Director of Public Prosecutions v Giannoukas
[2011] VSCA 296
•7 October 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0129
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| V | |
| EVANGELOS GIANNOUKAS | |
| JUDGES | NEAVE, TATE JJA and COGHLAN AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 30 September 2011 |
| DATE OF JUDGMENT | 7 October 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 296 |
| JUDGMENT APPEALED FROM | DPP v Giannoukas (Unreported, County Court of Victoria, Judge Dean, 1 June 2011) |
CRIMINAL LAW – Appeal – Crown appeal against sentence – Recklessly causing serious injury – ‘Glassing’ by offender in response to complainant’s threat – Offender remorseful, no prior convictions – Guilty plea – Sentence of 18 months’ imprisonment, wholly suspended for two years – Whether sentence was manifestly inadequate – Whether sentencing judge had erred in decided to wholly suspend the sentence before first determining an appropriate term of imprisonment – Appeal allowed – Sentence outside range reasonably available – Re-sentenced to two years and six months’ imprisonment, wholly suspended – Winch v The Queen [2010] VSCA 141, discussed – s 287 Criminal Procedure Act 2009.
| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr R A Elston SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr I Hill QC | Acquaro & Co |
| Ms N Kaddeche |
NEAVE JA:
This is an appeal by the Director of Public Prosecutions[1] against the sentence of 18 months’ imprisonment, wholly suspended for two years, imposed on the respondent, Evangelos Giannoukas, who pleaded guilty to a count of recklessly causing serious injury to Trent Ogston.
[1]Under s 287 of the Criminal Procedure Act 2009.
Background of the offending and the offender
The respondent went to the Eden Nightclub in Puckle Street, Moonee Ponds, with his younger brother Luke and a friend, Peter Skoufis at about 10.30 pm on a Saturday evening. The brothers and Mr Skoufis watched a World Cup soccer match that was being televised on a large screen at the club. Another friend arrived half an hour later. Also present at the club were members of the Strathmore Football Club, including the complainant, Trent Ogston, who were celebrating a going away party for one of the players.
At approximately 1 am on Sunday morning, members of the group from the Strathmore Football Club began kicking a spirit glass around on the floor. The respondent, who was wearing thongs, became concerned and asked the men to stop kicking the glass. An argument arose between the two groups as a result of the respondent’s request. Ogston approached the back of the group of men involved in the argument, pushed through it towards the respondent and began throwing punches in Giannoukas’ direction.
The judge’s factual findings about the precise circumstances in which the respondent struck Ogston with the glass were the subject of the second ground of appeal. I will therefore discuss them in the context of that ground. It is however clear that as the respondent was being pushed backwards by Ogston he struck Ogston in the face with a beer glass that was in his right hand.
Mr Skoufis told police that, immediately after the incident, he and the respondent and some others were ushered into a private room by a person associated with the club. He observed that the respondent had a cut on his finger and thumb on his right hand and appeared to be in shock. The respondent was saying: ‘What have I done?’. The respondent left the nightclub through the back entrance and he and his brother and Mr Skoufis all returned to the respondent’s home.
On 3 July, police attended and executed a search warrant at the respondent’s home. He was interviewed later that morning. At the plea hearing the prosecutor summarised the respondent’s record of interview as follows:
1) He was with three friends watching the World Cup game.
2) He was wearing thongs and felt a glass hit him in the foot, so he then told the men kicking it to stop. They started calling him a ‘wog’ and an argument occurred between them, ‘and as we’ve turned around, well, it’s been diffused [sic], another bloke’s jumped from behind them and he wasn’t even in the argument. I don’t know where he came from and, as you do, I just reacted and threw a punch back, not realising I had the glass in my hand.’
3) I don’t know where he’s came from or what, he’s just thrown two massive punches and he’s missed, and as I felt threatened, you just react as you do and I did not even realize the glass was in my hand.’
(4) I didn’t look back, I just turned my back and walked away.’
(5) In response to a question as to what happened to the glass, the accused told the police that ‘It’s obviously broken wherever it landed.
As a result of the assault, Mr Ogston suffered lacerations to the left side of his face and nerve damage in his forehead. The wound in his forehead required 35 stitches. He was also treated for facial nerve branch damage to his left eye and had glass removed from his eyebrow.[2]
[2]Appellant’s written case, [6].
