Ty Ranger v The Queen
[2018] VSCA 271
•26 October 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0074
| TY RANGER | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | KYROU and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 October 2018 |
| DATE OF JUDGMENT: | 26 October 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 271 |
| JUDGMENT APPEALED FROM: | DPP v Ranger [2017] VCC 433 (Judge Punshon) |
---
CRIMINAL LAW – Sentence – Leave to appeal – Appeal – Intentionally causing serious injury – Unprovoked assault with knife upon five year old child – Superficial injuries – Residual scarring – Limited evidence of psychological impact – Offender aged 23 – Seriously incapacitated by cerebral palsy – Plea of guilty but circumstances of incident not admitted – Reasons for attack unclear – No prior criminal history – Heavy burden of imprisonment – Total effective sentence of nine years with non-parole period of six years and three months’ imprisonment – Leave to appeal granted – Appeal allowed – Appellant re-sentenced to six years’ imprisonment with non-parole period of three years and six months’ imprisonment.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr M Fitzgerald | Fitzgerald Legal |
| For the Respondent | Mr B L Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
KYROU JA
ASHLEY JA:
Ty Ranger, the applicant, is a 26 year old single man who, on 14 November 2016, pleaded guilty to single charges of intentionally causing serious injury (Charge 1)[1] and knowingly possessing child pornography (Charge 2).[2]
[1]Crimes Act 1958 s 16.
[2]Crimes Act 1958 s 70(1).
On 27 March 2017, the applicant was sentenced to nine years’ imprisonment on Charge 1, and one month’s imprisonment on Charge 2. The Judge made no order for cumulation. The total effective sentence was thus nine years’ imprisonment. The Judge fixed a non-parole period of six years and three months’ imprisonment.
The applicant sought leave to appeal on the single ground that the sentence and the non-parole period was, in each case, manifestly excessive. The particulars of complaint were that the Judge had given insufficient weight to:
(i)the applicant’s plea of guilty;
(ii)the applicant’s youthfulness;
(iii)the applicant’s previous good character and lack of prior criminal history;
(iv)the applicant’s adverse personal history;
(v)the applicant’s disabilities — he suffers from cerebral palsy — and the consequent burden of imprisonment upon him;
(vi)the applicant’s prospects of rehabilitation,
and excessive weight to:
(vii)aggravating factors;
(viii)community protection.
The application was evidently directed to the sentence imposed on Charge 1 and the non-parole period which (no cumulation having been ordered in respect of the sentence on Charge 2) was closely related to the sentence on Charge 1.
Written submissions in support of the application did not contend that the sentencing Judge had failed to take account of any relevant circumstance, or had taken account of some impermissible circumstance. As the particulars of the ground made clear, the alleged error in the sentence imposed arose from an erroneous weighting of the entire circumstances of the matter. The particulars were simply a suggested explanation for the allegedly erroneous sentence.
A Judge of this Court refused the applicant leave to appeal. The applicant elected to renew his application before this Court consisting of at least two judges. On 16 October 2018, the Court heard the application and heard also the substance of the appeal in the event that leave to appeal was granted.
It has repeatedly been stressed by this and other appellate courts that a complaint that a sentence is manifestly excessive is a ground which is difficult to make good. It requires the applicant to satisfy the court that the sentence imposed was wholly outside the range of sentencing options available to the judge; that is, that it was not reasonably open to the judge to come to the sentencing conclusion which he or she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.
Bearing steadily in mind the difficult task faced by the applicant, he has nonetheless satisfied us that the sentence imposed was manifestly excessive. For the reasons which follow, we will grant the applicant leave to appeal and allow the appeal. We will set aside the sentence imposed below, and sentence the applicant on Charge 1 to be imprisoned for a period of six years. We will reimpose the sentence of one month’s imprisonment on Charge 2. We will make no order for cumulation. The total effective sentence will be six years’ imprisonment. We will fix a non-parole period of three years and six months’ imprisonment, and make the appropriate declaration in respect of pre-sentence detention.
The offending
In order to explain our conclusions, we must first describe the circumstances of the offending. There is an odd feature to this matter.
The applicant was sentenced on the footing, as the Judge recounted in his sentencing remarks, that:
In short, on 22 November 2015, during the afternoon, you gestured to the victim, a five-year-old girl, who was playing outside her unit, where she then lived with her mother and older sister, to come to where you were, outside your unit. Both units were in a block of apartments.
