Kane v The Queen
[2010] VSCA 213
•23 August 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0573
| JEFFREY KANE | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NETTLE, HARPER and HANSEN JJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 23 August 2010 | ||
DATE OF JUDGMENT: | 23 August 2010 | ||
MEDIUM NEUTRAL CITATION: | [2010] VSCA 213 | ||
JUDGMENT APPEALED FROM: | R v Kane (Unreported, County Court of Victoria, Judge Douglas, 3 April 2009) | ||
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CRIMINAL LAW – Intentionally causing serious injury – Intentionally causing injury – Assault – Criminal Damage – Breach of intervention order – Domestic context – Breach of intervention order – Total effective sentence 10 years – Non-parole period 7 years – Manifest excess – Crown concession – Outside range of current sentencing practices – Appeal allowed – Re-sentenced with total effective sentence 8 years – Non-parole period 6 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S R Johns | Balmers |
| For the Crown | Mr G J C Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
This is an appeal against a total effective sentence of 10 years' imprisonment with a non-parole period of seven years imposed on the applicant on pleading guilty to one count of intentionally causing serious injury (Count 1), one count of common assault (Count 2), one count of criminal damage (Count 3) and, on a separate presentment, one count of intentionally causing injury (Count 1) and a summary charge of breaching an intervention order. It is contended that the individual sentence of eight years' imprisonment imposed on the count of causing serious injury, and thus the total effective sentence, are manifestly excessive.
The facts
The appellant was born on 3 October 1973. In March 2005, he began to live in a de facto marital relationship with Rachel Delaney. She was married to, but separated from, Daniel Smyth. She and Smyth had two small children and shared their custody under arrangements sanctioned by the Family Court. During the appellant's relationship with Ms Delaney, there were repeated incidents of tension and conflict between him and Smyth.
In December 2007, Ms Delaney told the appellant that she was ending their relationship. He did not want it to end and sent text messages and made telephone calls to Ms Delaney attempting to persuade her to change her mind. At one point they met and he took her for a drive in the country. He was upset and behaved irrationally. He begged her to return to him and he made threats against her. Eventually, she persuaded him to take her home.
Once home, she called Smyth. She and the children along with Smyth returned to the house in which she had lived with the appellant. She asked Smyth to stay there with her until she felt comfortable. At 6.00 pm that evening, the appellant's father arrived at the house and asked to speak to Ms Delaney about her relationship with the appellant. She told him that it was over and that she did not want any more to do with the appellant. At 8.30 pm that evening, the appellant's father telephoned Ms Delaney and warned her that the appellant was coming.
The appellant arrived at 8.45 pm. Smyth warned Ms Delaney not to open the door but she nevertheless went outside and spoke to the appellant. She reiterated that the relationship was over and that she did not want to hear from him. The appellant accused her of having a sexual relationship with Smyth and of being blackmailed by Smyth. After about 10 minutes conversation he left.
The next morning he returned at around 9.00 am. Although he had an interest in the property and a key to it, he banged on the door. Ms Delaney spoke to him through a locked security door and told him that she was not going to let him in. The appellant said, 'Open the fucking door, bitch' and then forced open the security door, kicked open double wooden entry doors and entered the premises (they are some of the facts which comprised Count 3, criminal damage).
Smyth had been in bed. He walked into the hall, pulling up his trousers, and looked up to find the appellant only about four metres from him. The appellant yelled, 'I'm going to kill you, cunt' and then lunged at Smyth, grabbing him by the throat and biting his nose. The force of the attack drove Smyth backwards into the living room wall. The appellant, however, continued to bite Smyth's nose and to attempt to choke him with his hand to his throat. Smyth's head was forced back into a framed picture hanging on the wall which smashed and fell onto the floor (those facts also comprise part of Count 3, the count of criminal damage) as the appellant continued to bite Smyth's nose and to choke him with his hand to his throat. At one point, Smyth pushed his thumb into the appellant's eye to get free, but the appellant then bit off a large part of Smyth's nose and spat it out on the floor (Count 1, intentionally causing serious injury).
