R v Wise
[2004] VSCA 88
•6 May 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 169 of 2003
| THE QUEEN |
| v. |
| REGINALD KEVIN WISE |
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JUDGES: | BATT, CHERNOV and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 May 2004 | |
DATE OF JUDGMENT: | 6 May 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 88 | |
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CRIMINAL LAW - Sentence - Recklessly causing serious injury - Plea of guilty - Whether remarks of sentencing judge disclosed bias - Victims' forgiveness of offender - Prior conviction for violence - Aboriginal offender - Whether Sentence of 8 years with non-parole period of 5 years 6 months held manifestly excessive - Sentence of 6 years with non-parole period of four years substituted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Pullen | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr J. Kennan Q.C. | Robert Stary & Assoc. |
EAMES, J.A.:
The appellant pleaded guilty to one count of causing serious injury recklessly contrary to s.17 of the Crimes Act 1958. The maximum penalty for the offence was 15 years' imprisonment. On 19 June 2003 a judge of the County Court sentenced the appellant to 8 years' imprisonment and fixed a non-parole period of 5 years and 6 months. He declared that 303 days be reckoned as pre-sentence detention. The appellant has been granted leave to appeal by a judge of the court, the sole ground of appeal initially being that the sentence was manifestly excessive, but the court granted leave to add three additional grounds as follows:
(2)A reasonable observer would apprehend that the learned sentencing judge had decided before he heard the plea that a heavy sentence should be imposed.
(3)The learned sentencing judge took into account an irrelevant consideration - the risk of public criticism of the Court - in passing sentence.
(4)The learned sentencing judge erred in sentencing on the basis of his view of the facts contained in the depositions and not in accordance with the offence charged.
In order to appreciate the issues raised by the grounds of appeal the circumstances of the offence need some elaboration.
Shortly before the offence the appellant, who was then aged 34 years, had separated from the victim of the offence, his 17 year old partner, Ms Bobby Jo Marshall. They had been living together for about a year and Ms Marshall had given birth to their son about nine weeks prior to the assault on her. On Tuesday 21 August 2002 Ms Marshall and her sister, together with the baby, went to the flat of one Paul Denton in the early hours of the morning. Mr Denton was a known drug offender. The flat was in a residential area in Bendigo where Denton resided with his two young children. In continuing the narrative I will refer to the way in which the case was presented to the judge below.
On the first occasion when the matter was mentioned before the judge he said to the prosecutor, "I'll be interested to see how you open it and how the Crown puts the recklessness". Some days later when the prosecutor opened the case the judge said that he wanted to know how the Crown put the case "given (that) the depositions and the evidence that is before me, and the charge which the Crown have accepted and to which the prisoner has pleaded guilty, leave a few questions".
In his opening remarks the prosecutor described the events as follows:
"The prisoner banged on the door, he was angry and he was yelling out comments such as [quoting a witness] 'Let me in, you white cunt, I'm going to kill you all. Let me in, Bobby. I warned you, Bobby, sleep around on me. Let me in, I'll stab you cunt".
The prosecutor continued:
"According to Paul Denton at p.12 of the depositions the prisoner was saying: 'Where is Bobby, let me in, open the fucking door'. He said something similar to, 'Let me in or I'll stab you' and he was kicking at the security door. Denton went to the door, the prisoner was outside. Denton attempted to calm the prisoner down. Denton told the prisoner that he could come in if he agreed to talk only and not to hit Bobby Jo. The prisoner agreed. Mr Denton opened the door and the prisoner walked into the flat.
Once inside the flat he walked towards Bobby Jo Marshall who was in the loungeroom. He pulled out a knife. With that knife he stabbed Bobby Jo Marshall to the left side of the chest."
At that point the judge interrupted and said querulously, "This is recklessly causing serious injury?". The prosecutor said that the offence was put on the basis that it was at the upper end of the range of offences of recklessly causing serious injury. His Honour said, "I still don't have any understanding of how the recklessness is explained and I can't assess its place in the range until I understand that". The prosecutor said it was put on the basis that the prisoner foresaw that what he was doing would probably cause serious injury and went ahead and did it regardless. The judge said that on the opening address, "The only reasonable inference is not just that, it is also that he intended to do it".
