R v Malcomson
[2000] VSCA 185
•18 September 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 201 of 2000
| THE QUEEN |
| v. |
| CHRISTOPHER JAMES MALCOLMSON |
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JUDGES: | PHILLIPS, C.J., CHARLES and CALLAWAY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 September 2000 | |
DATE OF JUDGMENT: | 18 September 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 185 | |
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Criminal law – Appeal against sentence – Applicant had pleaded guilty to causing serious injury recklessly (attack with a broken glass in a bar) – Allegation of excessive weight being given to the need for specific deterrence – Cogent evidence of applicant’s rehabilitation including total abstinence from alcohol – Appeal allowed.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. J.D. McArdle, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. D.M. Salek, Q.C. and Mr. C.B. Boyce | Giasoumi Papasavas Zervos Pty. |
PHILLIPS, C.J.:
The appellant, who is aged 21, pleaded guilty in the County Court at Melbourne on 27 July last to a count of causing serious injury recklessly. This offence, which carried a maximum penalty of 15 years' imprisonment, was committed at Cheltenham on 13 January last. No prior convictions were alleged against the applicant, and, after a plea for leniency in which the learned judge received a psychiatric report of a Dr Walton and a psychological report (hereinafter referred to as "the Cheetham report"), together with financial documents and character references, his Honour sentenced the applicant to be imprisoned for 18 months and fixed a non-parole period of nine months.
The applicant later lodged notice of application for leave to appeal against sentence and on 12 September the learned Registrar granted leave to substitute the following grounds of appeal against sentence:
"1.The learned sentencing judge failed to place sufficient weight upon the rehabilitation of the applicant.
2.The learned sentencing judge failed to place sufficient weight upon the youth and alleged lack of prior convictions of the applicant.
3.The learned sentencing judge placed excessive weight on the need for specific deterrence.
4.The learned sentencing judge erred in finding that the applicant when intoxicated was a 'fighting drunk'.
5. The sentence is manifestly excessive."
It is now necessary to set out in summary form the facts of this matter. The victim, a man called Naughton Jarvis, went to a night club called Wild Bill's Saloon with some other men on Wednesday 12 January last. At about quarter to eleven in the evening they were drinking near the bar. One of these men, Tom Hall, was returning from the toilet when he and the applicant bumped into each other. Although smaller than Hall, the applicant grabbed him and Hall reciprocated. There was some pushing and shoving. However, other men separated them, and there that particular incident seems to have ended. Later, the applicant approached Jarvis and said, "Your mate is a faggot". Jarvis responded, "No, you are, mate". The applicant said, "What did you say?", whereupon Jarvis repeated the remark. After this unedifying and puerile exchange, the applicant then hit Jarvis to the back of the head with a glass beer pot with a handle which he was holding in his hand. The pot broke. The applicant then delivered a number of punches to Jarvis, some of them connecting with his face. The applicant hit Jarvis repeatedly with the glass handle still in his hand - blows described by a witness as "haymakers". When later interviewed by the police, the applicant accepted that he had hit Jarvis when he still had the handle of the glass in his hand. Asked if he continued to have it in his hand when he was punching, the applicant replied, "I think so". The victim had his hands up to his face to protect himself.
Crowd controllers intervened and Jarvis was later taken to Sandringham Hospital, where he was found to have multiple superficial lacerations to the face, scalp, back of his head and hand near his wrist, one three-centimetre superficial laceration to the back of the scalp which required five stitches, and a two-centimetre laceration to the right hand near his wrist which required three stitches. Jarvis has later alleged that the lacerations to his face and wrist resulted in permanent scarring. The next day Jarvis saw a dentist and was referred to a surgeon who discovered two fractures to his lower jaw requiring immediate surgical intervention. This apparently involved an operation to fix the fractures with plates and screws and the bite of this man's jaw has been affected and will require ongoing dental treatment. Jarvis has alleged he suffered concussion and ongoing headaches and was unable to work for six weeks.
The learned judge found, having recited a deal of the evidence, that the applicant continued to hit Jarvis with the broken glass in his hand, and that recovery of the victim would presumably be complete but would require further dental treatment. Remarkably, the police did not ask the applicant how much he had to drink, but the learned judge found, as a result of the reports that I have mentioned, that the applicant had a serious alcohol problem which he thought was the catalyst of his behaviour, and that at the time of offending the applicant was "intoxicated" (see p.18 of the reasons for sentence).
I now turn to the arguments of counsel in this matter. Mr Salek, for the applicant, began his submissions by addressing ground 1, which quickly, as he progressed, became bound up in ground 2. He stressed that his client had no prior convictions alleged against him and now finds himself one of the youngest inhabitants in an adult prison. He has, said counsel, undertaken a very extensive course to counter his problems with alcohol. Counsel cited R. v. Mills [1998] 4 V.R.224 at 241, which page included several propositions advanced by counsel in that case which were, as Mr Salek said, accepted by the Court. These referred to the importance, in the setting of sentencing youthful offenders, that regard be had to youth being "a primary consideration for a sentencing court where that matter properly arises"; rehabilitation, and avoidance of an adult prison sentence if reasonably possible. Mr Salek submitted that there was here an abundance of evidence of rehabilitation in the applicant, and he referred to the Cheetham report (which was part of Exhibit A before the judge) and a reference from the applicant's father which dealt with his work performance and which was dated 18 July 2000.
