DPP v Dix

[2015] VSCA 118

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0195

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
WARREN DIX	Respondent

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JUDGES:	MAXWELL P, WEINBERG and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2015
DATE OF JUDGMENT:	25 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 118
JUDGMENT APPEALED FROM:	DPP v Warren Dix (Unreported, County Court of Victoria, Judge Saccardo, 8 August 2014)

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CRIMINAL LAW – Sentence – Crown appeal – Recklessly causing serious injury – ‘Glassing’ – Unprovoked attack with bottle – Alcohol-fuelled violence – Prior convictions for violence – Breach of suspended sentence – Sentence of 18 months’ imprisonment for glassing manifestly inadequate – Appeal allowed – Resentenced to 3 years and 6 months’ imprisonment – Winch v The Queen (2010) 27 VR 658 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Elston QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Respondent	Mr P F Tehan QC with Ms C A Boston	Patrick W Dwyer

MAXWELL P
WEINBERG JA
BEACH JA:

Summary

1. This appeal raises again the issue of sentencing for ‘glassing’, a particularly nasty form of recklessly causing serious injury (‘RCSI’).  The respondent (‘WD’) had a recent prior conviction for RCSI when he launched a wholly unprovoked attack on the victim in the present case, hitting him in the face with a beer bottle and fracturing the bones of his eye socket.

1. WD was sentenced to 18 months’ imprisonment on the glassing charge.  For reasons which follow, we have concluded that the sentence was manifestly inadequate and that the appeal by the Director must be allowed.  We would substitute a sentence of three years and six months’ imprisonment on that charge.

1. On a separate charge of intentionally causing injury (‘ICI’) (to a different victim), WD was sentenced to 12 months’ imprisonment. On resentencing, we would substitute a sentence of 18 months on that charge.

Overview

1. The total effective sentence was two years’ imprisonment, the elements of which were as follows:

Charge on Indictment E10783928	Offence	Maximum	Sentence	Cumulation
1	Recklessly causing serious injury	15y	18m	Base
2	Intentionally causing injury	10y	12m	2m
Breach proceeding (summary charge uplifted)
Summary charge 1	Contravene suspended sentence order	3m	—	—
Summary charge 2	Recklessly causing serious injury	15y	8m partially suspended [4m to serve, 4m suspended for 18m]	4m [restored]
Total Effective Sentence:		24m
Non-Parole Period:		14m
6AAA Statement:		But for the plea of guilty his Honour would have imposed a total effective sentence of 3y 4m with a non-parole period of 2y.
Other orders: Compensation order.

1. The circumstances of the offending were as follows.  At approximately 2:40 am on 8 February 2014, WD entered a bar in Fletcher Street, Essendon.  He arrived intoxicated, having been drinking shots earlier that night.  He drank more shots while in the bar, as well as a bottle of beer. 

1. Twenty minutes later, at approximately 3:00 am, WD’s girlfriend became involved in a scuffle which involved both men and women.  WD also became involved.  During the scuffle, his girlfriend was pushed toward the middle of the dance floor, near to where the victim (‘T’) was standing talking to a friend.

1. When people in the vicinity of T continued to wrestle each other, T attempted to stop the fight.  WD walked from the other side of the scuffle towards T,  holding a beer bottle in his hand.  As soon as he reached T, he hit him in the face with the bottle, connecting with T’s left eye area (charge 1).

1. The attack was unprovoked.  The two men had had no contact of any kind up to that moment.  T had been standing by the dance floor area, having a drink and minding his own business.  He did not see WD approaching him.   

1. Immediately following the attack on T, WD attacked another patron, who was on the ground having been caught up in the previous altercation.  WD punched the other patron (unidentified victim) with both fists to each side of his face.  Afterwards, the man was observed to have blood on his lip (charge 2).  WD yelled ‘come on’ to the patron before security asked him to leave the premises, which he did.

1. The victim of the assault in charge 1 received cuts above and below the left eye.  The bones of the lower left eye socket were severely fractured and required extensive surgery.  A metal plate was inserted to hold the bones together.

1. WD was identified through CCTV footage, a distinctive T-shirt he was wearing and the entry scan of his licence.

The earlier incident

1. The offending under consideration occurred on 8 February 2014.  But WD had committed similar violent offences, in very similar circumstances, only 16 months earlier.

1. At 3:00 am on 7 October 2012, he had been in a nightclub with several friends.  One of those friends began a verbal argument with another person (‘CR’) and tried to draw him into a fight.  WD approached CR from his left side and punched him in the mouth.  When CR covered his head with his arms to defend himself, WD punched him twice more, once to the left side and once to the right side of his jaw. 

1. The club’s security then intervened and separated WD from CR.  At that point, WD was still swinging his arms in the direction of CR.  Both were escorted from the club.  WD remained in the vicinity of the club.

1. Approximately 15 minutes later, another group of people approached the club, intending to enter.  WD was standing with friends.  As the group passed them, a comment was made to a female in the group.  They stopped and one of them asked what had been said.  At this point, WD leapt forward and ‘king hit’ a member of the group (‘MD’) in the face.  MD was knocked unconscious and fell to the ground.  For the second time, security from the nightclub had to intervene.  Ambulance and police were called. 

