Director of Public Prosecutions v Martin
[2009] VSCA 316
•21 December 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 724 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| BRUCE ANDREW MARTIN |
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| JUDGES: | MAXWELL P, HARPER JA, WILLIAMS AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 November 2009 |
| DATE OF JUDGMENT: | 21 December 2009 |
| MEDIUM NEUTRAL CITATION: | [2009] VSCA 316 |
| JUDGMENT APPEALED FROM: | R v Martin (Unreported, County Court of Victoria, Judge Campbell, 19 June 2009) |
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CRIMINAL LAW – Appeal – Sentencing – Crown appeal – Guilty pleas – Adult male respondent – Causing serious injury recklessly to male companion – Causing injury recklessly to former girlfriend – Apparently unprovoked attacks – Respondent and victims intoxicated after drinking together – Respondent’s personal circumstances difficult at time – Good prospects of rehabilitation – Remorse – Total effective sentence of 12 months’ imprisonment wholly suspended for two years not manifestly inadequate – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr D Trapnell SC | Craig Hyland, the Solicitor for Public Prosecutions |
| For the Respondent | Mr J P Dickinson SC | Slades & Parsons |
MAXWELL P
HARPER JA
WILLIAMS AJA:
On 15 June 2009, the respondent pleaded guilty to and was convicted in the County Court of one count of recklessly causing serious injury and one count of recklessly causing injury on 4 November 2006.
He was sentenced to nine months’ imprisonment on the first count and six months’ imprisonment on the second count. Three months of the sentence on the second count was ordered to be served cumulatively upon that in relation to the first. The resulting total effective sentence of 12 months’ imprisonment was wholly suspended for a period of two years. The maximum penalties for the offences under ss 17 and 18 of the Crimes Act 1958 (Vic) are 15 and five years’ imprisonment, respectively.
The Director appealed against the sentences on the ground of manifest inadequacy. He contended that the serious nature of the offending and its impact on the two victims warranted a substantial period of immediate imprisonment, given the respondent’s apparent lack of remorse, his guilty plea only after a contested committal hearing, relevant prior convictions for which he had received a suspended sentence and what was said to have been an escalation in his criminality.
The Director acknowledged that the learned sentencing judge had adverted to all pertinent matters in the sentencing remarks and that his Honour had recognised the gravity of the respondent’s conduct which he had characterised as ‘an unprovoked and savage attack.’[1] He argued that the judge had, nevertheless, failed to give sufficient weight to considerations of specific and general deterrence, the seriousness of the offending, the respondent’s moral culpability, the need for denunciation and punishment, the impact on the victims, community protection and the maximum penalties.
[1]R v Martin (Unreported, County Court of Victoria, Campbell J, 19 June 2009) [10].
The respondent denied that the sentence was manifestly inadequate in the requisite sense, citing the principles set out in cases such as R v Clarke[2] and DPP v Bright.[3] He contended that both the individual sentences and the total effective sentence were within the appropriate range and that the suspension did not result in a manifestly inadequate disposition. The respondent noted the Director’s concession that the very experienced sentencing judge had referred to all relevant circumstances and he emphasised the difficulty involved in upsetting a sentence in such circumstances on the grounds of failure to give sufficient weight to particular factors.[4]
[2] [1996] 2 VR 520.
[3] [2006] VSCA 147.
[4] See DPP v Buhagiar & Heathcote [1998] 4 VR 540, 548 (Batt and Buchanan JJA).
The respondent cited the significant delay between offending and sentencing, his personal circumstances at the time of the offences and his good prospects of rehabilitation, his guilty plea and remorse, his intoxication at the time and his abstinence from alcohol as a consequence of treatment, as well as his participation in an anger management course on his own initiative shortly after the offending. He argued that his crimes had been spontaneous and unpremeditated and pointed to his relative lack of prior convictions. The judge, he said, was entitled to sentence as he did in light of his findings of remorse and the respondent’s prospects of rehabilitation.
