DPP v Anderson
[2013] VSCA 45
•7 March 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0182
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| MICHAEL ANDERSON[1] | Respondent |
[1]A pseudonym has been used so as not to identify the respondent.
| _______________________________________________________________________________ |
| Court of Appeal |
| 459 Lonsdale Street, Melbourne, Vic, 3000 |
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| JUDGES | MAXWELL P, NEAVE JA and KAYE AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 25 February 2013 |
| DATE OF JUDGMENT | 7 March 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 45 |
| JUDGMENT APPEALED FROM | DPP v [Anderson] (Unreported, County Court of Victoria, Judge Rizkalla, 31 July 2012) |
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CRIMINAL LAW – Appeal – Sentence – Director’s appeal – Intentionally causing serious injury – Young offender – Unprovoked knife attack – Severe knife wounds – Prior convictions for violence – Sentencing uplifted from Children’s Court to County Court – Sentence of 4 years with non‑parole period of 2 years – Objective gravity – Specific deterrence – Importance of rehabilitation of young offender – Sentence manifestly inadequate – Resentenced to 6 years’ imprisonment with non‑parole period of 3 years 6 months – Children, Youth and Families Act 2005 (Vic) s 356(3).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr D Gibson | Victoria Legal Aid |
MAXWELL P
NEAVE JA
KAYA AJA:
Summary
This appeal by the Director of Public Prosecutions concerns the sentencing of a young offender for a very serious offence of violence. It highlights, once again, the difficulty faced by sentencing judges in endeavouring to strike a balance between, on the one hand, the need to maximise the young offender’s prospects of rehabilitation and, on the other, the need to fix a sentence which recognises the objective gravity of the offending and serves the important sentencing objectives of denunciation, community protection and specific deterrence.
As will appear, the present case presented particular difficulties for the sentencing judge. The respondent (‘Michael Anderson’[2]) had used a knife to inflict grievous injury, without cause, on an innocent bystander. He was just under 18 at the time. He had a significant record of violent offending. His background, however, was one of overwhelming disadvantage. He suffered physical abuse, first from his father and then from his stepfather, and was taken into State care from the age of 12. His personality deficits and his tendency to isolate himself from others make his prospects of rehabilitation uncertain at best.
[2]To prevent identification of the respondent, who was under 18 at the time of the offences, this judgment has been anonymised by the adoption of a pseudonym.
For reasons which follow, we have concluded that the Director’s appeal against the sentence should be upheld. Recognising that proper weight needed to be given both to Anderson’s youth and to the great difficulties from which he has suffered, we are nevertheless persuaded that the sentence did not adequately reflect the objective gravity of the offending or the need for specific deterrence.
Unless, however, the correctional authorities are able to engage with Anderson on a sustained basis, and provide him with the treatment and other support he needs, both in custody and on parole, there can be no assurance that he will refrain from future violence.
The proceeding
On 2 May 2012, Anderson (now aged 19) pleaded guilty to theft, recklessly causing injury and intentionally causing serious injury. Following a plea hearing before her Honour Judge Rizkalla in the County Court, he was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Theft[3] 10 y 14 days Concurrent 2 Recklessly cause injury[4] 10 y 12 m Concurrent 3 Intentionally cause serious injury[5] 20 y 4 y Base sentence Total Effective Sentence: 4 y Non-Parole Period: 2 y Pre-sentence Detention Declared: 283 days 6AAA Statement: 5 y, 6 m, non-parole period 3 y Other orders: Disposal order [3]Crimes Act 1958 (Vic) s 72.
[4]Crimes Act 1958 (Vic) s 18.
[5]Crimes Act 1958 (Vic) s 16.
The matter had initially been listed in the Children’s Court, but was uplifted to the County Court after an application by the Director under s 356 of the Children, Youth and Families Act 2005 (Vic) (the ‘CYF Act’). The basis of that application, and the reasons for the magistrate’s decision, are examined below.[6]
Circumstances of the offending[7]
[6]See [23]–[27] below.
[7]Paragraphs [7]–[20] are taken from the appellant’s written case.
The offences were committed on 22 October 2011. Anderson travelled by train with his friends K and S to Melbourne Central, where Anderson and S obtained two bottles of bourbon and three of pre‑mixed drinks. Anderson and S each drank a bottle of pre‑mixed drinks. The trio then caught a train to Caulfield train station, arriving at 8.30pm.
S entered the Caulfield Plaza Coles supermarket and attempted to steal a bottle of soft drink. He was stopped by staff and returned to the entrance where he relayed to Anderson and K what had occurred.
Anderson and K entered the supermarket. Anderson took five packets of condoms, lubricant and lip balm and concealed these items down his pants (count 1 — theft). The value of the items was approximately $50.
A female staff member, B, approached Anderson and asked him to return the items. He refused, and attempted to walk away but was prevented from doing so by B. After several staff members surrounded Anderson, he removed the items and returned them to staff. Anderson refused B’s request to accompany her to the staff room at the rear of the store and walked away. She blocked his path and they pushed one another. Anderson further resisted attempts by staff to guide him to the rear of the store. A struggle took place and Anderson was restrained by two Coles workers, IS and G.
