that that submission had to be considered in the context of the fact that the appellant took no steps to discover whether the victim, Mr Rowe, had been seriously injured or not.  His Honour referred to the fact that the appellant had gone overseas within a few days of the commission of these offences and that during that period of about a year, he had taken no steps to establish whether or not Mr Rowe was seriously injured.

1. I interpolate at this point that we face some difficulty as to the attitude of the appellant with respect to the matter of remorse immediately after the offending and the fact that he went overseas without making inquiries of the victim, Mr Rowe.  It would have been easy enough for the appellant to have been called to give direct evidence on the plea as to the state of mind that endured at that time.  For example, it may well have been the case that the appellant went overseas and simply hoped that all of this would blow over and nothing would come of it.  Nevertheless, that was not the case.  So far as we are concerned, we are left in the dark in this regard.

1. In any event, the learned sentencing judge said in relation to remorse: 

Whilst your plea of guilty may demonstrate remorse to a limited degree, I do not accept that you were genuinely remorseful for you [sic] conduct immediately following it.

1. It was noted in argument on behalf of the appellant, both written and oral, that during the course of the plea his Honour observed:  ’There is no remorse’.  Indeed there was an exchange to some limited extent between his Honour and counsel appearing for the appellant on the plea.  Regrettably the discussion did not proceed far enough.  Further, it would have been desirable if counsel had stressed the position and assisted his Honour with greater clarification as to the position with respect to remorse.

1. In any event, it was submitted before us that this remark, in conjunction with what the learned sentencing judge said in his sentencing remarks, implied that his Honour had either misunderstood the evidence before him or adopted an incorrect approach to the question of remorse which had to be considered at the time of the sentence and, indeed, not in the days immediately following the event.

1. There was evidence led on the plea to the effect that the appellant was genuinely remorseful.  Mr Peter Buck, the father of the appellant's girlfriend gave evidence of a number of conversations that he had had with the appellant regarding the offences and testified that the appellant felt sorry for the person he had injured and had a better insight into his own behaviour.

1. There was also evidence from the forensic psychologist, Ian Joblin, in which he expressed the very firm opinion that the appellant was contrite and that his remorse appeared sincere.  However, in a case such as this, again, I interpolate, it would of far more relevance and practical effect if direct evidence was given to the sentencing judge expressing remorse and how it has manifested.

1. The learned sentencing judge made no reference in his sentencing remarks to any of the evidence of Mr Buck or Mr Joblin regarding remorse.  It was submitted that this was no accident but that his Honour had been so influenced by the appellant’s conduct in the days immediately following the offences that he had lost sight of the important question, which was whether at the time of the plea, the appellant was truly remorseful. 

1. There is no explanation for the omission by the sentencing judge.  We simply do not know whether his Honour took the evidence into account or rejected it and, if so, for what reasons.

1. Counsel for the appellant referred us in particular to R v Cleary [2004] VSCA 14, in which Winneke P, observed at [12]:

The remorse which had been demonstrated by the offender at the time of sentence is the factor which is relevant to the sentencing process.

1. In my opinion, error occurred in the non consideration of the evidence of Mr Joblin and Mr Buck.  It is clear that there was remorse on the part of the appellant.  On the basis of the way the remorse was dealt with in the sentencing reasons, I conclude these matters were not considered or not adequately considered.

1. In my opinion there was error and Ground 1 is made out.

1. The sentencing discretion is therefore reopened.

1. Insofar as it is necessary, I turn then to Ground 2. 

1. The sentence of six months’ imprisonment for kicking Mr Lodge’s feet out from under him or perhaps more accurately tripping him, was certainly stern.  It was argued in the particular circumstances of this case, that no sentence of actual imprisonment was warranted for that offence.  However, it was, as I have observed, a savage attack.  It occurred immediately after an extremely violent attack on the other victim, Mr Rowe.

1. Having had the benefit of viewing the CCTV evidence, in my opinion it was violent conduct on the part of the appellant which warranted a custodial sentence with respect to the second charge. 

1. However, self evidently, in my view, there should have been no cumulation ordered in respect of Charge 2.  The whole incident involving both victims was over in seconds.  The main or principal offending related to the victim Rowe.  The imposition of the order for partial cumulation rendered the sentence on charge 2 manifestly excessive.  In my opinion, Ground 2 is made out with respect to the cumulation order. 

1. To recapitulate, the offending with respect to both charges involve serious offending, particularly Charge 1.  Accordingly general deterrence is a significant feature in this matter.  A strong message needs to be conveyed to the community that violence of the nature perpetrated by the appellant in this case, particularly against the victim, Mr Rowe, will not be tolerated.

1. There are mitigating circumstances with respect to the appellant.  Significantly, he pleaded guilty and, it would appear, at a reasonably early opportunity once the main charge against him was finally known and determined.  Furthermore, and again significantly, as his Honour the learned sentencing judge observed, the appellant has good prospects of rehabilitation.  He has a strong employment history in the building industry.  He is in an established relationship.

1. In my view, the appellant has demonstrated remorse.

1. As I indicated, whilst he went overseas, we do not know the state of his mind at the time.  Nevertheless, on his return, especially on the basis of the evidence of Mr Buck, he has been remorseful.  This is borne out in part by the early plea of guilty, as I say, once the charge was clarified.

1. The appellant has what might be described as a comparatively minor criminal history, most of which was perpetrated in his teenage years.  He does provide good prospects for rehabilitation.

1. Weighing these matters up and in particular given the gravity of the offending the subject of Charge 1 and the need for general deterrence, I would not impose a different sentence on that charge. 

1. In the circumstances of the appellant, I would also not impose a different sentence on Charge 2.  However I consider it should be wholly concurrent for the reasons already expressed.

1. In light of the appellant's prospects of rehabilitation in particular, I would direct a non‑parole period of nine months be served.

1. These are my reasons.

HARPER JA:

1. I agree with the reasons given by the Chief Justice that the appellant should be re‑sentenced as she proposes.  I wish particularly to associate myself with the reasons of the Chief Justice in relation to Charge 2.  The incident giving rise to that charge was one of considerable aggression occurring immediately after a violent attack upon Mr Rowe.  In these circumstances, a sentence of six months' imprisonment albeit wholly concurrent with the sentence on Charge 1 is, in my opinion, appropriate.

WARREN CJ:

1. Accordingly the Court will order as follows: 

1.        The appeal be allowed.

2.        The sentence below be set aside and in lieu thereof the appellant be re‑sentenced as follows:

charge 1:       2 years’ imprisonment;

charge 2:       6 months’ imprisonment.

The Court directs that the sentence imposed on Charge 2 be served concurrently with the sentence imposed on Charge 1, making a total effective sentence of 2 years’ imprisonment.

The Court fixes a non‑parole period of 9 months.

3.        It is declared that the period of 155 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

4.        All other ancillary orders of Judge Dean made 3 October 2011 are confirmed.

5. Pursuant to s 6AAA of the Sentencing Act, the Court declares that but for the guilty plea it would have imposed a total effective sentence of 2 years and 6 months with a non‑parole period of 14 months.

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