The respondent submitted that the courts had long held that a suspended sentence of imprisonment could act as a general deterrent[5] and argued that a judge is entitled to extend leniency in the exercise of discretion in situations where the community may benefit from the offender’s rehabilitation, even in the case of a serious offence.[6] The respondent also maintained that, even if the sentence were found on appeal to be manifestly inadequate, the Court should decline to intervene in the exercise of its discretion.
[5] Citing R v Schwabegger [1998] 4 VR 649, 657 (Kenny JA).
[6] Referring to DPP v Leach [2003] VSCA 96, [48] and DPP v Tokava [2006] VSCA 156, [21].
Having considered the parties’ helpful written and oral submissions, the authorities cited and the other material before it, the Court announced its decision to dismiss the appeal on the day of the hearing. These are the reasons for that decision.
We turn first to the circumstances of the offence and then to the respondent’s relevant personal circumstances.
The circumstances of the offence
On 4 November 2006, the respondent and his former girlfriend had spent time amicably drinking and socialising at two hotels, together with a male friend of the former girlfriend. The respondent had made arrangements to spend the night at the former girlfriend’s home and the three walked to her house after leaving the second hotel. They were all very intoxicated.
The former girlfriend and the male went into her kitchen, apparently to get more beer from the refrigerator, when the respondent, without provocation, punched the male causing him to fall to the floor and kicked his head and punched him repeatedly. The former girlfriend tried to stop the assault and the respondent attempted to fend her off by punching the left side of her head, knocking her to the floor. He then emptied the contents of a large fish-tank over her, telling her to ‘cool off’. When she tried to call for help, the respondent took her phone and jumped on it. Neighbours heard her screams for help, as well as the respondent calling her ‘a slut’ and making other abusive remarks.
The male victim was taken to Maroondah Hospital by ambulance. His injuries included swelling and bruising to the right side of the face and neck and a laceration above the left lip. He suffered a depressed fracture of the right facial bone which required surgical elevation. His physical injuries took three weeks to resolve sufficiently for him to return to work and victim impact statements indicate that he became introverted, anxious and obsessed with security.
The female victim suffered from swelling to the left forehead and eyes, lacerations to the chin, and bruising to her right rib area. In her victim impact statement she complained of sleeplessness, fear of going out and of being ‘an emotional wreck’.
The learned judge characterised the respondent’s conduct as ‘an outrageous and unprovoked attack’ upon the two people with whom he had spent an evening amicably.[7] His Honour accepted that the respondent’s subsequent account to police of being hit by the male victim was untrue. Referring to a number of other apparently untrue assertions in his police record of interview and contradictory answers to police questions, the judge noted the absence of full and frank admissions at that time and thought it a question of some difficulty as to why the respondent had behaved as he did.
[7]R v Martin (Unreported, County Court of Victoria, Campbell J, 19 June 2009) [27].
The respondent’s personal circumstances
The respondent was born on 2 December 1962 and was 43 years old on 4 November 2006. Having practical rather than academic skills, he had left school after year 10. He had been married and had two adult children from the marriage. His marriage had broken down acrimoniously in about 2005. After that, the respondent had cared for his daughter who was the complainant in a rape case after the separation. Their relationship was close and she valued his ongoing support. His daughter was 21 years old in June 2009 and she told the sentencing court that her father had been drinking excessively for a couple of years at the time of the November 2006 events.
The respondent had, of his own initiative, taken action to deal with his drinking and the need to manage his anger straight after the events of 4 November 2006. He was assessed for a Family Violence and Anger Management Program conducted by Anglicare on 5 December 2006 and attended a 10 week Entry Program up to 7 March 2007. He then attended the Behaviour Change course itself, weekly for 10 weeks up to 23 May 2007. He had reduced his drinking to a very moderate level of social consumption and the Court was told that he had maintained this relative abstinence up to the present.
