Tony McKEON-MULLER v The Queen
[2018] VSCA 199
•8 August 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0129
| TONY McKEON-MULLER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 August 2018 |
| DATE OF JUDGMENT: | 8 August 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 199 |
| JUDGMENT APPEALED FROM: | DPP v McKeon-Muller (Unreported, County Court of Victoria, Judge Hogan, 15 June 2018) |
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CRIMINAL LAW — Sentence — Appeal — Recklessly causing serious injury — Victim struck to face with a rock or brick — Applicant sentenced to 6 months’ imprisonment with 24 month community correction order — Whether manifestly excessive — Leave to appeal against sentence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Connolly | Greg Thomas Barrister & Solicitor |
| For the Crown | Mr M D Phillips | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA
WEINBERG JA:
Introduction
The applicant, now aged 25 years, pleaded guilty in the County Court on
28 May 2018 to one charge of recklessly causing serious injury.[1]
[1]Crimes Act 1958, s 17. The maximum penalty is 15 years’ imprisonment.
On 15 June 2018, the judge sentenced the applicant to be imprisoned for six months and imposed a community correction order (‘CCO’) of two years duration.[2] Conditions of the CCO require the applicant to perform 150 hours of unpaid community work, undergo assessment and treatment for drug abuse or dependency, and participate in programs or courses, including programs in relation to violent offending and anger management.[3]
[2]See Sentencing Act 1991, s 44(1).
[3]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, she would have sentenced the applicant to be imprisoned for two years and six months, with a non-parole period of 20 months.
The applicant seeks leave to appeal against his sentence on a single ground formulated as follows:
1. The sentence imposed by the sentencing judge was manifestly excessive.
Particulars:
(a) The sentence imposed on charge 1 was manifestly too long.
(b) The wrong type of sentence was imposed; a community correction order alone ought to have been imposed.
(c) Her Honour gave manifestly insufficient weight to the circumstances of excessive self-defence in which the offence was committed.
(d) The sentences imposed were more severe than that which were necessary to achieve the purposes for which the sentence was imposed.
In our opinion, the sentence imposed in the County Court is well within the range of those open in the proper exercise of the sentencing discretion. Indeed, we regard it as lenient. Leave to appeal thus must be refused.
Circumstances of the offending
The circumstances of the offending were set out in the Prosecution Opening as follows:
A. BACKGOUND
1. [The applicant] was born on 31 May 1993 meaning that at the time of the offending he was aged 22 and is currently aged 24. Paul Perkins (the complainant) was born on 6 March 1968 meaning that at the time of the offending he was aged 47 and is currently aged 50.
B. INTRODUCTION
2. On 30 January 2016, Damien and Anita Tirchett held an 18th birthday party for their twin daughters in their home at The Aqueduct in Mount Evelyn. Anita Tirchett is the mother of the [applicant] and Damien is his step-father.
3. The party was to commence at about 6:30 pm and guests were asked to leave by about 10:30 pm that night. Approximately 24 guests were invited but not all attended. Those attendees consisted of mainly 18 and 19 year old male and females. One of the guests was Justin Perkins, the son of the complainant. Justin was then aged 17, and is autistic. Justin rang his father (the complainant) and asked him to be collected and taken home. At approximately 11:30 pm, Justin was advised by his father over the telephone that his father was en route to collect him from the party.
4. Justin partook in this phone call that was made from outside the front of the house. Justin was then accompanied by the [applicant], who was holding an umbrella as it was then raining. Justin told the [applicant] that his father (the complainant) had been drinking (alcohol) and was drunk, and would be collecting him soon. The [applicant] then went inside the premises and informed his parents of that conversation. Both Damien and Anita Tirchett agreed that they would not allow the complainant to drive Justin home if the complainant was intoxicated. Damien and Anita went outside and waited for the complainant to arrive.
5. At approximately midnight, the complainant, who was driving, arrived with a friend, Peter Blackburn, who sat in the passengers’ front seat. Blackburn was seen to be drinking red wine from a glass. While the complainant was still in the driver’s seat, Damien then questioned the complainant in relation to the complainant’s level of intoxication. The [applicant] was standing very close to his father. The complainant was shocked by this questioning and got out of the car. He then had stern words with Damien.
6. The complainant then forced his son, Justin, to get into the car and affix ‘L plates’ to the back windscreen as Justin would drive them home. Damien kept repeating that Justin could not go home with the complainant, given the complainant’s level of intoxication. At some point during this process the complainant moved his car as it was in part blocking the street.
C. THE OFFENDING
7. The complainant again got out of his car and had a scuffle with the [applicant]. They had each other in headlocks and were separated by Damien and Blackburn. It was around this time that Damien removed the car keys from the ignition of the vehicle in which the complainant had arrived.
