Greatorex v The Queen
[2016] VSCA 136
•10 June 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2015 0259 | |
| ALEXANDER GREATOREX | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH, SANTAMARIA and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 May 2016 |
| DATE OF JUDGMENT: | 10 June 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 136 |
| JUDGMENT APPEALED FROM: | [2015] VCC 1568 (Judge Lewitan) |
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CRIMINAL LAW – Sentence – Appeal – Recklessly causing serious injury – Combined sentence of term of imprisonment of 15 months and Community Correction Order of 2 years – Whether length of term of imprisonment made combined sentence manifestly excessive – Whether length of term of imprisonment infringed principle of parsimony – Combined sentence to be viewed in its totality – Not helpful to compare length of combined sentence with term of imprisonment with non-parole period – Individual sentencing considerations not to be assigned to different components of combined sentence – Boulton v The Queen [2014] VSCA 342 and Melnikas v The Queen [2016] VSCA 112 considered – Sentencing Act 1991, s 5(3), s 5(4C) – Prior criminal matter – Moderately serious injury to victim – Appeal dismissed.
CRIMINAL LAW – Appeal against sentence – Combined custodial term and CCO pursuant to Sentencing Act 1991 s 44(2) – Circumstances in which warning should be given pursuant to Criminal Procedure Act 2009 s 281(3) that part of the combined sentence might be increased in the event of resentencing.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P F Tehan QC with Ms R Waters | Pica Criminal Lawyers |
| For the Crown | Ms F L Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
SANTAMARIA JA
BEACH JA:
This is an appeal against a sentence that combined a term of imprisonment with a Community Correction Order (‘the combined sentence’). The appellant complains that the term of imprisonment was manifestly excessive and infringed the principle of parsimony when combined with the duration of the Community Correction Order (‘CCO’).
On 6 November 2015, the appellant pleaded guilty to one charge of recklessly causing serious injury. On 30 November 2015, the appellant was sentenced as follows:[1]
[1]R v Greatorex [2015] VCC 1568 (‘Reasons’).
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Recklessly causing serious injury [Crimes Act 1958 s 17] | 15 years’ imprisonment [Crimes Act 1958 s 17] | 15 months’ imprisonment combined with a 2 year Community Correction Order | - |
| Total Effective Sentence: | 15 months’ imprisonment and 2 year Community Correction Order | |||
| Non-Parole Period: | - | |||
| Pre-sentence Detention Declared: | - | |||
| 6AAA Statement: | 3 years’ imprisonment with a non-parole period of 2 years. | |||
| Other orders: Forensic sample order pursuant to s 464ZF of the Crimes Act 1958. CCO conditions including: supervision and treatment conditions; 200 hours unpaid community work; alcohol exclusion for 2 years. | ||||
On 2 March 2016, the appellant was granted leave to appeal on the ground that the sentence imposed was manifestly excessive as the period of 15 months’ imprisonment offended the principle of parsimony when combined with the duration of the CCO. The appellant also seeks leave to appeal on an additional ground that:
the sentencing judge erred by imposing a combination sentence … the length of which was in excess of what the sentence would have been had it been a sentence of imprisonment with a non-parole period and in so doing, her Honour:
(a) failed to have due regard to the fact that a two year CCO with onerous conditions has a strong punitive element attached to it;
(b) failed to have due regard to the principle that the period of imprisonment of a combination sentence should be ‘the shortest possible sentence of imprisonment’;
(c) failed to recognise that the principle of parsimony applies to a combination sentence; and,
(d) failed to recognise that in determining the length of the term of imprisonment to be passed, little weight could be placed upon sentences where only a term of imprisonment with a non-parole period was imposed for the instant offence.
During the course of the hearing of the appeal it became necessary to consider if the warning specified by s 281(3) of the Criminal Procedure Act 2009 (‘the Act’) should be given where the sentence involved the imposition of a combined sentence under s 44 of the Sentencing Act 1991.
Section 281 of the Act prescribes certain requirements which govern the determination of an appeal. Relevantly, subsection (3) requires the Court to warn an appellant of the possibility that a more severe sentence than that fixed by the primary judge may be imposed. Section 281 provides:
(1) On an appeal under section 278, the Court of Appeal must allow the appeal if the appellant satisfies the court that—
(a) there is an error in the sentence first imposed; and
(b) a different sentence should be imposed.
(2) In any other case, the Court of Appeal must dismiss an appeal under section 278.