The respondent had a good work history and had been employed since July 2005 with a construction firm. His employer considered him one of the business’ best employees, noting his personal problems and attesting to his good nature and work ethic, as well as his reliability and assistance to a victim of the then recent bushfires. The respondent had also assisted an elderly farming couple for some 20 years and the judge described their letters to the court as a ‘simple but … telling indication that [his] actions and behaviour on this night [4 November 2006] may indeed have been aberrant and brought about by [his] tumultuous personal situation.’[8]
[8]R v Martin (Unreported, County Court of Victoria, Campbell J, 19 June 2009) [23].
By the time of the plea, the respondent had formed a new relationship and his partner detailed his support for her and her disabled daughter. The respondent himself had the support of his new partner and of his parents who informed the court of his help to them over the years and his caring and courteous disposition.
The respondent had prior convictions on 6 June 2003 which had arisen out of a 2002 ‘road rage’ incident in respect of which he had been sentenced to three months’ imprisonment, wholly suspended for two years. He had also been given an adjourned bond relating to cannabis use conditional upon him undergoing drug rehabilitation treatment. The incident had occurred after the respondent’s car had been ‘cut off’ at a roundabout. After the respondent had sounded his horn, the other driver had appeared to drive at the respondent’s car in which his wife was a passenger. The other driver had also then engaged in ‘stop, start’ tactics in front of the car, causing the respondent to apply the brakes heavily about three times. When the cars had stopped at traffic lights, the other driver had been abusive to the respondent’s wife and he had responded in a physical altercation. The charges had resulted.
Manifest inadequacy
We were not satisfied that either the individual sentences or the total effective sentence imposed were manifestly inadequate as the Director contended. We were not persuaded that the sentences imposed were ‘outside the range’ open to the judge, bearing in mind the principles stated by the Court in R v Macneil-Brown:[9]
Several propositions can now be stated which lie at the heart of sentencing law and policy, as follows:
1. The decision as to the sentence to be imposed on a particular person for a particular offence is an individual expression of opinion or judgment. As the High Court said in Lowndes v R, the discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.
2. Reasonable minds can differ on the appropriate sentence for a particular case. As Batt JA said in R v Monardo, there is ‘a range of sentences open to a sentencing judge in the exercise of a sound discretionary judgment’.
3. ‘The range’ means the limits within which reasonable minds can differ on the appropriate sentence for a particular case.
4. It is an error of law to impose a sentence which is outside the range applicable to the particular case.[10]
[9](2008) 20 VR 677.
[10](2008) 20 VR 677, [10] (Maxwell P, Vincent and Redlich JJA) (citations omitted).
In so far as the applicable ‘range’ was demonstrable by reference to sentencing statistics, they did not indicate that the sentence was manifestly inadequate. The ‘Sentencing Snapshot’ prepared by the Victorian Sentencing Advisory Council for the 2002-07 period showed that 48 per cent of those sentenced for recklessly causing serious injury were given custodial sentences. That figure was 56 per cent in 2006-7.[11] The proportion of sentences of imprisonment which were wholly suspended decreased from 36 per cent in 2004-5 to 19 per cent in 2006-7. The most common term of imprisonment imposed for this offence was one year. The average ranged from one year and 11 months in 2005-6 and 2006-7 to two years and eight months in 2004-5. Similar material relating to the offence of recklessly causing injury indicated that during the same period, 28 per cent of offenders were given a custodial sentence and 20 per cent of offenders received a wholly suspended period of imprisonment.
[11]Sentencing Advisory Council, Sentencing trends for causing serious injury recklessly in the higher courts of Victoria, 2002-03 to 2006-07, Sentencing Snapshot No. 40, February 2008.
Of 190 people sentenced to imprisonment between 2002-3 and 2006-7 whose principal offence was recklessly causing serious injury, 28 per cent received a total effective sentence of one year and 17 were given a shorter effective term.
The Court was referred to a number of other cases involving sentencing for offences of recklessly causing injury or serious injury. The cases revealed that sentencing practice varied widely. Examples were provided of cases in which wholly suspended periods of imprisonment had been imposed for the offence of recklessly causing serious injury.[12] The Court was also referred to cases where the penalty was more severe[13] and in which the unacceptability of alcohol–fuelled violence had been emphasised.[14]
[12]DPP v Castro [2006] VSCA 197; DPP v Coley [2007] VSCA 91; DPP v Toumngeun [2008] VSCA 91.
