DPP v Evans
[2019] VSCA 239
•25 October 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0005
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| MATTHEW JOHN EVANS | Respondent |
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| JUDGES: | MAXWELL P, T FORREST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 August 2019 |
| DATE OF JUDGMENT: | 25 October 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 239 |
| JUDGMENT APPEALED FROM: | DPP v Evans [2018] VCC 2154 (Judge Smallwood) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Intentionally causing serious injury – Family violence – Assault on wife’s new partner – Life-threatening injuries – Victim permanently incapacitated – Sentence of 5 years and 6 months’ imprisonment with non‑parole period of 2 years and 9 months – Whether manifestly inadequate – Offender made significant admissions – Whether prosecution otherwise viable – Substantial sentencing discount warranted – General deterrence – Appeal allowed – Resentenced to 7 years and 6 months’ imprisonment with non-parole period of 4 years and 6 months – R v Doran [2005] VSCA 271 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B F Kissane QC with Mr P J Smallwood | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr P S Tiwana with Mr G Nikolovski | Dribbin & Brown |
MAXWELL P
T FORREST JA
WEINBERG JA:
On 14 December 2018, in the County Court at Bairnsdale, the respondent pleaded guilty to one charge of having intentionally caused serious injury, contrary to s 16 of the Crimes Act 1958. On the same day he was sentenced as follows:
Charge on Indictment
H13004918
Offence Maximum Sentence Cumulation 1 Causing serious injury intentionally 20 years’ imprisonment 5 years and 6 months’ imprisonment - Non-parole period: 2 years and 9 months Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 21 days 6AAA statement: 9 years’ imprisonment with a non-parole period of 6 years.
The Director of Public Prosecutions has appealed against that sentence. She relies on the following ground of appeal:
The individual sentence and non-parole period are each manifestly inadequate in all of the circumstances.
Particulars:
In fixing the sentence referred to above, the learned sentencing judge:
(a) Failed to give sufficient weight to the nature and objective gravity of the offending and the culpability of the offender;
(b) Failed to have sufficient regard to the impact on the victim;
(c) Failed to have sufficient regard to the maximum penalty prescribed for the offence of intentionally causing serious injury;
(d) Failed to give sufficient weight to the principles of general deterrence, just punishment and denunciation; and
(e) Gave too much weight to factors in mitigation.
For reasons which follow, we would allow the appeal. In our view, it was not reasonably open to his Honour to impose the sentence that he did if proper weight had been given to all of the relevant factors including established sentencing standards for offences of this gravity. We would set aside the sentence imposed, and resentence the respondent to a term of 7 years and 6 months’ imprisonment, with a non-parole period of 4 years and 6 months.
Circumstances surrounding the commission of the offence
At the time of the offending, the respondent was aged 41. He was married to Patricia Evans, with whom, at that stage, he had four children. In late 2012, Ms Evans commenced a relationship with the victim, Andrew Roberts, who was then aged 51. In October 2012, Ms Evans moved out of the home she shared with the respondent and took their children to live with Roberts. Initially, she told the respondent that her relationship with the victim was platonic. The respondent maintained contact with his children, and shared custody of them with Ms Evans.
At about this time, Roberts attended at the respondent’s place of work as part of his work duties. The respondent approached him and interrogated him about the nature of his relationship with Ms Evans. Roberts maintained that they were only friends. The respondent, however, did not believe him.
At a later stage, Ms Evans was diagnosed with genital herpes. The respondent became aware of the diagnosis, and it upset him. At some stage subsequently, Ms Evans told her eldest child that it was Roberts who had given her herpes. She indicated that he should be forced to pay for what he had done. Roberts insisted to Ms Evans that he had not been responsible for passing on that condition.
Subsequently, Ms Evans fell pregnant to Roberts. She expressed concern that there was a high likelihood that the baby would be harmed by reason of the medication she was taking for the herpes. Shortly before Christmas 2012, she terminated her pregnancy. She continued her relationship thereafter with Roberts. The respondent continued to visit his children regularly at Roberts’ home.
On 15 January 2013, Roberts and Ms Evans were preparing to go camping interstate. At 11:33 am, the respondent sent Roberts a provocative text message, pretending that he had been invited to join them on their camping trip. He added ‘while we are camping, I’ll be able to show you how I can slap Trish in the face with my huge cock.’ Roberts did not respond to that message.