(3) If the Court of Appeal is considering imposing a more severe sentence than the sentence first imposed, the Court of Appeal must warn the appellant, as early as possible during the hearing of the appeal, that the appellant faces the possibility that a more severe sentence may be imposed than that first imposed.
Ordinarily, for a warning of the kind specified in s 281(3) of the Act to be given, the Court must engage in an objective assessment of whether a sentence which may be imposed on an appellant is more severe than that imposed at first instance. The conclusion that a sentence is more severe involves consideration of the nature and duration of a particular sentencing disposition and the conditions which may be attached to that disposition.
In a case in which a combined sentence has been imposed, and the Court considers that the readjustment of the duration of one or the other of the components of the combined sentence is a realistic possibility, it may not be easy to assess whether the different combined sentence is more or less severe than the original disposition. Plainly, individual prisoners may differ in their view as to whether a particular adjustment to the components of a combined sentence would result in a more severe sentence than that first imposed. One offender may prefer to be released from confinement at the earliest opportunity and serve the remainder of a combined sentence under a relatively onerous CCO in terms of its duration and the conditions attached whilst another offender may eschew that disposition in favour of an increase in the period of incarceration with a decrease in the duration of the concomitant CCO, or a removal of the CCO altogether.
We concluded that, having regard to the purpose of s 281(3), fairness to the prisoner dictated that the Court should assume that any variation of the combined sentence which increased the duration of either component of it should be viewed as a potentially more severe sentence, and the prisoner given a warning and the opportunity to abandon the appeal.
As the appellant’s primary submission was that the part of the combined sentence being the term of imprisonment should be reduced, it was made clear to the appellant during the hearing of the application for leave to appeal, and the hearing of the appeal, that, should either of the appellant’s grounds be made out, and the sentencing discretion be re-opened, the Court may reconsider the entirety of the combined sentence. He was informed that could result in a reduction in the term of imprisonment and an increase in the duration of the CCO or an increase in the term of imprisonment and the removal of the CCO. The appellant intimated through his counsel that he was aware of such risks and wished to proceed.
Circumstances of the offending
On 4 October 2014 at about 5:00 pm, the victim Stephen Gill, accompanied by his friends Ian Heywood and Ryan Collet, attended the Sandringham Hotel where they met up with a number of other friends.
At about 7:05 pm, the appellant, then aged 25 years of age, attended the hotel with a group of friends.
During the evening, Mr Gill was playing pool with Mr Collet. The appellant and two other males approached Mr Gill and Mr Collet and asked if they could play a game.
Mr Gill and Mr Collet then played against the appellant and one of his friends, Mr Heywood was standing nearby. During the game, friendly words and light hearted banter were exchanged between the four men.
At about 8:00 pm, the game was close and towards the end the appellant missed a shot. Mr Gill, who was sitting next to Mr Heywood watching, laughed and told Mr Heywood that he thought the appellant was going to ‘choke’. Mr Gill then went to rise to his feet and leant in towards the appellant in order to grab the pool cue from him. All of a sudden the appellant held the pool cue with both hands, raised it over his right shoulder and struck Mr Gill to his left eye with the butt of the pool cue, penetrating his eye, and forcing him backwards a couple of metres into a glass wall. Mr Gill was in shock and bleeding from his eye.
The appellant dropped the pool cue and walked out the hotel followed by his friends.
Mr Gill suffered the following injuries:
· severe pain, bleeding and bruising to his left eye;
· fractures to the orbit of his left eye and left hand side of his nose;
· a laceration underneath his left eye requiring suturing; and
· blurred vision.
Analysis
As senior counsel for the appellant advanced eloquently on the appeal, there were a number of mitigating factors which called for leniency in the circumstances. The appellant was relatively young, having committed the offending at the age of 25. He pleaded guilty at an early stage in the proceeding. Although he gave ‘no comment’ answers during the police interview conducted after his arrest on 17 October 2014, he offered to plead guilty to the offence of recklessly causing serious injury on 4 December 2014, some eleven months before that offer was accepted by the prosecutor.[2] The appellant also drew upon his prospects of rehabilitation, his remorse, his abstention from alcohol and reform of his behaviour, his character references, his personal circumstances and his payment of $4,000 to the victim.
[2]The appellant’s offer was rejected and a Committal Hearing took place on 26 March 2014. A trial was listed for hearing on 9 November 2014. The plea offer was re-considered and accepted on 6 November 2015.