The victim walked over to you. You cuddled her and led her into your unit. Once inside, you obtained a pocket knife and sat on the victim, and began to repeatedly stab her.
You also removed her t-shirt, touched her chest and groin, removed her shoes and attempted to remove her shorts, but were unable to do so because she had her legs closed.
The stabbing continued, but in the struggle, the victim was able to bite you on the lip, causing you to drop the knife. She was able to escape and flee to her mother.[3]
[3]DPP v Ranger [2017] VCC 433 [4]–[7] (‘Sentencing remarks’).
The Judge noted that the contents of the summary of prosecution opening, on which the passages in the preceding paragraph were based, was ‘agreed to on [the applicant’s] behalf’.[4]
[4]Ibid [2].
But although the applicant pleaded guilty to the charge of intentionally causing serious injury, and although the contents of the prosecution summary were ‘agreed to on [his] behalf’,[5] the applicant asserted from the outset, and continued to assert at the time when the plea was heard in March 2017, that the circumstances of the incident were quite different. On his account, they were as follows: That the victim had ‘barged’ into his room, that she had picked up a pocketknife which was lying open on a coffee table (he having used it recently to open a package), that he had tried to retrieve the knife from the victim, and that there had then been a struggle in which she was injured.
[5]Ibid.
The fact that the applicant persisted in this account of the incident, despite his plea of guilty to Charge 1 — a plea which was accepted as having been given at the earliest opportunity, for it immediately followed negotiations in which a raft of other charges, including attempted murder and child stealing, were abandoned — evidently and understandably troubled the Judge. It left the offending unexplained, at least by the applicant. We must return to this matter later in these reasons.
We should briefly refer to the circumstances of Charge 2. Following his apprehension on the day of the assault, police seized the applicant’s mobile phone. Two images of Category 1 child pornography — which is the least serious category — and 154 images of adult pornography were discovered. Charge 2 related only to the two images of Category 1 child pornography.
The injuries
We must next refer to the injuries sustained by the five year old victim.
She fled from the applicant’s unit in the apartment complex (it was an old motel which was used to house disadvantaged persons) to the unit in which she lived. It appears that for several lengthy periods before that day she had lived somewhere else with an aunt. In any event, at the time she was living with her mother.
The victim was observed by her mother to be bloodied and distressed. She was also observed not to be wearing a top.
An ambulance was called, and the victim was taken to the Ballarat Base Hospital. There, she came under the care of Dr David Tickell, head of paediatrics. He provided a report dated 23 November 2015.
Examination showed that the child had suffered a mixture of clean edged incisions and puncture wounds to her chest (two), abdomen (approximately six), head and neck (ten), and back (four) — that is, some 22 in all.[6]
[6]There was reference in material before the Judge to the victim having suffered 25 wounds. That does not appear to be consistent with Dr Tickell’s report.
Most of the wounds were superficial. In one instance only, there was protrusion of intra-abdominal fat.
In addition to the wounds, bruising of the right eye and non-specific bruising of the neck was observed.
The child was subjected to investigations for other possible injuries. The investigations included an exploratory laparoscopy in order to exclude any penetrating wound to the abdomen. Such a wound was excluded. No other abnormality, including evidence of any sexual assault, was detected.
The incisions and puncture wounds were cleaned and sutured. The victim was given pain relief.
The child was discharged from hospital five days after admission.
At the plea, held in March 2017, there was no evidence to suggest that the victim had required any medical attention after the time of her discharge. Further, and regrettably, no medical evidence was placed before the Judge to describe the victim’s situation — physical or emotional — as at the time of the plea. Several victim impact statements, however, touched upon the situation.
So far as it could be admissible, a victim impact statement made by the victim’s aunt on 17 October 2016 — that is, about four and a half months before the substantive plea hearing took place — stated that the child had scars which could be seen when she wore everyday clothes. The aunt also referred to the child having continuing nightmares; and she made reference to the child’s ‘emotional outburst[s]’.
The mother also made a victim impact statement, again on 17 October 2016. The mother referred to her daughter’s life being impacted ‘physically and emotionally’, and ‘resulting in her being taken away from her mother, stepfather and new sister’. How this was said to be related to the assault was not revealed. The mother further stated that her child ‘gets startled by loud noises and men in public’, and that when she helped her daughter to get dressed, she could ‘see the scars on her body and they will never go away’.
