Cole v The King
[2023] VSCA 172
•2 August 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0039 |
| DEON COLE | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGE: | BEACH JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 2 August 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 172 |
| JUDGMENT APPEALED FROM: | [2023] VCC 200 (Judge Wraight) |
---
CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Recklessly causing serious injury – Multiple serious facial fractures – Sentence of 3 years, with non-parole period of 18 months – Manifest excess – Whether reasonably arguable that sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.
---
| Counsel | |||
| Applicant: | Mr N Goodfellow | ||
| Respondent: | Ms K Hamill | ||
Solicitors | |||
| Applicant: | Tyler Tipping & Woods | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA:
On 10 February 2023, the applicant 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 term of imprisonment for this offence is 15 years. On 21 February 2023, the applicant was sentenced to a term of imprisonment of 3 years, with a non-parole period of 18 months.[1]
[1]DPP v Cole [2023] VCC 200 (‘Reasons’).
The applicant now seeks leave to appeal against his sentence on the single ground of appeal that the sentence and non-parole period fixed by the judge are each manifestly excessive.
Circumstances of the offending
On 22 February 2022, in response to an advertisement seeking a sexual encounter, which was on a free classifieds application called ‘Locanto’, the applicant made contact with his victim. The two of them then discussed personal details, and exchanged photos and details of what each of them wanted from the encounter. The victim provided the applicant with his mobile number. After further discussions via text message, they made arrangements to meet that night. The victim booked an Uber for the applicant to attend his house.
The Uber picked the applicant up at 6:15 pm, dropping him off at the victim’s address at 6:30 pm. The two of them remained at this address, with the victim showing the applicant his pets, including a two meter long python. The victim took photographs of the applicant holding the python.
The victim remembers sitting at the dinner table and then does not recall anything until being with hospital staff and police the next day.
At 11:55 pm, the applicant attended the Geelong Police Station and spoke to First Constable Luke Searle. He told police that:
(a)he had badly hurt somebody at an address in a particular suburb;
(b)he had been sent to the victim’s address by a friend of a friend called Ryan to acquire methamphetamine;
(c)when he arrived at the address, he stayed for a short period and chatted with the male occupant, before asking the male to book him an Uber to go home;
(d)the male did not book an Uber and said, ‘I didn’t order you an Uber home as I was hoping something would happen between us,’ and then grabbed the applicant’s penis on the outside of his pants; and
(e)he asked the male to show him proof of the Uber being ordered, and when the male was distracted, he picked up an unknown object and hit him in the face. The male stood there and looked confused, so he struck him again, causing him to fall to the floor.
Constable Searle asked the applicant for further details in relation to the location of the incident, but he did not disclose any further details before leaving the police station. About 10 minutes after the applicant left, Constable Searle received a call to the police station watch house from the applicant’s sister, who said that the applicant had hurt someone at an address in the suburb earlier identified by the applicant.
Constable Ryan Jones and Constable Reece Illig were requested to attend the victim’s address. They arrived there at 1:10 am, locating the victim covered in blood, with a wound to his scalp and swelling to his face. Constables Jones and Illig searched the premises, locating a broken glass with blood on it on a bench in the lounge room, and a white piece of coral on a mat in the middle of the lounge room, surrounded by blood. During their investigations, Constables Jones and Illig took photographs of the property, the victim’s injuries, the broken glass, and the white piece of coral.
The victim was taken to hospital and admitted. He was found to have sustained the following injuries:
(a)multiple facial fractures:
(i)complex multi-fragmented fractures of the nasal bones;
(ii)complicated multi-fragmented fractures of the eye socket;
(iii)fractures in the upper jawbone;
(iv)fracture through the right zygomaticospenoid suture;
(v)fractures on both sides of the cheekbone;
(b)bleeding on the brain; and
(c)three haematomas on the scalp.
A forensic physician with the Victorian Institute of Forensic Medicine, described the victim’s injuries as follows:
(a)there were complex facial bone fractures that required surgical treatment with the insertion of stabilising metal foreign bodies to both sides of the face for the fractures to have a chance to heal;
(b)it requires significant force to cause complex facial bone fractures;
(c)without surgical intervention, problems to essential activities such as eating, drinking and speaking, as well a cosmetic facial disfiguration were likely to remain for the rest of the victim’s life, impacting on his work and social life;
(d)the metal foreign body inserted in the face increases risks of infection; and
(e)the victim is at risk of developing psychological sequelae as a result of his injuries.
