DPP v Gerrard
[2011] VSCA 200
•30 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 57 of 2011
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL WAYNE GERRARD |
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| JUDGES | NEAVE, REDLICH and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9 June 2011 |
| DATE OF JUDGMENT | 30 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 200 |
| JUDGMENT APPEALED FROM | R v Gerrard (Unreported, County Court, Judge Dean, 4 March 2011) |
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CRIMINAL LAW – Director’s appeal – Intentionally causing serious injury – Glassing –Sentence of 2 years’ imprisonment, wholly suspended for three years – Insufficient weight given to seriousness of offence – Winch v The Queen [2010] VSCA 141, applied – Improper reliance on R v Verdins (2007) 16 VR 269 – Insufficient evidence of link between appellant’s mental health problems and offending – Decision to suspend sentence partly based on irrelevant considerations – Sentence manifestly inadequate – Appeal allowed – Early guilty plea – Offence provoked by prior violent assault – Increased burden of imprisonment – Very exceptional combination of circumstances – Markovic v The Queen [2010] VSCA 105, applied – Family hardship – De facto partner profoundly deaf and dependent on respondent – Young son suffering from autism – Assistance from relatives unavailable – Respondent re-sentenced to 3 years’ imprisonment, wholly suspended for 3 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms A Forrester | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr P F Tehan QC with Mr G F Meredith | Greg Thomas |
NEAVE JA:
The respondent, Paul Wayne Gerrard, pleaded guilty in the County Court to a count of intentionally causing serious injury. On 4 March 2011, Mr Gerrard was sentenced to 2 years’ imprisonment. The learned sentencing judge directed that the sentence be wholly suspended for a period of 3 years.
The Director now appeals against the sentence on the following five grounds:
(1)The sentence imposed, and the direction to wholly suspend such sentence for a period of three years, is manifestly inadequate in all the circumstances.
(2)The sentencing judge erred in failing to first determine an appropriate sentence for the offending in light of all the aggravating and mitigating features, including, in particular, the plea of guilty, and only then to determine whether it was open or appropriate to suspend the sentence of imprisonment.
(3)It was not open on the evidence for the sentencing judge to find that:
(a) the complainant had played no role in the proceeding;[1]
[1]This factor was not listed in the Notice of Appeal, but was listed in the Director’s Written Case.
(b)the offending was the result of the Respondent’s psychiatric and psychological disabilities;
(c)the Respondent had abstained from alcohol since the commission of the offence;
(d)the Respondent was of low intelligence;
(e)the likely effect of imprisonment upon the Respondent’s mental health if he were to be imprisoned immediately would be significant;
(f)the behaviour of the complainant’s wife preceding the offence was manipulative.
(4)As a matter of law, the sentencing judge erred in finding that the following factors constituted ‘exceptional circumstances’ within the meaning of s 27(2B) of the Sentencing Act 1991:
(a)the complainant has made a full recovery, played no role in the sentencing proceedings and did not prepare a Victim Impact Statement;
(b)the Respondent’s partner, who is entirely dependant upon him, is profoundly deaf;
(c)a term of imprisonment to be immediately served would cause exceptional hardship to the Respondent’s wife and two children;[2] and
[2]This factor was not listed in the Director’s Written case, but added with leave at the hearing of the appeal.
(d)the Respondent has abstained from alcohol since the commission of the offence.
(5)As a matter of fact, it was not open to the sentencing judge to find that the following circumstances constituted ‘exceptional circumstances’ within the meaning of s 28(2B) of the Sentencing Act 1991:
(a)the Respondent was seriously assaulted by the complainant before the offence;
(b)the assault upon the Respondent by the complainant was preceded by manipulative behaviour towards him by the complainant’s wife;
(c)the complainant has made a full recovery, played no role in these proceedings and did not prepare a Victim Impact Statement;
(d)the Respondent is of low intelligence and suffers from a range of psychiatric and psychological disabilities;
(e)the Respondent’s partner, who is entirely dependant upon him, is profoundly deaf;
(f)a term of imprisonment to be immediately served will cause exceptional hardship to the Respondent’s partner and two children;
(g)a period of imprisonment to be served immediately will have a serious adverse impact on the Respondent’s mental health;
(h)as a result of his disabilities a period of imprisonment to be immediately served would cause the Respondent significant hardship; and
(i)the Respondent had abstained from alcohol since the commission of the offence.