Concerning the victim’s injuries, it remains to note that the Judge referred, in his sentencing remarks, to the victim being taken to hospital, with ‘serious and potentially life-threatening injuries’.[7] This was part of what the prosecutor had said when opening the matter. It was, with respect, an overstatement. The injuries were ‘potentially life-threatening’ only in the sense that stabbing injuries could threaten life in particular circumstances. But the actual wounds in this case did not threaten the victim’s life.
[7]Sentencing remarks [4].
The applicant
The applicant, now 26, was aged 23 at time of offending. He was born with his umbilical cord wound tightly around his neck. He developed cerebral palsy, a lifetime affliction.
His parents separated when he was five, it then being disclosed that his father had abused his sisters. The father went to gaol. Thereafter, the applicant had no dealings with his father for many years.
The applicant completed his primary and secondary schooling successfully. He does not have an intellectual disability.
At age 14, the applicant moved with his mother, with whom he has always had good relations, to live on Christmas Island. There, he remained until he was aged 19. He left after being sexually abused by a neighbour. He reported the matter to the police, but it seems that no action was taken against the putative offender.
The applicant returned to live in Perth for a period, but eventually he moved to Ballarat, having found a female friend (also a person with a disability) via the internet. The friend resided in Ballarat. Their relationship, which was apparently an extremely affectionate one, broke up on St Patrick’s Day 2015, although they remained friends.
Whilst living in Ballarat, also in 2015, the applicant was subject to two other adverse events. First, there was a fire in the unit which he was then occupying. Second, he was sexually abused again. He did not report this abuse to the police, his complaint on the earlier occasion having got nowhere.
At some point, it is not quite clear when, the applicant began to abuse alcohol. What is clear is that, after his relationship broke up in March 2015, his use of alcohol escalated to the point where it was noticed by others, and to the point where he, himself, realised that there was a problem.
Whilst living in Ballarat, the applicant commenced a course of tertiary study. Because of problems with transport, attendance proved to be difficult.
The applicant had not offended before the instant occasion. He was of previous good character. He had faced many adversities in his life, and had done his best to overcome them. His offending was described by people who knew him as being quite out of character. He was described as being ‘usually pretty happy’, ‘never known to have been violent’, ‘quite jovial, friendly’, ‘easy going’, a ‘bright and bubbly person’, and ‘very happy and talkative’. On the other hand, as will be seen, the applicant in fact suffered from significant, recurrent, problems of a psychiatric nature.
We turn to the applicant’s physical situation. As we have said, he suffers from cerebral palsy.
Associate Professor Michael Fahey, a paediatric neurologist with high qualifications and experience, interviewed and examined the applicant and prepared a report dated 18 October 2016. Dr Fahey (for convenience, we will so describe him) studied past medical reports pertaining to the applicant, and also reports of disability providers.
The applicant reported to Dr Fahey that he had difficulty with tasks involving fine movements. He found it difficult to eat. He could not write, he could walk, but readily got tired. He used a wheelchair for longer distance travel. He regularly suffered falls. When at home, he had assistance from carers. He could not fully wash himself. He had difficulty dressing. He could not do up or undo buttons. He wore shoes without laces. He found it difficult to brush his teeth. He did not brush his hair. He was assisted to shave. There being lack of control of his limbs, he found it easier to sit on the floor, where he felt he had more upper motor control. Others cut up his food. He played soccer in prison, but fell a lot. He could use a keyboard and mouse, but could not write. Before being remanded, he had received a variety of therapies, including hydrotherapy, physiotherapy, occupational therapy and speech therapy.
The doctor examined the applicant. His findings were as follows:
Ty is quite dystonic and obviously disabled to onlookers. His short stature I would estimate around 5 foot, although no measuring tape was provided. I did not undertake a head circumference. He has a dystonic gait with varus feet bilaterally, the right being worse than the left. His base was 15 centimetres, and he stumbled frequently even within the confines of the interview room. He held his arms flexed and externally rotated. I witnessed him opening door handle, and this was done with some effort, he had to lean in and twisted his whole body. He could open his mouth and had a reasonable cough but could not move his tongue to command. In his arms he had ulnar deviation on the left with dystonia. He had decreased external rotation and fixed flexion of the left elbow to 35°. On the right he had fixed ulnar deviation with dystonia present and decreased external rotation. He could put his hands on his head but not on his back. His upper limb strength was decreased across all areas, except elbow flexion.
