DPP v Russell
[2014] VSCA 308
•2 December 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0162
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| TYRONE STEVEN RUSSELL | Respondent |
---
| 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) |
---
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).
---
| 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 | Melasecca, Kelly & Zayler |
MAXWELL P
WEINBERG JA
SANTAMARIA JA:
Summary
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.
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.
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.
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.
Obviously enough, however, a prison sentence can only have that wider deterrent effect if it is publicised across the community, especially amongst those — young men in particular — who are at risk of offending in this way.[2] Courts have neither the expertise nor the resources to engage in the kind of sustained community education which is necessary if general deterrence is to be a reality. That is a task for government.
[2]See WCB v The Queen [2010] VSCA 230, [42]–[43].
After all, it is the responsibility of government to ensure public safety. And government must therefore take responsibility for communicating the deterrent message to those who need to hear it. That requires sustained effort and the commitment of substantial resources. Without that, the community simply will not derive the benefit — in greater public safety — which should flow from the painstaking work of sentencing judges and magistrates in this State. Self-evidently, if the message is not getting through no change in sentencing law can make the difference.
Factual background
Russell (now aged 23) pleaded guilty to one charge of recklessly causing serious injury, one charge of recklessly causing injury and one charge of affray. He was sentenced as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Recklessly causing injury
5y
7m
2m
2
Recklessly causing serious injury
15y
12m
Base
3
Affray
5y
10m
1m
Total Effective Sentence:
15m
Non-Parole Period
8m
6AAA Statement:
27m with a non-parole period of 18m
The circumstances of the offending were as follows. In the early hours of 31 December 2012, Russell was in the Rye Pier area with a group of friends, including Dylan Closter and Thomas McCloskey-Sharp. Russell was 21 years old and was employed as a factory worker. He was living in Western Australia, but had returned to Melbourne over the Christmas period and intended to spend time with friends and family over the New Year period.
Russell had invited a number of friends, including Closter and McCloskey-Sharp, down to his parents’ caravan site at the Glenview Caravan Park. Closter was 18 and McCloskey-Sharp was 24. Both were employed as apprentice roof plumbers and had travelled to Rye on 29 December 2012.
On 30 December 2012, the group had a few drinks at the Glenview Caravan Park before heading to the Rye Hotel for a meal. Over the next few hours the group consumed beer; some ate a meal and some placed gaming bets.
Just before 8:00pm, the group left the Rye Hotel and returned briefly to the Glenview Caravan Park, to check on Russell’s mother who had been in a car accident, and to get warmer clothes. They then went back to the Rye foreshore area and visited the carnival, going on a number of rides. When the carnival closed, the group moved to a seated area near the beach, on the carnival side of the pier.
At 11:00pm, Closter walked over to a bottle shop where he purchased a bottle of Galliano to be shared with McCloskey-Sharp and one other. He then rejoined the group.
There were a number of other groups of young people at the Rye foreshore that night. One of those groups (the ‘Cassai Group’) included David Cassai, Jesse Smith, Vincent Tran, Andrew John, Julian Geldard and Vasu Phillips.
At approximately 12:45am, the Cassai Group was walking along Point Nepean Road heading towards Rosebud, opposite the Rye Pier area. They were on the opposite side of Point Nepean Road to the carnival and beach, walking along the shop side of the footpath. As they did so, they split up into a number of smaller groups.
One of the members of the Cassai Group, Smith, removed a street sign from its base bracket and walked forward carrying the sign in a spear motion. Someone from the other side of Point Nepean Road observed Smith remove the sign and began to yell out to him to put it down. Smith did not do so. When members of the Cassai Group heard Smith being yelled at, they encouraged him to put the sign down. Having carried the sign for a little over 50 metres, Smith put it down on the footpath. There was no evidence that he had used, or threatened to use, the sign as a weapon towards anybody.
