R v Martin
[2002] VSCA 42
•11 April 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 421 of 2000
| THE QUEEN |
| v. |
| LEWIS UPSAL MARTIN |
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JUDGES: | CALLAWAY, BATT and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 March 2002 | |
DATE OF JUDGMENT: | 11 April 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 42 | |
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Criminal law – Sentencing – Recklessly causing serious injury – Fight initiated by victim but self-defence rejected by jury – Psychological effect of previous attacks by others on applicant – General and specific deterrence – Rehabilitation – Sentence of three years' imprisonment with non-parole period of 18 months not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Pullen | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr T. E. Wraight | Leanne Warren & Associates |
CALLAWAY, J.A.:
The applicant, who is now aged 37, was presented in the County Court at Bendigo on one count of intentionally causing serious injury and an alternative count of recklessly causing serious injury. He claimed that he had been acting in reasonable self-defence, but the jury rejected that view of the facts and convicted him on the alternative count, the maximum custodial penalty for which is 15 years' imprisonment. The applicant admitted 35 previous convictions from 14 court appearances in the Magistrates' Court between December 1980 and January 1999. They included four charges of assault occasioning actual bodily harm, three charges of assaulting a member of the police force in the lawful execution of duty and one charge, as recently as January 1999, of recklessly causing serious injury. The suspended sentence imposed on that occasion was breached by the present conviction.
After hearing a plea for leniency on his behalf, the learned trial judge sentenced the applicant to three years' imprisonment with a non-parole period of 18 months. He seeks leave to appeal against that sentence.
There are five grounds of appeal. The first is that the judge placed excessive weight on general and specific deterrence. The second is that her Honour placed too little weight on the applicant’s prospects of rehabilitation. The third is that she failed properly to distinguish the conduct in this matter from the conduct in the applicant’s last conviction in January 1999 and placed excessive weight on all the applicant’s previous convictions. The fourth is that insufficient weight was given to the psychological evidence of the impact that two previous attacks had had upon the applicant. The fifth is that the sentence imposed is manifestly excessive.
Before turning to counsel’s submissions I shall say something briefly about the circumstances of the offence. On 20th November 1999 the applicant spent the day drinking at various hotels in Kyneton, in the course of which he was involved in a dispute with a Mrs Glenda West. She was the mother of Bianca West, the then girlfriend of one Shane Muir. As the applicant was returning home that evening, having been evicted from one of the hotels, Bianca West pointed him out to Muir, who was himself drinking in a hotel, and told him about the dispute earlier in the day. Muir was led to believe that the applicant had assaulted Mrs West.
Muir went across the road to the applicant’s residence and knocked on the door. The applicant answered and Muir said words to the effect, “Have you been harassing Glenda?” The applicant, who had vacant bloodshot eyes and looked affected by alcohol, replied offensively and a fight ensued.
During the course of the fight, which was relatively brief but intense, both men went to the ground and the judge accepted that it appeared that Muir was getting the better of the applicant. Her Honour continued:
“In order to bring the fight to a stop, either because you were fearful of its possible consequences to you or because you wanted to win the fight, you bit Mr Muir on the superior aspect of his right ear, biting through the cartilage and effectively divorcing the upper ear from Mr Muir’s head. Not surprisingly, this did bring the fight to an end. Mr Muir made repeated requests for the return of his ear, but you instead bragged and gloated that you had won the fight and had eaten the ear, which was in fact the case.
Mr Muir was subsequently taken to the Kyneton Hospital and from there to the Royal Melbourne Hospital. He was operated on the following day and subsequently underwent four further operations in an endeavour to reconstruct the ear. A further and final operation is anticipated to strengthen the ear. You suffered a number of bruises and the like during the altercation and Mr Muir was charged and pleaded guilty to recklessly causing injury to you.”
Mr Wraight submitted that her Honour’s reference in that passage to bragging and gloating failed to take account of certain questions and answers in the applicant’s record of interview. I do not accept that submission. Those questions and answers showed no more than that the applicant was physically disgusted by the fact that he had ingested part of the victim’s ear.
Counsel’s principal submissions were directed to the fact that the fight came to the applicant, a point of which her Honour was entirely cognisant, and the psychological impact of the previous attacks referred to in ground 4.
In May 1998 the applicant had been attacked by three men with a knife and was kicked to the head, losing consciousness and sustaining multiple injuries. In February 1999 he had been attacked by four men wielding baseball bats and a metal bar. Mr Healey, a clinical psychologist, expressed the view that those incidents had left the applicant with considerable apprehension for his life and well-being and contributed significantly to his reaction at the time of the incident in November 1999, “where, for the third time, he found himself in a life-threatening situation”. In her sentencing remarks the judge accepted that the previous attacks had affected the applicant’s perceptions of his predicament when he was fighting with Muir, especially as friends of the victim were present.
Counsel took us to the evidence of rehabilitation that was led on the plea, with emphasis on that of Mr Donald Howard, with whom the applicant had worked when he was completing the conditions of a community based order. The applicant was making an effort to change his life and it was said that he had abstained from alcohol for some nine or ten months. Mr Howard spoke highly of the applicant and said he was a man he would invite into his own home. Ms Angela Fooks, a social worker, also reported favourably on the applicant’s efforts to escape from chronic alcoholism and his hopes of “getting his life back on track”. There were also a pre-sentence report and character references.
The previous offence of recklessly causing serious injury had arisen when the applicant had discovered the victim asleep in his girlfriend’s bed. As ground 3 suggests, the circumstances were different, but they were both acts of drunken violence. There is nothing in either branch of that ground.
All the other grounds of appeal say, in one way or another, that the sentence imposed was manifestly excessive. The test is not, of course, what sentence this Court would have imposed but whether the sentence was within the range. I might myself have given more weight to the psychological effect of the previous attacks on
the applicant, but I cannot say that her Honour was bound to do so. The non-parole period shows that appropriate weight was given both to the applicant’s prospects of rehabilitation and to the efforts that he had already made in that regard. It cannot be said that too much weight was given to either general or specific deterrence.
In the ordinary course this application would have come before a single judge of appeal pursuant to s.582 of the Crimes Act 1958. It is solely because of the procedural history of the matter that it has come before three judges in the first instance. Had I been hearing the application as a single judge, I should have refused leave to appeal. I would dismiss the application.
BATT, J.A.:
I agree with Callaway, J.A.
VINCENT, J.A.:
I agree for the reasons advanced by Callaway, J.A. that this application should be dismissed.
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