R v Rushby
[2002] VSCA 44
•27 March 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 17 of 2002
| THE QUEEN |
| v. |
| ROBERT JOHN RUSHBY |
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JUDGES: | CALLAWAY, BATT and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 March 2002 | |
DATE OF JUDGMENT: | 27 March 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 44 | |
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CRIMINAL LAW - Sentencing - Recklessly causing serious injury and injury - Vicious attack after searching for victims - Prior convictions - Youthful offender - Offender now doing well in army - Whether judge entitled to find he was likely to re-offend - Three years' imprisonment with 18 months non-parole period not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S.E. Pullen | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr P.F. Tehan, Q.C. | D. Tonkin & Associates |
CALLAWAY, J.A.:
I shall invite Batt, J.A. to deliver the first judgment in this case.
BATT, J.A.:
The applicant, Robert Rushby, who was born on 30 May 1980, pleaded guilty on arraignment in the County Court at Melbourne on 31 January 2002 to one count of recklessly causing serious injury and one count of recklessly causing injury. The maximum penalties applicable to those counts were imprisonment for 15 years and imprisonment for 5 years respectively. The applicant admitted five previous convictions and ten previous findings of guilt, sustained in 1996, 1997 and 1999, from four appearances in court. They included causing injury intentionally or recklessly, unlawful assault and discharging a missile to the danger of a person.
On the same day a plea in mitigation of penalty was made and, later in the day, his Honour sentenced the applicant to be imprisoned for 36 months on the count of recklessly causing serious injury and 12 months on the count of recklessly causing injury, those sentences to be served concurrently. The total effective sentence was thus 36 months' imprisonment. His Honour fixed a non-parole period of 18 months.
The applicant seeks leave to appeal against sentence on grounds which, after amendment pursuant to the order of the Registrar made on 13 March 2002, may be summarised as being:
1. the sentence was manifestly excessive;
and the judge erred in finding:
2.that the crimes the applicant pleaded guilty to "could easily have led to you being before the Supreme Court on even more serious charges";
3."It matters not whether you thought your brother had been wronged by Mr Dunlop"; and
4.that the applicant was likely to be a re-offender.
The offences occurred at a service station in Frankston on 25 January 2001 and at least the first of them was committed in concert with the applicant's younger brother, Christopher. The victim of the more serious offence was a man called Dion Dunlop and the victim of the other offence was Elizabeth George, a friend of his and a passenger in his car. The detailed facts relating to the offences are set out clearly and accurately in his Honour's sentencing remarks. Nothing is to be gained by repeating them. Rather, I shall treat them as incorporated in these reasons and shall simply refer to some salient features. The attack on Mr Dunlop was vicious, frenzied, unrelenting and terrifying. It was committed under the stimulus of excessive consumption of alcohol and rage at what the applicant and his brother considered contumely on the part of Dunlop towards the brother and ultimately towards the applicant in an incident earlier in the evening near the Frankston pier. The applicant had the opportunity to report Dunlop's conduct to the police as they were in attendance near the pier but did not do so. Rather, the brothers decided to take the law into their own hands and persuaded an acquaintance to drive them around the area in search of Dunlop. In short, they acted as vigilantes. His Honour expressed himself as satisfied that the applicant pursued Dunlop with the intention of inflicting retribution on him for the wrong the applicant perceived he had committed. His Honour had specifically put to counsel during the plea, and counsel had accepted, that such a finding was well open. His Honour clearly regarded that matter as significant, for he mentioned it in his reasons four times by my count. It is immaterial, in my view, if it be the case, that the applicant had given up the pursuit for want of success and was on the way home, so that the eventual finding of the intended victim was fortuitous. The applicant used a baseball bat to strike one blow upon Dunlop when he was on the ground and then gave the bat to his brother. Otherwise he rained blows with fists and kicked Dunlop to the head and upper body when he was down, causing him to bleed from wounds to the head. The second offence was constituted by a punch delivered by the applicant to the face of Ms George with enough force to knock her to the ground, split her lip and loosen a tooth. Although affected by alcohol, the applicant was still able to take steps designed to prevent his being identified.
Dunlop sustained a closed head injury with a left temporal subdural haemorrhage and a left temporal lobe contusion. He required hospital treatment and rehabilitation for the injuries. They have resulted in severe short term memory difficulties and other problems, which are regarded as long term deficits. There is no doubt these injuries were serious. Ms George did not require medical treatment.