Roberts and Ms Evans went on their camping trip, but had a falling out. On 18 January 2013, Ms Evans drove away and left Roberts stranded at the campsite, without a car. Over the next few days, Roberts and Ms Evans spoke on the phone, and discussed their relationship issues.
On 21 January 2013, Ms Evans told two of her friends that Roberts would regret having given her herpes. Later that day, Roberts made arrangements to begin work early the following morning, at 5:00 am. Only a few of his colleagues were aware that he proposed to start work early the following day. Roberts went home and, with Ms Evans, discussed their relationship. She then left, and went to the respondent’s home for a time. After two hours or so, she returned to Roberts’ house, where she stayed the night.
On 22 January 2013, Roberts and Ms Evans got up at 4:00 am. He drove to work, arriving there at 4:50 am. Ms Evans, in a separate car, drove to the respondent’s home, arriving there at 4:55 am.
Roberts signed himself in on the work register at 5:00 am. Shortly after, the respondent, who had arrived at the scene, set upon Roberts. The respondent used a metal bar to assault him severely. Roberts was left unconscious or semi-conscious, lying on the ground in front of a work vehicle. He was discovered by a work colleague at about 6:25 am. Emergency First Aid was administered before he was conveyed by ambulance to the local hospital. He was then airlifted to the Royal Melbourne Hospital.
Roberts sustained a number of serious injuries. These included multiple skull fractures; a complex left-frontal bone fracture, several complex/depressed fractures in both bony eye sockets; a fractured cheekbone; a fractured thin plate of the bone separating the nasal cavity from the brain; a fracture to the temporal bone in the middle ear cavity; multiple nasal bone fractures; a fractured sternum; multiple rib fractures; a fractured right femur with leg deformity; deep lacerations to the forehead; and multiple brain injuries resulting in confusion, memory loss, brain bleed, and brain fluid leak. He also sustained several missing teeth, and bruising to the upper chest and right shoulder.
These injuries required extensive medical treatment and lengthy hospital stays, as well as rehabilitation. Roberts had no memory whatever of the assault. Medical evidence suggested that it was likely that he had been struck with a large heavy object multiple times, or had fallen from a significant height, or had been struck to the ground by a large moving object, such as a vehicle. The victim sustained injuries to three distinct areas of the body: the head, the chest and leg. These injuries were consistent with at least three distinct points of impact. The force required to fracture the sternum and the femur in a normal adult male would be significant. The injuries to the head were likely to leave Roberts with permanent brain damage. It was said that the chest and leg injuries were likely to heal, but would be painful, and the healing process might be complicated.
In summary, the injuries inflicted on Roberts were described as severe and life threatening. There was no doubt that but for the emergency treatment that he received, Roberts would have died.
Roberts was able to return to his home in April 2013. In 2014, the respondent and Ms Evans were reunited. The police investigation into the matter went nowhere until, in May 2017, a witness came forward stating that on one night in November 2014, he had heard the respondent say ‘a bar to the back of the head does the trick’ and ‘a bit before five.’
On 24 May 2017, the respondent was arrested and interviewed by police. He denied having assaulted Roberts, stating that he had been in bed with his young children at that time. However, while the respondent was in custody, he telephoned Ms Evans, and their conversation was recorded pursuant to a telephone interception warrant. During that conversation, the respondent indicated that he had to decide whether he would talk to the police about the allegation. He was subsequently released, and returned home. A listening device installed in the respondent’s home recorded a conversation where he, Ms Evans, and her father discussed the interview. Ms Evans’ father asked ‘has he been hit on the back of the head?’ The respondent replied affirmatively, saying ‘I know that.’
Several months later, on 27 October 2017, the respondent was re-arrested and interviewed again. He continued to deny any involvement in the assault, but was charged by police and remanded. On 31 October 2017, the respondent indicated to police that he wanted to speak to them. He was interviewed, once again, and this time admitted to having assaulted Roberts early on the morning of 22 January 2013. He told police that he had gone there to speak with Roberts, and had struck him with a heavy metal bar after Roberts had kicked him.
Sentencing remarks
It is important to note that the sentencing judge put considerable emphasis upon the mitigatory effect of the respondent’s ultimate admissions to police, which he described as being of ‘real importance.’[1] His Honour went so far as to say that without the respondent’s confession, the prosecution would have had a very difficult task in securing his conviction.
