McLean v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0034

TYRAN MCLEAN	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 January 2023
DATE OF JUDGMENT:	3 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 6
JUDGMENT APPEALED FROM:	DPP v McLean (County Court of Victoria, Judge Dalziel, 4 March 2022)

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CRIMINAL LAW – Leave to appeal – Sentence – Sentence for recklessly causing serious injury, among other offences – Whether open to find injury was other than at lower end of the spectrum of serious injury – Assessment of seriousness of injury an evaluative judgment – Error not established.

CRIMINAL LAW – Leave to appeal – Sentence – Manifest excess – Whether judge had insufficient regard for mitigatory factor of applicant’s youth when sentencing – No error in finding youth carries less weight than if applicant first time offender or offending less serious – Leave to appeal refused.

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Counsel
Applicant:		Mr J Barreiro
Respondent:		Ms RL Harper and Ms R Barrett
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
T FORREST JA:

The applicant, who is 22 years of age, was sentenced by a judge of the County Court to a total effective sentence of 6 years and 6 months’ imprisonment. He seeks leave to appeal his sentence.
The applicant came to be sentenced on his plea of guilty to charges that were contained on two indictments. The first indictment contained a single charge of recklessly causing serious injury and related to an assault that occurred outside a licensed premises in the early hours of 26 September 2019. The second indictment contained a number of offences committed in 2021, when the applicant was on bail for the 2019 offence, involving trafficking in and possession of a drug of dependence, armed robbery, intentionally causing injury, committing an indictable offence on bail, contravening a conduct condition of bail and unlawful assault.
The sentence imposed by the judge was structured as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment K12569629.1
1	Recklessly Causing Serious Injury	15 years	5 years	Base
Indictment M10680285
1	Trafficking in a drug of dependence	15 years	3 years	1 month
2	Possession of a drug of dependence	1 year	1 month	Nil
3	Armed robbery	25 years	3 years	6 months
4	Intentionally causing injury	10 years	3 years	9 months
Summary offence 8	Committing an indictable offence on bail	30 PU or 3 months	2 months	1 month
Summary offence 9	Contravening a conduct condition of bail	30 PU or 3 months	2 months	Nil
Summary offence 12	Unlawful assault	15 PU or 3 months	2 months	1 month
Total Effective Sentence:		6 years and 6 months
Non-Parole Period:		4 years
Section 6AAA Statement:		Total Effective Sentence 8 years and 6 months Non Parole-Period 5 years

The 2019 incident

At about 1:00 am on 26 September 2019, the victim who was 20 years of age and his friends had been at a music event at a hotel and were waiting for an Uber on a busy street in Frankston. The applicant approached two young women who were with the victim. A brief discussion ensued. The victim was standing nearby with his hands in his pockets. After a short conversation, the applicant punched the victim to the right side of his jaw with his right fist. As the judge found, and as appears clearly from CCTV footage, the victim fell backwards, striking the top of his head on the concrete footpath. The very powerful blow was delivered with full force with the applicant winding up to make the blow.
The victim of this offence was unconscious for between eight to nine minutes. He was taken to hospital and, after scans, was discharged that night. He suffered pain and headaches. Some of his teeth were broken and his nose damaged.
The victim had some ongoing consequences including being affected by nosebleeds and intense headaches. His concentration was affected, as was his sense of safety and wellbeing.
Although there could be no issue of identity or that the victim was injured by the assault, the applicant proceeded to a committal at which the question of whether the injury was a ‘serious injury’ within the meaning of s 15 of the Crimes Act 1958 was explored. At the committal a doctor gave expert opinion to the effect that whilst there was no evidence that the victim’s airways were occluded, the potential was there, and that potential increased the longer a person was unconscious. The doctor considered that the risk of that occurring was very high, and that if a person presented to her having been unconscious for eight minutes she would consider that to be a medical emergency. She said a person can die within four to five minutes from lack of oxygen to the brain.
On being charged with the assault, the applicant was admitted to bail. The conditions of his bail included a curfew and a requirement that the applicant not attend any licenced premises or consume alcohol or illicit drugs.

