R v Lyon
[2002] VSCA 231
•9 December 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 192 of 2001
| THE QUEEN |
| v. |
| MARK JAKE LYON |
---
JUDGES: | PHILLIPS, BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 December 2002 | |
DATE OF JUDGMENT: | 9 December 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 231 | |
---
Criminal law - Intentionally cause serious injury by stabbing - Altercation between two men over access to the son of one of them - Victim initiating, encouraging and persisting in violent exchange -Whether direction on self defence erroneous - Whether stabbing action "willed and deliberate" - Whether six years' manifestly excessive.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T.P. Burke | Ms K Robertson Solicitor for Public Prosecutions |
| For the Applicant | M D. Grace QC | Galbally Rolfe |
PHILLIPS, J.A.:
This is an application for leave to appeal against conviction and sentence imposed in the County Court on 13 July 2001.
On 2 July 2001 the applicant was arraigned in the County Court on a presentment containing four counts arising out of events at a block of flats in Beaconsfield Parade on 10 October 1999. Those counts were of causing injury to one Patrick Miceli intentionally (count 1) or recklessly (count 2) and of causing serious injury to Miceli intentionally (count 3) or recklessly (count 4). The applicant pleaded not guilty to these four counts. There was a fifth count of possessing cannabis to which the applicant pleaded guilty and was fined $50. That is of no further relevance.
After a trial lasting some five days, the applicant was found not guilty on counts 1 and 2 and guilty on count 3. After a plea in mitigation he was sentenced to six years' imprisonment with a non-parole period of four years. There was seven days' pre-sentence detention. He now seeks leave to appeal against his conviction on count 3 and against his sentence on the sole ground of manifest excess.
With admirable brevity, the applicant relies on two grounds of appeal only in respect of his application for leave to appeal against conviction, the first substituted by amendment on 12 November 2001 and the second added by amendment on 2 September 2002. I read them both.
“Ground 1
The learned trial judge erred in his directions to the jury in relation to the law of self-defence thereby giving rise to a substantial miscarriage of justice.
Ground 2
The learned trial judge erred in law by failing to direct the jury that in relation to 'the knife incident' the jury was required to determine which act or acts were said to have caused the serious injury and whether that act or acts were willed and deliberate."
The circumstances of the offending may be briefly described. The victim Miceli was the new partner of the applicant's former de facto and on the day in question some words were exchanged between Miceli and the applicant over the phone about (inter alia) the applicant's son who was with his mother and therefore living with Miceli. This prompted Miceli to go calling on the applicant at the block of flats in Beaconsfield Parade where the applicant was living with his current partner. Miceli pressed the buzzer to the applicant's apartment and, after some words between the two, according to the applicant Miceli challenged him to come down and confront him. The applicant went down because Miceli seemed intent on staying until he did, and as he left the lift the applicant swung at Miceli with a vacuum cleaner hose pipe, making contact more than once - but perhaps doing little damage. (This was the subject of counts 1 and 2 of which the applicant was acquitted.)
After that "preliminary" the applicant returned to the apartment but Miceli persisted by ringing the buzzer again - and again and again, perhaps for as much as ten minutes or so, at the same time (according to the applicant) yelling into the intercom. So out came the applicant again, this time bringing with him a large kitchen knife. (This was for the purpose, he was to say at the trial, of defending himself if Miceli was still in the car park; for he wanted to get in the car and leave the building, with his partner.) What followed, however, was an altercation between the two men, first near the foyer exit to the car park, and then further into the car park near a parked car. Either at one point or the other (and that was for the jury to decide), Miceli was stabbed with the kitchen knife held by the applicant as a result of which he ultimately lost a kidney and his spleen. There was no issue but that the injury was a serious injury; the question for the jury was how it came about.
One version was that of the applicant himself. In his statement (Exhibit 5) he said that as he moved into the car park Miceli emerged into view (the applicant had previously lost the sight of one eye in a car accident) and threw a rock and then a second rock at him - rocks which Miceli had apparently just picked up in the car park. The applicant said:
“He threw one of the rocks at me from about 5 metres away. The rock missed me. I ducked as he kept coming at me and he threw the second rock at me when he was only about 2 metres away. He may have been even closer than 2 metres. That rock came near my head and I had raised my left hand in front of my face. I had the knife in my right hand and my right shoulder gives me trouble so I still had my right arm down fairly low. The rock which he threw at me hit my left hand and shot over the top of my head. He kept coming at me and I raised my right hand a little with the knife in it and he ran onto the knife. As I could see that he was going to hit the knife I kept it fairly low because I did not want to cause any serious injury to him by striking him in the chest or the upper part of his body. I didn't really thrust the knife forward, it was more a matter of him running onto the knife. I did feel that there was some contact with the knife but it was hard to tell how heavily he had contacted with it."
