Tito v The Queen
[2011] VSCA 303
•12 October 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0292
| STEPHEN TITO | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN and TATE JJA and SIFRIS AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 23 September 2011 |
| DATE OF JUDGMENT | 12 October 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 303 |
| JUDGMENT APPEALED FROM | R v Tito [2010] VSC 372 (T Forrest J) |
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CRIMINAL LAW – Sentence – Manslaughter – Youthful appellant killed another with screwdriver in fight while drunk – Sentenced to 10 years’ imprisonment with non-parole period of six years and three months – Whether sentencing judge only moderated non-parole period in light of appellant’s youth and good prospects of rehabilitation and not head sentence – Manifest excess – R v Mills [1998] 4 VR 235, DPP v Lawrence (2004) 10 VR 125 – Appeal allowed – Appellant resentenced to eight years and six months’ imprisonment with non-parole period of five years.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr T Kassimatis | Theo Magazis & Associates |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Tate JA that the appeal should be allowed for the reasons stated by her Honour and the appellant re-sentenced as her Honour proposes.
TATE JA:
On Boxing Day 2008, the appellant, Stephen Tito, while intoxicated, killed his friend, Afram Kodi, in a fight. He was aged 20 at the time of the offence. He had armed himself with a screwdriver.
The appellant was charged with murder. On 8 April 2010, he was found guilty by a jury of unlawful and dangerous act manslaughter as an alternative to murder. He was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation (Alternative to Count 1) Unlawful and Dangerous Act Manslaughter 20 years [s 5 Crimes Act 1958] 10 years Base Sentence Total Effective Sentence: 10 years Non-Parole Period: 6 years 3 months Pre-sentence Detention Declared: 602 days 6AAA Statement: N/A Other orders:
Forensic Sample Order [s 464ZF(2) Crimes Act]
Disposal Order [s 77(1) Confiscations Act 1997]
Weinberg JA granted an application for leave to appeal against sentence on the following grounds:
(1) The sentencing judge erred by failing to accord the appellant’s youth and rehabilitation their due weight and, in particular, by:
(a) subjugating both to considerations of general deterrence and denunciation;
(b) unduly limiting the synthesis of both to the fixing of the
appellant’s non-parole period.
(2) In all the circumstances, the total effective sentence and non-parole period are manifestly excessive.
The circumstances of the fight
On Boxing Day 2008, a number of young members of the Australian Sudanese community attended an alcohol-free barbecue at 1 Titus Court, Reservoir. Most of them had previously attended a church group meeting. The appellant attended the barbecue briefly at about 6:30pm, but left shortly after he arrived.
At approximately 10:30pm, the barbecue had concluded and a number of the young people present had gathered on the nature strip outside the front of the property. As they were waiting for their lifts home, the appellant returned substantially intoxicated. He had drunk a number of Crown lager bottles, together with a large bottle of Jim Beam bourbon whisky.
The appellant walked up to Kodi, who was waiting outside the front of the property, and struck him several times about the head. The attack was unprovoked. Kodi attempted to defend himself by blocking the appellant’s punches. After a short time, the two were dragged apart. The appellant invited Kodi to continue the fight ‘one on one’. Kodi, rejecting the advice of his friends to go inside, took off his jacket and hung it over a letterbox on the nature strip. The appellant had a screwdriver. It was unclear whether he was armed with the screwdriver throughout the hostilities or whether he had picked it up from a supporter before the ‘one on one’ fight. Kodi went into the second fight unarmed.
The appellant stabbed Kodi at least three times with the screwdriver. The first two stabs caused superficial lacerations to Kodi’s left ear and neck region. The final injury was to the left forehead region at the hairline as the appellant swung the screwdriver in a ‘roundhouse blow’ to Kodi’s head. The blade of the screwdriver pierced Kodi’s skull and tracked a path through the underlying dura into the cerebral cortex, the lateral front lobe, and finally into the left front basal ganglia.
Kodi fell to the ground and was immediately unconscious. The appellant kicked him in the chest, removed the screwdriver embedded in Kodi’s head, and left the scene. He was arrested almost immediately. Kodi died in hospital the next day.