The judge referred to these mitigating factors including those that supported the appellant’s rehabilitative prospects. In her reasons, the judge had found that the appellant had been binge drinking since he was 15 years old. His drinking intensified after he turned 18 and involved the consumption of approximately 15–20 standard drinks on Saturday nights.[3] The appellant was also found to use amphetamines, ecstasy, cocaine and cannabis recreationally in his late teenage years and early twenties. However, since March 2015, the appellant had sought to reverse that course by undergoing alcohol-related counselling with his psychologist, Dr Matthew Barth. He had remained abstinent from alcohol from May 2015 onward until he suffered a two-week relapse in September 2015. He had refrained from consumption of alcohol since September 2015 and had avoided frequenting hotels.
[3]Reasons [24]–[25].
The judge referred to two psychological reports tendered by Dr Barth dated 19 March 2015 and 6 November 2015, setting out in particular Dr Barth’s remarks that the appellant was an immature and insecure young man who had responded well to psychological treatment and continued to require such treatment for the medium term.[4] She noted that the appellant had no further criminal incidents since the present offending. She observed that he was a volunteer with the State Emergency Service and was working in his father’s business prior to the imposition of his sentence.[5]
[4]Ibid [30].
[5]Ibid [34].
The judge took account of the 13 impressive character references produced by the appellant as an indication of his remorse and his prospects for rehabilitation.[6] The references emphasised the appellant’s character as a hard-working young man, with a good work ethic, and spoke of the changes the appellant has made in his personal life since the offending, including undertaking counselling sessions with a psychologist and abstaining from drinking alcohol. Two of the references also made note of his dedication and commitment to soccer, by playing in the first team of the Brighton Soccer Club and by coaching and mentoring the Club’s under 12 team.[7]
[6]Ibid [32].
[7]Ibid [33].
The character evidence called included evidence that the appellant had changed his behaviour significantly since this incident, that he had reduced his drinking, benefitted from the strategies to control his temper recommended by Dr Barth, regretted the injury he caused and that he was acutely aware that he had let himself and his family down.[8]
[8]Ibid [29]–[30].
The judge concluded, on balance, that the chances of the appellant’s rehabilitation were reasonable provided he abstained from the excessive consumption of alcohol.[9] She accepted that, at the time of sentencing, the appellant was suffering from glandular fever, which had the potential to make imprisonment more burdensome for him than for a person of ordinary health.[10] An additional factor in the appellant’s favour was that he had sent the victim a cheque of $4,000 to make good his loss of wages.[11]
[9]Ibid [35].
[10]Ibid [42].
[11]Ibid [17].
There is significant overlap between grounds 1 and 2. The principle of parsimony provides the foundation for the appellant’s arguments on both grounds. The appellant in his written submissions invoked that aspect of the principle of parsimony as set out in s 5(4C) of the Sentencing Act 1991. That provision has application where the sentencing court concludes that sentencing purposes cannot be sufficiently served by the making of a CCO alone, even with onerous conditions. The appellant acknowledged that as the sentencing judge had concluded that in order to satisfy relevant sentencing purposes, a term of imprisonment had to be combined with a CCO, and as that decision was not under challenge, s 5(3), not s 5(4C), of the Sentencing Act was applicable. The judge was obliged to impose the shortest term of imprisonment consistent with the achievement of the relevant sentencing purposes, in accordance with the principle of parsimony.
The appellant submitted that the principle as expressed in s 5(3) had been infringed as a term of imprisonment was imposed that was more severe than was necessary to achieve the purpose or purposes for which the sentence is imposed. He submitted that, a sentence of six or nine months’ imprisonment was within range, but the imposition of 15 months’ imprisonment was outside the reasonable range. The appellant contended that had he received a sentence of imprisonment with a non-parole period, rather than a combined sentence, it would be ‘difficult to see how [he] might have attracted a heavier non-parole period than 15 months’.[12]
[12]It should be noted that the appellant’s submissions under the first and second grounds of appeal were internally inconsistent in this respect, as the appellant submits under the second ground of appeal that where a combined sentence has been imposed, it is not helpful to compare the sentence with a possible non-parole period which would have been imposed.
It was not suggested on the appeal that a CCO alone was sufficient to achieve the sentencing aims of just punishment, general deterrence, and denunciation. That being so, the respondent submits that it was clearly open to the judge to conclude that 15 months was the shortest term of imprisonment that could be imposed. The respondent also maintained that it was not helpful to compare the combined sentence of the term of imprisonment and the length of the CCO with a term of imprisonment with a non-parole period.
The content of the grounds of appeal and the way in which the case was argued indicate that the critical issue is whether the duration of the term of imprisonment in conjunction with the CCO infringed the principle of parsimony resulting in the combined sentence being manifestly excessive.