Start of the affray: charge 3
By 12:54am, Closter had already crossed over the road and was walking towards a group which included Cassai, John and Tran. They were walking in the opposite direction, three abreast along the footpath. Cassai was closest to the kerb. Closter was walking with his head down. He deliberately bumped into Cassai with his hip and shoulder.
Cassai then had a verbal exchange with Closter. Closter behaved aggressively, saying something like ‘You want a fight, cunt?’. Cassai replied, ‘Just fuck off mate and keep walking’. John and Tran were also telling Closter to ‘leave it alone’. They had their hands up, with palms facing outwards, in an attempt to de-escalate the situation. Cassai was walking backwards away from Closter. Closter then threw a number of punches at Cassai, who continued to back away. Cassai did not throw any punches, nor did John or Tran. Closter did connect with one punch to Cassai’s head, which made him stumble back onto the road.
John and Tran were yelling at Closter to stop his attack on Cassai. They were not fighting back. They did not throw any punches at Closter, or at anyone else, at any time in this incident. At most, they tried to pull Closter away while he was swinging at Cassai.
Soon after Closter first started swinging at Cassai, a group of four or five males — including Russell and McCloskey-Sharp — crossed the road. At 12:54am Russell called his ex-girlfriend on his mobile phone. He told her he was walking along the street. He then said he had to go, because Closter needed help, and hung up. The call lasted eight seconds.
At some point Closter punched Tran to the face, injuring his jaw. Then at 12:54am CCTV captured Closter wrestling with Cassai, causing him to fall backwards onto the road. Immediately after that, Closter punched John to the head, which also caused him to fall backwards onto the road.
Cassai’s friend, Phillips, then approached Closter and tried to grab his clothing to stop him chasing Cassai. Closter broke free and continued to chase Cassai, who retreated backwards onto the footpath. At 12:54am Russell and McCloskey-Sharp were also advancing towards Cassai as he was being followed by Closter. Cassai had his hands up, with palms open in a passive and defensive manner, as did Phillips.
Closter threw another punch at Cassai, which did not connect, before he (Closter) lost balance and fell towards an apartment door. He then resumed his pursuit of Cassai. Phillips ran back to this altercation to try to calm it down. He had his hands up in the air with open palms facing out. When he turned away, McCloskey-Sharp punched him in the face.
Recklessly causing injury: charge 1
Geldard and Smith also ran back towards the altercation after they were alerted to it. Geldard tried to break up a scuffle between one of his friends and another male. Almost immediately, Russell punched him in the face, causing him to fall onto the road. This was captured on CCTV footage at 12:54am. Geldard suffered significant bruising of his left cheek and lower lip, pain in his right elbow and hip, and emotional trauma.
Recklessly causing serious injury: charge 2
Smith ran back to the group because he saw a group of males punching John, Tran and Cassai. Smith tried to get the male off John by pushing him away. He tried to punch the male but missed. He then saw Geldard get punched and land on his head on the road. While Smith was distracted by this, Russell approached him and punched him once in the jaw, causing him to fall backwards and end up on the edge of the road and footpath. Smith suffered a serious injury, namely, a ‘green stick’ fracture of the jaw,[3] pain and emotional trauma.
[3]‘Green stick’ refers to an injury which requires no surgery.
The fatal punch
Closter wrestled with Cassai, who was captured breaking free on CCTV footage at 12:54am. At 12:54am Closter fell on the ground. While he tried to get up, Cassai kicked Closter in what was described as a defensive kick to get him away. Closter told police the kick hit his arm. Closter immediately got up and continued his attack.
Cassai was walking backwards with his hands up in a passive and defensive manner, palms facing outwards. Closter took three steps towards him and punched him in the left side of the face/jaw. This resulted in Cassai falling backwards onto the brick pavement and sustaining fatal head injuries. He did not break his fall or get up. (As noted earlier, Closter subsequently pleaded guilty to manslaughter and was sentenced to nine years and three months’ imprisonment.)