At the trial the applicant gave evidence and he insisted that Miceli had been wounded when the two of them were near the foyer, that Miceli had run on to the knife and that the knifing had, in substance, been an accident. As Mr. Grace described the evidence in his outline of argument in this court (para. 25):
"He (the applicant) got down and saw a rock come at him and ducked. He saw the Complainant [that is, Miceli] charging at him with another rock and was about a metre or two away and 'As he went to hit me with it I've ducked again and put the knife out. He's like fell forward and the knife's hit him.'"
In this regard Mr. Grace referred the Court to the applicant's evidence in chief at pp.185-7 and 198-9 of the transcript and to his cross-examination at pp.203-5 and 207-8. (The quotation from his evidence is at p.186).
For his part Miceli, when he gave evidence, denied that the injury occurred near the foyer. He said that when the applicant came down for the second time he, Miceli, did not at first see the knife; he did not see it as the applicant entered the car park from the foyer but when he did see it he backed away, retreating towards parked cars. He said that the applicant kept advancing towards him until, when he could move back no further and was cowering near a parked car, the applicant lunged at him, thrusting the knife into his body to the hilt. The knife was withdrawn and the applicant walked away back to his apartment. Miceli got into his car and attempted to drive home but soon blacked out and ended up being removed by ambulance to hospital.
As I have said, the applicant, insisted at trial that the knifing occurred near the foyer and, in substance, by accident and not when the two men were over near a parked car. There were, however, independent witnesses to what happened near the car. The applicant's neighbour, one Sneddon, testified that he witnessed the incident in the car park from his apartment and that he formed the view that the applicant was the aggressor in the situation because "he forcibly went towards the younger person and - and laid the punch on him." He stated that "the younger guy" (that is, Miceli) was doing most of the yelling and screaming and was highly charged, highly emotional about what was going on. He saw Miceli throw a rock the size of a tennis ball at the other. Mr Sneddon also testified that the younger person (Miceli) was over towards the front of a brown station wagon in the car park with the other male no more than one metre behind him. After a "punch" was thrown, as Mr Sneddon saw it, the younger man fell to the front of the station wagon. Obviously Mr. Sneddon was describing the incident that occurred near the parked car and not the incident near the foyer.
The same is true of the other resident who gave evidence, one Robinson, who said that he heard loud voices coming from the car park underneath the building. He said he moved to where he had a clear view of the car park and stated that he saw Miceli with a rock in his hand screaming "you bastard" and "come on, you bastard" and then saw him throw the rock about the size of a fist or cricket ball towards the door. He was passionate and angry, said Mr Robinson. A rock came back at him but it went fairly wide. Miceli was basically yelling about "respect", said Mr Robinson, and "sorting things out" and then, said Mr Robinson, his face "changed from aggression into nerves" as he said, "Oh, so now you've got a knife" and started backing away. But, said Mr Robinson, he couldn't get around the brown station wagon and ended up in front of the car. Mr Robinson said that he saw the applicant advancing towards Miceli and stab directly into his abdomen, and then pull the knife out, turn around and walk away without looking back.
In substance, then, both the independent witnesses corroborated the version given by Miceli. Whether by a punch or with a knife, it is apparent that both the witnesses were satisfied that the applicant thrust out towards the victim in an action which, as we now know, was the stabbing. In fact, when in the witness box after these witnesses had given their evidence, the applicant agreed that he had thrust at Miceli with a knife when they were over near the car, but insisted that he had simply swiped at Miceli and did not then make contact. Any injury inflicted was earlier near the foyer, according to the applicant.
The jury, therefore, had the task of choosing between the two different versions of how Miceli came to be stabbed by the applicant. Was it, in substance, accidental near the foyer or was it intentional as the applicant advanced upon Miceli as he cowered near the parked car? By their verdict the jury must be taken to have rejected the first and been satisfied beyond reasonable doubt of the second.