[1]DPP v Evans [2018] VCC 2154, [1] (‘Sentencing remarks’).
Having then referred to other mitigating factors, including the utilitarian benefit of the plea of guilty, and a finding of genuine remorse, his Honour said that he would also take into account, in favour of the respondent, the delay which had ensued between the date of the offending, in January 2013, and the date of sentence, in December 2018, a period of almost 6 years. Although the respondent’s concealment of his involvement in the attack upon Roberts was the principal cause of that delay, he would still receive the benefit of a finding that he had rehabilitated himself to a considerable degree, and had excellent prospects of further rehabilitation.
The sentencing judge observed that the injuries inflicted upon Roberts had been life-threatening, and that this would have been obvious to the respondent on the morning of the assault. Yet, he made no attempt to call police, or gain assistance. Had the work colleague not found Roberts, there was a reasonable prospect that he would have died.
As previously mentioned, his Honour noted that the medical reports established that the injuries inflicted were consistent with the victim having been struck by a large heavy object on multiple occasions. The force needed to fracture the sternum and the femur would have been significant to severe.
The sentencing judge observed that he was sentencing on the basis that ‘there were at least three blows[,] and it may well have been more.’[2] He described the assault as ‘savage.’[3] He commented that although the respondent had been arrested and charged before he took part in the record of interview where he made relevant admissions, the evidence on which he was being held, at that stage, ‘would best be described as flimsy.’[4]
[2]Ibid [15].
[3]Ibid.
[4]Ibid [16].
His Honour noted that the respondent had told the police that when the two men had confronted each other at the gate of the depot where Roberts worked, Roberts had said to the respondent ‘fuck you, cunt.’ Roberts had then raised his leg and kicked the respondent under the ribs, which caused him to fall back onto the tray of the truck. It was only at that stage, according to the respondent, that he had grabbed a metal bar, about three feet long, and attempted to strike Roberts across the left shoulder with it. Roberts had raised his arm to protect himself. The respondent then hit him across the chest with the bar, and across the leg. He would have realised, either then or later, that the force of the blow had broken Roberts’ leg.
The respondent denied having hit Roberts in the head with the bar, and had been unable to explain why he had sustained such severe head injuries. His Honour observed that there had been at least one very severe blow to the head, and that blow had been inflicted with savagery.
The sentencing judge stated:
In this particular situation with the lead-up to it all, as far as you are concerned, I am prepared to accept that you had been tolerating a degree of conduct which must have been exasperating for you and that is in no way being critical of Mr Roberts. You had been very tolerant. You had supported your wife through great difficulties in what must have been emotional turmoil. As your counsel clearly pointed out, you were able to survive that. You showed no propensity towards violence and it was at this moment in time — whatever happened, I do not necessarily accept what you said in your record of interview — that at that truck at 5 or so o’clock in the morning you snapped. Essentially, in your vernacular, ‘you’d had enough.’ What occurred is what occurred. And you cannot take that back and I have indicated my views as to what occurred immediately afterwards.[5]
[5]Ibid [22].
His Honour next turned to the victim impact statement before dealing with matters personal to the respondent. He noted that until this offence took place, the respondent had, as an adult, led an exemplary life. Because the respondent was the sole provider for his wife and six children, it would be much harder for him to undergo a significant jail sentence. That too was a factor in mitigation.
A report from Dr Danny Sullivan, which was tendered, spoke of the respondent having had, at the time of the offending, a ‘mood disorder’ which was clinically significant, and causally associated with the offence itself. That report suggested that the respondent’s capacity to think clearly and make calm and rational choices was likely to have been significantly reduced, as would have been the respondent’s judgment. Nonetheless, his Honour concluded that Verdins[6] considerations did not apply to the respondent’s situation. His mood disorder did not reach that level.
[6]R v Verdins (2007) 16 VR 269.
Having characterised the respondent’s conduct as ‘ten minutes of utter madness’[7], his Honour went on to say:
Your prospects for rehabilitation have to be regarded, I think, as excellent and the risk of you reoffending, I would regard, as very low. All those mitigatory factors have then to be balanced against your conduct in savagely attacking a man with an iron bar, leaving him to an extent brain damaged, physically incapacitated and with a — essentially from his point of view — ruined life.[8]
[7]Sentencing remarks, [33].
