DPP v Telford
[2010] VSCA 118
•28 May 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2008 0896
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK TELFORD |
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JUDGES: | NEAVE and REDLICH JJA and LASRY AJA | ||
WHERE HELD: | MELBOURNE | ||
DATES OF HEARING: | 30 July 2009 and 16 February 2010 | ||
DATE OF ORDERS: | 16 February 2010 | ||
DATE OF REASONS FOR JUDGMENT: | 28 May 2010 | ||
MEDIUM NEUTRAL CITATION: | [2010] VSCA 118 | 1ST Revision | |
JUDGMENT APPEALED FROM: | R v Mark Telford (Unreported, County Court of Victoria, Judge Gucciardo, 10 October 2008) | ||
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CRIMINAL LAW – Sentence – Crown appeal – Recklessly causing serious injury – Possession of unregistered hand gun – Allegation that victim had been ‘standing over’ offender – Use of handgun by offender to inflict serious injury – Total effective sentence of 30 months’ imprisonment suspended for two years – Whether sentence manifestly inadequate – Whether immediate custodial sentence required – Strong mitigating circumstances – Serious injuries sustained by offender in period between original sentence and hearing of appeal – Double jeopardy – Appeal dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr O P Holdenson QC | Slades & Parsons |
NEAVE JA
REDLICH JA
LASRY AJA:
On 16 February 2010 the Court of Appeal made an order dismissing an appeal by the Director of Public Prosecutions against the sentence imposed upon the respondent, Mr Telford. These are our reasons for so ordering.
The Proceeding Below
Following a trial before a jury in the County Court the respondent was convicted on one count of recklessly causing serious injury and one count of possessing an unregistered hand gun. The respondent was acquitted on the more serious count of intentionally causing serious injury. Prior to trial he had indicated his willingness to plead guilty to the count of recklessly cause serious injury. That offer was refused by prosecuting counsel.
The circumstances of that offending were not in dispute on the appeal. The respondent, while talking to the victim discharged a firearm at very close range, wounding him in the stomach. The victim had for some months allegedly been ‘standing over’ the respondent and his business and the respondent had armed himself because of his fear of the victim. The injuries sustained by the victim included abdominal injuries to the liver and required emergency treatment including removal of his gallbladder. The respondent was sentenced to 30 months’ imprisonment on count 2 and two months’ imprisonment on count 1. No order was made as to cumulation. It was ordered that the total effective sentence of 30 months’ imprisonment be wholly suspended for a period of two years.
Submissions on the Appeal
By notice of appeal dated 12 November, the Director appealed against the sentence imposed on the grounds that the sentence was manifestly inadequate and that the learned trial judge may have erred in ‘placing undue weight on the supposed provocative conduct’ and ‘character’ of the victim.
The Director’s appeal was brought on a sound basis. The sentences imposed appeared on their face to be below the applicable range, when regard was had to the seriousness of the offending conduct and surrounding circumstances. These include the use by the respondent of a concealed firearm and the serious injuries suffered by the victim.
Since the time that the appeal was lodged events had, however, intervened, which were relevant to the Court’s discretion.
On 10 June 2009, the respondent was involved in a car accident and suffered serious injuries requiring hospitalisation and surgery. The appeal initially came on for hearing on 30 July 2009, but as there was insufficient medical evidence about the extent of these injuries, an adjournment was granted to enable such evidence to be obtained. Counsel for the Director stated that if the injuries proved to be as serious as was suggested, the Director would not press for an immediate custodial sentence but would still wish to pursue the appeal to obtain guidance as to the appropriate sentence for serious offences of the present kind.
On the resumed hearing, evidence was tendered that confirmed that the respondent had sustained an undisplaced fracture of the right acetabulum with a fracture of the right hip requiring ongoing treatment. Counsel for the Director while accepting that the injuries were relevant, contested their extent and described them as less than ‘catastrophic.’ He now submitted that the Court should intervene and impose an immediate custodial sentence. He acknowledged that if the respondent was required to serve a period in custody, his treatment would need to be pursued in the prison system.