In a victim impact statement tendered in the proceedings, Mr Ogston said that he missed one and a half weeks of work and suffered depression and anxiety as a result of the incident. He said that ‘I definitely don’t frequent night spots as much now and when I do I don’t feel comfortable and are [sic] much more aware of what is happening to me’.
The respondent was 25 years old at the time of the offending. His only prior conviction was for driving while his licence was suspended. In his sentencing reasons his Honour noted the high regard in which the respondent was held by his family, friends and work colleagues, and accepted that he was ‘a young man of excellent character,’ with ‘excellent prospects of rehabilitation.’ [3]
[3]DPP v Giannoukas (Unreported, County Court of Victoria, Judge Dean, 1 June 2011) (‘Reasons’), [8]-[9].
The Director’s grounds of appeal
The DPP appeals against sentence on four grounds:
1.The sentence imposed, and the decision to wholly suspend the sentence for a period of two years, was manifestly inadequate in all the circumstances.
Particulars
In imposing a sentence of 18 months imprisonment and directing that the sentence be wholly suspended for a period of two years, the learned sentencing judge
Failed sufficiently to punish the offender to an extent which is just in all the circumstances;
Failed to sufficiently deter the offender or other person from committing an offence of the same or a similar character;
Failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;
Failed to protect the community from the offender;
Failed to have sufficient regard to the maximum penalty prescribed for the offence;
Failed to have sufficient regard to the nature and gravity of the offence;
Failed to have sufficient regard to the offender’s culpability and degree of responsibility for the offence;
Failed to have sufficient regard to the impact of the offence on the victim;
Failed to have sufficient regard to aggravating features of the offending, and in particular –
That the offence is a type of offence increasingly prevalent in the community
That the offence was a serious example of a serious offence, recklessly causing serious injury
That the offending was calculated and deliberate;
That the offence involved the use of a dangerous weapon, a glass likely to shatter on impact;
That the offending was committed in a public place;
That the offender fled the scene immediately after the offence;
That the offence was committed whilst the offender was under the influence of alcohol
….
2. The learned sentencing judge erred in finding that:
(a) The victim charged at the respondent and was intending to assault the respondent.
(b) The respondent was defending himself.
(c) The victim had made a complete recovery.
(d) That the circumstances of the glassing was not one of ‘alcohol fuelled violence’.
(e) That the respondent was deeply remorseful.
3.The learned sentencing judge erred in failing first to determine an appropriate sentence for the offending in light of all of the aggravating and mitigating features, and only then to determine whether it was open or appropriate to suspend the sentence of imprisonment.
4.The learned sentencing judge erred in his treatment of Winch v The Queen[4] in that he sought to:
(a) Distinguish the circumstances in Winch from the present case, as if he engaged in a parity style analysis with the offender in Winch.
(b) Find that the circumstances of the present case were relevantly ‘exceptional’ when contrasted with the survey of the cases conducted in Winch.
(c)Diminish the significance of the judgment of the Court of Appeal by identifying factors which he claimed entitled him to hold that the general principle in Winch was subservient to factors personal to the respondent which are commonly found in glassing cases.
[4](2010) 203 A Crim R 197.
Ground 2
During the course of oral argument counsel for the Crown conceded that the success of the claim that the sentence was manifestly inadequate depended to a large extent on the Court’s acceptance of ground 2, which asserts that his Honour sentenced the respondent on the basis of incorrect findings of fact.
The prosecution summary tendered at the plea hearing referred to the evidence of witnesses who observed the respondent hitting the victim. The summary said:
The accused was seen by O’LOUGHLIN to approach from among the group of men carrying a beer glass at shoulder height.
Michael MERCURI, a Crowd Controller on duty that evening observed two males pushing each other. He said to Police ‘I saw two males were pushing and shoving each other … both of them seemed pretty aggressive, it was like push for push... One of them had a glass in his hand, so he was pushing with the other hand… The first guy with the glass in his hand has raised the glass up to about the level of his own head and smashed it’ into the other guy’s face… It was a big hit with the glass’.
Cameron SYMES saw the accused lunge at the Complainant with his right hand in a punching motion. He saw one punch. SYMES described the accused as being 6’3 or 6’4 inches tall, with medium build. The Complainant was hit to the side of the face, narrowly missing his left eye….
Cameron SYMES told Police that he had spoken with the Complainant earlier in the evening and ‘he did not appear to be drunk or obnoxious’ Glen GARRICK also told Police that the Complainant was not drunk.