The applicant attended at Geelong Police Station on 8 March 2022, where he was arrested and interviewed. During interview:
(a)the applicant said that he met up with a bloke and hung out. He ‘asked about an Uber to leave’. After about 15 minutes, the man said that ‘the Uber wasn’t coming’ and that he ‘wanted something to happen’ between the two of them. The applicant said the man ‘took a couple of steps forward and he touched me’. The applicant told him that he didn’t want anything to happen, ‘told him no’, and pushed him off him. The applicant asked him what time it was and then ‘freaked out’, saying ‘I didn’t know what to do’. He said that he remembered hitting the man with the glass he had in his hand. Afterwards, the man said something to him, and he ‘freaked out more’ because he was scared. He said he ‘[didn’t] know what to do’ and that he thought ‘something was gunna happen’ to him, so he reached behind himself to ‘find whatever [he] could hit the man with again and [he] found a rock’ and hit him with that as well;
(b)the applicant said that the man touched him on his penis over his pants;
(c)the applicant denied being in contact with the victim via the Locanto app;
(d)the applicant said that he did not remember texting the victim, but agreed that the text messages sent to the victim were from him; and
(e)the applicant denied that the messages with the victim were of a sexual nature.
Following his interview, the applicant was charged and then released on bail.
The plea hearing
On the plea, the prosecution tendered a victim impact statement from the victim. The victim impact statement described the effects of the serious injuries inflicted by the applicant. These include the initial consequences of pain, incapacity and disability, together with the long-term effects on the victim’s independence and activities of daily living. The victim was off work for three and a half months due to his injuries. His ability to walk confidently has been impaired. He has a limited ability to turn his head, and his injuries restrict his ability to drive and his ‘feeling of safety’. He described himself as ‘hyper-vigilant, feeling like I am constantly in fight and flight’.
The applicant tendered a report from a psychologist, Warren Simmons. Mr Simmons examined the applicant at the request of his solicitors in November 2022. In his report, Mr Simmons recorded that the applicant ‘could provide no significant insight into why he acted as he did’. Mr Simmons took a history of the applicant having been sexually abused at the hands of his paternal grandfather. Mr Simmons said that:
[G]iven Mr Cole’s history of sexual abuse at the hands of his paternal grandfather, any sexual overtures towards Mr Cole may have resulted in him reacting to those in the context of him experiencing symptoms of post-traumatic stress disorder and therefore, he reacted in an extreme manner and assaulted the victim. Mr Cole indicated that he is aware that … what he did was wrong and this [is] certainly evidenced by the fact that he attended the police station immediately. He appeared remorseful and expressed concern about the impact that his actions have had on the victim.
Mr Simmons said that there were ‘some suggestions’ that the applicant ‘may be experiencing symptoms of borderline personality disorder, with post-traumatic stress disorder as a significant overlay’. Mr Simmons also expressed the opinion that the applicant was ‘likely to find time in custody more onerous, given that he has personality difficulties which will make it difficult for him to navigate the often tense environment of a custodial setting’.
The applicant also tendered a number of character references and a community correction order assessment report which stated that the applicant was suitable for a CCO. As to the applicant’s history in respect of CCOs, in November 2020, the applicant had been placed on a 9 month CCO in respect of the offences of criminal damage, contravening a family violence intervention order, unlawful assault, burglary, intentionally damaging property, theft, failing to answer bail and committing an indictable offence while on bail. As a result of a breach of that order, at a breach hearing in October 2022, the order was re-imposed for a further period of 15 months.
On the plea, counsel for the applicant submitted that a CCO should be imposed; in the alternative, a combination sentence would be in the range. The prosecution, however, submitted that, because of the seriousness of the offence, the only appropriate sentence was one of imprisonment in the form of a head sentence and a non-parole period.
