Muller v R

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0057

MICHAEL MULLER	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	9 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 193
JUDGMENT APPEALED FROM:	[2022] VCC 513 (Judge D Sexton)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Application for leave to appeal against sentence – One charge of recklessly cause serious injury and one charge of common law assault – Total effective sentence of 3 years and 9 months with a non-parole period of 2 years and 4 months – Whether individual sentences, non-parole period and/or cumulation manifestly excessive – Application for leave to appeal refused.

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Counsel
Applicant:		No appearances
Respondent:
Solicitors
Applicant:
Respondent:

NIALL JA:

On 14 December 2021, the applicant was found guilty by a jury empanelled on his trial of recklessly causing serious injury. The applicant had pleaded guilty on his arraignment before the jury to one charge of common law assault.
On 12 April 2022, the judge sentenced the applicant as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
2	Recklessly cause serious injury[1]	15 years	3 years and 6 months	Base
3	Common law assault	5 years	9 months	3 months
Total Effective Sentence:		3 years and 9 months
Non-Parole Period:		2 years and 4 months
Pre-sentence Detention Declared:		129 days
Section 6AAA Statement:		Total Effective Sentence (on common law assault): 12 months

[1]I note the applicant was found not guilty of charge 1 – intentionally causing serious injury.

The applicant seeks leave to appeal the sentence on the following ground:
The individual sentences imposed on charges 2 and 3, the order for cumulation, the total effective sentence, and the non-parole period are manifestly excessive.

Circumstances of offending

On 30 June 2019, the applicant attended the Cricketers Arms Hotel in Mooroopna (‘the hotel’) with two other people. The applicant played pool and consumed alcohol from approximately 9.00 pm. Earlier that evening, the three men had been drinking together at the applicant’s home.
At approximately 10.15 pm, the victim, Mr Gavin Saunders, arrived at the hotel. The victim spoke to several patrons of the hotel, including the applicant. Both the victim and the applicant were consuming alcohol.
The victim and the applicant had interactions with each other. They were variously described as ‘bagging each other out’, ‘having shots at each other’ and ‘hanging shit on each other’. Often, they were visibly affectionate towards each other.
Both the applicant and the victim were seated near the corner section of the bar, both consuming alcohol and talking to each other. The victim appeared to become agitated. He stood up from the bar, removed his jacket, gesticulated towards the applicant with his hands, and then pushed the applicant in the chest with an open right hand. The applicant then grabbed the victim around the neck with his right hand, moving the victim backwards onto a pool table, whilst holding a schooner glass in his left hand. The applicant then let go of the victim. There was a momentary pause before the victim took hold of the applicant and stepped towards him. The applicant was still holding the schooner glass in his left hand. The applicant then swung his left hand which was holding the schooner glass and struck the right side of the victim’s head. This conduct constitutes charge 2 – recklessly causing serious injury. Most of this incident was captured by CCTV footage. I note that the victim did not give evidence in the trial.
The applicant and the victim then fell to the floor where they continued to fight for a short time. The victim got up from the floor with his t-shirt ripped and covered in blood. The victim walked back to the side of the bar where he had previously been sitting. Shortly afterwards, after attempting to clean himself up, the victim fell to the floor before returning to his feet. The applicant then approached the victim, picking up a black barstool and swinging the stool at the left side of the victim’s head. The applicant narrowly missed the victim’s head as he deflected the stool with his arm. This conduct constitutes charge 3 – common law assault, to which the applicant pleaded guilty.
The victim and the applicant then returned to the bar until the victim was assisted in leaving the hotel at approximately 11.55 pm. The victim was unsteady on his feet and needed to be supported to walk out of the hotel. The victim was driven to the Goulburn Valley Hospital in Shepparton, arriving just after midnight on 1 July 2019.
After arriving at the hospital in Shepparton, the victim was airlifted to the Alfred Hospital in a serious and life-threatening condition. Emergency surgery was performed which involved the removal of part of his skull and the removal of a shard of glass from the right temporal lobe of the brain. The victim was found to be in post-traumatic amnesia for a period of 16 days. The victim was ultimately transferred back to Goulburn Valley Health, where he was subsequently discharged on 11 September 2019.
Dr Rachel Marr, forensic physician at the Victorian Institute of Forensic Medicine, gave evidence at the applicant’s trial. According to Dr Marr, the victim suffered a bleeding injury to the right side of his head, a comminuted skull fracture, and a penetrating injury into the brain involving a piece of glass into the front temporal lobe. The victim also suffered a subdural haematoma and damage to his eye.
A victim impact statement from the victim’s sister, purporting to be from both her and the victim, was tendered on the plea. It refers to their lives being turned upside down as a result of the applicant’s offending. It notes that the victim has lost motivation to engage in life and needs help completing daily tasks such as preparing meals and laundry.