[8]Ibid [34].
His Honour then sentenced the respondent as earlier indicated.
The Director’s submissions
In the Director’s written case, it was submitted that this was a brutal and savage attack resulting in catastrophic consequences for the victim. A significant weapon had been used. A sentence of 5 years and 6 months’ imprisonment and a non-parole period of only 2 years and 9 months was said to be wholly outside the permissible range of sentencing options.
It was further submitted that this was a very serious example of intentionally causing serious injury, yet it had only attracted a sentence of only 25% of the maximum penalty. The appellant drew attention to Nash v The Queen,[9] where Maxwell P identified a number of matters that are regularly taken into account by sentencing judges when assessing the gravity of this particular offence. These factors were said to be:
[9](2013) 40 VR 134.
·the offender’s proven intent, and whether it was to cause serious injury, really serious injury, or the maximum possible injury;
·the seriousness of the injury actually caused;
·the victim’s vulnerability;
·whether a weapon was used;
·the duration of the attack upon the victim; and
·whether the offender acted alone or in company.[10]
[10]Ibid 137 [10].
It was submitted that, bearing in mind these factors, it was clear that there were a number of objectively serious features of the respondent’s offending. In particular, the injuries sustained by Roberts were of a high level of seriousness, properly described as ‘life threatening.’ The victim had sustained a brain injury, and suffered ongoing pain, and restriction of movement. He had been hospitalised for 19 weeks, including three weeks in intensive care and two weeks in an induced coma.
It was further submitted that Roberts had been particularly vulnerable given that the attack had occurred at his workplace, in the early hours of the morning, when he was alone and not expecting the respondent to be there, or to be assaulted by him. The sentencing judge had rejected the respondent’s version of events, whereby he claimed that Roberts had attacked him first. All in all, this was a protracted, brutal, and violent attack, and the respondent’s moral culpability was, clearly, great.
The victim impact statement filed on behalf of Roberts identified the devastating effects of the respondent’s offending upon him. He said that his life had changed forever, and that he would never be able to work again. He is in constant pain, and requires daily medication. He walks with a limp, and cannot walk long distances without crutches. He is unable to drive. He lives on a small farm and cannot perform even simple maintenance tasks. His quality of life is diminished and he suffers fear, sleeplessness and emotional distress. He has also incurred a significant financial burden by reason of the offending.
The Director drew attention to several cases which, she submitted, provided useful comparators with regard to current sentencing practices for intentionally causing serious injury.
She referred, in particular, to Robbins v The Queen,[11] where a head sentence of 11 years on that charge was upheld, on appeal, though the non-parole period was reduced to one of 7 years’ imprisonment. The offender in that case had pleaded guilty to attacking his wife with a claw hammer, and had struck her with three blows to the back of the head. The attack took place in front of their children, and resulted in permanent injury, including loss of sight and reduced mobility. The offender had no prior convictions and found to be profoundly remorseful.
[11][2012] VSCA 34 (‘Robbins’).
In Charles v The Queen,[12] the sentence under challenge was one of 9 years on a charge of intentionally causing serious injury, with a non-parole period of 6 years and 6 months. Leave to appeal against that sentence was refused. The offender was aged 45, and had stabbed a taxi driver five times in the stomach and back. The injuries were life threatening. The offender had no prior convictions and was otherwise of good character.
[12](2011) 34 VR 41 (‘Charles’).
The Director drew attention to Arthars v The Queen,[13] where sentences of 9 years and 6 months, and 10 years, respectively, were imposed on two men armed with wooden weapons who had bashed the victim to the head, leading to his having suffered a permanent disability.
[13](2013) 39 VR 613.
Finally, the Director referred to DPP v Terrick,[14] where a Crown appeal against sentence was allowed, and the first respondent resentenced to a term of 11 years and 6 months following an assault in company, resulting in life threatening injuries and permanent disability.
[14](2009) 24 VR 457.
It was submitted that although every case must be considered in the light of its own particular facts and circumstances, these comparators indicated that the sentence imposed in the present case had failed to give effect to current sentencing practice, as well as other relevant sentencing factors. General deterrence was an important consideration in this case, but this sentence did not adequately give effect to that basic sentencing factor. There was a need to deter others from behaving in this way, and to convey the message that such offending would attract a lengthy term of imprisonment.