The 2021 Offences

At 3:00 am on 3 April 2021 the applicant, a friend and the applicant’s 17 year old sister attended a strip club in King Street. Also present at the strip club was a group including DS, SS and a number of their friends.
During the evening the applicant’s sister struck up a conversation with DS and his friends. DS bought her a number of drinks. She offered to sell him cannabis. The applicant approached and showed DS and SS some cannabis in his satchel and the group left the premises to conclude the drug purchase.
DS and the applicant’s sister walked towards a nearby lane. Shortly after, the applicant followed them holding a knife. The applicant pushed DS up against the wall, struck him to the mouth and demanded money. The applicant stole $100. DS broke free and was soon joined by SS.
The applicant punched SS to the head causing him to fall. The applicant stood over him holding the knife. The applicant’s sister stole another $50 and a mobile phone from DS.
The applicant then approached DS again, dragged him by his jumper to an alcove and struck him again, in company with the applicant’s friend. The applicant was still holding his knife, and one of his blows caused a deep cut cross DS’s forehead, through his left eyebrow and across to his temple. DS was transported to hospital. He had sustained bruising and numerous lacerations to his face and head, including the significant cut over his left forehead. That cut required 32 stitches. It was a deep cut with consequential muscle damage, and he required surgery to enable him to fully close his left eye.
The applicant was detained by police shortly after and was found in possession of another knife, and some cannabis and cocaine.

The reasons for sentence

Having set out the details of the offending, the judge then addressed a number of matters.
The judge noted the applicant’s young age and referred to the evidence showing a troubled upbringing. The applicant’s father was violent towards the applicant’s mother, with psychotic episodes of serious violence. The applicant was exposed to drug use from an early age, with cannabis use starting when he was 13 and methylamphetamine from 15.
Although they involved appearances before the Children’s Court, the applicant had a relevant and detailed criminal history. The judge noted that his criminal history involved violence, drugs, dishonesty and driving offences. His prior findings of guilt include for one charge of recklessly causing serious injury and three charges of armed robbery.
The judge referred to a number of important matters in mitigation. First, the judge noted that the applicant was young, still developing mentally and had yet to fully develop his judgment and adult persona. The judge accepted that as a young person, the applicant was vulnerable stating that it is undesirable to put a young person in custody where negative influences can have a profound effect.[1]
[1]DPP v McLean (County Court of Victoria, Judge Dalziel, 4 March 2022) [37] (‘Reasons’).
The judge noted that these factors carried less force when the offending is serious and the offences are of a kind that may often be committed by young people. The judge noted that alcohol fuelled street violence is not uncommon and the applicant was ‘not a stranger to violent offending, having multiple prior matters for violence, and three prior findings of guilt for armed robbery’.[2]
[2]Ibid [38].
The judge described the plea of guilty as a ‘powerful factor’ in mitigation.[3] The judge noted the utilitarian benefit of the plea, and that the ‘discount’ on the sentence was all the greater by reason of the impact of the pandemic on the operations of the Court and the more onerous conditions that had arisen due to the pandemic.[4]
[3]Ibid [40].
[4]Citing Worboyes v The Queen [2021] VSCA 169.
The judge accepted that the plea reflected an acknowledgment of wrongdoing and that the applicant, when sober, regretted his actions.
In assessing the gravity of the 2019 offending, the judge considered a number of matters. The judge said that it was a random unprovoked attack on a person who had his hands in his pockets and was in no position to defend himself or avoid the impact of the blow. It was a powerful blow that rendered the victim unconscious. The judge noted that the applicant has a prior finding of guilt for a charge of recklessly causing serious injury in the Children’s Court which the judge was told had some similarities to the 2019 assault.[5]
[5]Reasons, [52].
Turning to the nature of the injury, the judge referred to the medical evidence at committal about the risks that arose when a person is unconscious with the risk that the airway will be occluded. The judge noted that the evidence of the expert was that the risk of occlusion of the airway was ‘very high’.[6]
[6]Ibid [53].
The judge noted that the victim recovered consciousness without suffering such an airway occlusion, and without medical intervention. The judge concluded:
I accept that the degree of seriousness of the injury is relevant under both limbs of the definition. The injury here was to the head, it caused unconsciousness for around 8 to 9 minutes and it presented a high risk of death. That did not occur, fortunately, but the risk was real. It is difficult to apply a tag such as low, medium or high to such an injury, and the focus in sentencing is not the label but the actual injury and its consequences. I accept that this injury is not at the highest end, but as an injury which endangered [the victim’s] life, I do not think it falls into the lower end of the spectrum of serious injuries.[7]
[7]Ibid [55].
The judge then referred to the need for general and specific deterrence.