[13]R v Wyley [2009] VSCA 17.
[14]DPP v Terrick; DPP v Marks; DPP v Stewart [2009] VSCA 220.
Senior counsel for the respondent drew attention to the decision of this Court in R v Lam,[15] where the sentence imposed for recklessly causing serious injury was two years. The injury was inflicted with a knife during an armed robbery, during which the offender attacked a member of a family who ran a milk bar. The offender had multiple prior convictions, including for armed robbery and intentionally causing serious injury, and was on parole at the time of the offences in question. Senior counsel argued, with some justification, that the sentence of two years in that case suggested that the sentence of nine months imposed in the present case was unduly heavy. It was pointed out, however, that comparison with the sentences of three years’ imprisonment upheld in R v Wyley,[16] and of two years upheld in R v Cropley[17] – neither offender having a prior conviction for violence – would tend to the opposite conclusion.
[15][2009] VSCA 37.
[16][2009] VSCA 17.
[17][2009] VSCA 32.
Argument in this case focused on the weight given to various considerations. In that regard, we note the comments of Callaway JA in R v Bernath:
A ground of appeal may complain that a sentencing judge failed to give due weight or, alternatively, gave excessive weight to a relevant factor, but that stands in stark contrast with a ground that asserts that the judge disregarded such a factor altogether or took an irrelevant factor into consideration. When the complaint is made in terms of weight, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of manifest sentencing error. [18]
[18]See also DPP v Castro [2006] VSCA 197, [17]; DPP v Buhagiar and Heathcote [1998] 4 VR 540, 548 (Batt and Buchanan JJA); DPP v Coley [2007] VSCA 91, [28].
It was conceded that the very experienced sentencing judge in this case had turned his mind to all the relevant considerations relied upon by the Director. His Honour had recognised the seriousness of the offending and its impact on the victims and the consequential need for the sentence to reflect the need for general and specific deterrence. Nevertheless, taking into account the respondent’s character and rehabilitation prospects, the judge had imposed a wholly suspended sentence which, as the respondent submitted, could operate as a general and specific deterrent.[19]
[19]R v Schwabegger [1998] 4 VR 649, 657 (Kenny JA).
We were persuaded by the respondent’s arguments that the sentencing judge did not err in concluding that he had good prospects of rehabilitation, demonstrated by his progress since the offending some two and a half years earlier.[20] In this case, the observations of Eames JA in DPP v Leach[21] seemed apt:
It is particularly important that this court should not devalue or deny the right of the sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which redounds very much to the benefit of the community.
[20]Cf R v Merrett, Piggott and Ferrari (2007) 14 VR 392.
[21][2003] VSCA 96, [48].
Ultimately, despite the seriousness of the offences and their effects on the victims and the other matters raised by the Director, we were not persuaded that he had established that the judge erred in principle by imposing an inadequate sentence or one inconsistent with sentencing practices or that the sentence was ‘so disproportionate to the seriousness of the crimes as to shock the public conscience’.[22] We considered the sentence to be within ‘the range’ set by the limits within which reasonable minds might differ on the appropriate sentence, as described by the Court in R v Macneil-Brown[23] , albeit right at the bottom end of that range.
[22]R v Josefski (2005) 13 VR 85, [13] (Maxwell P).
[23](2008) 20 VR 677, [10] (Maxwell P, Vincent and Redlich JJA).
Given our decision that the sentence was not manifestly inadequate, there was no need to consider whether the Court would, nevertheless, have intervened in the exercise of its discretion. We note, however, that we would have been disinclined to impose a sentence of immediate imprisonment upon the respondent, bearing in mind the operation of the principle of double jeopardy when a respondent has been serving a sentence in the community and the respondent’s particular efforts to rehabilitate himself.[24]
[24]See, eg, DPP v Vestic [2008] VSCA 12; DPP v BW [2007] VSCA 171.
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