1. As a result of these attacks, CR received cuts and bruising to the inside of his bottom lip.  His jaw and cheek were tender.  MD was taken to Geelong Hospital where scans revealed that he had suffered a fractured eye socket, fractured cheekbone, a broken nose and a broken tooth.  He also suffered severe bruising to his eye, cheek and mouth, swelling to the back of his head, cuts to the inside of his mouth and a punctured bottom lip.  MD had to undergo several follow up attendances at the hospital and, at the time of sentence in March 2013, continued to feel unwell and was still suffering from pain in the jaw area and dizziness.

1. On 21 March 2013, WD pleaded guilty in the Geelong Magistrates’ Court to one charge of RCSI (in relation to MD) and one charge of ICI (to CR).  On the first charge, he was sentenced to eight months’ imprisonment.  The Magistrate partially suspended the sentence, requiring four months to be served.  The balance was suspended for an operational period of 18 months.  On the second charge, WD was convicted and fined $1,000.

Need for specific deterrence

1. On the plea in the present matter, the prosecutor submitted that the two episodes of violent offending were ‘strikingly similar’.  That was an accurate description, in our opinion, as both episodes involved:

·alcohol-fuelled violence;

·a nightclub setting;  and

·unprovoked and vicious attacks on complete strangers.

1. Defence counsel conceded — properly, in our view — that each episode was to be viewed as a ‘very ugly incident’.  It is a particularly disturbing feature of the offending that, on each occasion, WD made separate attacks on two different victims.  As the Court said recently, this kind of random violence is a scourge on our society.[1]

   [1]DPP v Russell [2014] VSCA 308, [1].

1. The present offending occurred less than a year after WD was sentenced for the earlier offences.  As noted earlier, four months of the March 2013 sentence were suspended for an operational period of 18 months.  Accordingly, the later offending breached that suspended sentence, which is itself an aggravating feature.

1. Self-evidently, this was a case where WD’s own conduct demonstrated powerfully the need for a sentence which would deter him from future offending.  It is difficult to comprehend how someone in his position, having already served four months’ imprisonment for the first attack and knowing that he was subject to a suspended sentence, could have engaged in violent conduct — of almost exactly the same kind, and in almost exactly the same circumstances — such a short time later.  Specific deterrence was therefore a sentencing factor of great importance.

The seriousness of ‘glassing’

1. As Maxwell P and Redlich JA pointed out in Winch v The Queen:[2]

‘Glassing’ is the description which is applied where one person strikes another with a glass or bottle, typically to the face or the head.  If the glass item is not already broken, it will almost inevitably break on impact, making it a most dangerous weapon.

[2](2010) 27 VR 658 (‘Winch’).

1. Their Honours went on to explain why glassing should be viewed as a serious example of RCSI:

‘Glassing’ cases have a number of recurrent features.  The typical glassing … occurs in or near licensed premises.  It is usually an act of alcohol-fuelled aggression, in disproportionate response to an actual or perceived slight.  The typical offender is young and of generally good character, and is full of remorse after the event.

The consequences of glassing are, almost invariably, very serious.  Striking to the face or head with a bottle or glass carries a high — and obvious — risk of serious injury.  The victim of a glassing almost always suffers severe lacerations;  often has permanent facial scarring;  and suffers physical and psychological damage which is typically long-term and often permanent.

It is important to recall that RCSI is a very serious offence.  It carries a maximum penalty of 15 years.  An examination of the elements of the offence reveals why this is so.  First, the offence involves the causing of serious injury to the victim.  Secondly, the mental element of the offence — recklessness — means that the offender has consciously disregarded a known risk. 

The offence of RCSI is only committed if the offender foresaw the probability that his/her action would cause serious injury to the victim, and went ahead regardless of that probability.  This is not mere carelessness, where the offender fails to appreciate the risk of injury.  This is conscious disregard of a risk of serious injury which the offender knows to exist.

As this Court pointed out in Ashe v [The Queen], the court’s assessment of the seriousness of a particular instance of RCSI will involve considering both the degree of probability that serious injury will result, and the degree of seriousness of the injury thus foreseen.  What makes glassing a serious instance of RCSI — almost by definition — is the obvious dangerousness of a glass or bottle (whether broken or not) when used to strike a blow to the face or head.  Hence, the offender who is convicted of this offence of recklessness is to be taken to have foreseen a high probability of serious injury.[3]

[3]Ibid 664–5 [32]–[36] (emphasis added) (citations omitted).

1. On the plea, and again on the appeal, counsel for WD sought to differentiate the present case from other instances of glassing where the victim had been struck ‘square on in the face, with full force’ with a full jug/bottle/glass and had suffered facial lacerations.  These examples demonstrated, so it was said, that this incident could have been ‘considerably worse’. 