The plea
On the plea the prosecution pointed to the relevance of a number of factors:
(1) The appellant had a history of alcohol abuse which had led to previous offending of a violent nature, and consequently specific deterrence was significant in this case. He had a recent prior conviction, having been convicted on 5 November 2008 of affray and causing injury intentionally.[1]
[1]For this earlier offending, the appellant was sentenced at the Heidelberg Magistrates’ Court to an aggregate term of two months’ imprisonment, wholly suspended for 12 months.
(2) The use of a weapon in a fight against an unarmed man was an aggravating feature.
(3) The death of Kodi, and its circumstances, had caused his family great pain and suffering as was apparent from the Victim Impact Statements.
(4) Alcohol fuelled violence amongst youth was a significant societal problem and the sentence imposed should reflect the principles of general deterrence.
The defence submitted:
(1) The appellant was entitled to a ‘discount’ in his sentence, in light of the verdict, by reason that he had offered to plead guilty to manslaughter a few days after his committal hearing. The offer had been rejected. The early offer of a plea of guilty was conceded as relevant by the Crown.
(2) The age of the appellant was relevant. He was aged 20 at the time of the offending and 22 at the time he was sentenced.
(3) The appellant had experienced considerable hardship in his early life being exposed to the tribulations of the Sudanese civil war and fleeing Sudan to Cairo as a refugee when he was 12 years old. An older brother of his had disappeared as a child in Sudan.
(4) The appellant had a haphazard history of schooling, having completed the equivalent of up to Year 7 in Sudan (with large periods of absence due to the ongoing civil war). He arrived with his parents and a younger sister in Australia at the age of 16 and he attended the English language school and then TAFE for a short period.
(5) The appellant had completed numerous courses in prison, including courses in anger management, interpersonal conflict, a drug and alcohol program and he had obtained a certificate in hospitality. It was contended that this showed the appellant had excellent prospects for rehabilitation.
(6) The appellant had recognised that he had a problem with alcohol abuse, particularly binge drinking on the weekends. He was determined not to drink in future, further enhancing his prospects of rehabilitation.
(7) The appellant had aspirations to make something of his life. A letter was produced addressed to the Court[2] in which the appellant took responsibility for his actions and expressed remorse, saying:
[2]Dated 16 April 2010.
Your Honour, the amount of regret I have inside me is unexplainable and although I cannot take back what I have done, I just have to apologise for all this and am promising you that when I am released I will never take my freedom for granted and act like I did again.
(8) A report from a forensic psychologist, Pamela Matthews, indicated that the appellant was not inherently anti-social but developmentally immature. She considered him to be remorseful for his actions and expressed the opinion that he had sound prospects for rehabilitation.
The sentencing judge accepted that the appellant’s offer of a guilty plea had occurred at an early stage and that a ‘discount’ should be ordered. He accepted that the appellant was genuinely remorseful, as evidenced by his letter to the Court, and considered that the appellant had ‘significant’ prospects for rehabilitation.[3] Counterbalanced against that, the earlier unrelated episode of drunken violence demonstrated the need for specific deterrence. The sentencing judge considered the use of a weapon to be an aggravating feature. He took into account the principles of general deterrence and denunciation, on the one hand, and the youthfulness of the appellant and his prospects for rehabilitation, on the other. He said:[4]
Factors of general and specific deterrence must be given real weight in the sentencing exercise. Young people in this State are being killed or seriously injured in alcohol-fuelled fighting on an alarmingly regular basis. I regard the fact that you used a weapon in a fight against an unarmed young man as an aggravating feature. People inclined to participate in these sorts of drunken fights must understand they do so at their peril and that the courts will not tolerate that type of conduct. Conduct of this type also requires denunciation by the courts, and the fact that you had engaged in a recent unrelated episode of drunken violence means that I must reflect the need to deter you personally in the sentence I am about to impose.
I have endeavoured to temper these factors in the sentence I am about to impose because of your plea offer, your youth, your difficult personal background and the prospects for rehabilitation that I have found. I have imposed a lower minimum term before parole eligibility and a longer parole period than otherwise I would have to reflect these factors.
[3]R v Tito [2010] VSC 372 (‘Reasons’), [16].