The Director acknowledged that there were some relevant matters in mitigation. These included his full admissions (albeit belated); the fact that he pleaded guilty; his remorse; his prior good character, and strong work history; the delay which had allowed him to demonstrate rehabilitation; and the fact that he had excellent prospects of such rehabilitation.
Finally, in the Director’s written case, it was submitted that in the event that this Court found the sentence imposed below to be manifestly inadequate, there was no reason why the residual discretion should be exercised in the respondent’s favour.
In support of the written case, senior counsel for the Director submitted, in oral argument, firstly that the respondent’s having left Roberts in a ‘relatively remote location’ indicated a degree of callousness. The use of an iron bar to inflict the beating was, of itself, an aggravating feature.
Secondly, he submitted that the sentencing judge had given excessive weight, in the particular circumstances of this case, to what is described as the ‘Doran discount.’[15] He submitted that the admissions made to police were far from forthcoming, since the respondent only admitted to striking blows with the iron bar to the chest area, and erected a scenario whereby the victim was alleged to have fallen back and struck his head. In his submission, this was a case that could well have been made out without any of the respondent’s submissions.
[15]R v Doran [2005] VSCA 271. This is a matter to which we shall shortly return.
Accordingly, it was submitted that while the admissions made were of some limited utility, and made the prosecution case easier to pursue, the respondent’s cooperation with police did not warrant anything like the weight that the sentencing judge had given that factor.
Thirdly, it was submitted that the period of six years between the offending and the date of sentencing had been brought about because of the respondent’s false denials, and refusal to acknowledge what he had done. Accordingly, the impact of delay should be regarded as minimal.
Finally, in response to a question from the Court as to whether the respondent’s offending should be regarded as having attached to it, a reduction in moral culpability, by reason of what might loosely be termed ‘provocation’, he submitted that the sentencing judge had not made a great deal of that matter, and properly so. While it could not be said that the actual assault, as carried out, had been premeditated, it seemed tolerably clear that the respondent had gone to the scene in order to confront Roberts, at least verbally, and perhaps, physically as well.
Respondent’s submissions
In the respondent’s written case, it was submitted that the ground of manifest inadequacy has been recognised as being a stringent one, difficult to make good. The choice of a particular sentence involves the exercise of a judicial discretion, with which this Court should not, lightly, interfere.
It was submitted that the sentencing judge had taken all relevant factors into account, as could be seen from the detail contained in the sentencing reasons. Moreover, the appellant did not suggest any specific error. His Honour fully appreciated that the assault had been a very serious one, resulting in terrible injuries, and a profound impact upon the victim. Nonetheless, the objective gravity of the offending, and the impact upon the victim, had to be balanced against a number of powerful mitigating factors.
In addition to those identified by the appellant in her written submissions, the respondent pointed to what, he submitted, had been a significant degree of cooperation through his admissions to the offending. He referred, as well, to the delay of six years between the offending and sentence. During that period, the respondent had lived a decent life, working and supporting his wife, and by now, six children. A number of impressive character references tendered on the plea spoke highly of him and made it plain that this offending was out of character.
Furthermore, it was submitted that the burden of imprisonment upon the respondent was very great, having regard to his being separated from his young family, and being unable to support them. There was also the report of Dr Sullivan, which referred to the impact of a custodial sentence upon the respondent’s mental health.
It was submitted that the offending had not been premeditated. There was nothing to suggest that he had gone to the site with the intention of assaulting Roberts. He was not armed when he met and spoke to him.
The sentencing judge had sentenced the respondent on the basis of three blows only with the metal bar, with at least one being a blow to the head. It was further submitted that there had been a degree of provocation building up over a period of time, during which the respondent had behaved with great restraint. In the end, the respondent appeared to have ‘snapped’, as the prosecutor acknowledged on the plea. Indeed, the prosecutor had submitted that specific deterrence would take a ‘back seat’ in this case, as the offending appeared to be a ‘one off’ of someone who had enough, and ‘snapped.’
In particular, it was submitted on behalf of the respondent that there was one mitigating factor which called out for a truly significant discount. As previously indicated, this was the Doran discount.