The selection of the appropriate term of imprisonment in combination with a CCO is a quintessential sentencing discretion. As we recently said in Melnikas v The Queen:[13]
The fact that a CCO is now a sentencing option does not alter the latitude of the sentencing discretion. Specifically, because a judge might refuse to impose a CCO in a particular set of circumstances where another judge would do so, does not mean that the sentence falls outside the permissible range of sentencing options. Similarly, because a judge thinks that all of the sentencing purposes can be achieved by a term of imprisonment of two years together with a CCO of some length where another judge in the same circumstances might fix a much shorter term of imprisonment and a shorter CCO does not mean that the sentence is outside the permissible range.[14]
[13][2016] VSCA 112 (‘Melnikas’).
[14]Ibid [63].
It was suggested that within the combined sentence, the term of imprisonment deals with deterrence, denunciation and just punishment and the CCO with rehabilitation. As this Court made clear in Boulton v The Queen,[15] there is a punitive element within a CCO and it is erroneous to view the CCO as serving entirely rehabilitative purposes. The combined sentence must be viewed in its totality for the purpose of a complaint of manifest excess. It is not appropriate to assign individual sentencing aims to one or the other component of a combined sentence so as to determine whether that component viewed in isolation was outside the range reasonably open to the judge. In that regard we said in Melnikas:
Boulton did not lay down any principle to the effect that sentencing considerations such as deterrence, denunciation and just punishment could (or should) be dealt with by way of a term of imprisonment, with an attendant CCO being limited to dealing with (or responding to) an offender’s personal circumstances or rehabilitative needs. In imposing a combination sentence of a term of imprisonment and a CCO, a sentencing judge is usually imposing a total sentence that will deal with all of the matters required to be taken into account when sentencing an offender. In imposing a combination sentence, no sentencing principle requires a court to dissect the relevant sentencing considerations and then assign them to either the term of imprisonment or the concomitant CCO.[16]
[15][2014] VSCA 342 (‘Boulton’).
[16]Ibid [60].
The principle of parsimony is applied in every case in which punitive sentencing purposes require the imposition of a custodial term. Just as in fixing a head sentence and non-parole period, there is no single identifiable term of imprisonment in a combined sentence above which the principle will be infringed. Reasonable minds will differ as to the maximum term of imprisonment that can be imposed in conjunction with a CCO before the term of imprisonment will become ‘more severe than that which is necessary’[17] to satisfy the relevant sentencing principles that require a custodial term. We said in Melnikas:
There are a myriad of offences and circumstances in which a reasonable exercise of the sentencing discretion may involve the making of a CCO on its own, or the imposition of a combination CCO and term of imprisonment, or the imposition of a term of imprisonment without any CCO. Ordinarily where a CCO is a possible sentencing disposition, the sentencing range reasonably open will be between a term of imprisonment at one end of the range to a CCO without a term of imprisonment at the other end. Often, as this Court has said many times before, reasonable minds will differ about which of these dispositions is appropriate or what the length of the term of imprisonment or the duration of the CCO should be.[18]
[17]Section 5(3) of the Sentencing Act 1991.
[18][2016] VSCA 112 [62].
The principle of parsimony will only have been infringed so as to produce a manifestly excessive sentence when the term of imprisonment when considered in conjunction with the CCO falls clearly beyond the range of terms of imprisonment available within a sound exercise of the sentencing discretion.
This Court is often confronted by sentence appeals in which the duration of a CCO is said to be manifestly excessive by reference to a possible sentence consisting entirely of a term of imprisonment with a non-parole period. As this Court said in Boulton, a comparison between the duration of a CCO and a prison term is ‘likely to be of very limited assistance’.[19] The Court said:
[19]Boulton [2014] VSCA 342 [122].
No correlation between prison term and CCO term
There was debate at the hearing about the extent (if any) to which the sentencing court, when considering the appropriate length of a CCO for a particular offender and offence, is likely to be assisted by considering the term of imprisonment which might previously have been imposed on such an offender for such an offence. In our view, given the differences between the two types of sanction in punitive character and in rehabilitative capability, the comparison is likely to be of very limited assistance. Perhaps all that can be said is that, other things being equal, the term of a CCO is likely to be longer — often, markedly longer — than the term of imprisonment which might otherwise have been imposed.[20]
[20]Ibid.
