Carter v The Queen
[2012] VSCA 99
•17 May 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0011 | |
| RONALD LINDSAY CARTER | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | BUCHANAN and REDLICH JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 May 2012 |
| DATE OF JUDGMENT | 17 May 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 99 |
| JUDGMENT APPEALED FROM | DPP v Carter (Unreported, County Court of Victoria, Judge Wood, 31 October 2011) |
---
CRIMINAL LAW – Sentence – Recklessly cause serious injury – Road rage – Immediate imprisonment necessary – Crown concedes sentence manifestly excessive – No point of principle.
---
| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr L C Carter | Robert Stary & Associates |
| For the Respondent | Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I will ask Redlich JA to deliver the first judgment.
REDLICH JA:
The applicant was involved in a road rage incident on 7 April 2009. He pleaded guilty in the County Court to one charge of recklessly causing serious injury, contrary to s 17 of the Crimes Act 1958. The maximum penalty for this offence is 15 years’ imprisonment or a maximum fine of 1,800 penalty units.
The appellant was sentenced to a term of two years and three months’ imprisonment. The Judge suspended one year of that sentence for a period of two years and three months. Effectively the appellant was sentenced to an immediate 15 month term of imprisonment.
The grounds of appeal raise the contentions that the sentence is manifestly excessive as the sentence should have been wholly suspended, that the sentencing judge failed to take into account the unfairness to the appellant in having charges hanging over his head for a twelve month period when he had offered to plead guilty to the charge on which he was ultimately presented, that the sentencing judge had wrongly qualified his findings about the appellant’s prospects of rehabilitation because he had been charged with offences in the intervening period which the appellant was contesting, that the sentencing judge had misinformed himself as to current sentencing practice for this type of offence and had given undue emphasis to deterrence and denunciation.
In submitting that the sentence imposed below was manifestly excessive, the appellant relies upon the objective gravity of the offending which was said to be at the lower range of the spectrum as it was an unpremeditated single punch and the injury resulted in two broken teeth, his lack of prior convictions, the admissions made during the record of interview, his plea of guilty, the lengthy delay between offending and sentencing.
A brief summary of the facts is as follows. At approximately 4.15 p.m. on 7 April 2009 the appellant was involved in a minor collision on Camberwell Road, Camberwell.[1] He and the other motorist both alighted from their respective vehicles and an altercation ensued. John Antonopoulos, a taxi driver and a ‘good Samaritan’, witnessed the altercation and got out of his taxi and attempted to stop the fight. He observed that the unidentified other male driver, was between 50 to 60 years of age and appeared to be bleeding from the right side of the head. Mr Antonopoulos and another man who had stopped to provide assistance, restrained the appellant, by grabbing his arms from behind, allowing the other male driver to leave the scene. The appellant stated that Mr Antonopoulos slammed his head onto the boot of his car, whilst he was attempting to restrain him.
[1]DPP v Ronald Carter (Unreported, County Court of Victoria, Wood J, 31 October 2011) 29 [3] (‘Reasons’).
The appellant grabbed and squeezed Mr Antonopoulos’s testicles in an effort to break free.[2] Once free the appellant, Mr Antonopoulos and the third man returned to their respective vehicles, Mr Antonopoulos with the intention of resuming his work day.
[2]Reasons, 30 [8].
The appellant retrieved a black baseball bat from his car. He approached Mr Antonopoulos, who was seated in the taxi cab with the driver side window down. The appellant was observed to yell abuse at him, and wave his baseball bat in a menacing fashion. The complainant recalls moving his head to face the appellant and being struck in the face. The complainant was unable to state that he was in fact struck with the baseball bat. The complainant suffered two broken front teeth, that required implants at a cost of $11,200, he also suffered facial bruising and was unable to work for approximately one week after the incident.
Eye witness accounts detail that the appellant was acting very aggressively and out of control. Several of the eye witnesses were unable to see if the appellant struck the complainant in the head with the baseball bat or his fist. Although it is generally agreed that the appellant struck the complainant in the head two to three times, whilst armed with the baseball bat.
The appellant when originally questioned by the police regarding to the incident claimed that he acted in self-defence, as he felt threatened by Mr Antonopoulos. The appellant’s behaviour towards the police was described as ‘abusive, offensive and unco-operative’.[3]
[3]Reasons, 36 [37].
The sentencing Judge found that the evidence did not establish beyond reasonable doubt that the appellant struck the victim in the face with the baseball bat, but it did however establish that the appellant broke the complainant’s front teeth and that he was brandishing a baseball bat in a thrusting motion.[4] His Honour also noted that the evidence of all of the onlookers established that the appellant was in an aggressive belligerent manner throughout the entire incident.[5] He found the appellants statement that he was acting in self-defence to be untrue. The sentencing judge did not find that Mr Antonopoulos slammed the appellant’s head on the boot of his car.
[4]Reasons, 33 [27].