The Cassai Group did nothing to provoke or trigger this aggressive assault by the group that included Russell, Closter and McCloskey-Sharp.
Russell, Closter, McCloskey-Sharp and their associates crossed back over the road towards the beach. More than one in the group was heard to say ‘Welcome to Rye, cunts’ and ‘That’s what we come here for’. Russell and others in the group then returned to the Glenview Caravan Park.
Russell’s conduct in engaging in the attack upon the Cassai Group, along with the others in his group, constitutes the affray.
At 12:58am, Russell spoke again to his ex-girlfriend on the phone. He told her about being in a fight, knocking someone out and being with Closter. He also said that he had hit the male so hard he did not think he would walk again. At 1:13am Russell called her again and asked her to walk past the scene of the incident and check whether the male they had assaulted had got up. She refused to do so.
Arrest and committal
On 2 January 2013, Russell voluntarily attended the Mandurah Police Station in Western Australia, saying he wished to speak to Victorian investigators about the incident. He provided a brief account of the incident during a recorded interview, before being released pending further enquiries.
Russell told police that he had been on the phone to his ex-girlfriend when he heard some yelling and arguing. He said that when he looked up he saw four males swinging at Closter, who was covering up as the males rushed in. He said he feared for Closter and ran over to help. As he did, two men were facing him and had their hands up. He admitted punching one of them in the jaw, and then hitting another in the jaw. He then approached a third male and attempted to knee him, before the fight stopped and Russell left with his group. He was not aware what started the fight and estimated he was 30 metres away when he first saw Closter being hit.
On 4 January 2013, Russell attended by appointment at the St Kilda Road Police Complex to speak with Victoria Police Homicide Squad Investigators. He gave another recorded interview in which he maintained his account. He noted that he had seen Closter punch Cassai. He explained that, when he had said he had seen people ‘attacking’ Closter, he had meant that they were trying to grab Closter, but he believed he saw a couple of punches thrown.
Russell was arrested following that interview. He was committed to stand trial on 15 August 2013, following a seven day committal hearing.
Russell was due to stand trial on 24 March 2014, but pleaded guilty to the current charges on 20 March 2014. He had previously offered to plead guilty to the two charges of recklessly causing injury/serious injury prior to that, but not the affray.[4]
[4]DPP (Vic) v Russell [2014] VSC 292, [49] (‘Reasons’).
The Director has challenged each of the individual sentences, as well as the total effective sentence and the non-parole period. We commence with the sentence of 10 months on the charge of affray.
Affray
Affray is an ancient common law offence. It is constituted by two or more people fighting in a public place ‘to the terror’ of ordinary people.[5] Although in other States affray is now a statutory offence,[6] in Victoria it is the common law offence which is still charged.
[5]The French phrase for ‘to the terror’ is ‘a l’effroi’, hence the name of the offence.
[6]See, eg, Crimes Act 1900 (NSW) s 93C.
As Lord Hutton explained in I v Director of Public Prosecutions:[7]
The offence of affray, both at common law and now under statute, was primarily intended to punish a person or persons who engaged in a face to face confrontation where violence was used or threatened and where reasonably firm-minded members of the public would be put in fear.
[7][2002] 1 AC 285, 295 [17].
The circumstances of affray are infinitely various. In R v Keys,[8] the English Court of Appeal said:
The crime of affray may range from the comparatively trivial rowdy scene which arises spontaneously, usually at closing time outside a public house, a matter which is terrifying for a short time but subsides quickly. At the other end of the scale is the sort of lengthy pitched battle going on for hours … with scores of casualties, arson, looting and so on.
[8](1987) 84 Cr App R 204, 206–7 (‘Keys’).