The circumstances of the offending and the offender
On the evening of 30 April 2010, the respondent, the victim and the victim’s wife were drinking at the Gembrook Hotel. During the course of the evening, the respondent spoke to various patrons at the hotel, including the victim’s wife. The victim’s wife described her conversation with the respondent as ‘flirty’. The respondent claimed that the victim’s wife discussed certain personal matters with him, including the fact that her husband (ie, the victim) ‘bashed’ her.[3]
[3]The Judge found that ‘[i]t is also possible that [the victim’s wife] was in fact teasing you or taunting you as a result of your childlike demeanour and appearance. Your vulnerable disposition must have been apparent to both [the victim and the victim’s wife]’. Counsel for the respondent relied on this finding.
Later that night, the victim came up behind the respondent while he was outside the Hotel having a cigarette. The victim told the respondent to ‘stay away from [his] wife’, and punched the respondent twice in the head. The second punch caused injury to the respondent’s face, including a black eye.
Approximately five to ten minutes later,[4] the respondent smashed the ‘pot’ glass in his hand, walked back into the Hotel and struck the victim to the left side of his neck with the base of a broken pot glass, inflicting a gaping wound in his neck. The victim was taken to hospital, where he underwent plastic surgery to repair the injury. He is now fully recovered, although his neck is scarred.
[4]Some witnesses suggested that there was a delay of up to 15 to 20 minutes between the victim’s assault on the respondent and the commission of the offence.
The Director’s written case on the appeal said that:
The respondent was not alleged to have smashed the glass with the intention of injuring the complainant [however] having so smashed it, he decided with aforethought to injure the complainant before re-entering the hotel and committing the offence.
The respondent fled from the hotel. After he was arrested and interviewed, he told police that he was ‘very drunk’ at the time of the incident and that he felt ‘extreme anger. Like I wanted to hurt him’. The respondent also told police that he believed that he was ‘doing the same that he had done to me, coming from behind, just out of anger or – I retaliated’.
The respondent was aged 37 years at the date of offending and 38 years at the date of sentence.[5] He admitted one prior court appearance on 15 November 2004 for counts of arson, for which he was placed on a suspended sentence and a community-based order.[6]
[5]R v Gerrard (Unreported, County Court, Judge Dean, 4 March 2011) (‘Reasons’), [8].
[6]Ibid [6]. Note that, during the course of the Plea, counsel for the Respondent disclosed a domestic assault which occurred on 11 March 2010 (that is, prior to the date of this offence). The Respondent was sentenced in the Magistrates’ Court on 18 October 2010, with conviction, to pay a fine of $500-$800. The offences were subsequently clarified on appeal as being counts of criminal damage and making a threat to kill, for which the offender was fined $800.
At the date of sentence, the respondent was in a de facto relationship. His partner, with whom he has two children, aged seven and nine, is profoundly deaf. She does not work outside the home or have a driver’s licence. One of his children has been diagnosed with autism.
A report dated 29 November 2010 was prepared by Ms Gina Cidoni, a clinical and forensic psychologist, and tendered on the respondent’s behalf. On the basis of psychological tests, Ms Cidoni’s conclusion was that there was a significant discrepancy between the respondent’s verbal and non-verbal IQ. In particular, Ms Cidoni found the respondent’s full scale IQ to be 104, with his verbal IQ at 92 (where 70 per cent would perform better) and his non-verbal performance to be 122 (where 7 per cent would perform better). She said that this discrepancy could be attributed to failure at school or cerebral dysfunction, possibly related to alcohol abuse. The respondent was described as having been affected by severe bullying from middle childhood through to his teens. He was said to present with chronic depression and serious social and interpersonal difficulties, anger and alcohol abuse.[7]
[7]Reasons, [9].
A later report, prepared by Dr Nicholas Bradfield, a clinical neuropsychologist,[8] was also tendered on the respondent’s behalf. In the report, Dr Bradfield described the respondent’s long psychiatric history, including a number of suicide attempts and a diagnosis of bipolar affective disorder. He noted that the respondent had a history of alcohol abuse and diagnosed the respondent with a weakness in verbal abilities and poor executive functioning. He could not exclude the possibility that the respondent had a mild acquired brain injury.[9] Overall, the respondent’s verbal intellectual intelligence was described by Dr Bradfield as ‘low average-average’, whilst in contrast, his visual-spatial intelligence was very superior, falling into the top 2 per cent of the population. Dr Bradfield considered that ‘it is more likely that Mr Gerrard’s alleged offence was more influenced by his state of alcohol intoxication at the time than by any acquired brain injury’. He considered that the respondent’s primary disability was psychiatric and indicated that he would benefit from a psychiatric review and abstinence from alcohol consumption.
