Ellis v The Queen
[2011] VSCA 36
•9 February 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0866
| PETER JOHN ELLIS |
| v |
| THE QUEEN |
---
JUDGES: | ASHLEY and BONGIORNO JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 February 2011 | |
DATE OF JUDGMENT: | 9 February 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 36 | |
JUDGMENT APPEALED FROM: | R v Ellis (Unreported, County Court of Victoria, Judge Murphy, 14 October 2009 | |
---
CRIMINAL LAW – Sentence – Recklessly causing serious injury – Whether sentencing judge acted upon erroneous presentation of facts by prosecutor and applicant’s counsel – Crown Opening read in Court in applicant’s presence, and not controverted – Whether applicant sentenced on incorrect basis – Whether sentence manifestly excessive - Application for leave to appeal against sentence refused – No point of principle.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D P Sheales (on application to adjourn only) | |
| For the Crown | Mr S M Cooper | Mr C. Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
Peter Ellis, a man born 2 February 1959 and so now aged 52, pleaded guilty at a Directions Hearing in the County Court on 29 April 2009 to recklessly causing serious injury. There was a plea hearing on 8 September 2009, and on 14 October of that year he was sentenced to two years and nine months' imprisonment with a non‑parole period of one year and nine months.
He sought leave to appeal against sentence on the ground that the sentence was manifestly excessive. Neave JA refused leave on 30 April 2010.
The applicant elected to have his application determined by the Court of Appeal. The President has determined that the Court as now constituted should constitute the Court of Appeal.
The circumstance of the offence
On the evening of 2 July 2006 the complainant, a man whom it is said the applicant did not know, was drinking with friends at a hotel in the outer east of Melbourne. The applicant, his partner and son, had dinner at the hotel that night. The applicant was described, though he had been drinking, as not being intoxicated at the critical time.
Late in the evening there was a verbal altercation involving the complainant. During that altercation the applicant pushed the complainant and kicked him in the shins. Following this the complainant and the applicant’s son went outside and a fight ensued. After the fight was broken up outside the hotel, the complainant returned to the bar. It was then that the applicant struck him to the head with a glass beer jug.
Injuries
The injuries sustained by the complainant were described this way by the sentencing judge:
11… He sustained a 14 centimetre laceration to the left side of his face, commencing on his forehead, in front of the hairline, and extending down in the front of and below his left ear and two other lacerations on the scalp of three centimetres each. The lacerations required 17, 3 and 2 stitches respectively.
12A medical report indicates that the wounds healed well, leaving an obvious scar in the left temporal and preauricular area of the face. The scar is visible on the photos in evidence.
The complainant made a victim impact statement. I will only mention these aspects of it, by reference to what the judge said:
16He said he suffered a lot of headaches and dizzy spells and had to take numerous painkillers and sleeping tablets. He also had a broken blood vessel which caused a lump on the side of his temple and he now has a scar on the side of his head that makes him very self-conscious.
17He feels he is permanently disfigured and he is always looking over his shoulder and it makes it very hard for him to relax in any particular situation.
The complainant had not, however, attended upon his general practitioner after 17 July 2006, that is, about two weeks after the incident.
Prior offending
The applicant had prior convictions for offences of violence. Aged 18, he was convicted of assault with a weapon, and fined. More importantly, on 28 July 1995 he was sentenced to four years' imprisonment with a non‑parole period of 20 months on a count of manslaughter. It appears that he killed a friend in the course of a dispute.
The plea made below
The applicant was represented on the plea, but not today. I qualify that by noting that counsel appeared today, but was instructed only to seek an adjournment. An adjournment having been refused, he sought and obtained leave to withdraw. He informed the Court, I add, that his client understood that the application would then be dealt with on the basis of his written submissions.
Below, the applicant's counsel submitted that the offence was a spontaneous reaction with loss of control, contributed to by the complainant's provocation. Counsel pressed the argument firmly, but the judge rejected that characterisation.
Counsel drew attention to his client's personal circumstances. He stressed, it appears, the fact that the applicant had been conducting a demolition business since 1989. By 2005 he was employing about half a dozen men and had a big job in hand, and more men were put on. But there were problems with the job and litigation ensued. The applicant's company fell into a dire financial position. If the applicant was imprisoned, things must get worse. These circumstances, and their impact on the applicant's family was productive of hardship. In the result, counsel argued, a suspended sentence should be imposed; or at least there should be amelioration in the sentence which would otherwise be passed.
Considerable evidence was led as to the financial situation of the applicant's company. The situation was not one of mere assertion from the Bar Table.
The judge accepted that the applicant's company (or companies), the applicant and his wife were in significant financial difficulties. But he did not accept that the extent of the difficulties was such as to justify the description ‘exceptional’ and so warrant a lesser sentence than otherwise be imposed, or a wholly suspended term. But he did take into account, as he said, the fact that imprisonment would weigh more heavily upon the applicant in the circumstances described.
Counsel further submitted below that the applicant suffered from a number of medical problems. The judge indicated that he was prepared to accept that imprisonment would to an extent impact more severely upon the applicant than upon a younger able-bodied person.