The question of self-defence was the subject of directions from the judge and those directions are now the subject matter of the complaint in ground 1. Self defence arose it seems in relation to the first attack with the vacuum cleaner hose pipe which took place at the lift and it also arose, it was said, in relation to the knifing that followed. I am not so clear that self-defence was a real issue in relation to the latter, however. If the jury entertained a reasonable doubt because of the applicant's version, the stabbing was, in substance, accidental. There were no independent witnesses at that point but the applicant said it was an accident in his evidence at trial. On the other hand, if they accepted Miceli's version, supported as it was by the two independent witnesses, there was scarcely room for self-defence because the applicant was advancing on Miceli and Miceli was seeking to retreat at the time the injury was inflicted. The direction about self-defence therefore had no significance to the conviction on count 3.
But what is the complaint now made? It is said that the judge erred when he told the jury at pp.280-281:
"You should ask yourselves in respect to each episode at least these questions: Was the action against which the accused says he was defending himself the kind of action which called for self-defence or was it something a sensible person would ignore? So for example if you were to find as a fact that Miceli did, as the accused man came out of the lifts, attack him with his fists, you would then consider whether that attack called for self-defence."
The use of the word "sensible", said Mr Grace, was plainly error because it converted the inquiry from whether the accused himself had reasonable grounds for acting as he did in the circumstances as he perceived them to be into an inquiry about what a sensible man would have done, which was an objective test. The word should have been "reasonable" not "sensible", he submitted, but anyway it was error in that it posited for the jury an objective test instead of a test which drew properly upon the accused's own perception of the circumstances as they existed.
In my opinion, there is nothing in the point. In what I have quoted the judge did not purport to spell out any test, What his Honour was saying at this point in the charge was purely introductory, introducing the contrast between defending oneself and assuming a role as an aggressor. The relevant tests were subsequently spelled out by the judge in some detail, his Honour even handing to the jury a memorandum of the two questions which they had to ask themselves and directing them that if the answer to both those questions was "no", then the Crown had failed to prove its case and the applicant should be found not guilty. I do not set out the questions: suffice it to say that the two questions posed were unexceptionable and no complaint is now made (or was made at trial) about either of them. Indeed, it might be said that the questions posed by the judge for the jury were in some respects favourable to the applicant in that the question whether the force used was excessive (or disproportionate to any threat) was not mentioned; that was left unaddressed and in such a fashion as to favour the accused. But I pass that by; not surprisingly given the advantage I have just mentioned, no point is now made by the applicant about the possibility of the force used being disproportionate.
To return to the word "sensible" as used by his Honour at pp.280-281, I am quite satisfied that in the context of the charge as a whole, the use of that word had no particular significance. Certainly, it had no significance to the tests to be applied as they were described in detail by the judge to the jury and it is noteworthy that no exception was taken at trial to the use of the word. Mr Grace submitted that the use of the word at all was error and error which tainted all that followed by way of directions concerning self-defence. In my opinion, it was not error and it had no significance in what followed. One can only assume that that is how counsel saw it at the time because of the failure to take exception.
The complaint made in ground 2 is the failure of the judge to direct the jury to consider whether the acts which caused the injury were "willed and deliberate". This ground was added only two months ago and, as Mr Grace said frankly, it was added because of the recent decisions of the High Court in Murray v. R[1] and Ugle v. R[2]. The difficulty for the argument is that the question of "willed and deliberate" had no relevance to the knifing of Miceli, if that occurred as he described it over by the parked car as he cowered back and the applicant advanced. Mr Sneddon said a forceful punch was thrown, but punch or knife, there can be no doubt but that the action of the applicant was both willed and deliberate.
[1](2002) 189 A.L.R. 40.
[2](2002) 189 A.L.R. 22.
In argument Mr Grace was driven to accept, I think, that the question of "willed and deliberate" became relevant only if the stabbing occurred, as claimed by the appellant, over near the foyer and as Mr Miceli ran on to the knife that the applicant was holding out. But if the jury accepted that version, they would not have convicted the applicant. The Crown did not go to the jury on the basis of a stabbing near the foyer which was caused as the applicant claimed. The Crown invited the jury to reject that claim altogether and to find that the stabbing occurred, in essence, as Miceli asserted. On the former basis they could convict; on the latter they were not invited to convict. It was a choice between those two versions and the question of "willed and deliberate" could arise as an issue only if the jury considered that Miceli was stabbed near the foyer and that it happened, not by Miceli running on to the knife as the applicant said, but in some other fashion - a fashion not raised by the evidence, not raised by counsel, and not raised by the charge. Such would have been mere speculation on their part. Thus, in my opinion the complaint in ground 2 raises a question that was not relevant to any issue actually arising at the trial, having regard in particular to the way in which the trial was conducted.