Anderson aggressively and violently resisted IS and G. He continually tried to punch them and attempted to burn G with a cigarette lighter. As they escorted Anderson to the rear of the store, Anderson kneed IS in the upper leg. IS then head‑butted Anderson. Anderson in turn head‑butted IS and swung his head trying to strike IS again. Anderson was further restrained, with G holding his arms and placing him in a headlock. Both Anderson and IS suffered head and facial injuries. K approached Anderson and endeavoured to calm him down. IS left the area, as he had sustained a large welt above his eye and was having an anxiety attack. He suffered bruising, swelling and a small laceration to his right eyebrow (count 2 — recklessly cause injury).
Anderson was escorted to the rear area of Coles by G where he released his hold over Anderson. Anderson continued to act aggressively towards G. S entered the rear store area and told G to let Anderson go. G felt intimidated and left the rear of the store and went to call police.
Anderson subsequently entered an aisle in the supermarket, took a large kitchen knife from the shelf and removed the packaging. He walked to the front of the store and then back to the rear, where he saw JT, a Coles service assistant.
JT was 28 years of age. He suffers from an intellectual disability. He had been present during earlier altercations, but was not involved in restraining Anderson.
Anderson grabbed JT by the scruff of the neck with one hand, whilst holding the knife in his other hand. He forced JT into the rear store area of Coles and demanded to know where his bag was, saying, ‘If you don’t tell me where my bag is I’ll shank you’. JT told Anderson that he did not know where his bag was.
Anderson swung the knife and slashed JT’s left arm causing a large laceration between the shoulder and the elbow. JT asked Anderson to stop. Anderson hacked JT twice more to both legs, causing two more large lacerations (count 3 — intentionally cause serious injury).
JT collapsed to the ground and was discovered lying in a pool of blood by a 17‑year‑old employee of Coles. He was transported to the Alfred Hospital in a life‑threatening condition.
JT sustained a stab wound to the middle of the back, a large laceration to his left upper arm and large lacerations to both upper legs. All three lacerations were to the bone, and required surgical repair. The laceration to the left arm resulted in complete left radial nerve laceration. JT has had no neurological return and has no function in the fingers and thumb of his left hand. His prognosis in respect of its return is guarded. He spent several months in hospital and in rehabilitation after the incident and continues to have physiotherapy. He suffers sclerosis on his arm, which requires treatment three times a week.
Anderson left JT lying on the ground and walked back through the store and out of the Plaza. He ran past S with the knife as he was leaving and said, ‘Let’s go, let’s go’.
Anderson walked to the Caulfield train station and disposed of the knife by throwing it onto the roof of a café adjacent to the station. He then walked back to the Plaza looking for his friends. Upon seeing the police arrive he attempted to flee but was tackled and apprehended. Upon his arrest he complained, ‘I didn’t do anything, why are you arresting me?’.
Anderson was conveyed to Moorabbin police station and assessed by a forensic medical officer, who recommended that he be allowed to sleep for six hours prior to being interviewed. He was interviewed on 23 October 2011 in the presence of an independent third person. Anderson stated that S had given him some ‘date rape’ pills earlier in the afternoon, which he had taken under peer pressure. He claimed that as a result he had no memory of the incident at Coles.
At the request of counsel for the Director, a closed circuit television recording was played during the appeal hearing. It showed Anderson’s activities inside the store, including his altercations with staff and his subsequent walking through the store carrying the knife (before the stabbing occurred). As counsel submitted, Anderson appeared at all times to be acting purposefully and deliberately, albeit that he was clearly angry when confronted by staff. His conduct in throwing the knife away to avoid detection was consistent with these observations.
Transfer from Children’s Court
Section 356(3) of the CYF Act provides as follows:
If a child is charged before the Court with an indictable offence, other than murder, attempted murder, manslaughter, child homicide, defensive homicide, an offence against s 197A of the Crimes Act 1958 (arson causing death) or an offence against s 318 of the Crimes Act 1958 (culpable driving causing death), the Court must hear and determine the charge summarily unless—
(a)before the hearing of any evidence the child objects; or
(b)at any stage the Court considers that the charge is unsuitable by reason of exceptional circumstances to be determined summarily—
and the Court must conduct a committal proceeding into the charge and, in the circumstances mentioned in paragraph (b), must give reasons for declining to determine the charge summarily.
The prosecution relied on s 356(3)(b) in submitting to the Children’s Court magistrate that there were exceptional circumstances which made the charge of intentionally causing serious injury ‘unsuitable … to be determined summarily’. As recorded in the magistrate’s reasons, the prosecutor argued that:
(a)Anderson’s conduct, and the injuries suffered by the victim, placed the charge of intentionally cause serious injury ‘at the top end of the range of such offences’;
(b)Anderson had a significant prior history in the Children’s Court, which included a history of violent offending. He had received ‘multiple good behaviour bonds, multiple probation orders, multiple youth supervision orders and multiple orders for detention in a youth justice centre’;
(c)Anderson was on parole at the time of the current offences;
(d)Anderson’s age at the time of the offending was ‘at the upper limit of the Children’s Court’s jurisdiction’; and
(e)given the seriousness of the offending and the matters personal to Anderson, the Children’s Court would not be able to exercise appropriate sentencing powers.
The defence submission was that, as a specialist court, the Children’s Court should be reluctant to relinquish its jurisdiction over a case such as this. The Court regularly dealt with serious assault matters, it was said, and a total effective sentence of up to three years’ detention would be appropriate for the offending as a whole, particularly having regard to totality. It was submitted that a sentence above that limit would be ‘crushing’.