Reasons for sentence

After reciting the above matters, the judge concluded that this was a serious example of the crime of recklessly causing serious injury[2] and that the applicant had struck the victim to a vulnerable part of his body, being the head. The applicant did so holding an object with obvious capacity to do harm.[3] The judge stated that the injuries sustained by the victim were extremely serious. The judge found that the offending fell within the description of ‘glassing’ which is applied where one person strikes another with a glass or bottle, typically to the face or the head.[4]
[2]DPP v Muller [2022] VCC 513, [18] (‘Reasons’).
[3]Ibid [19].
[4]Ibid [20].
The judge accepted that there were some features of the applicant’s offending which made it distinguishable from other cases involving a glass or bottle, including:
(a)there was no particular animus from the applicant towards the victim in the lead up to the incident;
(b)the initial instigator of the physical altercation was the victim;
(c)the applicant was holding the schooner glass throughout the entire incident and did not arm himself during the incident to use it as an implement;
(d)there was no planning or forethought on the applicant’s part; and
(e)the applicant reacted instantly to a perceived threat.[5]
[5]Ibid [22].
The judge found that, despite the victim being the initial aggressor, the applicant’s subsequent actions in striking him with the glass schooner were completely indefensible.[6] The judge accepted that the applicant must have known when striking the victim to the head with the schooner that there was a high probability of serious injury to him.
[6]Ibid [23].
The judge concluded that the objective gravity of the recklessly causing serious injury offence was high, and that the applicant’s moral culpability was somewhat reduced, however, remained significant.
The judge found the common law assault reprehensible conduct on the applicant’s part.[7] He noted that the applicant returned to the victim, clearly incapacitated, and picked up a barstool and attempted to strike him to the head. The judge did not accept the applicant’s counsel’s submission that this conduct represented a lower-level example of the offence.
[7]Ibid [25].
The judge then turned to the applicant’s personal circumstances. The judge noted the applicant was 61 years of age at the time of sentence. At 15 years, he moved from Tonga to New Zealand. The judge referred to the applicant’s considerable family support and that he had grown up with loving parents. The applicant has a long work history having worked as an electrical serviceman, a structural engineer and in steel fabrication and design.
The judge noted that the applicant had a modest criminal history dating back to 1986.[8] The applicant’s history includes three instances of drink-driving and some minor nuisance and behavioural matters. The applicant had no prior convictions or findings of guilt for matters involving violence and had been free of prior convictions or findings of guilt for 10 years. The judge found that the applicant fell to be sentenced as a person with reasonably good character and that the offending was ‘very much out of character’.[9]
[8]Ibid [30].
[9]Ibid [31].
The judge referred to the following mitigatory factors in the applicant’s favour:
(a)as the CCTV footage clearly showed, the applicant was struck by the victim numerous times. When the applicant was located by police following the incident, he was observed to have a considerable amount of blood over his clothing, face and hands. The judge accepted this amounted to a degree of extra-curial punishment;[10]
(b)the applicant’s plea of guilty to the common law assault;
(c)the applicant’s remorse with respect to the common law assault. The judge was prepared to make a mitigatory allowance due to the applicant’s remorse for the recklessly causing serious injury charge, notwithstanding his plea of not guilty;
(d)the delay, noting the applicant was charged on 2 July 2019 and that he was not committed for trial until 11 November 2020;
(e)the applicant’s compliance with stringent bail conditions;
(f)the burden of incarceration given the COVID-19 pandemic and that the applicant’s back and knees were causing him significant pain;
(g)the significant family support retained by the applicant; and
(h)that the applicant faces being deported at the conclusion of his sentence.
[10]Ibid [33].

Parties’ submissions

The applicant submits that he was able to call in aid several mitigating factors, including the extra-curial punishment due to his injuries, his remorse, the delay, that the applicant is of advanced years and deteriorating physical health, the impact of COVID-19, his reasonably good character, the prospects of his deportation from Australia, his plea of guilty to the common law assault, his modest criminal history and his very good prospects of rehabilitation.
The applicant submits that although the sentencing judge took these significant mitigatory matters into account when sentencing the applicant, he failed to give them adequate weight.
The applicant submits that, in finding the offence of recklessly causing serious injury to be a serious example of the offence, the sentencing judge placed too much weight on the very serious injuries that were sustained by the victim. In this regard, the applicant relies on the judge’s findings that the victim was the instigator of the physical contact, the offending was not planned, and that the applicant was acting to defend himself, albeit that his response was not reasonable in the circumstances.
The applicant refers to the cases of Winch v The Queen[11] and Dang v The Queen[12] to illustrate that the sentence imposed was out of kilter with current sentencing practices and was not reasonably open.
[11][2010] VSCA 141 (‘Winch’).
[12][2018] VSCA 43 (‘Dang’).
The respondent submits that the sentences imposed were well within the bounds of sound sentencing discretion. The respondent also submits that the judge’s categorisation of the offence of recklessly causing serious injury as a serious example of the offence was based on several factors, only one of which was the seriousness of the injuries sustained by the victim. In this regard, the respondent refers to the fact that the victim was struck to a vulnerable part of his body, the applicant was holding an object with obvious capacity to do harm and that he appears to have struck the victim with some degree of force.
The respondent refers to the catastrophic injuries sustained by the victim and submits that the judge was correct to place substantial weight upon the very serious nature of the injuries when assessing the gravity of the offending. She also notes that the sentencing judge was provided with more recent medical material as to the ongoing health issues sustained by the victim.
The respondent submits that the cumulation of three months for the common law assault was modest. The respondent notes that the common law assault occurred in circumstances where the applicant picked up a barstool and attempted to strike the victim to the head after already having seriously assaulted him.
The respondent submits that the judge considered all of the matters raised in mitigation by the applicant. The respondent contends that the sentencing judge gave all of these matters adequate weight and that this is reflected in both the individual sentences and non-parole period imposed.