Before the judge, the prosecutor conceded that the seriousness of this affray was lessened by reason of its brevity and spontaneity. At the same time, as the prosecutor pointed out, the acts of individual participants could not be taken in isolation. As the Court said in Keys:[9]
Even though a particular defendant himself never actually hit an opponent, never threw a missile and never physically threatened anyone, nevertheless, even if he participated simply by encouraging others and by shouting insults and threats, he thereby helps to promote the totality of the affray. He must accordingly take some share of the blame for the overall picture. It scarcely needs stating that the more he is shown to have done in promoting the affray, the greater must be his punishment.
[9](1987) 84 Cr App R 204, 207.
Relying on that passage, the prosecutor submitted to the judge that Russell had played ‘a central role’ in the affray. As counsel pointed out, not only did Russell carry out two assaults but he positioned himself beside the principal offender, Closter. The prosecutor also submitted, correctly, that the seriousness of the injuries caused was relevant to the seriousness of the affray. He drew attention to the decision of this Court in R v Ly,[10] where Coldrey AJA (with whom Vincent JA and Smith AJA agreed) said:
Whilst it was not asserted [that the appellant] was involved in the infliction of the injuries to [the victim], they occurred in the course of the affray and it is, perhaps, trite to observe that the infliction of serious violent injuries might reasonably be expected to increase the level of terror experienced by a bystander of reasonable firmness and courage which is the essence of the offence of affray.
[10][2004] VSCA 45, [13] (‘Ly’).
The prosecutor also relied on R v Feretzanis,[11] where this Court rejected a contention that the judge imposing sentence for affray had wrongly taken into account the death of the victim. Ormiston JA (with whom Callaway and Eames JJA agreed) said:
It was said that the judge was wrongly influenced in this conclusion by taking into account the fact that the deceased was killed in the course of it. He said the ‘consequence of the conflict was death’ and that fact should be taken into account in assessing the gravity of the affray. The specific vice to which counsel drew attention was, of course, the possibility that the applicant had been sentenced for the consequences of an offence with which he had not been charged: see eg R v Newman and Turnbull. I am unable to reach that conclusion. The judge pointed out that the applicant had not been charged with homicide and that he must deal with the sentence on the basis that the applicant participated only in the affray. But he was not thereby prevented from determining the nature of the affray by looking at all its circumstances, including the harm actually caused and the threats of potential harm in respect of which the public was put at risk. What the judge was doing when he referred to the fact that the affray ultimately led to the death of one of the participants was to use it to show the nature of the affray and the force and viciousness of their conduct which all the participants had brought about. As he said, ‘the fact that the death occurred is indicative of its seriousness’. This was not a case where the applicant was a mere fringe participant in the affray who was unarmed or merely encouraging others to join in, nor was he one who primarily was engaged only at the rock-throwing stage, however serious that might be viewed. He could not, as the judge rightly said, have been held responsible for the death which occurred without his participation, but he was nevertheless one who armed himself in a way which meant that the outcome for some might be serious if blows were struck. Thus in my opinion the death was merely used by the judge as evidence by which he could gauge the seriousness of the fight between the two gangs and the nature of the affray as a whole. The fact was ‘indicative’ that the affray was far more serious than a minor melee.[12]
[11][2003] VSCA 8.
[12]Ibid [18] (emphasis added, citations omitted).
In the present case, consistently with these authorities, the sentencing judge made the following findings:
Although it was spontaneous, and of very short duration, this was nevertheless a serious affray, involving a violent, frightening and completely unprovoked attack by members of your group on another group, late at night and on a public street.
You [Russell] were not present and did not see what started the affray; but once you became aware of it, you quickly ran over and joined in. You positioned yourself close to Mr Closter, ready to take on anyone who you perceived to be a threat. Things happened very quickly; the time between your joining the affray and punching Mr Geldard and Mr Smith was only about 8 to 10 seconds.
After you had knocked both of them to the ground, [you] remained with your friends, ready to participate further. The continued presence of yourself (and the rest of your friends) enabled and encouraged Mr Closter to continue his attack on Mr Cassai, an attack which ultimately proved fatal. The Cassai group were not acting aggressively, and were trying to diffuse the situation and retreat; this was very much a one-sided fight.