His Honour continued to quiz the prosecutor as to how the matter was being put, in the course of which he said to the prosecutor that it was "very high in the range". His Honour said that "death was a high probability". In the course of his remarks His Honour said:
"Look, the public understandably want to know why someone who behaved as this man did has the Director of Public Prosecutions accepting a plea to recklessly causing serious injury. It seems to me on that opening, unless there is more to be said, that it is inexplicable."
The prosecutor replied, "It's explicable for pragmatic reasons Your Honour" and His Honour said, "I hope the public understands that". The prosecutor said there had been difficulties with witnesses which led him to make the decision to accept the plea.
Before he had heard defence counsel the judge, in the course of these remarks, said that the appellant was going to get a sentence that was commensurate with it being a serious example of the crime of recklessly causing serious injury and with it being "high in the range". When defence counsel commenced his address the judge said that the way the case was presented by the prosecutor read like a fairytale. He said to counsel that what caused his reaction to the opening was his contrasting that to "reading the deps", that is, the depositions. He said, "That's the evidence upon which I've got to sentence".
Mr Kennan, counsel for the appellant, submitted that as to these and other remarks a fair minded member of the public might reasonably suspect that the judge might not have been approaching the issues with a fair and unprejudiced mind (The Queen v. Watson Ex parte Armstrong (1976) 136 CLR 248 at 264; R. v. Charter [2002] VSCA 214 at [22]). He submitted that the remarks created a reasonable apprehension that the judge had made up his mind that it was truly a case of intentionally causing serious injury and that if he was unable to sentence on that basis then he would treat it as being at the highest end of recklessly causing serious injury and impose a sentence which he had already determined.
Mr Kennan submitted that the remarks of the judge at that early stage could not be dismissed as merely preliminary observations upon which he was inviting comment. The fact that he had adopted a predetermined position from the outset was confirmed, counsel submitted, by a statement in the sentencing remarks, "I stand by the remarks I made during the plea hearing, however".
The judge and both counsel were very experienced in criminal law. In my view the exchanges between the judge and counsel did not demonstrate a closed mind, but undoubtedly reflected a strong view that the case was more serious than merely recklessly causing serious injury, given the facts that had to that moment emerged on the depositions. The critical question is whether the judge was expressing a tentative view or announcing a fixed position, or at least might, by his comment, have led a fair minded bystander to reasonably believe that he had reached a fixed position.
It is inevitable that a judge having read the depositions for a plea, as is appropriate in preparation, will have formed some tentative opinion about the case. In my view the fair minded observer would understand that that might be so and would not apprehend bias on that account. Furthermore, it is appropriate that a judge let counsel know what preliminary view he or she has formed, in order that counsel might address any concerns felt by the judge. In a busy sentencing court such as the County Court it might be thought quite appropriate that a judge quickly identify to counsel those matters which the judge considers significant. Whilst an interested bystander might think that a judge should sit quietly and hear out counsel, an informed bystander would appreciate that expedition and pointed questioning by the judge are not inconsistent with justice.
I also consider that a judge is quite entitled to query a prosecutor about the basis for acceptance of a plea as to a particular offence if the judge is concerned that the relevant offence appears to be inconsistent with the facts being presented on sentencing, or if it seems to be an inappropriate offence having regard to the apparent seriousness of the conduct to be alleged. A judge, however, will not have all of the information available to the prosecutor and ought not seek to interfere with the independent exercise of the prosecutor's discretion. Having raised any concerns and had them responded to by the prosecutor, the judge must then deal with the matter before him or her on its merits and without pre judgment. The statement which I earlier quoted from the judge's sentencing remarks was particularly unfortunate because it left unstated what statements they were he was referring to when he said he was standing by the remarks he made during submissions. The judge, however, expressly qualified his comment by saying that he was sentencing the appellant only for the offence to which he pleaded guilty.