[8]Dated 11 February 2011.
[9]Reasons, [10].
The plea hearing and his Honour’s reasons
At the beginning of the plea hearing, the judge noted that the respondent had only one prior conviction, which did not attract a custodial sentence, and remarked that, having regard to the circumstances of the case and subject to hearing from the prosecution, it did not strike him that this was a case which would automatically warrant a term of imprisonment. His Honour expressed that view again, later in the plea hearing.
In his sentencing reasons, his Honour acknowledged that the offence was a very serious one, but said that the gravity of the respondent’s offending ought to be considered in light of relevant mitigating factors.[10] These included his early guilty plea, the fact that, in court, he ‘appeared to be both physically and psychologically vulnerable and very upset by the court proceedings’, his de facto partner’s profound deafness and financial dependence on him, and his long psychiatric history.
[10]Ibid [5].
His Honour said that:
I am satisfied that [the respondent] found the circumstances of [his] treatment by [the victim’s wife] and the assault upon [him] by her husband confusing and [he was] unable to control the complex responses that behaviour triggered within [him]. In that way, [his] offending was the result of [his] psychiatric and psychological disabilities. [He was] also adversely affected by alcohol at the time of the offence, which exacerbated [his] impulse response to the assault upon [him].[11]
[11]Ibid [11].
His Honour then referred to R v Verdins[12] and concluded that:
a sentence of imprisonment to be served immediately would have a significant adverse impact on [the respondent’s] mental health and that the hardship of imprisonment would weigh more heavily on [him] than a person of normal mental health. I am also satisfied that the sentencing principle of general deterrence should be moderated … because of [the respondent’s] mental health.[13]
[12](2007) 16 VR 269.
[13]Reasons, [12].
His Honour referred to the decision in Winch v The Queen,[14] in which this Court concluded that the offence of recklessly causing serious injury (‘RCSI’) by ‘glassing’ was generally to be characterised as serious example of the offence, which was ‘likely to attract a significant term of imprisonment to be served immediately’.[15] However, his Honour concluded that the Court in Winch did not state that an immediate term of imprisonment must be imposed for a glassing offence ‘in all circumstances’.
[14][2010] VSCA 141.
[15]Reasons, [13].
Whilst acknowledging that a sentence of imprisonment was normally appropriate for glassing, his Honour concluded that the sentence should be suspended because of the exceptional circumstances,[16] which are listed in ground of appeal 5, set out above.
[16]Ibid [17]-[26].
His Honour said that, but for the respondent’s plea of guilty, he would have imposed a sentence of 2 years’ imprisonment to be served immediately with a non‑parole period of 12 months.[17]
[17]Ibid [29].
Director’s submissions
In essence, the five grounds of appeal rely on three matters to support the claim that the two year sentence and suspension of that sentence for three years were manifestly inadequate.
First, counsel for the Director submitted that the gravity of the offence required the imposition of a much more substantial term of imprisonment. In support of that argument, counsel relied on the statements made by this Court in Winch v The Queen,[18] Trowsdale v The Queen[19] and Ellis v The Queen[20] about the approach which should be taken in sentencing offenders in glassing cases. Counsel for the Director pointed out that, in each of these cases, the offender was convicted of RCSI and relied on Maxwell P’s statement in Director of Public Prosecutions v Monteiro[21] that ‘[o]ther things being equal … the intentional causing of serious injury should attract a higher sentence than the reckless causing of the same injury’.[22]
[18][2010] VSCA 141, [36].
[19][2011] VSCA 81.
[20][2011] VSCA 36.
[21][2009] VSCA 105.
[22]Ibid [11].
The Director submitted that, even though the respondent did not smash the glass with the intention of using it on the victim, he plunged it into the victim’s neck knowing that it was broken, an action which could have led to the victim’s death.
