DPP v Monteiro

[2009] VSCA 105

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 895 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN CALEB MONTEIRO

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JUDGES:	MAXWELL P, BUCHANAN and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 March 2009
DATE OF JUDGMENT:	20 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 105	1st Revision 20 May 2009, paras [15] and [34]

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Criminal law – Sentence – Crown appeal – Intentionally causing serious injury – Sentence of two years and six months’ imprisonment with suspension of 21 months manifestly inadequate – Appeal dismissed in exercise of discretion – Whether current sentencing practices adequate.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J L Silbert SC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr P G Priest QC with Mr T Kassimatis	Paul Vale Criminal Law

MAXWELL P:

1. I would dismiss this appeal.  Subject to what follows, I would do so for the reasons given by Buchanan JA and by Nettle JA.  Like their Honours, I consider that the sentence was manifestly inadequate but would dismiss the appeal in the exercise of discretion.

The applicable sentencing range

1. As was pointed out in R v MacNeil-Brown,[1] the submission on a Director’s appeal that a sentence is ‘manifestly inadequate’ is a submission that the sentence imposed falls outside the range reasonably open to the sentencing judge in the exercise of the sentencing discretion in the circumstances of the case.  At the request of the Court, counsel for the Director provided a written submission identifying the sentencing range which – according to the Director – was available to the sentencing judge in sentencing this offender for these offences.  I have found it of considerable assistance in this case to have had a clear identification by the Director of what the applicable sentencing range is said to be.

   [1][2008] VSCA 190 [9] (Maxwell P, Vincent and Redlich JJA).

1. The applicable sentencing range identified by the Director was as set out in the table below. The Director’s submission on range was helpfully supported by copies of the relevant Sentencing Snapshots published by the Sentencing Advisory Council,[2] and by a series of sentencing decisions both at first instance and on appeal.[3] (The submission stated that the figures had not been adjusted to allow for the reduction which would be applied on account of double jeopardy were this Court to allow the appeal and re-sentence the respondent).

   [2]Sentencing trends for causing serious injury intentionally in the higher courts of Victoria, Sentencing Snapshot No 12, September 2006;  Sentencing trends for causing serious injury intentionally in the higher courts of Victoria, 2002-03 to 2006-07;  Sentencing Snapshot No 39, February 2008.

   [3]The Queen v Wyley [2009] VSCA 17; DPP v Zullo [2004] VSCA 153; R v Barcham [2001] VSCA 215; R v Huynh [2004] VSCA 156; DPP v Eli [2008] VSCA 209; The Queen v Duncan [2009] VCC 0116 (Reasons for Sentence).

APPLICABLE SENTENCING RANGE

Count 1 – intentionally causing serious injury
Sentencing range:  4–5 years’ imprisonment

Count 2 – common assault
Sentencing range:  9–12 months’ imprisonment

Cumulation
Sentencing range:  3–6 months’ imprisonment

Total effective sentence

Sentencing range:  4 years 3 months’ – 5 years 6 months’ imprisonment

Non-parole period

2–3 years’ imprisonment

1. According to the Director’s submission, the lower end of the range for the more serious offence – intentionally causing serious injury (‘ICSI’) – was four years, and the lower end of the range for the total effective sentence was four years and three months.  The sentencing judge imposed a sentence of two years and six months on the ICSI count.  That became the total effective sentence when there was no order for cumulation in respect of the sentence for common assault.  Given that this Court in re-sentencing would have to make the conventional reduction for double jeopardy on a Director’s appeal, a re-sentencing of the respondent consistent with the Crown range would be unlikely to differ greatly from the sentence imposed below.  That is, in my view, an additional consideration supporting the dismissal of the appeal on discretionary grounds.

Is the range too low?

1. The sentencing ranges identified by the Director, both for the ICSI count and for the total effective sentence, seem quite low, given that the maximum penalty for ICSI is 20 years’ imprisonment.  This was, on any view, a very serious instance of the offence of ICSI.  As Nettle JA has said, this was unbridled violence in a public place.  The violence was wholly unprovoked and was visited upon innocent victims, unknown to the respondent, with very serious consequences.

1. The Director’s submission on range did not indicate whether it was based upon – and hence constrained by – current sentencing practices for the offence.  I would assume that it was.  It is relevant, therefore, to point out that the Director’s notice of appeal included the following ground:

Without derogating from grounds 1 and 2 [which contended that the sentence was manifestly inadequate], to the extent that the sentencing judge had regard to current sentencing practices in determining the sentence on count 1 [ICSI] –

(a)current sentencing practices in respect of the offence of causing serious injury intentionally are inadequate,  and

(b)current sentencing practices in respect of the offence of causing serious injury intentionally committed by an offender on a victim unknown to him are inadequate.