Cameron SYMES told and Glen GARRICK went to look for the accused but were unable to locate him. Crowd Controller Michael MERCURI told Police that ‘the guy who did the glassing had just disappeared’
Peter SKOUFIS, a friend of the accused told Police that a scotch and coke type glass was being kicked around the nightclub, soccer style. He stated that he saw the accused speaking to the young men who were kicking the glass and asking them to stop it because it was hitting him in the ankle. He told Police that this caused a scuffle. He said that during the scuffle, (the Complainant) ‘out of nowhere charged at Evan (the accused) …he just came flying through and put his arms out wide as he ran towards Evan. I thought he was going to throw a punch’. As the guy got close to Evan’s face Evan put his right hand out and he had a glass in it…Then Evan lent [sic] back a bit and swung the glass into the side of the bloke’s face above the eyebrow on the left side.’
SKOUFIS also told Police that immediately after the incident, he and the accused and some others were ushered into a private room by a person associated with the club. He observed that the accused had a cut on his finger and thumb on his right hand and appeared to be in shock, he was saying ‘what have I done?’ They all then returned to the home of the accused.
During the course of the plea hearing it became apparent that the prosecutor had not viewed the CCTV security camera footage coverage, because there had previously been technical problems in playing it. Because there was no agreement about the factual basis on which the respondent should be sentenced his Honour viewed the CCTV of the incident. He described the assault in the following way:
It appears that a verbal dispute occurred as a result of your request [to stop kicking the glass] and, for reasons that are not clear, the victim Trent Ogston charged at you, clearly attempting to punch you with both fists. You immediately responded with your right hand in which you were holding a glass and struck Mr Ogston in the face.
I have viewed the CCTV security camera footage and it is clear that it is Mr Ogston who initiated the confrontation with you and that your reaction to him was clearly an instinctive one. I also accept that you were defending yourself, as he approached you intending to assault you himself.[5]
[5]Reasons, [3] and [6].
Under ground 2(a) counsel for the Director submitted that, contrary to the judge’s finding, the CCTV footage did not show Ogston charging at the respondent, intending to assault him, and that Ogston was moving towards the man on the respondent’s right (probably Skoufis.)
Having reviewed the CCTV footage of the incident, I agree that Ogston’s punches or blows were primarily aimed at the person to the right of the respondent. However after throwing two punches at this person, Ogston continued to surge forward in a threatening manner. The respondent then grabbed Ogston’s shirt, and held him at arms length, while the respondent continued to move backwards.
Despite the fact that Ogston’s attack was initially directed at the person on the respondent’s right, I do not accept the submission in the Director’s written case that ‘the respondent [was] in no danger from Ogston at all.’[6] In my opinion the CCTV footage is inconsistent with the crowd controller, Michael Mercuri’s statement and largely consistent with the account given by Skoufis and by the respondent. The footage shows that at the time of the assault, Ogston was moving towards the respondent, having just thrown two punches at the respondent’s friend. In the mind of the respondent there must have been a concern that Ogston would try to attack him. Further, it was not unreasonable for the respondent to fear that Ogston would attack him, as he had already, without any apparent provocation, attacked his friend. It seems to me that the respondent’s actions were a reaction to a perceived threat, probably to himself, but at the least his friend.
[6]Appellant’s written case, [18].
Nor do I accept the submission that the judge made other factual errors. First, it is clear from the sentencing judge’s reasons that when he stated that Ogston had made a ‘complete recovery’, his Honour was referring to the fact that Ogston had made a complete physical recovery.[7] His Honour also had regard to Ogston’s Victim Impact Statement, and the emotional impact that the assault had on him. There was no evidence that the injury had any lasting physical effects on the victim.
[7]Reasons, [4].
Secondly, the Director submitted that his Honour erred in concluding that the incident was not one of ‘alcohol fuelled violence’. I would reject that submission. At the plea hearing counsel for the Crown said that some alcohol had been consumed but that ‘it is not the Crown’s position that the accused man was grossly intoxicated.’
Mr Jeffrey Cummins, a consulting and forensic psychologist, reported that the respondent had told him that he did not have an alcohol problem and was not intoxicated at the time of the attack. Cameron Symes told the police he had spoken to the accused earlier in the evening and ‘he did not appear to be drunk or obnoxious.’ The respondent had been present at the club for some hours and told Mr Cummins that he had consumed two or at the most three vodka and raspberries at the time of the attack.