Counsel for the Director further argued that the sentencing judge had not decided on an appropriate sentence in light of all relevant factors, before deciding whether it was appropriate to suspend that sentence. This was said to be demonstrated by his Honour’s remarks during the plea hearing and the fact that he had said that, if the respondent had not pleaded guilty, he would have received a term of imprisonment of the same length as that which he received having entered a plea of guilty.
Secondly, the Director challenged a number of the factual findings on which the judge relied either in determining the length of the sentence to be imposed, and/or as exceptional circumstances which made it appropriate to suspend the sentence. While counsel accepted that there was a physical altercation between the respondent and the victim before the ‘glassing’ occurred, she relied on the fact that a period of at least some minutes (possibly up to 15 to 20 minutes) passed between that altercation and the offence. The Director also cavilled with his Honour’s findings that:
(a) the behaviour of the victim’s wife preceding the offence was manipulative;
(b) the respondent was of ‘low intelligence’ and his offending was the result of psychiatric and psychological disabilities;
(c) the effect of incarceration on the respondent’s mental health would be ‘significant’;
(d) the respondent’s family would suffer exceptional hardship if a sentence of immediate imprisonment were imposed; and
(e) the respondent had abstained from alcohol after he committed the offence.[23]
[23]Counsel for the Director relied on the observation in Dr Bradfield’s report that the respondent had decreased his alcohol consumption but was still binge drinking once a month. This was also raised by the Crown at the plea hearing.
Thirdly, the Director submitted that his Honour had erred in finding that the factors set out in ground 5 above constituted ‘exceptional circumstances’ within the meaning of s 27(2B) of the Sentencing Act 1991. Reliance was placed on Hedigan J’s observation in Owens v Stevens[24] that ‘[i]t may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation’.[25] It was argued that the combination of matters on which his Honour relied did not satisfy that description.
[24](Unreported, Supreme Court of Victoria, Hedigan J, 3 May 1991), cited in R v Steggall (2005) 157 A Crim R 402, 406 [12] (Nettle JA, Buchanan and Eames JJA agreeing).
[25]Counsel did not refer to R v Ioannou (2007) 17 VR 563, in which Redlich JA (at 568 [17]) qualified the observations of Hedigan J and Nettle JA by stating that ‘Steggall is not authority for the proposition that circumstances can only be exceptional if they are beyond reasonable expectation or contemplation’ but instead, will be characterised as such if ‘clearly unusual or quite special or distinctly out of the ordinary’.
Respondent’s submissions
Counsel for the respondent submitted that his Honour had taken the statements made to the Court in Winch into account in sentencing the respondent. It was argued that the sentence was not outside the range of sentences which could be imposed in light of the powerful mitigating factors which existed in this case.
Counsel for the respondent submitted that his Honour’s factual findings relating to the manipulative behaviour of the victim’s wife, the application of Verdins principles, the hardship which would be suffered by the respondent’s family if he received an immediate term of imprisonment, and the respondent’s abstention from alcohol since committing the offence were reasonably open to him.[26]
[26]Counsel submitted that the statement in Dr Bradfield’s report that the respondent ‘[m]ore recently … has decreased his intake to one binge session per month’ should be interpreted not as a reference to the respondent’s alcohol consumption at the date of the report (ie, after the offending) but instead a reference to his consumption of alcohol at the time of offending. Counsel for the respondent submitted that it was clear that the former interpretation was correct.
The sentencing judge had correctly applied the principle in Verdins in holding that the respondent’s moral culpability was reduced by his ‘psychiatric and psychological disabilities’ because his mental impairment led him to be confused by the ‘manipulative behaviour’ of the victim’s wife, and the victim’s assault on him. His Honour had also correctly taken the view that these disabilities would mean that imprisonment would weigh more heavily on the respondent than a person of normal mental health and that general deterrence should be moderated.
His Honour had also correctly found that it was a mitigating factor that the offence occurred in response to a violent attack by the victim, which left him with a black eye. The fact that there was a time lapse of (on one view) ‘about 5 to 10’ minutes between the victim’s assault on the respondent and the commission of the offence was not significant. Nor was the fact that he was drunk an aggravating feature, since the respondent’s offence was precipitated by an offence committed on the respondent by the victim, which happened to occur when the respondent had been drinking.
There was no error in the sentencing judge’s treatment of the fact that the respondent’s wife was deaf, did not drive, could not work, and that the respondent was the sole breadwinner for his partner and two young children.
