DPP v Lothian
[2006] VSCA 217
•11 October 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 182 of 2006
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| BRETT ANDREW LOTHIAN |
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JUDGES: | WARREN, C.J., MAXWELL, P. and BUCHANAN, J.A. | |
WHERE HELD: | BENDIGO | |
DATE OF HEARING: | 11 October 2006 | |
DATE OF JUDGMENT: | 11 October 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 217 | |
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Criminal law – Crown appeal – Intentionally causing serious injury – Road rage – Attack upon motorist with steering lock – Sentence of 18 months’ imprisonment with a minimum term of six months manifestly inadequate – Respondent re-sentenced to a term of three years’ imprisonment with a minimum term of 18 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C.M. Quin | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Respondent | Mr P.F. Tehan, Q.C. with Mr C.B. Boyce | Mr Robert Davis |
WARREN, C.J.:
I invite Buchanan, J.A. to deliver the first judgment.
BUCHANAN, J.A.:
The respondent was arraigned in the County Court and pleaded guilty to a presentment containing one count of intentionally causing serious injury and one count of theft. After a plea, the respondent was sentenced to be imprisoned for a term of 18 months on the count of intentionally causing injury and was fined $100 on the count of theft. The sentencing judge directed that the respondent serve a minimum term of six months' imprisonment before he was to become eligible for parole.
The offence of intentionally causing serious injury was an example of the modern phenomenon known as road rage. The victim, a 61-year-old man, was driving north along Rathdowne Street, Carlton in morning peak-hour traffic. He approached a break in the median strip, intending to make a right-hand turn. He stopped in the middle of the median strip to give way to oncoming traffic. The respondent was driving home from his work as a security guard at a Carlton hotel. He had consumed two beers and had smoked cannabis and ingested two grams of crystal methylamphetamine. The respondent wished to cross Rathdowne Street by proceeding through the gap in the median strip which was blocked by the car driven by the victim and another car. The respondent wound down his window, yelled abuse and gesticulated with his fist. The victim wound down his window and said: "Calm down, dickhead."
The respondent was enraged. He took the steering lock from his car, dismantled it, and, holding one piece in each hand, approached the victim's car. The victim got out of the car and the respondent commenced to strike him to the head with both pieces of the steering lock. The victim grappled with the respondent in order to keep his body close to that of the respondent to lessen the force of the blows. The sentencing judge described the attack as vicious. The blows were directed at the victim's head in a windmill action. The respondent also struck the victim in the groin and attempted a number of times to head-butt him, and struck him on the nose. As a consequence of this attack, blood from the victim's head spurted over the roadway, the victim and the respondent. The respondent only ceased his attack when the victim slumped to the ground. The respondent got into his car and left the scene.
One of the witnesses to the assault wrote down the registration number of the car driven by the respondent and as a consequence he was arrested by the police at his house. In the course of a record of interview the respondent sought to excuse his behaviour by stating that the victim was six feet three or more inches tall and weighed 120 kilograms and was acting aggressively. When the police suggested that the respondent was bigger than the victim, the respondent said that when he was sitting in his car "he looked like he was twice my size". The respondent said: "I was in fear that he was going to do something bad to me. I was boxed in in traffic. I had nowhere to go." The sentencing judge found, having regard to the accounts of several witnesses, that the account given by the respondent to the police was false and that the victim did not behave aggressively towards him. Her Honour concluded that the respondent intended to physically attack the victim because he lost his temper, and not because of any perceived threat.
The victim was taken to hospital by ambulance. He had five separate lacerations requiring in all twelve stitches. It appeared from the proceedings at the committal that the physical injuries to the victim had healed, although, according to a victim impact statement, he suffered certain ongoing effects.
When the police searched the respondent's house they found ten mobile telephones. The respondent said that the telephones had been left at the hotel where he worked by patrons at the hotel. He said that he did not realise that his actions constituted the criminal offence of theft by finding. The sentencing judge appears to have accepted this explanation: hence the fine.
The Director has appealed on the ground that the sentence and non-parole period were each manifestly inadequate. The particulars of that ground are that the sentencing judge failed to adequately reflect the gravity of the offence, failed to take into account the aspects of general and specific deterrence, gave too much weight to mitigating factors and insufficient weight to the effects of the offence upon the victim.
The respondent is now 28 years old. He has one prior conviction for damaging property, for which he received a good behaviour bond. It is relevant to note, however, that the offence was caused by the respondent acting in anger. The respondent's childhood was blighted by physical abuse in the form of apparently unwarranted corporal punishment meted out to him by his mother, who frequently expressed her dislike of her son. The respondent's parents separated when he was 14 years old and the respondent lived with his father. The respondent worked in various forms of employment in Victoria, Queensland and South Australia, before becoming a security guard. The respondent commenced to use cannabis at the age of 14 years. He continued to use cannabis and more recently, in the course of his work as a security guard, started to use crystal methylamphetamine, in response to the demands of that job and the stresses engendered by it.
In the course of the plea, a report by a psychologist was tendered. The psychologist reported, and the sentencing judge apparently accepted, that as the victim of a traumatic childhood and facing stress at his work, the respondent used drugs as a way of dealing with the anxiety and stress which he experienced. Her Honour said that the respondent's long-term use of cannabis and injection of methyl-amphetamine on the day the assault occurred were linked to his aggression. The psychologist said:
"Marijuana was used to numb his feelings of pain, but in the process led to a path of addiction that was further detrimental to his well being. Working as a security guard contributed to the maintenance of his inappropriate, albeit destructive ways of dealing with his own problems. My professional opinion is that the assault on 8 September 2004 was a culmination of his past and existing stressors, which had always been dealt with by inappropriate drug taking."