Mr Salek submitted that the applicant now had full understanding of and regret for his conduct on the night in question, and had demonstrated this now over quite a lengthy period. His lapse into alcohol excess, counsel contended, occurred during a period when he was living away from home. He has now demonstrated prolonged abstinence from alcohol, has attended the Sandringham group of Alcoholics Anonymous repeatedly and has undergone extensive counselling. The Cheetham report, said Mr Salek, included a very favourable prognosis for him. Counsel also referred to R. v. Pickard, a decision of this Court, unreported, [1998] VSCA 50, and I shall later return to that case.
Mr Salek submitted that the report of Dr Walton (which was part of Exhibit A before the judge) included the views that the applicant was "insightful" of the potential toxic and dangerous effects of alcohol upon him; that the applicant had applied himself to appropriate rehabilitation, and that no additional psychiatric treatment was required. The applicant was not, in Dr Walton's opinion, an elevated risk of perpetrating future violent behaviour.
Turning to ground 3, Mr Salek referred to certain sentencing remarks of the learned judge at p.18 of the transcript. These were:
"You [the applicant] chose a singularly vicious weapon, and threw restraint to the winds. Of course you did not intend to seriously injure, but you foresaw the risk and, nevertheless, went ahead. There is, in my judgment, a real need to deter you from repeating your conduct. As I have said, it is greatly to be hoped that your abstinence from alcohol will be lifelong. If it is, the chance of your re-offending may well be small, but should that abstinence cease then you pose a real risk and, therefore, specific deterrence looms large."
Counsel said that he took issue with those remarks. He argued that the applicant had no prior convictions and there was just no pattern of similar offences. Citing Pickard, Mr Salek submitted that this was not a case where, on the evidence, specific deterrence "loomed large", as the learned judge had found, and this submission, counsel said, was the nub of the criticism of the sentence which he was advancing on behalf of the applicant.
Counsel then turned to ground 4 and complained of the judge's description of the applicant as "a fighting drunk" and "a menace". This latter was in an exchange with counsel. The judge, said Mr Salek, had described the applicant also as a "serious threat", apparently because he was a "fighting drunk". Mr Salek submitted that his Honour fell into error in regarding in this case both general and specific deterrence as being paramount. Counsel did allow, however, the circumstance that the non-parole period was half that of the head sentence, but submitted that this could not save a head sentence which he contended was manifestly excessive, and counsel again referred to the case of Mills in this connection.
Mr McArdle, for the Crown, referred to the victim impact statement, which was Exhibit 1 before the judge, and spoke generally as to the nature and consequences of the injuries the applicant inflicted on the victim. As late as June this year, he pointed out, the victim had experienced difficulties with the occlusion of his bite. Mr McArdle submitted that the judge had an obvious familiarity with all the matters in mitigation urged on behalf of the applicant, and it is not to be supposed that he did not give them appropriate weight. Mr McArdle submitted that the applicant's offence was really what he called "a very unpleasant episode" with continuing consequences.
In relation to grounds 3 and 4, Mr McArdle submitted it would be a remarkable case where specific deterrence did not play a part. Despite the applicant's efforts, it was difficult, because alcoholics do have lapses, to predict his future conduct. As for the judge's use of the expression "fighting drunk", Mr McArdle submitted that excessive consumption of alcohol was the obvious and only motive for the applicant's conduct. When to that is added Dr Walton's remark about irritability when in drink and the psychological report's reference to the "school of hard knocks", the appellation of "fighting drunk" and its attendant issues of specific deterrence were quite justified.
I now turn to my conclusions. I would uphold ground 3 of the grounds pleaded, and in that circumstance it is unnecessary for me to address the others. It is true, as counsel remarked during argument, it would be a remarkable case where specific deterrence did not play a part, and in my opinion it properly played a part in the composition of the applicant's sentence. His Honour's views as to this may be derived from the following. In an exchange with counsel he said that the applicant "represents a threat and a serious threat" (p.12). In his reasons for judgment, and relying upon a statement of Dr Walton, he added that the applicant was belligerent when intoxicated and "a menace" (p.17). Again in his reasons for judgment, his Honour said:
"There is, in my judgment, a real need to deter you from repeating your conduct. As I have said, it is greatly to be hoped that your abstinence from alcohol will be lifelong. If it is, the chance of your re-offending may well be small, but should that abstinence cease then you pose a real risk and, therefore, specific deterrence looms large." (p.18) I have come to conclude from the foregoing that the matter of specific deterrence came to apply a contribution to the composition of the applicant's sentence which was not justified on the whole of the evidence, and that in that composition the learned judge fell into error requiring the intervention of this Court. Should other members of the Court agree to that intervention, it will fall to us to re-sentence the applicant.
