DPP v North
[2002] VSCA 57
•18 April 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 16 of 2002
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| DOUGLAS JAMES NORTH |
---
JUDGES: | PHILLIPS, C.J., PHILLIPS, J.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 April 2002 | |
DATE OF JUDGMENT: | 18 April 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 57 | |
---
Criminal Law - Sentencing - Director's appeal against a community-based order without conviction sentence for aggravated burglary, intentionally causing injury and recklessly causing injury - Appeal allowed - Respondent re-sentenced.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C. and Ms K.E. Judd | K. Robertson, Solicitor for Public Prosecutions |
| For the Respondent | Mr P.G. Priest, Q.C. and Mr P.A. D'Arcy | Embleton & Associates |
PHILLIPS, C.J.:
I shall ask my brother O'Bryan to give the first judgment in this matter.
O'BRYAN, A.J.A.:
The respondent pleaded guilty in the County Court at Bendigo on 19 December 2001 to three counts in a presentment: count 1 - aggravated burglary on 2 December 2000; count 2, on the same date, intentionally causing injury to Marcus James Burns; and count 3, on the same date, recklessly causing injury to Luke Nicholas Manners. The maximum penalty for aggravated burglary (s.71(1) of the Crimes Act) was 25 years, the maximum penalty prescribed by s.18 of the Act for causing injury intentionally was 10 years and for causing injury recklessly was 5 years. The respondent was sentenced to undergo a community-based order, without conviction, for two years and to perform 250 hours of unpaid community work. The order has not been implemented yet because of this appeal.
The Director of Public Prosecutions has appealed against the sentence. The ground of appeal is that the sentence imposed is manifestly inadequate, in failing to adequately reflect the seriousness of the offences generally and, in particular, failing to take into account or sufficiently to take into account the aspects of general and specific deterrence, giving too much weight to factors going to mitigation, and erring in declining to record a conviction against the respondent.
The respondent is now 35 years old. He has no prior convictions. During the plea the sentencing judge had tendered to him a number of references, all of which spoke extremely well of the respondent in terms of his family circumstances, his business affairs and community involvement in Cohuna, the town in which he lived, particularly with committees of a number of sporting clubs. Witnesses were called to speak about the respondent's role in the community and to opine that his conduct on 2 December 2000 was totally out of character - an opinion accepted by the sentencing judge.
The circumstances of the offences of 2 December 2000 may be briefly stated. On the evening of 1 December 2000, Marcus Burns and Luke Manners had spent the evening at a Christmas party at the Tower Tavern in Cohuna. When the party ended at midnight, Burns and Manners, together with Burns's brother and a male friend, proceeded to the nearby Cohuna Hotel where a fundraising fancy-dress party was being held for the Cohuna Squash Club, of which the respondent was president. An entry charge of $10 per head had been reduced to $5 when the four men arrived. Burns and Manners were not prepared to pay and, after a verbal exchange, decided to leave. The respondent followed them outside, where fighting occurred between Manners and the respondent before Burns departed the scene, chased by the respondent, who threatened to come around to Burns's house and break his jaw. In the fight between the respondent and Manners, Manners was punched to the face and fell to the ground, and he subsequently alleged he suffered a soft tissue injury to the left side of his face. This incident gave rise to the charge of recklessly causing injury (count 3).
At about 1.30 a.m., Burns, Manners, his brother and the fourth male met up at Burns's house in Mitchell Street, Cohuna, where the aggravated burglary occurred. At about 5 a.m., Burns was awakened in the lounge room, where he was sleeping on a mattress, by the respondent stomping on his head, he alleged. The respondent had entered through the unlocked front door. The Crown alleged that the respondent kicked and punched Burns before leaving. A medical examination later revealed Burns suffered soft tissue injury to his scalp, face and chest wall. The judge in his sentencing remarks accepted the evidence of Dr Basher that the injuries to Burns consisted of head and neck swelling and tenderness to the right temple, tenderness to the right side of the lower jaw and tenderness to the left ribs. This incident gave rise to the charge of intentionally causing injury (count 2).
Count 1 charged that the respondent entered Burns's house as a trespasser with intent to commit an offence involving an unlawful assault to the person in the house. Following a directions hearing on 25 October 2001, the respondent agreed to plead guilty to the three counts in the presentment. Other charges were not proceeded with.
