Mansfield v The Queen
[2017] VSCA 220
•29 August 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0191
| MITCHELL MANSFIELD | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 May 2017 |
| DATE OF JUDGMENT: | 29 August 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 220 |
| JUDGMENT APPEALED FROM: | DPP v Mansfield (Unreported, County Court of Victoria, Judge Montgomery, 19 August 2016) |
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CRIMINAL LAW – Appeal – Sentence – Intentionally cause serious injury – Sentence four years and three months’ imprisonment, non-parole period two years and three months – Offender aged 19 – Whether sentence manifestly excessive – Whether principles concerning young offenders misapplied – Victim knocked unconscious – Offender repeatedly punched unconscious victim – Early plea of guilty – Prior good character – Good prospects of rehabilitation – General deterrence – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D C Hallowes SC | Emma Turnbull Lawyers |
| For the Respondent | Mr C B Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Croucher AJA. For the reasons which his Honour gives, I too would refuse leave to appeal.
CROUCHER AJA:
Overview
On 18 August 2016, Mitchell Mansfield (‘the applicant’) pleaded guilty in the County Court at Bendigo to a charge of intentionally causing serious injury[1] to William Margetts. The judge then heard an opening, a plea in mitigation and submissions on sentence.
[1]Contrary to Crimes Act1958, s 16.
The next day, his Honour sentenced the applicant to four years and three months’ imprisonment with a non-parole period of two years and three months. He recommended that the relevant authorities ‘give consideration to transferring [the applicant] to a youth justice centre to serve as much as that period as is deemed desirable’.[2] He also declared[3] that, but for the applicant’s plea of guilty, he would have imposed a sentence of between six and seven years’ imprisonment with a non-parole period of between four and five years.
[2]DPP v Mansfield (Unreported, County Court of Victoria, Judge Montgomery, 19 August 2016) [15] (‘Reasons’).
[3]Pursuant to Sentencing Act1991, s 6AAA.
The applicant sought leave to appeal against his sentence.[4] He relied on two grounds. The first complained that the judge misapplied the principles relevant to the sentencing of young offenders. The second complained that the sentence was manifestly excessive.
[4]Pursuant to Criminal Procedure Act2009, s 278.
On 20 December 2016, Weinberg JA heard the application on the papers. His Honour refused leave to appeal on the basis that neither ground of appeal had any reasonable prospect of success.[5] He gave detailed reasons for his decision.
[5]See Criminal Procedure Act2009, s 280.
The applicant elected to renew his application for leave to appeal,[6] on the same grounds. On 12 May 2017, in addition to having the material that was before Weinberg JA, this Court had the benefit of detailed oral argument from senior counsel for each party.
[6]Pursuant to Criminal Procedure Act2009, s 315(2).
In the result, I have reached the same conclusions as Weinberg JA. In particular, while it is clear that the sentencing judge gave less weight to the applicant’s relative youth than otherwise on account of his determination that, because of the gravity of the offence, he must give primacy to general deterrence and denunciation, I am not persuaded that he erred (or that it is reasonably arguable that he erred) in doing so or that he otherwise gave insufficient weight to the applicant’s age and prospects of rehabilitation. Further, while the sentence is firm, I am not persuaded that either the head term or the non-parole period is (or that it is reasonably arguable that it is) manifestly excessive or that some other type of sentence had to be imposed.
Accordingly, I would refuse the application. My reasons follow.
Summary of offence
I turn first to a summary of the circumstances of the offence.
On Saturday 19 December 2015, the applicant, who had turned 19 just two weeks earlier, attended the American Hotel in Echuca with his girlfriend V and others. Also present, in a separate group, were the applicant’s acquaintances, M and her boyfriend J (whose relationship had just ended). Mr Margetts, who was only 20, was also present with another group. Mr Margetts and M had been in a relationship that ended in 2013.
During the evening, Mr Margetts greeted M with a hug and then squeezed her on the buttocks, which made J jealous. V told Mr Margetts to leave that area of the bar. Mr Margetts then grabbed V firmly on the buttocks. This caused a minor altercation between J and Mr Margetts, with each pushing the other. It appears that, while outside the hotel shortly afterwards, the applicant or V, or both, advised security guards of Mr Margetts’ earlier behaviour.