Proposed Grounds of Appeal

If granted leave to appeal, the applicant would seek to advance two grounds of appeal:
Ground 1:The sentencing judge erred in failing to characterise Charge 1 on Indictment K12569629.1 as falling at the lower end of objective seriousness.
Ground 2:The individual sentences, orders for cumulation, total effective sentence and non-parole period are each manifestly excessive.
Particulars
The sentences were manifestly too long in light of:
(a)      The applicant’s youth;
(b)      The objective seriousness of the offences; and
(c)      The utilitarian value of the applicant’s plea of guilty.
Under cover of the first proposed ground, the central line of attack was on the judge’s finding as to the seriousness of the injury sustained by the victim of the 2019 assault. The applicant submits that it was not open to the judge to find that the injury was other than at the lower end of the spectrum of serious injury. He says that the judge’s finding was not open in circumstances where there was no bleeding on the brain, no ongoing concussion, he was discharged from hospital on the day of admission, there were no significant ongoing effects and although there was the possibility that the victim’s airways may have been occluded when he was unconscious that risk did not eventuate.
We reject that submission.
The applicant was charged with recklessly causing serious injury. Section 15 of the Crimes Act1958 relevantly defines a ‘serious injury’ to mean:
an injury (including the cumulative effect of more than one injury) that—
(i) endangers life; or
(ii) is substantial and protracted …
The prosecution set out its case on the first limb of the definition. That was the basis on which the applicant pleaded guilty, having contested a committal that was largely concerned with the nature and extent of the victim’s injury.
In Sarjeant v The Queen; Garratt v The Queen[8] this Court held that the time for assessment of seriousness is the time the injury is sustained.[9] The focus of the relevant limb of the definition is on an injury that, at the time it is inflicted, places the life of the victim at risk. Such an injury does not cease to be a serious injury because some intervention such as medical assistance prevents the risk materialising even where there is little or no ongoing damage. As explained by this Court in Sarjeant, the time of assessment of seriousness is not postponed to await the unfolding of the consequences of the particular injury for the particular victim, and the determination of seriousness does not depend on contingencies such as the timeliness of medical intervention in the particular case.[10]
[8][2020] VSCA 45 (‘Sarjeant’).
[9]Ibid [43] (Maxwell P, T Forrest and Emerton JJA).
[10]Ibid [42] (Maxwell P, T Forrest and Emerton JJA).
This construction of the provision is supported both by the language and extrinsic material. The Explanatory Memorandum for the amending bill said:
The new definition of serious injury is an injury (including the cumulative effect of more than one injury) that endangers life or is substantial and protracted. This replaces the current reference to a serious injury including ‘a combination of injuries’. The new definition raises the threshold for ‘serious injury’. Under the new definition, an injury need not be permanent to be considered ‘serious’. A broken jaw or a broken leg may constitute a ‘serious injury’ under this definition. A very short-term life-endangering injury would also constitute a ‘serious injury’.[11]
[11]Explanatory Memorandum, Crimes Amendment (Gross Violence Offences) Bill 2012, 3.
There is no doubt that the seriousness of the injury can be an important matter in sentencing. Yet it must be accepted that the concept of ‘serious injury’, even in its current form which was intended to narrow the scope of what constituted a serious injury when compared to earlier forms of the legislation,[12] covers a potentially wide range of injury. To place a particular example within the spectrum of potential injuries is by no means an easy task. It entails an evaluative judgment that is not based on a fixed sliding scale. For example, it is difficult to compare a compound fracture of a leg that is serious but not life threatening to an injury that gives rise to a high risk of death.
[12]Sarjeant [2020] VSCA 45, [39] (Maxwell P, T Forrest and Emerton JJA).
In sentencing the applicant, the judge accepted the medical evidence that the injury presented a ‘high risk of death’.[13] Although it may be accepted that one mechanism by which a blow to the head may cause significant injury is bleeding on or around the brain, the evidence established that this is not the only pathway to such an injury and that occlusion of the airways and consequent loss of oxygen to the brain is another.
[13]Reasons, [55].
We do not take her Honour to have proceeded on the basis that every instance of injury endangering life is, for that reason alone, necessarily above the lower end of serious injuries. We accept that there may be gradations of injuries that endanger life, having regard to the nature of the injury and the level of risk it entails. The judge considered that the high risk of death was a serious matter and placed the injury above the ‘lower end of the spectrum of serious injuries’.[14] That was an evaluative judgment on a matter on which there is no exact measure. In our opinion, in light of the evidence, the finding was unremarkable.