In his legs he had fungus infection on his left great toe nail. He had plantar flexion deformity with knee extended at 10° on the left and 0° on the right. With knees bent passive dorsiflex to 10° bilaterally was achieved. He had a fixed flexion deformity of 5° of his right knee. Lower limb strength was near normal except for dorsiflexion which was graded at 5. He had evidence of spasticity with pathologically brisk reflexes of the knee and ankle, the right being worse than the left. His right plantar was up going. His chest was clear to auscultation, and his heart sounds dual with no added sounds.
The doctor opined that the applicant suffered from spastic dystonic quadriparesis — that is, spasticity affecting all four limbs — worse on the right side, and that his speech was also affected.
It is evident that the doctor considered that the limitations in daily living which the applicant had described to him were consistent with the clinical picture.
The doctor considered that there were elements of the applicant’s daily life in prison, at that time, where care was less than adequate and for which help was required. He particularly mentioned problems with hygiene and with falls. He considered that the applicant needed access to rehabilitation programs such as he had been undertaking before his arrest. If he did not have such access, there was risk of future deterioration.
The picture described of the applicant by Dr Fahey was entirely consistent with the observations and reports of others which formed part of the material before the Judge. We refer particularly to the ‘Individual Support Package Plan’ documented on 17 February 2015, to the statement of Matthew Fisher dated 30 November 2015, to the statement of Alistair Holland dated 27 November 2015 and to the statement of Alicia Rogers dated 26 November 2015. Individually and cumulatively, these various statements depicted a person who, from observations made well before the offending took place, had very significant difficulties with the ordinary functions of daily living. None of the makers of those statements had any axe to grind when describing the nature and extent of the applicant’s physical disabilities.
We were invited by counsel for the applicant to view a videotape of the record of interview conducted between his client and the police. Counsel submitted that it would assist us to better understand the magnitude of the applicant’s physical disabilities. Counsel for the respondent had no objection to our viewing the videotape for that purpose. We have viewed it. It is enough to say, consistently with the report of Dr Fahey and the observations and reports to which we referred in the preceding paragraph, that it depicts a very disabled man.
We must mention the applicant’s psychiatric problems. The Judge was provided with two reports which particularly addressed the applicant’s past and continuing mental state. Gary McMullen, a very experienced psychologist, examined and tested the applicant on 26 August 2016. Testing revealed the applicant to be a man of average intellectual functioning. It also revealed evidence of a severe chronic post-traumatic stress disorder and a major depression. The former probably developed, Mr McMullen opined, as a result of the sexual assault which occurred when the applicant was living on Christmas Island, and had been exacerbated by the fire in the Ballarat apartment and the second sexual assault to which we have already referred. The major depression, Mr McMullen considered, was probably a consequence of the applicant’s incarceration. It was not possible to say if it had developed before that time.
Mr McMullen opined that, because of the applicant’s physical disabilities and serious mental disorders, it appeared that he was finding incarceration more onerous than a prisoner free of such difficulties.
At the instance of the Judge, the applicant was examined by Dr Carolyn Simms of Forensicare on 2 December 2016. In her report dated 31 January 2017, the doctor appears to have accepted that the applicant developed post-traumatic stress disorder following the first sexual assault, which recurred following the second assault. Treatment had been beneficial. Further, it seemed likely that the applicant was suffering from a major depressive disorder which had responded partially to medication and psychological treatment. Nonetheless, the applicant still experienced intermittent suicidal ideation.
Future risk
Dr Simms also expressed these conclusions:
With regards to future risks of violence, Mr Ranger despite having no prior history of violence or antisocial behavior has had difficulties with relationships and suffered with a mental illness and the impact of his cerebral palsy upon his social and occupational functioning. The impact of his father’s offending and being sexually assaulted himself likely predisposing him to violent behavior along with his heavy alcohol use. Despite the available evidence he has minimized the gravity of his behavior and had difficulties taking responsibility for his actions. Treatment of his depression and alcohol misuse along with evidence based psychological treatment to help him make progress in his attitude to his offence will likely be beneficial in reducing future risk of violence.