By the early hours of the next morning, the applicant, V and numerous others had made their way to a nearby nightclub. Also there amongst the crowd was Mr Margetts. At some point, the applicant approached J and said (of Mr Margetts), ‘He is doing it [i.e. flirting] to my girlfriend. I might just accidentally slip him a back hand.’
While on the dance floor, the applicant and V were approached by Mr Margetts, who pushed them both to the chest, causing them to stumble backwards. The applicant and V then went and sat on a nearby couch. While there, V advised the applicant of Mr Margetts’ actions at the American Hotel.
Mr Margetts was dancing on the dance floor at this time. The applicant ran towards him and punched him with a right clenched fist to the rear (or side) of the head. The blow rendered him unconscious and caused him to fall awkwardly, half onto the floor and half onto the stage area. The applicant then set upon Mr Margetts, who was still unconscious and supine, and punched him between five and eight further times to the face and mouth area.
Other patrons intervened and removed the applicant from Mr Margetts. Security guards and patrons then escorted the applicant from the nightclub.
When police arrived shortly afterwards, Mr Margetts was still unconscious and receiving first aid treatment from other patrons. He regained consciousness after two or three minutes and was taken by ambulance to the Echuca Regional Hospital and then to the Royal Melbourne Hospital.
The injuries suffered by Mr Margetts included fractures to his eye socket, cheekbone and two vertebrae, a laceration inside his mouth, two displaced teeth, bruising and swelling. He also suffered post-traumatic stress disorder. On 29 December 2015, he had surgery to insert a plate in the region of his cheekbone and eye socket. He also attended the Royal Dental Hospital. It was expected that his displaced teeth would die.
The applicant, who waited outside the nightclub, was arrested and taken to the Echuca Police Station. When interviewed, he said, among other things, the following:
(a) ‘[I]t’s hard to describe … but he was just … staring straight at me … while he was dancing and jumping around. … I don’t dance like that, and … he was just staring at me and staring at her and I’d seen him look her up and down a few times, which I don’t like. Yeah, it’s pretty just common staring, but like it looked a bit aggressive and that’s when I’ve just flipped.’
(b) ‘I just hit him out of anger.’
(c) ‘Once I flip, I just lose it. I’ve got — reckon I’ve got issues, to be honest.’
(d) ‘I actually sat down because I realised instantly what I’d done and I instantly regretted it, as I said.’
(e) ‘Well, obviously, I must have hit him a bit harder than what I imagined and I didn’t mean to do that much damage to someone. I never meant to hurt someone that much.’
(f) When asked why he committed the offence, he said, ‘For treating women who are family and friends like they’re worthless and just trying to make moves on people that he should be, you know, have a bit of respect for.’
(g) ‘I’m extremely sorry for what I done.’[7]
[7]Reasons [8].
The applicant also said that he was not aware that Mr Margetts was unconscious when he delivered the further blows.
Committal proceedings and plea of guilty
Following the interview, the applicant was charged and bailed to appear before the Magistrates’ Court at Bendigo.
Initially, the matter was set down for a two-day contested committal hearing. However, the applicant pleaded guilty on the first day of that hearing and without requiring any witnesses to give evidence. After being committed for trial, the applicant honoured his plea upon arraignment in the County Court.
Victim impact statements
The judge received victim impact statements from Mr Margetts, his parents, his sister, his aunty and his grandmother. As his Honour said, those documents ‘movingly set out the effect [the applicant’s] offending has had on Mr Margetts and his family’.[8]
[8]Ibid [2].
In his statement, Mr Margetts explained that, prior to the assault, he had prepared for, and was hopeful of entering, a course as an officer at the Australian Defence Force Academy (‘ADFA’). He even received a letter of offer soon after the assault. However, he was unable to take up that position because he was declared medically unfit as a result of the injuries he had sustained. He remains hopeful of getting another chance with the ADFA once he recovers sufficiently. But, at the least at the time of the plea and sentence, his future plans had been put on hold.
Plea in mitigation
Counsel who appeared for the applicant on the plea accepted that the assault was ‘very serious’ and ‘vicious’, but, by reference, in part, to the criteria set out by Maxwell P in Nash v The Queen,[9] relied on the following matters in characterising the gravity of the offence:
[9]Nash v The Queen (2013) 40 VR 134, 137 [10] (‘Nash’).