[4]Ibid [18]-[19] (emphasis added).
The appellant’s age and prospects of rehabilitation
The first ground of appeal raises as a specific error the issue of whether the sentencing judge subjugated the appellant’s youth and prospects of rehabilitation to considerations of general deterrence and denunciation, or whether he limited the synthesis of the appellant’s age and prospects of rehabilitation to the fixing of the non-parole period.
The appellant submitted that, while the sentencing judge said that he intended to moderate considerations of general deterrence and denunciation by reference to the appellant’s youth and significant prospects of rehabilitation, he had not done so. It was argued that:
· the offending involved no pre-planning;
· the evidence fell short of establishing that the appellant went out in public carrying a weapon;
· youth and good prospects of rehabilitation are ‘far more important’ than general deterrence and denunciation, especially so where, as here, the offending is linked to the offender’s age and immaturity;
· in the alternative, youth and good prospects of rehabilitation ought to have attracted greater weight and been properly reflected in the appellant’s head sentence.
In R v Mills,[5] Batt JA[6] held that the sentencing judge had failed to have regard to the general principles applicable to youthful offenders, and the primacy of rehabilitation. The sentence that had been imposed was 18 months with a non-parole period of nine months for recklessly causing serious injury by striking the victim in the face with a beer glass, requiring stitching and resulting in scarring. The offender was aged 20½ at the time of the offending and 21 at the date he was sentenced. Batt JA endorsed the following propositions to guide the sentencing of youthful offenders:[7]
i.Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
ii.In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
iii.A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified.
[5][1998] 4 VR 235.
[6]With whom Phillips CJ and Charles JA agreed.
[7][1998] VR 235, 241.
In considering the reasons of the judge below, Batt JA said:[8]
Although his Honour referred at least three times in his sentencing remarks to the youthfulness or age in years of the applicant and although he referred to all the mitigatory factors put to him by counsel … I cannot see that in arriving at the head sentence his Honour had regard to the propositions set out above. In particular, his Honour did not, as it appears to me, have regard to the principles that in the case of a youthful first offender rehabilitation is usually far more important than general deterrence … The cases which I have cited, some of which concerned violent crimes, show that to say of a violent crime that it requires a sentence effecting the purpose of general and specific deterrence is not to show that the case is other than ‘usual’ for the purpose of the above propositions. It is true that the applicant seems to have been involved in at least one previous fight when drunk and to have been arrested for drunkenness but released without being charged on a couple of occasions. It is true also that he has not been able to cease from ‘binge’ drinking even after the offence. But those facts do not, in my view, make the case other than ‘usual’ or otherwise take him outside the propositions under discussion.
[8]Ibid 241-2 (emphasis added).
Buchanan JA endorsed that approach in R v Duncan when he said:[9]
[G]eneral deterrence should not necessarily displace other considerations. In particular, while recognising that certain crimes will call for condign punishment even in the case of a young offender, rehabilitation is usually far more important than general deterrence in the case of such an offender.
[9][2009] VSCA 253, [12], with whom Dodds-Streeton JA and Hansen AJA agreed.
The Crown submitted that there were occasions on which considerations of youth and rehabilitation could be properly displaced by general deterrence, and this was one of them. In DPP v Lawrence, Batt JA recognised that:[10]
[W]ith an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender’s youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. … [Y]outh and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright, take a “back seat” to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that, as this very case exemplifies, the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both. Here, the respondent was in any event only on the borderline of youthfulness and moreover was not by any means a first offender.
[10](2004) 10 VR 125, 132 [22] (citation omitted), with whom Winneke P and Nettle JA agreed.
In Lawrence the offender, aged 20 at the time of the offending, brutally attacked a companion while under the influence of alcohol and drugs. He kicked the victim repeatedly in the body and head and bashed and stabbed him with a broken bottle. The victim sustained very serious injuries and was in a coma for three to four days. The offender had 19 prior convictions including two for causing injury recklessly. On a Director’s appeal, the Court allowed the appeal and resentenced the offender to five years, with a minimum of three, instead of the original sentence of 20 months with a non-parole period of 14 months. Lawrence was approved by Maxwell P and Redlich JA in Winch v The Queen.[11]
[11](2010) 203 A Crim R 197, 207 [44].
