R v Johnston
[2001] VSCA 232
•6 December 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 409 of 2000
| THE QUEEN |
| v. |
| MATTHEW ANTHONY JOHNSTON |
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JUDGES: | WINNEKE, P. and BROOKING and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 December 2001 | |
DATE OF JUDGMENT: | 6 December 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 232 | |
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Criminal law - Sentence - Causing serious injury intentionally - Applicant drinking heavily in hotel - Returns with knife - Three stabbed - Life-threatening injuries - Importance of deterrence - 11 years with non-parole period of nine severe but within range.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr C.F. Thomson | Michael Coghlan Pty Ltd |
WINNEKE, P.:
I will invite Brooking, J.A. to give the first judgment in this application.
BROOKING, J.A.:
On 9 November 2000 Matthew Anthony Johnston was convicted in the County Court at Geelong, after a trial, on each of three counts of causing serious injury intentionally. The victims were two brothers, Wayne and Jimmy Barling, and Jason Walerys. Now he applies for leave to appeal against the sentence passed upon him on 11 December. This was of 9 years' imprisonment for the offence against Wayne Barling, 7 years for that against Jimmy Barling and 8 years for that against Walerys. One year's cumulation was ordered in respect of each of the two shorter sentences, giving a total effective sentence of 11 years, and a non-parole period of 9 years was fixed.
I need not, I think, read out the five grounds of appeal. They have not been argued on the basis that specific error is alleged; instead, the second to fifth grounds have been treated as particulars of the first, alleging manifest excess.
The charges relate to three stabbings which took place on the afternoon of 28 May 1999 in the Norlane Hotel, the last of a number of hotels visited by the applicant in company with others during the morning and afternoon of that day. By the time of the offences the applicant had drunk a great deal: by his own account he was on his way to being "paralytic". After he and his two companions arrived at the Norlane Hotel, at about lunchtime, one of his companions had an acrimonious discussion with one of the three young men who were to become the victims. Shortly after this the applicant and his two companions left the hotel by car and one of them was dropped off somewhere. When he returned to the hotel the applicant had a knife in his possession: the judge was unable to say whether he had fetched this in the course of his absence from the hotel. He and only one of his two
companions, Lowndes, returned to the hotel, where they began to drink again. Lowndes was said to have been a party to the attacks which followed, but he was acquitted, and so I say no more about his suggested role. When Jimmy Barling was in the hotel toilet the applicant came up behind him and stabbed him in the back of the head. Barling fell to his knees but got up and fled from the hotel to his mother's home, bleeding freely from the wound to his head. Walerys was sitting in the bar when he heard a noise from the direction of the toilets. He turned around and saw Jimmy Barling run past and out of the hotel and then saw the applicant behind Barling but charging at him. He ducked and turned to run and the applicant stabbed him in the back. Walerys ran from the bar, not realising he had been stabbed, and entered the bottle shop, where he began to cough up blood and had difficulty in breathing. An ambulance was sent for and took him to hospital.
The third victim, Wayne Barling, was sitting in the bar when he heard a shout "Jimmy's been stabbed". He saw the applicant running at him with a knife in his hand. He grappled with the applicant and they fell to the floor, where they wrestled. Wayne Barling, knowing that the applicant had a knife, was trying to keep him down while at the same time get away from him. When he was above the applicant, but still on the floor, the applicant lunged up at him with the knife and stabbed him near the armpit. Barling crawled away and the applicant ran from the hotel. He was not found by the police until about six weeks later. He would say nothing about the incident.
Wayne Barling had in fact been knifed three times. One injury - to the back - was not a deep one, but the other two were serious. He had a gash in the left shoulder which had penetrated the thoracic cavity, causing a pneumothorax. A stab wound to the front of the chest wall between the ribs had nicked the lining of the lung and caused two lacerations to the aorta, both of which bled actively, and also caused some bleeding from a minor artery. On his arrival in hospital his injuries were recognised at once as life-threatening. After an ultrasound scan of the heart and chest an operation was performed. There was a significant amount of blood in the right pleural cavity and in the sac around the heart. The bleeding was controlled and the air and blood were drained from the chest and the blood was drained from the sac around the heart. Barling was in hospital for about a week.
Jason Walerys, who had been stabbed in the back, vomited blood in the ambulance on the way to the hospital. Six hundred millilitres of blood and air was drained from the right intercostal space. He was in hospital for about nine days. In evidence he said he still felt the effects of the stabbing. The judge observed that all three victims had suffered ongoing upset and distress.
