R v Vandenberg
[2009] VSCA 9
•5 February 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 90 of 2008
| THE QUEEN |
| v |
| JOHN PATRICK VANDENBERG |
---
JUDGES: | NETTLE and DODDS-STREETON JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 February 2009 | |
DATE OF JUDGMENT: | 5 February 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 9 | |
---
CRIMINAL LAW – Sentencing – Manifest excessiveness – Recklessly causing serious injury (one count) and intentionally threatening serious injury (one count) – Severe attack resulting in enduring disabilities – Whether judge placed undue emphasis on the impact on the children of the appellant who were the victim’s natural children – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr P F Tehan QC | Michael Gleeson & Associates |
NETTLE JA:
In this case, the appellant appeals with leave against a total effective sentence of three years and nine months' imprisonment, with a non-parole period of two years, imposed on him on pleading guilty to one count of recklessly causing serious injury and one count of intentionally threatening serious injury.
The judge sentenced the appellant on the count of recklessly causing serious injury to three years and six months' imprisonment and on the count of intentionally threatening serious injury to six months' imprisonment, and ordered that three months of the latter be served cumulatively on the former.
The circumstances surrounding the offences are set out in detail in the judge's sentencing remarks and it is unnecessary to repeat them at length. Suffice it to say for present purposes that the appellant was born on 12 October 1974 and at the time of the offences on 5 May 2007, was 32 years of age and living in a de facto relationship with a woman, Janet Senior.
Janet Senior had previously lived in a de facto relationship with the victim and had borne him three children but left the victim and their children in 2001 in order to be with the appellant. In or about late 2004 early 2005, however, the appellant asked them both to come and live with him, as tenants, and thereby share the financial load and be available to care for the children when the victim was working night shifts. That arrangement operated it seems more or less satisfactorily for something like two years until the commission of the offences.
At about 6 p.m. on 5 May 2007 there was an argument between Janet Senior and the victim about rent payable. It seems that she and the appellant had paid their rent to the victim in the expectation that he would pay it to the landlord, but that the victim had used the money for other purposes, perhaps gambling, and therefore that the rent due to the landlord had fallen some $2,000 into arrears and the landlord was threatening to evict them. Following that argument, the victim left to go to the Hallam Football Club for the evening.
Later, when the appellant returned home from work, Janet Senior told him what had happened and, in response to what she said, at approximately 6.53 pm that evening the appellant called the victim's mobile telephone and left a voice message in these terms:
You dog. I'm a guest in your house? I pay your rent and I fucking help keep a roof over your head. So if you've got a fucking beef you take it out with me, cunt, not with Janet. You and me are going toe to toe and I'm going to break your neck. Alright, that's a promise not a threat cunt.
When the victim returned home at around 11 pm that evening, he found a note saying: 'Guest in your house? I'm keeping a roof over your head, cunt.’
Close to midnight, Janet Senior and the appellant returned home and the appellant confronted the victim. The victim said that he was going to drop the appellant, and the appellant replied, 'Bring it on then.'
Aware that there were children in the house, the appellant and the victim began to move outside to fight. As they went to go out the door, the victim hit the appellant in the head and they began to punch each other. The appellant then knocked the victim over with what was described as a 'spear tackle', which caused the victim to fall backwards and hit his head on the coffee table, and the appellant then kicked the victim in the head repeatedly. The victim tried to defend himself against the kicking, and Janet Senior attempted to stop it, but the appellant would not stop. He continued to kick the victim more than once in the head until the victim was rendered unconscious.
Later, an ambulance and police arrived and the victim was taken to the Alfred Hospital Intensive Care Unit. He remained there in a coma until 23 May 2007 and was then transferred to the Neurology Ward and subsequently to the Royal Talbot Rehabilitation Centre Acquired Brain Injury Unit where he remained for 15 weeks. His injuries were extensive. He sustained a severe traumatic brain injury with left frontal contusion, traumatic subarachnoid haemorrhage, and midline haemorrhagic contusions to the dorsolateral midbrain. He suffered post-traumatic amnesia for 47 days and for a period was fully dependent in care, and he required assistance with all mobility, was incontinent of urine and faeces, needed full assistance to eat and was not able to communicate. He has no memory of the incident.
According to his victim impact statement, which was not challenged, the victim was still a long way from full recovery at the time of sentencing. He was under the care of Southern Health, undertaking intensive physiotherapy three times a week, as well as occupational therapy. His balance was still very unstable and he was worried that he would fall and hit his head. Doctors then were unable to advise when or if he would be able to return to work and he could no longer drive a car.