The Crown further submitted that, while the sentencing judge did not limit his synthesis of the considerations of the youthfulness of the appellant and his rehabilitation to the fixing of the non-parole period, had he done so that would not be in error.
I disagree. The propositions endorsed by Batt JA in Mills are relevant to the synthesis which must be performed by a sentencing judge in arriving at the head sentence. So much is apparent from the extract from Mills quoted above. It is reinforced by the rejection by Batt JA in Mills that it is sufficient if a sentencing judge considers the youth of an offender and his prospects of rehabilitation when determining what the non-parole period will be. As he said:[12]
It may well be that the fixing of a non-parole period of one half of the head sentence shows that his Honour did in that have regard to the applicant’s rehabilitation. That cannot, however, save a head sentence imposed otherwise than in accordance with the propositions under discussion.
[12][1998] 4 VR 235, 242 (emphasis added).
It must always be kept in mind that ‘fixing a non-parole period does not mean that parole will be granted, either at the expiration of that period, or at all’.[13]
[13]Inge v The Queen (1999) 199 CLR 295, 301 [4] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
Here, the sentencing judge indicated that the minimum term he imposed before parole eligibility was chosen to reflect the appellant’s plea offer, his youth, his difficult personal background, and his prospects for rehabilitation. There is no clear indication that his Honour took those factors into account in arriving at the head sentence.
The respondent submitted that the statements by the sentencing judge, quoted above,[14] should be read as if the word ‘also’ appeared before the words ‘to reflect’ in the last line to indicate that his Honour had already taken into account the appellant’s youth and prospects of rehabilitation in relation to the head sentence imposed and, in addition, took them into account in directing a minimum non-parole period. The difficulty for the respondent is that the word ‘also’ does not appear in the statements made and the reading which the insertion of the word supports is not otherwise unequivocally dictated by the words his Honour actually used.
[14]See the italicised portion of the extract quoted, [12] above.
Given the lack of clarity in the statements extracted, it is useful to consider the magnitude of the head sentence to assist in determining what considerations were taken into account in arriving at the head sentence. That magnitude (10 years) indicates that this is not a case where considerations of youth and rehabilitation have taken a ‘back seat’ to specific and general deterrence. The gravity of the offending here may well have indicated that the appellant’s youth and prospects of rehabilitation should not be given primary importance but could be displaced by questions of general deterrence and denunciation, as in Winch. However, the magnitude of the length of the head sentence[15] supports the view that the sentencing judge went beyond this and restricted the force of the considerations of the appellant’s youth and prospects of rehabilitation to the determination of the minimum non-parole period alone. This was an error.
[15]Taking into account the magnitude of a head sentence may be useful to clarify the reasons of a sentencing judge even where that magnitude might not meet the threshold of ‘manifest excess’. For reasons which I will give below, however, I consider that this case also meets that threshold.
In my opinion, for these reasons, the appeal should be allowed and the sentencing discretion re-exercised. Taking into account all the relevant factors, including the early offer of a guilty plea, the aggravating factor of the weapon, the principles of general and specific deterrence, denunciation, the youth of the appellant, his remorse, and his significant prospects for rehabilitation (as found by the sentencing judge) I would re-sentence the appellant to eight years and six months’ imprisonment with a minimum non-parole period of five years.
Was the sentence manifestly excessive?
The appellant contends, in support of the second ground of appeal, that a head sentence of 10 years’ imprisonment for this offending, taking into account all the circumstances of the case, was wholly outside the range of sentences available to his Honour in the sound exercise of his sentencing discretion.
The appellant complains that no range was sought by the sentencing judge nor was one offered by the prosecutor. However, a sentencing judge is under no obligation to seek a range from a prosecutor or to accept any range so offered.[16] While it may be of assistance to a court for a prosecutor to make a submission on sentencing range, a prosecutor is under no obligation to do so unless requested to do so by the court or where he or she perceives a significant risk that the court will fall into error without such a submission.[17] The appellant does not point to any evidence that suggests the prosecutor perceived a significant risk of the court falling into error without the benefit of a submission as to range.