The applicant appears to have had a normal and stable family life as a child, with parents shown to be supportive of their two sons, but he left school at 15, in part, it is said, because of a physically and emotionally traumatic experience. He drifted into alcohol abuse and bad company, though he never used illicit drugs. He did not obtain employment until he was 17, when he commenced a cabinet-making apprenticeship under the direction of his father. There were still some months of apprenticeship remaining when he joined the armed forces on 20 March 2001, that is, after these offences, though an affidavit filed today shows that he applied to join before the commission of the offences. He formed a relationship with a woman four years his senior when he was 15. They have a son aged five and a daughter aged three-and-a-half. The offences now in question occurred when they were separated, but they were subsequently reconciled and the applicant secured married quarters at Holdsworthy in New South Wales in July 2001. Most of the applicant's prior offending was juvenile criminal behaviour and dealt with in the Children's Court. One group of those offences arose out of an argument with his de facto after they had both consumed too much alcohol. According to what he told Mr Healey, the clinical psychologist, she hit him on the head with a shoe and he punched her (about which he remains, Mr Healey reports, ashamed).
Mr Healey found the applicant to be above average capacity intellectually with an IQ placing him in the 84th percentile. Personality testing was not indicative of major psychological or emotional disturbance. According to what the applicant told Mr Healey, the shock of the offending caused him to revise his lifestyle and in particular seriously to address his alcohol consumption. Since he commenced training as a paratrooper in July 2001 his consumption has been virtually non-existent. In his report Mr Healey expressed the following view:
"Whatever problems he had in the past, with associated emotional manifestations, they have undergone significant attenuation accompanying his wholehearted application to a career in the Army, stabilisation of his relationship and the interaction he enjoys with his partner and their two children. In this positive adjustment, he has been greatly assisted by the elimination of alcohol during his period of training, and very limited consumption subsequently."
Three highly laudatory references from commissioned and non-commissioned army officers were tendered to his Honour. The applicant was described as an exceptional soldier with a very bright future and his behaviour, both in a working and in a social environment, as being nothing short of exemplary. His platoon commander said that he showed an above average level of initiative and enthusiasm and within a few months had progressed as a soldier to a standard normally achieved after approximately one year. He was an above average soldier. A corporal said that he had demonstrated maturity in all aspects of his work. It appears that the applicant had responded well to the discipline of the army.
In the course of his sentencing remarks his Honour said that he took into account the contents of Mr Healey's report and the military references. He had earlier in his remarks stated that in seeking retribution against Mr Dunlop the applicant had engaged in most serious criminality and that one could only express complete disgust and condemnation for his cowardly and entirely unprovoked violence on a female. The judge listed, as aggravating features of the offending conduct, pre-planning, the use of a weapon and the consumption of alcohol. He took into account as mitigating factors the plea of guilty together with the early intimation of intention to do so, and the applicant's ready admission of his role. He accepted that the plea indicated remorse. His Honour said that in imposing sentence he took into account: (1) special and general deterrence; (2) the protection of the community from the applicant and the likelihood of his re-offending; (3) rehabilitation; (4) the need to denounce the applicant's conduct; and (5) the need to impose a punishment which was, in all the circumstances, just. As to (2) his Honour said:
"I consider you to be a likely re-offender, despite your good behaviour as a member of the Australian Defence Forces. Your previous criminal activity ... and the circumstances of these offences lead me to some disquiet that you are able to conduct yourself responsibly in all situations. The community is entitled to protection from the risk of your re-offending."
As to (3), his Honour said:
"At the age of 21, you are of an age at which rehabilitation is important. You have shown a good start at rehabilitation, although within a highly disciplined environment of the Australian Defence Forces. It remains to be seen how and whether you are able to discipline yourself outside that environment."
His Honour noted that counsel for the applicant conceded, in his view properly, that the offences called for a sentence of imprisonment, as the prosecutor, too, submitted, but that counsel had submitted that the sentencing principles could be adequately and sufficiently met by the imposition of a wholly suspended sentence and that the prosecutor had submitted that such a disposition was within the range of sentencing options open. His Honour noted that counsel argued that the imposition of an immediate term of imprisonment would result in the termination of the applicant's career as a member of the Australian Defence Force, but that a wholly suspended sentence of imprisonment would "leave open a window of opportunity" that the applicant could continue to serve in the armed forces. His Honour said that there was no evidence, and no statement on behalf of the Australian Defence Force, about the effect of such a disposition on the future of the applicant's service in the armed forces. (It appears that an army major was present in court when counsel made the statement.) This Court has been informed today, by means of an affidavit and a facsimile message from a Captain McFarland of the Third Battalion, and without objection by the respondent, that, if the applicant were to win his appeal without any restrictions upon his rendering effective service (which covers a suspended sentence), he "may have a point of argument why he should not be discharged", but that if he cannot offer effective service he will be discharged. A notice to show cause why discharge should not occur has been issued but not yet served on the applicant because he has been moved from one custody centre to another.