The victim had suffered financially too. At the time of sentencing, he had lost over $15,000 in wages. His car had been repossessed. He was attempting to live on a sickness benefit whilst his application for a disability pension was being processed. He had been a sub-contractor and therefore had no sickness entitlements and was required to pay off his ambulance bill by instalments. He had been forced to move out of his home in which he had lived with his children and they had been placed in foster care. He was worried about the effects on them and how he could get them back. To say the least, his life had been changed for the worse dramatically. Counsel for the appellant announced from the Bar table that in August 2008 the victim had returned home and now had his children with him and once again was able to drive. But even if that were so, in my view it would in no way detract from the enormity of the harm which had been done to him. If anything, the fact that he could not return home until August 2008, some fifteen months after the offence, emphasises the extent of the harm.
Ground 2: Procedural fairness concerning the victim’s children
The second ground of appeal, which was argued first, was that the judge denied the appellant procedural fairness by taking an issue into account adversely to the appellant without first allowing defence counsel an opportunity to call evidence on the point or make submissions about it.
The complaint centred on the following passage in the judge's sentencing remarks, which appeared immediately after a recitation of the contents of the victim's impact statement, thus:
The consequences of the assault upon Mr Senior are extremely grave and continuing. He has suffered significant pain and loss of enjoyment of life. He has continuing serious and debilitating physical and mental injuries. He has lost his employment and any income and prospects to date which may be permanent. He lost the ability to care for his children. The current plight of the victim's three sons was not disclosed to the court. No explanation was given as to why their mother [your partner] did not assume full-time care of them following the assault, and indeed she did not make any mention of her sons while giving evidence on your behalf. These children, one of whom witnessed the assault and made a statement via a VATE tape, are clearly unseen victims in this matter.[1]
Counsel for the appellant argued that one can see in that passage of the judge's sentencing remarks that the judge was concerned that the impact of the offending upon the victim's children was likely to be exacerbated by Janet Senior's failure to take over their care during the victim's convalescence, and he submitted that the judge should not have held that concern against the appellant without first making it known to counsel so as to enable him to obtain appropriate instructions and provide further evidence and material.
[1]Sentencing remarks [33], emphasis added.
In my view, the argument is misplaced. As I read the passage to which I have referred, the first four sentences of it are simply a recitation of the victim's unchallenged victim impact statement. No objection is or could be made to his Honour's reference to that material.[2] There is then the fifth sentence, which is an accurate statement of the fact that at the time of sentencing the court did not have available to it any more recent information as to the plight of the children than was contained in that victim impact statement. In that context, the sixth sentence is in my view merely exegetical of the fifth, in the sense of emphasising that, in spite of what might naturally have been expected to occur, upon the available evidence the children had remained in foster care. And then there is the final sentence, which is a statement of the obvious.
[2]See R v Swift (2007) 15 VR 497.
Defence counsel must be taken to have known what was contained in the victim impact statement and the content of Janet Senior's evidence. It may also be assumed that defence counsel did not have to be told that, if he wished to establish that the children's plight had improved since the making of the victim impact statement, he would need to adduce evidence of that fact. Defence counsel would thus well have understood that, in the absence of such evidence, the judge would conclude, as apparently she did, that the plight of the children remained as it was before.
It follows in my view that there is nothing in the passage which I have set out above that implies a denial of procedural fairness.
Ground 3: Denial of procedural fairness concerning the appellant’s employment history
Under cover of Ground 3, counsel for the appellant contended that the judge had denied the appellant procedural fairness by taking into account apparent deficiencies in the evidence of his employment history.
That contention was based upon the following passages in paragraphs [17] and [19] of her Honour's sentencing remarks:
17. You were born on 12 October 1974, which makes you now 33 years of age. The following documents were tendered on your behalf:
(a) letter from Echowise undated, bearing the facsimile signature of Peter Pieri, Area Manager which confirms that you are a valued employee currently employed as a Hygiene Operator. There are no other particulars of how long you have been employed on your particular duties;[3]
(b) letter from the Salvation Army dated 18 September 2007 which confirms that you have completed a six-week Anger Management Program and eight sessions of a Relapse Prevention Program;
(c) reference from your uncle, Ron [O'Neill] dated 4 August 2007, the context of which I note; and
(d) Report of Ian Joblin, Forensic Psychologist, dated 8 October 2007.