8. The complainant then aggressively approached Damien who began backtracking. Another scuffle ensued, this time between them. On viewing this, the [applicant] rang 000 asking for police to attend. Anita took the phone and advised the operator that her husband was arguing with an intoxicated driver and being assaulted by him. Unbeknown to all concerned, and from behind where Damien and the complainant were scuffling, the [applicant] ran at the complainant full pelt … and struck him once to the face with a stone or brick. The complainant fell to the ground with blood emanating from his face.
9. Blackburn then drove the complainant to the Angliss Hospital and thereafter police arrived at the Tirchett’s home. At 4:45 am on 31 January 2016, staff from the Angliss Hospital Emergency Department contacted police and informed them that the complainant was in a serious condition and had been transferred urgently by ambulance to the Alfred hospital with significant, multiple injuries. The complainant was placed in an induced coma when admitted into the Alfred Hospital and kept in intensive care. The complainant’s blood alcohol concentration was recorded as being 0.082%.
D. THE INJURIES
10. Frontal bone depression with complicated fractures
Fracture of the right and left eye orbital roof
Fracture of the right orbital floor
Fracture of the right and left medial wall
Air on the brain
A small brain bleed
Large cut to forehead
11. The discharge summary from the Alfred Hospital noted that there was a compound depressed skull fracture involving the frontal sinus and interior cranial floor with frontal lobe contusion and durable bleed. It also noted under the heading ‘Further Detail’:
Open depressed frontal bone fractures
Pneumocranium/dural tear
frontal haemorrhagic contusion
frontal subarachnoid haemorrhage
Facial fractures
nasal bone
E. THE RECORD OF INTERVIEW
12. The [applicant] was interviewed by police on 2 March 2016. During the course of the interview the [applicant’s] answers included the following:
• Justin’s dad told him that his father was running late and that his father was drink-driving (Q 35)
• I told my parents that Justin’s father was drinking and driving (Q 42 and 43)
• My parents decided that they would drive Justin home (Q 52 and 54).
• The complainant got out of his car and we’ve had a little scuffle (Q 66).
• I might’ve had the complainant in a headlock (Q 68).
• My mother pulled me away and that’s when I rang 000 (Q 71).
• I called the police because Justin’s dad had been drink-driving. I assumed he’d been drink-driving and was going to call them, the police, to come over and stop it. (Q 79).
• I was angry and I picked up, probably a rock, and hit Justin’s dad (Q 87, 88 and 93).
• Why did you do that?---Just instinct. Being my stepdad I’m not gonna sit there and let someone do something and the guy being a bit taller than me… and knowing my stepdad doesn’t really… like a fighting type of person. I just stuck up for him (Q 101).
• It wasn’t the right thing to do (Q 102).
• Did you feel a bit under threat at all?---A little bit yes … From Justin’s old man and I actually thought his mate would have jumped in as well… (Q 105).
• Do you think you were justified in picking up a rock and hitting him in the face with a rock?---Probably, yeah probably, a bit too far what I did, but at that point in time I just-yeah. I needed to do something so I just did that. Someone had to step in. (Q 111).
• I just looked up and I just ran over there. I didn’t really see much (Q 123).
• Were they both punching on, were they wrestling?---They were both just close to each other and I don’t know, I honestly didn’t see what was happening but all I just heard was a yell… (Q 124).
• Did you feel that your stepfather was getting overpowered by this fellow?---Yeah yeah, pretty much. (Q 125).
• So were they throwing punches at each other was he throwing punches at your stepfather? To be honest I didn’t look, I just acted and just ran over there (Q 126).
• … [My reason was that] I was sticking up for my stepdad, feeling a bit threatened at the same time, and stopping him from, I don’t know, something even was happening (Q 131).
The plea and sentence
On the plea hearing, the applicant’s counsel submitted that a CCO could satisfy all sentencing objectives in accordance with the reasoning in the guideline judgement of Boulton.[4] On the other hand, the prosecutor submitted that the gravity of the offending was such that the only appropriate sentence was a term of imprisonment with a non-parole period.
[4]Boulton v The Queen (2014) 46 VR 308 (‘Boulton’).
In the course of her sentencing remarks, the judge said that she accepted that the complainant’s behaviour ‘was irresponsible, aggressive and offensive‘, and that the applicant was ‘acting responsibly in trying to ensure that the complainant did not drive whilst he was intoxicated and that Justin would be safe’. Her Honour also noted that ‘the complainant’s aggressive behaviour escalated‘, and that the applicant’s ‘offending behaviour occurred on the spur of the moment in this situation of escalating aggression from the complainant’. But for the applicant ‘to hit the complainant in the face with a rock … was a disproportionate and unnecessarily violent response to his aggression’.
