Marshall v The Queen
[2011] VSCA 130
•10 May 2011
COURT OF APPEAL
S APCR 2010 0182
| DAVID MARSHALL |
| v |
| THE QUEEN |
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JUDGE: | ASHLEY and BONGIORNO JJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 10 May 2011 |
DATE OF JUDGMENT: | 10 May 2011 |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 130 |
JUDGMENT APPEALED FROM: | (Unreported, County Court of Victoria, Judge Nixon, 27 May 2010) |
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CRIMINAL LAW – Sentence – Causing serious injury intentionally – Appellant trained in martial art – Whether sentencing judge misdirected himself as to the effect of delay – Whether sentencing judge erred in finding that appellant’s culpability was high – Whether sufficient weight given to prospect of rehabilitation – Consequences of absconding on bail – Manifest excess – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C G Mandy | Doogue & O’Brien |
| For the Crown | Mr S Cooper | Mr C Hyland Solicitor for Public Prosecutions |
ASHLEY JA:
David Marshall appeals by leave against sentence passed upon him in the County Court on 27 May 2010. On a count of causing serious injury intentionally, the offence having been committed on 16 January 2004, the appellant was sentenced, on a plea of guilty, to three years and six months’ imprisonment, with a non-parole period of 18 months. The judge stated that if the appellant had been convicted after trial he would have sentenced him to four years and three months’ imprisonment, with a non-parole period of two years and three months.
The appellant relies upon the following grounds:
Ground 1
The Learned Sentencing Judge erred at law in misdirecting himself as to the effect of the delay between the commission of the offence and the plea hearing.
Ground 2
The Learned Sentencing Judge erred at law in finding that the Appellant’s culpability was high and accordingly gave too much weight to general deterrence and denunciation.
Ground 3
The Learned Sentencing Judge erred at law in failing to give sufficient weight to the Appellant’s rehabilitation.
Ground 4
The sentence imposed is manifestly excessive, both as to the head sentence and the non parole period.
Circumstances of the offending
The judge summarised the circumstances of the offending as follows:
7On Friday 16 January 2004 the victim, Ben Willison, and three friends met in the city, and they then sat in the Queen Victoria Gardens, where they had some drinks, before they walked back to the Flinders Street Station in order to catch a train to Mitcham. On their arrival at Mitcham Station they walked in a group towards the Maroondah Highway. The three others in the group crossed the highway, while Mr Willison stopped on the median strip between the highway and the service lane in order to tie his shoelaces. A silver Honda Civic motor car was seen to do a U-turn. That car stopped in the service lane. You, Mr Marshall, alighted from the driver’s seat of the car and accused the group of damaging your car; those allegations were denied.
8While Mr Willison was bending down to tie up his shoelace, you walked over to him and kicked him to the head. He was seriously injured and taken by ambulance to the Box Hill Hospital where he was observed to have sustained fractures of the orbital floor, a comminuted fracture of the left maxillary antrum wall, a fracture of the left zygomatic arch, and bruising, numbness and swelling to the left side of his face, including swelling and bruising around the left eye.
9Mr Willison underwent surgery for an open reduction and internal fixation of his fractured left cheekbone, and a metal place was used to stabilise the left cheekbone in its reduced position.
The appellant was trained in a martial art. In a record of interview made on 6 September 2004 he said that he had trained in an aggressive street version of Thai Kick Boxing for five years; and that he was not trained to fight in the ring, but on the streets.
The victim was aged 18 at the time of the attack. In a victim impact statement, made in May 2010, he said that his life had ‘spiralled out of control’ until late 2008, and that the years since the incident had been a real struggle – with recurrent sinus infections and bad pain in the area where a metal plate had been inserted in his face. He had suffered psychologically. But things had improved since late 2008. He (now) had a steady girlfriend and a respectable job.
Prior and subsequent offending
The appellant had been before Magistrates’ Courts on seven occasions between April 1997 and July 2003. He had been convicted, inter alia, of robbery (May 1997), assault with a weapon (August 1997), and unlawful assault (June 2003 – four charges). He had sustained immediate imprisonment in May 1997 following breach of an intensive corrections order; and again for breach of a sentence wholly suspended, in August 1997.
The appellant offended again in the period between 16 January 2004 (the day of the instant offending) and 22 July 2005. Twenty two charges were dealt with on 12 May 2009 in a consolidated hearing in the Magistrates’ Court. The charges included: (1) driving in a manner dangerous (two charges); (2) theft of a motor vehicle; (3) unlicensed driving (two charges); (4) criminal damages; (5) obtaining property by deception; and (6) failing to answer bail (five charges). There were two dispositions. For some of the offences, an aggregate period of six months’ imprisonment, wholly suspended for two years, was imposed. For the other offences, a community based order was imposed.
