DPP v McKay

[2018] VSCA 292

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0093

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
MATTHEW JOHN McKAY	Respondent

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JUDGES:	BEACH, HARGRAVE JJA and ALMOND AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 October 2018
DATE OF JUDGMENT:	12 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 292
JUDGMENT APPEALED FROM:	[2018] VCC 475

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CRIMINAL LAW – Sentence – Crown appeal – Cause serious injury recklessly, assault with weapon and possess controlled weapon without excuse – Sentence of 18 months on cause serious injury recklessly – Total effective sentence of 1 year 8 months with non-parole period of 10 months – Manifest inadequacy – Whether sentences manifestly inadequate – Sentence on cause serious injury recklessly, total effective sentence and non-parole period manifestly inadequate – Respondent re-sentenced to total effective sentence of 4 years and 8 months, with non-parole period of 2 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms K E Judd QC with Ms S Coombes	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr S Bayles with Ms M J Brown	Balmer & Associates

BEACH JA
HARGRAVE JA:
ALMOND AJA:

1. On 21 March 2018, the respondent pleaded guilty in the County Court to one charge of recklessly causing serious injury, one charge of assault with a weapon and one charge of possession of a controlled weapon without excuse. 

1. On 16 April 2018, the judge sentenced the respondent to be imprisoned for 1 year and 8 months and fixed a non-parole period of 10 months.  The total effective sentence is made up as follows:

Charge on Indictment H12406492	Offence	Maximum	Sentence	Cumulation
1	Causing serious injury recklessly [s 17 Crimes Act 1958]	15 years	18 months	Base sentence
Summary Charges
5	Assault with weapon [s 24(2) Summary Offences Act 1966]	2 years	9 months	2 months
9	Possess controlled weapon without excuse [s 6 Control of Weapons Act 1990]	120 penalty units or 1 year	3 months
Total Effective Sentence:			1 year 8 months
Non parole period:			10 months

1. There is a single ground of appeal with particulars as follows:

Ground of Appeal

The sentence imposed on Charge 1, the total effective sentence and the non-parole period are manifestly inadequate.

Particulars:

In sentencing the respondent, the learned sentencing judge:

(a)failed to give sufficient weight to the nature and objective gravity of the offending;

(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 recklessly causing serious injury;

(d)failed to give sufficient weight to the principles of general deterrence, just punishment and denunciation;

(e)failed to give sufficient weight to the principle of specific deterrence;  and

(f)       gave too much weight to factors in mitigation.

Circumstances of the offending

1. On Sunday 27 August 2017, Mr Mudd hosted a small social gathering at his home in Broadford.  The purpose of the gathering was to watch a boxing match on television.  Mr Mudd was at home with his partner and their five year old daughter.  At approximately 11:00 am the respondent arrived, having driven to the home in his vehicle.  Over the next two hours Mr Mudd drank approximately eight cans of mid-strength beer and the respondent drank approximately four or five glasses of bourbon whiskey.  At approximately 1:00 pm Mr Peterson arrived.  He commenced drinking beer and bourbon whiskey.  All of the adults continued drinking and watching television, and enjoyed a late barbecue lunch before watching the main boxing match.  After the boxing match all of the adults continued drinking in the backyard before the respondent, Mr Mudd and Mr Peterson decided to attend the nearby Broadford Golf Club to play golf. 

1. The respondent, Mr Mudd and Mr Peterson took a single set of clubs and a buggy and walked to the third hole.  They continued drinking and played the third hole onto the green.  Once on the green the respondent took the flag and damaged the green with it.  He also damaged the green with his feet.  Mr Mudd and Mr Peterson chastised the respondent for damaging the green.  They continued playing the adjacent second hole onto the green.  Once again, the respondent began damaging the green by stomping golf balls into the green.  Mr Peterson approached the respondent and chastised him again for damaging the green.  Mr Peterson and the respondent engaged in a brief verbal argument, before the respondent left and walked back in the direction of Mr Mudd’s home. 