The CCTV footage does not give any indication that the respondent was intoxicated at the time of the incident. Nor was there any other evidence that this was the case. By contrast the CCTV footage suggests that the victim may have been ‘fuelled by alcohol’, when he came from the back of the group of men who were arguing and tried to punch the respondent’s friend. For this reason I would accept the judge’s finding that there was no evidence that the respondent could be said to have been ‘fuelled’ by alcohol.
Thirdly, the Director argued that his Honour’s finding that the respondent was ‘deeply remorseful’ was too favourable to the respondent, because he had left the nightclub and gone home after the incident and had only admitted to the offence after the police arrested him.
I would also reject that submission. His Honour was entitled to have regard to the respondent’s remark, ‘what have I done?’, immediately after the incident, and to conclude that his early admission to the offence and plea of guilty at the committal was clear evidence of remorse. Mr Cummins also expressed the opinion that the respondent was genuinely remorseful. In my opinion it was open to the sentencing judge to find that the respondent was ‘deeply remorseful’.
Ground 3
Under cover of ground 3 counsel for the Director submitted that the sentencing judge had not decided on an appropriate sentence in light of all relevant factors, before deciding whether it was appropriate to suspend that sentence.
There is no doubt that the imposition of a suspended sentence requires two distinct steps. As Kirby J said in Dinsdale v The Queen:[8]
The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a ‘soft option’ when the court with the responsibility of sentencing is ‘not quite certain what to do’.[9]
[8](2000) 202 CLR 321.
[9]Ibid 346, quoting R v O’Keefe [1969] 2 QB 29, 32.
In my opinion the judge approached the imposition of a suspended sentence in the correct way. The Crown submitted that an appropriate sentence would fall in the range of two to three and a half years. Having sentenced the respondent to 18 months’ imprisonment, it was well within his Honour’s sentencing discretion to suspend that sentence. The fact that his Honour placed some focus on the question of whether a suspended sentence should be imposed simply reflected the way in which counsel for the Crown and defence counsel put their submissions.
Grounds 1 and 4
It is convenient to consider grounds one and four together.
Because ground 4 challenges his Honour’s treatment of the decision of the Court in Winch v The Queen,[10] I now turn to what was said in Winch and subsequent cases about the approach which should be taken in sentencing offenders for recklessly causing serious injury, where the injury was inflicted by glassing. In Winch the appellant confronted the complainant in a pub, alleging that the complainant had made disparaging remarks about the appellant’s girlfriend. The appellant struck the victim in the face with a beer pot, causing the victim to suffer large facial lacerations and broken teeth. The appellant pleaded guilty to recklessly causing serious injury (‘RCSI’). He was sentenced to five years’ imprisonment, with a non-parole period of three years.
[10](2010) 203 A Crim R 197 (‘Winch’).
When Winch’s leave application was heard, the Crown was directed to provide the court with information about sentences imposed for RCSI in the period 2007–2010. On the basis of these statistics counsel for the Crown submitted that current sentences in glassing cases were inadequate and should be increased. (It was accepted that any increase should not be taken into account in re-sentencing the appellant.)
That submission was accepted by Maxwell P and Redlich JA, who noted that glassing cases have common features, including the fact that they usually occur in or near licensed premises, and involve an act of:
alcohol–fuelled aggression in disproportionate response to an actual or perceived slight. The typical offender is young and of generally good character, and is full of remorse after the event.
The consequences of glassing are, almost invariably, very serious. Striking to the face or head with a bottle or glass carries a high — and obvious — risk of serious injury. The victim of a glassing almost always suffers severe lacerations; often has permanent facial scarring; and suffers physical and psychological damage which is typically long-term and often permanent.
It is important to recall that RCSI is a very serious offence. It carries a maximum penalty of 15 years. An examination of the elements of the offence reveals why this is so. First, the offence involves the causing of serious injury to the victim. Secondly, the mental element of the offence — recklessness —means that the offender has consciously disregarded a known risk.[11]
[11]Ibid 204 [32]-[34], citations omitted.
Their Honours said that:
In our view, the seriousness, and the prevalence, of glassing (RCSI) mean that general deterrence (and, where necessary, specific deterrence) must be given primacy in the sentencing synthesis. The approach which should be followed is, we think, that which was described by Batt JA (with whom Winneke P and Nettle JA agreed) in Director of Public Prosecutions v Lawrence,[12] as follows:
... Youth and rehabilitation must be subjugated to other considerations. They must take a “back seat” to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved ... This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that ... the persons who commit the offence and wreak appalling injuries ... are predominantly youths and young men acting under the influence of alcohol or drugs or both.