The magistrate upheld the prosecution submission, giving the following reasons:
It is clear that the Children’s Court should only relinquish its jurisdiction with great reluctance. It is a specialist jurisdiction with a specialist approach to the criminality of children and young persons under the age of 18 years. I have sought guidance on the issue as to what constitutes ‘exceptional circumstances’ for the purpose of such a relinquishment from the following three main authorities in this area:
·D (a child) v White (1988) VR 87 Nathan J;
·A Child v A Magistrate of the Children’s Court & Ors (unreported) 24/2/1992 Cummins J;
·D L (A Minor by his Litigation Guardian) & Ors (unreported) 9/8/1994 Vincent J.
In particular, I have had regard to the comments of Vincent J in D L (A Minor by his Litigation Guardian) & Ors, where he said:
…that for very good reasons, our society has adopted a very different approach to both the ascertainment of and response to criminality on the part of young persons to that which is regarded as appropriate where adults are involved. It is only where very special, unusual, or exceptional, circumstances exist of a kind which render unsuitable the determination of a case in the jurisdiction specifically established with this difference in mind, that the matter should be removed from that jurisdiction to the adult courts.
The circumstances, severity, viciousness and gratuitous nature of the knife attack and the significance of the injuries suffered by the victim makes the offending a grave example of the offence of intentionally cause serious injury. The age of the accused at the time of the offending, his extensive prior criminal history, which include matters of violence, and the fact that the offence was committed whilst on parole, demonstrate an alarming escalation in violent offending behaviour by the accused. These matters combine to establish ‘exceptional circumstances’ within the meaning of s 356(3) of the Act. This is a case where the sentencing court would need to be able to consider the fullest possible range of sentencing options.
Although an aggregate term of three years’ detention could be imposed by the Children’s Court for all these offences, the Court is nonetheless restricted to an individual term of two years for the specific offence of intentionally cause serious injury. In the circumstances of this particular case, I do not consider that limitation on the powers of the sentencing court to be appropriate. Further, to impose an artificial inadequate sentence for this offence with orders for cumulation in respect of the other offences would be to offend against the prima facie rule for concurrency.
I have considered the issues raised by the defence relating to the totality principle, the time the accused has spent in custody over the last 12 months, and the necessity to avoid a crushing sentence, together with the other matters that would be put on a plea for the accused. Those matters do not persuade me that the Children’s Court would have the appropriate sentencing powers to deal with the accused.
We have set out his Honour’s reasons in some detail, as one of the principal submissions for Anderson in this Court was that offending no less grave than his was regularly dealt with in the Children’s Court, and that the Director’s argument of inadequacy had therefore to be assessed in the light of the maximum sentence which could have been imposed on Anderson by that court. It will be apparent from what follows that we reject that submission. In our respectful opinion, the decision of the magistrate was plainly correct, for the reasons his Honour gave.
The effect on the victim
As noted earlier, the injuries sustained by the victim were life‑threatening at the time of his admission to hospital. The sentencing judge made these findings:
He had sustained a stab wound to the middle of his back, a large laceration to his left upper arm and to both upper legs. He also sustained a left radial nerve laceration and to date has had no return of neurological movement. He has no function to his fingers and his thumb in his left hand. All three of these lacerations were to the bone and they required surgical repair. His physician stated, regarding his quadriceps, that he should get near normal function back, but in relation to the left arm laceration, because it was a complete laceration of the radial nerve, his prognosis is guarded in relation to that particular injury.
[JT] was several months in hospital in rehabilitation. He is still receiving physiotherapy. In fact, at the update on the second plea hearing, it was noted that he now suffers sclerosis on that arm which requires treatment three times a week.
…
[JT], in his statement, details his physical injuries and the effect on his life as a result. He is no longer able to do the things that he normally engaged in, walking, swimming, jogging, numerous everyday pursuits that he used to do. He needs daily care just to get on with his life and any plans he had, realistic plans he had, to be a dog trainer, something he was on the way to achieving, are now extremely doubtful. He has lost what was his dream occupation and his future hopes. He underwent painful medical procedures and hospitalisation and rehabilitation. He is no longer able to work. He describes profound effects on him psychologically and physically as well as on his family.[8]
[8]DPP v [Anderson] (Unreported, County Court of Victoria, Judge Rizkalla, 31 July 2012), [15]–[16], [18] (‘Reasons’).
Addressing Anderson, the judge continued:
I know you heard that in the hearing and expressed your regret through your counsel and I accept that you were genuine in expressing that at the time as you sat there in court. However, you do have to take responsibility for the effects on him and his family. This incident is not over for him or for his family.[9]
[9]Ibid [18].
The attack occurred while JT’s mother and father were away overseas. According to his mother’s victim impact statement, they had to return immediately to Australia, not knowing whether he would recover. His mother has had to retire from her work to care for him on a daily basis. She herself has required professional treatment because of the trauma and anxiety which she continues to experience.
An updated medical report was provided at the appeal hearing, showing that JT:
(a)has ongoing weakness in both legs;
(b)now has active wrist and finger extension in his left arm, and improving grip strength;
(c)may have ‘long‑term residual weakness’ in his legs and arm; and
(d)is suffering from anxiety/depression, for which he is seeing a psychologist on a weekly basis.
Anderson’s personal circumstances
Anderson endured physical abuse at the hands of both his father and his stepfather, and later in foster care. The abuse by his stepfather resulted in his coming to the attention of the Department of Human Services at the age of 12. He was initially subject to a ‘Custody to the Secretary Order’. From March 2006 onwards, he was in residential care. Beginning in October 2007, he was on various youth justice orders for offences to which reference will be made below.