1. Approximately five to 10 minutes later, the respondent returned to the golf course holding a Smith & Wesson Extreme Ops fold out knife (‘Smith & Wesson knife’).  The respondent approached Mr Peterson, swore at him and lunged at him a couple of times, trying to stab him in the torso.  Mr Peterson took a golf club and struck the respondent on the right arm in an attempt to disarm him.  Mr Mudd intervened and pushed the respondent.  The respondent stabbed Mr Mudd in the left thigh causing the wound to immediately gush blood.  Mr Peterson called 000 and commenced first aid upon Mr Mudd.  At the direction of Mr Peterson, the respondent handed over his shirt for use to stem the bleeding and headed to the road to flag down the ambulance.

1. When police and paramedics arrived the respondent was arrested and taken to hospital for treatment due to his intoxication.  Mr Mudd was taken to the Alfred Hospital by air ambulance.  On arrival, it was noted that Mr Mudd presented with a haemorrhaging stab wound to his left upper lateral thigh, causing a major arterial and venous injury.  A major transfusion protocol was activated and Mr Mudd received a total of seven units of packed red blood cells and four units of fresh, frozen plasma. 

1. Mr Mudd was taken to theatre for emergency surgery where the following injuries were identified:  major blood loss, transection of the left superficial femoral artery, a laceration of the left femoral vein, laceration of the anterior lateral compartment of the muscles of the left thigh, and a transection of the left femoral and left saphenous nerve.  These injuries were severe and life-threatening. 

1. Mr Mudd was discharged from hospital on 31 August 2017. 

1. A search of the respondent’s vehicle revealed a knife on the floor behind the passenger seat.  A search of the golf course revealed the Smith & Wesson knife under a large rock, a short distance away from the scene of the stabbing.

Nature of the Appeal

1. The appellant does not identify any specific errors in the sentencing remarks but submits that the resulting sentence is so low as to demonstrate that an error has occurred in the exercise of the sentencing discretion.  The appellant submits that the inadequacy in the sentence imposed is clear and egregious, and so low as to ‘shock the public conscience’ and ‘undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes’.[1]

   [1]DPP v Bright (2006) 163 A Crim R 538, 542-3 [10].

1. We agree that the sentence is manifestly inadequate for the following reasons.

Objective gravity of the offending

1. During the plea hearing the sentencing judge characterised the gravity of the offence as ‘objectively very high’.  This is undoubtedly so.  Recklessly causing serious injury using a knife is an inherently grave offence.  In combination with alcohol the consequences can be life-threatening,[2] as was the case here.

   [2]Ejupi v The Queen [2014] VSCA 2 [36] (‘Ejupi’).

1. A Victorian Institute of Forensic Medicine forensic physician noted that:

There is no doubt that without the first aid applications and the treatments in hospital, Mr Mudd would be dead.[3]

[3]DPP v McKay [2018] VCC 475 [10] (‘Reasons’).

1. It cannot be said in this case that the stabbing occurred impulsively.  Following a brief argument about the respondent’s behaviour in damaging the greens while playing golf, the respondent left the golf course, returned to his car and armed himself with the Smith & Wesson knife.

1. The respondent returned to the golf course where the stabbing occurred.  Initially, he attacked Mr Peterson, lunging at his torso, and when Mr Mudd tried to intervene he turned on Mr Mudd and stabbed him in the left thigh causing serious injury and significant loss of blood.

1. Viewed objectively particularly in light of the retrieval and use of the Smith & Wesson knife and infliction of serious injury by stabbing (which will be elaborated upon below), this is a serious example of the offence of recklessly causing serious injury.

Impact on the victim

1. Serious injury for the purposes of charge 1 means an injury that endangers life or is substantial and protracted.[4]

   [4]Crimes Act 1958 ss 17, 15.

1. In this case the injury satisfies each of these alternatives.

1. Mr Mudd suffered a major arterial and venous injury involving:

·a transection of the left superficial femoral artery;

·a laceration of the left femoral artery;

·a laceration of the anterior lateral compartment of the muscles of the left thigh;  and

·a transection of the left femoral and left saphenous nerve.