Consideration

As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[13] This is a stringent requirement, difficult to satisfy.
[13]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
In my view, the judge was plainly correct in his categorisation of the seriousness of the applicant’s offending. While I accept, as the judge did, that the victim was the instigator of the physical contact between the applicant and the victim, the applicant’s conduct in striking the victim to the head with the schooner glass was deplorable and completely unjustified when considered in the light of the victim’s initial aggression.
Striking someone to the head with a glass carries a high risk of serious injury. The consequences of cases involving ‘glassings’ are, almost invariably, very serious. The impact of the offending on the victim was most profound and serious, and fairly characterised as catastrophic. The victim impact statement of the victim’s sister gives a clear insight into the harmful nature of the conduct that the applicant engaged in.
The applicant refers to the two cases of Winch and Dang. Before considering those cases, it is important to note the principles which apply to the relevance of previous sentencing decisions. Section 5(2)(b) of the Sentencing Act 1991 provides that current sentencing practices are a relevant consideration in the determination of the sentence. However, as this Court has reiterated, some caution needs to be exercised in identifying the appropriate sentencing range by reference to previous sentencing decisions.[14]
[14]Staples v The Queen [2021] VSCA 307, [88] (Maxwell P and Kaye and Emerton JJA).
In Winch, the appellant struck his victim in the face with a beer pot. It smashed on impact and the victim suffered severe lacerations, and permanent scaring, both physically and psychologically. The appellant pleaded guilty to recklessly causing serious injury. On appeal, the appellant was sentenced to two years and nine months’ imprisonment with a non-parole period of 15 months.
In Dang, the appellant pleaded guilty to one charge of recklessly causing serious injury. The appellant struck the victim to the face with an empty champagne bottle while he was sitting in a smoking area. The appellant was sentenced to 18 months’ imprisonment, with an 18-month Community Correction Order.
As noted above, the applicant submits that his conduct is distinguishable from Winch and Dang because he was responding to a perceived threat and was not the aggressor of the confrontation. So much can be accepted. However, there are also a number of features that were present in this case, that did not exist in Winch and Dang. In both Winch and Dang, the appellants pleaded guilty to the charge of recklessly causing serious injury. Of course, the applicant is not to be punished for having pleaded not guilty, however, he cannot call in aid the benefits of a guilty plea.
Further, the injuries sustained by the respective victims in Winch and Dang are of a different order to those sustained by the victim in this case. In Winch, the victim suffered dreadful lacerations and broken teeth. The victim was referred for surgical exploration of those injuries. In Dang, the victim sustained a broken eye socket and broken cheekbone. He underwent reconstructive surgery and spent two days in hospital. Without wanting to diminish the traumatic nature of the victims’ injuries in these cases, the injuries suffered by the victim in the present case are, self-evidently, horrific. The victim was in a life-threatening condition for several days, required hospitalisation for a period of nearly two-and-a-half months, and continues to be debilitated as a consequence.
Taking into account the relevant differences between the circumstances of the cases to which I have been referred and the present case, I am not persuaded that the previous sentencing decisions relied on by the applicant demonstrate that the sentence is at odds with current sentencing practices. More importantly, I am not persuaded that those previous sentences support the proposition that the sentence imposed in this case is manifestly excessive.
In his comprehensive and careful reasons for sentence, the judge identified and weighed each of the matters that the applicant relied on in mitigation. He noted that his task was a challenging one. He was correct. The applicant was to be sentenced as a person who was not the instigator, did not have a violent history and retained strong family support. Unusually, for a person who faced a trial, the judge accepted that the applicant had demonstrated a degree of remorse. These factors powerfully weighed in the balance. But the judge was surely right in saying that denunciation and general deterrence were very important factors to be taken into account. Alcohol fuelled violence is a major social evil. Not infrequently it arises in licensed premises and in circumstances where a glass or bottle will be close to hand. To use a glass as a weapon and to smash it into the side of the victim’s head carries with it the gravest risk of serious injury and must be denounced. To the extent that they can, the courts must impose sentences that bring home the seriousness of this offending, the risk of serious injury that is involved and the catastrophic consequences that may follow.
I am not persuaded that the individual sentences were outside of the range open to the judge.
In my view, cumulation of three months for the common law assault was also well within range. The applicant’s conduct in picking up the barstool and swinging it at the victim’s head was egregious conduct, particularly after the assault that had already transpired.
Insofar as the non-parole period, the complaint is also unmeritorious.
The application for leave to appeal must be refused.
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[2022] VSCA 193

9 September 2022