At time of sentence, the appellant had not breached either of the orders made in May 2009. Indeed, he had not offended at all since July 2005, a matter which assumed considerable significance on the plea hearing below.
Absconding
As at July 2005, the appellant had been charged with an offence arising out of the January 2004 attack, and with offences arising out of his criminal conduct between January 2004 and July 2005. He absconded, breaching bail. He went to Western Australia, only returning in 2008.
In July 2008 he was arrested and remanded in custody. After about a month, he was granted bail. He remained at large until he was sentenced in May 2010.
Employment
After his release on bail in 2008, the appellant obtained full time work as a furniture removalist. His employer provided a generous reference on the plea. The appellant’s intention, however, was to return to Western Australia when the present matter was brought to an end.
Personal circumstances other than as already described
The appellant was born on 2 December 1979, and thus was aged 24 at time of offending and 30 at time of sentence. The judge accepted that his upbringing had been difficult. He had left school at the end of year 10 and thereafter, to age 25, had mainly worked in unskilled jobs. He had fallen in with bad company, and taken to abusing alcohol and a variety of illegal drugs. He had engaged in antisocial behaviour which led to his court appearances.
In a letter to sentencing judge, the appellant stated that at the time of the present offending he was so used to violence that it was a way of life for him, and he was unable to control his emotions.
The appellant’s flight to Western Australia in 2005 led, in time, to very positive developments. He met a woman whose ultimatums led him to cease using illicit drugs and later abusing alcohol. After returning to Victoria, he successfully undertook anger management and behaviour change programs. The co-ordinator of the programs provided a reference to the sentencing judge. It described the appellant’s concerted effort to successfully complete the different programs.
Sentencing remarks
The judge referred to all the matters which I have summarised. He also expressed conclusions which are of particular relevance to the matters argued on the appeal.
Characterisation of the offending
The judge said this:
15Yours was a vicious, violent and cowardly attack on a defenceless young man who had done nothing to provoke you, and who was merely doing up his shoelaces at the time he was assaulted. This was most certainly not a case involving excessive self-defence. You, a man trained in martial arts, delivered one savage kick to Mr Willison’s face which caused multiple facial fractures, and which resulted in physical pain and suffering, and psychological harm and damage as described in his most recent victim impact statement.
16This is yet another example of how a single blow, in this case one kick, committed here on impulse, can cause serious injury.
and
39I referred earlier to the seriousness of the crime which you committed and the high maximum penalty of 20 years’ imprisonment which has applied since 1997 when Parliament substantially increased the maximum penalty to its present level. I have also considered current sentencing practices for this crime and I regard your culpability as high.
Effect of delay
21[Your counsel] relied very strongly on the long delay which had occurred since this offence was committed as a very important mitigatory matter, and I acknowledge that the man whom I am required to sentence today is a very different person to the man who brutally kicked Mr Willison in January 2004. [Counsel] conceded that you had absconded from the jurisdiction.
22In one sense delay is somewhat of a two-edged sword. As is the case here, it may enable an offender’s rehabilitation to progress, but on the other hand, given the offence seriousness, the prospect of a sentence which required the imposition of an immediate term of imprisonment was hanging over your head. Delay is an important consideration in the sentencing process as the President of the Court of Appeal has said, and I quote His Honour’s words:
‘The relevance of the delay lies rather in the effect which the lapse of time, however caused, has on the accused. Delay constitutes a powerful mitigatory factor. In particular, it focuses attention on issues of rehabilitation and fairness.’
23To [a psychologist whose] report is in evidence, you stated that there were two reasons for going to Western Australia. You wanted to get away from the police in Victoria and also avoid drug deals and dealers.
24It is an inescapable fact that three years of the long delay which has occurred was due to the fact that you absconded from Victoria. However, that delay has enabled you to make strenuous efforts to rehabilitate yourself and endeavour to turn your life around.
Rehabilitation
37All in all, I accept that you have taken giant steps down the path of rehabilitation and one of the prime aims, after all, of the criminal justice system is to rehabilitate an offender. You are well-motivated, according to [the psychologist’s] opinion, to continue the progress that you have already made.
and
40I have paid particular regard to the steps that you have taken to rehabilitate yourself since you met your fiancée in Western Australia. I regard your prospects for rehabilitation in the future, and I repeat what I said earlier in much the same terms, that the person I must sentence today is a different person than the man who committed this savage assault on Mr Willison.
A wholly suspended sentence?
His Honour was pressed by appellant’s counsel to impose a wholly suspended sentence. Reliance was placed upon the steps which the appellant had taken to rehabilitate himself, the delay between offending and sentencing, the unsatisfactory circumstances of the appellant’s upbringing, and his (late) plea of guilty.