The appellant next went after Ms Delaney, who had gone outside with the children. Smyth searched for a mobile phone to call the police but could not find one. Instead, he took up a stainless steel boning knife for protection. He returned to the front of the house to see the appellant holding Ms Delaney on the front footpath, possibly trying to return to her to the house. Smyth ran through the house, jumped the fence, and yelled to neighbours to call the police, and then moved back to the front of house where Ms Delaney was moving inside with the children.
The appellant followed her in. Smyth followed in after them and observed the appellant holding Ms Delaney by the throat up against the wall, about a foot off the ground (Count 2, common assault). Ms Delaney later said that she had gasping for air. Smyth told the appellant that he was armed with the knife and persuaded him to put Ms Delaney down.
The appellant then turned to Ms Delaney and said, 'Look what you've made me do, bitch. If it wasn’t for you I wouldn't have done this. It's all your fault.' Smyth dropped the knife and went next door to a neighbour's house to await the arrival of the police a short time later. The police arrived, arrested the appellant and Smyth was taken to hospital.
Smyth's injuries were serious. Plastic surgeons re-attached the part of his nose which the appellant had bitten off but, within a month most of that had become necrotic. Smyth was left with a portion of his nose missing and an exposed left nostril. In subsequent surgical procedures, surgeons used part of his ear to repair the damage to his nose but unfortunately that too was only partially successful. His victim impact statement shows that he has suffered physically, emotionally and financially, and that those effects will continue.
Following the appellant's arrest, he was charged and released on bail. Within a few months, he had entered into a relationship with another woman, Ms Sarah Sharpe, and she became pregnant by him. In turn, on 31 July 2008, she obtained an intervention order from the Magistrates’ Court prohibiting him from assaulting, harassing, threatening or intimidating her. But on Saturday 11 October 2008 she spent the night with him at his parents' home. At that stage she was approximately five months pregnant and he knew that to be so.
The following morning at about 8.30 am, she told him that she was going to her mother's house because it was her mother's birthday the next day. He responded that he did not want her to go. Ms Sharpe insisted that she was going and took the appellant's car keys. She drove off in his car a small distance to the home of her cousin, parked in the drive way and went inside.
Later at about 11.00 am, she was standing outside the house speaking on her telephone when she heard a noise. She turned to see the appellant and, without warning, he punched her in the head, causing her to drop the telephone and fall to the ground. He yelled and screamed at her and told her to remove her items from the car. Then, when she reached into the car to retrieve her handbag as he asked, he pulled her by the hair and punched her to the head approximately three times. She exited the vehicle and ran around it, but he chased her. He caught her near the bonnet of the car and then punched her several more times. Then he got her up against the bonnet of the car and continued to punch her, inflicting injuries to her head, neck, back and left shoulder. One witness saw him punching her while he held her in a headlock. Ms Sharpe fell from the bonnet of the car onto the ground. Finally, the appellant got on top of her on the ground and held her down with one hand while he punched with the other. He hit her near her nose causing heavy bleeding. (Those are the facts which comprised Count 1 on the second presentment, intentionally causing injury, and the summary charge of breaching the intervention order.)
Shortly after the attack, the appellant drove Ms Sharpe to the hospital. He told hospital staff that Ms Sharpe had been assaulted by another female. He was aggressive and highly agitated and very reluctant to leave Ms Sharpe with hospital staff when he was asked to do so. Ms Sharpe was admitted for overnight observation but later discharged herself, against medical advice, having told staff that she needed to collect some things but would return. Some time later she returned in an apparently drug-affected state in company with the appellant. A subsequent drug test detected opiates, amphetamine, methylamphetamine and cannabinoids in her system. Police were called and the appellant was removed from the hospital and arrested.
When interviewed, the appellant denied any offending and claimed that Ms Sharpe had already been injured by someone unknown when he arrived at the premises. Despite the beating, Ms Sharpe's child was later born healthy and she declined to make a victim impact statement. At the time of sentencing, she remained willing to retain contact with the appellant.