(h) First, the offence involved no planning; indeed, it was spontaneous.
(i) Second, the assault was not sustained but of short duration, lasting for only about four seconds (the CCTV footage confirmed this).
(j) Third, the applicant was not aware that Mr Margetts was unconscious after the first blow. That said, counsel accepted that the applicant continued assaulting Mr Margetts despite his ‘completely helpless’ position. He also conceded that this was ‘a highly aggravating factor’.
(k) Fourth, no weapon was used.
(l) Fifth, the applicant acted alone, not in company.
(m) Sixth, his intent was to cause serious injury, but not really serious injury or maximum injury.
(n) Seventh, the offence was explained, but not excused, by what the applicant perceived to be the inappropriate way in which Mr Margetts had been behaving towards women, including his girlfriend. Counsel accepted that the offence was ‘a gross overreaction’ to what had occurred.
Counsel also relied on several factors in mitigation, including the following:
(o) First, the applicant had no prior or subsequent convictions. The written references described a pleasant teenager. The offence was out of character.
(p) Second, he was only just 19 at the time of the offence. According to the psychologist Warren Simmons (whose report was received on the plea), the applicant presented as naïve, younger than his age and impressionable.
(q) Third, he pleaded guilty at an early stage. No witnesses were cross-examined at the committal hearing. Mr Margetts was not even on the list of those who were to be called.
(r) Fourth, he was remorseful, which was demonstrated by his remarks in the police interview and his early plea of guilty.
(s) Fifth, counsel submitted that the applicant had very good prospects of rehabilitation. That submission was supported by the foregoing matters as well as the following. First, the applicant recognised that his behaviour was inappropriate. Second, he enjoyed the support of his family and his long-term girlfriend. Third, he had no significant problems with substance abuse and no significant anti-social personality traits. Fourth, while he had a history of suicidal thoughts and attempts (all, bar one, had occurred before the offence), he was now being treated on anti-depressant medication. Finally, while he struggled to find employment after leaving school in Year 11, he had worked in various unskilled jobs.
While counsel first submitted that a community correction order (‘CCO’) would be open, he appeared to abandon that submission when the judge described it as ‘far-fetched’.
Counsel then submitted that a period of detention in a youth justice centre would be appropriate. This was so, he submitted, given the applicant’s age, immaturity and impressionability, and the psychologist’s further opinion that the applicant was ‘not particularly worldly’ and ‘would be at some risk in an adult custodial environment’. The judge suggested that three years’ detention, which is the maximum period of detention under such an order,[10] might not be appropriate for the crime. His Honour noted that, if he did impose a prison sentence, he could recommend that the applicant serve some of that sentence in youth detention.[11]
[10]See Sentencing Act1991, s 32(3)(b).
[11]As I have mentioned at [3], this is what his Honour did. The Court was told on the application that the applicant has indeed been serving his time in youth detention and is expected to remain there until the expiry of his non-parole period.
The prosecutor submitted that, while it is one thing to ‘inflict a coward’s punch with sufficient force to knock someone out, … to continue it while the person is helpless and on the ground even for a short period … in the manner that was done here [is] just a disgrace’. He also submitted that, while, ‘because of [the applicant’s] status as a young offender, [the court] has to have particular regard to rehabilitation’, nevertheless, ‘general deterrence looms large here’ and ‘must eclipse rehabilitation in a case such as this’. He also submitted that denunciation and just punishment were relevant sentencing purposes.
Ground 1: misapplication of principles concerning young offenders?
Ground 1: The sentencing of the applicant miscarried because the judge misapplied the principles relevant to the sentencing of young offenders.
I turn now to Ground 1.
The judge’s reasons
Early in his reasons for sentence, the judge said this:
It is a nightmare of every parent of young men to receive a phone call in the night to tell them that their son is in hospital after an assault. Alternatively, it is a similar nightmare for the police to ring and say your son is in the police cells after having been involved in an assault.[12]
[12]Reasons [3].