Evidence was given before the sentencing judge by the respondent's brother, his wife and employer, all of whom swore that the attack by the respondent was out of character.
The respondent was entitled to a discounted sentence because he pleaded guilty. The first indication of the plea, however, was not given until some months after the committal, at which the victim and other witnesses were cross-examined.
The offence of intentionally causing serious injury is the most serious injury offence short of homicide. The maximum sentence is 20 years' imprisonment. A sentence of 18 months' imprisonment with a minimum term of six months' imprisonment is only warranted for an offence at the lower end of the scale, committed by a person able to rely upon significant mitigating factors. In my opinion, this offence and this offender did not answer that description. Essentially, the attack was unprovoked. Impeding the progress of another car driver, and calling that driver a dickhead, does not entitle a larger, younger driver to advance upon his victim, armed with two pieces of metal, attack his victim intending to cause serious injury, and beat the victim repeatedly until he slumps to the ground. The attack was cowardly and vicious. It was not excused by the annoying congestion of Melbourne traffic or the respondent's ingestion of drugs.
The courts will protect innocent members of the public from violence which I think can be accurately described as horrifying. The offence calls for a substantial sentence to reflect this Court's denunciation of the crime and the need to promote general and specific deterrence. As Nettle, J.A. pointed out in Director of Public Prosecutions v. Zullo[1], an intention to inflict serious injury means that, in that respect, the offence is more serious than unintentional homicide. The sentence imposed in this case simply does not reflect the gravity of the offence. In my view, the head sentence and the non-parole period demonstrate "clear and egregious inadequacy"[2] and thereby require the intervention of this Court.
[1][2004] VSCA 153 at [11].
[2]The term employed by the Court in Director of Public Prosecutions v. Johnston (2004) 10 V.R. 85 at 96.
Counsel for the respondent submitted that the sentencing judge expressly recognised that the attack was unprovoked, cowardly and vicious, and that the Director did not impugn her Honour's reasons. Counsel pointed out that the injuries themselves were at the lower end of the scale of seriousness, the respondent had experienced a traumatic childhood, he had pleaded guilty, he had no prior convictions for causing personal injury, and evidence of good character and the effects upon him of the use of drugs had been given before the sentencing judge. In my opinion, the presence of those factors does not warrant or adequately explain the sentence.
Counsel for the respondent also relied on the fact that at the plea the prosecutor submitted that a term of imprisonment longer than the 12 months able to be served by way of an intensive correction order was appropriate. Counsel said that meant that the sentence accorded with the submissions of the Crown. In my opinion it does not. The appeal is not to be dismissed because the Crown submitted below that more than 12 months' imprisonment was required and 18 months' imprisonment was fixed.
Overall, I am of the opinion that the sentence was manifestly inadequate and reveals inconsistency in sentencing standards so as to constitute error in principle. I would allow the appeal. Bearing in mind the constraints imposed by a Crown appeal, I would re-sentence the respondent to be imprisoned for a term of three years on the count of intentionally causing serious injury and fix a non-parole period of 18 months. I would impose a fine of $100 in respect of the count of theft.
WARREN, C.J.:
For the reasons stated by Buchanan, J.A., I agree that the Director's appeal should be allowed and the respondent re-sentenced as stated by his Honour. I further add that this was a serious crime that occurred in public. It involved an offence generally described or known in the community as road rage that occurred in morning peak hour traffic. It is conduct that involved violence, indeed sustained violence over a time, and which caused horror to the surrounding bystanders who were held up in morning peak hour traffic.
However, there are mitigating features of the respondent's position. These have been addressed by Buchanan, J.A. In a case such as this an individual might anticipate a longer non-parole period than that stated by his Honour, yet, in my view, there ought be appropriate recognition of the attempts of the respondent to rehabilitate himself. I am also mindful of the need in this case that the respondent not be crushed by the substituted sentence. He was until today facing release on 10 November 2006. That prospect has now vanished and he will face a further year in prison before his earliest release date. In the circumstances of the respondent, this factor is properly reflected in the non-parole period indicated by Buchanan, J.A.
MAXWELL, P.:
For the reasons given by Buchanan, J.A. and the Chief Justice, I agree that the appeal should be allowed and I agree with the re-sentencing proposed.
I would add only this. Mr Tehan understandably placed great emphasis on his client’s truly appalling childhood. I am sure I speak for the whole Court in echoing what the Judge said in that regard. For it to be said that he got the worst treatment from his mother because “he could not or would not stand up for himself” was indeed "a very chilling description, as one would not expect a young child to have to stand up for himself with his mother". That matter was properly taken into account by her Honour in the consideration of relevant factors bearing on the sentencing decision. It is important that the respondent be aware that those matters have also been very much taken into account by this Court.
A different issue confronts the sentencing court, however, when a person with psychological scars from that kind of childhood experience self-medicates with drugs and that in turn leads to the exhibiting of quite indefensible violence. Even though some explanation can be found in the appalling events that occurred when he was so young, they cannot excuse a violent attack on an innocent person.
WARREN, C.J.:
The orders the Court would propose are as follows:
The appeal is allowed.
The sentences imposed below are quashed. In lieu thereof the respondent is re-sentenced as follows:
Count 1 - three years' imprisonment;
Count 2 - a fine of $100.
A non-parole period of 18 months is fixed.
There will be a pre-sentence declaration of 153 days and it is ordered that that declaration and its details be entered in the records of the Court.
A certificate will be granted to the respondent under s.15 of the Appeal Costs Act.Orders will be made accordingly.
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