DPP v Russell

[2014] VSCA 308

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0162

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
TYRONE STEVEN RUSSELL	Respondent

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JUDGES:	MAXWELL P, WEINBERG and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 October 2014
DATE OF JUDGMENT:	2 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 308
JUDGMENT APPEALED FROM:	[2014] VSC 292 (Hollingworth J)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Affray, recklessly causing serious injury, recklessly causing injury – Total effective sentence 15m, non-parole period 8m – Random street violence – Respondent assisted principal offender – Seriousness of affray – Respondent was trained martial arts fighter – Foresight of high probability of serious injury – Prior conviction for recklessly causing injury – Specific deterrence – General deterrence – Responsibility of government to publicise sentences – Sentence manifestly inadequate – Appeal allowed – Respondent resentenced (total effective sentence 3y, non-parole period 1y 9m).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr D Grace QC with Ms C Boston	Melasecca, Kelly & Zayler

MAXWELL P
WEINBERG JA
SANTAMARIA JA:

Summary

1. Random street violence is a scourge on our society.  Typically, the violence is brief and unpremeditated but it has profound and enduring consequences.   Innocent people are killed or seriously injured;  their families are devastated;  their communities disrupted.  And the outburst of violence is ruinous for the offender, too.  Imprisonment with all its destructive consequences is virtually inevitable, as is the shame and embarrassment felt by the offender’s family.

1. The present case had all of these characteristics.  The respondent (‘Russell’) was a participant in random street violence on New Year’s Eve 2012.  The consequences were devastating for all concerned.  One young man died;  another was seriously injured;  bystanders were terrified;  the victims’ families engulfed by sorrow.  The person who delivered the fatal punch pleaded guilty to manslaughter and was sentenced to nine years and three months’ imprisonment, with a minimum of six years.[1]  Russell, who seriously injured one young man and injured another, was sentenced to 15 months’ imprisonment, with a minimum of eight months. 

   [1]DPP v Closter [2014] VSC 484.

1. The Director of Public Prosecutions has appealed against Russell’s sentence on the ground of manifest inadequacy.  For reasons which follow, we would allow the appeal.  In our view, a substantially higher sentence was called for, given the gravity of the offending and the importance of both general and specific deterrence.  As to specific deterrence, Russell had a prior conviction for recklessly causing injury.  The sentence imposed for that offence evidently did not deter him from engaging in this similar, but more serious, offending.

1. Given the prevalence of street violence, general deterrence was a particularly  important consideration in a case such as this.  Russell’s counsel properly conceded as much on the plea.  The sentence needed to be severe enough to deter those who  might in the future contemplate engaging in similar conduct. 

1. Obviously enough, however, a prison sentence…