Director of Public Prosecutions v Evans; Director of Public Prosecutions v Hickinbotham
[2007] VSCA 15
•6 February 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE STATE DIRECTOR OF PUBLIC PROSECUTIONS | |
| No. 352 of 2006 | |
| v. | |
| RAYMOND GEORGE EVANS | |
| THE STATE DIRECTOR OF PUBLIC PROSECUTIONS | No. 353 of 2006 |
| v. | |
| RODNEY CHARLES HICKINBOTHAM |
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JUDGES: | BUCHANAN and EAMES, JJ.A. and KELLAM, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 February 2007 | |
DATE OF JUDGMENT: | 6 February 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 15 | |
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Criminal law – Sentence – Intentionally causing serious injury – Assault with spanner and jack handle – Prior convictions for offences of violence – Sentences of two years and nine months’ imprisonment with a minimum term of one year and nine months’ imprisonment and two years and four months’ imprisonment with a minimum term of one year and four months’ imprisonment manifestly inadequate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, QC | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Respondent Evans | Mr O.P. Holdenson, QC | Mr K.R. Clancy |
| For the Respondent Hickinbotham | Mr P.G. Priest, QC with Mr M.J. Croucher | Mr P.S. Dunn |
BUCHANAN, J.A.:
On 18 October 2005 the respondents were at the house of Sarah Bilney in Benalla. Ms Bilney was the girlfriend of Hickinbotham and had formerly been the girlfriend of Evans. Ms Bilney was the mother of a child of whom Evans was the father.
Berndt Eschholz had a relationship with Ms Bilney which commenced after she parted from Evans and before her association with Hickinbotham commenced. There was bad blood between the respondents and Eschholz. At a court hearing at which Ms Bilney obtained an intervention order against Eschholz, Eschholz threatened to throw Evans's child into the traffic. Evans confronted Eschholz later and told the police, "I hounded him for about a week and a half before I caught up with him and popped him a couple in the eye out in front of the bowls club." A security guard intervened and Evans said that he would be back, and told the police, "Last night I went back."
After eight o'clock in the evening of 18 October 2005, the respondents, who had been drinking heavily, left Ms Bilney's house, Evans armed with a shifting spanner some 45 centimetres in length and Hickinbotham armed with a steel jack handle. The respondents jumped over a small fence at the front of Eschholz's house and attacked Eschholz, who was sitting on the front porch. Evans struck Eschholz with the spanner, hitting him in the head. He told the police that he saw blood coming from the victim's head and hit him again. Hickinbotham told the police that he struck Eschholz between one and three times about the head. The respondents left Eschholz's house, throwing away their weapons. The sentencing judge described the respondents as "totally inebriated".
The victim of the respondents' attack was taken by ambulance to hospital with fractures to his facial bones, scalp lacerations, front intercerebral haemorrhage, a fractured jaw, fractured ribs and left thumb, injury to his right knee, loss of part of one ear and lacerations. In his victim impact statement the victim said that he suffered constant headaches and dizziness, loss of memory, nightmares, and was unable to stop thinking about the attack. Those symptoms persisted 11 months after the attack.
The respondents were arraigned in the County Court and pleaded guilty to a presentment containing one count that each respondent intentionally caused serious injury to Eschholz. After a plea, Evans was sentenced to be imprisoned for a period of two years and nine months with a minimum term of one year and nine months' imprisonment. Hickinbotham was sentenced to be imprisoned for a term of two years and four months and a minimum term of one year and four months' imprisonment was fixed. The Crown now appeals against the sentences.
Evans is now 51 years old. He had 30 prior convictions from 14 court appearances. The convictions were for driving offences, offences of dishonesty, indecent assault and offences of violence. The last were robbery with striking, maliciously causing injury, assault occasioning actual bodily harm, wilful damage, causing injury recklessly, assault and assault by kicking. The respondent was sentenced to terms of imprisonment for several of the offences.
Evans was raised by his mother and stepfather. He did not know his father and only learned that his stepfather was not his biological father when he was 11 years old, a revelation which apparently deeply upset him. The respondent was asked to leave high school after completing three years. According to the report of a forensic psychologist, however, he was both literate and intelligent. For most of his life the respondent had been employed as a stockman and rousabout and in shearing sheds. At the time he was sentenced he was unemployed and subsisted on a disability pension. He suffered from epilepsy and alcoholism. The respondent was married at the age of 33 years and had a son. The respondent's wife died on 12 January 1999. A psychologist reported to the court that in his opinion the respondent was "uncomplicated, unsophisticated, bucolic". He also described the respondent as genuine, straightforward and honest. The psychologist said that in his view the motive for the commission of the offence was the desire to protect the respondent's son from one who had threatened to harm him.