For these reasons I have concluded that there is nothing in either of the grounds taken and accordingly I would dismiss the application for leave to appeal against conviction.
The application for leave to appeal against sentence is, however, another matter. The only ground taken is, as I have said, manifest excess. It is claimed that both the head sentence and the non-parole period were manifestly excessive in the circumstances of the offending and the circumstances of the offender and, by way of particulars, it was contended by Mr Grace that the learned sentencing judge had failed to take into account or give sufficient weight to a number of factors.
The first of these was the fact that the applicant had not previously served a term of imprisonment. Indeed the judge was told on the plea that he had never been in custody before the present offending. The applicant had a number of previous convictions, including convictions for assault. Yet on examination that record is not as serious as it sounds; all appeared to be convictions for street offences and, save for the last in 1990, attracting only fines. Thus the first of the previous convictions was recorded in the Magistrates' Court in November 1974, a conviction for unlawful assault for which the applicant was sentenced to pay a fine of $200. The next, in January 1975, was for behaving in an offensive manner in a public place and the fine was $30. In April 1975, assault by kicking drew a fine of $150; and in June 1975 assault occasioning actual bodily harm attracted a fine of $500. In July 1980 the applicant was convicted of being drunk in a public place, assaulting a police officer in the lawful execution of duty, using indecent language in a public place and causing wilful damage, for which offences he was either convicted and discharged or fined, $100 and $75. These were surely street offences. The same is probably true of the convictions in June 1982 of using indecent language in a public place and assaulting a police officer in the lawful execution of duty which again attracted fines. Similarly convictions in December 1984 (using indecent language in a public place) and in April 1985 (two charges of assault) attracted fines. In October 1990, the last of these convictions was recorded (for assaulting a police officer and using indecent language in a public place), this time attracting a term of imprisonment for three months which was wholly suspended for 12 months and a fine imposed.
All these convictions, the judge was told, were the result of episodes of drunkenness and many, while the applicant was living in Morwell. The judge was told that drinking was no longer a problem with the applicant and what was notable was that, despite the early convictions, the applicant had not been in any trouble at all after October 1990. His good behaviour since then was, of course, a factor going in mitigation and that was the second factor to which the judge was said to have given insufficient weight: the fact that the applicant had not committed any offence in the 11 years prior to the imposition of this sentence.
The third factor was the applicant's good work history. He had in fact lost his job after being charged with these offences and that, said Mr Grace, was another factor to be brought to account. It was a penalty in itself to lose one's job. Then there were the applicant's family circumstances. There was the son who was aged eight at the time of the plea, the product of the applicant's earlier relationship and who, it appears, was the subject of the exchange over the telephone on 10 October 1999 between Miceli and the applicant which acted as the precipitant for the events that followed outside the latter's apartment. By the time of the plea the applicant also had a 10 month-old child by his current partner, a child born after the present offending. There was evidence put before the judge on the plea of the good relationship which the applicant was earnestly seeking to maintain with his older child and his love and concern for him, as well as for his current family. Evidence of the applicant's good character was given by his father, his brother, a priest and a friend, and also by his current partner.
There was another particular factor relevant to the family circumstances of the applicant and that concerned an older sister to whom the applicant was particularly close. She died in January 2000 after a five-year battle with cancer and at the time of the offending in October 1999 she was seriously ill, as she was throughout the last few months of her life. The judge was told in the course of the plea that the applicant and that sister were the eldest of six children; they had been in fact the de facto mother and father of the younger children whilst his parents worked, something which had no doubt brought them closer together. In October 1999 she was on her death bed and this was causing the applicant acute distress. Obviously the emotional strain under which the applicant was labouring at the time of the offending was a factor to be borne in mind when considering sentence, particularly in this case where the stabbing involved only the two participants who had themselves come face to face in highly emotive circumstances.
There were yet other factors relied upon by Mr Grace as matters which ought to have been taken into account and given greater weight than apparently they were. First, there was the good deed of the applicant in saving the life of a neighbour, one Mrs Leyland, when she spent far too long trying to control a fire in her apartment. Apparently she lived close by the applicant and his partner and when fire broke out she spent time telling her neighbours to vacate and then returned to see if she could quell the blaze. After quitting the building the applicant went back in to find Mrs Leyland and it was only his actions, the judge was told, that saved her life.
