DPP v Mitchell
[2006] VSCA 108
•27 April 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 14 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| JAMES MITCHELL |
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JUDGES: | BUCHANAN, VINCENT and NEAVE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 April 2006 | |
DATE OF JUDGMENT: | 27 April 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 108 | 2nd Revision 18 May 2006 |
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Criminal law – Intentionally causing serious injury, intentionally causing injury, affray and handling stolen goods – Four months in a Youth Training Centre - Crown Appeal against sentence – Evidence of rehabilitation after conviction - Youthful offender – Sentence not manifestly inadequate - Residual discretion of the Court in Crown Appeals.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M.A. Gamble | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Respondent | Mr P.F. Tehan, Q.C. with Mr T.E. Wraight | Victoria Legal Aid, Frankston |
BUCHANAN, J.A.:
I will ask Neave, J.A. to deliver the first judgment.
NEAVE, J.A.:
Background
This is an appeal against sentence by the Director of Public Prosecutions under Crimes Act 1958, s 567A.
The respondent and a co-offender, Andrew Bougioukos, pleaded guilty to one count of affray, 2 counts of intentionally causing serious injury, one count of intentionally causing injury and one count of handling stolen goods. The offences occurred on 19 February 2005, when the respondent, the first co-offender Bougioukos, and several other men attacked four male victims in their late teens. Two other co-offenders, John Tekiri and Anthony Nodoulis, were charged and dealt with in the Children’s Court.
The respondents’ group encountered the victims when both groups were walking to a railway station. They yelled abuse at the victims and then attacked them. The count of affray was based on this violent and unprovoked attack, and the fear created by the events described below.
The first count of intentionally causing serious injury arose out of an attack on the victim Marcus Binge. The respondent’s group yelled abuse at the victims and the respondent ran after Binge and put him in a head lock. Binge escaped but was chased and defended himself against the respondent. When the co-offenders and other members of the group caught up with Binge they repeatedly punched and kicked him. The respondent held the victim while Bougioukos and Nodoulis continued the attack. During the attack one of them said “hold his arms I want to mess up his face.” When the victim lost consciousness Nodoulis went through his pockets and stole his wallet, containing $30 and mobile phone. Binge was taken to hospital after the attack. He suffered bites to his right hand, a cigarette burn to his
left forearm, bruising all over his head, including tread marks to his forehead and neck, bruises on his neck, a suspected fracture of his right hand, a split lip and bruising to his back.
The second count of intentionally causing serious injury arose out of an attack on the victim Bradley Hoare. Hoare was punched in the face by Nodoulis and fell to the ground. He lost his glasses when he fell and injured his wrist. While he was being attacked he heard someone say “give me your wallet and your phone” but because he had lost his glasses he did not know who said this or to whom it was said.
The victim ran home to get help and was later taken to hospital. He had cuts and abrasions to his face, scratches on his right forearm and hand and abrasions on his left wrist. He suffered a fracture of the left wrist. Mr Hoare lost $2192 in earnings and medical expenses. The respondent acted in concert with other members of the group in the attack on this victim.
Count 4 of intentionally causing injury related to an attack on the victim Mitchell Westhead. The victim was punched on the mouth by Tekiri and kicked by Nodoulis in the shoulder. He was then surrounded by about five members of the group armed with bricks and bottles. Tekiri held a stubby in a threatening manner and said “Give us what you’ve got…Give us everything.” In this attack, Michael Westhead suffered chipped teeth and a bruise on his right arm. Again the respondent acted in concert with other members of the group.
The fifth count of handling stolen goods arose because Nodoulis gave the respondent and Bougioukos $5 each, from money stolen from Binge. Nodoulis retained Binge’s mobile phone.
Sentencing remarks
The sentencing judge found that the respondent was “more an initiator of this incident and [the co-offender] Bougioukos was more of a follower.[1]” He referred to the violent and cowardly nature of the attack and its terrifying effect on the four victims. He also noted that the respondent had been involved in criminal behaviour following these offences and had been sentenced to eight months youth training. He had also received a community based order for other offences involving dishonesty. The respondent had completed a large proportion of the work hours required under that order, but had breached that order by committing further offences. Prior to the offences for which the respondent was being sentenced he had no convictions for violence.
[1]At paragraph 23.
His Honour also referred to various mitigating factors. The respondent was 19 years old at the time of the attack and 20 when he was sentenced. He had lived away from home since the age of 13 with little parental supervision. The respondent had been employed in the hospitality industry and a former employer had spoken of his “intelligence, potential, honesty and hard work.”
His Honour referred to a psychological report from Mr Ian Joblin which stated that “the respondent has sufficient insight and intelligence to know what he wants to do.” Mr Joblin’s report also referred to the respondent’s alcohol problem and suggested that the respondent might be suffering Attention Deficit Disorder with Hyperactivity (ADHD). A later psychiatric report from Dr Adam Deakin expressed reservations about the diagnosis of ADHD, but considered that the respondent might be assisted by medication.
His Honour said that the respondent’s behaviour while at the youth training centre gave rise to concern, but that he had some prospects of rehabilitation. His Honour noted that a previous employer of the respondent now worked as a hospitality trainer for the Salvation Army. This man was prepared to assist the respondent to obtain a training place in the hospitality industry.
The respondent was sentenced to one month on the count of affray, four months on each of the two counts of intentionally causing serious injury, one month on the count of intentionally causing injury and seven days on the count of handling stolen goods. Sentences on all counts were to be served concurrently.