It was central to the submission of Mr Salek that the case of the applicant was not one which should result in actual service by him of a term of imprisonment. I do not accept that submission. While it was his first offence, the crime of the applicant was a serious one. It was not a case of a single blow delivered, but of repeated heavy blows which caused significant injury. The maximum penalty, as I have said, is 15 years' imprisonment, and to my mind this reflects the seriousness with which Parliament has regarded this particular offence. On the other hand, the evidence of the applicant's efforts at rehabilitation is very impressive; he could scarcely have done more to show his regret for his conduct and his determination to avoid further breaches of the law. His efforts have been sustained and extensive and they should be adequately reflected in any sentence.
Accordingly, I would propose that this application be granted and that the sentence imposed on the applicant in the lower court be set aside as to part, and in lieu thereof he be sentenced to 18 months' imprisonment with 15 months of that sentence being suspended for three years from 17 July last.
CHARLES, J.A.:
I agree that this appeal should be allowed and the applicant re-sentenced in accordance with the reasons given by the Chief Justice.
CALLAWAY, J.A.:
As the learned Chief Justice has explained, the applicant struck the victim to the head with a glass beer pot. The pot broke away from the handle. There is an unchallenged finding that he had the handle in his fist as he continued to strike the victim with repeated "haymaker" blows.
After referring to mitigating factors, including the applicant's having voluntarily undertaken treatment to wean himself off alcohol, his good work history and his having returned home to a devoted and law-abiding family which was supportive of him, and after acknowledging that those matters must be factored into both the head sentence and the non-parole period, the learned judge addressed the applicant in the words that the Chief Justice has read. Immediately thereafter his Honour said that there was also a need to deter others, especially other young men, from behaving as the applicant had done.
There is abundant authority for the proposition that, in the case of youthful offenders, rehabilitation is usually far more important than general deterrence, but his Honour was well aware of that. The reasons for his disposition appear from the passages that the Chief Justice has read and that I have summarised.
In my view there was no tension, as Mr Salek submitted there was, between saying that specific deterrence loomed large and saying that the risk of re-offending was dependent on abstinence from alcohol. (I acknowledge both that the deterrence may be more realistically directed to keeping the applicant off alcohol than to modifying his conduct when intoxicated and that I myself should have given specific deterrence less weight had I been the sentencing judge, but I was not. Compare Lowndes v. R. (1999) 195 C.L.R. 665 at [15] and [38] to [40].) Taking that view, I find it unnecessary to say anything about R. v. Pickard, which may be just as well, for the reason given in the last line of my judgment in that case. See Residual Assco GroupLtd. v. Spalvins (2000) 74 A.L.J.R.1013 at [54].
I am very sorry for the applicant. The courts always try to keep young first offenders out of the adult prison system. But, unlike their Honours, I can detect no appellable error in the sentence. I would therefore dismiss the application.
PHILLIPS, C.J.:
Christopher James Malcolmson, the Court proposes to make an order suspending in part a sentence of imprisonment to be imposed upon you. The law requires that I explain to you the purpose and effect of the proposed order and the consequences which may follow if you commit, whether in or outside Victoria, another offence punishable by imprisonment during the operational period of the sentence. The operational period of your sentence is three years from 27 July last. The purpose of the suspension order is to give you, after you have served the custodial element of the sentence, conditional freedom; conditional in this sense, that if during the operational period you commit an offence punishable by imprisonment, in or outside Victoria, you will be liable to be brought back to court, under arrest if need be, and you may be required to serve the whole of the balance of the sentence. Do you understand that?
APPLICANT:
I understand that.
PHILLIPS, C.J.:
The orders of the Court are:
The application for leave to appeal against sentence is granted, the appeal treated as instituted, heard instanter and allowed.
The sentence imposed on the applicant in the court below is confirmed as to the sentence of 18 months' imprisonment. The non-parole period there fixed is set aside and in lieu thereof the Court orders that 15 months of the said sentence be suspended. The Court fixes a period of three years from 27 July 2000 as the period during which the applicant must not commit another offence punishable by imprisonment if he is to avoid being dealt with under s.31 of the Sentencing Act.
The Court declares that the period of 54 days is the period of pre-sentence detention already served by the applicant as part of the said sentence and directs that the making of this declaration and its contents be entered in the records of the Court.
(To applicant): You have now seen what an adult prison is like.
APPLICANT:
Yes, your Honour.
PHILLIPS, C.J.:
For your information, an offence punishable by imprisonment includes being drunk and disorderly in a public place, and a relatively minor offence like common assault, so if you are minded to see more, and perhaps much more, of an adult prison, all you have to do is commit an offence like that during the next three years or so. Do you understand?
APPLICANT:
Yes, I do.
PHILLIPS, C.J.:
The Court has done all it can for you consistently with recognising the seriousness of your offence. You seem to have a very fine family. Don't let them down, don't let yourself down and don't let the Court down. You can bring Mr Salek back again later, but if you break this suspension order the overwhelming probabilities are that you may have to serve the whole of the balance of the sentence. Understood?
APPLICANT:
I understand.
PHILLIPS, C.J.:
We don't want to see you again.
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