Mr Ranger denied any sexual motive for the assault. He does have a number of risk factors for sexual offending including difficulties with stress and coping, tending to use alcohol to alleviate distress, a history of being sexually assaulted, a history of mental illness, substance abuse disorder and difficulties with intimate relationships.
Sentencing remarks
In his comprehensive sentencing remarks, the very experienced Judge made these points and expressed these conclusions.
First, the victim had essentially recovered from the wounds themselves, but the long-term psychological consequences of the assault were unknown.
Second, the applicant had pleaded guilty at the first available opportunity, his opposition to more serious charges having been vindicated when they were abandoned.
Third, it could not be said that the applicant was remorseful, because he did not accept the agreed facts as representing the truth of the matter.
Fourth, although the circumstances of the present assault could be contrasted with many (more serious) instances of the offence, the applicant, by his plea, still accepted the serious nature of the injuries, physical and psychological, in combination.
Fifth, it had been conceded for the applicant that there was really no satisfactory explanation for the assault. There was no clear evidence of intoxication on the day. In any event, intoxication would provide little explanation for the offending conduct.
Sixth, there was an apparent sexual component to the attack. But no inference of a sexual purpose could be drawn from the two child pornography images, which had been downloaded many months earlier.
Seventh, Dr Fahey’s report showed clearly that the applicant’s physical condition significantly reduced his capacity to engage in many physical activities.
Eighth, Dr Fahey had stressed the importance for the applicant to have access to rehabilitation programs.
Ninth, Mr McMullen had described features of the applicant’s upbringing and background, and had expressed the opinion that the applicant was suffering from post-traumatic stress disorder and major depressive disorder.
Tenth, Mr McMullen had opined that the applicant’s disabilities made incarceration more difficult for him than a prisoner without those difficulties.
Eleventh, the applicant ‘clearly struggle[d]’[8] with many activities in prison.
[8]Ibid [40].
Twelfth, the applicant had been assessed as a maximum security risk for his protection, and had been placed at Port Phillip prison. After a short time, he had been placed in St Paul’s Psycho-social Unit. In August 2016, he had been transferred to Marlborough Disability Unit. In the latter unit, there were mainly intellectually disabled prisoners.
Thirteenth, the applicant was receiving nursing and prisoner mentor support.
Fourteenth, two very supportive character references had been tendered.
Fifteenth, the applicant was separated from his family in Western Australia.
Sixteenth, he — that is, the Judge — had ordered that a psychiatric report be obtained by Forensicare. That was the genesis of the report of Dr Simms to which we have already referred.
Seventeenth, applicant’s counsel had relied on the fifth and sixth limbs of Verdins[9] with respect to the applicant’s incarceration being more onerous than would be expected by a prisoner without his physical and mental disabilities.
[9]R v Verdins (2007) 16 VR 269, 276 [32]. Verdins dealt with impaired mental functioning only. But it was not suggested in argument, and it is not the case, that physical disabilities cannot be relevant to the burden of imprisonment. So also, particular isolation.
Eighteenth, a risk of both mental and physical decline existed by reason of the applicant’s imprisonment. He accepted that the applicant’s ‘mental state problems either developed after incarceration, or at least became worse after incarceration’.[10]
[10]Sentencing remarks [54].
Nineteenth, he accepted that the applicant’s condition made him vulnerable in prison, and was a considerable additional burden on him serving a sentence of imprisonment. It was unknown precisely what support would be provided to him in prison. It would be the support that the prison authorities considered to be appropriate.
The Judge then expressed two particular conclusions:
I cannot conclude that I have much confidence in your rehabilitative potential without further evidence to explain why the offending occurred. Without that explanation, it is not possible to conclude that the cause of the offending is being addressed.
and:
Specific and general deterrence need to be considered, as does denunciation and just punishment. I am conscious of your relative youth, both at the time of the offending and now, as well as the absence of prior offending and previous good character. Of course, your rehabilitation is highly desirable. I must give considerable weight to your cerebral palsy and its consequences. However, your offending is very serious, and protection of the community remains very relevant.[11]
[11]Ibid [60]–[61].
Submissions for the applicant
The applicant’s principal submissions were that:
(1)The sentence on Charge 1 fell within the sentencing range for the worst class of case, where one would expect to find: very severe or catastrophic injury; an intent to produce really serious injury; very substantial aggravating circumstances; a relevant prior criminal history; and an absence of compelling circumstances of mitigation.