A bystander of reasonable firmness and courage might reasonably be expected to have been terrorised by seeing such people being knocked to the ground in circumstances such as these. A participant in an affray must take some share of the blame for the overall picture, not merely for their own acts.
You have not been charged with homicide, and I am not sentencing you on the basis that you are responsible for causing Mr Cassai’s death. But in considering the nature and seriousness of the affray, it is relevant to consider the nature and degree of violence by members of your group, including the fact that one person died and several others were injured as a result of that violence. These facts indicate that the affray was more serious than a minor melee.
We respectfully agree. This was indeed a serious affray, and Russell’s role in it was very significant. As appears clearly on the closed circuit TV footage (which was viewed during the appeal hearing), Russell was an enthusiastic participant from the moment he first crossed the street and joined in. He positioned himself next to Closter, in a show of solidarity plainly intended to intimidate. As her Honour found, Russell’s presence ‘enabled and encouraged’ Closter to continue his attack on Cassai.
Her Honour sentenced Russell to 10 months’ imprisonment on the charge of affray. She subsequently sentenced Closter to 15 months on the same charge, explaining the differentiation between them as follows:
Mr Russell’s actions and moral culpability were considerably less than yours; he came into the affray part way through it, having misperceived the situation and thinking that you required assistance. On the other hand, you started the affray and were the principal aggressor throughout it.
Furthermore, Mr Russell’s role in the affray was largely constituted by the same acts of violence which constituted his separate offences of recklessly causing serious injury and injury. On the other hand, your role in the affray involved substantially more than killing Mr Cassai, and included your assaults on Mr Tran and Mr John. That needs to be reflected both in the sentence to be imposed for affray, and the degree of cumulation between your two sentences.
While there were certainly differences between them — the most obvious being that it was Closter who initiated the fighting — we respectfully take a different view of Russell’s moral culpability. Whatever misperception he might initially have had of a threat to Closter, Russell was well aware by the time he had crossed the road and joined Closter that the aggression was all the other way. His counsel on this appeal properly conceded that this was so.
Instead of intervening to stop the fighting, once he realised that Closter was in no danger but was in fact the aggressor, Russell joined in. As we have said, he was an active participant in what followed. In our view, his moral culpability is not relevantly different from Closter’s in respect of the affray.
We would impose the same sentence (15 months) as her Honour imposed on Closter on this charge. Were it not for considerations of parity (the Director having announced that he is not appealing against Closter’s sentence), we would have imposed an even heavier sentence on this charge. Although brief, this was extremely serious offending. We note that in Ly[13] a sentence of three years for a serious affray was held not to be manifestly excessive.
[13][2004] VSCA 45.
We are mindful, of course, of the need to avoid double punishment.[14] It will be apparent from what we have said that the sentence to be imposed on Russell for the affray is directed at the contribution which he made to the seriousness of the attack on the Cassai Group, and to the terror caused to those in the vicinity. Plainly enough, that conduct, and those consequences, are quite distinct from the specific criminal acts of punching his two victims. There is no double punishment.
[14]Ibid [30].
Recklessly causing serious injury, and recklessly causing injury
By his plea of guilty to the charge of recklessly causing serious injury (‘RCSI’), Russell acknowledged that, when he punched Smith in the face, he was aware that Smith would probably suffer serious injury.[15] As this Court has made clear, determining the seriousness of a particular instance of RCSI involves considering both:
(a) the degree of probability that serious injury will result; and
(b) the seriousness of the probable injury foreseen.[16]
[15]Winch v The Queen (2010) 27 VR 658, 665 [35] (‘Winch’).
[16]Ashe v the Queen [2010] VSCA 119 [27]; Winch (2010) 27 VR 658, 665 [36].