1. At the commencement of the appeal hearing, however, senior counsel for the Director sought and was granted leave to withdraw this ground.  Counsel said that a like ground, raised in an earlier Director’s appeal, had been withdrawn following questions from the bench about its appropriateness as a ground of appeal.  But, since the ground was included in the notice of appeal, it may be taken to reflect the Director’s view of current sentencing practices for ICSI. 

1. If the Director’s view is correct, and current sentencing practices for this offence are inadequate, that is a matter of the first importance.  When asked how the Director proposed to address the perceived inadequacy in sentencing practices, senior counsel responded that ‘there would need to be a suitable vehicle’.  Whether or not this matter can properly be raised as a ground of appeal, it is undoubtedly the case that one of the functions of this Court in hearing Crown appeals is:

to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons;  (c) to enable the courts to establish and maintain adequate standards of punishment for crime. …[4]

[4]R v Clarke [1996] 2 VR 520, 522 (citations omitted).

1. I note further that in DPP v Zullo,[5] one of the cases relied on by the Director, Nettle JA made the following comments about the sentencing range for ICSI:

It is said that the longest sentence ever imposed in this State for an offence of causing serious injury intentionally is ten years’ imprisonment, and it has been said that it is only the most serious cases of the offence that have attracted a sentence within what is described as “the very top of the range” of between six and ten years.  In the past that may have been so.  When it was the case, a sentence for this offence of three-and-a-half years’ imprisonment with a non-parole period of two-and-a-half years might have been within the range.  But it is no longer the case.  The so-called “very top of the range” of six to ten years was established when the maximum penalty for causing serious injury intentionally was only twelve years and six months’ imprisonment.  The maximum penalty is now almost double that amount.  Now the “very top of the range” is upwards of fifteen years.

[5][2004] VSCA 153, [10] (Winneke P and Batt JA agreeing).

ICSI and RCSI

1. Any reconsideration of appropriate sentencing ranges for ICSI would need to address a related matter which I raised with senior counsel for the Director during the hearing.  It concerns the apparent lack of clear differentiation between the sentences imposed for ICSI, with its maximum of 20 years, and the sentences imposed for recklessly causing serious injury (‘RCSI’), which carries a maximum of 15 years’ imprisonment.

1. There are, of course, more serious instances of RCSI and less serious instances of ICSI, so that there will inevitably be overlap in sentencing for these offences.  Other things being equal, however, the intentional causing of serious injury should attract a higher sentence than the reckless causing of the same injury.

1. In the course of the hearing I drew attention to the decision of this Court in The Queen v Wyley.[6]  The appellant in that case had pleaded guilty to one count of RCSI.  He had ‘king hit’ the innocent victim in the street after leaving a hotel in a state of intoxication in the early hours of the morning.  The victim suffered serious head injuries.  The sentence imposed was three years’ imprisonment with a non-parole period of 18 months.  Kellam JA and I concluded that the sentence was within

range.

[6][2009] VSCA 17.

1. That a shorter sentence was imposed in the present case, for the intentional causing of serious injury in comparable circumstances, does appear to me to raise a question about sentencing practices.  The explanation for the disparity is not, I think, to be found in the fact that Wyley committed his offence while on a suspended sentence.  After all, the present respondent had a relevant prior conviction for RCSI.

BUCHANAN JA:

1. This is a Crown appeal against a sentence resulting from an unprovoked physical attack upon a man who had the misfortune to pass on the street and look at angry men affected by drugs and alcohol.

1. The applicant was arraigned and pleaded guilty to one count of intentionally causing serious injury and one count of assault.  After a plea, he was sentenced to be imprisoned for a term of two years and six months on the count of intentionally causing serious injury and for a term of three months on the count of assault.  The total effective sentence was two years and six months’ imprisonment.  The sentencing judge suspended 21 months of the total effective term of imprisonment for a period of three years.

1. The Director has appealed against the sentence.  He contends that the individual sentences were manifestly inadequate and the direction that the total effective sentence be partially suspended resulted in a manifestly inadequate sentence.  A ground of appeal that the sentencing judge had regard to current sentencing practices in determining the sentence on the count of intentionally causing serious injury and those practices were inadequate was abandoned at the hearing of the appeal. 

