Director of Public Prosecutions v Ralph
[2007] VSCA 305
•14 December 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 274 of 2007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDAN RALPH |
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JUDGES: | BUCHANAN JA and COLDREY and CAVANOUGH AJJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 November 2007 | |
DATE OF JUDGMENT: | 14 December 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 305 | |
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Criminal Law – Sentencing – Crown Appeal – Intentionally causing serious injury – Offender suffering from schizophrenia – Mitigating factor – Release on parole – Evidence of rehabilitation – Sentence of 18 months’ imprisonment with a minimum term of nine months’ imprisonment not manifestly inadequate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M A Gamble SC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Respondent | Mr D J Ross QC With Mr J J Lavery | Brugman Mellas Barristers and Solicitors |
BUCHANAN JA:
In my opinion the appeal should be dismissed for the reasons stated by Coldrey AJA.
COLDREY AJA:
On 27 July 2007 Brendan Ralph (the respondent) pleaded guilty in the County Court at Melbourne to one count of intentionally causing serious injury (count 1) and one count of criminal damage (count 2). On 9 August 2007 the respondent was sentenced on count 1 to imprisonment for 18 months; and, on count 2, imprisonment for one month. It was ordered that count 2 was to be served concurrently with the sentence on count 1 resulting in a total effective sentence of 18 months. It was further ordered that the respondent serve a term of imprisonment of 9 months before becoming eligible for parole. Pre-sentence detention, calculated pursuant to s 18 of the Sentencing Act 1991 (the Act) was reckoned at 240 days.
The maximum sentence for intentionally causing serious injury is 20 years’ imprisonment and for criminal damage, 10 years’ imprisonment.
At the time of the commission of these offences, the respondent was 21 years of age and is currently 22 years old. He admitted three prior convictions, namely aggravated burglary; being in possession of a controlled weapon without excuse; and going equipped to steal or cheat. These were the subject of a single court appearance at the Broadmeadows Magistrates’ Court on 27 April 2005 when the respondent was sentenced to a Community Based Order for a period of 12 months with a special condition to attend for assessment and treatment in relation to psychiatric and psychological issues.
Although not a prior conviction, the respondent was also before the Court on 24 November 2006 for offences that occurred in 2005. These included unlawful assault; use threatening words in a public place; behave in an offensive manner in a public place (which related to a hotel fight while the respondent was intoxicated);
attempting to obtain property by deception (which involved an endeavour to cash some cheques); intentionally damage property (which involved breaking a window at a tram shelter); retention of stolen goods; going equipped to steal; and fail to answer bail. Overall, the respondent was sentenced to 100 days’ imprisonment, 60 days of which were suspended for 12 months.
The Acting Director of Public Prosecutions has appealed against both the individual sentences, the total effective sentence, and the non-parole period on the ground that each is manifestly inadequate. The particulars of that ground are as follows:
In imposing a head sentence of 18 months’ imprisonment and in fixing a non-parole period of 9 months’ imprisonment, the learned sentencing judge:
(a)failed to adequately reflect the gravity of the offence generally and in this case in particular;
(b)failed to take into account or sufficiently to take into account the aspect of general deterrence;
(c)failed to take into account or sufficiently to take into account the aspect of specific deterrence;
(d)failed to take into account or sufficiently to take into account the sentencing principles of denunciation and punishment;
(e)gave insufficient weight to the effect of the offence upon the victim, and in particular the injury suffered by the victim;
(f)gave insufficient weight to the Respondent’s relevant prior criminal history;
(g)gave insufficient weight to the applicable maximum penalty for the offence alleged in count 1 (20 years);
(h)gave too much weight to the principles set out in R v Tsiaras and R v Verdins;
(i) gave too much weight to factors going to mitigation.
Before turning to consider this single ground of appeal, it is convenient to outline the facts which constitute the offences upon which the respondent was sentenced.
On 13 November 2006 the respondent was residing at a Coburg boarding house operated by Northern Suburbs Accommodation Centre. He arrived home at about 8.00pm, having consumed between four and five Woodstock bourbon and cola cans since about 4.00pm. The sentencing judge found that he was under the influence of alcohol when he unsuccessfully attempted to open the rear doors of the premises with his key. Having failed to achieve this objective, the respondent pushed on the door which was a glass paned wooden door, causing one of the glass panes to break. (This was the count of criminal damage).