The tone and emphasis of the judge's comments in this case were, in my view, excessive and might have caused anxiety in the accused person awaiting sentence, but the fair minded bystander, in my opinion, must be taken to have also heard the judge's additional, quite emphatic and repeated, statements to the effect that he would sentence the appellant on the basis the law prescribed, namely for recklessly causing serious injury, and not any other offence. His Honour said to the prosecutor early in the submissions: "Now he's going to be sentenced for recklessly causing serious injury". He added, "I mean, I'm capable of doing that and clearly he's going to get a lesser sentence than had it been otherwise". His Honour added that anything he had said to the prosecutor up to that point was subject to what defence counsel would say to modify his stated views. His Honour said that from a judge's perspective, "It reads like a fairytale" but added, "I must approach it the way the law tells me to approach it and I will".
Experienced counsel did not suggest to the judge that his comments had betrayed bias or pre judgment and, as inappropriate as some of the remarks may have been, I do not consider that they demonstrated that the sentencing process had been tainted by bias or error of a kind identified in the additional grounds of appeal.
It is not necessary in the circumstances to deal further with those additional grounds of appeal. I do not consider that any of them have been made out.
I turn to ground one.
Complaint as to a manifestly excessive sentence.
What is clear from His Honour's remarks is that he formed a strong view about the seriousness of the offence and remained of that view until he sentenced the appellant, notwithstanding the matters put to him by defence counsel in mitigation. Not surprisingly, it was the ground of appeal asserting that the sentence was manifestly excessive upon which Mr Kennan concentrated attention. There is no doubt that this was a serious offence and that the appellant had a very poor and relevant criminal record but, as counsel for the respondent conceded, it was indeed a stern sentence. Ms Pullen submitted, however, that it was within range, having regard to the offending history of the appellant.
The appellant admitted 83 prior convictions, plus two findings of guilt, all of which arose from 21 court appearances. His first conviction for violence was an assault for which he was fined in December 1986. In April 1987 he was fined on counts including assaulting a police officer, assaulting a female and resisting a police officer. In February 1988 he was fined on offences of assaulting a police officer and resisting a police officer. In September 1988 he was convicted of assaulting a female and was released on a good behaviour bond. In May 1989 he was sentenced to imprisonment for a term of two months for assaulting a police officer and seven days concurrently for an offence of assault with an instrument. In December 1989 he was sentenced to four months' imprisonment for causing injury intentionally and to three months on a count of causing injury recklessly, such sentences, and others, being suspended for 12 months. In September 1990 he was convicted on two counts of assault and also on a count of threatening injury and a count of assaulting a police officer and sentenced to one month's imprisonment on each count. In September 1991 he was convicted on two counts of assaulting police and was dealt with under the Inebriates Act. In June 1994 he was convicted of assault by kicking and was sentenced to one month's imprisonment. In March 1996 he was fined on a count of assault and malicious damage. In November 1997 he was convicted of assault occasioning actual bodily harm and was imprisoned for nine months, such sentence being suspended upon him entering into a bond. In May 2000 he was convicted of causing serious injury recklessly and on two counts of causing injury recklessly and of damaging property and he was sentenced to four months on the first count, eight months on the second with five months served concurrently and six months on the third count with three months served concurrently and three months on the sentence with respect to damaging property. The total effective sentence on that occasion was two years 10 months' imprisonment with a non-parole period of 14 months.
Those prior convictions were regarded by the judge as being particularly significant for purposes of sentencing, and so they were, but there were factors personal to the appellant which were capable of mitigating penalty.
The appellant is an Aboriginal man born on 27 May 1968 at Dareton, an Aboriginal community near Mildura. He is now 36 years old. His mother died on 18 June 2002, this offence occurring on 21 August 2002. That is of some relevance because it was submitted on his behalf that one factor leading to these events was his emotional state following the death of his mother. Whilst that event was not proximate to the offence, the fact that the death of his mother had caused the appellant distress, which was continuing at the time of the offence, was acknowledged by Ms Marshall, who gave evidence on his behalf during the plea.
The appellant's father died some years before this offence. Both parents had alcohol addiction problems. In his youth the appellant lived with his family in Swan Hill and did seasonal work in the fruit industry. The judge was told, and accepted, that the range of work available to him had been limited by his education and other factors, including his Aboriginality.