Approaching the matter in that way, there are features of this instance of RCSI which made it extremely serious. Russell did not use a weapon but, of course, a clenched fist can be extremely dangerous when used to deliver a hard punch to a person’s head.[17] Russell was a trained and experienced martial arts fighter.[18] As the sentencing judge found, he would have been well aware of how to throw a punch and of how hard he was punching each of his victims in this case. And, as noted earlier, he told his former girlfriend afterwards that he believed he had hit one of them so hard that he would not walk again.
[17]Ashdown v The Queen (2011) 37 VR 341, 349 [23].
[18]See DPP v Karatzisis (2010) 31 VR 634, 670 [189].
It follows, in our view, that Russell foresaw a high probability that serious injury would result.[19] It is also apparent from his own statement that he was aware, when delivering such a hard punch, that the injury would probably be very serious. Taken in combination, these features not only make this a very serious instance of RCSI, but demonstrate a high level of culpability on Russell’s part. He knew exactly what he was doing. He punched Smith knowing full well what grave consequences would probably result.
[19]Winch (2010) 27 VR 658, 665 [36].
We agree with the submission for the Director that the injury caused to Smith fell within the mid-range of seriousness for this offence. It did not, of course, fall into the ‘catastrophic’ or ‘life-threatening’ category.[20] At the same time, a fractured jaw is a substantial injury. In this case, it caused pain both immediately and on an on-going basis, and Smith has suffered significant emotional trauma.
[20]Cf DPP v Terrick (2009) 24 VR 457.
What was particularly significant in this case, in our view, was that Russell had a prior conviction for recklessly causing injury. The judge described the circumstances as follows:
You have one prior conviction for violence. In June 2012, you were convicted of recklessly causing injury, in respect of an incident that occurred in July 2010. On that occasion, you had been at a hotel, attending a family dinner. After your family left, you stayed talking to friends. One of your friends started a fight with an older, intoxicated patron; you joined in and punched the other patron twice, in order to help out your friend. You were convicted and fined $6,000 for that offence.
As the judge noted, counsel for Russell relied on a report prepared by a forensic psychologist:
A report was prepared on your behalf by Ms Michelle Wauchope, a forensic psychologist, dated 30 April 2014. She describes you as having developed a particularly dysfunctional coping mechanism, as a result of being attacked and stabbed when you were 17. She says this has led you to you being hyper-vigilant, and to hitting first and asking questions later, to ensure you get control of the situation straight away. Certainly, that fits in with the nature of your offending in the hotel incident in 2010, as well as the current incident.
Quite rightly, her Honour emphasised the need for specific deterrence:
There is also a need for specific deterrence in this case. Unfortunately, this is not the first time that you have chosen to join in an incident, in order to assist a friend who had got themselves into a fight. You must learn to curb your impulsivity, to stop and carefully evaluate a situation, before rushing into a fight.
As we noted earlier, it is perfectly clear that the prior conviction, and the heavy fine imposed, did not deter Russell from joining in on this occasion, again in support of a friend, and engaging in serious violence. In those circumstances, in our respectful opinion, a sentence of 12 months on the charge of RCSI was inadequate to satisfy the applicable sentencing considerations. A substantially longer sentence was called for, having regard to the matters we have referred to — the seriousness of the offence, Russell’s high culpability and the need for specific deterrence. On this charge, we would impose a sentence of two years and six months’ imprisonment.
Recklessly causing injury (‘RCI’) is a less serious offence, carrying as it does a maximum penalty of five years’ imprisonment. Nevertheless, and for similar reasons, a substantially higher sentence was required. We agree with the submission for the Director that this, too, was a serious instance of the offence.
As the Director submitted, Geldard was punched to the face in a cowardly manner while trying to break up a scuffle. He fell to the ground and suffered bruising and pain to his cheek and to his lower lip, pain in his right elbow and hip, and significant emotional trauma. As we have said, Russell was well aware of his ability to cause injury by using his fists and he delivered the punch to Geldard well aware of the probability that injury would be suffered.