That was a case of intentionally causing serious injury but, for the reasons we have given, what was there said applies with equal force to ‘glassing’ as a serious instance of RCSI.[13]
[12](2004) 10 VR 125, [22].
[13](2010) 203 A Crim R 197, 207 [44].
Maxwell P and Redlich JA also considered the use of suspended sentences in glassing cases and said that:
[I]in a glassing case (where the offender is being sentenced for RCSI) the full suspension of a custodial sentence will not ordinarily be an available sentencing option. The objective gravity of the offence will usually require a term of immediate imprisonment. This approach is necessary, in our view, if the courts are to give appropriate effect to the maximum penalty -- which marks out the sentencing parameters -- and to general deterrence, and to recognise the objective seriousness of ‘glassing’ as an instance of RCSI.
Glassing cases should, in our view, be treated as being in the same category as other RSCI offences which involve the use of a dangerous weapon likely to produce serious injury. There is no warrant for placing these cases in a lower category of seriousness where an immediate custodial sentence is not ordinarily required.
It follows, in our view, that sentencing judges should not regard themselves as constrained to follow the course disclosed by the glassing cases to which we have referred. Those advising clients in the future whether or not to plead guilty to RCSI in a glassing case should ensure that no assumption is made about the availability of a suspended sentence.[14]
[14]Ibid 209 [53]-[55] (citations omitted).
These matters were not taken into account in re-sentencing the appellant in Winch, because the Crown conceded that the sentence was manifestly excessive, having regard to the sentencing practices in existence when the appellant was sentenced.
Winch has since been considered in a number of other cases including the offence of recklessly causing serious injury. In Trowsdale v The Queen[15] the appellant threw a beer glass at the victim, causing serious injuries to his right eye and face. The appellant was sentenced to three years and nine months’ imprisonment on the count of recklessly causing serious injury, and 12 months’ imprisonment for making a threat to kill. The sentencing judge imposed a total effective sentence of four years, with a non-parole period of two years and three months. The appellant contended that the sentence was manifestly excessive.
[15][2011] VSCA 81.
In the Court of Appeal, Bongiorno JA had regard to the decision of the Court of Appeal in Winch, and the observation of Maxwell P and Redlich JA that ‘the general run of sentences imposed for glassing as an instance of RCSI does not sufficiently reflect the fact that such conduct is inherently dangerous’ and the fact that the current sentencing practices for ‘glassing’ offences may be inadequate.[16]
[16]Ibid [19], citing Winch (2010) 203 A Crim R 197, 204 [31].
However in that case Bongiorno JA (with whom Harper and Hansen JJA agreed) found that the appellant, having pleaded guilty, was entitled to assume that he would be sentenced taking appropriate account of current sentencing practices at that time.[17] He was re-sentenced on that basis.
[17][2011] VSCA 81, [22].
Winch was also considered by the Court of Appeal in Ellis v The Queen.[18] In that case, the applicant was dining with his friends and family at a hotel. The applicant was described as having consumed alcohol, but was not intoxicated at the time of the assault. After a fight broke out between the complainant, the applicant and the applicant’s son, the applicant smashed a glass beer jug on the complainant’s head. Ashley JA who delivered the main judgment, noted the view of Maxwell P and Redlich JA in Winch that where the offence of recklessly causing serious injury occurs in the context of glassing, that sub-category of the offence should not be considered as falling within ‘a lower category of seriousness where an immediate custodial sentence is not required.’[19] His Honour (with whom Bongiorno JA agreed) was satisfied that a sentence of two years and nine months’ imprisonment with a non‑parole period of one year and nine months was not manifestly excessive.
[18][2011] VSCA 36.
[19]Ibid [31], citing Winch (2010) 203 A Crim R 197, 209 [54].
In DPP v Gerrard,[20] the respondent had been chatting with the victim’s wife at a hotel. The victim told the respondent to ‘stay away from [his] wife’, and punched the respondent twice in the head.[21] Approximately five to ten minutes later, the respondent, who was heavily intoxicated, smashed a ‘pot’ glass in his hand, then walked over to the victim and struck him with the base of the pot glass in the back of the neck. The respondent pleaded guilty to one count of intentionally causing serious injury, and was sentenced to two years’ imprisonment, wholly suspended for three years.
[20][2011] VSCA 200.
[21]Ibid [4].