Counsel relied also upon delay in the matter coming on for plea. But the judge did not regard the delay as a significant mitigating consideration in circumstances where, it seems, it was at least in part attributable to the applicant initially pleading guilty to the offence charge, then indicating a change of plea, before ultimately reverting to his plea of guilty.
Sentencing Remarks
In part, the judge said this:
51I am satisfied, however, that you bear a high degree of culpability by the use of an inherently dangerous object on a complainant who was not offering any physical force against you. I accept that you are not to be punished again for your prior convictions. However, your prior conviction for a directly relevant antecedent is relevant to and enhances your moral culpability for this offence.
52Your counsel submitted that you and your family have been doing everything you can to maintain the business and prevent it from going into liquidation. He submitted that there are strong and powerful grounds regarding your health and financial circumstances to call for a wholly suspended sentence. While I accept that you do face serious health issues, I am not satisfied that those health issues alone constitute exceptional circumstances.
53Further, while I accept that you have been under considerable stress due to the financial circumstances that you find yourself in, I do not accept that those circumstances, either alone or in combination with your medical conditions, constitute exceptional circumstances, such that the impact of a sentence of imprisonment on your family ought lead the court not to impose a sentence to be immediately served. I accept that a term of imprisonment will impact seriously on you, due to the fact that you are effectively the principal of your business, and this does call for some moderation.
54Weighing against those factors are the seriousness of the offence. Further, as the Crown submitted, violence involving the consumption of alcohol in public places, is such as to call for considerations of general deterrence and, given your prior conviction, specific deterrence and protection of the community. Further, in this case denunciation and just punishment are important sentencing considerations. Your conduct in using the weapon of a beer jug on an unresisting victim was outrageous and I condemn it utterly.
55I have taken into account your plea of guilty. Although your partner, Ms Ellis, in her statement says that you have expressed remorse, I see little evidence of remorse in this case, given your expressed desire to change your plea.
56I give you credit for your plea of guilty. It has saved the Crown and witnesses from a significant trial. You have taken responsibility for your conduct and facilitated the course of justice.
57In relation to rehabilitation this is always an important sentencing consideration. Ms Ellis gave evidence that, since this offending, you have effectively abstained from alcohol except on the odd special occasion. This is a significant consideration and does indicate that your prospects for rehabilitation can be classified as reasonable.
58I have taken into account the statement from Ms Ellis that you are not a violent person, and that you have been a loyal partner and provider in circumstances of family difficulties and tragedies. The fact that you do have family support does provide a reasonable basis for your rehabilitation.
59In fixing a period before which you will be eligible for parole, I have taken into account your rehabilitation prospects, but do not accede to your counsel’s submission that the period be shorter than usual due to my characterisation of the seriousness of your conduct.
60At the end of the day, the seriousness of your conduct, the impact on the complainant and the need to denounce your conduct, as well as considerations of general deterrence and, to an extent, specific deterrence, are such that this calls for a term of imprisonment to be immediately served.
61The Crown submitted that the appropriate range for the head sentence was two to three years' imprisonment and a non-parole period 18 months to two years. I am not bound by that range, but insofar as the range reflects current sentencing practice, I take it into account.
After imposing sentence, the judge stated, pursuant to s.6AAA of the Sentencing Act, that if the applicant had been convicted at trial he would have imposed a sentence of three years and six months' imprisonment with a non‑parole period of two years and three months.
Grounds
I noted earlier that the applicant had relied upon a complaint of manifest excess in the application for leave to appeal which was heard by Neave JA. Subsequently he filed what amounts to a full statement of grounds:
The sentence was manifestly excessive.
The sentencing Judge (Judge Murphy) failed to take into account my exceptional circumstances. eg. The family’s financial situation and my health issues.
The Judge failed to investigate my claim that there was clear evidence from the Crowns witness’s regarding the unprovoked assault on Chris Ellis (My Son) by Patrick Delosa.
The assault on Ruby Collins earlier in the evening and the assault by a member of Patrick Delosa’s party on Chris Ellis.
The assault by two men on Chris Ellis which triggered the fight inside at the bar where Patrick Delosa was struck.
There have been errors of fact made by Counsel for the applicant’s submissions and by Judge Murphy and by Judge Neave and in the prosecutions submissions which have caused Judge Murphy to fail to consider the issue of provocation correctly, the issue surrounding remorse and the issues surrounding the assaults on members of my family by Patrick Delosa and members of his party on the night in question and the applicant believes these issues should have been considered properly prior to sentencing.
The applicant also filed, in December last year, an 18-page outline of submissions. It sets out extensively an account of errors allegedly made by the prosecutor, the applicant’s own legal representatives, and sentencing judge, in the proceeding below; and by the applicant’s legal representatives in the application heard by Neave JA.
Part of the applicant’s complaint is that errors of fact were made by counsel below, and by the prosecutor, and that the sentencing judge acted upon them. It is a complaint that the judge sentenced the applicant on an incorrect basis. If that was demonstrably so, the sentence would be impugned and the question would become whether this Court considered that a different sentence should be passed.
