Director of Public Prosecutions v Wilkins

[2009] VSCA 275

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No  S APCR of 2009 0747

DIRECTOR OF PUBLIC PROSECUTIONS (VIC)

v

JACOB KEVIN WILKINS

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JUDGES:	BUCHANAN and WEINBERG JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 November 2009
DATE OF JUDGMENT:	26 November 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 275
JUDGMENT APPEALED FROM:	(Unreported, Melbourne County Court, 24 June 2009, Judge Murphy)

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Criminal law – Crown appeal – Recklessly causing serious injury – One punch to the head of the victim – Closed head injury sustained as a result of victim’s head hitting the ground – Injury a consequence unintended by the offender – Sentence of 18 months’ imprisonment wholly suspended not manifestly inadequate.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr P F Tehan QC with Ms C R Gwynn	McNamaras

BUCHANAN JA:

1. The Director has appealed against a wholly suspended sentence of 18 months' imprisonment imposed upon the respondent when he pleaded guilty to a presentment containing one count of recklessly causing serious injury. 

1. The offence was committed when the respondent and a companion left a party and encountered the victim, one Jason Gulle.  A witness described the respondent as being very drunk.  Mr Gulle was also described as drunk.  The respondent knew Mr Gulle.  There was a verbal exchange between the respondent and Mr Gulle.  The respondent later told the police that Mr Gulle made a reference to drugs.  Mr Gulle denied referring to drugs and said that there was an argument over a bottle of vodka.  At all events, the respondent punched Mr Gulle on the jaw.  As a consequence, Mr Gulle fell and struck the back of his head, sustaining a closed head injury. 

1. Mr Gulle suffered bruising to the brain and a fracture of the occipital bone at the base of his skull.  He spent eight days in hospital in intensive care in an induced coma.  When the respondent was sentenced some eighteen months after the assault, Mr Gulle was still undertaking rehabilitation for his injury.  He suffered anxiety, loss of sleep, and had a post-traumatic stress disorder.  The sentencing judge referred extensively to victim impact statements made by Mr Gulle and his parents which outlined the significant effects of the assault on Mr Gulle.

1. The respondent is now 20 years old.  He was 18 years old when the offence was committed.  The respondent has no prior convictions.  He was one of three children in a close family.  He left school in year 11 and has been engaged mainly in labouring occupations.  He commenced a wall and tile apprenticeship, but did not persist with it for economic reasons.  The respondent began to use cannabis in his mid-teens and used it so heavily that his father ordered him out of the house.  After the commission of the offence, the respondent made efforts to combat his addiction, seeking counselling, and has been accepted back into the family home. 

1. Immediately after the commission of the offence, the respondent hid from the police, and the next day denied any involvement when he was questioned by the police.  A few days later, the respondent admitted his guilt to his father and attended at a police station and made a record of interview admitting to the assault. 

1. There was evidence from several witnesses that the respondent was remorseful.  The respondent wrote a letter of apology to the victim, which the sentencing judge regarded as 'a genuine apology'.  Other references before the court indicated that the respondent did not have a violent disposition.

1. In the course of the plea a report by a forensic psychologist was tendered.  The psychologist also gave evidence.  The psychologist said in her report that the respondent was of low average intelligence.  She noted that the respondent displayed empathy to his victim and remorse.  She said that the respondent's behaviour was:

likely to be a function of the inhibition of his substance abuse in combination with (a) his reported social anxiety, (b) his history of being bullied, and (c) his perception of intimidation amplifying his reactivity'. 

The psychologist went on to say that she estimated the risk of the respondent re-offending as 'very low'.  She also said that the respondent was immature for his chronological age.

1. The sentencing judge caused the respondent to be assessed for the purpose of determining whether to make a youth justice centre order.  The maker of the assessment reported that the respondent:

presents as being susceptible to the adverse influence of adult prison due to his impressionability, immaturity, small physical stature, as well as having no prior custodial sentences.  Furthermore, Jake disclosed minimal signs of antisocial behaviour atypically characterises habitual young offenders.