(2)Whilst there were circumstances of aggravation in the present case — the age and vulnerability of the victim and the use of a knife — the injuries inflicted were at the lower end. There was a question as to the extent to which each injury was a willed act, as distinct from an injury attributable to the applicant’s lack of control of his arms.
(3)Aggregate sentencing statistics showed that the applicant’s sentence was double the median sentence for the offence, and that sentences of a length equal to or greater than the applicant’s sentence accounted for 5 per cent or less of all cases.
(4)When cases which involved the use of a knife or similar bladed weapon were reviewed, as a subset of the offence, only in two instances[12] had a higher sentence been imposed, and they were instances of extreme violence in breach of intervention orders. Lesser sentence had routinely been imposed despite the injuries inflicted being more severe.
(5)In two relatively old cases involving serious injury to a child,[13] when the maximum penalty for the offence was lower, sentences imposed had been less than that imposed on the applicant. The injuries suffered by the victims in those cases were more severe than in the present case, and in the second of them the offender had stood his trial.
(6)The injuries inflicted in cases where a similar sentence had been imposed were substantially greater than the injuries inflicted in the present case.[14]
(7)The applicant could call in aid a large number of weighty circumstances in mitigation. His personal circumstances were truly unique. They bore, inter alia, upon the burden of imprisonment. One of the aspects of that burden was the applicant’s continuing imprisonment in a unit of Port Phillip Prison mainly occupied by intellectually disabled prisoners.
(8)Whilst on remand, the applicant had addressed the alcohol abuse problem which had contributed to his offending conduct.
(9)From a practical standpoint, any risk of re-offending posed by the applicant was — by reason of his gross disability and reliance upon government agencies for housing (it was unlikely that he would be housed with or near children in the future) — more apparent than real.
[12]Portelli v The Queen [2015] VSCA 159; Jafari v The Queen [2015] VSCA 295.
[13]R v Staples [2005] VSCA 130; R v Pham [2005] VSCA 57.
[14]Counsel referred to Robbins v The Queen [2012] VSCA 34; DPP v Terrick (2009) 24 VR 457; Hudson v The Queen [2013] VSCA 218; Jafari v The Queen [2015] VSCA 295; Arthars v The Queen (2013) 39 VR 613; Portelliv The Queen [2015] VSCA 159; Charles v TheQueen (2011) 34 VR 41; R v Heaney (2009) 2 VR 164; R v Kilic (2016) 259 CLR 256.
Submissions for the respondent
The principal submissions for the respondent were that:
(1)The respondent readily accepted that the sentence was at the higher end, and it was relatively rare to find sentences of nine years’ imprisonment for the offence. Nonetheless, it could not be concluded that the sentence was manifestly excessive.
(2)Whilst there were a number of circumstances to put on the ‘credit’ side for the applicant in the sentencing synthesis, on the ‘debit’ side was the fact that this was particularly serious offending. A young and vulnerable child had been the subject of a concerted attack. The attacker had not desisted. The victim had been required to break free and flee. The injuries were by their nature very serious. There were permanent consequences.
(3)There was no finding of a link between the attack and the applicant’s disability as would reduce his moral culpability for the offending. His moral culpability was high.
(4)The Judge gave the applicant every opportunity to give an explanation for his offending; but none was forthcoming. This bore upon prospects of rehabilitation.
(5)The Judge was correct to conclude that there was an absence of remorse, the applicant not having taken responsibility for his offending.
(6)The Judge was correct to emphasise the importance of general and specific deterrence, denunciation, just punishment and protection of the community as sentencing considerations, whilst recognising also the applicant’s previous good character, lack of prior convictions and his physical disability and its consequences.
(7)A person’s disability or ill-health cannot be allowed to become a licence to commit crime. The circumstance that prison will impose a greater burden on the offender must not be allowed to overwhelm imposition of a proper sentence reflecting the grave nature of a serious offence. The Judge had moderated the sentence appropriately having regard to the burden of imprisonment and the risk of deterioration in the applicant’s health.
(8)Very little assistance could be gleaned from sentencing patterns for this offence. Each case turns on its unique circumstances. It was not to the point that, because the sentence imposed on the applicant exceeded the sentence imposed in all but a few cases, it was beyond the range of available sentences. Sentences do not establish precedents. Sentences cited by applicant’s counsel referable to bladed weapon attacks involved ‘a myriad of different factors and circumstances’, none of which were directly comparable to the circumstances of this case. Sentences equal to or greater than the sentence imposed upon the applicant, where very severe injury indeed had been inflicted, had also involved a variety of circumstances which must have been factored into the sentencing synthesis.