In response to the Director’s challenge to his Honour’s finding that there were exceptional circumstances justifying the imposition of a suspended sentence, the respondent’s counsel relied on the statement by Winneke P in Director of Public Prosecutions v Carter[27] that: ‘If an appellant court can discern a sound basis for the exercise of the sentencing judge’s discretion [i.e. to wholly suspend the sentence] it should be slow to interfere with that discretion on a Crown appeal’.[28]
[27][1998] 1 VR 601.
[28]Ibid 607.
Counsel placed particular emphasis on the respondent’s ‘low intellect’ and the hardship to his family as exceptional circumstances justifying the suspension of the sentence.
In the alternative, counsel submitted that, even if the Court considered that the sentence imposed was manifestly inadequate, it should exercise its discretion not to alter the sentence. The respondent had already served over three months of his suspended sentence and was working and supporting his deaf wife. In addition, counsel for the respondent relied on an additional medical report referring to the difficulties faced by the family arising out of the child Noah’s intellectual disability and autism.
Conclusion
In my opinion, the appeal should be allowed. Unfortunately, his Honour made a number of sentencing errors.
First, I would accept the submission of the Director that his Honour gave insufficient weight to the seriousness of the offence of intentionally inflicting serious injury and to the guidance offered by this Court as to the approach to be taken to sentencing offenders in ‘glassing’ cases.
Winch was an appeal against a maximum term of 5 years’ imprisonment imposed on a man who pleaded guilty to the offence of RCSI, in the context of a serious injury caused by the ‘glassing’ of the victim. Because the Director conceded that the sentence imposed was inconsistent with current sentencing practices, the appeal was allowed and the offender was sentenced to 2 years and 9 months’ imprisonment with a non-parole period of 15 months.
However, the Court took the opportunity to review the sentences imposed in relation to the offence of RCSI in the context of ‘glassing’, and concluded that current sentencing practices did not sufficiently reflect the fact that such conduct was inherently dangerous. In their joint reasons, Maxwell P and Redlich JA said that ‘glassing’ should be regarded as a serious example of RCSI and that the prevalence of alcohol–fuelled violence including ‘glassing’ required general deterrence (and, where necessary, specific deterrence) to be given primacy in sentencing.[29] Their Honours also said that:
in a glassing case (where the offender is being sentenced for RCSI) the full suspension of a custodial sentence will not ordinarily be an available sentencing option. The objective gravity of the offence will usually require a term of immediate imprisonment. This approach is necessary, in our view, if the courts are to give appropriate effect to the maximum penalty – which marks out the sentencing parameters[30] – and to general deterrence, and to recognise the objective seriousness of ‘glassing’ as an instance of RCSI.
Glassing cases should, in our view, be treated as being in the same category as other RSCI offences which involve the use of a dangerous weapon likely to produce serious injury. There is no warrant for placing these cases in a lower category of seriousness where an immediate custodial sentence is not ordinarily required.[31] [Emphasis added]
[29][2010] VSCA 141, [44].
[30]R v AB (No 2) (2008) 18 VR 391, 403-4 [40]–[41], 405-6 [48]–[51] (Warren CJ, Maxwell P and Redlich JA).
[31][2010] VSCA 141, [53]-[54].
In the present case, where the respondent pleaded guilty to intentionally causing serious injury, these comments are of even greater force. The maximum term of imprisonment for causing serious injury intentionally is 20 years. Although the victim has recovered from his neck injury, he was savagely attacked by the respondent, who inflicted a potentially life-threatening injury.
Secondly, I consider that his Honour erred in his application of the first principle in Verdins. The Director did not concede that the respondent’s moral culpability warranted any reduction in the respondent’s sentence. Nor do the reports of Ms Cidoni and Dr Bradfield amount to evidence of a causal link between the offending and the respondent’s psychological and psychiatric problems. As I have said, Dr Bradfield considered it more likely that the offence was caused by the respondent’s intoxication than by any acquired brain injury and suggested that a further psychiatric review would be desirable to ‘comment on any psychiatric factors that may have influenced the alleged offending behaviour’.
Although counsel for the respondent suggested that a further report would assist in substantiating a link between the offender’s mental health problems and his offending, the trial judge indicated that such a report was probably unnecessary. This was unfortunate. This Court has, on a number of occasions, emphasised the need to adduce evidence that the offender’s impaired mental health has reduced his or her moral culpability, if reduced moral culpability is to be treated as a mitigating factor under the first principle in Verdins.[32] In my opinion, there was no evidentiary basis on which his Honour was entitled to take that view.