On a Director’s appeal, the Court of Appeal[22] re-sentenced the respondent to three years’ imprisonment, wholly suspended for three years. The Court found that the sentencing judge had given insufficient weight to the seriousness of the offence, and to the guidance offered by the Court of Appeal in relation to sentencing offenders in cases of recklessly (or there, intentionally) causing serious injury which involved glassing. The sentencing judge was also held to have made other sentencing errors. Maxwell P and Redlich JA’s remarks in Winch were considered and it was noted that these remarks were of even greater force in a case of intentionally causing serious injury.
[22]Neave JA (Redlich JA and Bongiorno JA agreeing).
Nevertheless the Court decided that the respondent’s sentence should be wholly suspended. That conclusion was reached having regard to the exceptional family circumstances of the respondent, who was the sole carer for his autistic son and his wife, who was deaf. Other factors which were taken into account included the respondent’s early admission of guilt, his remorse and his favourable character references. In my reasons, with which Bongiorno and Redlich JJA agreed, I noted that a suspended sentence for such an offence ‘would normally be manifestly inadequate, having regard to the gravity of the offence and that it is justified only because of the very exceptional combination of circumstances which exist in this case.’[23]
[23]DPP v Gerrard [2011] VSCA 200, [50].
In DPP v Aslan,[24] the offender was at a Turkish restaurant, and was quite intoxicated. He slashed the neck of a waiter with a broken glass, causing severe lacerations. It was accepted by the prosecution that at the time of the attack, the offender did not know the glass was broken. Following the incident, the offender fled to Turkey. He returned three months later, and pleaded guilty to recklessly causing serious injury.
[24][2010] VSC 518.
The trial division judge sentenced the offender to two years and six months’ imprisonment, with a non-parole period of 12 months. His Honour made the following remarks in relation to the guidance given by the Court of Appeal in Winch:
The Court of Appeal has recently made it very clear that the seriousness and prevalence of this type of offence mean that general deterrence and, where necessary, specific deterrence must be given primacy in the sentencing synthesis.[25] General deterrence is very important here. At the risk of oversimplification, the courts must strive to send this message: glassing means jail.[26]
[25]Citing Winch v The Queen (2010) 203 A Crim R 197, 207 [44].
[26]DPP v Aslan [2010] VSC 518, [21].
His Honour’s sentencing reasons
On the basis of the CCTV footage the judge accepted that the respondent had reacted instinctively to Mr Ogston’s confrontation in order to defend himself. The judge characterised the offending as a ‘momentary response to the threat that [the respondent] faced and it was not an act of ‘alcohol fuelled violence.’[27] Nevertheless he acknowledged that the offence of striking Mr Ogston with a glass was ‘extremely serious.’
[27]Reasons, [11].
His Honour then referred to matters raised in mitigation, including the respondent’s ‘close and loving family’, his exemplary work history and the fact that 28 character references had been submitted on his behalf.
The respondent relied on a report by Mr Cummins which said that the respondent was a mature and responsible young man with no apparent psychological or personal disorders, who had very favourable prospects of rehabilitation. Mr Cummins considered that ‘the respondent’s offending behaviour was situationally motivated and that he had adopted ‘a very responsible and concerned attitude to his offending behaviour.’
Mr Cummins repeated this opinion at the plea hearing and said that the respondent was remorseful and had indicated sympathy for the victim. In response to cross-examination by the prosecutor about the respondent’s empathy for the victim Mr Cummins said that he had expressed concern about the victim’s injuries and was anxious to know about the victim’s current medical state.
Having regard to these matters, his Honour concluded that the respondent’s prospects of rehabilitation were excellent, that it was not likely that he would offend again[28] and that specific deterrence was not a significant consideration.[29] The judge acknowledged that general deterrence was an important sentencing consideration in cases of this kind.
[28]Reasons, [10].
[29]Reasons, [12].
At the plea hearing counsel for Mr Giannoukas submitted that the circumstances of the offending were very different from those in Winch,[30] that this came close to being a self-defence case and that the objective gravity of the offence ‘placed it at the very lowest end of the scale of seriousness of culpability.’ He submitted that it would be appropriate for his Honour to impose a suspended sentence on the offender.
[30](2010) 203 A Crim R 197.
Counsel for the Crown relied on the statement in Winch indicating that current sentencing practices in glassing cases were inadequate and that those advising clients as to whether to plead guilty to recklessly causing serious injury in such cases should ensure they did not assume they would receive a suspended sentence. She argued that some of the mitigating factors present in Winch were not present in this case and that the sentence imposed should give considerable weight to denunciation and to general deterrence. She submitted that an appropriate sentencing range would be a term of between two and three and a half years, with 12 to 24 months being served as an immediate term of imprisonment. It should be noted that she conceded that this range had been put forward without viewing the CCTV footage.