The sentencing judge received a report from the Southern Youth Justice Program describing Anderson’s experiences in the youth justice system. Her Honour said:
Of interest in that report is that it is seen that at some point after you had been in the system for a period of time you suffered from what was called ‘social worker fatigue’, because of your constant interventions throughout the period of time that you were in that system. It is reported that you were regarded as a ‘pariah’ within the system; that not many other youths within the facility got on with you or liked you and that you regarded yourself, as you told psychologist Elizabeth Warren, as more mature than most of the others, and that that caused you problems which resulted in you generally being isolated. When you do go about your business in that system, you isolated yourself. It seems that you fared quite well when you did that. There is a real issue, it seems to me, in terms of your suitability in such a system where it is plain that if you come into contact with the other youth in the system, that contact is often negative, whether the violence is directed towards yourself or whether you direct violence towards others. It does mean and has meant that you cannot fully participate in courses and other activities, and that you basically survive by isolating yourself. I was told at the second plea hearing that recently there has been a little more involvement through English and Maths classes in the recent past.[10]
[10]Ibid [23].
The judge noted that Anderson’s education was limited. He completed primary school and one term of Year 7 at a secondary college, but was then expelled. He then attended Berry Street School spasmodically. He did some training through 2008 and 2009, but was ultimately expelled again.
Two expert reports were before the Court. The first was from Ms Elizabeth Warren, clinical psychologist, who assessed Anderson and also had access to a number of other reports prepared in relation to him. Her Honour summarised the conclusions of that report as follows:
She noted that you had a generalised anxiety disorder of a mild clinical range, that she saw post‑traumatic stress disorder symptoms, suicideology and self‑concept disorder of a moderate clinical range. She also saw that you had disorder symptoms to some degree and an oppositional defiance disorder, which led to you appearing to always want to take the opposite view to anyone in authority. She noted you did not appear to present with significant depression issues despite the fact that you had predominantly negative thinking patterns, particularly in regard to self‑worth and further, that you were regularly taking the anti‑depressant, Prozac, as prescribed.
She notes, however, that you never felt good about yourself and that you have some profound identity confusion. She noted from comments that you made that you were concerned about the harm that you caused to the main victim in this offending and that you stated that you would normally not have done anything to harm another person. You indicated you did not really recall the incident, and she accepted that that was a genuine lack of recollection. Retrospectively, you have indicated to her that you consider what you did as seriously wrong and she accepts that as genuine.
She was of the opinion that the combination of alcohol and the drug that you had taken, disinhibited your chronic and severe anger.
In the report she notes that the risk you are to others remains ‘while he has chronic severe underlying anger and a tendency to impulsivity especially when it is combined with any substance that is disinhibiting for his disturbance’. She suggests a possible pharmaceutical intervention would be useful to reduce your aggressive impulses.[11]
[11]Ibid [26]–[29].
After the first plea hearing, and at the request of counsel for Anderson, a further forensic report was obtained, this time from Dr Danny Sullivan, consultant psychiatrist. Her Honour’s summary of the relevant parts of that report was in these terms:
He reported that whilst you were at Youth Justice, you spent most of your time in your room and rarely came out and I quote:
He felt that the others were immature ‘they talk shit’. He stated that he related better with staff because they were ‘older people’. He reported some months ago to intermittently requiring placement in isolation when he was angry or felt that he had been unjustly treated.
In regard to your mental state at the time of the assessment, he notes that you presented with features of personality difficulties which he described as a mixed personality disorder. He saw antisocial, narcissistic and borderline features which make you prone to angry outbursts and self‑harm, and I quote:
His range of emotional expressions [is] otherwise shallow and he appears to have reduced capacity for empathy. [Anderson] experiences marked interpersonal difficulties and impresses as alienated and aloof from others but easily embroiled in conflictual relationships with his peers.
He notes you have been treated with anti‑depressants although he was not clear whether you in fact had a significant depressive illness, but that it was likely. He noted a reported reduction in violent episodes since you have been on remand and further he notes you have a propensity to polysubstance abuse involving alcohol, cannabis, prescription pills and inhalers, although he saw no indication of dependence on them.
You are of normal intellect in his view and he says it was likely you were intoxicated at the time of offending and notes your self‑report of amnesia and taking a prescription drug is consistent with the toxicology findings in the depositional material. You were not prescribed Rivotril, a powerful benzodiazepine for the control of epilepsy, which was found in your system. He notes that drug can induce aggressive behaviour associated with amnesia.
The effects, he says, appear to have been disinhibition and impair your capacity to make proper judgment. He also notes that your abnormal personality was likely to have been more evident, in particular, poor mood regulation and angry outbursts. He noted that you will find incarceration or detention burdensome because of your youth, your poor interpersonal skills and difficulties, which he felt would result in isolation and alienation from peers and that you will need to continue medication and psychiatric follow‑up for the foreseeable future.
He also considered imprisonment in an adult prison and said, ‘I consider that he will be [at] a marked increase risk of assault, deterioration in mental state and self‑harm’, and, ‘I consider that his last opportunity for any rehabilitative input would occur in the youth justice system’. He said this on the basis that he believed that there you would have some opportunity for sustained input from staff with therapeutic goals and experience in dealing with youths.
He contrasted that against the likelihood that in adult prison, he said, you would likely be moved between a range of prisons, that that would impact upon your limited capacity for engagement with others, and he felt the therapeutic endeavours there would be limited because of your bland presentation and pseudo‑maturity. He made no reference, however, in that assessment to how he would see you functioning within the youth unit in the adult prison system, as opposed to the general population, which, in my view, would have been pertinent and useful as a comparison.