[14]Ibid.
It is also important to bear in mind that, although the assessment of the nature and extent of the injury is a relevant matter in sentencing an offender for recklessly causing serious injury, the objective gravity of the offending is not solely tied to that feature. Here, as the judge observed there were a number of factors that objectively made the applicant’s conduct serious. The assault was unprovoked and the victim had no opportunity to evade contact or even brace for the punch which was executed with considerable force. The incident occurred on a public street and the applicant was affected by alcohol.
In our view, it is not arguable to contend that the judge’s assessment of the seriousness of the injury or the gravity of the offending was not open.
It follows that ground 1 must fail.
By ground 2, the applicant seeks to argue that the sentence in respect of the 2019 incident and the total effective sentence are manifestly excessive. The applicant says that when proper regard is had to the applicant’s youth, the objective seriousness of the offences and the utilitarian value of the plea, the sentence is wholly outside the permissible range.
The applicant submits that the judge ‘expressly sidelined’ youth as a sentencing factor of high importance. The applicant acknowledged that as the level of seriousness of criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth but submits that the appellant’s offending was not so serious as to ‘substantially eliminate’ youth as a relevant mitigating factor.
In order to make out this ground, the applicant must demonstrate that the impugned sentence or sentences were wholly outside the range of sentences available to the sentencing judge in the proper exercise of his or her sentencing discretion.[15] It is insufficient to demonstrate that a sentence is heavy or stern. The sentence must bespeak some error in the exercise of the sentencing discretion.
[15]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157, quoted in Lim v The Queen [2019] VSCA 182, [60] (Croucher AJA, with whom T Forrest JA agreed); Begg v The Queen [2020] VSCA 183, [53] (Priest, Kaye and T Forrest JJA); R v Boaza [1999] VSCA 126, [42] (Winneke P); DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.
It is plain that the applicant’s age was a highly relevant matter. His youth was relevant because the law generally recognises that young persons are more prone to rash behaviour lacking the self-control that comes with maturity, rehabilitation of young offenders is of central importance and incarceration in an adult prison is likely to impair rather than assist in rehabilitation.[16]
[16]Azzopardi v The Queen (2011) 35 VR 43, 53–5 [34]–[37] (Redlich JA); [2011] VSCA 372.
Not only was the applicant’s age important but it also made the sentencing exercise a very difficult one. Although the applicant’s age and immaturity went some way to explaining the offending they also meant that there was very little if any restraint on the applicant’s behaviour. In some cases, to give any significant weight to the age of the respondent, and thus diminish the gravity of the offending, the importance of general deterrence and the protection of the community, carries the risk of producing an entirely inadequate sentence.
Given the gravity of the offending, the applicant’s significant criminal history and behaviour and the fact that the 2021 offending, which was serous in its own right, occurred when the applicant was on bail, it was open to the judge to moderate the mitigatory force of the applicant’s age. That said, we do not accept the applicant’s submission that the judge ‘substantially eliminated’ youth as a relevant factor. The judge said that youth carries less weight than if the applicant were a first time offender or if the offending were less serious. In the circumstances of this case, there was no error in that approach.

The applicant has a bad criminal record. At the time of the 2019 assault, he had prior findings of guilt for recklessly causing serious injury and armed robbery. He had the opportunity for less punitive dispositions that did not involve incarceration but these did not prevent either the 2019 or 2021 offending. It is also of concern that, when on bail for a very serious assault, he committed a significant armed robbery and caused a terrible knife wound to the face of the victim. The applicant was not to be punished again for his prior offences, however the pattern of offending reveals a high level of immaturity and lack of self-control. The resorting to high level violence, including with a weapon, makes the offending grave and counterbalances to some extent the mitigatory effects of youth.
In our opinion, the sentence for the 2019 offence was very stern but we are not persuaded that it was manifestly excessive so as to permit intervention by this Court. The sentences on the 2021 charges and in particular the armed robbery and intentionally casing injury charges were by no means severe and well within range. The knife wound to the victim’s face was particularly nasty. The orders for cumulation were moderate and took into account the undoubtedly high base.
It follows that we are unable to accept the applicant’s arguments on proposed ground 2.
The application for leave to appeal must be refused.

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[2023] VSCA 6

3 February 2023