The appellant here seeks to compare the duration of the combined sentence, being the term of imprisonment and the duration of the CCO imposed, with the length of a possible head sentence including a non-parole period to try and demonstrate that the duration of the combined sentence and hence the term of imprisonment within it was too long. Such a comparison is also unhelpful. The instinctive synthesis does not necessitate a comparison of the duration of a CCO or the duration of a combined sentence with the length of a head sentence that might otherwise have been imposed. Neither does such an inquiry serve to advance the issue on appellate review as to whether the CCO or combined sentence is manifestly excessive.
There is no warrant in law to treat a complaint of manifest excess, or that the principle of parsimony has been infringed, in a combined sentence any differently from a ground of manifest excess in the context of a term of imprisonment alone, or a CCO on its own. The question is of no greater complexity in the case of a combined sentence. The question remains whether the sentence, viewed in its totality, was ‘wholly outside the range of sentencing options’ reasonably open to the judge.[21]
[21]R v Abbott (2007) 170 A Crim R 306, 309 [13], quoting R v Boaza [1999] VSCA 126 [42] (Winneke P); R v MacNeil-Brown (2008) 20 VR 677, 680. See Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6].
Well-established principles of appellate review must be applied in order to determine whether the combined sentence has been shown to be manifestly excessive. Here the sentencing judge was confronted by a difficult sentencing problem involving a constellation of mitigating factors. On the other hand, the appellant’s offending was of a serious nature. As the judge observed, the appellant’s behaviour, in thrusting a billiard cue into the victim’s eye, was unprovoked and betrayed an egregious lack of self-control.[22]
[22]Reasons [12], [67].
The physical and psychological harm caused to the victim was acute.[23] He suffered the serious injuries earlier described. He had to undergo surgery to repair the fractures, including the insertion of a titanium plate. The medical advice received by the victim suggested that he may not fully recover sensation in the left side of his face and may continue to suffer some double vision. As reflected by the victim impact statement, the victim was left badly shaken and nervous about going out at night. No doubt, that the assault was committed in a public place in the presence of a number of patrons would have contributed to the victim’s ongoing loss of confidence. He lost nine kilograms in weight from the stress and nervousness caused by the assault. Until he had fully recovered, he was also unable to resume certain activities he undertook regularly such as attending the gym. The sentencing judge was of the view that the injury fell within the moderate range of seriousness for this offence.[24]
[23]Ibid [8], [13], [67].
[24]Ibid [63].
Further, the appellant had a relevant prior criminal matter. In April 2010, the appellant, aged 20 at the time of the offence, was charged with recklessly causing injury at a soccer club on licensed premises when he lost his temper. The matter was adjourned to 6 April 2011 without conviction and the appellant was ordered to pay $750 to the Southport Community Housing Group by the Moorabbin Magistrates Court. He also undertook a two hour alcohol assessment with a counsellor about altering his behaviour. While it was accepted that the appellant had taken steps to address the causes of his offending behaviour, the judge gave particular weight to the fact that the appellant’s prior assault in similar circumstances, on licenced premises, reflected an inability to control his anger and bore upon the need for specific deterrence, protection of the community and his risk of reoffending.[25]
[25]Ibid [65].
The judge engaged in an instinctive synthesis of the relevant sentencing considerations. She gave obvious, careful consideration to the impressive constellation of mitigating features and to the fact that they had to be balanced with considerations of general deterrence and denunciation.[26]
[26]Ibid [68].
The law reposes in the sentencing judge the primary task of fixing an appropriate sentence. It matters not whether we would have imposed a different sentence to that fixed by her Honour. In the absence of specific error, this Court may only interfere if satisfied that the sentence imposed by the sentencing judge was not reasonably open.[27]
[27]House v The King (1936) 55 CLR 449, 505; Griffiths v The Queen (1977) 137 CLR 293, 310; Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15]; R v Abbott [2007] 170 A Crim R 306, 309 [13].
The judge’s acceptance of the prosecutor’s submission that the offending called for an immediate term of imprisonment in light of its gravity was not challenged; nor could it be.[28] It was well open to her Honour to conclude that a term of custodial imprisonment in combination with a CCO was necessary to give effect to all the relevant sentencing considerations. To so reason did not bespeak an error which offended s 5(3) of the Sentencing Act. The appellant has not demonstrated that a combined sentence of 15 months’ imprisonment infringed the principle of parsimony or that the combined sentence fell beyond a reasonable exercise of the sentencing discretion.
[28]See Reasons [60], [69].
We will grant leave to appeal on ground 2. As neither ground has been made out, the appeal must be dismissed.
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