The judge’s sentencing remarks
In her sentencing remarks, the sentencing judge observed, correctly, that it is incumbent on a sentencing judge to impose condign punishment in a case like this in order to send a clear message to likeminded people that a civilised society does not condone people using physical violence to take the law in their own hands to settle disputes and deal with domestic partners in a violent way. Her Honour also observed, correctly, that inasmuch as these attacks were cowardly, unprovoked and unexpected attacks, there was a particular need for specific deterrence. The judge referred, too, to the fact that the offences the subject of the second presentment were committed whilst the appellant was on bail and perforce of s 16(3C) of the Sentencing Act1991 the sentences imposed for those offences were to be served cumulatively on the sentence imposed on the counts the subject of the first presentment unless the Court otherwise determined.
At the same time, the judge noted in favour of the appellant that he had a sound employment history as a qualified boilermaker and had established his own very successful business before the events in issue. It was said to be due in part to the pressures of that business that he had taken to using amphetamines and that he was using amphetamines at the times of the attacks, and the judge had no doubt that the amphetamines had exacerbated the appellant's aggressive state of mind. Her Honour also took into account in favour of the appellant that, although the appellant had some minor criminal convictions, there were none for violent offences and he had never before been sentenced to a term of imprisonment.
The judge was not persuaded, however, that the appellant felt any remorse for what he had done, other than that which arose from the realisation of the consequences for himself of being imprisoned, but that he had gained some insight as a result of being imprisoned and was prepared to undertake appropriate anger management and cognate therapeutic courses.
Thus, the judge imposed a sentence of eight years' imprisonment on Count 1 on the first presentment; 18 months' imprisonment on Count 2 on that presentment; ten months' imprisonment on Count 3 on that presentment and three years' imprisonment on Count 1 on the second presentment, without entering a conviction on the summary charge of breaching the intervention order. Her Honour ordered that six months of the sentence imposed on Count 2 on the first presentment, two months of Count 3, and four months of the sentence imposed on Count 1 on the second presentment be served cumulatively on each other and on the sentence imposed on Count 1 on the first presentment, making a total effective sentence of ten years' imprisonment and set a non-parole period of seven years. Pursuant to s 6AAA of the Sentencing Act 1991, the judge further declared that but for the appellant's plea of guilty, her Honour would have sentenced him to 11 years' imprisonment with a non-parole period of nine years.
The appellant’s contentions
The appellant does not dispute the appropriateness of any of the individual sentences other than the sentence imposed on Count 1 on the first presentment. Nor does he complain about the orders for cumulation. The basis of the appellant's argument is that, when one compares the sentence of eight years' imprisonment imposed on Count 1 with sentences imposed in other cases for comparable offences of intentionally causing serious injury, the sentence imposed in this case so much ill-accords with current sentencing practices as to appear manifestly excessive.
Current sentencing practices
In this case, the Court has been much assisted by detailed written submissions filed by the Crown. They include a substantial body of statistical material and, more helpfully, an analysis of several cases decided in recent years concerning sentences imposed on counts of intentionally causing serious injury.
But for that material, I should have been disposed to dismiss this appeal. Although a sentence of eight years' imprisonment imposed is high for a count of intentionally causing serious injury not involving the use of weapons[1] or resulting in the total and permanent incapacity of the victim,[2] the nature and gravity of this offence was formidable and the effects on the victim were painful and lasting. It called for a sentence which reflected that.
[1]Cf R v Heany (2002) 22 VR 164, 202 [150] (nine years’ imprisonment).
[2]Cf DPP v Terrick, Marks and Stewart (2009) VSCA 220, [17] (eight years’ imprisonment); Ashe v R [2010] VSCA 119, (recklessly causing serious injury, 10 years’ imprisonment).
The Crown, however, concedes that the sentence is excessive. It draws attention to the decision of this Court in R v Harvey,[3] where the majority held that a sentence of nine years' imprisonment imposed on a serious violent offender on a count of intentionally causing serious injury was manifestly excessive, and varied the sentence to six years. Although I dissented in that case, I am bound to heed it. The Crown also makes mention of R v Pennell and Rankin,[4] in which I joined, where the nature and gravity of the offending was more serious than here, albeit that the offenders were younger, and the sentence imposed was only six years' imprisonment.