[16]See R v MacNeil-Brown (2008) 20 VR 677.
[17]Ibid 678-9.
The appellant also argues that the sentence imposed is well above the range relied on by the Crown as representing current sentencing practices for the offence of manslaughter as recognised in DPP v Simpas,[18] namely, somewhere between seven and eight years’ imprisonment. In Simpas the offenders killed the deceased by a voluntary, conscious and deliberate attack with the use of a broken bottle, in the course of a violent escapade, in a public place, regardless of the safety of others. On the allowing of a Director’s appeal, the offenders were re-sentenced on the manslaughter count, on a plea of guilty, to a sentence of six years’ imprisonment, and on the offence of intentionally causing serious injury, to a sentence of six months’ imprisonment, four months of which was to be served cumulatively upon the sentence imposed on the manslaughter count, resulting in a total effective sentence of six years and four months’ imprisonment with a minimum non-parole period of four years and two months’ imprisonment.[19]
[18][2009] VSCA 40 [7].
[19]The sentence imposed on appeal in DPP v Simpas also allowed for double jeopardy as it then applied to Crown appeals against sentence, without which the Court acknowledged a significantly longer sentence would have been imposed.
The respondent relied upon Sherna v The Queen[20] where this Court refused the application for leave to appeal against a sentence of 14 years’ imprisonment with a non-parole period of 10 years for manslaughter. However, in Sherna the applicant had admitted that when he grabbed the cord of his dressing gown he intended to kill his de facto wife but he calmed down and it was only when she taunted him about the mobile phone bill that he had a surge of emotion, lost all rationality, and the next thing he knew his de facto wife was dead.
[20][2011] VSCA 242.
The reliance placed upon Simpas by the appellant, and Sherna by the respondent, demonstrates only that there is little to be gained from drawing upon previous cases to support a particular sentencing disposition. This is plain from the need for a sentencing judge to take into account all of the circumstances of the offence and the offender, including the personal history of the offender, and considerations which may be competing and contradictory in the individual case, from which a particular answer must be distilled.[21] Reliance upon a previous individual case will provide little illustrative assistance.
[21]See Wong v The Queen (2001) 207 CLR 584, 612 [77] (Gaudron, Gummow and Hayne JJ).
Furthermore, it is plain from recent judgments of the High Court[22] and of this Court[23] that what is important in sentencing is consistency of principle. In ensuring consistency of principle, statistics drawn from somewhat similar cases will have limited utility.[24] While acknowledging the limited utility of sentencing statistics, it is worth noting that in 2009-10, the average total effective sentence for people sentenced to imprisonment for manslaughter was eight years and six months with the average non-parole period being five years and five months.[25]
[22]Hili v The Queen (2010) 85 ALJR 195.
[23]Hudson v The Queen (2010) 205 A Crim R 199.
[24]Hili v The Queen (2010) 85 ALJR 195, 205-7; Hudson v The Queen (2010) 205 A Crim R 199.
[25]Sentencing Advisory Council, Snapshot 110 Sentencing Trends for Manslaughter in the Higher Courts of Victoria (May 2011) 5 (fig 12).
In Hanks v The Queen, Bongiorno JA described the nature of the error of manifest excess in these terms:[26]
The term ‘manifest excess’ is usually used when a ground of appeal alleges that a sentence is so egregiously erroneous that the sentencing judge must have made a sentencing error although that error cannot be identified. To succeed on this ground the excess must be obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgement as to itself bespeak error.
[26][2011] VSCA 7 [22].
While this description reveals how high the threshold is before the error can be made out, in my opinion, that threshold is met in the circumstances of this case. This is so, in my opinion, in light of the appellant’s youth, the unplanned and
unsophisticated nature of the offending, his early offer to plead guilty, his genuine remorse and insight into his actions which caused the death of a friend, and his sound prospects of rehabilitation.
I would also uphold Ground 2 of the appeal and re-sentence in the manner described above.