Later, after setting out a summary of the offence and noting that the applicant had told police that he did not know Mr Margetts was unconscious after the initial blow, the judge said that ‘[i]t matters not, as it would have been obvious to [the applicant] … that [the victim] was in a defenceless vulnerable position lying on the floor as a result of [the] head punch’.[13] Further, his Honour said that, ‘[i]nstead of desisting after the first punch, [the applicant] inflicted further punishment [and] at the very least, paid very little regard to the condition [Mr Margetts] was in on the floor after the first blow’.[14]
[13]Ibid [6].
[14]Ibid.
A little later, the judge said that ‘[g]eneral deterrence and the court’s denunciation are paramount sentencing considerations here’.[15] His Honour also said that, ‘[b]ecause [the applicant has] no other criminal background and the spontaneous nature of [his] actions, specific deterrence … plays a lesser role than it otherwise would’.[16] Then, after referring to current sentencing practices, the judge said this:
[15]Ibid [13].
[16]Ibid.
I accept that you have good prospects of rehabilitation. You have family support. You have expressed appropriate remorse and you have pleaded guilty. You have no other criminal history. However, after spending time in gaol, it is going to be a challenge for you to resume your normal life and put all this behind you. I sincerely hope you can do that.
Your age is an important consideration here, and I have carefully read the relevant principles as set out in the leading case on youthful offenders of Azzopardi …
After a compilation of the principles that I should consider at paragraph 44 the court said:
The general proposition which flows from these authorities is that where the degree of criminality of the offences requires the sentencing objects 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.
That is the way I have approached it here. It is for those reasons, because of the seriousness of the matter, that, in my view, a community corrections order, upon a consideration of the leading authority of Boulton in respect of that, is not the appropriate sentencing outcome here.
Also in relation to the submission of sentencing you to a youth justice order, in my view the head sentence there, or the maximum sentence I can impose there of three years, is not appropriate in relation to a consideration of the seriousness of the offending here.[17]
The parties’ submissions
[17]Ibid [13] (emphasis added) (citations omitted).
Mr Hallowes SC, who appeared for the applicant in this Court (but not on the plea), submitted that this was not the type of case in which the weight to relative youth should be reduced. While the offence was serious, even ‘nasty’, it was not so grave as to displace relative youth and rehabilitation as the primary or paramount considerations in sentencing. The assault lasted only four seconds, did not involve the use of a weapon or the causation of (or an intention to cause) catastrophic injuries and was not committed in company. Further, the applicant had no prior or subsequent convictions and was found to have good prospects of rehabilitation.
Mr Boyce SC, who appeared for the Director in this Court (but not on the plea), submitted that it was open to the judge to reason as he did. The applicant’s attack was such that he had to be removed from an unconscious and helpless Mr Margetts. Further, Mr Margetts suffered quite serious injuries, including fractures to his cheekbone and eye socket, which required surgery. Counsel for the applicant at the plea had also made the following concession:
So of the cases which I’ve listed there [i.e. in the written submission], of course, Lawrence[18] indicates that — as you’ve already indicated, that of course general deterrence in this matter requires — and I concede that, that his youth and rehabilitation might take a back seat to general deterrence. But of course his prospects of rehabilitation are very good … and so must ameliorate the sentence somewhat.[19]
Analysis
[18]DPP v Lawrence (2010) 10 VR 125 (‘Lawrence’).
[19]Emphasis added.
In fact, in his written submission filed on the plea, to which he was referring in the foregoing oral submission, counsel for the applicant had submitted:
Youth of offender, particularly a first offender, is a primary consideration Rehabilitation is usually far more important than general deterrence Not to be sent to an adult prison if [that] can be avoided
Mills
Concede
Mills — general propositions
Offender’s youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant … much less significance than they would have been with a less serious offence.
DPP v Lawrence
… 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.
Azzopardi v The Queen[20]
[20]Citations omitted.
It is as well to set out in more detail some of the passages from the judgments in Mills,[21] Lawrence and Azzopardi[22] to which counsel or the judge made reference. Thus, in 1998, in Mills, Batt JA (with whom Phillips CJ and Charles JA agreed) accepted the following general statements of principle as correct:
i. Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
ii. In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s 5(4) of the Sentencing Act.)[23]
[21]R v Mills (1998) 4 VR 235 (‘Mills’).
[22]Azzopardi v The Queen (2011) 35 VR 43 (‘Azzopardi’).