With respect to the applicant’s antecedents, the judge observed in her sentencing remarks:
Unhappily, it would seem that you have something of a tendency to let your anger get the best of you. You have recently turned 25 years of age, having been born on 31 May 1993. You have a criminal history which includes one charge of intentionally causing injury (of which you were convicted in January 2012) and another charge of assault with a weapon (of which you were convicted in June 2013). In each of these matters, you were originally given a Community Corrections Order. Each of these orders was contravened by you failing to comply with the conditions. Apparently, both of these offences had been committed in 2012, when you were aged 18 years. The first offence involved you punching someone at a nightclub. The second offence occurred when you were pursued after having stolen some alcohol and you produced a knife, albeit that you did not use the knife in any way to inflict an injury.
Importantly, the judge also observed:
I have wrestled with this sentence. On the one hand, to use a rock to strike another human being in the face is a violent anti-social act and the injuries caused to the complainant are very serious. On the other hand, you were only 22 years at the time of offending and it was in no way pre-meditated. There is no suggestion that you were spoiling for a fight or that you deliberately searched out a rock to use as a weapon upon the complainant. He was the original aggressor. Your offending was a rash, spontaneous over-reaction to the belligerent and inappropriate behaviour of the complainant towards your step father, whom you wanted to protect.
Her Honour thought there were reasons to be optimistic about the applicant’s rehabilitation, including his youth, plea of guilty, remorse, supportive family and work ethic.
Analysis
Whilst it might be acknowledged that the offending is mitigated by the applicant’s relative youth, plea of guilty and remorse, the applicant’s was a serious example of a serious offence.
By his plea, the applicant admitted that he foresaw the probability that his act in striking the victim in the face with a makeshift weapon would probably cause the victim serious injury. With ample justification, the judge described the injuries suffered by the victim as ‘nasty indeed’; and as is plain from his victim impact statement, the victim ‘has suffered multiple and significant emotional and physical consequences of his injury’. Those consequences, the judge said, ‘include anxiety, pain and altered sensation in various parts of his face, and he still suffers head pain, at times, and some loss of his sense of smell and hearing, and loss of memory and concentration’.
Moreover, although the applicant is relatively youthful, he is not without relevant prior convictions. Thus, when aged 18 years he punched somebody at a nightclub; and, on another occasion, assaulted somebody by threatening them with a knife. Notably, in relation to both those offences, a CCO was initially imposed, which the applicant subsequently breached. Although the applicant is not again to be punished for these breaches of the law, his prior convictions limit any claim he might have to the leniency usually extended to first time offenders, and bear on his moral culpability, his prospects of rehabilitation, his dangerous propensities and the concomitant need for the community’s protection, and the increased importance of specific deterrence in the sentencing process.[5] Indeed, in light of the applicant’s prior convictions, and his failure to abide by previously imposed CCOs, we would be less sanguine about the applicant’s prospects of rehabilitation than the sentencing judge seems to have been.
[5]R v O’Brienand Gloster [1997] 2 VR 714, 718.
The ‘particulars’ subjoined to the ground of appeal, claim (among other things) that the sentence imposed ‘was manifestly too long’ and that the ‘wrong type of sentence was imposed’. But to once more traverse well-trodden ground, manifest excess is a conclusion which does not depend upon attribution of identified specific error. It is a conclusion that ordinarily does not admit of much in the way of argument or elaboration,[6] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[7] Judges of appellate courts approach the task of assessing whether a sentence is manifestly — as opposed to merely arguably — excessive in much the same way that sentencing judges approach the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors so as to determine whether they consider a sentence to be just and appropriate.[8] Appellate intervention is not warranted, however, unless the sentence is outside the range of those open in the sound exercise of discretion.[9] Hence, even if the appellate court regards the impugned sentence as stern, and even if the members of the court would not themselves have passed the same sentence, intervention is not justified.[10]
[6]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v The Queen [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]-[52].
[7]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[8]Ibid.
[9] Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].
[10]Ibid.
In the circumstances, we regard the sentence imposed by the judge to be relatively lenient. Although the victim’s behaviour may have been somewhat aggressive and offensive; and although the applicant’s offending might have been ‘spur of the moment’; the fact remains that the applicant chose to use a weapon — a rock or a brick — to strike the victim to the face, foreseeing the probability that he would thereby cause the victim serious injury. That was a wholly disproportionate response to the provocation offered by the victim, by a young man has two prior convictions for offences involving violence. And it was a response that caused considerable injury and concomitant suffering to the victim.
Notwithstanding the judge’s views about the applicant’s prospects of rehabilitation and the mitigating features (such as the plea of guilty and remorse), both general and specific deterrence needed to be given ample weight in the exercise of the sentencing discretion, as did curial denunciation and just punishment.
Taking all of the foregoing circumstances into account, we are far from persuaded that the sentence imposed upon the applicant is manifestly excessive.
Conclusion
Leave to appeal against sentence must be refused.
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