The appellant has had children from three relationships. He had a 16 year old daughter, a younger daughter and also a son to his former wife. He then had a son to another woman. That child was removed from their custody by welfare authorities, the removal occurring in public by a large contingent of police. That latter relationship broke up and as a result of finding her with another man he committed the assault for which in May 2000 he received the sentences which I have earlier mentioned, constituting a total effective sentence of two years ten months with a non-parole period of 14 months. Those particular prior convictions, arising out of jealous rage, are of obvious significance, as are his other prior convictions for assaulting females.
Upon his release from prison he moved to Bendigo where he commenced a relationship with Ms Marshall. As I have said, he regained custody of his son and that child thereupon joined them. Ms Marshall also gave birth to a son. Upon his release from prison the appellant lived in Bendigo and participated in a rehabilitation programme for three months, initially living in shared accommodation and then in a house of his own. A drug and alcohol worker, Ms Gatehouse, gave evidence on the plea that the relationship was under considerable pressure leading up to this offence and alcohol misuse was one factor. The witness said, however, that the appellant avoided substance abuse for 12 months in his attempts to get custody of his son and he succeeded in not only regaining custody of his child, but also gaining custody of a nephew. His admirable restraint broke down, however, and after the death of his mother he again started drinking heavily.
The witness described him as a very popular person and an extremely caring, thoughtful father. She said that while in custody for the present offence the appellant had shown a true understanding of the harm he had done and was anxious to rehabilitate and to be a role model for his children. That was important evidence.
The other witness called on the appellant's behalf was Ms Marshall. Ms Marshall suffered a wound approximately 3.5 centimetres long which required four stitches. She was released from hospital without admission on the morning of the assault, but the following day she returned complaining of shortness of breath and it was discovered that the knife had perforated her lung and she had a collapsed left lung which required reinflating. She remained in hospital for some days.
In her victim impact statement Ms Marshall said that she had scarring and suffered depression, nightmares and panic attacks after her assault. She felt suicidal and was under counselling. Nonetheless, she said she loved the appellant and wanted him home with her and their son. Although she said she was still under counselling she said the symptoms described in her victim impact statement had abated. She said that she believed herself to be at fault with respect to her assault by the appellant because she had been suffering post natal depression, as well as amphetamine psychosis, and had been distant from him, although she knew he was grieving for his mother.
In her evidence Ms Marshall conceded that she was a drug user, using amphetamines and other drugs, and that she had on occasions obtained drugs from the witness Denton. On the night of the offence she had consumed both alcohol and drugs at Denton's premises. She did not, however, accept the suggestion put to her by counsel for the appellant that the appellant was drunk when the assault occurred and she did not agree to the proposition that rather than immediately attack her with the knife the appellant had taken time to smoke a cigarette in the loungeroom and that the assault only occurred after some delay.
In his sentencing remarks His Honour said that this was an extremely violent and frightening attack, and it was indeed. He said that the offence was at the top of the range of degrees of seriousness for an offence of its type. His Honour said the many prior offences for crimes of violence were highly relevant, and so they were, but sadly multiple prior convictions for crimes of violence, including such offences as assault police, are common among many Aboriginal people and reflect, in part, the disadvantaged lifestyle and traumatic circumstances which too often epitomise contemporary Aboriginal society. Aboriginal street offending is highly visible and is, accordingly, a focus of police attention. This is not to excuse criminal behaviour, and in particular violent behaviour against police and women perpetrated by Aboriginal men, but it is to recognise the powerful historical and environmental factors which are a root cause of alcohol fuelled violence in some communities.
It was submitted to the judge, and apparently accepted, that the appellant's prior convictions were almost invariably a result of alcohol abuse. In this instance, however, the evidence did not disclose that the offence occurred when the appellant was under the influence of alcohol. His rage appears to have been fuelled primarily by jealousy towards the man at whose house the assault occurred, but also by anxiety that Ms Marshall was obtaining drugs from him. Even so, the social factors I have mentioned remain relevant to this offence.