1. The victim of the offences was one Gareth Chan.  On a winter Friday evening at approximately 8 pm Chan, his girlfriend and another friend were walking in the central business district.  As they walked down Russell Street, they encountered the

respondent and his brother, Jesse Monteiro, who commenced to yell at them in an aggressive manner.  As the respondent and his brother walked past the group, Jesse Monteiro charged towards Chan.  His girlfriend ran between them, attempting to hold Jesse Monteiro back.  The respondent ran towards Chan and his girlfriend.  He grabbed Chan’s girlfriend by her hair and pulled her down and punched her to the head (count 2). 

1. Jesse Monteiro attacked Chan from behind.  Chan was flattened and pinned to the ground by the respondent.  The respondent punched Chan repeatedly to the head and face (count 1), even after he lost consciousness.  Jesse Monteiro also punched Chan in the head while he was pinned down.  They then walked away.  Jesse Monteiro returned to pick up his mobile phone, which he had dropped, and took the opportunity to punch Chan twice to the head as he lay unconscious.  The respondent and his brother then ran away. 

1. Chan suffered blurred vision, there was swelling and a significant haematoma in his right eye, which closed, and he sustained a 5 cm open laceration below his right eye, that required eight stitches.  Chan also sustained a fracture to his right eye socket and a haematoma to his nose. 

1. The respondent is 26 years’ old.  He has six previous convictions from three court appearances, including convictions for intentionally damaging property when he was 17 years’ old and causing injury recklessly when he was aged 19 years.  None of the convictions resulted in a sentence of imprisonment.  For the offence of recklessly causing injury and an offence of failing to answer bail, the respondent was placed on a community based order.  He failed to comply with the terms of the order.

1. A report by a clinical psychologist was tendered in the course of the plea.  The psychologist reported that the respondent had a disturbed upbringing.  He migrated to Australia from Malaysia with his mother when he was 18 months’ old.  His mother had a succession of boyfriends who, together with his mother, engaged in heavy drug use and physical abuse of the respondent.  The Department of Human Services entered the respondent’s life when he was 12 years’ old.  He was placed in a foster home for four weeks and then lived with friends and on the streets, returning to his family home for short periods.

1. The respondent attended three primary schools and told the psychologist that he was frequently involved in physical altercations with other students, was disruptive in the classroom and often failed to complete work which he was assigned.  His high school years were no better.  He said that he was involved in frequent fights and was expelled from a high school in year 8.  He left school of his own accord after he completed year 8 and entered an apprenticeship as a chef. 

1. The respondent successfully completed the apprenticeship and worked as a chef between the ages of 15 and 17 years. He then descended into drug use and was unemployed for a period of two years.  At the age of 19 years, the respondent again began work as a chef and was employed full time with various employers until he was imprisoned.  In the light of the events of his early life, the respondent’s work history is commendable.

1. The respondent began drinking at the age of 12 years and using drugs, principally amphetamine and cannabis from the age of 17 years.

1. The psychologist expressed the following opinion:

It seems that drug intoxication has played a significant role in his current offences in terms of it impairing his judgment and his capacity to control his behaviour.  However, other factors such as impulsivity and anti-social beliefs (eg attitudes supportive of violence and tendency to use violence as a means of resolving conflict) are also important precipitating factors.

1. The sentencing judge was impressed with the efforts made by the respondent to reform his way of life.  He said:

Since the commission of these offences, you have made a genuine and concerted attempt to change your ways and to rehabilitate yourself.  You are said to be no longer engaging in drug or alcohol abuse, however you did admit to Dr Reeves that you have continued low level cannabis use and “occasional relapses at times when experiencing significant stress”. … I am told that you no longer associate with peers that led you into drug and alcohol abuse, which was part of the offending, this includes your brother Jesse.  I accept that this will assist in your rehabilitation should it continue to be the case.  Finally you appear to be a hard worker, with a good job and this should also assist you to rehabilitate yourself.

The respondent could also rely upon the significant discount to be attached to his plea of guilty.  His Honour said that but for the plea of guilty, he would have sentenced the respondent to be imprisoned for a term of three years on count 1 and for a term of six months on count 2 and would have fixed a minimum term of two years’ imprisonment.  The sentencing judge in careful, well structured sentencing reasons identified the issues relevant to sentencing this offender for this offence. 