Sentencing reasons
The judge said that the gravity of the offence of recklessly causing serious injury is reflected in the maximum penalty of 15 years’ imprisonment. He said that, while the offence is a ‘broad one that can be committed in a wide variety of circumstances’, the applicant’s offence represented ‘a relatively serious example’.[2] The judge then said:
On your own admission, you first struck the victim with the glass you were holding and then with another object you referred to as a ‘rock’, which was some form of decorative coral. The strikes with the two objects were the cause of the serious injury as described.
In assessing the gravity of the offending, I take into account the nature of the injuries sustained by the victim. While it appears that the injuries were not immediately life threatening, it is clear from the evidence and the victim impact statement, that the injuries are very serious, the effects of which the victim continues to suffer from, both physically and psychologically. I also take into account the fact that you used two weapons of the nature you described, and that in the circumstances you would have been well aware that serious injury would result. As noted, in all the circumstances, your assault on the victim in his own home represents a relatively serious example of the offence of recklessly causing serious injury.[3]
[2]Reasons, [20].
[3]Ibid [22]–[23].
The judge described the victim impact statement,[4] before turning to the applicant’s personal circumstances.[5] The judge noted that, at the time of sentencing, the applicant was 23 years of age; he left home at the age of 15; he had a five year old son, who was in the care of his sister, and a second son with whom he has no contact; he had a consistent employment history; he had a history of being sexually assaulted by his grandfather; and he had a history of substance abuse, starting at the age of 12.
[4]Ibid [24]–[26].
[5]Ibid [28]–[36].
Having earlier noted that the applicant had admitted his criminal record,[6] the judge referred to the 9 month CCO, the subsequent contravention hearing, and the variation of the CCO which resulted in it being extended for a further 15 months. The judge noted that a condition of the CCO was that applicant undertake treatment and rehabilitation for his drug addiction. The judge observed that, in satisfying this condition, the applicant completed a course of alcohol and drug treatment, and provided drug screens — the two most recent of which had detected cannabis.
[6]Ibid [2].
The judge took into account the applicant’s plea of guilty, observing that the plea carried additional weight because it was ‘entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system’.[7] The judge accepted that there was evidence of remorse, expressed in the report of Mr Simmons and in the references tendered on the plea. In that context, the judge said that he also acknowledged that, shortly after the assault, the applicant attended the police station and alerted the police to the fact that he had seriously injured the victim.[8]
[7]Ibid [37].
[8]Ibid [38].
In respect of the applicant’s youth, the judge said:
Your youth is a relevant consideration. You are 23 years of age and were 22 at the time of the offending. As such, it was submitted that rehabilitation should, despite the seriousness of the offending, take a primary role in the sentencing discretion. While I accept the well settled principles in relation to young offenders, and that they do have application in your case, I must also weigh those considerations with the seriousness of the offending in this instance.
In Azzopardi v The Queen,[9] having reviewed the established authorities in relation to young offenders, Redlich JA said:
The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment, and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effects of the offender's youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.
In my view, the other relevant sentencing considerations such as general and specific deterrence, and denunciation of your conduct, must carry weight in the sentencing discretion in this instance and therefore the mitigating effect of your youth is necessarily reduced. However, as you are still a relatively young offender with a limited criminal history, despite the seriousness of the offending, in my view your rehabilitation remains prominent in the sentencing discretion.[10]
[9](2011) 35 VR 43, 57 [44].
[10]Reasons, [39]–[41] (citation in original).
The judge assessed the applicant’s prospects of rehabilitation as ‘very good’.[11]
[11]Ibid [42].
After referring to the submissions made by the prosecutor and the applicant’s plea counsel, the judge concluded:
In my view, a term of imprisonment is required in order to meet the relevant sentencing considerations. I am also of the view that the seriousness of the offending is such that a combination sentence is unable to address the relevant applicable sentencing principles in this instance. However given your youth, and good prospects of rehabilitation, in my view a longer than usual parole period would be appropriate.
As you will be required to serve a term of imprisonment, I take into account, and accept, the opinion of Mr Simmons that as a result of your personality difficulties you may find prison more onerous.
