R v Daniels

[2002] VSCA 78

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 25 of 2002

THE QUEEN

v.

CHARLY DANIELS

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JUDGES:	WINNEKE, P. and BATT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 May 2002
DATE OF JUDGMENT:	22 May 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 78

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Criminal law - Sentencing - Intentionally causing serious injury - Sentence of two years suspended as to 18 months - Whether judge should have "wholly suspended" - Sentence not "manifestly excessive".

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S.E. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr N. Papas	Victoria Legal Aid

WINNEKE, P.:

1. The appellant, Charly Daniels, who is 45 years of age, appeals, by leave granted, against a sentence of two years' imprisonment, of which 18 months was suspended for three years, imposed upon him in the County Court at Melbourne on 12 February of this year.  He had pleaded guilty to a count of intentionally causing serious injury to a man called Paul Blake who was known to the appellant as the secretary of the North Ringwood Football Club, of which the appellant's boys had previously been playing members.

1. The circumstances of the assault which caused the serious injuries to Blake reflect, I think, little credit on the appellant.  It took place in the view of bystanders in a public area in a shopping centre in Ringwood where the appellant and Blake had fortuitously met at or near a pizza shop on a Saturday night at about 9.30.  It would seem that Blake had been drinking and was considerably affected by the alcohol which he had imbibed.  The appellant, it would also seem, held a long-standing grudge against the North Ringwood Football Club, and thus its secretary, for insults believed to have been inflicted upon him and his children as a consequence of having been removed from the club.  With little warning the appellant - who is a big and strong man well over six feet in height - set about Blake and gave him a fearful beating on the pavement outside the pizza shop.  Blake, notwithstanding that he too was a large man, was clearly no match for the appellant, and ultimately he sustained two fractures to the orbit of the right eye, a broken nose and bruises to his neck and testicles.  Whilst inflicting the beating the appellant had Blake on the ground for a period of time, yelling, "I'll kill you;  you're all a pack of bastards;  you've wrecked my life and my son's life."  Bystanders who became fearful for the welfare of the victim sought to restrain the appellant.  One of them called the police, and ultimately they arrived, as did an ambulance.

1. This brief description of the circumstances in which the intentional causing of serious injury occurred reflects, as I have said, little credit on the appellant.  Moreover, as the judge found, it was no isolated incident of uncontrolled anger.  As a young man the appellant had served two months in gaol for another incident which arose out of what was said to be a "football dispute";  and more recently, in 1991, he was again convicted of assault at the Heidelberg Magistrates' Court and placed on a bond for an incident involving the boyfriend of his former wife.  Despite the fact that the appellant appears to have been a good, loyal and true friend to others within the community, the fact that he is a devoted parent to his children and a hard-working and well appreciated current member of the Knox Football Club, it does seem - as his Honour noted - that he has a propensity for allowing himself to become immersed in uncontrolled anger when riled by grievances, which are perhaps to him real but self-justified.  All of these matters were noted and taken account of by his Honour in the course of his sentencing remarks.  After referring to what might be termed "the good side" of the appellant's character, his Honour said:

"          At first glance, it comes as a surprise to learn that you have engaged in this form of criminal behaviour.  The explanation, however, is not difficult to find.  Your previous criminal history indicates a tendency to aggression, whether it be physical or verbal.  Further, the evidence is clear that the incident in which you were involved when you were associated with the North Ringwood Football Club caused you to harbour a festering, smouldering grudge against some executives of the club, including Mr Blake.  You were unable to contain yourself on the night of the offence to the point where you completely lost control. 

It is of some comfort to know that you have belatedly formed an appreciation of this weakness in your character and have undergone an anger management course.  This augurs well for your prospects of rehabilitation.

Your counsel has virtually conceded that the disposition in this case is a custodial sentence.  However, she has urged me not to order that that be served immediately.  I reject this submission, as I reject her submission that this crime is at the lower end of criminality.  Even allowing for lack of premeditation, I am unable to ignore the brutality and ferocity of the attack and the effect upon the victim.

In a civilised society there is no place for the law of the jungle.  In your case the principles of general deterrence and special deterrence are relevant sentencing considerations, as well as curial denunciation of this kind of behaviour.  In my opinion a custodial sentence is the only appropriate sentence, but you will not have to serve all of it immediately."

1. The appellant seeks this Court's intervention, asserting that the penalty which his Honour imposed is manifestly excessive and that his Honour should have wholly suspended the sentence. In essence, although broken into two grounds, the submission is really one that the sentence is manifestly excessive. That is a ground which should not admit of much argument, but it frequently does. Mr Papas, in the course of his interesting submissions, contended that the sentence which his Honour imposed was outside the range (particularly, as he submitted, the failure to wholly suspend it). It was outside the range, he submitted, having regard to the appellant's age, the impressive character evidence called on his behalf, his good work record, his long and stable family history, the spontaneous nature of this incident, and the fact that the injuries, whilst serious, were not the worst in the range that this offence conceivably encompasses. Mr Papas accepted that his Honour had clearly accepted that the threats which accompanied the violence were not threats which were accompanied by the intent required by s.20 of the Crimes Act, which offence was not pursued in this case by the prosecution.  Mr Papas referred to the nature of the injuries and argued that this was a case at the lower end of the range of circumstances conceivably amounting to intentionally causing serious injury.  It seemed to me that Mr Papas well recognised that the discretion to suspend in part, rather than in whole, the sentence imposed is not a discretion which is readily and lightly interfered with by an appellate court.  He referred us, however, to the brief reasons which were given by his Honour for justifying the sentence which he imposed and submitted that those reasons were to some extent inconsistent with certain propositions which he distilled from previous judgments of this Court, particularly in the light of the judge's acceptance that the appellant clearly had prospects of rehabilitation.

1. Notwithstanding the submissions of Mr Papas which, I think, have some force, it is my opinion that the appeal cannot succeed.  No doubt Mr Papas has advised his client that this Court performs a very different function from that of the sentencing judge.  We are, in essence, a Court of review, permitted only to interfere with the sentencing judge's discretion if it can be shown to be attended by error or to be manifestly outside the range of sentencing options available to the judge.  We do not ourselves have the luxury of allowing appeals simply because we might have taken a different course from that taken by the judge.  There is nothing in the sentencing judge's remarks which suggests to me that he has made any error in coming to the conclusion which he has, nor was the sentence which he imposed manifestly beyond the range of sentencing options open to him.  This was an offence which his Honour was entitled to regard as a serious example of its kind;  and which required a term of immediate imprisonment if the proper purposes of punishment, which his Honour described, were to be achieved.  The offence to which the appellant pleaded guilty is on any view a serious offence which carries a maximum penalty of 20 years' imprisonment.  No doubt it can encompass a range of circumstances and results;  but if it is committed, as here, in circumstances which involve the administration of unnecessary violence designed to curtail the right of a citizen to use a public place in the pursuit of his lawful activities, then it will normally attract a sentence of imprisonment to be immediately served.  The figure of six months chosen by the judge cannot be said, in my view, to be beyond the range available to him.

1. For these reasons the appeal, in my view, should be dismissed.

BATT, J.A.: 

1. I agree.

EAMES, J.A.: 

1. I also agree.

WINNEKE, P.: 

1. The formal order of the Court is that the appeal is dismissed.