[32]See, for eg, R v Zander [2009] VSCA 10, [29] (Dodds-Streeton JA, Nettle JA agreeing).
By contrast, I consider that the psychological reports provided a basis for his Honour’s finding that the respondent’s history of depression and suicide attempts would affect his mental health and make prison more burdensome for him than for a person not suffering from these problems.
Thirdly, I consider that his Honour, in determining the sentence which should be imposed and whether that sentence should be suspended, erred in taking account of:
(a) the ‘manipulative behaviour’ of the victim’s wife;
(b) the fact that the victim had made a full recovery and had not provided a victim impact statement; and
(c) the respondent’s ‘low intelligence’.
There was no evidence that the victim’s wife’s behaviour was ‘manipulative’. Her statement that she had been ‘flirty’ did not indicate that she intended to persuade the respondent to assault her husband. Even if that had been the case, there was no evidence that this was the reason for the respondent’s assault of the victim. In his police interview, the respondent attributed his behaviour to anger. The finding relating to the respondent’s ‘low intellect’ is also debatable, since both Ms Cidoni and Dr Bradfield found that, despite the respondent’s low verbal IQ, his performance in other areas was superior.
I also consider that his Honour erred in regarding the failure of the victim to provide a victim impact statement or to take any part in the proceedings as a mitigating factor. The fact that the victim recovered from the attack on him was relevant in sentencing the offender under s 5(2AB)(daa) of the Sentencing Act 1991. Some case law supports the view that the ‘forgiveness’ of a victim can be taken into account in sentencing[33], though this has also been questioned. [34] But such authority does not support the proposition relied upon by the judge. There are many reasons why a victim may choose not to make a victim impact statement and no authority supports the view that this should be treated as a mitigating factor in sentencing.
[33]R v Van Roosmalen (1989) 43 A Crim R 358; R v H (1995) 81 A Crim R 88; R v Skura [2004] VSCA 53; R v Sa [2004] VSCA 182, [38]-[40] (Eames JA); R v CLP [2008] VSCA 113, [30]-[35] (Neave JA, Kellam JA and Osborne AJA agreeing).
[34]R v Sa [2004] VSCA 182, [38]-[40] (Eames JA); R v CLP [2008] VSCA 113, [30]-[35] (Neave JA, Kellam JA and Osborne AJA agreeing).
In my opinion, these errors led his Honour to impose a manifestly inadequate sentence of 2 years’ imprisonment, suspended for three years. Indeed, his Honour’s remarks during the plea hearing tend to suggest that he reached the view that the respondent should receive a suspended sentence before he decided on the appropriate term of imprisonment by applying the process of ‘instinctive synthesis’. It is therefore necessary to re‑sentence the offender.
In doing so, it is appropriate for this Court to take account of the evidence relating to the condition of the respondent’s son, Noah. The Court was provided with a letter from Dr Saul Cohen which said the following
Noah identifies playing with blocks but it sounds like he is struggling in all other aspects of his academic work, and also his social progress is compromised. His parents have always noted that he has been aggressive and can have poor cooperation unless it is on his terms. He can be obsessed with playing with the Playstation, a very visual experience, to the extent of neglecting his toileting issues and will often wet himself and occasionally defecate in his pants. He can not seem to settle for long enough to be on the toilet for a bowel motion. When he wets at school he does not tell his teacher. In the past I understand he has seen Dr Bob Lim and was commenced on Catapres to aide with his sleep 100μg at night.
His teacher, Abbey Provis, describes a boy who is repetitive, fixed, mouthing and can be distracted and fixated on individual objects and agitated if the object is removed. He displays a lack of empathy and makes no connection when another child is upset due to his destructive behaviours. It is difficult to get his attention. He is disorganised, disruptive, distractible, has poor coordination, poor short term memory, is overactive, impulsive and is almost impossible to keep focused for any longer than 10 seconds in the classroom and only then with close attention from his teacher.
FORMULATION
Noah has documented borderline intellectual ability with a full scale IQ of 70. he had weaknesses in the areas of working memory and verbal comprehension. This has been evidence[d] in the classroom. Further speech therapy assessment and further assessment for his mild autistic traits are pending.
