Bentley v The Queen
[2010] VSCA 216
•26 August 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0569
| WARREN BENTLEY | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NETTLE, HARPER and HANSEN JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 August 2010 | |
DATE OF JUDGMENT: | 26 August 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 216 | |
JUDGMENT APPEALED FROM: | R v Bentley (Unreported, County Court of Victoria, Judge Lacava, 19 March 2009) | |
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SENTENCING – Intentionally causing injury – Guilty plea – Prior convictions – Sentence of 18 months’ imprisonment with nine months suspended for two years – Whether trial judge erred in assessing the offender’s prospects of rehabilitation – Whether trial judge erred in exercise of his discretion with respect to suspension of the sentence – Whether sentence manifestly excessive – DPP v Leach (2003) 139 A Crim R 64 distinguished – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P Doyle | Revill & Papa Lawyers |
| For the Crown | Mr P Rose SC | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
I will invite Harper JA to give the first judgment.
HARPER JA:
The respondent’s offending and the sentence imposed
27 January 2009 was listed as the first day of the appellant’s trial on one count of intentionally causing serious injury and one count of recklessly causing serious injury. But the trial did not proceed. Rather, the appellant offered, and the Crown accepted, a plea to a charge of intentionally causing injury. A fresh presentment was filed accordingly, and the plea was fixed for hearing on 10 March 2009.
The events giving rise to the charge occurred as early as 19 June 2005. As the Crown case was opened on the plea, an opening with which the appellant expressed no disagreement, the appellant and two others entered, uninvited, a flat occupied by the complainant, Ross De Maria. It was about 1.30 a.m. A fight began. Mr De Maria identified the appellant as the person who pulled him by the hair and thus caused him to fall over a coffee table, which broke under the impact. Then, while the complainant lay on the ground, the appellant and at least one of his companions kicked the victim in the face, legs and chest. Teeth were broken, and the complainant suffered a badly cut upper lip. He nevertheless managed to scramble onto a sofa. That was to no avail. He was dragged back to the floor, and kicked again in the torso and to the head. He attempted to defend himself with a steel candle holder. This did not work either. He was dragged outside and kicked again. In the meantime, another resident of the block of flats called the police.
They arrived to find a bloodied appellant and two others in the street nearby. All three were arrested. The appellant’s car was close to the front of the block of flats, and his keys had been dropped by him in Mr De Maria’s flat, from where they were recovered. When asked by the police to tell them what had been going on, the
appellant did not reply. He later made a no-comment record of interview.
Mr De Maria, being obviously injured, was taken to hospital. He there required plastic surgery to his lip and mouth, performed under general anaesthetic, and thereafter extensive restorative dental treatment (some of which, it seems, was not attributable to the injuries afflicted on 19 June). In the light of the acceptance of the plea, the Crown conceded before the sentencing judge that it could put to his Honour no more on the question of the injuries than that they did not fall to be classified as serious. The prosecutor did, however, submit that those inflicted on Mr De Maria were ‘at the higher end of the injury charges’. His Honour accepted this submission. While, had the matter gone to trial, this would have been a matter for the jury to determine, the appellant was fortunate not to have been put at risk on this issue.
Although the offence with which the Court is currently concerned occurred on 19 June 2005, no charges were laid until 31 May 2007. The Crown ascribes this delay to difficulties ‘in getting the DNA evidence together’. Another delay followed the failure of the appellant to appear at a hearing fixed for the following 27 June. A warrant was issued for his arrest, which was effected on 24 August 2007. The committal followed on 16 January 2008.
Between these dates, on 19 October 2007, the appellant was arrested and, after another ‘no-comment’ interview, was charged with the offences of trafficking and possession of drugs, and with dealing with property suspected of being the proceeds of crime. The sentences subsequently imposed for these offences are the subject of the application for leave to appeal which, together with the present appeal, is before the Court today.
Intentionally causing injury is an offence which carries a maximum sentence of 10 years’ imprisonment. The sentencing judge, however, imposed a sentence of imprisonment of 18 months. Not only that, but nine months of that sentence were suspended for two years.
Leave to appeal, and the grounds of appeal
Notwithstanding what on its face was a merciful sentence for acts of serious criminality, the appellant sought leave to appeal. This was granted by Maxwell P on 5 June 2009. In granting leave, his Honour noted that in its written outline of submissions, the Crown had ‘conceded … that one or more grounds is reasonably arguable’.
That is not a concession by which the Crown wishes to continue to be bound. In its written outline of submissions on this appeal, the Crown argues that ‘notwithstanding [the] matters put on behalf of the appellant … his Honour [the sentencing judge] cannot be said to have erred.’
I agree. Indeed, in my opinion his Honour was merciful. This was a serious example of a case in which injury was intentionally caused. Kicking another person is bad enough. Repeatedly kicking another in the face and elsewhere on the body is much worse. Doing so to the extent that plastic surgery and much remedial dental work is necessary, is another thing again. This is wrongdoing which is cowardly, vicious and humiliating. Parliament prescribed a maximum sentence of 10 years for this offence. This instance was a bad example of it. A sentence requiring actual incarceration of less that one tenth of the maximum is indeed merciful. Even if one takes the full sentence of 18 months’ imprisonment, with half of that period suspended for two years, the element of mercy must necessarily be seen to be paramount. In those circumstances, the description of the sentence as manifestly excessive presents as being grossly out of place.