The respondent relied upon a number of mitigating factors. The respondent, who was 45 years of age at the time of sentencing, had a successful motoring business and a stable home life. He was otherwise of good character, had no prior convictions and had demonstrated significant remorse. Emphasis was placed on the findings of the trial judge that the offence was ‘an isolated incident with little probability of re-offending’ and that the respondent’s conduct was ‘not an example of gratuitous violence or motive’ but rather ‘a serious error of judgment’.
The Director’s position was clearly stated. In short, it should not be thought that anything less than an immediate term of imprisonment would be appropriate where a firearm was discharged in similar circumstances. Guidance was sought from a judgment of the Court as to the appropriate range of sentencing for, what was said to be, a serious firearms offence.
We accept the submission of the Director that ordinarily where a concealed weapon is used to inflict serious injury, an immediate and substantial term of imprisonment must be expected.[1] For example, in DPP v Coley in the context of a Director’s appeal against a suspended sentence imposed for recklessly cause injury using a knife, all members of the court referred to the seriousness of an offence which involves the use of such a dangerous weapon and observed that it would ordinarily require an immediate custodial sentence. By parity of reasoning the Director, rightly submitted that this consideration would apply where, as here, a concealed handgun is fired from close range. That must plainly be so where there is a degree of premeditation involved in the use of the weapon. The Court has and will continue to set its face against any notion that it could be thought appropriate for a person to take the law into their own hands.[2]
[1][2007] VSCA 91.
[2]R v Lowe [2009] VSCA 268, [27].
In relation to the sentence for the count of possession of a general category handgun the Director submitted that this too was well outside the applicable range. The seriousness of that offence is underlined by the applicable maximum penalty of seven years’ imprisonment. It has been recognised that ‘the unlawful possession and use of firearms is generally recognised as a grave source of danger to society’.[3]
[3]R v Avis & Ors [1998] 1 Cr App R 420, 423 (Lord Bingham CJ).
Counsel for the Director submitted that the prosecutor should not have been criticised by the trial judge for taking the matter to trial when the respondent had been prepared to plead guilty to the lesser count. Even with the benefit of hindsight there are difficulties with the contention that a plea should have been accepted on the lesser count. The circumstances of this case, including the possession of the firearm for months prior to the shooting, provided a strong basis for an inference of premeditation. The weapon was fired from very close range. It was not said that the gun discharged accidentally. There was a compelling basis upon which the jury might have concluded that the injury was caused intentionally. The verdict of the jury could be viewed as merciful. We can see no impropriety in the prosecution having continued to trial on the more serious count.
Conclusion
The present offending is of a such objective gravity that ordinarily, it would require an immediate custodial term of imprisonment. An uncommon combination of circumstances, however, prevailed in the appeal. Counsel for the respondent was able to point to a powerful constellation of factors that militated against the imposition of a term of immediate imprisonment. These include the fact that the respondent would be deprived of his liberty which he had enjoyed for a period of almost 16 months since the date of the original sentencing.[4] It is considered a very serious step to imprison a person who has been dealt with and released into the community by a trial judge.[5] Additionally, the respondent has suffered serious injuries in the intervening period with the consequence that prison will bear more onerously on him. The respondent has, furthermore, been subject to a ‘significant period of uncertainty’ in the nearly four years since the date of the offending. Finally, the Court must have regard to the element of double jeopardy that is present on a Director’s appeal against sentence.[6] These factors, in combination, lead the Court to decline to exercise its discretion to intervene in this case.
[4]DPP v Bourozikas [2009] VSCA 29, [31].
[5]DPP v Anderson [2005] VSCA 68, [59]; DPP v Fevaleaki (2006) 165 A Crim R 524, [24]–[27]; R v Best (1998) 100 A Crim R 127, 132–3.
[6]DPP v Fevaleaki (2006) 165 A Crim R 524, [24]–[27].
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