At about 9.45pm the other three residents of the premises, including the victim, arrived home. The victim was in an intoxicated state and, upon observing the broken door, he made some comments about the respondent which were of a derogatory nature. A heated conversation between the two of them followed and the respondent grabbed the victim, threw him to the floor, and kicked and punched him. The other residents intervened and the respondent went to his bedroom whilst the other residents carried the victim to his room. Those residents then left the premises, being fearful of what the respondent might do.
Thereafter the account of events is principally that of the respondent, the victim having little recollection of what occurred.
According to the respondent he entered the victim’s bedroom and there was a further verbal altercation. Thereafter, for a period of about four hours, the victim was the subject of a series of intermittent assaults in his bedroom during which he was repeatedly punched and kicked to the head and face.
At 2.38am on 14 November the respondent desisted from these attacks, having been begged to do so by his victim, and, in response to the victim’s pleas, he called an ambulance.
When the ambulance officers arrived the respondent told them that the victim had arrived home in that state.
Ambulance officers described the victim’s head as grossly swollen and he was taken to the Royal Melbourne Hospital where examination revealed a laceration above his right eye that required suturing; he had significant maxima and orbital swelling, and was initially unable to open his eyes due to the swollen condition of his face. There was also tram track bruising over the right scapula region and over the posterior lower ribs. A CT scan revealed a small cerebral contusion in the right temporal lobe with subarachnoid blood. The victim remained in the Royal Melbourne Hospital until 17 November 2006, a period of four days.
Whilst there is no victim impact statement or subsequent medical report, it can be safely assumed that the victim suffered at the very least significant pain and a period of ongoing physical discomfort and psychological trauma.
Later that morning the respondent packed his personal belongings and left the residence, going first to his workplace where he resigned and requested his final pay cheque as he was leaving town. In the course of a conversation with his employer, he told him what had occurred. The respondent then took public transport to Geelong where he was arrested at Norlane in the vicinity of his mother’s home.
In an interview characterised by its frankness, the respondent admitted the attack, stating that he had done it because he was paranoid the victim would hurt him and, consequently, had acted first. He admitted that the attack continued for a few hours and said that each time the victim tried to get up he either punched or kicked him until he stayed down. The respondent further stated that he had punched the victim 15 to 20 times with a similar number of kicks which included stomping on the victim’s head.
As the particulars of the ground of appeal indicate, no specific sentencing error is identified. Rather, the particulars are generally couched in terms of a failure to adequately reflect the gravity of the offence or the aspects of special and general deterrence, and the insufficiency of weight accorded to the respondent’s prior criminal history, on the one hand; and the excessive weight accorded to mitigating factors and the principles set out in R v Tsiaras and R v Verdins, on the other.
On the facts that I have set out, there can be no doubt that this was a serious example of the offence of intentionally causing serious injury. This was recognised by his Honour who stated:
This is without doubt a serious offence. In all the circumstances I have no alternative to the imposition of a custodial sentence.
Not only did he describe the offence as ‘a sustained and brutal attack’, he was also cognisant of its effect on the victim, commenting:
… It is clear from material supplied to me that there was considerable suffering on the part of the victim as a result of your action.
And, further:
I have no doubt the effects on your victim have been shattering and it will take him a very long time to get over the effects of what occurred on that evening.
However, as is clear from the sentencing judge’s remarks, the respondent was able to rely on a number of mitigating factors. These included his plea of guilty, his remorse, his difficult upbringing, and his relative youth at the time of the commission of these offences.
If this was the sum total of the factors upon which the respondent could rely, I would have no hesitation in stating that this sentence was manifestly inadequate. In doing so, I would not need to rely on the sentencing statistics relating to sentences passed for this offence between 2001 and 2005.[1]
[1]Sentencing Snapshot (No 12) September 2006.
The use of sentencing statistics of this nature provides a crude tool by which to measure the appropriateness of any individual sentence. It is trite to observe that such statistics provide no indication of the facts and circumstances relating to a specific offence and specific offender. In this regard, such material is of even more limited assistance than that sought to be derived by a comparison of individual cases. However, what those statistics make clear is that the sentencing range for this offence during the period cited varied from immediate custodial sentences to suspended sentences, intensive correction orders and community based orders.[2]
[2]See DPP (Vic) v Fevaleaki (2006) 165 A Crim R 524, [19]-[20] on the matter of sentencing statistics.