[23]Mills (1998) 4 VR 235, 241.
Six years later, in Lawrence, Batt JA (with whom Winneke P and Nettle JA agreed) said this:
Further, as the cases make clear, with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender’s youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright, take a ‘back seat’ to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that, as this very case exemplifies, the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both. Here, the respondent was in any event only on the borderline of youthfulness and moreover was not by any means a first offender. For these reasons I agree with Ms Pullen’s submission that her Honour did err in her statement that the respondent’s rehabilitation was required to be foremost in the mind of a sentencing court.[24]
[24]Lawrence (2004) 10 VR 125, 132 [22] (citations omitted).
Then, in 2011, in Azzopardi, after considering Mills, Lawrence and several other decisions dealing with young offenders, Redlich JA (with whom Coghlan AJA and Macauley AJA agreed) said this:
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.[25]
[25]Azzopardi (2011) 35 VR 43, 57 [44] (citations omitted); see also 53–7, [34]–[43].
Consistently with those statements of principle, it seems clear enough that counsel on the plea conceded that the offence was of sufficient seriousness that the applicant’s ‘youth and rehabilitation might take a back seat to general deterrence’. At the same time, counsel submitted, first, that, because the applicant’s prospects of rehabilitation were so good, his relative youth must still ‘ameliorate the sentence somewhat’ and, second, that this was certainly not a case in which it could be said that ‘the mitigatory consideration of youth [is to] be viewed as all but extinguished’.
In my opinion, counsel’s submissions, and concessions, on the application of matters of principle were consistent with the approach the judge took. For, when read as a whole, it is plain that, on the one hand, his Honour considered the applicant’s age to be ‘an important consideration’ but that, on the other, he also considered that the gravity of the offence required that general deterrence and denunciation ‘become more prominent in the sentencing calculus’,[26] so as to be the paramount sentencing purposes, and ‘that the weight to be attached to youth [was] correspondingly reduced’.[27]
[26]Ibid.
[27]Ibid.
Further, I accept Mr Boyce’s submission that, in the circumstances of this case, it was open to the judge to reason in that manner. The offence had some very nasty features. First, the applicant initially struck Mr Margetts to the head so hard as to knock him out. Second, the blow came from behind or from the side. Either way, he was caught unawares. Thirdly, the assault continued while Mr Margetts was in a helpless position. Fourthly, it seems that the assault ceased only when others intervened. Fifth, while the injuries suffered were not catastrophic or, perhaps, not even in the ‘really serious’ category, they were still quite serious, involving fractures to Mr Margetts’s face. Sixth, despite the applicant’s assertions in his interview, his plea of guilty accepts that he intended to cause serious injury, and the nature of his behaviour implies an intention to inflict the types of injury caused. Seventh, the offence has had a significant impact on Mr Margetts’s life. It is not just the pain and inconvenience that comes with injuries of the type he suffered but, in his particular case, those injuries have also impacted in a serious way on his career plans, at least in the immediate term.
In coming to this view, I am aware that the types of case in which reduced weight is given to youth usually involve even more serious offending, or significant criminal histories, or lesser prospects of rehabilitation, or a combination of these factors. I am also cognisant of the remarks of Nettle JA (with whom Winneke P and Batt JA agreed) in R v Huynh, where his Honour said this:
In my opinion that information [contained in a psychological report] confirms the propriety of the judge’s sentencing disposition [which included a sentence of eight years’ imprisonment for an offence of intentionally causing serious injury]. This is not the case of a youthful first-time offender, or even of a youthful offender with more than one prior [conviction], but for whom rehabilitation is still to be regarded as more important than specific or general deterrence.[28] It is a case in which the nature of the offences committed, coupled with the appellant’s repeated and continuing failure to learn from previous mistakes, calls for strong punishment.
So to say is not to deny the proposition articulated by Batt JA in R v Mills that young offenders warrant special consideration. So long as there is a realistic prospect of a lenient sentencing disposition facilitating the processes of rehabilitation, that is likely to remain of the first importance. But it is to say, as Batt JA later did in R v Teichelman,[29] that each case depends upon its own facts, and that there are cases of youthful offenders where the need for denunciation, punishment and specific deterrence are paramount.[30]
[28]R v Mills [1998] 4 VR 235; cf R v Chaffey [1999] VSCA 12; R v Bell [1999] VSCA 223.