The tone of the plea became evident when the sentencing judge refused to make an order that the respondent provide a DNA saliva sample in respect of the aggravated burglary because it was opposed, it was not in the public interest and the seriousness of the offence did not warrant it. Further, the judge rejected the victim impact statements and a report prepared by a psychologist as "of little assistance due to the emotive manner in which they were prepared by someone who is clearly not a forensic psychologist". I am of the opinion that this criticism was unjustified, for the evidence showed that Manners suffered significant injuries and was referred to a psychologist for counselling in December 2000. In February 2001 it was the psychologist's opinion that Manners was suffering from post-traumatic stress disorder as a direct result of the assault on 2 December 2000.
In his sentencing remarks, the sentencing judge said, in so far as Mr Manners was concerned, that he was satisfied Manners’ injuries comprised a tender left side of lower jaw, tenderness to muscular part of the left side of the neck and movement restricted by pain in the right shoulder. Notwithstanding that the respondent pleaded guilty to the three counts, his counsel pursued an argument during the plea that the assaults and injuries had been exaggerated by Burns and Manners and that there was a degree of provocation on their part. His Honour, rather too enthusiastically, I think, embraced this argument when he said:
"I have always had a feeling in these types of matters that the winner ends up in the dock and the losers end up in the witness box. That seems almost a universal application."
By his plea of guilty the respondent admitted all the elements of the offences.
In the court below, counsel for the respondent invited the sentencing judge to fine his client without conviction. Counsel for the Crown asked the judge to treat the aggravated burglary and the assault in the home which caused injury as serious matters calling for "adequate and substantial punishment" and not non-conviction and fines.
In this Court, Mr Coghlan on behalf of the appellant submitted that the sentence imposed was manifestly inadequate, particularly in respect of the non-recording of a conviction. He submitted that counts 1 and 2 were particularly serious since they included an attack on Burns in his own home which occurred a number of hours after the incident at the Cohuna Hotel, and the motive was revenge. He further submitted that the case was a serious case of aggravated burglary accompanied by the conduct constituting count 2, that is, intentional injury to Burns. A non-conviction disposition is not to be regarded as appropriate in any case of aggravated burglary because it does not reflect the seriousness of the offending and does not address the need for punishment and general deterrence, Mr Coghlan submitted.
The sentencing judge recognised the difficulty in terms of sentencing for the counts of aggravated burglary and assault on Burns, for he said:
"The community will not tolerate what are now known as home invasions and it is a serious matter indeed to enter a person's home with the intention of assaulting them, no matter what your state of mind may be."
He said later:
"It is not the worst aggravated burglary one could imagine, but it is nevertheless a serious one."
Mr Coghlan very fairly conceded that the principles of double jeopardy apply and, as the respondent was not given an immediate custodial disposition by the sentencing judge, the case should be dealt with by the imposition of conviction and a fully suspended sentence, at least with respect to counts 1 and 2.
In R. v. Clark[1] the Court held that in a prosecution appeal against sentence which is successful the Court should set a sentence somewhat less than might otherwise have been imposed.
[1][1996] 2 V.R. 520 at 522, per Charles, J.A.
Mr Priest on behalf of the respondent submitted that the judge was entitled to find, and did so find, that there was a degree of provocation. Only in relation to the count of assault on Manners do I consider such a finding could be made reasonably, for there was a cooling-off period of some hours between the Cohuna Hotel incident and the incidents in Burns's house. Indeed there was some premeditation, because the respondent went home and, in his counsel's words, "stewed on the matter", and he entered the house as a trespasser with the intention of assaulting Burns.
Mr Priest relied upon the personal circumstances of the respondent, which included industry, leadership, community behaviour, and a number of references and two character witnesses. He further submitted that counsel for the Crown in the court below did not demur when the sentencing judge said he proposed to have the respondent assessed for a community-based order and he would not be convicted. In my opinion there was little that could be said by counsel at that stage against the course indicated by the judge and no inference could be drawn that the Crown concurred in the course indicated. Mr Priest submitted that the sentencing judge had regard to all relevant matters and was entitled to find that matters going in mitigation justified the course of not recording a conviction and not imposing a custodial or monetary penalty. Mr Priest further submitted that, if the Court came to the conclusion that the sentence is manifestly inadequate, the appeal should be dismissed in the exercise of the Court's overriding discretion having regard to the prosecutor's failure to make submissions below, the delay of four months since the original sentence, and the fact that the Director does not now seek an immediate custodial sentence.