Although this Court’s decision in Doran had not been referred to, in terms, during the plea, it had been generally agreed that the respondent’s voluntary admissions to the police ultimately provided the evidence necessary to convict him. As the sentencing judge had observed, the case was an extremely weak one without the respondent’s cooperation. In accordance with Doran, this finding entitled the respondent to receive a ‘demonstrable discount’ in order to encourage others to make similar admissions.[16]
[16]See also, R v Ellis (1986) 6 NSWLR 603 (‘Ellis’), where the New South Wales Court of Criminal Appeal stated that a ‘considerable element of leniency’ should be extended by the sentencing judge when it is unlikely that guilt would be discovered, and established, were it not for the disclosure by the person coming forward for sentence.
In support of that submission, the respondent drew attention to a concession made by the prosecutor during the course of the plea to the effect that the respondent’s ‘admissions were of high value.’
In relation to the comparators relied upon by the appellant, it was simply submitted that there were important differences between the facts of those cases, and the present case. For example, in Charles, the attack was not only unprovoked, but involved a significant degree of premeditation. In Robbins, the attack took place in the presence of the victim’s young daughter, and the aftermath was witnessed by another daughter. More importantly, neither Charles nor Robbins attracted the Doran discount.
The respondent drew attention to two cases which, he submitted, demonstrated that the sentence imposed in this matter had been within range.
In DPP v Grech,[17] the respondent to a Director’s appeal was resentenced for having intentionally caused serious injury to a term of 12 months’ imprisonment with a 5 year Community Correction Order (‘CCO’). The original sentence imposed had been one of 12 months’ imprisonment with a 3 year CCO. The Court in that case had been influenced by the fact that by the time the appeal had come to be heard, the respondent had, to a significant degree, completed the conditions imposed on his CCO. The Court indicated that, at the time that he was originally sentenced, an appropriate term of imprisonment would have been 5 years with a non-parole period of 3 years.
[17][2016] VSCA 98.
Likewise, in Jackson v The Queen,[18] this Court, by majority, dismissed an appeal by an offender against a sentence of 4 years and 6 months’ imprisonment with a non-parole period of 2 years. That case involved the respondent punching the victim in the head, causing him to fall to the floor. Thereafter, the victim was kicked a number of times to his head and body. He suffered very serious injuries, though not as grave, perhaps, as those inflicted in the present case.
[18][2013] VSCA 14.
Finally, the respondent referred to the Sentencing Advisory Council’s statistical analysis of the offence of intentionally causing serious injury which, he submitted, showed that the median sentence for that offence during the period of 2012 to 2017 had been a term of 5 years’ imprisonment.
If all else failed, the respondent sought to invoke the residual discretion to dismiss the appeal in his favour. He noted that the appellant bore the burden of persuading this Court that the discretion should not be exercised. In oral submissions, it was contended that although the sentencing judge had offered the prosecutor below the opportunity to refer to any comparable cases to assist him, that invitation had not been accepted. His Honour had noted during the plea that the median sentence for intentionally causing serious injury was 5 years’ imprisonment. The prosecutor had done nothing to dissuade the sentencing judge from approaching this case on the basis that this would be a rough comparator, suitable for use in determining current sentencing practices. In other words, the prosecutor had not done enough to prevent his Honour from falling into error.
Also in support of the exercise of the residual discretion, counsel referred to the recent decision of DPP v Milson,[19] where two members of this Court held that, in the unusual circumstances of that case, the quite extraordinary efforts towards rehabilitation undertaken by the respondent justified the exercise of the residual discretion. The third member of this Court took the view that the sentence was within range, and did not, therefore, have to rely upon the residual discretion to dismiss the Director’s appeal.
[19][2019] VSCA 55 (‘Milson’).
Returning to the oral submissions before this Court in the present case, counsel for the respondent took issue with the Director’s position that his client’s admissions should not carry the full Doran discount. He submitted that without the respondent’s confession, the prosecution could not have succeeded.
In support of that particular contention, counsel pointed to the sentencing remarks, whereby his Honour said of the confession, that it ‘resulted in the successful prosecution.’ He went on to say that without that confession, the prosecution would have had a very difficult task in securing that conviction. Clearly, as the sentencing judge said, the respondent’s admissions were ‘of real importance.’ Indeed, his Honour had said, in the course of discussion, that without the admissions, the case could not ‘have passed a committal.’