To return to his Honour's sentencing remarks: the judge then expressed the view that no sentence other than one involving deprivation of the applicant's liberty would adequately and properly reflect the relevant sentencing considerations. He acknowledged the importance of the principles referred to in R. v. Mills[1] concerning youthful offenders. He concluded that, notwithstanding the progress the applicant seemed to have made since enlisting and despite the fact that serving a term of imprisonment might well bring that career to an end, such a sentence was, in all the circumstances, called for. He then proceeded to impose the sentence set out earlier.
[1][1998] 4 V.R. 235.
It is convenient to take the added grounds of appeal first. Today Mr Tehan said that they (grounds 2, 3 and 4) were elements of the first ground alleging that the sentence was manifestly excessive, though I think he did argue ground 4 as an independent ground also. As to the second ground, the statement that the offending could easily have led to the applicant's being before the Supreme Court on even more serious charges is, I take it, a reference to reckless murder and manslaughter by unlawful and dangerous act. It was merely a cautionary or minatory comment such as is not infrequently made, particularly to young offenders. It is clear from his Honour's detailed discussion of the offending both that he was sentencing the applicant for the two offences to which he had pleaded guilty and no other offence - and Mr Tehan accepted this - and also that he was not treating the possibility referred to in the statement criticised as an aggravating factor.
As to the third ground, whilst thinking that his brother had been wronged by Dunlop (as I would find the applicant did think) might go some way to explain the applicant's offending, it did not palliate the offences. It was not a mitigating factor of any significance, for any "provocation" (in the non-technical sense) offered near the pier was far too distant in time from the offending some hour or hours later. The attack was not committed on the spur of the moment or in a paroxysm of anger that was sudden. His Honour was therefore not incorrect in the remark criticised in this ground.
The fourth ground, challenging his Honour's finding that the applicant was likely to be a re-offender, is more debatable. I take the word "likely" as there used by his Honour to import only that re-offending is a real chance or possibility, not that it is more likely than not[2]. That that was his Honour's meaning is confirmed by his Honour's statement, "I consider that there is a real risk of your re-offending", made when dealing later with the prosecution's application under s.464ZF of the Crimes Act 1958. Was his Honour, then, wrong in the finding so understood? This, in my view, is the crux of this application and it is a question far from easy to answer. Mr Tehan submitted that the finding was too harsh and not consistent with the materials before his Honour, for three reasons. First, it is very difficult to make a finding of that order and with the confidence which his Honour displayed. Secondly, it is too harsh having regard to the age of the applicant: 20 at the time of offending, 21 at the time of sentence. Thirdly, his Honour placed far too much weight on the previous convictions and particularly upon that for intentionally or recklessly causing injury. Mr Tehan said that those previous offences had to be understood against the background, some of which I have painted, and on which he expanded. Of course, he said, recklessly causing serious injury, taken together with the element of going in search of the victims and the particular prior conviction, would make one prima facie have to be guarded, but, he submitted, his Honour had made a high and over-confident finding which was not fairly open. As to his Honour's concern about how the applicant would behave in an unstructured environment, Mr Tehan pointed out that the army was the applicant's life career and the fact of the matter was that he was in the structured environment of the army, albeit that he might from time to time find himself, as I understood it, for brief periods outside that structure, on leave and in like situations. Even if the applicant's statements to Mr Healey be discounted to some extent, the army references were, to my mind, not only impressive but eloquent of reformation achieved. His Honour did mention the applicant's time in the army, five times by my count, though, as it seems to me, in somewhat subdued terms. Moreover, great weight was not to be placed, in my opinion, on the juvenile offences. The question comes down, as it seems to me, whether his Honour was entitled to consider that there was a real chance or possibility that the applicant would revert to excessive intake of alcohol and fail to control what his Honour called his low flashpoint. As to that, after most anxious consideration both before and after the hearing of argument, I am not persuaded that his Honour was not entitled to do so, to the necessary standard[3].
[2]Cf. Marks v. GIO Australia Holdings Ltd (1998) 196 C.L.R. 494 at 505 and cases there cited, and Boughey v. The Queen (1986) 161 C.L.R. 10 at 18-23.
[3]Cf. R. v. Pickard [1998] VSCA 50.