[29][2000] VSCA 224.
[30][2004] VSCA 156 [17]–[18] (‘Huynh’) (emphasis added) (citations in original); see also [15]–[16], [18]–[20].
I think it is safe to say that the judge in this case considered that there was ‘a realistic prospect of a lenient sentencing disposition facilitating the processes of rehabilitation’. Indeed, that his Honour fixed a relatively short non-parole period, and that he recommended that consideration be given to the applicant’s being transferred to a youth justice centre to serve his sentence, both suggest as much.
But the view that a more lenient sentence might have facilitated the processes of rehabilitation does not mean that relative youth had to be the primary or paramount consideration in sentencing; nor does it deny the view that general deterrence and denunciation were paramount considerations or that the weight to be accorded to relative youth had to be ‘correspondingly reduced’. Instead, given the grave features of the offence, I think it was open on the evidence, and consistent with principle, for the judge to reason as he did.
Also, it must be remembered that his Honour still accepted that the applicant’s youth was ‘an important consideration’.[31] Indeed, in my opinion, given the applicant’s age, prior good character and his good prospects of rehabilitation, he would have been wrong to have held otherwise. But he did not regard the weight to be given to youth as extinguished or even nearly so. Rather, it remained an important consideration but one that, because of the gravity of the offence, ‘took a back seat’ to or was not as important as general deterrence and denunciation in the sentencing calculus. In my view, that approach was open to the judge.
[31]Reasons [13].
Accordingly, despite the attractive way in which the submissions on behalf of the applicant were put in support of Ground 1, I do not consider this ground to be reasonably arguable and I would not uphold it.
Ground 2: manifest excess
Ground 2: The sentence imposed was manifestly excessive.
Particulars: (a) plea of guilty; (b) manifest and immediate remorse; (c) youth; (d) no prior convictions; (e) no subsequent or pending matters; (f) impressive character references; (g) working full-time; (h) long-term, stable relationship; (i) family support; (j) first term of imprisonment; (k) good prospects of rehabilitation.
I turn now to Ground 2.
Parties’ submissions
Mr Hallowes submitted that, in view of the matters listed in the particulars to this ground, both the head sentence and the non-parole period were manifestly excessive. He placed particular emphasis on the applicant’s relative youth, prior good character, early plea of guilty, remorse and good prospects of rehabilitation. He also reiterated his submission that the offence, whether called ‘nasty’, lasted only four seconds, did not involve the use of a weapon or the causation of (or an intention to cause) catastrophic injuries, was not committed in company and involved at least some provocative behaviour on the part of Mr Margetts.
In seeking to make good his submission, counsel also referred in particular to two recent cases as relevant comparators: Sianas v The Queen;[32] and May-Jordan v The Queen.[33] Mr Sianas, who was aged 18 at the time of the offences and 20 when sentenced, pleaded guilty to intentionally causing serious injury and armed robbery. Mr Sianas, completely unprovoked, kicked a 17-year-old youth in the head, struck him to the forehead with a beer bottle (causing it to break) and thrust the broken bottle into his chin, below his lip. As a result, the victim suffered a jagged injury to his forehead, and a laceration extending from his lip downwards. The injuries were repaired by plastic surgery but have left lifelong scarring. As for the second offence, Mr Sianas picked up another bottle, put another 17-year-old in a headlock, while threatening him with the bottle, and demanded and stole money from him. Mr Sianas had several prior appearances in the Children’s Court for offences of violence. He was sentenced to 20 months’ imprisonment on the first charge and 12 months’ imprisonment on the second charge, with two months to be served cumulatively, making a total effective sentence of 22 months’ imprisonment. The judge also fixed a CCO of three years’ duration. The Court refused Mr Sianas’s application for leave to appeal against sentence. Osborn JA remarked that, even if there were material errors in the judge’s reasons for sentence, there would be no reasonable prospect that the sentence would be reduced ‘having regard to the gravity and viciousness of the offending and [Mr Sianas’s] criminal history’.[34]
[32]Sianas v The Queen [2016] VSCA 84 (‘Sianas’).
[33]May-Jordan v The Queen [2017] VSCA 30 (‘May-Jordan’).