We would impose a sentence of 18 months’ imprisonment on this charge.
Youth and rehabilitation versus deterrence and denunciation
As the Director’s submission acknowledged, Russell was entitled to rely on a number of mitigating features, as follows:
(c) his plea of guilty;
(d) his genuine remorse;
(e) his relative youth (21 at the time of offending, 22 at the time of sentence);
(f) the fact that he had given himself up to the authorities and had given a full account of the circumstances;
(g) the strong support of his family and friends;
(h) his reasonable prospects of rehabilitation; and
(i) the fact that he had not previously been in custody.
Cases such as these involve conflicting sentencing considerations. On the one hand, as this Court has emphasised, there is great public benefit in the rehabilitation of an offender — and of a young offender in particular — and in maximising the prospect that the offender will carry on a law-abiding life in the future.[21] At the same time, the prevalence of street violence is such that general deterrence must, of necessity, be a significant sentencing consideration.
[21]R v Wyley [2009] VSCA 17, [20].
It has long been accepted, moreover, that the more serious the offending, the less (relative) weight can be given to the need to rehabilitate the young offender. The Director’s submission relied on the following statement in Azzopardi v The Queen:[22]
The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.
[22](2011) 35 VR 43, 57 [44] (citations omitted).
The Director also relied on the more recent decision of this Court in Mogoai v The Queen.[23] In that case, the Court (Redlich and Priest JJA) dismissed an appeal by two men — both aged 21 when the offences were committed and 23 at the time of the appeal — against sentences imposed for RCSI (two years and five months) and affray (nine months). Both appellants had relied on their youth, arguing that a young offender should not be sent to an adult prison if such a disposition could be avoided. Their Honours said:
So much may be accepted. But the charge of recklessly causing serious injury in the present case was a serious example of a serious offence, which had significant physical and psychological ramifications for the victim. Thus the appellants’ youth, and their prospects of rehabilitation, must to some extent be subjugated to other sentencing considerations, such as general deterrence. As Winneke ACJ said in Wright, youth and rehabilitation must take a ‘back seat’ to specific and general deterrence ‘where crimes of wanton and unprovoked viciousness are involved’, particularly where the perpetrator has been given previous chances. The kind of offending that the appellant’s engaged in is, sadly, so prevalent, that general deterrence, specific deterrence and denunciation must be given prominence.[24]
[23][2014] VSCA 219.
[24]Ibid [13].
In that case, as in this, each offender had previously been sentenced for an offence of violence — RCSI. Their Honours said:
Significantly, each appellant has previously been sentenced for recklessly causing serious injury, albeit in the Children’s Court. On 23 September 2008, the appellant Mogoai was released on a bond for that offence; and on 11 November 2008, on charges of robbery and recklessly causing serious injury, the appellant Alexander was released on probation. Although, of course, the appellants are not to be again punished for their previous offences, and that, given their youth when dealt with by the Children’s Court, the relevance of the prior findings of guilt should not be given disproportionate weight, they remain relevant to the issue of the leniency that might otherwise be afforded to a first offender, and cast some light on the appellants’ moral culpability, their prospects of rehabilitation and their criminal propensities, and thus the need for community protection.[25]
[25]Ibid [14].
For the reasons we have already given, we agree with the Director’s submission that the mitigating influence of Russell’s relative youth, and the need to facilitate his rehabilitation, had to yield to a material degree to considerations of specific and general deterrence, denunciation and protection of the community. We turn to deal with general deterrence and denunciation.
General deterrence and denunciation
According to the Director’s submission:
First, this offending amounted to random and unprovoked violence inflicted by a group of young men upon an entirely innocent group of young men going about their business peacefully in a public place. Violence of this nature in public places (often involving youthful offenders) is so prevalent that general deterrence and denunciation of the conduct must be emphasised.14
As noted earlier, defence counsel on the plea conceded that this was so. Counsel acknowledged that this was ‘a very bad example’ of random street violence and, further, that general deterrence had
very specific application in relation to this particular matter. [There is] a great deal of community concern about this type of violence, random violence that’s occurring out in the streets, alcohol-fuelled, although clearly in relation to Mr Russell, that wasn’t a contributing factor in his part.