I come finally to the first ground, that the sentence was manifestly excessive. This was argued by Mr Tehan attractively and with candour. He submitted that the judge, by the sentence he had imposed, must have placed insufficient weight upon the following considerations: the plea of guilty to offences, as he reminded us, of recklessly causing serious injury and recklessly causing injury, as opposed to intentionally doing so; the applicant's long-term relationship with the young woman and their two children, which was now stable; the nature of and circumstances surrounding the applicant's prior conviction for intentionally or recklessly causing injury; the fact that the applicant had done his best to rehabilitate himself and that his prospects were reasonably good; the fact that the Crown had submitted that a suspended sentence of imprisonment was within the range; and the applicant's age at the time of the offences and at the time of sentence.
In expanding upon the applicant's rehabilitation achieved and prospective, Mr Tehan drew attention to his army career, to the fact that he had given up alcohol and to the references to which I have already referred. He submitted that the judge had made only passing reference to that material in his sentence. (My view of what his Honour did I have already expressed.) He submitted that, coupled with what he had put in support of ground 4, the judge had completely under-estimated the strength of the material, which clearly demonstrated that the applicant had very good prospects for rehabilitation. Mr Tehan referred to other decisions of this Court and its predecessor, but I do not find comparison with them helpful. His submission really came down to this - and it was a powerful point: this man deserves a chance. He accepted that, in the circumstances of the offending with the element of searching and the prior convictions, it was probably on the cards that he would receive a gaol term, but the circumstances relating to those prior convictions required some amelioration of their effect and the sentence should have been wholly, or at least substantially, suspended.
As has often been said, whether a sentence is manifestly excessive does not admit of much argument. It must be understood that this Court, unless and until it finds specific error or error in the exercise of discretion, is only a court of review, not a court of re-hearing. The question is not whether this Court, if it were sentencing the applicant, would impose the same or a more lenient sentence. Rather, since sentencing is a matter of discretion par excellence, the question is whether the sentence imposed was within the range of sentences open to his Honour in the exercise of a sound discretionary judgment. In my view, though somewhat severe, the sentence was within that range. Without placing much store by the previous convictions and findings of guilt, my principal reason for the view I have expressed is the seriousness of offending, as explained by his Honour and by what I have said, coupled with the criminality on the part of the applicant thereby demonstrated. Vigilante offending is regarded very seriously by the courts: DPP v. Whiteside and Dieber[4]. I refer to but do not repeat the aggravating factors mentioned earlier. Specifically, it cannot be said, in my view, that his Honour was bound to be satisfied that it was, in the language of s.27(1) of the Sentencing Act 1991, desirable to suspend the whole or part of the sentence of imprisonment he was imposing. The somewhat shorter than usual non-parole period fixed shows, to my mind, that his Honour had not overlooked the applicant's rehabilitation.
[4](2000) 1 V.R. 331 at 337 and 338-9.
For the foregoing reasons I would dismiss this application. I am very conscious of the likely effect of my conclusion, if agreed in by the other members of the Court, on the applicant and his family. I have reached it with much regret, for I have been most impressed by the evidence of the applicant's reformation, but adherence to principle, I consider, compels the conclusion I have expressed.
CALLAWAY, J.A.:
This application strikes a chord with me because of my own military service, but the law must be administered even-handedly, without favour as well as without fear.
In my opinion, substantially for the reasons Batt, J.A. has expressed, there is nothing in grounds 1 to 3.
Ground 4 is the only ground that has caused me some concern, especially having regard to the majority judgment in R. v. Pickard[5]. But, in the end, I agree with Batt, J.A. that it, too, must fail. I interpret the learned sentencing judge's reference to the applicant's being "a likely re-offender" in the same way as Batt, J.A. In addition to the authorities that have been cited, the judge himself provided a dictionary as to the meaning of that phrase when, a little later in the sentencing remarks, he said that he considered there was "a real risk" of the applicant's re-offending. His assessment was not based solely on the applicant's previous convictions. It was based also on the instant offences, including the applicant's admission that even if he had not been drinking he still would have hit Dunlop, even though he might not have used the baseball bat. The judge was guarded in his reception of the applicant's statement to Mr Healey that he now virtually abstained from alcohol. His Honour took full cognisance of the rehabilitation that the applicant had achieved within the highly disciplined environment of the Defence Force, but was understandably concerned with the further question of the applicant's future conduct outside that environment, as a man whom he perceived to have a very low flashpoint. When all those matters
are taken into account, it was open to the judge to be satisfied beyond reasonable doubt not that the applicant was more likely than not to re-offend but, in his Honour's words, that there was a real risk of re-offending.
[5][1998] VSCA 50.
For these reasons I, too, would dismiss the application.
VINCENT, J.A.:
I agree that the application should be dismissed, and I do so for the reasons advanced by the learned presiding judge and Batt, J.A.
CALLAWAY, J.A.:
The order of the Court is:
Application dismissed.
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