His Honour noted that the authorities at the Malmsbury Youth Training Centre did not consider the respondent suitable for a youth training order. Nevertheless he found that it would not be appropriate to sentence the respondent to imprisonment in an adult prison because of the nature of the offences and the respondent’s age, character and past history. He made a youth training centre order under s 32 of the Sentencing Act 1991, but warned the respondent that he could be transferred to an adult prison if he did not behave appropriately.[2]
[2]Such a transfer could be made by the Youth Parole Board under the Children and Young Persons Act 1989, s 240.
Conclusion
The principles which govern crown appeals against sentence are well-established. In R v Clarke[3], the Court of Appeal said that an appeal against sentence by the Crown should be brought only in
"the rare and exceptional case (Everett at 299[4]) to establish some point of principle. The reason is that such appeals "represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy (Malvaso at 234[5])”.
[3][1996] 2 VR 520 at 522 , see also DPP v Josefski, [2005] VSCA 265 affirming the principles in R v Clarke.
[4]Everett v R (1994) 181 CLR 295 at 299.
[5]Malvaso v R (1989) 168 CLR 227 at 234.
The court went on to discuss situations in which a crown appeal would be justified, which included the situation where
“a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle” (Everett[6] at 300);[7]
[6]Everett v R (1994) 181 CLR 295.
[7]R v Clarke [1996] 2 VR 520 at 522.
In DPP v Leach[8] Eames JA noted that Director’s appeals are now quite common, but said that this did not “detract from the continuing application of the principle that it is only in very clear and rare cases of manifest inadequacy or error that a Director’s appeal should be allowed. [9] In the recent case of DPP v Josefski,[10] the principles in R v Clarke[11] were re-affirmed. [12]
[8][2003] VSCA 96.
[9]DPP v Leach [2003] VSCA 96 at 48.
[10][2005] VSCA 265.
[11] [1996] 2 VR 520.
[12][2005] VSCA 265 at 4.
It has been pointed out on many occasions that the reluctance of courts of appeal to allow crown appeals against sentence is based on the common law’s abhorrence of double jeopardy. As Kirby P explained in R v Hayes[13], this is not a true example of double jeopardy, but is equivalent to it, because
“The prisoner’s liberty, pocket and reputation are put in jeopardy both before the sentencing judge and before the appellate court… In addition, the prisoner suffers the anxiety and stress caused by the situation of uncertainty arising from the delay in resolving his or her position.[14]”
[13](1987) 29 A Crim R 452.
[14]R v Hayes (1987) 29 A Crim R 452 at 469.
Counsel for the DPP, Mr Gamble, submitted that the sentences imposed in relation to the various counts in the presentment were well outside the range for the various offences. It was contended that both the sentences imposed for the individual counts and the total effective sentence were manifestly inadequate because the respondent had initiated the chain of events by putting Marcus Binge in a headlock. The gravity of the attack, the serious effects of the offences on the victims and the maximum penalties for these offences required the imposition of higher sentences for the individual counts. It was further submitted that the learned sentencing judge had given inadequate weight to the need to deter individuals from attacking members of the community who were going about their normal business. His Honour should also have given more weight to the need to deter the respondent from committing further acts of violence.
Finally Mr Gamble submitted that the sentencing judge had placed too much weight on mitigating factors and in particular on the respondent’s youth and prospects of rehabilitation.
In my view the crown did not establish that the sentences imposed on the individual counts were so manifestly inadequate as to demonstrate that an error in principle had occurred. The respondent’s behaviour in attacking Marcus Binge and participating in the fight with other members of his group would normally have called for a more severe sentence. However the learned sentencing judge was entitled to exercise some leniency in exercising his sentencing discretion so as to give the respondent a chance to improve his behaviour and become a useful member of the community.
In the case of R v Osenkowski[15], King CJ recognised that
“It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform.”[16]
[15](1982) 30 SASR 212.
[16]These comments were approved by this court in DPP v Roe [2005] VSCA 178.
Similarly in DPP v Leach[17], Eames JA commented that
[17][2003] VSCA 96.
“It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which redounds very much to the benefit of the
community.”[18]
[18][2003] VSCA 96 at 48.
Even if I were to regard the sentence as manifestly inadequate, this court can, in the exercise of its discretion, decline to interfere with the sentence in a Director’s appeal.[19] In the circumstances of this case there is a strong objection to exposing the respondent to a situation equivalent to double jeopardy. The respondent has already completed his sentence for these offences. If he were re-sentenced he would have to serve at least part of that sentence in an adult prison. I have also taken account of the respondent’s favourable youth parole report, the change in his living circumstances, and the fact that he is undertaking an apprenticeship and he has received a good reference from his employer.
[19]DPP v Stewart [2003] VSCA 197 at para 32; and DPP v Leach [2003] VSCA 96 at para 50.
I would therefore dismiss this appeal.
BUCHANAN, J.A.:
I agree.
VINCENT, J.A.:
The conduct of the respondent was clearly of a kind that could ordinarily be anticipated to result in the imposition of sentences significantly more severe than those handed down in this case. It is apparent, from perusal of the remarks of the sentencing judge when addressing him, that his Honour appreciated that this was so, but equally apparent that in the particular circumstances the judge considered that the interests of the respondent and the community would best be served not by the adoption of such a course but rather one designed to maximise the respondent's prospects of successful rehabilitation and to avoid the potential damage to those prospects that was likely to result from his incarceration in an adult prison. I am far from persuaded that this assessment of the position constituted error and I am
comforted in that view by the knowledge of the considerable strides that the respondent has made since the order was made.
I would dismiss this appeal.
BUCHANAN, J.A.:
The formal order of the Court is that the appeal is dismissed.
A certificate is granted to the respondent under s.15(1) of the Appeal Costs Act 1998.
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