[3][2007] VSCA 127.
[4][2007] VSCA 225.
Sentencing cases are without precedential value. Each case is unique and dependent on its own circumstances. The most that can be derived from previous decisions is their exposition of sentencing principles. But in view of the Crown’s concession, and given the similarities and dissimilarities between this case and the
cases to which the Crown has drawn attention, I am persuaded that a sentence of eight years’ imprisonment was, in this case, beyond the sentencing range. It may be that there is a need to revisit current sentencing practices in relation to offences of intentionally causing injury. But this is not the case in which to do that; if only because of the sentencing range of five to seven years’ imprisonment which was put by the Crown to the sentencing judge on the plea.
Conclusion and orders
In the result, I would allow the appeal and set aside the sentence passed on Count 1 on the first presentment. I would then re-sentence the appellant on that count to six years' imprisonment, but otherwise confirm the individual sentences passed below and the orders for cumulation which were made below.
If that disposition were to appeal to the other members of the Court, the total effective sentence would become one of eight years' imprisonment and I would set a new non-parole period of six years.
HARPER JA:
I agree with the re-sentencing disposition proposed by the learned Presiding Judge for the reasons which he gives.
I wish to associate myself with the proposition that while for the reasons which his Honour has given, this is not the case in which to revisit the general sentencing range for the offence of intentionally causing serious injury without lawful excuse. Nevertheless there is reason to question whether the current range is appropriate. The behaviour involved on Count 1 in this case was a very high degree of criminality.
It is difficult to equate with that behaviour a sentence which is well under half the maximum fixed by Parliament. It is Parliament's constitutional prerogative to fix such maxima and the Courts' duty to give effect to the intention evidenced by Parliament in so legislating. Sentences for serious examples of the offence which
consistently fall below half the maximum are arguably not consistent with the duty to the Courts to adhere to the intention of the legislature as expressed in the relevant legislative provisions.
HANSEN JA:
I agree with the learned Presiding Judge as to his reasons and disposition imposed and I am inclined to rest my agreement with the further observations of Harper JA.
NETTLE JA:
The Court orders that:
1. The appeal is allowed.
2.The sentence passed below on Count 1 on Presentment WO3311454 (‘the first presentment’) is quashed.
3.The appellant is re-sentenced on Count 1 on the first presentment to six years’ imprisonment.
4.The other individual sentences passed below and the orders for cumulation made below are confirmed, with result that the appellant is re-sentenced:
· On count 2 on the first presentment to 18 months’ imprisonment.
· On count 3 on the first presentment to 10 months’ imprisonment.
· On count 1 on Presentment XO2983962 (‘the second presentment’) to three years’ imprisonment.
· On the summary offence of breaching an intervention order, pursuant to s 76 of the Sentencing Act 1991, without recording a conviction, that the charge be dismissed.
Six months of the sentence imposed on Count 2 on the first presentment and two months of the sentence imposed on Count 3 on the first presentment shall be served cumulatively on each other and on the sentence imposed on Count 1 on the first presentment, making a total sentence on the first presentment of six years and eight months’ imprisonment.
One year and four months of the sentence imposed on Count 1 on the second presentment shall be served cumulatively upon the total sentence imposed on the first presentment, making a total effective sentence of eight years’ imprisonment.
A non-parole period is six years is fixed.
5.It is declared that the period of 681 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that the determination was made and its details.
6.Pursuant to s 6AAA of the Sentencing Act 1991, it is declared that, but for the appellant’s plea of guilty to Count 1 on the first presentment, he would have been sentenced to eight years imprisonment on that count, the total effective sentence would have been 10 years’ imprisonment and the non-parole period would have been eight years.
7.The orders made below pursuant to s 464ZFB(1) of the Crimes Act 1958 and s 86 of the Sentencing Act 1991 are confirmed.
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