Counsel noted that the prosecutor on the plea had effectively conceded as much. The prosecutor said in the course of discussion that the admissions were ‘of high value.’ He submitted that the Director should not now be permitted to advance an argument that departed significantly from that concession made below.
In response to the Director’s submission that the respondent had told a number of lies during the course of his confession, counsel submitted that this was an overstatement. When asked whether the bar had struck Roberts to the head, the respondent had replied ‘I didn’t see it get him in the head.’ However, he had conceded that, in the few seconds surrounding the commission of the offence, he may, indeed, have struck Roberts to the head with the iron bar.
There was then a debate concerning the respondent’s account of having been, himself, verbally abused by Roberts, and then kicked. Counsel submitted that, contrary to the Director’s position, the sentencing judge had not positively rejected that account, but rather, had merely expressed reservations about it. His Honour had said ‘I wouldn’t necessarily believe that, but there’s no other version upon which I could sentence.’
In support of the submission that provocation had played some role in this offending, counsel submitted that the prosecutor on the plea had tacitly accepted that this was so. The prosecutor had said:
In terms of general sentencing considerations, probably specific deterrence would take a backseat in this case. This appears to be a one-off of someone who’s had enough and snapped …
Counsel submitted that this was tantamount to an acknowledgment that there had been a measure of provocation.
Finally, counsel submitted that delay was a significant mitigating factor, even though the respondent himself was to blame for the lengthy period between offending and sentence. After the offending, his wife had given birth to two more children. By the time he came to be arrested, he had gone a long way further along the path towards rehabilitation. Delay, no matter its cause, was always relevant to that factor.
Director’s reply
It was submitted, in reply, that the residual discretion should not be exercised against the Crown in the particular circumstances of this case. Although there had been mention by his Honour of possible comparator cases, in the context of a question as to whether there were such cases readily available, the judge had made it plain that he was not ‘inviting’ the prosecution to produce them. This was not a matter of a request for assistance having been made to the prosecution, and ignored.
It was submitted that Milson was a wholly exceptional case, and did not establish, as a general principle, that positive prospects of rehabilitation would be sufficient to justify the exercise of the residual discretion. Rehabilitation was a factor to be taken into account in deciding whether the sentence was manifestly inadequate. It was not to be counted a second time, at least in ordinary circumstances, when considering whether the discretion should be exercised. Prospects of rehabilitation could, of course, be given appropriate weight in any resentencing exercise, once the threshold of manifest inadequacy had been established.
Analysis
On any view, a sentence of 5 years and 6 months’ imprisonment, with a non-parole period of 2 years and 9 months would have to be regarded as extremely lenient for an offence of intentionally causing serious injury, resulting in the level of harm to the victim caused by this attack upon him. Ordinarily, even having regard to those mitigating factors that were present in this matter (including the plea of guilty, remorse, prior good character, delay, and the additionally burdensome nature of imprisonment) a sentence of close to double figures, in years, would be expected.
The main factor tending to justify a significant reduction in a figure of that order was the so called Doran factor in this case. In our view, the judge’s finding explains why a substantial discount was appropriate in this case. As noted earlier, his Honour stated at the outset of his sentencing reasons that, without the respondent’s confession, the prosecution ‘would have had a very difficult task indeed’ in securing his conviction.
This finding was supported, moreover, by concessions made by the prosecutor on the plea. The transcript of the relevant part of the plea reads as follows:
HIS HONOUR: Had he had not done that record of interview
PROSECUTOR: That’s right. I was about to make that–––
HIS HONOUR: It’d be a very different story.
PROSECUTOR: Make that concession, Your Honour.
HIS HONOUR: Yes.
PROSECUTOR: Whilst he may have been prosecuted, it might have been a completely–––
HIS HONOUR: It wouldn’t have got far, I don’t believe. Yes.
PROSECUTOR: No. And the admissions were of high value and the plea of guilty is of a high utilitarian value in that sense, Your Honour.
HIS HONOUR: Yes.
PROSECUTOR: I’ve heard what Your Honour has said in relation to delay. I don’t quarrel with that. I mean, the reality is the police didn’t have anything, or didn't have very much and that’s–––
HIS HONOUR: I’m not buying into that. Well, yes, they couldn’t have passed a committal.