His Honour felt unable to accede to the submission. He said this:
41… to accede to [counsel’s] submissions as to sentence would, in my judgment, fail to give proper weight to the concepts of general deterrence and denunciation, let alone adequately reflect the gravity of the offence given the circumstances in which it was committed. Whilst I regard personal deterrence as of somewhat lesser weight in your case because of the steps that you have taken to rehabilitate yourself, the sentence imposed must be such as to deter others who may be minded to engage in an act of violence, particularly in a public area, and it must also be seen to denounce this type of inane street violence.
42Having considered the matters to which I have referred at some length, I regard a wholly suspended sentence, which in any event is limited to three years’ imprisonment, as an inappropriate sentence in all the circumstances. However, I propose to allow a far greater than usual differential between the head sentence and the non-parole period to reflect the mitigatory matters to which I have referred.
Ground 1
This ground alleges specific error, rather than complaining that the judge attached too little weight to delay in the sentencing synthesis. Delay is, however, one of the circumstances relied upon in support of ground 4 – that is, the ground which alleges manifest excess.
It is not in doubt that the very fact of delay, regardless of its cause, is of relevance to the sentencing process.[1] It is of particular importance if the offender has taken steps towards rehabilitation in the period of delay. But there is also the fact that the offender has had the matter hanging over his or her head during that period. On the other hand, if an offender has absconded from bail, such rehabilitation as is demonstrated will be accorded less significance. One way of achieving the balancing of considerations is to reflect the rehabilitation in a shorter non-parole period that would otherwise have been imposed.[2]
[1]R v Merrett, Piggott and Ferrari (2007) 14 VR 392.
[2]R v Berry [2009] VSCA 219.
Counsel for the appellant submitted that there was a period of more than six years between offending and sentence. That was a long period, of which only half was related to the appellant absconding. Further, during the last five years before sentence the appellant had not offended; and over that time he had taken big steps towards rehabilitation.
Counsel further submitted that the judge’s reference to delay being ‘something of a two edged sword’ was a misdirection. Delay always flows in favour of an accused; the only question is whether it is to greater or lesser extent.
In my opinion, the asserted misdirection was not of that character. Both of the matters which the judge mentioned in the context of delay went in the appellant’s favour – his rehabilitation, and the fact that the matter had been hanging over his head. Description of those matters as a ‘two edged sword’ was not apt. But it is clear, in my view, that his Honour treated each of the aspects of delay favourably for the appellant. Indeed, immediately following the impugned remark, his Honour cited a passage from the reasons of Maxwell P in R v Merrett, Piggott & Ferrari[3] which affirms that delay, however caused, is a ‘powerful mitigatory factor’.
[3](2007) 14 VR 392.
Ground 2
This ground complains of specific error – viz, that the judge found that the appellant’s culpability was high. But, as with delay, counsel also submitted, in the context of ground 4, that the judge overweighed the appellant’s culpability.
The gist of the submissions on ground 2 was that the appellant’s culpability was not high. The offence was constituted by a single kick, unpremeditated and spontaneous.
The attack itself did involve a single kick. But that was only part of it. The attack was preceded by the appellant turning his vehicle around, parking it in the service lane of the Maroondah Highway, getting out, and crossing to the strip dividing the Highway and the median strip where the victim then was. A spur of the moment attack it was not. Moreover, the attack involved the evident application of a martial technique learned by the appellant. Further again, the victim could not have been expecting the attack. At the time, he was bending down to tie up a shoelace. It was not argued on the plea that the appellant’s partially exculpatory account, given in his record of interview, should be accepted as the basis for passing sentence.
As the judge said, this was a ‘vicious, violent and cowardly’ attack. It was not a case of excessive self-defence. I see no reason why, because the damage was done by a single kick, the judge should not have characterised the appellant’s culpability as high.
Grounds 3 and 4
These grounds may be considered together. Ground 3 alleges specific error; but the error is said to lie in the weighting given by the judge to the appellant’s rehabilitation – a matter relied upon in the complaint that the sentence was manifestly excessive.
It is unquestionable that the appellant had achieved a great deal by way of rehabilitation in the years between 2005 and 2010. This, together with the other significance of delay, was the most significant consideration telling in mitigation of
sentence. Other matters relied upon by appellant’s counsel were the appellant’s guilty plea (though late made), his (limited) admissions, his expression of remorse, his difficult upbringing, and his continuing family support.
I accept that a judge, notwithstanding the seriousness of the attack, and notwithstanding the seriousness of the injuries to the victim, might have imposed a sentence of imprisonment not exceeding three years, and might have suspended the whole of that sentence. Had I been the sentencing judge, I might well have done so. But I am not persuaded that either the head sentence or the non-parole period imposed was impermissibly high.
Conclusion
I would dismiss the appeal. I only add, not that it will be of any comfort to the appellant, that his counsel argued the matter with skill and care.
BONGIORNO JA:
I agree.
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