It is important, in my view, that not only should prior convictions be viewed against that background of disadvantage, but also that genuine efforts at rehabilitation by a person with such a history be acknowledged. His Honour said he had been told of the appellant's desire to cure his addiction to alcohol and accepted that desire to be genuine, but said that he could not be certain that sufficient efforts would be successful. His Honour said that while he did not give up hope for the appellant's rehabilitation, he could not be certain of it.
It is understandable that His Honour might express doubt about the rehabilitation prospects of the appellant, but in my opinion his efforts deserved more recognition, and the opinions expressed by his two witnesses were very important indicators of the prospects of rehabilitation which did exist. Although not given particular emphasis by the judge, the efforts towards rehabilitation by the appellant while in prison seem to me to have been particularly significant. Among the many courses taken by him were courses conducted under the auspices of Aboriginal people and groups, including drug and alcohol and anger management courses. It is easy when sentencing to devalue the importance of such courses, but in this case it seems to me that they provided important evidence of the genuineness of the appellant's efforts to rehabilitate himself. The judge's expressed lack of confidence that the rehabilitation efforts of the appellant would succeed was understandable, but overly pessimistic, in my opinion.
The appellant's response towards the removal of his son by welfare authorities reflects his capacity to adopt a positive course. The mother of that child had been drug addicted and his own alcohol addiction impeded his attempts to recover custody. Nonetheless, he remained alcohol free in his efforts to regain his son and succeeded in his endeavours.
The support offered to the appellant by his victim is also a significant factor when assessing his prospects of rehabilitation. It is, of course, an unfortunate fact that victims of violent, drunken partners, to their own cost, often seek to forgive their partner and to resume a dangerous relationship. The courts must offer protection even when the potential victims deny its need, but the forgiveness of an offender by a victim of crime and the positive effect that has on prospects of rehabilitation is not an irrelevant factor in sentencing: (R. v. Skura [2004] VSCA 53). In this case the victim appears to have been a vulnerable person in many ways, not least because of her youth, and it is understandable that His Honour apparently saw the protection of the community, including Ms Marshall, as being a more important consideration on sentencing than her desire to resume cohabitation with the appellant.
Undoubtedly, the need for general and specific deterrence, for denunciation and the protection of the community were, as His Honour said, matters of considerable importance in this case.
Having said all that, the question whether a sentence is manifestly excessive does not admit of much argument and ultimately is a matter of impression.
Ms Pullen submitted that given the large number of relevant prior convictions, and the seriousness of the assault on this young victim, the sentence cannot be regarded as manifestly excessive.
I accept the force of what was said by Ms Pullen, but in the end it is my view that the balance in this case was not right. Having regard to the fact that he pleaded guilty, having regard also to his remorse, as the judge accepted to be the case, and having regard to his prospects of rehabilitation, the sentence which was imposed was manifestly excessive.
I would allow the appeal and set aside the sentence imposed below. In lieu I would sentence the appellant to six years' imprisonment and direct that he serve four years before being eligible for parole.
BATT, J.A.:
I agree that this appeal should be allowed and the appellant be resentenced as proposed by Eames, J.A. substantially for the reasons His Honour gives. In essence, in my view the circumstances of the offence, serious though they made it, and the appellant's prior criminal history, long and bad though it was, did not warrant a sentence that was more than half the maximum penalty.
CHERNOV, J.A.:
For the reasons given by Eames, J.A. I consider that the sentence is not vitiated by reason of the comments made on the part of the learned sentencing judge. I am of the view, however, substantially for the reasons given by His Honour, the sentence is manifestly excessive and that the appellant should be re-sentenced as His Honour proposed.
BATT, J.A.:
The orders of the court are as follows:
1.The appeal against sentence is allowed.
2.The sentence imposed on the appellant in the County Court at Bendigo on 19 June 2003 is quashed.
3.In its place - The appellant is sentenced to be imprisoned for a term of six years and the court fixes the period of four years as the period during which the appellant is not to be eligible to be released on parole.
4.The orders for the taking of a forensic sample and for the disposal of property are affirmed.
5.The court declares that the period of 625 days, calculated to and including this day, 6 May 2004, is to be reckoned as already served under the sentence now passed and directs that the fact that the declaration was made and its terms be entered in the records of the court.
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