Further, although he noted the difficulties that currently face you in youth detention, that is that you spend a great deal of your time on your own, that you are isolated and you are not fully engaging with educational pursuits or other therapeutic goals, he still reached the conclusion that that would be a better and more appropriate option in terms of offering some prospect of rehabilitation.[12]
[12]Ibid [31]–[38].
Her Honour concluded:
Based upon your history and these reports, it is clear that any prospect of rehabilitation is dependent on you engaging with professionals and receiving appropriate treatment. If you do not, in my view, the likelihood of you re‑offending is a high one.[13]
[13]Ibid [38].
The importance of this finding for Anderson’s future management — and for his future — cannot be overstated.
Reduction of moral culpability?
The plea submission for Anderson was that some moderation of moral culpability was appropriate because of the combination of Anderson’s disability and his alcohol and drug consumption. As the judge recorded in her reasons, it was submitted that this combination
had the effect of impairing your capacity to control your violent impulses and to make rational choices at the time.
The Crown conceded that it was open to the judge to find that Anderson was affected by a combination of alcohol and drugs at the time of the offending, but did not accept that this warranted any significant moderation of his moral culpability.
Her Honour’s finding was as follows:
I accept your ability to properly control your impulses and your violence, which are to some degree part of your disorder, was affected by the substances that you took, but it cannot be said that you did not know what you were doing and that it was wrong. It cannot be said that the use of a knife in these circumstances did not lead you to conclude that you would seriously injure the victim. Your disorder as such did not deprive you of the ability to reason to that extent, rather, you were disinhibited by the substances you took so as to lack the ability to properly control your violent impulses. On that basis, I am not satisfied that you are entitled to any but minimal reduction of moral culpability in the circumstances of this offending.[14]
[14]Ibid [40].
Neither party to the appeal took issue with this finding, which was of course a finding of fact.[15]
[15]Carroll v The Queen [2011] VSCA 150 [17]–[18].
Youth or adult custody?
Submissions were made on the plea as to whether Anderson should be sentenced to youth or adult custody. The Crown contended, as it had in the Children’s Court, that the seriousness of the offending required an immediate term of imprisonment and that youth justice detention (to a maximum of two years on any one offence and a maximum of three years in total) was not appropriate. The defence submission, on the other hand, was that Anderson should be sentenced to youth custody because he was aged 17 at the time of the offending. (He was aged 17 and 10 months.)[16] It was contended that, notwithstanding the transfer of the matter from the Children’s Court, the case could ‘properly be dealt with within the three year maximum detention period’.
[16]Under the definition in s 3 of the CYF Act, a ‘child’ is a person who was between the ages of 10 and 18 at the time of the commission of the (alleged) offence.
The judge concluded that youth detention was not appropriate. Her reasons were as follows:
The overall maximum of three years’ detention is not, in my view, sufficient for the seriousness of the offence, particularly in the light of your previous criminal history which demonstrates that this [is] an offence that is not a one‑off aberrant episode of violence which is out of character for you. Rather it demonstrates a history of violent behaviour and represents a serious escalation of ongoing conduct.
Further, the offence was in a public place and exposed a large number of members of the public who were present in the store.
The victim of the intentionally cause[d] serious injury was completely random, he was not involved in the earlier confrontation. He was an innocent bystander and he suffered injuries that are ongoing, permanent and serious.
The impact, as shown by the victim impact statements, on that victim and his family is very high and continues to be so.
Further, the maximum penalty for this Charge 3 is 20 years’ imprisonment. This is a serious example because of the use of a weapon, a knife, against an unarmed, innocent bystander. It is, therefore, towards the more serious end of the offending which comes within this offence.
Finally, your previous history in the juvenile system has been such that it has made your involvement in that setting, in my view, problematic. It is probable that you have exhausted any advantage that system could provide in assisting your rehabilitation as it might otherwise have done. It is my view that despite Dr Sullivan’s view that you could be best served in the youth system in terms of rehabilitation, that the youth unit in adult custody would provide an opportunity for you to fully engage in the education and therapeutic approach in that system without the difficulties that you have currently experienced in the youth system.[17]
[17]Reasons, [45] (emphasis added).
Although counsel for Anderson maintained on appeal that youth detention would have been appropriate, her Honour’s analysis was plainly correct, in our view.
Anderson’s criminal history
The sentencing judge set out what she described as Anderson’s ‘reasonably lengthy prior history’, over a period of more than six years from April 2005 to June 2011.[18] Over that period, Anderson appeared 18 times in the Children’s Court, on each occasion on numerous offences. Her Honour said:
Of particular relevance from your criminal history are the number of violent offences. In particular on 20 May 2011, contravening a family violence order, making threat to kill, armed unlawful assault, threat to inflict serious injury; on 13 May same year, unlawful assault; on 19 February 2010, threat to inflict serious injury, assault with a weapon, unlawful assault; on 16 October 2009, among others, recklessly causing injury; on 5 June 2009, unlawful assault; on 9 January 2009, recklessly causing injury and unlawful assault; on 9 March 2007, recklessly cause injury and assault by kicking.
A number of summaries of these offences were provided to me and on the basis of the material before me, I must conclude that this offending before me represents a significant escalation of what has been an ongoing pattern of violent behaviour. That does raise significant concerns in terms of the risk of re‑offending and I note further that this offending occurred when you were on youth parole which is also an aggravating factor. It does mean that specific deterrence, as your counsel concedes, is a real aspect of this sentence.[19]
[18]Ibid [3].
