R v Duncan

[2009] VSCA 253

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 546 of 2009

THE QUEEN

v

DAVID DUNCAN

---

JUDGES:	BUCHANAN and DODDS-STREETON JJA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	24 July 2009 and 27 August 2009
DATE OF JUDGMENT:	29 October 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 253	`
JUDGMENT APPEALED FROM:	R v Duncan (Unreported, County Court of Victoria, Judge Chettle, 24 February 2009)

---

Criminal law – Sentence – Intentionally causing serious injury – Young offender – Sentence of five years and six months’ imprisonment with a minimum term of three years’ imprisonment not manifestly excessive.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G T Cannon	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr A Hands	Millers Solicitors

BUCHANAN JA:

1. Shortly before midnight in August 2008, a young man, Brendan Bau, was standing on a railway station platform at Ringwood.  The appellant, who was aged 18 years, and three companions of a similar age alighted from a train at the station.  The appellant had been drinking and had ingested methylamphetamine. 

1. The group approached Mr Bau.  One of the youths spoke to him.  He was pushed and punched in the face by two of the group other than the appellant.  The four youths punched and kicked Mr Bau, who fell to the ground.  In the course of the fight, the appellant cut the victim across his stomach with a Stanley knife. 

1. The offenders boarded a train, leaving their victim on the station.  The appellant handed the Stanley knife to one of his companions, who wiped the fingerprints from it and threw it out of the train.

1. The victim was transported by ambulance to hospital where he was treated for bruising to the face, fractures to the right cheek, a broken nose, abrasions and bruises and a 28 cm horizontal cut across his lower abdomen.  Thirty-three surgical staples were inserted in the stomach wound.  Mr Bau was discharged from hospital the same day.  A victim impact statement discloses that, apart from pain and physical discomfort, the victim has suffered difficulty in sleeping, nightmares, anxiety and stress.

1. The appellant was arraigned in the County Court and pleaded guilty to a presentment containing a count of intentionally causing serious injury.  After a plea, the appellant was sentenced to be imprisoned for a period of five years and six months.  The sentencing judge fixed a period of three years’ imprisonment before the appellant was to be eligible for parole.  The sentencing judge said that he would have imposed a sentence of seven years’ imprisonment with a minimum term of four years and six months’ imprisonment but for the plea of guilty.

1. The appellant has been granted leave to appeal by a single judge of this Court.  The principal ground of the application is that the sentence was manifestly excessive.  The other grounds are effectively particulars of this ground.  The appellant contends that the sentencing judge gave no weight or no sufficient weight to his youth or to the prospects of his rehabilitation and gave undue weight to the principle of general deterrence.

1. The appellant’s parents separated when he was between the ages of eight and nine years.  Despite his parents’ separation, the appellant maintained a close relationship with both of them.  He lived with his mother and worked with his father, a landscape gardener.  The appellant left school in the course of year 10 and worked in a few short term jobs before commencing work with his father in 2005. 

1. The appellant has abused drugs and alcohol from an early age.  He began drinking at the age of 14 years, has been involved in chroming and has used ecstasy, heroin and prescription drugs.  He has been tested by a psychologist and found to be of below average intelligence.  The psychologist, in a report to the sentencing judge, described the appellant as a ‘naïve, immature young man’ who was ‘shocked and traumatised’ by his experience of adult prison, ‘the impact of which has caused him to reflect seriously upon the need to make appropriate changes in his lifestyle’.  The appellant’s father gave evidence in the course of the plea and twice said that his son was ‘very remorseful’.

1. The appellant had 12 prior convictions from four appearances in the Children’s Court including convictions on charges of criminal damage, possession of a controlled weapon, which was a knife, resisting police officers, handling stolen goods and theft.  None of the convictions resulted in a sentence of imprisonment.

1. In his sentencing remarks, his Honour emphasised the gravity of the offence and the importance of general deterrence.  He said:  ‘Nothing other than a substantial period of imprisonment is appropriate for your offending’. 

1. There can be no gainsaying the seriousness of the appellant’s offending.  The attack upon the victim by the group and by the appellant was purposeless, completely unprovoked, cowardly and vicious.  Attacks by gangs upon members of the public going about their lawful business and attacks by persons wielding dangerous weapons generally call for condign punishment.  General deterrence is an important sentencing consideration in determining an appropriate response to such a crime.  The maximum custodial sentence for intentionally causing serious injury is 20 years’ imprisonment.

1. Nonetheless, general deterrence should not necessarily displace other considerations.  In particular, while recognising that certain crimes will call for condign punishment even in the case of a young offender, rehabilitation is usually far more important than general deterrence in the case of such an offender.[1]

   [1]See R v Mills [1998] 4 VR 235.

1. The appellant is a young offender.  He is young in years and also, according to the psychologist, in emotional development.  He had never been in prison before.  None of his prior convictions was for crimes of violence, although the appellant had been convicted on a charge of possession of a knife.  That did not deter him from arming himself with a knife and using it to inflict serious injury.   The appellant came from a caring, supportive family. 

1. I am of the opinion that the circumstances of the offence and the appellant’s prior convictions justified the imposition of a sentence of significant length.  This was a grave instance of the crime of intentionally inflicting serious injury.  It called for a substantial sentence in order to mark the courts’ denunciation of the offence and to provide the general and specific deterrence which was required.  Notwithstanding the appellant’s youth, I am of the opinion that this sentence was one which was open to the sentencing judge in the reasonable exercise of his discretion.

1. Accordingly, I would dismiss the appeal.

1. I should add that this Court caused a pre-sentence report to be made in case the sentencing discretion was reopened and the Court thought that a youth justice centre order was appropriate.  I have not had regard to the contents of the report in concluding that the appeal should be dismissed.

DODDS-STREETON JA:

1. I have had the advantage of reading in draft the reasons for judgment of Buchanan JA.  I agree with the disposition proposed by his Honour for the reasons he gives.

HANSEN AJA:

1. I agree with Buchanan JA.

- - -