Hickinbotham is now 47 years old. He had 39 prior convictions from 17 court appearances. The convictions were for driving offences, street offences, offences of dishonesty and offences involving violence, including assault, criminal damage, intentionally causing injury and wilful damage.
Hickinbotham left school after completing year 7. He has worked on a turkey farm, as a cabinetmaker, meat worker and forklift driver. The respondent was unemployed at the time of the commission of the offence. His health is poor: he suffers from pancreatitis, diabetes, hepatitis and other ailments. A clinical psychologist, whose report was tendered in the course of the plea, said that in his opinion the respondent was an alcoholic. He also said:
"He will need a great deal of supervision and rehabilitation, but he seems well motivated to enter into appropriate programmes at this time. In my opinion there is room for optimism as to his ability to improve his lot on his release."
The sole ground of appeal in the case of Evans is that the sentence and the non-parole period are each manifestly inadequate. In particulars of that ground it is alleged that the sentence failed to adequately reflect the gravity of the offence, failed to take into account the need for general and specific deterrence, gave too much weight to mitigating factors and gave insufficient weight to aggravating factors and the effect of the commission of the offence upon the victim. A like ground of appeal appears in the notice of appeal against Hickinbotham's sentence, with an additional ground in the following terms:
"2.The sentencing judge erred in concluding that the respondent should serve a shorter sentence than his co-defendant, Raymond Evans."
The gravity of the offence of intentionally causing serious injury is reflected in the maximum sentence of 20 years' imprisonment. This was a serious assault carried out by two men armed with potentially lethal weapons against an unarmed man who was peaceably sitting on his front porch. He was battered repeatedly with substantial steel implements. Photographs of the scene reveal blood spattered over the front of the house.
Each respondent has a significant history of prior offending, including prior convictions for offences of violence. Although the threat made to Evans's son appears to have been the catalyst for the attack upon Eschholz, the threat was made some five months before the commission of the offence. In any event, people are to be deterred from taking the law into their own hands by administering corporal punishment to those they consider deserve it. Both men were affected by alcohol, but that is no excuse.
As to the ground of parity, Evans initiated the assault. He was the one with a grievance against Eschholz. Evans's prior convictions were more serious than those of Hickinbotham. The sentencing judge found that Hickinbotham withdrew from the attack earlier than Evans when he saw blood on the victim's head. In my view, the disparity between the sentences was warranted.
Each respondent is entitled to a discounted sentence because of his plea of guilty, which appears to have been made at the earliest opportunity, and the co-operation by each of the respondents with the police. Those I consider to be the only significant mitigating factors.
I have come to the conclusion that the head sentences at least were manifestly inadequate and that this Court should intervene, for the sentences reveal such manifest inadequacy as to constitute error in principle. Mindful that this is a Crown appeal, and agreeing as I do with the sentencing judge's concern to give the respondents the advantage of an extended period of supervision by the Parole Board, I would not alter the non-parole periods which he fixed.
Accordingly, I would allow the appeals. I would re-sentence the respondent Evans to a term of four years' imprisonment with a minimum term of one year and nine months' imprisonment and re-sentence the respondent Hickinbotham to a term of three years and seven months' imprisonment with a minimum term of one year and four months' imprisonment.
EAMES, J.A.:
I agree that the Director's appeals should be allowed for the reasons given by the learned presiding judge and that the respondents should be re-sentenced as proposed by his Honour.
KELLAM, A.J.A.:
I agree that the appeals should be allowed for the reasons stated by the learned presiding judge and that each respondent should be re-sentenced as his Honour proposes.
BUCHANAN, J.A.:
The orders of the Court will be:
The appeal is allowed.
The sentences passed below are set aside, and in lieu thereof the respondent Evans is sentenced to be imprisoned for a term of four years. It is ordered that the respondent serve a term of one year and nine months' imprisonment before he is to be eligible for parole. The respondent Hickinbotham is sentenced to be imprisoned for a term of three years and seven months. It is ordered that the respondent serve a term of one year and four months' imprisonment before he is to be eligible for parole.
It is declared in the case of each respondent that the period of 477 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.
Certificates under the Appeal Costs Act will be granted to the respondents.
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