[19]Ibid [3]–[4].
As her Honour here noted, this offending occurred while Anderson was on youth parole. Of particular relevance to an assessment of the risk of his reoffending was the fact that, at the time, he had been on parole for only 12 days. It is also of concern that two of the prior incidents involved knives.
Sentencing young offenders
There was debate on the plea about whether general deterrence was a relevant sentencing consideration. Reference was made to the decision of this Court in C N K v The Queen,[20] where it was held that in a case where a young offender was being sentenced under the provisions of the CYF Act, general deterrence was excluded as a sentencing consideration. Where, on the other hand, a person is sentenced in accordance with the Sentencing Act 1991 (Vic), general deterrence is expressly identified by s 5(1)(b) as a purpose for which sentence may be imposed.
[20][2011] VSCA 228, [15].
In the present case, her Honour pointed out — correctly — that, once she had concluded that sentencing dispositions under the CYF Act were inadequate and that a sentence of adult custody was necessary, the provisions of the CYF Act had no application and, accordingly, general deterrence was applicable. At the same time, her Honour accepted the defence submission that, under those circumstances, general deterrence should play ‘an ameliorated role, taking into account [Anderson’s] youth’, and that rehabilitation was still a significant consideration.[21]
[21]Reasons, [43].
Her Honour here referred to the well‑known decision in R v Mills,[22] where the Court approved these three propositions:
i.Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
ii.In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
iii.A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s 5(4) of the Sentencing Act 1991.)[23]
[22][1998] 4 VR 235 (‘Mills’).
[23]Ibid 241 (Batt JA).
It is thus a cardinal principle of sentencing law that, when a young offender is to be sentenced, the sentencing disposition should be tailored — so far as possible consistently with other applicable sentencing principles — to promote the offender’s rehabilitation. This serves the interests both of the individual and of the community. In R v Wyley,[24] Maxwell P said:
Mills constantly reminds sentencing courts, and this Court on appeal, that there is great public benefit in the rehabilitation of an offender and in maximising the prospect that the offender will carry on a law-abiding life in the future. But that consideration is not unique to young offenders. Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period, or a longer period, of imprisonment, rather than a non-custodial sentence. Thus understood, the later cases of DPP v Lawrence and R v Nguyen, are not to be viewed as ‘excluding the principles in Mills’, but simply as instances of how those principles are to be applied.
As counsel properly conceded towards the end of his submissions, there is a role for general deterrence to play in relation to every class of case. In relation to certain classes of case, however, general deterrence may have a particularly important role to play. The present case is of that kind. Violence of this kind, in circumstances of this kind, is so prevalent, that general deterrence is seen to have particular importance. But, again, the role of general deterrence will vary with the circumstances of the case.[25]
[24][2009] VSCA 17.
[25]Ibid [20]–[21] (citations omitted).
These issues were recently considered in Azzopardi v The Queen,[26] where Redlich JA (with whom Coghlan and Macaulay AJJA agreed) said:
The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[27]
[26][2011] VSCA 372 (‘Azzopardi’).
[27]Ibid [44]. Cf DPP v Terrick (2009) 24 VR 457, 470–71.
This statement from Azzopardi was applied in McGuigan v The Queen,[28] which concerned an appeal by a 19-year-old offender against a total effective sentence of 21 years and four months’ imprisonment with a non‑parole period of 18 years, imposed for a spree of armed robberies accompanied by multiple instances of intentionally causing serious injury. Macaulay AJA (with whom Redlich JA and Coghlan AJA agreed) concluded that:
Whilst McGuigan’s offending approaches the description given in that passage [‘the gravest criminal offending’], it would not be correct to regard the mitigatory consideration of youth to be all but extinguished in his case. He not only deserved a discount for the utilitarian benefit of his plea but also that the sentence reflect a measure of favour accorded to him because of his youth. Nevertheless, as I have observed earlier, the weight to be attached to that consideration is, in this case, necessarily reduced because of the weight to be given to other sentencing objectives due to the high degree of criminality involved.[29]
[28][2012] VSCA 121 (‘McGuigan’).
[29]Ibid [82].
His Honour had earlier said:
With respect, the sentencing judge was correct in my view to focus on the gratuitous nature of the violence inflicted by McGuigan upon several of his victims as a major determinant of the degree of criminality involved. … [H]is Honour had, upon reflection, regarded the nature of the offending, particularly the gratuitous nature of some of the violence, to be so grave as to reduce the mitigatory effect normally attributed to the young age of the offender. He did so by according greater primacy to other sentencing considerations, in this case, community protection and retribution.
In principle such an approach was without fault.[30]
[30]Ibid [52]–[53].
There were relevant similarities between that case and this. First, in the most serious instance of intentionally causing serious injury Mr McGuigan had slashed a 27‑year‑old male across the side of his face with a box cutter. This caused a deep laceration of 20 centimetres to the left side of the victim’s face, necessitating plastic surgery. This Court imposed a sentence of six years’ imprisonment on that count.
Secondly, Mr McGuigan
almost entirely lacked positive family or social support during his teenage years and had, undoubtedly, been deprived of many of the advantages possessed by many others in the community.[31]
His prospects of rehabilitation were found to be
relatively bleak when one had regard to his background of offending and drug abuse, his low intelligence and poor educational foundation …[32]
[31]Ibid [80].