SIFRIS AJA:
I have had the advantage of reading in draft the reasons for judgment of Tate JA. I gratefully adopt her Honour’s summary of the circumstances of the offending, the plea and the grounds of appeal. However, I am unable to agree with her Honour that the sentencing judge erred in the manner identified. I am also unable to agree that the sentence is manifestly excessive. I would dismiss the appeal against sentence. My views may be shortly stated.
The sentencing judge referred extensively to the appellant’s youth and sound prospects of significant rehabilitation. This appears from [5] to [21] of the sentencing judgment.
The sentencing judge also with respect identified the need in the circumstances to give real weight to general and specific deterrence in the sentencing exercise. This appears from [22] of the sentencing judgment.
Having considered youth and prospects of rehabilitation, and the need for general and specific deterrence, his Honour at [23] said:
I have endeavoured to temper these factors in the sentence I am about to impose with your plea offer, your youth, your difficult personal background and the prospects for rehabilitation that I have found. I have imposed a lower minimum term before parole eligibility and a longer parole period than otherwise I would have to reflect these factors.
His Honour then in [24] sentenced the appellant to 10 years’ imprisonment and directed that the applicant serve six years and three months’ imprisonment before becoming eligible for parole.
Having correctly identified the relevant matters, there is no indication that youth and rehabilitation were not properly taken into account. The reference to ‘the sentence’ that his Honour was about ‘to impose’ after tempering general and specific deterrence with youth and prospects of rehabilitation, is a reference to the sentence of 10 years and not the non-parole period.
Consequently in my opinion there is no ambiguity in [23] of his Honour’s judgment. Further, there is no warrant for concluding that youth and rehabilitation were only taken into account in fixing the non-parole period and not the head sentence notwithstanding the last sentence in [23]. In my opinion it is sufficiently clear that his Honour did take youth and rehabilitation into account in fixing the head sentence and did not unduly limit ‘the synthesis of both to the fixing of the Appellant’s non parole period’.
Accordingly, in my opinion ground 1(b) is not made out.
In relation to ground 1(a), I do not accept that the sentencing judge failed to accord the appellant’s youth and rehabilitation their due weight, and in particular in the manner identified.
It is clear that the appellant’s youth and prospects of rehabilitation were an integral part of the sentencing discretion.[27]
[27]R v Tito [2010] VSC 372 [19]-[21] (‘Sentencing Reasons’).
It is generally not desirable or necessary to consider what weight should be given to particular factors that are taken into account in the exercise of sentencing discretion. It is the sentence itself and whether it is manifestly excessive that is the focus of the enquiry.[28]
[28]Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 22 [49].
In so far as the sentencing judge, by considering that real weight should be given to general and specific deterrence, regarded this as more important than youth and rehabilitation, I do not regard such approach as being in error.
As pointed out by Tate JA, youth and prospects of rehabilitation are ordinarily of the first importance. However, this is not always the case. To the extent that the sentencing judge subjugated youth and prospects of rehabilitation to general and specific deterrence this was entirely appropriate in the circumstances of the case. This Court has repeatedly said that alcohol-fuelled public violence and provoked viciousness are of such a nature and gravity that general and specific deterrence and denunciation must be emphasised[29] particularly where such offences are prevalent.[30]
[29]DPP v Simpas [2009] VSCA 40 [9], [13], [102]; see also DPP v SJK and GAS [2002] VSCA 131 [61]; R v PDJ (2002) 7 VR 612, 629 [82]; DPP v Lawrence (2004) 10 VR 125 [22]; Winch v The Queen [2010] VSCA 141 [44]; cf R v Duncan [2009] VSCA 253 [12].
[30]At [18] of the Sentencing Reasons [2010] VSC 372, his Honour said ‘Young people in this State are being killed or seriously injured in alcohol fuelled fighting on an alarmingly regular basis.’
Accordingly, in my opinion, ground 1(a) is not made out.
The second ground of appeal is that the head sentence of 10 years’ imprisonment is manifestly excessive.
As noted by Tate JA at [31], each side has referred to a case that best suits their argument, demonstrating yet again the limited utility in comparing cases. Each sentence has its own peculiar mix of factors. In my opinion, the sentencing judge took all relevant factors into account and no error of principle has been demonstrated.