But I am not persuaded that it is reasonably arguable that either the prosecutor or counsel for the applicant below did err in the manner suggested; or in any event that the applicant should be permitted to agitate the question. First, the Crown opening, so far as it related to the events which culminated in the offending conduct, was conceded below to be accurate. It is not in debate that it accorded with the depositions. The applicant was in Court when it was read to the judge. He did not seek to controvert it. The applicant’s present submissions, however, amount to an assertion that the witnesses' accounts, given in the depositions, were unreliable. If such a matter was to be agitated, it was by trial on a plea of not guilty; or else, on a plea of guilty, by the applicant adducing evidence of the circumstances to show the true basis upon which his guilty plea ought be accepted and acted upon. In the circumstances which I have described, it is impermissible for the applicant now to seek to allege, on an application for leave to appeal against sentence, after a plea of guilty on accepted facts, that the facts were otherwise than as presented to the judge.
Second, the same may be said of an extensive account of events in the hours preceding the offending conduct given by the applicant in his submissions, an account much slanted against the complainant and his party, (for example, ‘Delosa and Scanlan wanted to cause trouble all night’) and an explanation why the hotel publican did not unreservedly support the applicant in his statement to the police.
But even assuming that the complainant or a member or members of his party had by their actions provoked the applicant, the evidence was clear, as I perceive it, that the applicant struck the complainant when things had apparently settled down. The significance of any alleged provocation would not be great. It would not cause me to consider that a different sentence should be passed.
Third, the applicant contends in his submissions that the sentencing judge was wrongly led into believing that the applicant’s business traded in the mid 1990’s whilst he was imprisoned. It was submitted, in effect, that the judge implicitly reasoned that because the business had done without the applicant's input in the past, it could do so again.
The judge did say in his sentencing remarks that the applicant's company weathered the earlier period in 1995 when the applicant was imprisoned. This was consistent with the evidence of the applicant's long-time partner that the applicant's business had been trading since 1989. If there was a point to be made that the company had ceased trading whilst the applicant was imprisoned, it was for the applicant, through his counsel, to make that point on the plea. But the evidence which was led did not support that proposition; and I do not accept that the applicant can now belatedly raise and rely upon the asserted error.
Fourth, a related assertion made by the applicant in his submissions is that his then-solicitor kept him in the dark about aspects of the evidence and about the proposed grounds of appeal; and that senior counsel who appeared before Neave JA did not advance grounds in accordance with the applicant's instructions.
No occasion arises to put that assertion either to the applicant's former solicitor or to counsel. There is no question but that the applicant was in Court when his counsel accepted the accuracy of the Crown opening, which undeniably accorded with the depositions. Further, to judge from several of the earlier contentions to which I have referred, the applicant probably wanted counsel on the hearing before Neave JA to put a factual scenario which was incompatible with the statements of the Crown witnesses and the Crown opening. As I said a little earlier, any very different account was a matter for trial on a plea of not guilty, or at least for evidence on the plea.
The applicant also contends in his submissions that the sentencing judge erred by not disclosing the fact that ‘he had worked for my lawyer … before becoming a judge’. The nature of the alleged error, even accepting the accuracy of the assertion , is unknown. If it is implicitly an allegation of apprehended bias, there is nothing to support it.
Thus far I have said nothing directly concerning the ground that the sentence passed was manifestly excessive.
The offence for recklessly causing serious injury is a serious one. It carries a maximum penalty of 15 years' imprisonment. In R v Winch,[1] Maxwell P and Redlich JA concluded that where the offence is constituted by ‘glassing’, that sub-category of the offence should not be considered as falling within ‘a lower category of seriousness where an immediate custodial sentence is not required.’[2] To the contrary, ‘the objective gravity of the offence will usually require a term of immediate imprisonment.’[3] Their Honours clearly enough regarded a number of sentences passed in earlier years for the offence of recklessly causing serious injury, where the offence was constituted by ‘glassing,’ as being rather lenient.
[1][2010] VSCA 141.
[2]Ibid [54].
[3]Ibid [53].
The present case was a serious enough example of the offence. The fact that
the applicant was not a young man fuelled by alcoholic excess - a situation which often arises where the particular offence is committed by ‘glassing’ - cuts both ways. Even accepting that there was a degree of provocation, what the applicant did could not be excused. That is the more so given his past history of violent conduct, which should have enabled him to know that violence can have terrible consequences.
There were matters going in mitigation. They included the precarious state of the finances of the applicant and his company, his indifferent health, his sound work record and his strong family ties. But in my opinion, considered overall, the circumstances of the offender and the offending do not permit a conclusion that either aspect of the sentence passed, that is the head sentence or the non‑parole period, was arguably manifestly excessive.
In the event I would refuse the application for leave to appeal against sentence.
These reasons raise no question of principle.
BONGIORNO JA:
I agree.
ASHLEY JA:
The order of the Court is that the application for leave to appeal against sentence is refused.
‑ ‑ ‑
4