I note that he has 9/9 inattentive, 6/6 hyperactive and 2/3 impulsivity criteria and this is on scoring by both his parents today and his school teacher. With this in mind even despite the awaited speech therapy testing, a trial of Ritalin is indicated in a dose up to 1½ of the 10mg tablets daily. I discussed with them the pros and cons of treatment. I have also requested some baseline bloods including blood count, iron studies, kidney and liver function, CPK, thyroid, celiac screen, chromosomes, fragile X locus and SNP micro array. I will see him again in four to six weeks time to see what progress has been made. I was grateful that his teacher could accompany him to the appointment today.[35]
[35]Report of Dr Saul Cohen dated 17 May 2011.
Having regard to that additional report, I consider that the deafness of the respondent’s wife, her consequent dependence on the respondent and his son’s autism amount to exceptional family hardship which must be taken into account as a mitigating factor in determining the appropriate term of imprisonment.[36]
[36]Markovic v The Queen [2010] VSCA 105. At the plea hearing, the Crown did not indicate that additional evidence was required on these matters.
I have found the re-sentencing exercise which this Court must undertake a difficult one. In Winch, this Court emphasised the importance of general and (where relevant) specific deterrence when sentencing offenders for offences committed in the context of alcohol-fuelled violence. Specific deterrence is particularly relevant in this case because the respondent’s previous offending must have made him aware of his tendency to offend while drunk. Further, although the respondent cannot be sentenced on the basis that he deliberately broke the glass in order to attack the victim with it, the attack was not entirely spontaneous.
An attack which was to some extent premeditated and involved the use of a very dangerous weapon by a drunken offender would normally require the imposition of an immediate term of imprisonment on the respondent in the order of four or five years.
On the other hand, there were important mitigating factors in this case. In re‑sentencing the respondent, we must take account of his very early admission of guilt, his remorse, his good work history and favourable reference from his employer, the judge’s factual finding that he has abstained from alcohol since he committed this offence and the fact that he has not offended since his suspended sentence was imposed. The matters which I consider justify imposing a lower than usual sentence include the fact that the glassing attack was not triggered by an exchange of words or a perceived slight but by the victim’s attack on him, his serious psychiatric problems, which will make prison more burdensome for him, his knowledge of the serious difficulties his wife and children would suffer if he were sent to gaol, and the exceptional hardship which will be faced by respondent’s family during any period he spends in gaol. In response to a question from the Court, counsel for the respondent said that he was instructed that neither the parents or siblings of the respondent or his wife were able to offer the wife assistance with the autistic child Noah, if the respondent were required to serve an immediate term of imprisonment.
Having regard to all these matters, I would impose a maximum sentence of 3 years’ imprisonment. In doing so, I emphasise that such a sentence would normally be manifestly inadequate, having regard to the gravity of the offence and that it is justified only because of the very exceptional combination of circumstances which exist in this case. It is not uncommon for offenders who commit glassing offences to have no prior history of offending, to plead guilty and to be remorseful. However, the constellation of factors present in this case did not exist in the cases to which I have referred above.
In my opinion, the combination of the respondent’s exceptional family circumstances and his psychiatric problems also justify suspension of the sentence. I would order suspension of his term of imprisonment for a period of 3 years. If the respondent had not pleaded guilty to this offence, I would have sentenced him to a term of imprisonment of 4 years, with a minimum non-parole period of 2 years and 6 months.
REDLICH JA
For the reasons given by Neave JA I agree that the sentencing judge made a number of discrete errors which require the sentencing discretion to be reopened.
The respondent was subjected to an entirely unwarranted assault. The victim without warning punched the respondent to the back of the head and then punched his face. The victim then went into the hotel. Within a short period after that assault, the respondent broke the drinking glass that he was holding and entered the hotel with the intention of assaulting the victim with the glass. He then stabbed the victim to the side of the neck causing a very serious injury and ran away.
Winch v The Queen[37] was concerned with the lesser offence of recklessly causing serious injury. Observations were made in the joint judgment about the offence known as glassing where an offender uses a drinking glass as a weapon to inflict serious injury. Such conduct was not to be viewed as some less serious category of the offence of recklessly causing serious injury. The joint judgment further stated that ordinarily such an offence will attract an immediate custodial sentence.[38] The reasoning in Winch obviously also applies to the more serious offence of intentionally causing serious injury.