…
19. I draw upon Mr Joblin's report for your family, education, employment and social background. You told Mr Joblin that your parents separated when you were about five years old after which you had no contact with your father. Your mother remarried but you did not have a close relationship with your stepfather. You have a younger brother and stepsister. You completed Year 11 and then report a series of unskilled jobs none of which you provided any particulars. Mr Joblin's report merely refers to you having performed some rural work, a succession of jobs as a security guard and work as a cleaner. At the time of Mr Joblin's report you were employed as a cleaner but it is not clear whether that was your most recent employment.[4]
Counsel argued that the emphasised sections in those passages show that the judge was concerned about the absence or the lack of particulars of the appellant's employment with Echowise and of the unskilled jobs of which he had told Mr Joblin, and that the judge should not have been so concerned, or at least should not have held that concern against the appellant, without first giving defence counsel notice that she was concerned and an opportunity to allay the concern.
[3]Emphasis added.
[4]Emphasis added.
In my view that argument is also without merit. Each of the impugned observations does no more than provide an accurate description of the quality of the evidence on which the appellant relied. There is no suggestion of the judge being concerned by any shortcomings in the quality of the evidence so described, still less of regarding such shortcomings as reflecting adversely upon the appellant's plea for leniency. It is true that the judge might have been better placed to impose sentence if the evidence had not been affected by the shortcomings to which it was subject. But the limitations and the inevitable consequences of them were undoubtedly apparent to all concerned on the plea. Whatever criticisms might properly be made of paragraphs [17] and [19] of the sentencing remarks, I do not consider that they were indicative of sentencing error.
Ground 4: Error of fact
The contention advanced under ground 4 was that the judge had erred in the finding that:
Your partner described you as about 6 feet 4 inches and weighing about 103 kilograms. Clearly you are a formidable size. You foreshadowed to your victim by a threatening phone message that you intended to physically assault him. You confronted him late in the evening when he was causing you no harm or threat whatsoever. There is no question that he initially agreed to participate in that fight with you. However, after punching him to the ground you chose to continue your assault by multiple forceful kicks to his head. Your assault was vicious and cowardly and aggravated by the fact that it was performed in the presence of two young children – your 4-year-old daughter and the 13-year-old son of Mr Senior and your partner.
It was submitted in particular, that the judge was wrong in finding that the appellant had 'punched the victim to the ground', when the evidence was that he had 'spear tackled' the victim to the ground; and wrong in finding that the victim was causing the appellant 'no threat or harm whatsoever'.
I reject the first point as captious. It is plain from the context that the judge used the participle 'punched' as a synonym for the ‘spear tackle’, which she had earlier described in some detail, thus:
On the way, Mr Senior punched you in the head and you both then proceeded to punch each other.[5]
[5]Sentencing remarks [36].
As to the second point, the judge had earlier found that:
There is no evidence or suggestion that the victim had been previously physically abusive or threatening toward you in any way.[6]
It was contended that that finding was not open. Counsel for the appellant submitted it was clear, that the victim was causing the appellant some threat or harm because, as he put it, the victim had probably squandered some $2,000 in rent that the appellant and his partner had paid him and because the victim had later that night struck first in the circumstances already described. Counsel for the appellant argued that the judge's observation as to the victim not having previously been physically abusive or threatening did not reflect those circumstances and so was erroneous.
[6]Sentencing remarks [35].
As I see it, that argument breaks down at several levels. First, it is clear that the judge understood the circumstances in which the fight began, because she had described them accurately and in detail earlier in her sentencing remarks. Secondly, when read syntactically, it is apparent that her Honour's reference to the victim not having previously threatened violence was concerned with the events which had preceded the circumstances thus described. Thirdly, and consequently, the point of her Honour's observation was plainly that, although the victim struck the appellant first as they were moving outside, the beating which the appellant then meted out to the victim was properly to be assessed against the background of the victim not previously offering any abuse or threat of violence; the appellant's threatening text message to the victim that the appellant intended physically to assault the victim; and the appellant's physical confrontation of the victim later in the evening at about midnight, when the victim was not causing the appellant any harm or threatening any.
Consequently, I see no error in her Honour's finding. Like the judge, I consider that the appellant's actions were properly to be seen not as a justifiable reaction to a fear or threat of harm from the victim, but rather as calculated to punish the victim for the words which had passed between the victim and Janet Senior over the victim's failure to pay the rent. As her Honour rightly observed:
[The appellant's] behaviour is such as to warrant public condemnation because it threatens public safety and undermines proper civil relations [between] members of the public.[7]
[7]Sentencing remarks [35].