A general overview of sentences imposed in like cases provides some indication of the range available to the sentencing judge, subject of course to relevant discretionary factors.[31] So far as the sentencing range is concerned, reference may be made to the following cases:
[31]Hudson v The Queen [2010] VSCA 332.
In Lunt; Huynh; Sazdov; LK,[32] Lunt, Huynh and LK struck a number of victims and LK struck a number parties several times with an axe. One of the victims died several days after the attack. The applicants had pleaded guilty and were sentenced to nine years of imprisonment for manslaughter. LK was 16 at the time.
In DPP v Pennisi,[33] D killed V by unintentionally strangling her in the course of a violent altercation. He disclosed his involvement in V’s death when questioned by police. The sentence of 10 years was regarded as lenient but within range. D, a mature offender, had good prospects of rehabilitation and made a late offer to plead guilty to manslaughter.
In R v Curtain,[34] D swung a cable hard at V, striking him to the side of his head with a heavy metal hook then a little later, hit V with both fists repeatedly. V died from his injuries. D, a mature offender, pleaded guilty and was sentenced to nine years for manslaughter. An appeal against sentence on the ground of manifest excess was dismissed.
In R v Casey,[35] D attacked V, his brother, and later unintentionally stabbed him in the right lung. V died as a result of the injury. D, aged 30 at the time of the offence pleaded guilty and expressed his regret. He was sentenced to nine years for manslaughter. An appeal against sentence was dismissed.
In R v Bellingham & Fenton,[36] Fenton was aged 23 at the time of the offence and pleaded guilty to manslaughter. He had picked a fight with students leaving a pub and stabbed two innocent victims in a fashion which was described as cowardly brutal and without provocation was sentence to nine years’ imprisonment with a non-parole period of seven years.
In R v Moore,[37] the applicant was aged 31 at the time of the offence and pleaded guilty to manslaughter. In a fit of anger and aggression, he stabbed the victim in the chest causing a fatal injury to the heart was sentenced to nine years’ imprisonment with a non-parole period of seven years.
In R v Mohammed,[38] a 26 year old Somali Muslim slaughterman was found guilty on one count of manslaughter, amongst other things. He slashed the victim’s neck then stabbed him four times. The attack was inflicted following religious and racial taunts by the victim and the accused was sentenced to 10 years’ imprisonment.
[32][2011] VSCA 56.
[33][2009] VSCA 322.
[34][2009] VSCA 38.
[35][2008] VSCA 53 (‘Casey’).
[36][2002] VSCA 35.
[37][2002] VSCA 33.
[38][2004] VSC 423.
In R v Blacklidge,[39] Gleeson CJ observed that it has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability so wide, that it is not possible to point to any established sentencing tariff.
[39](Unreported, New South Wales Court of Appeal, Gleeson CJ, Grove and Ireland JJ, 12 December 1995) 4.
In Wong v The Queen,[40] Gaudron, Gummow and Hayne JJ stated that in that:
kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. [41]
[40](2001) 207 CLR 584.
[41]Ibid 605 [58].
Accepting the sentencing range as a general guide or impression for the purpose of informing the instinctive reaction to the sentence imposed and accepting the limitation of such analysis, I am of the opinion that the sentence while stern and perhaps at the very top end of the range, was reasonably open to the sentencing judge and is sufficiently within the range of a sound sentencing discretion. I consider that the sentencing judge dealt sufficiently with all of the relevant factors (including the aggravating factors)[42] and sentencing principles. The sentence is not ‘so far outside the range of a reasonable discretionary judgment as to itself bespeak error’.[43]
[42]Sentencing Reasons [2010] VSC 372 [22], the deceased was unarmed. The appellant was armed.
[43]Hanks v The Queen [2011] VSCA 7 [23] (Bongiorno JA).
In R v AB (No 2),[44] this Court emphasised that in determining an appropriate sentence, it was necessary to take into account the increase by Parliament of the maximum sentence for manslaughter from 15 to 20 years.
[44][2008] VSCA 39; See also Casey [2008] VSCA 53 and R v Bangard [2005] VSCA 313 [12].
Accordingly, ground 2 is not made out. I would dismiss the appeal against sentence.
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