R v Wright

[1998] VSCA 84

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 95 of 1998

THE QUEEN

v

DAVID JOHN WRIGHT

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JUDGES:	WINNEKE, A.C.J., BROOKING and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 and 14 October 1998
DATE OF JUDGMENT:	14 October 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 84

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Criminal Law - Sentence - Intentionally causing serious injury - In fixing penalty for this offence general deterrence will normally outweigh youth and prospects of rehabilitation.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.J. Ryan	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. P.F. Tehan, Q.C.	Balmer & Associates

WINNEKE, A.C.J. (delivering the judgment of the Court): 

1. The applicant, David Wright, who is now aged 24, pleaded guilty in the County Court at Melbourne on 27 April 1998 to one count of intentionally causing serious injury.  He was sentenced on 27 April 1998 to a term of imprisonment of two-and-a-half years and was ordered by the sentencing judge to serve a minimum term of 15 months before becoming eligible for parole.  He admitted 23 previous convictions from six court appearances dating from 1989.  Many of those prior convictions were for offences that can be broadly described as street offences, and many of them would appear to have been influenced by consumption of alcohol.  They do include, however, offences of assault and one offence of intentionally causing injury, but we note that none of the offences resulted in a gaol term. 

1. The offence to which the applicant pleaded guilty occurred on 8 November 1996 at the Burnley railway station.  The facts of the offence have been fully and, it would seem, accurately set out in the remarks of the learned sentencing judge;  we adopt those remarks and we do not need to repeat them here.  It was conceded on the plea that the applicant's behaviour was vicious, unprovoked and cowardly.  It was committed upon a 32-year-old man unknown to the applicant and was committed in company with two other men.  The victim apparently lived in the United States of America and had come to Melbourne for his sister's wedding - a wedding he missed because of the injuries inflicted upon him by the applicant and his companions.  There is no doubt that the applicant was drunk at the time when these injuries were inflicted, but that is an explanation and is not an excuse.  Having subdued the victim, the applicant joined with the others in kicking and stomping on the victim's head.  This appears to be a familiar method of inflicting serious injury in modern times, but it ought to be understood by those who wish to engage in it that it is conduct which is regarded by the courts as abhorrent and worthy, as the judge here pointed out, of condign punishment, which will normally take the form of an immediate custodial sentence.  It is conduct which, of course, is capable of inflicting serious damage, particularly if aimed at the head of the prostrate victim, as was the case here.  The victim suffered severe injuries about the head and face and his cheekbone was fractured.  The conduct, as the learned judge observed, displayed "a total disregard for the rights of an innocent man" who was doing little more than waiting for a train.  Although there appears to have been an initial exchange of words between the victim and the applicant, followed by what was described as an ineffectual scuffle, it provided, in this Court's view, no warning or excuse for the all-out assault on the victim by the applicant and his two companions. 

1. His Honour noted that the evidence called on the plea indicated that the applicant was, in the absence of alcohol, a reliable worker and normally a decent man and father, but that in the presence of alcohol he became vicious and, at times, uncontrollable. 

1. Mr Tehan, Q.C., who appeared for the applicant, contends that the sentence imposed of two-and-a-half years is manifestly excessive.  In support of that submission he has advanced a number of arguments.  He points to the applicant's relative youth, his deprived background, his reliable work history, his endeavours to overcome his drinking habits and his remorse and regret for his actions.  He has also submitted that the applicant's plumbing career was seriously interrupted when he fell from a roof, cutting the tendons of his left hand.  He can, however, by pacing himself, complete his apprenticeship and he has the support of his master.  This accident, it was submitted by Mr Tehan, exacerbated his drinking problem, but it also demonstrates that in the face of adversity he has been able to overcome the interference with his chosen career. 

1. We have considered all the matters which have been put to us but, in the end, we are unpersuaded that the trial judge's discretion has here miscarried.  On any view, his Honour was entitled to regard the circumstances as a serious and wanton example of the offence of intentionally causing serious injury, an offence which at the relevant time carried a maximum penalty of 12-and-a-half years' gaol.  It can be accepted that youth and a deprived background are matters which a sentencing judge is called upon to consider when imposing sentence, particularly where the sentencing judge is considering sending a young offender, who has not previously been incarcerated, to an adult gaol.  But, of course, the weight to be given to those factors must be placed in the context of the conduct which is being considered and the offender's past history of offending.  The applicant's childhood and his upbringing are distressingly familiar to these courts, which are constantly faced with the difficult task of imposing and reviewing sentences for serious crimes.  Like many young offenders, this applicant has had no adequate upbringing or parental guidance but, unlike many, he has displayed an aptitude for industry and a capacity for responsibility, at least where his own family and his own child are concerned.  His problem is clearly drink, but, as his Honour pointed out, a man who drinks himself to a state where he can no longer control his primal instincts cannot expect leniency from the courts.  Common experience demonstrates not infrequently that youth and excessive consumption of alcohol combine to unleash aggression.  The applicant's conduct in this case is a prime example.  His past criminal history, during which the courts have been prepared to extend opportunities for reform, demonstrates not only that his offending is induced by drink but, sadly, that he has not yet taken the opportunity of harnessing the inner resources which it seems he has to control his problem.  Since being arrested for these offences, it would seem from the material put before the Court that he is now seeking to control his drinking.  His Honour, however, noted that the applicant has offended again following the commission of these offences, in March 1997 and September 1997.  At least some of those offences would seem to have been alcohol-related. 

1. His Honour, a very experienced judge, was not unmindful of the factors which have been at the heart of the submissions made here by Mr Tehan.  But, as his Honour pointed out, the factors of youth and prospects of rehabilitation must ultimately take a "back seat" to specific and general deterrence where crimes of wanton and unprovoked viciousness are involved, particularly where the perpetrator has been given previous chances to control his aggressive habits.  The sentence which his Honour imposed was well within the range for an offence of the seriousness of this one;  and it was, it seems, specifically tailored in the fixing of a lengthy parole period to enhance the prospects of rehabilitation under appropriate supervision.  We would like to think that the applicant would take advantage of the chance which has been given to reform himself under the supervision of the Parole Board, if he is released when his non-parole period expires in the near future.

1. We are, accordingly, of the view that no error has been demonstrated in the exercise of the judge's discretion, and the application for leave to appeal against sentence is dismissed.

1. The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.