If young men realised that engaging in this kind of street violence would almost certainly lead to a substantial period of imprisonment in adult gaol, they might think twice before starting — or joining in — a fight. We accept, of course, that in a moment of (alcohol-fuelled) anger or aggression the capacity for rational decision-making may be impaired. But, if the inevitability of imprisonment were properly communicated, that would undoubtedly contribute to a re-thinking of attitudes to violent conduct and a heightened awareness of the need to keep oneself, and one’s friends and associates, in check — especially where alcohol is involved.
As noted earlier, this all-important task of communicating the message is not something which courts are set up, or resourced, to do. When imposing sentence, sentencing courts act on behalf of the community, within parameters set by Parliament. Their obligation is to do so in clear language, identifying the considerations which have been brought to bear in the sentencing decision. Sentencing reasons are published on the internet and social media and, increasingly, audio-recordings of sentencing remarks are available for public access.
But the publication of sentencing reasons can never be enough, by itself, to send ‘the message’ on which the theory of general deterrence rests. That requires the kind of sustained communication campaign which has been so successfully conducted by the Transport Accident Commission, in relation to death and injury caused by speed and alcohol and drugs. It is not difficult to imagine a very powerful television advertisement about street violence, depicting both a severely injured victim and the young offender(s) locked in a prison cell.
If governments are serious about reducing street violence, they have a responsibility to ensure that the sentences which the courts impose, and the public denunciation which they pronounce, are communicated directly, and repeatedly, to those who need to hear the message. There are many different ways of communicating, including via social media. The task for government is to identify the best means of communicating with those at risk of offending, and to allocate the necessary resources to that task.
Unless and until that occurs, increasing a sentence for the purpose amongst others of general deterrence — as this Court is doing in this case — will not secure the public benefit which it is designed to achieve. If the message about sentences being imposed is not being heard, no change to sentencing law can make the difference.
Cumulation and total effective sentence
The Director accepted, properly, that her Honour was obliged to have regard to considerations of totality, and also to avoid double punishment. There was no complaint about her Honour’s approach expressed as follows:
Having regard to the fact that these offences all occurred quickly, and as part of a single incident, it is appropriate that there be substantial concurrency between the sentences.
Furthermore, although there is a difference between the specific legal elements for affray (on the one hand) and the two other charges, there is the common factor of unlawful violence in the context of a case such as this one. The same acts of violence which constitute recklessly causing serious injury, and recklessly causing injury, also constitute a large part of the acts of unlawful violence creating the terror that is the essence of affray. There are some distinguishing features between the offences, which provide a warrant for some cumulation, but it must be limited, and care must be taken to avoid double punishment.
The Director submitted, nevertheless, that the cumulation of only one month for the affray, and only two months for the recklessly cause injury offence, was inadequate. They did not properly reflect the separate criminality involved in the assault or the seriousness of the affray, to which (as discussed earlier) Russell made such a significant contribution.
We would uphold this submission, although we would only increase the amount of cumulation to three months in respect of each of the other offences. Each did involve separate criminality but, importantly, all three offences formed part of a single incident, of brief duration. In our view, no greater cumulation could be justified, for otherwise the total effective sentence would be disproportionate to the aggregate criminality.
For these reasons, we would resentence Russell as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Recklessly causing injury | 5y | 18m | 3m |
| 2 | Recklessly causing serious injury | 15y | 2y 6m | Base |
| 3 | Affray | 5y | 15m | 3m |
Total Effective Sentence: | 3y | |||
Non-Parole Period: | 1y 9m | |||
6AAA Statement: | 5y with a non-parole period of 3y | |||
52
10
0