R v White
[2004] VSC 428
•25 October 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1430 of 2004
| THE QUEEN |
| v |
| SHERMAN CALVIN WHITE |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7, 8, 11 and 12 October 2004 | |
DATE OF SENTENCE: | 25 October 2004 | |
CASE MAY BE CITED AS: | R v Sherman Calvin White | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 428 | |
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CRIMINAL LAW — Sentencing — Intentionally causing serious injury — repeatedly struck sister on head with object — plea of guilty and other mitigating circumstances — sentence of four years — non-parole period of three years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Southey | Office of Public Prosecutions |
| For the Accused | Mr M. Lincoln | Victoria Legal Aid |
HIS HONOUR:
Sherman Calvin White, you have pleaded guilty to one count of intentionally causing serious injury. The maximum penalty for this crime is 20 years’ imprisonment. The Court of Appeal has recently emphasised the seriousness of this offence and the significance of the very substantial maximum term of imprisonment which Parliament has provided for in relation to it.[1]
[1]DPP v Zullo [2004] VSCA 153, esp at [10] and DPP v Lawrence [2004] VSCA 154, esp at [21].
You were charged with alternative counts of attempted murder and intentionally causing serious injury. At the final directions hearing, your counsel foreshadowed an intention to plead guilty to the charge of intentionally causing serious injury. At trial you did so. You pleaded not guilty to the charge of attempted murder and were in due course found not guilty on that charge by the jury. Consequent upon your plea, the jury delivered a verdict of guilty on the charge of intentionally causing serious injury. I was informed by counsel for the Crown that an offer to plead guilty to the charge of intentionally causing serious injury was made and rejected by the Crown in May of this year.
I am mindful of the fact that while I must form my own view of the facts and the seriousness of the offence, that view must not conflict with the verdict of the jury.[2]
[2]R v Harris [1961] VR 236 at 237 and R v Kane [1974] VR 759 at 762.
The victim of the attack that was the foundation for the charge was your sister, Susan Mae French. In 2003 your sister, Mrs French, and your elderly mother, who suffers from Alzheimer’s disease, were living in Chelsea in Melbourne, Australia. Prior to June 2003 you were a resident of Florida in the United States of America. Your sister had been living in Australia for some years and had brought your elderly mother to Australia to live with her. In early June 2003 you visited them and stayed with them at their house in Chelsea. On 4 June 2003 you attacked your sister. You struck her to the head and neck repeatedly with an object which, despite extensive searches, has never been recovered.
In her evidence your sister described the object with which you struck her by reference to an object that had been produced by your counsel and tendered as Exhibit A in the trial. The tendered object is a metal rod some 26 centimetres long. Mrs French, in her evidence, said that the object with which she was struck was heavier and fatter than that object. The evidence of a forensic pathologist called on your behalf in the trial suggested that Mrs French’s injuries were more consistent with being struck by a lighter and softer object than the object that had been tendered as Exhibit A.
You initially struck your sister’s head a number of times from behind. You then repeatedly struck her to the head and neck. She offered no physical threat to you. She tried to protect herself. The only explanation given for the attack by your counsel in the course of his plea on your behalf was that there had been family stress over the years, that there had been “some recriminations” during a discussion about the family the evening before, and that the attack occurred during a card reading by your sister when she was, in the words of your counsel, “chastising [you] verbally about [your] lack of progress through life”. Your counsel says his instructions are that you lost your temper.
The attack was vicious and cowardly. You used an object of some kind as a weapon against a person weaker than you. The attack commenced while her back was turned. It continued intermittently for the next 15 to 20 minutes.
As a result of your attack, your sister suffered a 4 centimetre starburst laceration on the top of her head, a 5 centimetre burst laceration in the midline at the back of her head, three puncture marks on the back of her head, extensive bruising on the back of her neck, and a bruise on her ear. There was no skull or other fracture. There was no indication of any brain damage. She was initially treated by her general practitioner and was then taken to Frankston hospital. She returned home after two days.
You are presently 48 years of age, and on 2 November you will turn 49. Your sister, Susan, is about 52 years of age. You have three brothers, Stanley, 54; Scott, 51; and Stephen, approximately 41. You had a sister, Shelley, who died in the year 2000.
You have admitted one prior conviction in the United States of America for what appears to have been a minor matter some 30 years ago. In the circumstances I proceed on the basis that you are a person of good character.