Three grounds of appeal are put forward. The first is that ‘[t]he learned sentencing judge erred in assessing the appellant’s prospects for rehabilitation.’ The second is that his Honour ‘erred in the exercise of his discretion with respect to the suspension of the [appellant’s] sentence.’ And the final ground is that the sentence is manifestly excessive.
In his outline of submissions, the appellant concentrated upon what he contended was the erroneous assessment by the learned sentencing judge of the appellant’s prospects of rehabilitation. Those prospects, he argues, are excellent. They point to the wisdom of wholly suspending any sentence of imprisonment. Such an outcome, it is submitted, would be in the interests not only of the appellant but of the community. Indeed, the appellant’s contention was, in effect, that the imposition of such a sentence was the only course open. The case of DPP v Leach[1] was cited in support.
[1](2003) 139 A Crim R 64.
Leach was a Crown appeal. By a majority, it was dismissed by this Court. Eames JA, with whom in a separate judgment Vincent JA agreed, noted[2] that the sentencing judge ‘gave considerable weight to the factor of rehabilitation’, and that there always remains a place for the exercise of mercy and leniency ‘when the judge forms the view, almost intuitively, in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform’.[3] His Honour also acknowledged ‘the very important right of a sentencing judge to extend leniency in a case which seems to him or her to be appropriate, and to do so even if it is difficult to identify precisely what it is about the offender which leads to that conclusion.’[4]
[2]At [43].
[3]Ibid, [44], quoting from R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ).
[4]Ibid, [49].
All this may be accepted. We are here dealing, however, not with a Crown appeal, but with an appeal by a convicted person against a sentence that is said to be manifestly excessive. In both cases it is, of course, for the appellant (the DPP or the person under sentence, as the case may be) to satisfy the Court hearing the appeal that the judge below was wrong. But while, as in Leach, the Crown had the task of satisfying the Court of Appeal that the judge below had been unduly lenient (to the point that the sentence was such as to justify appellate intervention) in this case the appellant must satisfy the Court that the sentencing judge was in error in sentencing him to a term of actual incarceration of nine months, with a further nine months’ imprisonment suspended for two years; and this when the maximum penalty is ten years’ imprisonment. The judgments in Leach must be read in their context; a context very different from that presently before the Court.
The learned sentencing judge referred in his sentencing remarks to the evidence of the applicant’s excellent progress in, and further prospects of, rehabilitation. He adverted to reports from two psychologists: Mr Warren Simmons, and Mr Richard Smith, who is also the program director of the Raymond Hader Clinic. In addition to his written report, Mr Smith gave oral evidence, in which he told his Honour that the appellant had ‘completed all aspects of the drug and alcohol dependency course’ at that clinic,[5] and was now drug free, and that Mr Smith expected him to remain so. His Honour took this evidence into account, as he did all the evidence of Mr Smith. His Honour also took into account Mr Simmons’ view that the imposition of a term of imprisonment would adversely affect the progress made by the appellant. He accepted, too, that over the previous 12 to 18 months, the appellant had ‘made a concerted effort to rid [himself] of drug and alcohol addiction and that is to [his] credit.’[6]
[5]Sentencing remarks, [32].
[6]Ibid, [44].
Speaking specifically about rehabilitation, however, his Honour sounded a note of caution. He said this:
As I have set out above, the signs are there that you have seen the error of your ways and the prospects for your rehabilitation are positive. However, all of your efforts appear to have been brought into focus by this court appearance. It remains to be seen how you will fare once the veil of pending court appearances is lifted.[7]
[7]Ibid, [50].
It is submitted on behalf of the appellant that this assessment is erroneous. I cannot agree. It has not been shown that, in reaching this conclusion, his Honour took into account any irrelevant considerations, or failed to take into account any
that are relevant, or otherwise demonstrated that he had fallen into error. On the contrary, while withholding a final judgement about its complete achievement, his Honour accepted the evidence that the appellant's rehabilitation was ongoing. His Honour nevertheless passed a sentence consistent with the remarks to which I have earlier referred; a sentence which made full allowance for the appellant’s commendable progress in rehabilitation, while recognising the justice in asking for a little more evidence that the process was complete.
It must be remembered, too, that the appellant’s rehabilitation is not the only matter which his Honour was bound to take into account. I have already referred to one of these additional matters: the maximum penalty prescribed for the offence. Its nature and gravity is another, as is the appellant’s culpability and degree of responsibility for the offence, and its impact on Mr De Maria. The purposes for which sentences may be imposed are also to be considered; and these include deterrence, denunciation, and the protection of the community.
When all these factors are given their proper weight, the sentence imposed in this case can be seen to be not merely within range, but merciful. The appeal should be dismissed.
NETTLE JA:
I agree but I wish to add that this appeal strikes me as bold indeed. Given the nature and gravity of the offending, the applicant's moral culpability and criminal history, and most importantly the extent of the injures and pain and suffering inflicted on the victim of the offence, the sentence passed below is remarkably merciful.
To my way of thinking, the fact that the appellant is now seeking to have the sentence reduced to a still more lenient disposition suggests a lack of insight of which the sentencing judge could not have been aware. But for the history of this appeal, not least the Crown's concession when leave to appeal was sought that it was reasonably arguable that the sentence was excessive, I should have been disposed
perhaps to increase the sentence. As it is, for the reasons given by my brother Harper, the appeal should be dismissed.
HANSEN JA:
I also agree with Harper JA.
NETTLE JA:
The order of the Court is that the appeal is dismissed.
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