1. Nevertheless, the offences themselves were serious.  The maximum sentence for intentionally causing serious injury is 20 years’ imprisonment.  The maximum sentence for common assault is five years’ imprisonment.  The respondent willingly participated in a brutal, unprovoked attack upon a young man and woman in a busy street.  Chan offered no provocation to the respondent, yet he was beaten unconscious.  His girlfriend was pulled to the ground and punched for attempting to shield Chan.  Chan made a victim impact statement.  The physical and emotional consequences of the assault are continuing.  His right eye globe has sunk and may require surgical treatment.  He is embarrassed by his scarred face.  General and specific deterrence and denunciation of the crimes are important sentencing considerations.[7]

   [7]See R v Stephenson [2000] VSCA 161, [27]; DPP v Zullo [2004] VSCA 153.

1. In a Crown appeal, manifest inadequacy alone is not sufficient to warrant appellate intervention.  More is required.  The sentence must be so inadequate as to constitute error in principle.[8]  As this Court said, in DPP v Oversby[9], the inadequacy of the sentence must be ‘clear and egregious’.  Crown appeals are seen as being rare and exceptional.  Restraint is required even where manifest inadequacy may have been demonstrated. 

   [8]See R v Clarke [1996] 2 VR 520;  Everett v R (1994) 181 CLR 295, 300 (Brennan, Deane, Dawson and Gaudron JJ); DPP v Wilson (2000) 1 VR 481, 488 (Winneke P).

   [9][2004] VSCA 208.

1. Generally prison does not provide an atmosphere conducive to rehabilitation.  Prisoners’ lives are closely regulated.  They have no real ability to adapt to society for they are isolated from the general community.  Their neighbours are fellow criminals, some of whom are malicious and violent.  Employment is limited.[10]  In the present case, the sentencing judge saw the rehabilitation of the respondent as significant.  He was sending a young man to prison for the first time and may well have had in mind the likely adverse consequences of a lengthy gaol sentence.  The prospects of the respondent’s rehabilitation may be reduced if he re-enters society when his aspiration of a reformed way of life has been eroded or ended by a lengthy exposure to prison life. 

   [10]See R v Dixon (1975) 22 ACTR 13, 19-20 (Fox J).

1. I think this is a case in which the Court should exercise its discretion to dismiss the appeal notwithstanding my view that the sentence imposed below was manifestly inadequate.

1. In reaching this conclusion I have taken into the account the attitude adopted by the Crown at the hearing of the plea in the County Court.[11]  Counsel for the respondent submitted to the sentencing judge that in this case there were exceptional circumstances which warranted the suspension of any period of imprisonment.  The prosecutor responded by saying that an immediate custodial sentence was appropriate, but added:

I don’t take any issue with what my learned friend has said about Mr Monteiro and I’ll leave it in your Honour’s hands.

He did not say that a sentence of three years’ imprisonment or less was not available to the sentencing judge.[12] 

[11]See DPP v Waack (2001) 3 VR 194; DPP v Arvantidis [2008] VSCA 189, [39] (Redlich JA).

[12]In this Court counsel for the respondent contended that the sentencing range for this offence of intentionally causing serious injury was between four and five years’ imprisonment.  When double jeopardy is taken into account, a sentence of less than three years’ imprisonment would appear to be within the range contemplated by the Crown.

1. For the foregoing reasons I would dismiss the appeal.

NETTLE JA:

1. I have had the advantage of reading in draft the reasons for judgment of Buchanan JA and like his Honour I consider that the sentence imposed was manifestly inadequate. 

1. As this court has said repeatedly, those who when disinhibited by alcohol engage in unbridled violence in public places must expect condign punishment in which the principles of general, and on many occasions, specific deterrence, will play major roles. Thus, ordinarily with offences of this kind, one should expect the imposition of significant immediate terms of imprisonment aggregating to a good deal more than the total effective sentence of two years and six months which was imposed in this case.[13]  And in this case, I do not consider that any of the respondent’s age, personal circumstances or more recent efforts towards reform and rehabilitation warranted a significant departure from that course. 

   [13]R v Stevenson [2000] VSCA 161, [27] (Winneke P); DPP v Roe [2005] VSCA 178, [18] (Charles JA).

1. As Buchanan, JA points out, however, despite the complaint of manifest inadequacy which the Crown now brings to this court, the Crown in fact encouraged the sentencing judge in the view that a sentence of only three years would be in the range. 

1. When that is considered in light of the principle of double jeopardy as it applies to Crown appeals against sentence, it is appropriate that this court should decline to intervene in the exercise of discretion.[14]

   [14]R v Allpass (1993) 72 A Crim R 561, 562–3; DPP v Scott (2003) 6 VR 217, 222[18].

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