In response to those submissions His Honour said that the present case was distinguishable from the facts in Winch because of:
1) [the respondent’s] excellent prospects for rehabilitation; 2) this was not a case of alcohol fuelled violence; 3) the injuries to Mr Ogston were not as serious as those inflicted by Winch; and 4) in my opinion [the respondent’s] actions were defensive in nature in response to the attempted assault upon [him] by Mr Ogston.
Whilst I accept that a sentence of imprisonment is the appropriate proportionate penalty, in all the circumstances of the case, I am also of the opinion that the purposes for which this sentence is to be imposed may be achieved by a sentence that does not involve your confinement. I have reached the conclusion that it is desirable that the sentence of imprisonment that I impose should be wholly suspended, having regard to the compelling factors in mitigation that arise in your case.[31]
[31]Reasons, [14].
Counsel’s submissions
In relation to ground 4, counsel for the Director submitted that the judge below had taken the wrong approach in sentencing the respondent. Rather than determine the sentence to be imposed having regard to the circumstances of the offending and offender, he had treated Winch as a precedent and sought to distinguish the circumstances in Winch from the present case. In effect, he had undertaken parity style analysis by comparing the offender with the offender in Winch.
Counsel for the Director relied on Hudson v The Queen,[32] in which the Court of Appeal[33] said:
A detailed examination of ‘like’ cases to implicitly suggest that a particular sentence is the correct one or that the sentence should fall within a very narrow band, is not permissible. Sentences imposed in other cases are not precedents which must be applied unless they can be distinguished.[34] Where principles of parity do not apply, they are not to be regarded as some sort of ’benchmark’ which is determinative of the sentence to be imposed.[35]
[32](2010) 205 A Crim R 199.
[33]Ashley, Redlich and Harper JJA.
[34]Director of Public Prosecutions (Vic) v Adajian [1999] VSCA 105, [4]; R v McIntosh [2005] VSCA 106, [10].
[35]Hudson v The Queen (2010) 205 A Crim R 199, 207 [31], citing R v F (2002) 132 A Crim R 308, 315 (Simpson J); Hili v The Queen (2010) 204 A Crim R 434, 453-456 [74]-[78] (Heydon J).
Counsel further submitted that the sentencing judge had wrongly treated the present case as ‘exceptional’, so as to enable him to depart from the principles identified in Winch. He observed that in Winch, as in this case, the appellant’s prospects of rehabilitation were considered ‘very good’, and, as in Winch, this offence occurred in the setting of the consumption of alcohol.
Counsel also argued that the judge’s approach had given insufficient weight to the fact that the respondent had reacted gratuitously and with an unnecessary degree of violence to Ogston swinging in his direction. He submitted that the judge had not taken sufficient account of the moral culpability of the offender, the prevalence of glassing, and the seriousness of the offence of recklessly causing serious injury and had given too much weight to mitigating factors.
In the course of argument counsel conceded that if the respondent had received a wholly suspended sentence of two and a half years suspended it is unlikely that the Director would have regarded it as appropriate to appeal.[36]
[36]As to the matters to be taken into account by the Director under s 287 of the Criminal Procedure Act 2009, see DPP v Karazisis [2010] VSCA 350.
Counsel for the respondent submitted that the sentencing judge’s reasons indicated that he had considered and given sufficient weight to the seriousness of the offence and to the guidance given by the Court of Appeal as to the approach to be taken in relation to sentencing offenders in ‘glassing’ cases. The sentence imposed by the sentencing judge was not outside the range of sentences that could be imposed, having regard to the ‘powerful mitigatory factors’ which existed in the present case.[37]
[37]Respondent’s written case, [16].
The respondent’s counsel relied on the sentencing judge’s finding that the respondent had not been drunk and had reacted immediately and instinctively to an unprovoked attack by Ogston who had charged in his direction.
He submitted that the respondent was effectively a first offender; had made an early guilty plea; had the support of a close and loving family and an exemplary work history; and had been found to have excellent prospects of rehabilitation. He was also deeply remorseful.