Finally, I take into account that prisoners are still labouring under restrictions as a result of the ongoing pandemic resulting in extended periods of isolation and restrictions on services offered.[12]
[12]Ibid [44]–[46].
Applicant’s submissions
In contending that the head sentence and non-parole period were each manifestly excessive, the applicant submitted that a sentence of imprisonment in combination with a CCO would have satisfied the relevant sentencing considerations, ‘while better facilitating this young man’s rehabilitation’. The applicant submitted that the sentence imposed by the judge did not comply with the principle of parsimony.
The applicant contended that, while punishment, general and specific deterrence and denunciation were relevant and important sentencing considerations, the sentence imposed was manifestly too long, given:
•the applicant’s plea of guilty at the earliest opportunity, having previously been the first person to notify the police of the incident, and having made the admissions he made to police both before and after their involvement;
•the applicant’s age, being 22 at the time of the offending and 23 at the time of sentencing;
•the applicant’s limited criminal history;
•the history of sexual abuse by the applicant’s grandfather;
•the applicant’s demonstrated commitment to rehabilitation; and
•the fact that, on 14 February 2023, the applicant was assessed as suitable for a CCO.
Consideration
To the extent that the applicant submitted that, because a sentence of imprisonment in combination with a CCO would have satisfied the purposes for which sentences may be imposed,[13] in sentencing the applicant as he did, the judge failed to comply with the principle of parsimony,[14] that submission must be rejected. The mere fact that it may have been open to the sentencing judge to impose a sentence of imprisonment in combination with a CCO, as being a sentence within the permissible range, does not mean that the judge’s failure to impose that sentence breached the principle of parsimony if a sentence of imprisonment with a non-parole period was also open in all the circumstances. As this Court said in Melnikas v The Queen:[15]
There are a myriad of offences and circumstances in which a reasonable exercise of the sentencing discretion may involve the making of a CCO on its own, or the imposition of a combination CCO and term of imprisonment, or the imposition of a term of imprisonment without any CCO. Ordinarily where a CCO is a possible sentencing disposition, the sentencing range reasonably open will be between a term of imprisonment at one end of the range to a CCO without a term of imprisonment at the other end. Often, as this Court has said many times before, reasonable minds will differ about which of these dispositions is appropriate or what the length of the term of imprisonment or the duration of the CCO should be.[16]
[13]See s 5(1) of the Sentencing Act 1991.
[14]Reflected in ss 5(3) and (4) of the Sentencing Act.
[15][2016] VSCA 112 (Redlich, Santamaria and Beach JJA).
[16]Ibid [62].
As has also been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[17] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender. This is a stringent requirement, difficult to satisfy.[18]
[17]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[18]Ibid.
The reasons disclose that the judge gave detailed consideration to each of the matters relied upon by the applicant in mitigation of sentence, including the applicant’s youth, his personal circumstances, his early plea of guilty and his good prospects of rehabilitation. His Honour’s findings in relation to each of the matters were carefully reasoned and well open on the evidence. His Honour was also correct to say that the applicant’s conduct represented a relatively serious example of the offence of recklessly causing serious injury.[19]
[19]Reasons, [20].
Notwithstanding the matters relied upon by the applicant in mitigation, and the importance of the issue of rehabilitation, it was well open to the judge to conclude that, given the seriousness of the applicant’s offending, a term of imprisonment was required in order to meet the relevant sentencing considerations.[20] The contrary is not reasonably arguable. The applicant’s assault of his victim was a particularly brutal one, involving the use of two different objects, and resulting in multiple serious facial fractures requiring the insertion of stabilising metal plates.
[20]Ibid [44].
The judge imposed a sentence which was only 20 per cent of the maximum penalty, with a non-parole period that was 50 per cent of the head sentence. In imposing a non-parole period of only 18 months, the judge took into account the applicant’s youth and his good prospects for rehabilitation.[21] It was plainly open to the judge to take the course taken by him. Again, the contrary is not reasonably arguable. In all of the circumstances, the sentence (including the non-parole period) imposed by the judge was a moderate one. The applicant’s complaint of manifest excess in relation to the sentence and non-parole period is devoid of merit.
[21]Ibid.
Conclusion
The application for leave to appeal must be refused.
---
0
5
0