Ground 1: Manifest excessiveness
Finally, under cover of ground 1, counsel for the appellant argued that the sentence of three years and six months' imprisonment imposed on the count of recklessly causing serious injury undervalued the reckless nature of the offending and the background to it. In a carefully crafted submission, he argued that in view of the Sentencing Snapshot,[8] which indicates that the most common length of actual imprisonment imposed for the offence of recklessly causing serious injury is one year imprisonment, a sentence of three years and six months in the circumstances of this case was plainly beyond the range.
[8]Sentencing Advisory Council, Snapshot No. 40: Sentencing trends for causing serious injury recklessly in the higher courts of Victoria, 2002-03 to 2006-07.
I reject that submission. Statistical reference to the most common length of actual sentence imposed is seldom much of assistance, and in this case I think largely irrelevant. To state the obvious, each case depends upon its own facts and circumstances and, critically in a case of this kind, upon the effects on the victim of the offence. The facts and circumstances of this case and the effect of the offence on the victim in my view mark this out as a serious instance of recklessly causing serious injury requiring condign punishment. The recent decisions of this Court in Director of Public Prosecutions v Massey[9], in which an individual sentence of three years and six months' imprisonment was imposed on a count of recklessly causing serious injury, and R v Davidson and Konestabo,[10] in which an individual sentence of six years' imprisonment was imposed, are arguably more relevant comparators.
[9][2008] VSCA 254.
[10][2008] VSCA 188.
Given the nature and gravity of this offence and its serious and apparently lasting effects upon the victim, I consider that the sentence of three years and six months which the judge imposed was within the range.
Counsel for the appellant emphasised the appellant's early plea of guilty, remorse, previous good character, good employment history and the fact that he had a supportive partner with a dependent five-year-old child. He submitted that the judge had failed to accord those considerations sufficient weight and that if they were given proper weight the sentence would have to be significantly less.
I am not persuaded by that submission either. The judge referred in detail to each of the identified mitigatory considerations and explained the weight which she gave them in her sentencing synthesis. They included in particular that the appellant had no prior convictions and had a good employment record, and that he was upset about the non-payment of the rent and its possible consequences. But it was necessary for her Honour at the same time to keep steadily in mind the essential nature and gravity of the offending and its effects upon the victim. Lest there be any doubt about that, any man who chooses to kick another man in the head while he is down should realise that he thereby exposes his victim to the risk of terrible injury, and thus must expect to be visited with condign punishment adequate to express the court's denunciation and provide adequate general deterrence. Although the sentence imposed may have been stern, it does not appear to me that her Honour necessarily gave too little weight to any of the mitigatory factors.
All things considered, I would dismiss the appeal.
DODDS-STREETON JA:
I agree with Nettle JA and wish to add the following observations. First, the appellant's identification of alleged errors in the sentencing judge's reasons appeared, broadly speaking, to depend on the assumption that, from the mere recitation or inclusion of a background fact or matter which reflects or might reflect adversely on the offender in some way, it can be concluded that the circumstance was implicitly taken into account against the offender in determining the disposition. Sentencing judges are, however, expected to set out a reasonably comprehensive account of the background and circumstances of the offender and the offending, and the mere recitation, without more, of a matter that is part of the context or narrative does not mean that it is freighted with dispositive significance and played a role in the determination of the sentence.
Secondly, the complaint that the learned sentencing judge erred by misapprehending and devaluing the appellant's employment history was, as Nettle JA has stated, without foundation. Her Honour correctly noted that there was a dearth of particulars. The letter of the appellant's employer was, perhaps surprisingly, undated, and it did not describe the appellant's duties in any detail. There were no dates or details in the appellant's own account of his employment, which was conveyed through the prism of Mr Joblin's report.
I reject the submission that it is the sentencing judge's obligation ‘proactively’ to enquire or ascertain further details about all inadequately particularised matters referred to in the reasons for sentence, irrespective of their centrality. I do not accept that sentencing judges bear such an onerous responsibility and that they are, failing such an inquisition, precluded from making comment on an absence of particularity about a matter on which a party relies. It is the duty of a party's legal representatives adequately to present and particularise such matters. In the present case, moreover, I do not consider that her Honour's conclusions about the appellant's employment history adversely influenced the disposition.
NETTLE JA:
The order of the Court is that the appeal is dismissed.
---
0
3
0