(9)Although the offending may not have been amongst the very worst cases of the offence, the Judge rightly found it to be very serious, and the worst cases will attract sentences of 15 years’ imprisonment and upwards.
Analysis
It is clear that this matter, strange in some respects, posed a very difficult problem for the sentencing Judge. The victim was a five year old girl, vulnerable at the time of the offending. The offender was a 23 year old, small, thin man with grave physical limitations.
The applicant had never offended before, and was of generally good character. People who knew him before the offending described him in language which was remote from the offending.
There was no obvious reason why the applicant offended as he did, when he did, other than possible alcohol abuse and mental upset springing from a series of adverse events which had occurred in his life, particularly in 2015. But that at best could have provided a part explanation for the offending.
Next, the applicant himself had never accepted the circumstances of the incident relied upon by the prosecution. Whatever be the reason, it justified the Judge’s conclusion that the applicant had not taken responsibility for the assault, so that remorse had not been demonstrated.
In the overall panorama of misconduct falling within the offence of intentionally causing serious injury, there were plainly aggravating circumstances in this case. It involved an assault with a weapon upon an unsuspecting child. It was not confined to a single blow. The applicant did not desist from his attack; rather, the victim broke free.
On the other hand, the attack was not one perpetrated on a stranger in a public place. It was not carried out in company. It was not prolonged, despite the number of wounds inflicted. It did not involve a ‘king hit’ or use of a weapon so as to inflict grave injury upon the victim. It seems to have occurred without premeditation. Emphasising the extent of the applicant’s disability, the five year old female victim was able to break free and go to her mother. Probably also because of the extent of the applicant’s disability, wounds inflicted upon the child, with one exception, were superficial. The laparoscopy was simply carried out to exclude abdominal injury. In substance, treatment was by suturing and pain relief. The victim was discharged from hospital after five days. As the Judge said, she had essentially recovered from the wounds. Scarring there was, but there was a paucity of evidence bearing upon the likely long-term appearance of the scars. Understandably but regrettably, there was no expert opinion as to the victim’s psychological status as at the time of the plea, or the likely prognosis in that connection. All that could be said was that, in human experience, some psychological upset could be expected.
Overall, focusing upon the relative severity of the attack and the relative severity of the injuries inflicted, in our opinion it is impossible to characterise this offending — one important aspect in the sentencing synthesis — as in the more serious range.
Then consider the circumstances in mitigation. We need not repeat them. They were numerous, and they were weighty. The Judge recognised their presence and their substance.
We recognise and understand the concern which the Judge had that no adequate reason for the offending had been disclosed. We fully appreciate that there was some evidence of a risk that the applicant might violently offend again, and some evidence of the presence of risk factors for sexual offending. It was quite understandable, in the event, that the Judge would give considerable weight to protection of the community when imposing sentence, and have reservations about the applicant’s prospects for rehabilitation.
These were important sentencing considerations. Even so, they had to take their place in the overall sentencing synthesis. Looking at the matter overall, considering the entire circumstances of the offending, the offender and the victim — including the impact as disclosed by the mother and aunt in their victim impact statements — it is very difficult indeed to see how the sentence imposed was within the range of sentences reasonably open to the Judge to impose in the sound exercise of the sentencing discretion. It implied that, in all the circumstances, this was an extremely serious example of the offence. We cannot accept that this was so.
Thus far we have said nothing about the many sentences for the offence to which we were referred by applicant’s counsel. We do not propose to canvass their myriad individual details. It is trite that every case is unique. With more than usual force, that can be said of this matter. But it is at least clear, when regard is had to the broad reach of the heaviest sentences imposed for this offence, and to the spectrum of sentences imposed for attacks with a bladed weapon, that the sentence imposed on the applicant was in all the circumstances an outlier.
It is for these reasons that we conclude that the sentence cannot stand.
We add this: the sentence which we will impose allows for a considerable period of superintendence in the event that the applicant is released on parole. We think that, having regard to the possible risks to which Dr Simms referred, release into the community but with careful superintendence over a lengthy period would best meet the needs of the matter.
---
2