Your counsel suggested during the plea that the injuries suffered were at the lower end of the scale of injuries seen in this Court for this type of offence. Whilst that is true, the offence remains a serious offence. Your attack was to the head and neck. You used an object as a weapon. The injuries suffered were significant and could well have been much more serious.
Your counsel put forward four matters which he submitted ought to be weighed in your favour. They were:
• your age;
• your good character;
• your plea of guilty;
•the fact that you have already spent approximately 16 months in custody and, due to the fact that you are in custody in a foreign country, have served that time in conditions which are likely to be more difficult for you than for Australian residents. He referred to the absence of any visits and to the fact you have had no money.
Your counsel urged a sentence which would have the effect of allowing you to be released immediately. In other words, a sentence which would treat the time you have already served as being sufficient punishment. Your counsel tendered documents indicating you have undertaken a number of courses of study or training whilst in custody.
In my view, the matters put forward by your counsel do weigh in your favour. In relation to your age and good character, I take those matters into account without qualification.
In relation to your plea of guilty, I note that an offer to plead guilty to the charge of intentionally causing serious injury was made in May 2004. The offer to plead guilty was not made until after there had been a full committal hearing. Your plea reflected the overwhelming nature of the evidence against you on that charge. In the circumstances, I think the plea warrants a reduction, though not a significant reduction, in your sentence.
In relation to the submission concerning your position as a foreigner, whilst I do take it into account, I do not think it is a factor of significance. Counsel for the Crown referred me to R v Su [1997] 1 VR 1 at 75. The circumstances addressed there differ somewhat from your circumstances as, in the light of the jury’s verdict, I do not proceed on the basis that you came to Australia for the specific purpose of committing the offence. You did, however, commit the offence whilst in Australia and whilst subject to Australian law. It is unlikely that you have experienced, or will experience, significant cultural alienation by virtue of the fact that you are from the USA.
The verdict of the jury was delivered on Monday 11 October 2004. Your counsel commenced his plea immediately after the verdict, but there was no victim impact statement available at that time. The matter was adjourned to 2.15 pm on Tuesday 12 October in the expectation that a victim impact statement would be provided quickly. As matters transpired, the victim impact statement was not filed and provided to you and your counsel until very shortly prior to the resumed hearing on 12 October.
The victim impact statement, in the form of a statutory declaration, was tendered on the plea as Exhibit 1. It was tendered subject to objection from your counsel. Your counsel objected on the basis that the victim impact statement as filed was not limited to particulars of injury, loss or damage suffered as a direct result of the offence as required by s 95B(1) of the Sentencing Act 1991 (Vic). Counsel for the Crown submitted that I should simply ignore those portions of the victim impact statement which did not fall within s 95B(1). Your counsel supported that course. Your counsel also submitted that I ought to require medical evidence of certain of the matters referred to in the victim impact statement. I indicated that the suggestion in the victim impact statement as filed of a connection between the attack and what the victim impact statement says is a recently diagnosed lymphoma was not a matter upon which I would be prepared to act without medical evidence. That position was accepted by both your counsel and counsel for the Crown.
The admissible parts of the victim impact statement indicate that the physical and emotional consequences of your attack upon your sister have been very real and very disturbing for her. She has suffered headaches and dizziness. She has suffered from insomnia and nightmares. She says her happy memories of her former matrimonial home, the place where you attacked her, have been destroyed.
I cannot detect in any of the material in evidence in the case, or from the plea made on your behalf by your counsel, any reliable indication of genuine remorse. To attack a defenceless person because of criticisms which she was expressing, or had expressed, to you about the progress of your life, and to do so with an object of some kind, striking her repeatedly, principally to the back of the head and neck, over a substantial period of time, is conduct which demands a significant penalty by way of a term of imprisonment.
In all the circumstances I am not prepared to accede to your counsel’s suggestion to impose a sentence which, in effect, renders the time already served sufficient. I sentence you to four years’ imprisonment. I direct that you not be eligible for parole before you have served a period of three years’ imprisonment. Pursuant to s 18 of the Sentencing Act I declare that you have already served 508 days in custody in respect of the matter for which I now sentence you, and I direct that such matters be noted in the records of the Court.
The Crown has sought an order under s 464 ZF(2) of the Crimes Act 1958 (Vic). That order will require you to undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample. The order was not opposed. I am satisfied, taking into account the seriousness of the offence you have committed, that in all the circumstances of the case such an order is justified. I will make that order in the form handed up by counsel for the Crown.
I am required by law to warn you that a member of the police force may use reasonable force to enable the forensic procedure to be conducted.
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