So far as the Doran discount was concerned, the law is tolerably clear. In some circumstances, a person who is arrested or charged will admit or confess to offences, of which the police may have had no inkling, and for which it is unlikely they would ever have been discovered and prosecuted. In such circumstances, an offender may be given an additional reduction in sentence on the ground that such conduct may facilitate the course of justice, as well as reducing the need for specific deterrence, and encouraging others to act similarly.
In Ryan v The Queen,[20] Kirby J stated:
Unless persons such as the appellant are encouraged to bring unreported cases to notice, the likelihood is that, in the great majority of instances, such crimes will not be reported. They will therefore go unpunished. Accordingly, both from the point of view of society and of the victims of crime, there are strong reasons of policy why the law should encourage offenders to make full confessions. It should certainly not discourage them. Encouraging a full confession may also be an important first step in securing help for, and counselling of, the offender. This is, likewise, one of the objects of criminal punishment and that of judicial sentencing.[21]
[20](2001) 206 CLR 267.
[21]Ibid 295 [94].
Likewise, in Ellis, the New South Wales Court of Criminal Appeal made it clear that the degree of leniency afforded in such circumstances will vary according to the likelihood that the offences would have been discovered by the authorities, and the likelihood that they could have been proved beyond reasonable doubt, without the disclosure having been made.
Accordingly, in this State, what we call the Doran discount (but elsewhere is described as ‘the Ellis discount’) provides a separate basis for a reduction in sentence to that afforded by a guilty plea, even coupled with remorse.
In the present case, the respondent’s admissions did not go so far as to warrant a full Doran discount. Nonetheless, as we have pointed out, the judge concluded that if it had not been for the admissions, there might not have been a (successful) prosecution.[22] In other words, the case against the respondent depended in large measure on what he himself had told police. And the prosecutor concurred with the judge’s view during the exchanges on the plea.
[22]See DPP (Vic) v Woodford (2017) 269 A Crim R 567 [30], [92].
It does not follow, however, that a sentence of 5 years and 6 months’ imprisonment with a non-parole period of 2 years and 9 months can be regarded as even remotely being within range. As we have indicated, a sentence of something perhaps just below, but approaching, 10 years’ imprisonment, would have been appropriate, having regard to such mitigating factors as were present, but without the Doran discount. The objective gravity of this offending called for a stern response, and strong denunciation. This was a case of extraordinary violence, which had a devastating impact on the victim.
There is a further important consideration, that of general deterrence. This was a violent act of reprisal following the breakup of the respondent’s marriage, expressing his animosity and anger towards the person who had been his wife’s partner. Although there are differences between a case like this and a direct attack against a former partner, they are closely related.[23] Violence of this kind is alarmingly widespread, and extremely harmful. It is never justified. The sentences imposed must convey that message strongly.
[23]See, for example, Anderson v The Queen [2014] VSCA 255; DPP v Meyers (2014) 44 VR 486.
For similar reasons, nothing should be said in sentencing reasons to suggest that statements by such an offender to the effect of ‘I just snapped’ or ‘I’d had enough’ in any way mitigate the seriousness of the offending or reduce the offender’s moral culpability. Such self-justifying statements are, regrettably, all too common in cases of family violence. Marital breakdown is stressful and upsetting for all concerned. But a resort to violence can never be condoned.
We are satisfied that there is no basis for the exercise of the residual discretion. Although it is part of the prosecutor’s duty to assist the sentencing judge with relevant sentencing information,[24] the judge in this case made it clear that he was not needing assistance of that kind. As to rehabilitation, we would uphold the Director’s submission that it is relevant only to the assessment of adequacy of the sentence. If the Court concludes that, notwithstanding the prospects of rehabilitation, the sentence is manifestly inadequate, then — absent exceptional circumstances of the kind dealt with in Milson — rehabilitation has no further role to play in the analysis.
[24]Barbaro v The Queen (2014) 253 CLR 58.
For these reasons, the appeal will be allowed and the sentence below set aside. We will re-sentence the respondent to 7 years and 6 months’ imprisonment, with a non-parole period of 4 years and 6 months’ imprisonment.
We should emphasise that this sentence is considerably lower than the objective gravity of this offending would warrant. It is only the Doran discount factor that justifies a sentence of this order for offending as grave as this.
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