Jimmy Barling suffered a 3-4 centimetre laceration to the right occipital region of his scalp, with a bleeding artery. When the pad which he himself had held to the wound was removed blood from his wound spurted to the ceiling. The wound to the artery was repaired. What might have happened to the victim in the absence of medical treatment is not dealt with in the medical evidence. It is certainly not shown, as it was argued for the applicant in this Court that it had been shown, that the injury was not life-threatening.
The applicant had sustained 13 previous convictions from five court appearances between 1992 and 1996. These included convictions on a charge of reckless conduct endangering a person in 1993 - the firing of a cross-bow at a man - a conviction of armed robbery in 1994 (it took place at a post office), convictions on charges of threatening to kill, causing injury intentionally or recklessly and possession of a regulated weapon (a knife), sustained in 1995, and three convictions on charges of burglary and theft sustained in 1996.
The applicant was almost 24 at the date of the present offences. A psychologist's report showed he was intelligent and had completed year 12 at school. He had a problem with alcohol, as indeed the events of 28 May 1999 suggest.
It was accepted on the plea that he stood to be sentenced as a serious violent offender within the meaning of the Sentencing Act 1991. But the judge did not rely on what he described as the somewhat Draconian provisions relating to that status.
The applicant's case, in support of which he gave evidence at the trial, was that he had not taken the knife to the hotel (the judge rejected this) and that he had been, not the aggressor, but the victim of an attack, acting in self-defence. In his reasons for sentence the judge referred to the fact that both Walerys and Jimmy Barling had been stabbed in the back and that Wayne Barling had been stabbed after he had grappled with the applicant, either in the course of defending himself against a direct knife attack or at least in the course of trying to restrain him after the attack on Jimmy Barling.
His Honour observed that, but for the good fortune of all concerned, the applicant could have faced at least two murder charges.
He referred to the importance of specific deterrence in the light of prior convictions and the psychologist's report. He emphasised also the importance of general deterrence, particularly, as he said, "in a context where the use of knives is becoming all too frequent". And he spoke of the need to satisfy the community that very serious criminal behaviour was being appropriately punished.
Mr Thomson argues that the individual sentences, the total effective sentence and the non-parole period are all manifestly too long. The essentials of his submissions appear from his written outline. I shall not deal in terms in these reasons with every point he has sought to make. His main emphasis was placed on other sentences passed, first, in cases of homicide, and secondly, in cases of intentionally causing serious injury. This Court has time and again spoken of the difficulties which an argument may face when it is founded on sentences in other cases. The difficulties are increased when the sentences are for a different offence.
I have considered the cases to which Mr Thomson has drawn attention. He argued in particular that the present sentence is shown to be out of kilter with sentences passed for causing serious injury intentionally. In my opinion this has not been demonstrated.
I have considered each of the matters put forward by Mr Thomson in his submission that the sentence is manifestly excessive. I certainly do not accept the contention that on the evidence the judge should have treated the injuries sustained by Wayne Barling as attributable to excessive self-defence. Nor, as I have already said, do I accept the contention that the applicant has affirmatively shown that only the injuries to Wayne Barling were life-threatening.
As the President said in R. v. Laffey[1], "The purpose which underlies s.16 [the section of the Crimes Act creating this offence] is the freedom which members of the community should enjoy without fear of suffering deliberate and wanton violence." As the sentencing judge said in the present case, the use of knives in this context is becoming all too frequent. Persons, especially young men, must be deterred from carrying weapons, especially knives, either on them or in their cars, when they visit places where others congregate, especially to drink, and deterred from using those weapons, especially in wanton attacks. The maximum sentence for this offence has been increased and is now 20 years' imprisonment.
[1][1998] 1 V.R. 155 at 162.
The sentences passed in this case - the individual ones, the total sentence which takes effect and the period before eligibility for parole - are undoubtedly severe, especially for a relatively young offender whose criminal record, while undoubtedly relevant and obviously significant, could not be described as conspicuously bad. I have anxiously considered whether we should say that these long sentences are on the wrong side of the line - beyond the proper exercise of the discretion. The applicant was to be dealt with for three serious offences committed against three victims. Although there was but a single episode, a degree of cumulation was appropriate. The knife was taken to the hotel and used wantonly and repeatedly in cowardly attacks. The applicant's criminal history was against him, especially as regards offences against the person. He could not claim the benefit of a plea of guilty or of any remorse. Notwithstanding the matters relied on by his counsel I am in the end of the opinion that these sentences are at the top of the range available to the judge, not outside it.
And so I would dismiss this application.
WINNEKE, P.:
I agree. I too think the sentences are high in the range but nevertheless within the range available to his Honour in the circumstances of the case which confronted him. I too would dismiss the application.
BUCHANAN, J.A.:
I agree.
WINNEKE, P.:
The formal order of the Court is that the application for leave to appeal against sentence is dismissed.
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