[5]Reasons, 35 [33].
The Crown in a most helpful amended written case which reflected Mr Sonnet’s customary fairness, conceded that a term of 15 months’ imprisonment was excessive in the circumstances. The crown conceded that the sentencing judge had not taken into account the unfairness to the appellant resulting from the delay in presenting the appellant. Significantly, the Crown informed this court, but not the sentencing judge, that it had originally been prepared to settle the matter as a summary matter if the appellant pleaded guilty to recklessly causing serious injury, affray and resist arrest which would have restricted the sentence to one well below the sentence the subject of this appeal. The matter did not settle and the more serious charge of Intentionally Causing Serious Injury[6] and Recklessly Causing Serious Injury[7] were laid. The appellant was committed for trial and offered to plead guilty to Recklessly Causing Serious Injury and resist arrest in July 2010. That offer was refused. The matter was set down for trial. Over a year later the Crown accepted the appellant’s original offer to plead to Recklessly Causing Serious Injury and no longer required a plea to affray or resist arrest. The sentencing judge should have been informed that the Crown considered the matter capable of summary disposition. Thus the Crown now accepts that the sentence imposed travelled beyond any sentence that could have been imposed summarily and fell outside what the Crown had consistently viewed as the sentencing range.
[6]Crimes Act 1958, s 16.
[7]Crimes Act 1958, s 17.
The Crown now submits that a range of three to six months is the minimum period which the appellant should be required to serve. This is a departure from the position taken by the Crown below who accepted that a wholly suspended sentence was appropriate. Although it is well settled that a wholly suspended sentence is capable of achieving general deterrence[8] I consider the Crown submission correct that the nature of the offending rendered it necessary that an immediate period of imprisonment be imposed.
[8]DPP v Buhagiar & Heathcote [1998] 4 VR 540 and DPP (Cth) v Carter [1998] 1 VR 601.
This was a serious example of an assault. The victim was a good Samaritan who came to the aid of another motorist that was being assaulted. The assault on Mr Antonopoulos was unprovoked and occasioned whilst the complainant was sitting in his car, defenceless. The appellant not only received the benefit of the doubt that he did not inflict the injury with the baseball bat. He was fortunate that no finding was made that he had intended to assault the victim when took the bat from his car. The Crown also point to the fact that whilst the appellant made admissions in his police interview, his behaviour and conduct towards the interviewing police officers was less than forthcoming and at times bordered on being verbally abusive. The sentencing judge noted that the appellant was still belligerent and out of control at the end of the police interview some six hours after the assault.[9]
[9]Reasons, 36 [40].
As the Crown concedes that it is necessary to re-sentence the appellant, I need only make passing reference to the other grounds of appeal. The unfairness to the appellant occasioned by the delay of over two and a half years between the commission of the offence and sentencing must be taken into account. The respondent rightly concedes that this unfairness was not addressed by the sentencing judge in relation to the delay, and that the omission bespoke error.
As to the caveat which the sentencing judge placed on the appellants rehabilitation path, I reject the appellant’s contention that his Honour was required to disregard the fact that he is currently contesting a matter before the courts of causing injury recklessly and an unlawful assault.[10] The onus was on the appellant to adduce evidence of positive rehabilitation including the issue of anger management, insight as to his conduct, and any treatment undertaken. In the absence of explanation concerning the allegations of subsequent misconduct, his Honour was entitled to entertain reservations about the prospects of rehabilitation.
[10]Reasons, 37 [43].
As to the contention that his Honour misdirected himself as to current sentencing practice by placing reliance upon particular cases, I do not accept that the sentencing remarks reveal an impermissible use of the cases to which he was referred.
Finally, his Honour was right to give particular weight to general deterrence and denunciation. The offending was serious and involved an unprovoked attack against a man who came to the aid of another motorist and attempted to diffuse the situation.
Mr Carter should understand that he could well have been treated as having deliberately struck the victim so as to require a sentence involving some years of imprisonment.
The appellant was sentenced on 31 October 2011. He had been on bail until sentence. He has now served approximately six and a half months’ imprisonment. Given the concessions made by the Crown I would re-sentence the appellant to eighteen months imprisonment and would suspend 12 months of that sentence for a period of two years. The appellant is thus entitled to immediate release.
BUCHANAN JA:
I agree.
The orders of the Court will be as follows:
1. The appeal is allowed.
2.The sentence of imprisonment passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of 18 months.
3.The Court directs that 12 months of that sentence be suspended for a period of two years.
4.Pursuant to the provisions of s 6AAA of the Sentencing Act1991, the Court declares that if the respondent had not pleaded guilty, it would have sentenced him to a total effective sentence of two years' imprisonment and would have suspended 12 months of that sentence for a period of two years.
5.The orders made below for the taking of a forensic sample and the disposal of the baseball bat are confirmed.
6.It is declared a period of 199 days 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 has been made and its details.
- - -
3
0
0