1. A major transfusion protocol was activated and Mr Mudd received a total of seven units of packed red blood cells and four units of fresh, frozen plasma.  He had lost almost three litres of blood and was only minutes away from death.[5]

   [5]Reasons [10].

1. The injury and its after-effects have been protracted.  Mr Mudd was physically fit but can no longer walk or jog without pain.  In his victim impact statement he said every step hurts and his scar is a constant reminder.  He has permanent nerve displacement which entails permanent numbness and a constant pain down his leg.  He had been a friend of the respondent since childhood and considered him like a brother.  He is bewildered and saddened that he could be so hurt and damaged by someone who he has known all his life.  He is short tempered and has lost trust in people from the experience.  The injury has had an effect on his family and capacity to earn and he has suffered financially.  At the time of sentencing he had neither recovered physically nor psychologically.[6] By any objective measure the impact on the victim has been profound.

   [6]Reasons [3], [16].

Maximum penalties

1. The maximum penalty for reckless infliction of serious injury is 15 years (or 180 months). The appellant submits that the sentence of 18 months’ imprisonment for charge 1 cannot adequately reflect the characterisation by the judge of the offending conduct and the injury both during the plea hearing and in his reasons for sentence (‘objectively very high’); (‘very serious’);[7] (‘high moral culpability’).[8] 

   [7]Ibid [34]–[35].

   [8]Ibid [46].

1. The appellant submits that the sentence imposed represents precisely 10 per cent of the maximum penalty, which reflects a clear incongruity between the sentencing judge’s characterisation of the offending and the sentence imposed.  We agree.  Moreover, we note that this Court has recently upheld sentences imposed in several recklessly cause serious injury cases: Pang v The Queen[9] (4 years’ imprisonment with a minimum non-parole period of 2 years);  Al Wahame v The Queen[10] (6 years’ imprisonment with a minimum non-parole period of 4 years and 6 months);  Jojic v The Queen[11] (4 years’ imprisonment with a minimum non-parole period of 2 years and 9 months).  Whilst accepting that every case depends on its own facts and sentences are to be individually tailored, the very substantial difference between the sentences imposed in these cases and the sentence imposed on the respondent is plain.

   [9][2018] VSCA 5.

   [10][2018] VSCA 4.

   [11][2017] VSCA 77.

General deterrence

1. We consider that a sentence of the order of magnitude imposed by the sentencing judge, considering the circumstances of the offending, does not properly reflect the sentencing purposes of general deterrence, denunciation and just punishment.  As this Court has previously said in Ejupi:

[t]hose who would venture forth with a knife anticipating its use to inflict injury, and those who would use knives foreseeably to inflict serious injury, need to be deterred from so doing.[12]

[12][2014] VSCA 2 [36].

There is no criticism over the judge’s statement that the principle of general deterrence, particularly in relation to the use of the knife, must have primacy in the sentence.  In doing so, the sentencing judge recognised the importance of this sentencing principle.  Despite the acknowledgement of the principle, it seems to us that it cannot have been properly applied in this case.

Specific deterrence

1. In his reasons the sentencing judge dealt with specific deterrence as follows:

[Y]our criminal history is of relevance and is of concern.  Not only do you have a prior for possession of a dangerous article in a public place related to the production of such article in a confrontation with your brother-in-law in October 2016, dealt with in the Magistrates’ Court in March 2017 via bond, but in December 2010 you were fined $4,750 in Western Australia for three offences;  one of property damage and two of assault occasioning bodily harm for offences committed in November 2009.

The circumstances of those offences make for very concerning reading.  You had been drinking with the victims and others, some play fighting developed into a serious scuffle, where you punched each other at the victim’s residence.  At some point you went inside and returned with a large kitchen knife and began swinging it at the victim, who raised his hands in defence, the knife making contact with his hand, cutting skin and causing significant bleeding.  The victim’s girlfriend attempted to break up the fight and moved closer as you lashed out with the knife and you struck her to her left inner thigh, causing a deep laceration in close proximity to the main artery of the leg, which bled profusely and required internal and external sutures.  You then smashed the glass to a window to the house to gain access to the residence, where you retrieved your bag, and fled the scene on foot and was later located at Port Hedland Hospital where you were treated for some cuts and grazes.