In any event, in the instant case, the sentencing judge regarded an immediate custodial sentence as necessary.
However, that is not an end to the matter. The sentencing judge placed great weight upon the respondent’s psychiatric condition in arriving at what he regarded as an appropriate disposition. His Honour had the benefit of a psychiatric report prepared by Dr Lester Walton. That report reveals a referral as early as the respondent’s eleventh year to a child psychiatrist under the auspices of the Early Psychosis Prevention and Intervention Centre in Parkville (EPPIC), a psychiatric program for young persons which tended to specialise in fairly major mental disorders. The respondent returned to EPPIC when he was 15 years of age and continued outpatient counselling intermittently for the next two years, although apparently he was not medicated.
Dr Walton expressed the opinion that the respondent was appropriately diagnosed as suffering from schizophrenia, the onset of which had been accelerated by the use of cannabis. He noted that the respondent had referred to hallucinatory experiences as well as entertaining paranoid ideas on occasions preceding the incident resulting in these charges. Whilst Dr Walton was of the view that the twin episodes of assault and the subsequent calling of an ambulance indicated an awareness by the respondent of the nature of his actions and an appreciation that what he was doing was wrong (thus depriving him of the defence of mental impairment) Dr Walton was also of the view that the respondent’s mental illness should be considered as having made some contribution to his misconduct ‘…. it being well recognised that an illness such as schizophrenia does compromise a person’s capacity to consistently exercise proper social judgment.’
In light of this uncontradicted psychiatric material, the sentencing judge, in the application of R v Verdins & Ors,[3] was of the view that the moral culpability of the respondent’s offending conduct was reduced, and that both general and specific deterrence should be moderated. I agree with that conclusion.
[3](2007) 169 A Crim R 581.
In his exercise of the sentencing discretion his Honour also took into account that, since the diagnosis of the respondent’s mental illness, he had complied with his medication regime and shown some insight into his behaviour. Moreover, the sentencing judge found that the respondent’s prospects of rehabilitation were ‘very good’. The evidence on the plea, which his Honour also accepted, was that:
The time in custody has done him good. He has sought and received counselling. He is now medicated and feels a lot calmer.
I have already listed the particulars upon which the Acting Director asserts the manifest inadequacy of the sentences. It has been remarked many times that manifest inadequacy, like manifest excess, is not a concept capable of attracting lengthy argument. Moreover, in considering any Director’s appeal, an appellate judge ought to be mindful of the comments of Callaway JA in R v Bernath:[4]
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 contrast with a ground that asserts that the judge disregarded such a factor altogether or took an irrelevant factor into consideration. Where 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 identifiable or manifest sentencing error.
[4][1997] 1 VR 271, 277.
Further, as the authorities make clear (see for example DPP (Vic) v Bright,[5]) one aspect of the concept of double jeopardy which is raised by a Crown appeal involves the consideration by a court as to whether it should exercise its discretion to allow such an appeal at all.
[5](2006) 163 A Crim R 538, [10].
The application of legal principle to all of the factual circumstances of this appeal leaves me unpersuaded by the arguments advanced by the appellant that any aspects of the sentence imposed could be characterised as manifestly inadequate. I am strengthened in my view that this appeal should not succeed by the circumstance that, on 11 September of this year, the respondent was released from custody and has apparently made further progress on the path to rehabilitation.
At the request of the Court, the legal representatives of the respondent supplied a number of affidavits confirmatory of this assertion. These affidavits should remain on the Court file.
The affidavits reveal that the respondent is in employment as a factory hand at Feature Finish Australia Pty Ltd in Tullamarine. According to his employer, it is expected that the respondent will continue as a full time employee. Moreover, his employer is aware of the respondent’s parole obligations and allows him time to keep any necessary appointments. The respondent is presently residing with his paternal uncle and wife in Broadmeadows. They are assisting him in the management of his money and in settling back into a life outside the prison environment. Since his release the respondent has also kept in contact with his father. Finally, the affidavit material indicates that the respondent is undertaking all his parole obligations and is also attending Forensicare where, according to his drug and alcohol counsellor, he is doing well.
It follows from the foregoing reasons that I would dismiss this appeal.
CAVANOUGH AJA:
I agree with Coldrey AJA.
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