The author of the report stated that she was concerned about the effects upon the respondent of adult prison, and also, though to a lesser extent, a youth justice centre.

1. The sole ground of the appeal is that the sentence is manifestly inadequate, and the total suspension of the sentence also resulted in a manifestly inadequate sentence.  The particulars of this ground are in the usual terms, contending that the sentencing judge failed to have sufficient regard to matters such as general deterrence and the circumstances of the offence and gave too much weight to mitigating factors such as the plea of guilty.

1. Counsel for the Director emphasised the gravity of the injury sustained by Mr Gulle and the impact of the injury upon the victim and his family.  The gravity of the offence was recognised by the sentencing judge in his careful sentencing remarks.  He said that the respondent was guilty of 'an outrageous act'.  He said that 'a punch with a closed fist to the head or jaw is an inherently dangerous act'. 

1. The sentencing judge also recognised significant countervailing factors.  He described the decision before him as difficult, saying: 

On the one hand there was a violent punch to the head resulting in unforeseen near-catastrophic consequences which have had a continuing impact on the complainant and his family, as evidenced in the victim impact statements.  On the other hand, the law has always been solicitous to the interests of youthful offenders and the need for their rehabilitation.  This particularly applies where a first offender is involved and there are indications that there are good prospects for rehabilitation.

His Honour pointed out that the punch thrown by the respondent was 'a single, isolated, out of character punch'.  He also accepted that the respondent had displayed insight into his conduct and was remorseful.  He said that the risk of re-offending was very low.  He also referred to the depression suffered by the respondent, which was a result of a genetic predisposition, and said that he was in a vulnerable psychiatric state.  His Honour said:

You are a youthful offender.  The offending was out of character.  You have insight into your conduct.  You have expressed remorse.  You have taken steps to rehabilitate yourself back in the community.  The serious consequences of a single blow were beyond your contemplation.  You have learned a very salutary lesson from that.  You are psychologically vulnerable with a history of depression.

1. In my opinion, it has not been demonstrated that the sentencing judge erred in synthesising as he did the factors pointing in different directions.  While the severity of the consequences suffered by a victim of a criminal offence must be taken into account, they 'ought not to be permitted to swamp all other sentencing considerations', to use the words of Eames JA in Director of Public Prosecutions v Cook[1]. 

   [1](2004) 141 A Crim R 579, 586-7 [17].

1. Counsel for both the Director and the respondent relied upon statistics and decided cases.  In my opinion, the assistance which statistics and the facts that other cases provide is limited.  The decided cases, however, disclose that the imposition of a non-custodial sentence for an offence of intentionally or recklessly causing serious injury does not necessarily indicate sentencing error.[2]  The cases exemplify the approach of the President in Director of Public Prosecutions v Tokava[3], where his Honour said:

A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community's interest will be best served by that course.  This Court should seek to promote public understanding of the fact that, apart from the interest of the individual whom it is sought to rehabilitate, an important interest in itself, there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime.

[2]See, for example, Director of Public Prosecutions v Coley [2007] VSCA 91; Director of Public Prosecutions v Fevaleaki (2006) 165 A Crim R 524; R v Economedes (1990) 58 A Crim R 466 and Director of Public Prosecutions v Toumngeun (2008) 184 A Crim R 573.

[3][2006] VSCA 156, [21].

1. I am far from being persuaded that the disposition by the sentencing judge constituted the rare, exceptional circumstances to which Crown appeals should be limited.  In the circumstances of this case, the sentence was not so disproportionate to the seriousness of the crime as to shock the public conscience.[4]  The weight to be given to unintended consequences in this case did not require the imposition of a sentence of immediate imprisonment. 

   [4]See R v Clarke [1996] 2 VR 520, 522 (Charles JA).

1. I would dismiss the appeal.

WEINBERG JA:

1. I agree, for the reasons given by the learned presiding judge, that the appeal should be dismissed.

COGHLAN AJA:

1. I agree.

BUCHANAN JA:

1. The order of the Court is that the appeal is dismissed.

1. It will be recorded in 'Other Matters' that a certificate under s 14 of the Appeal Costs Act1998 will be granted to the respondent.

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