I have gone into the details not because I punish you again for these matters or because they are peculiarly similar circumstances that aggravate this offence, but because this very nature must bring specific deterrence into consideration and affect any assessment of your prospects of rehabilitation.[13]

[13]Reasons [37]–[39].

1. The respondent’s prior criminal history includes a stabbing offence which occurred in the circumstances outlined above involving intoxication with alcohol, play fighting developing into a serious scuffle, moving away from the scene of the scuffle and then returning armed with a knife, continuing the fight, cutting two victims, including striking a victim to her left inner thigh causing a deep laceration in close proximity to the main artery of the leg, which bled profusely and required internal and external sutures.

1. With this background, when engaging in this offence the respondent must have foreseen the probability of causing serious injury.  The recklessness in the circumstances is obvious.  The pecuniary penalty previously imposed in December 2010 in respect of offences committed in November 2009 when the respondent was 23 years old seems to have failed as a means of deterrence, despite the passage of nine years and presumably the increased maturity of the respondent.  The sentencing judge was correct to describe these knife wielding offences as peculiarly similar. 

1. We also note that in response to questions from the prosecutor at the plea hearing the respondent tended to minimise circumstances of infliction of the injury on the victim of the stabbing in Western Australia.  Initially he said ‘we both had a hold of the — the knife — and fell to the ground when his girlfriend ran in and was cut — was injured, um, the knife’ and further ‘me and Matthew are holding it (the knife) away from each other, cause we were both sort of holding, like gripping it and she’s ran in and she was injured with it.’  The judge noted that the summary stated that the respondent had ‘lashed out with the knife which struck the victim on her inner left thigh’.  The respondent agreed he had pleaded guilty to the charge.

1. Similarly, we formed the view that the respondent tended to minimise the size of the Smith & Wesson knife when he said at the plea hearing:

Well that one, well that was for every — like camping or anything.  Me and Simon bought that, I bought that at the hardware when I was with Simon.  It was only like a keyring size and it wasn’t for any bad intentions or, or anything like that.  It was for every handy little thing where you’re cutting….

1. A photograph of the knife was produced to the Court on the hearing of the appeal.  The knife was more than 19 cm in its open state with a blade length of approximately 7 cm.  It is not fairly described as of ‘keyring size’.  It is not clear whether the sentencing judge had seen the knife or a photograph of the knife.

1. We consider that specific deterrence needed to be emphasised and is not properly reflected by the sentence imposed.

Mitigation

1. Senior counsel for the respondent did not seek to disavow any of the characterisations of the offending by the sentencing judge.  He conceded that by any measure the judge had imposed a lenient indeed a merciful sentence.  He submitted that the sentence is explicable by reason of the fact that there were significant mitigating factors, including the fact that the respondent gave evidence at the plea hearing in front of the victims;  that he apologised directly to the victims, which had a high impact and was a powerful moment during the plea hearing.  The respondent gave evidence about his drug and alcohol use, the efforts he had made to address these issues and the attendance and progress he had made at the Narconon rehabilitation facility, including the fact that he remained involved at Narconon as a volunteer and had abstained from drugs and alcohol since his admission there and that this was the first time he had had any experience with drug and alcohol rehabilitation.

1. At the plea hearing the Court also heard evidence from Andrew Cunningham, Executive Director of the Narconon Drug and Alcohol Facility, who gave evidence about the program in which the respondent had participated, observing that the respondent was very willing to participate in the program though ‘very heavy with grief’;  that ‘he became one of the leaders of our students … a role model to other students’ and that ‘he really was an exemplary student while he was there’.

1. His Honour heard evidence from the father of the respondent, Mr Colin McKay, who gave evidence about his son’s history of drug and alcohol issues and the fact that he had noticed a big change since his son was at Narconon and could see that he was remorseful;  that he could see a change for the better, that he would support and help his son to remain free from alcohol and drugs, and that he had not seen his son affected by drugs or alcohol since the offending.