1. Insofar as this submission was directed at the objective gravity of WD’s conduct, the sentencing judge was right to reject it.  As his Honour pointed out, the act of striking T with a bottle was highly dangerous and it was a matter of sheer good luck that T had not been more seriously injured or — worse still — struck in the temple and killed.  The CCTV footage showed that it was a blow delivered with considerable force.  The fact that the bottle did not break is irrelevant to the assessment of dangerousness.  As noted in Winch,[4] WD acknowledged by his plea of guilty that, when he struck the blow, he foresaw a high probability of serious injury.

   [4]See [22]–[23] above.

1. The seriousness of the injuries actually caused is certainly relevant to sentence.  It could properly be said on WD’s behalf that the fact that the bottle did not break meant that T was not left with any facial scarring.  But this is of little consequence given that, as the judge noted, the serious injury suffered by T

involved a complex fracture of a number of bones comprising [his] left eye socket, which required surgical treatment and stabilisation by the insertion of a mini-plate.[5]

[5]DPP v Warren Dix (Unreported, County Court of Victoria, Judge Saccardo, 8 August 2014) [3].

Matters relied on in mitigation

1. As his counsel pointed out, WD was only 20 when he committed this offence.  He is now 21.  There was no further offending between the date of the offence and the date of sentence, and he had completely abstained from alcohol after his arrest on 3 March 2014.  This was said to be of particular significance, given that he had developed a binge drinking problem by the time of the offending.  During an assessment for the Court Integrated Services Program in April 2014, WD acknowledged for the first time that he was addicted to alcohol.  He had never previously sought assistance to address his alcohol concerns but was referred, through that Program, for assessment and counselling by a drug and alcohol clinical assessor.

1. On the appeal, counsel highlighted the finding of the sentencing judge that, if WD chose to control his intake of alcohol and his temper, he had positive prospects of obtaining employment and ‘becoming a productive member of our society’.[6]  Reliance was placed on his having completed Year 12 and having been in steady employment until the imposition of the custodial sentence.

   [6]Ibid [12].

1. It was submitted that, if the Court came to the view that the sentence was manifestly inadequate, the resentencing should not extend WD’s period of imprisonment but should instead involve the imposition of a community correction order (‘CCO’).  Reliance was placed on the decision of this Court in Boulton v The Queen[7] and, in particular, on the statement that

the CCO can be used to rehabilitate and punish simultaneously.  This significantly diminishes the conflict between sentencing purposes, particularly acute in relation to young offenders.  No longer will the court be placed in the position of having to give less weight to denunciation, or specific or general deterrence, in order to promote the young offender’s rehabilitation.  Rather, the court will be able to fashion a CCO which adequately achieves all of those purposes.[8]

[7][2014] VSCA 342 (‘Boulton’).

[8]Ibid [186].

Conclusion

1. In our view, the sentence of 18 months for the glassing offence was manifestly inadequate.  That is, it was outside the range reasonably open in the circumstances of the case.  We have already pointed out why specific deterrence was of particular importance.  General deterrence is also of great importance in a case such as this, for the reasons given in Winch.[9]

   [9](2010) 27 VR 658, 665–6. See also R v Wyley [2009] VSCA 17, [10].

1. In considering resentencing, we have had regard to s 5(4C) of the Sentencing Act 1991, which provides as follows:

A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.

1. A case might well have been made, in our view, for the imposition of a CCO — combined with imprisonment for perhaps three months[10] — when WD faced court in early 2013 for the first RCSI offence.  For the reasons given in Boulton, the ability of the Court to attach to such an order conditions requiring assessment and treatment for alcohol addiction would have been an important condition.

   [10]At the date of sentence, that was the maximum term of imprisonment which could be combined with a CCO.  The maximum has since been increased to two years:  see Sentencing Act 1991 s 44(1).

1. But the question which now arises is quite different.  As we have explained, this was very serious offending, committed not long after the first offending and while WD was still on a suspended sentence.  In our view, the purposes of sentencing in this case can only be achieved by a reasonably lengthy term of imprisonment.

1. For the reasons we have given, the sentence on the glassing charge should be increased to three years and six months’ imprisonment.  For similar reasons, the sentence for the lesser charge of ICI should also be increased.  We would impose a sentence of 18 months’ imprisonment on that charge, four months of which should be made cumulative on the glassing sentence.

1. Accordingly, WD will be resentenced as follows:

Charge on Indictment E10783928	Offence	Maximum	Sentence	Cumulation
1	Recklessly causing serious injury	15y	3y 6m	Base
2	Intentionally causing injury	10y	1y 6m	4m
Breach proceeding (summary charge uplifted)
Summary charge 1	Contravene suspended sentence order	3m	—	—
Summary charge 2	Recklessly causing serious injury	15y	8m partially suspended [4m to serve, 4m suspended for 18m]	4m [restored]
Total Effective Sentence:		4y 2m
Non-Parole Period:		2y 4m
6AAA Statement:		But for the plea of guilty we would have imposed a total effective sentence of 6y 4m with a non-parole period of 4y.
Other orders: Compensation order.