[37][2010] VSCA 141.
[38]Ibid [54] (Maxwell P and Redlich JA).
In most of the glassing cases referred to the Court in Winch, the offender’s criminal conduct was contemporaneous with real or perceived provocation by the victim. Where a substantial time elapses between the real or perceived provocation by the victim, the criminal act may properly be described as premeditated and so constitute a circumstance of aggravation.
Although the respondent was undoubtedly in a state of high anger, his conduct was premeditated. Therefore the objective gravity of the offence would ordinarily call for a substantial term of imprisonment well in excess of the two year sentence fixed by the sentencing judge. But his Honour’s sympathies were quite reasonably excited by the personal circumstances of the respondent. The respondent’s reliance upon the hardship to his family was to be treated by the sentencing judge and this court as a request for mercy.[39] The family hardship described by Neave JA does constitute exceptional circumstances and justified the exercise of mercy and the imposition of a compassionate sentence. However, in giving effect to considerations which call for mercy, a judge does not have unlimited latitude as to the sentence which may be imposed. Those considerations must not preclude the sentencing court from attaching due weight to other recognised elements of punishment;[40] the sentence fixed must remain one that is adequate, having regard to the objective gravity of the offence and the personal circumstances of the offender.[41] Giving the grant of mercy its greatest amplitude, the sentence of two years imprisonment fixed by the learned sentencing judge was insufficient.
[39]Markovic v The Queen, Pantelicv The Queen (2010) 200 A Crim R 510, 515.
[40]DPP v Moore [2009] VSCA 264, [19]-[20] (Neave and Redlich JJA).
[41]DPP v Cook (2004) 141 A Crim R 579, 586 (Chernov JA).
Allowing as much compassion as the law permits, and giving effect to the mitigating factors referred to by Neave JA in her reasons, I agree that the respondent should be sentenced to three years’ imprisonment wholly suspended. Were it not for the quite exceptional circumstances of that hardship to the respondent’s family, the great leniency reflected in both the sentence of three years and the order wholly suspending the sentence could not have been contemplated as an adequate sentence.
BONGIORNO JA:
I agree with Neave JA that the discretion of the sentencing judge miscarried in this case for the reasons her Honour has given. There is nothing I can usefully add to those reasons. I do wish to add a brief comment with respect to the re-sentencing exercise her Honour has proposed, however.
Neave JA has eloquently described the tragic circumstances of the offence – both as to its consequences for the victim (although, happily, these are now significantly resolved) and its consequences for the respondent and, more particularly, his family should he now have to serve an immediately operative term of imprisonment. Whilst his offence was serious and would normally attract a substantial term of immediate imprisonment – perhaps of the order of four or five years as her Honour suggests – there are, in this case, compelling factors which justify a significantly more lenient disposition.
In Markovic v R,[42] this Court recently confirmed the long-standing common law rule that unless circumstances are shown to be exceptional, family hardship is to be disregarded as a sentencing consideration. Even when circumstances are exceptional, family hardship is not itself a mitigating factor, though it may form the basis of a plea to the residual discretion of the sentencing court to extend leniency to the prisoner out of compassion to those who would be affected by his or her incarceration.
[42](2010) 200 A Crim R 510.
In this case, the respondent’s family circumstances are truly exceptional. They have been described in some detail by Neave JA and need not be repeated here. Having regard to those circumstances, particularly perhaps the profound deafness of the respondent’s partner and the intellectual disability and autism from which his second child suffers, it is not unlikely that the incarceration of the respondent would lead to the disintegration of this family unit. This would have very serious consequences for the respondent’s dependents, even perhaps involving state intervention with respect to the children. This is a consequence to be avoided if at all possible. Not only is such a consequence not in the interests of those immediately affected; it is not in the interests of society generally.
I respectfully agree with Neave JA that the re-sentencing exercise in this case is extremely difficult. However, having regard to the factors referred to by her Honour and, particularly, the possible consequences of an immediate custodial sentence for the respondent’s family, mercy in the sentencing process is clearly warranted. It is in cases such as this that the importance of the appropriate and balanced exercise of a judicial discretion in sentencing is most emphatically illustrated. Were the Court bound to impose an immediate custodial sentence on the respondent in the exceptional circumstances of this case, grave injustice would be done to the respondent’s family, who are themselves innocent of any wrongdoing.
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