1. Senior counsel for the respondent submitted that his Honour had taken into account the plea of guilty, the fact that it was made at the earliest opportunity at the first committal mention in November 2017, and the fact that the plea has utilitarian benefit to the community; that his Honour had accepted that the plea was accompanied by remorse demonstrated by the respondent’s demeanour in court and giving evidence before the judge, and in particular that the respondent was remorseful ‘in the sense of moral blame and shame and acceptance of responsibility for what ‘[he had] done’;  that his Honour had acknowledged the time spent by the respondent at the Narconon Drug and Alcohol Facility, which the respondent had attended for three months and that in accordance with the authority of Akoka v The Queen,[14] his Honour had noted:

Although not considered equivalent to incarceration there clearly is an aspect of restrictive residency which will result in a lowering of both the head sentence and the non-parole period in recognition of the punitive impact of this regime.

[14][2017] VSCA 214. See especially [106].

1. The judge had also stated that interrupting the course of rehabilitation, including attendance at St Vincent’s Outpatients Clinic and Relapse Prevention Program, must be carefully considered particularly where the respondent’s prospects were said to be reasonable;  and that his Honour acknowledged that the sentencing principles, even in the face of a merciful disposition, did not warrant moderation to enable a combination sentence or other community correction orders, but rather a significant amount of discount and moderation in the term of imprisonment and in particular a longer parole period.

1. Senior counsel for the respondent submitted that the respondent was sentenced by an experienced judge who was in a unique position to assess the remorse shown by the respondent and that this was the first term of imprisonment for the respondent, who would be able to continue his rehabilitation through a lengthy parole period.

1. In summary, the respondent submitted that the sentencing judge applied all of the relevant sentencing principles and although the sentence imposed would seem unusual and difficult to account for, the matters put forward in mitigation at the plea hearing and the way in which his Honour dealt with those matters in his reasons for sentence was a careful and appropriate exercise of the sentencing judge’s discretion and should not be disturbed.

1. We do not share that view.  In our view, the sentence was not open even after giving full weight to matters in mitigation and allowing a liberal discretion to the sentencing judge.

1. We have reviewed the matters put by way of mitigation on behalf of the respondent.  Whilst these matters are significant and do operate as mitigating circumstances, such circumstances are of a kind that are commonly put before sentencing judges.  In our view, there was nothing exceptional or striking about the mitigating factors in this matter which would warrant the lenient sentence imposed.

Conclusion

1. In the circumstances, we consider the sentencing discretion of the sentencing judge miscarried.  In our view, the sentence imposed on charge 1 was wholly outside the permissible range of sentencing options open to the judge.  The imposition of that sentence then led to a total effective sentence and non-parole period that was also outside the permissible range.  The sentences imposed by the judge are so low as to disclose error in point of principle.[15]  Moreover, the appellant has persuaded us that there is nothing in the present case that would justify an exercise of the residual discretion in the respondent’s favour.

   [15]See Barbaro v The Queen (2014) 253 CLR 58, 79–80 [61]; R v Pham (2015) 256 CLR 550, 559 [28(7)].

1. We would re-sentence the respondent so that the total effective sentence properly reflects the gravity of the offence, after making due allowance for all of the mitigating factors put before the sentencing judge including the sentencing judge’s disposition for a long parole period.

1. On charge 1, recklessly cause serious injury, the respondent shall be re-sentenced to 4 years and 6 months’ imprisonment.  We shall not interfere with the sentences on charge 5 (assault with weapon) or charge 9 (possess controlled weapon without excuse) or the orders for cumulation.  It follows that the sentence for assault with weapon will have 2 months’ cumulation with the base sentence of 4 years and 6 months, giving a total effective sentence of 4 years and 8 months’ imprisonment.  We would fix a non-parole period of 2 years and 6 months.

1. Had it not been for the plea of guilty we would have imposed a sentence of 7 years with a non-parole period of 5 years.

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