[32]Ibid [78].
In the present case, Anderson’s prospects of rehabilitation are uncertain — for the reasons which the sentencing judge gave — but cannot be regarded as non‑existent. The critical question, of course, is how best to maximise those prospects, for the sake of Anderson and for the future protection of the community. We return to this subject below.
This is a case, like McGuigan, where the gravity of the offending necessarily reduced what might conveniently be referred to as the ‘mitigatory effect of youth’. This was very serious offending indeed. First, it was not an impulsive reaction to unexpected circumstances, nor was there the slightest provocation. On the contrary, there was — as counsel for the Director submitted — a degree of preparation. The first altercation having come to an end, Anderson chose to arm himself with a lethal knife, doubtless because he was prepared to use it if necessary. And he did so almost immediately. JT’s (truthful) response to Anderson’s question about the whereabouts of his bag — that he had no idea where it was — was enough to incite Anderson to strike him with the knife.
And this was no ordinary striking. It was not a mere lashing out in anger, nor a single blow with a knife— as occurred with the facial slashing in McGuigan. This was sustained, deliberate, cutting of the flesh on three of the victim’s four limbs. It is not hard to imagine how much force would have had to be applied, and how much pain and shock the victim would have experienced, in the cutting of the flesh through to the bone. The photos of the victim in the immediate aftermath are quite shocking, showing as they do yawning gashes in his limbs. The ferocity of the attack — and the intensity of the anger which it was taken to have evidenced — are extremely troubling, in our view.
As the judge correctly said, there was little which could properly be viewed as mitigating Anderson’s moral culpability for this appalling violence. The fact that he had been drinking — about which the evidence established rather little — was irrelevant, it not being suggested that Anderson’s ingestion of alcohol had caused him to behave in a way which was wholly out of character.[33] In any case, Anderson’s previous violent offending and use of knives would have precluded any argument that this attack was out of character. The toxicological evidence showed that Anderson had taken a powerful prescription drug (not prescribed for him) which, according to Dr Sullivan, had been ‘noted to induce aggressive behaviour associated with amnesia’. As noted earlier, the judge accepted that his ability to control his impulses had been affected by ‘the substances that [he] took’, but this was explanatory rather than mitigatory.
[33]Hasan v The Queen [2010] VSCA 352, [33]–[34] (‘Hasan’).
Nor was there, on the evidence, any impairment of mental functioning such as would attract the sentencing considerations discussed in R v Verdins.[34] The evidence established that, because of his deprived upbringing and what Dr Sullivan described as his ‘abnormal personality’, Anderson had poor impulse control and ‘chronic severe underlying anger’. On the present state of the law, however, neither personality deficits[35] nor background disadvantage[36] can alter the attribution of criminal responsibility for such conduct or the assessment of moral culpability.
[34]R v Verdins (2007) 16 VR 269.
[35]R v Zhang [2009] VSCA 236, [13].
[36]Hogarth v The Queen [2012] VSCA 302, [30]–[31].
Anderson being a person of normal intelligence, the assumption which underpins the theory of specific deterrence — that punishment can and will deter a rational offender from similar conduct in the future — is appropriately applied to him. What is again very troubling, in our view, is that despite multiple appearances in the Children’s Court for offences of violence, and periods of detention in the youth justice system, Anderson has not only not refrained from violence but has, on this occasion, committed an act of extraordinary viciousness. Moreover, he did so having just been released on youth parole. There is no alternative, as a result, but to impose a sentence on Anderson which is sufficiently stern to bring home to him that the community will not tolerate a resort to violence when he becomes angry, or the infliction of injury on innocent people.
In our view, the sentence which the judge imposed did not adequately reflect the objective gravity of the offending or the need for specific deterrence of Anderson. It was outside the range reasonably open in the circumstances.[37] A significantly longer term of imprisonment is necessary.
[37]DPP v Karazis (2010) 31 VR 634, 662 [127].
On the evidence before the sentencing judge, however, a longer sentence is unlikely to be sufficient in itself to reduce the risk of Anderson’s reoffending in the future. Those aspects of his personality referred to in the reports, and his oppositional attitude towards others, highlight the degree of difficulty of engaging Anderson on a path towards rehabilitation and, ultimately, away from violent crime.
The judge commented, rightly, that all of the rehabilitative opportunities offered by the youth justice system appeared to have been exhausted in Anderson’s case. Her Honour was hopeful, however, that once he was in the adult prison system, he would be placed in the ‘youth unit’ and that, to the maximum degree possible, similar rehabilitative opportunities would be afforded to him. We were informed on the hearing of the appeal, however, that Anderson had not been placed in the youth unit. On the contrary, because of antagonisms between himself and other prisoners, he has had to be placed in protection. That is a matter which, of course, is relevant to the resentencing, as it makes imprisonment more burdensome.
It is relevant in this context to recall what Fox J said in 1975 in the Supreme Court of the Australian Capital Territory in R v Dixon,[38] as follows:
In general, but by no means always, persons convicted of serious crime are the maladjusted people of the community, and some will have developed serious behavioural problems. ... Unfortunately, gaol may well make their anti-social tendencies worse. This is not always the case; sometimes the experience of gaol effects a real improvement. Nevertheless, I think it is well accepted that it is so in most cases; at least where the sentences are at all long. The reasons are obvious enough: the prisoners are kept in unnatural, isolated conditions, their every activity is so strictly regulated and supervised that they have no opportunity to develop a sense of individual responsibility, they are deprived of any real opportunity to learn to live as members of society, their only companions are other criminals, some of whom are bound to be quite vicious, their sex life must be unnatural, scope for psychiatric treatment is very limited, if not non-existent, and employment is limited and stereotyped. To many this must seem one of the most absurd aspects of the whole matter. They may well ask why the system has to be so anti-social in operation, why it cannot be improved so that people for whom there is a prospect of reformation, and who are not so dangerous that they have to be kept in strict confinement, are given a real opportunity for self-improvement. The irony is that prison authorities are among the strongest advocates of reform.