I am of the opinion that the sentence imposed, without convictions, was so manifestly inadequate as to constitute error in principle: R. v. Clark (supra). The first count concerned the respondent's conduct in entering Burns's house at night with intent to assault a person in the house. This was not precipitate or rash conduct. It was premeditated and a serious example of aggravated burglary. Whatever may have been the circumstances inside and outside the Cohuna Hotel, the respondent had no justification for invading Burns's house in the early hours of the morning. In my opinion a sentence of imprisonment was called for, making due allowance for mitigating circumstances. The second count concerned the respondent's conduct in intentionally causing injury to Burns in his house. On any view the attack was vicious and cowardly. There may have been some provocation offered to the respondent by Burns or his companions in the Cohuna Hotel or outside the hotel, but a cooling-off period of some hours had elapsed before the attack in Burns's house. In my view a sentence of imprisonment was called for in these circumstances. The third count concerned the respondent's conduct in recklessly causing injury to Manners outside the Cohuna Hotel. This attack was provoked when Manners refused to pay the $5 fee for the fundraising party, and some allowance should be made for this fact. I consider that a term of imprisonment less than that appropriate for count 2 was called for in the circumstances.
Mr Priest submitted that it was open to the sentencing judge to not record a conviction and to make a community-based order pursuant to s.7(1)(e) of the Sentencing Act. I do not agree that this was an appropriate sentencing option in all the circumstances, and the recording of convictions was necessary. The court may record a conviction as a sentencing option if the offender is found guilty of an offence and ordered to serve a term of imprisonment: (s.7(1)(a), (ab), (b) and (c)). But, in any event, non-conviction should rarely be available for an offence as serious as aggravated burglary. The nature of the offence is serious, in terms of the level of sentence available. The option selected by the judge produced a sentencing order that was manifestly inadequate after all the mitigating circumstances including the impressive character of the respondent are taken into account. The sentencing judge erred, in my opinion, in not recording a conviction on each count and in not imposing terms of imprisonment in respect of counts 1, 2 and 3 to adequately reflect the gravity of the offences overall.
It is therefore necessary for this Court to set aside the sentence in the court below and to re-sentence the respondent. I propose that convictions be recorded on each count. On count 1, I propose to the Court that the respondent be re-sentenced to a term of 12 months' imprisonment. On count 2, I propose that the respondent be re-sentenced to a term of six months' imprisonment, three months to be served cumulatively upon the term imposed on count 1. On count 3, I propose that the respondent be re-sentenced to a term of three months with no order for cumulation. The total effective sentence will be 15 months and the sentence will commence today. I propose that the total sentence be wholly suspended for two years from this date, bearing in mind the principles of double jeopardy and the concession made by Mr Coghlan.
PHILLIPS, C.J.:
I agree that the appeal should be allowed, essentially for the reasons given by O'Bryan, A.J.A., and I agree with the new sentence proposed.
PHILLIPS, J.A.:
I, too, agree with what has been said by O'Bryan, A.J.A.
PHILLIPS, C.J.:
Mr North, would you come forward, please, because it is necessary that I say some things to you. The Court proposes to make an order entirely suspending a sentence of imprisonment to be passed upon you. The law requires that I explain to you the purpose and effect of this proposed order and the consequences that may follow if you commit, inside or outside Victoria, another offence punishable by imprisonment during the operational period of the sentence, which period will be two years from today.
The purpose and effect of the proposed sentence is to give you during that sentence conditional freedom - conditional in the sense that if you do not commit an offence of the nature that I have described in the next two years you will not be required to actually serve any of the sentence in custody. For your information, the offence of common assault, which is a much less serious offence than those you committed, is an offence punishable by imprisonment. If you do commit such an offence you will be returned to court and you may be required to serve part or the whole of the sentence in actual custody. Do you understand that?
RESPONDENT: Yes, I do.
PHILLIPS, C.J.:
The orders of the Court are:
The appeal of the Director of Public Prosecutions is allowed.
The sentences imposed on the respondent in the court below are quashed and in lieu thereof he is sentenced as follows:
Count 1 - convicted and sentenced to be imprisoned for 12 months.
Count 2 - convicted and sentenced to be imprisoned for 6 months.
Count 3 - convicted and sentenced to be imprisoned for 3 months.
The Court directs that 3 months of the sentence on count 2 be served cumulatively upon the sentence imposed on count 1, making for a total effective sentence of 15 months, such sentence to commence this day.
The Court orders that this sentence be wholly suspended from this day for a period of two years. The Court fixes a period of two years from this day as the period during which the respondent must avoid committing, inside or outside Victoria, an offence punishable by imprisonment.
(Discussion ensued.)
PHILLIPS, C.J.:
The Court will grant a certificate to the respondent pursuant to s.15 of the Appeal Costs Act.
---
0
0
0