The respondent’s counsel relied on the statement by Winneke P in Director of Public Prosecutions v Carter[38] that:
If an appellate court can discern a sound basis for the exercise of the sentencing judge’s discretion [i.e. to wholly suspend the sentence] it should be slow to interfere with that discretion on a Crown appeal.[39]
[38][1998] 1 VR 601.
[39]Ibid 607.
Counsel for the respondent also drew attention to the fact that at the plea hearing, the prosecutor had said that the sentencing judge was ‘quite correct in observing that the decision [Winch] is not authority for the proposition that an immediate term [of imprisonment] is always appropriate’.
In the alternative, counsel for the respondent submitted that even if the Court considered that the sentence imposed was manifestly inadequate it should exercise its discretion not to alter the sentence, because the respondent had already served four months of his suspended sentence and had organised his life accordingly.
Did the judge err in his approach to Winch?
I would reject the appellant’s submission that his Honour wrongly treated Winch v The Queen,[40] as a precedent and then searched for factual matters to distinguish it from the facts in this case, rather than considering the sentence which should be imposed having regard to the circumstances of the offending and the offender.
[40](2010) 203 A Crim R 197.
It is clear that his Honour’s comments about Winch reflected the arguments put to him at the plea hearing. The Crown relied on Winch to persuade the judge that general deterrence and denunciation should be given considerable weight, while defence counsel argued that Giannoukas was responding to a threat when he hit the victim with the glass. However the judge gave careful consideration to the circumstances of the offending and the offender, as he was required to do. For the reasons discussed below, his Honour did not err in treating this as an unusual example of the offence of recklessly causing serious injury, in that the acts of the respondent in glassing the victim were largely a response to the victim’s threatening behaviour.
Was the sentence manifestly inadequate?
In DPP v Karazisis[41] this Court examined the effect of the legislative changes which removed the application of the double jeopardy principle in Crown appeals. In their majority judgment Ashley, Redlich and Weinberg JJA said that:
the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances.[42] As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge.[43] Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.
The Court will be astute to enforce the stringency of this test. As the High Court has emphasised:
The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[44]
[41][2010] VSCA 350.
[42]R v MacNeil-Brown (2008) 20 VR 677, 680.
[43]R v Boaza [1999] VSCA 126, [42] (Winneke P).
[44][2010] VSCA 350, [127]-[128], citing Lowndes v The Queen (1999) 195 CLR 665, 672.
His Honour placed considerable emphasis on the fact that Mr Giannoukas had responded spontaneously in striking the victim. However as Maxwell P and Redlich JA observed in Winch, the spontaneous nature of the assault is a common feature of glassing. They said:
[I]in none of the cases reviewed did the offender pause to smash the glass or bottle before using it as a weapon. The offender simply struck out with the glass or bottle, or threw it at the victim. Either way, it shattered on contact.
The characteristic of spontaneity does not detract from the obvious dangerousness of the act, or the seriousness of the offence. Where there is premeditation, or deliberate preparation of the weapon, this should be treated as a circumstance of aggravation.[45]
[45](2010) 203 A Crim R 197, 207-208 [47]-[48].
On the one other hand I would accept the submission of counsel for the respondent that the respondent’s level of culpability was at the lower end of the scale. The respondent was not an intoxicated man who glassed the victim in an over‑reaction to a slight or an insult. Rather he was retreating from the victim, who was swinging his fists towards him or his friend and forcing him backwards. I also accept that the victim’s injuries suffered by the victim as a result of the glassing were not as serious as those which are often suffered in such cases.
Nevertheless I consider that an 18 month term of imprisonment for an offence carrying the maximum penalty of 15 years was outside the range of sentences which could be imposed in the reasonable exercise of his Honour’s sentencing discretion. It did not give adequate weight to the dangerousness of the act, the prevalence of glassing, or to the importance of general deterrence. That is the case despite his Honour’s finding that the respondent was genuinely remorseful and that he had excellent prospects of rehabilitation, which reduced the need to give weight to specific deterrence.
In my opinion the respondent should be re-sentenced to a term of two years and six months’ imprisonment. I would however accept the submission that the very strong mitigating factors which existed in this case justify the total suspension
of the respondent’s sentence. In reaching that conclusion I have given significant weight to the respondent’s remorse as indicated by his guilty plea, in circumstances where he had some chance of persuading a jury that he had relied on self‑defence. Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that if the respondent had not pleaded guilty, I would have sentenced him to three years and six months’ imprisonment, with a non-parole period of two years and six months.
TATE JA:
I agree with Neave JA.
COGHLAN AJA:
I also agree with Neave JA.
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