[34]Sianas [2016] VSCA 84 [43].
Similarly, Mr May-Jordan, who was aged 18 at the time of the offences and 19 when sentenced, pleaded guilty to intentionally causing serious injury and an unrelated theft. He came to believe that a group of three youths had been spreading rumours about his girlfriend (‘C’) and that one of them had tried to ‘pick her up’ some weeks earlier. Mr May-Jordan followed the group to a McDonald’s restaurant. C told him to stop, but he would not listen. She left. Mr May-Jordan was armed with a kitchen knife, which he hid up his sleeve. He asked one of the group, a 16-year-old boy, for the time. He extended his hand to the boy and asked his name. They shook hands. As the boy walked away, Mr May-Jordan stabbed the boy in the arm and then fled on foot. The single stab wound passed through the boy’s arm and severed an artery, causing massive blood loss and nerve damage. He was airlifted to hospital for surgery. There was concern that he would lose his arm. He was unable to complete a work experience placement, can no longer engage in activities he previously enjoyed (such as riding his motorbike or playing football), and has difficulty completing simple tasks (such as tying his shoelaces). His fine motor skills have been compromised. He continued to undergo physiotherapy and occupational therapy. Mr May-Jordan had a prior criminal history of offending involving violence. He was also on bail at the time of the offending. The judge imposed a sentence of three years and 10 months’ imprisonment, with a non-parole period of two years. The Court refused Mr May-Jordan’s application for leave to appeal against sentence.
Mr Hallowes submitted that the foregoing cases were indicative that the sentence imposed on the applicant was outside the range of sentences reasonably open to the judge. Unlike the applicant, both Mr Sianas and Mr May-Jordan, who were similar in age, had committed arguably worse offences with weapons and had prior criminal histories for violence, and yet had received lesser sentences than the applicant.
Mr Hallowes also addressed three cases discussed by Weinberg JA in his reasons for refusing leave to appeal: Kalepo v The Queen;[35] Chol v The Queen;[36] and Webster v The Queen.[37] He pointed out that, as well as other differences, all three cases concerned offenders with prior convictions for violence and much lesser prospects of rehabilitation than the applicant. Further, in two of those cases, the offenders were not young and, in the other, the offender, while 20 at the time of the offence, had a significant prior and subsequent criminal history for offences of violence and, by reason of his own behaviour (which led to two convictions for failing to honour his bail), had caused a delay of over three years until sentence, at which time he was aged 23.
[35]Kalepo v The Queen [2016] VSCA 220 (Weinberg and Osborn JJA) (offender aged 20 at the time of the offence, 23 at sentence; plea of guilty to recklessly causing serious injury; punched victim twice to the face in an unprovoked attack; victim fell to the ground, hit his head on a concrete footpath and was rendered unconscious; victim suffered a broken jaw, requiring surgery to insert a plate; also suffered ongoing pain, numbness and psychological effects; offender had some prior and subsequent convictions for violence; sentenced to four years’ imprisonment, as part of a total effective sentence of four years and two months’ imprisonment with a non-parole period of two years and two months; the Court refused leave to appeal against sentence).
[36]Chol v The Queen [2016] VSCA 252 (Maxwell P, Redlich and Weinberg JJA) (‘Chol’) (offender aged 29 at sentence; plea of guilty to intentionally causing serious injury; victim pushed offender gently, who then followed victim, grabbed him by the shoulder, spun him around and punched him; offender threw more punches as victim tried to walk away; victim swung a punch at offender, who then punched victim a number of times to the head; victim fell as he tried to get away; offender then knelt on top of victim and punched him at least 10 times to the head; a female held the victim’s legs down while the offender then kicked the victim to the head twice; victim suffered fractures to the right eye socket and the right temporal bone (base of the skull), requiring surgery, and reduced movement to both eyes; also suffered ongoing discomfort, impotence and psychological effects; offender had prior and subsequent convictions for violence and a history of ice use, which affected him at the time of this offence; poor prospects of rehabilitation; background of great deprivation and disadvantage; sentenced to four years and nine months’ imprisonment with a non-parole period of three years and three months; but for substantial delay between offence and sentence, a substantially longer sentence would have been warranted; the Court refused leave to appeal against sentence).