Then there was the delay in hearing the case which, at least in respect of the period from January 2000 to January 2001, appears to have been without explanation. But for whatever reason it occurred, the lapse of time was relied upon by Mr. Grace (without attributing blame to anyone), a period during which, as he pointed out, the younger child was born, the applicant lost his job, his sister died, there had been no offending and the "precipitants", as he called them, of the present offending had been resolved. This, he submitted, meant the likelihood of any further offending was small.
It cannot be said the learned judge in sentencing ignored any of the factors to which I have now referred as going in the applicant's favour, for all of them are mentioned and they were obviously given such weight as to his Honour seemed appropriate. Thus, the judge said immediately before passing sentence:
"I accept that over the last ten years you have settled down, and I accept that you are a responsible man, especially towards your son, Jake [that is, the older boy]. I accept that you are now, at least, normally of an easy-going disposition and that your offending in the past has had much to do with over-indulgence in alcohol. I accept that you are not by disposition an idle man and have worked hard over the years with a view to improve yourself in a variety of jobs. Finally, I accept that you were instrumental in saving the life of Mrs Leyland ... "
Despite the foregoing, his Honour saw the need to impose a sentence which not only reflected general deterrence, but also specific deterrence.
The contention now put on behalf of the applicant, that the sentence imposed, both as to a head sentence and a non-parole period, was manifestly excessive, is a contention which, it has often been said, does not admit of much development: a sentence either is or is not manifestly excessive. Of course, ordinarily it cannot be said that six years’ imprisonment is manifestly excessive for intentionally causing serious injury, especially injury of the type inflicted on this occasion. The injury was certainly serious and its infliction deliberate, given the size of the knife. But every case depends upon its own facts and in this instance there were not only the factors going in mitigation already mentioned, there were also the circumstances attendant upon the offending, not least of which was the way in which the victim himself initiated, encouraged and persisted in the violent exchange between the two men, moving between the purely verbal and the physical in a heated and emotional atmosphere - and on very the doorstep, as it were, of the applicant’s own home. As the judge remarked to applicant's counsel during the plea:-
"Well ... I would be inclined to think that the background to all this may well have been, firstly, a resentment, conscious or otherwise, of the entry of the victim into the life of his [the applicant’s] son and possibly also his ex-de facto. [That] there is resentment at the victim
coming around on this particular afternoon to the premises – I think, vividly came out when the [accused], in the course of his evidence says ‘He was on my property. How dare he.’ There was, in addition to that, quite possibly in the background, the distress of the dying sister and there was, on any view, dispute between the two of them before the blow was struck and that, I think, points to, if you like, the state of mind of your client at that time.”
This was, I think, a particularly difficult exercise in sentencing, given on the one hand the seriousness of the offending for which, as I say, six years could scarcely be said to be manifestly excessive in the ordinary case, and on the other hand the heated emotional atmosphere resulting from physical abuse and violent exchange between two men who already had a history. It was an emotional atmosphere engendered for the most part, if not altogether, by the victim’s own method of “sorting things out”. Plainly the court must condemn the solution adopted by the applicant, but it was a solution adopted in the heat of the moment and it is in the particular circumstances I have described that I have come to the conclusion, albeit with some hesitation, that his Honour did give insufficient weight to all that could be put in favour of the applicant. In my opinion, having regard to all the relevant matters, it can properly be concluded in this case that, notwithstanding that the attack on Miceli was a nasty one, the sentence imposed was outside the range of sentences properly open to the sentencing judge. In other words, the sentence imposed was manifestly excessive.
For myself I would on that account grant leave to appeal against sentence, allow the appeal, set aside the sentence imposed below and in lieu order that the appellant be sentenced on count 3 to a term of four years' imprisonment and fix two-and-a-half years as the period to be served before becoming eligible for parole. There must then be an appropriate declaration of pre-sentence detention.
BUCHANAN, J.A.:
I agree.
VINCENT, J.A.:
I agree.
PHILLIPS, J.A.:
The orders of the court are therefore as follows:
1.The application for leave to appeal against conviction is dismissed.
2.The application for leave to appeal against sentence is allowed. It is ordered that the appeal be taken to have been instituted and heard instanter and then allowed.
3.The sentence imposed below on count 3 is set aside and in lieu it is ordered that the appellant be sentenced to four years' imprisonment on count 3 and that two-and-a-half years be served before the appellant becomes eligible for parole.
4. The sentence imposed on count 5 is confirmed.
5.It is declared that 521 days should be reckoned as having already been served under the sentence imposed on count 3. It is directed that the making of that declaration and its contents be noted in the records of the court.
---
0
0
0