...
When, therefore, a court has to consider whether to send a young person to gaol for the first time, it has to take into account the likely adverse effects of a gaol sentence. A distinct possibility, particularly if the sentence is a long one, is that the person sent to gaol will come out more vicious, and distinctly more anti-social in thoughts and deed than when he went in. His own personality may well be permanently impaired in a serious degree. If he could be kept in gaol for the rest of his life, it might be possible to ignore the consequences to society, but he will re-enter society and often while still quite young. His new-found propensities then have to be reckoned with. A substantial minority of persons who serve medium or long gaol sentences soon offend again.[39]
[38](1975) 22 ACTR 13.
[39]Ibid 19–20.
There is no reason to believe that in 2013 the adult prison system has changed sufficiently to remove these concerns, notwithstanding considerable efforts by many people over a long period. The community would still ask today, as his Honour suggested then, why the prison system has to be ‘so anti-social in operation, why it cannot be improved so that people for whom there is a prospect of reformation are given a real opportunity for self-improvement’.[40] Time and again, courts are told that correctional authorities are simply not adequately resourced to provide the sorts of facilities which are essential if those in prison — many of whom have very serious psychological and behavioural problems — are to be meaningfully rehabilitated and assisted so that, when they are released, they will have some real prospect of reintegration into the community.
[40]Ibid 19.
We wish to emphasise in the strongest terms that the mere imposition of a longer term of imprisonment — which, for the reasons given, we consider necessary — will not by itself be adequate to give the community the assurance and protection to which it is entitled against the risk of future offending by Anderson. Whether this occurs in the youth unit or elsewhere, it is important that Anderson be given opportunities to develop self‑esteem, impulse control and some sense of optimism for the future, opportunities which — through no fault of his own — his childhood and upbringing completely denied him.
Resentencing
The Director’s submission relied on a series of recent decisions of this Court as comparable cases as informing the question of the applicable sentencing range.[41] For ease of reference, we have summarised the key features of those decisions in the attached table. We have found them of considerable assistance.
[41]See Hudson v The Queen (2010) 30 VR 610, 616–19 [27]–[37]; Hasan [2010] VSCA 352 [47], [52].
We have concluded that a sentence of six years’ imprisonment should be imposed on the count of intentionally causing serious injury. We would not change the sentences imposed on the other counts. Nor, in the circumstances, would we make any direction for cumulation. Cumulation would ordinarily be appropriate in view of the separate criminality constituted by the causing of injury to another person (count 2) but, in the circumstances of this case, considerations of totality seem to us to require that the sentence on that count be concurrent.
We would fix a non‑parole period of three and a half years’ imprisonment. Assuming that Anderson is released on parole at or about the date on which he becomes eligible for parole, that will mean he has a very lengthy period of parole supervision. As we have said, it is of vital importance, for Anderson and for the community as a whole, that the period of supervision be used to maximum advantage.
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APPENDIX
SENTENCING TABLE – INTENTIONALLY CAUSING SERIOUS INJURY – CASES RELIED ON BY THE DIRECTOR
| Case | Age of offender | Plea | Relevant priors | Weapon | Sentence for ICSI | Mitigating circumstances (other than youth) | Aggravating circumstances |
| McGuigan v The Queen [2012] VSCA 121 | 19 y | G | Y (ICSI; assault with weapon) | Y (claw hammer, iron bar, box cutter and meat cleaver) | 6 counts. Most serious: 6 y | Realistic prospect of rehabilitation | Knife wounds to face requiring plastic surgery; gratuitous nature of some of the violence; offences committed while on parole for offence of ICSI |
| Azzopardi v The Queen [2011] VSCA 372 | 19 y | G | Y (armed robbery) | Y (metal pole; baseball bat) | 4 counts. Most serious: 7 y | Low IQ; nascent dependency disorder (but no Verdins) | Severe brain injury; victim placed in medically induced coma; gratuitous violence; limited prospects of rehabilitation |
| Wallace v The Queen [2012] VSCA 114 | 21 y | G | Y (4 x recklessly causing SI) | Y (golf club) | 6 y | Admissions; remorse; mental health problems (but no Verdins); delay between charge and sentence | Victim seriously injured and nearly killed; can no longer work |
| Taskiran v The Queen [2011] VSCA 358 | 18 y | G | Y (2 x recklessly causing SI) | Y (tyre lever/wheel brace) | 8 y 6 m | Strong prospects of rehabilitation | Severe, life-threatening head injury; relentless and savage beating over a prolonged period |
| Guden v The Queen [2010] VSCA 196 | 20 y | G | Y (2 x recklessly causing SI) | Y (machete) | 2 counts. Most serious: 6 y | Adjustment disorder and stress from ongoing immigration issues; offender would be deported once custodial sentence served | Serious injury |
| Duncan v The Queen [2009] VSCA 253 | 18 y | G | N | Y (Stanley knife) | 5 y 6 m | - | Serious stomach wound |
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