[37]Webster v The Queen [2016] VSCA 329 (Redlich JA and Beale AJA) (offender aged 38 at time of appeal; plea of guilty to intentionally causing serious injury; offender went to golf course looking for his dog; argued with the 70-year-old victim and his brother and another; victim told offender to ‘piss off’; offender threw a tree branch, hitting victim on shoulder; victim chased offender away with a golf club; offender returned later with a golf club and struck victim to left side of his head, knocking him to the ground; offender was chased away by another golfer, who struck him with a golf club; victim suffered a depressed fracture to his skull, requiring surgery; also suffered significant ongoing psychological effects; offender had prior convictions for violence; sentence to seven years’ imprisonment with a non-parole period of five years and six months; the Court dismissed the appeal against sentence).
Mr Boyce submitted that the sentence imposed on the applicant was open to the judge. He emphasised the gravity of the offence, which was measured by the applicant’s gross overreaction to a trivial slight; the seriousness of the injuries suffered by Mr Margetts; the impact those injuries have had on him; the fact that the initial punch came from behind (or the side), catching Mr Margetts unawares; the force of that blow, which knocked him unconscious; and the applicant’s continued and repeated punching to the head and face while Mr Margetts was unconscious and vulnerable on the floor. He submitted that, despite the applicant’s relative youth, prior good character and good prospects of rehabilitation, the gravity of the offence was such that, as the judge found, general deterrence and denunciation were paramount sentencing purposes.
Mr Boyce also submitted that neither of the decisions to which Mr Hallowes referred suggested that the sentence imposed on the applicant was manifestly excessive. In particular, he submitted that, despite the use of weapon, the offence in Sianas (as serious as it was) did not place the victim ‘in such close or proximate danger of serious, permanent or catastrophic injury (or worse) as [in the applicant’s case]’. The submission continued:
The brain, and thus the head, possesses a special vulnerability when it comes to the threat of injury and the risk that such injury might cause considerable impairment to normal, everyday, functioning. Here, the applicant belted the victim forcefully about the head with a closed fist. He did so with considerable power. Significant facial fracturing was caused. He didn’t stop, even after the victim had been rendered unconscious. The applicant had to be pulled away by others in order that the attack cease.
It was also submitted that there was some inherent difficulty in comparing the sentence imposed on the applicant and the combined sentence of imprisonment and a three-year CCO imposed in Sianas, although the latter sentence ‘is not to be thought … to be less heavy simply by reference to the comparative lengths of imprisonment.’
Mr Boyce accepted that the offence committed in May-Jordan possessed a level of gravity that, objectively, more closely resembled the gravity of the applicant’s offence. He also accepted that both Mr Sianas and Mr May-Jordan had ‘disturbing’ criminal histories whereas the applicant had none.
But he submitted that, when regard was had to all relevant considerations, including current sentencing practices as revealed in cases such as Sianas, May-Jordan, Chol and Nash, the sentence ‘does not stand out so starkly as against [others] so as to allow for the conclusion that … the sentence here was manifestly excessive’.
Analysis
While the sentence is, I think, quite firm for an immature 19-year-old of prior good character, who pleaded guilty early, showed remorse and has good prospects of rehabilitation, it is not manifestly excessive. Nor do I think it is reasonably arguable that that is so. The offence, which carries a maximum penalty of 20 years’ imprisonment, was very serious. As the prosecutor submitted on the plea, the applicant’s decision to punch the victim unawares and so hard as to knock him out was bad enough; but to continue punching him to the face and head, while supine and unconscious, made this a particularly nasty offence. The injuries also were quite serious and the impact on Mr Margetts, while perhaps not permanent, has been very significant. In my view, the offence was of an order of gravity that, had the applicant not been so young and had he not had been of prior good character with good prospects of rehabilitation, a substantially heavier sentence could have been imposed.
That another judge might have synthesised and weighed all relevant considerations differently and imposed a shorter prison sentence — or even, say, a three-year period in youth detention — does not mean that this judge imposed a sentence that was outside the range open to him in the sound exercise of a discretionary judgment. In my view, it was open to his Honour to weigh all relevant matters as he did and impose the sentence he imposed.
In the result, I would not uphold Ground 2 either.
Conclusion
It follows that I would refuse the application.
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