West v The Queen; Beyer v The Queen
[2014] VSCA 36
•13 March 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0114
| TRAVIS WEST |
| Appellant |
| v |
| THE QUEEN |
| Respondent |
S APCR 2013 0154
| MICHAEL ANTHONY BEYER |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | WEINBERG and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 13 February 2014 |
| DATE OF JUDGMENT | 13 March 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 36 |
| JUDGMENT APPEALED FROM | DPP v West and Beyer [2013] VCC 951 (Judge Hampel) |
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CRIMINAL LAW – Recklessly causing serious injury – Sentence – Appellant sentenced to six years’ imprisonment with non-parole period of four years – Applicant, who had fewer prior convictions and exhibited remorse, sentenced to five years’ imprisonment with non-parole period of three years – Whether sentences manifestly excessive – Role of joint offenders in commission of offences – Appellant lured victim from victim’s home – Applicant lay in wait and then punched victim to head causing him to fall to ground – Offenders repeatedly kicked victim in back and ribs while victim lay on ground – Brazen and wholly unprovoked, drug and alcohol-fuelled attack – Victim suffered serious injuries including multiple bone fractures and internal bleeding requiring hospitalisation – Leave to Appeal granted – Both appeals dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant West | Mr D A Dann | Leanne Warren & Associates |
| For the Applicant Beyer | Mr M D Stanton | Robert Stary Lawyers |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
I agree, for the reasons given by Coghlan JA, that each appeal should be dismissed.
COGHLAN JA:
On 28 May 2013, the appellants[1] pleaded guilty to one count of recklessly causing serious injury. On 30 May, they were sentenced as follows:
[1] Although Beyer is only an applicant I will refer to both West and Beyer as appellants for convenience.
TRAVIS JOHN WEST
Charge on Indictment Offence Maximum Sentence Cumulation 1 Recklessly cause serious injury [Crimes Act 1958 (Vic) s 17] 15 years
[Crimes Act 1958 (Vic) s 17]6 years N/A Total Effective Sentence: 6 years’ imprisonment Non-Parole Period: 4 years Pre-sentence Detention Declared: 270 days 6AAA Statement: 9 years’ imprisonment with non-parole period of 6 years and 6 months
MICHAEL ANTHONY BEYER
Charge on Indictment Offence Maximum Sentence Cumulation 1 Recklessly cause serious injury [Crimes Act 1958 (Vic) s 17] 15 years
[Crimes Act 1958 (Vic) s 17]5 years N/A Total Effective Sentence: 5 years’ imprisonment Non-Parole Period: 3 years Pre-sentence Detention Declared: 270 days 6AAA Statement: 7 years and 6 months’ imprisonment with non-parole period of 5 years Other orders:
Forensic sample order.
On 3 September 2013, I granted West leave to appeal on the sole ground that the sentence was manifestly excessive.
By notice dated 16 August 2013, Beyer makes application for leave to appeal on the following two grounds:
1.The learned sentencing judge erred by failing to give adequate affect to the applicant’s plea of guilty.
2.The learned sentencing judge erred by imposing a sentence that was manifestly excessive.
Counsel for Beyer notified the court that ground 1 had been abandoned. Since I granted leave to West, I would also grant leave to Beyer (although it should be observed that he received a lower sentence than did West).
Circumstances surrounding the offending
I will summarise the agreed facts as set out in the Registrar’s Neutral Summary.
On Sunday, 2 September 2012, at about 6 pm, Garry McCluskey was at his home in Corio, together with his son Dylan. Mr McCluskey answered a knock at the front door.
The appellant West was at the front door. McCluskey did not know West. West asked him to come outside, and he did. West had earlier armed himself with a pair of long handled hedge clippers, which he put down when McCluskey emerged. The two of them then went over to the corner of the house. West posed a question to McCluskey regarding the people who lived next door. He replied that he did not know who they were.
The appellant Beyer, who had been standing around the corner of the house, then attacked McCluskey and punched him twice to the head. McCluskey called out to his son, Dylan, telling him to call the police. Both appellants punched McCluskey repeatedly to the face and head, and he fell over onto the neighbour’s driveway. He curled his body up to protect his face. Both appellants kicked him to the back and ribs while he was on the ground.
Dylan McCluskey telephoned the police. witnessed the appellants repeatedly kicking his father, and had been so frightened that he locked himself in the house. Police arrived moments later at about 6.15 pm. Both appellants were standing next to the prone figure of McCluskey. They appeared intoxicated. They told police, falsely, that McCluskey had come at them with an axe and that they had simply been defending themselves. Of course, no axe was located. Beyer indicated that he lived next door to McCluskey. Both appellants had blood on them. Both were arrested.
McCluskey was taken to Geelong Hospital where he remained for three days. He suffered numerous abrasions and lacerations. He required stitches to lacerations near his right eye and left ear, and two other areas required gluing. He had a haematoma to the left side of his skull, four fractured ribs, a fractured vertebra, a broken nose, and a collapsed lung.
Beyer was interviewed by police. He either refused to answer questions or was non-responsive.
During his record of interview, West made a number of statements suggesting that McCluskey had been the aggressor, that he had been armed and that he was trespassing in Beyer’s yard. He also claimed that although he had struck McCluskey with his hat and thong, he was not personally responsible for any of the victim’s injuries.
The appellants were arrested by police at the scene of the incident. They were remanded in custody. They offered, at the committal stage, to plead guilty to recklessly cause serious injury if the charge of intentionally cause serious injury was withdrawn.
West’s appeal
It was submitted on behalf of West that, having regard to current sentencing practice, the sentence of six years’ imprisonment was manifestly excessive. Reliance was placed upon the statistical analysis of sentences imposed in the higher courts between 2004 and 2009. It appeared that only very few offenders had received a sentence as high as six years throughout that period.
It was further submitted that, particularly because of the early plea of guilty, the appellant’s attempts at rehabilitation, and the evidence of his cognitive impairment, the sentence imposed below was outside the range of sentences reasonably available.
Mr Dann, who appeared for West at the hearing of the appeal, also relied upon Sentencing Snapshot 126 in relation to the offence of recklessly cause serious injury. That particular Snapshot covered the period 2006-7 to 2010-11. It was not much different from the earlier Snapshot.
Mr Dann also relied heavily upon what had been said by this Court in Ashdown v The Queen.[2] In particular, he relied upon the extensive analysis of the sentences imposed in the higher courts for this offence, and the appendices forming part of the decision, which he submitted, demonstrated that the sentence of six years was an extremely heavy sentence.
[2](2011) 219 A Crim R 454 (‘Ashdown’).
He referred to the following paragraphs in the judgement of Maxwell P:
16.Importantly, most of the appeal cases involving a sentence for RCSI of five years and above were markedly different from the present. (Both Terrickand Ashe v The Queen are altogether different, as each was said to represent the worst category of this offence.) Recurrent features of the cases in this group are:
•a plea of not guilty, precluding any discount for guilty plea;
•the use of a dangerous weapon;
•life-threatening and usually permanent injury; and
•relevant, recent, prior convictions for violence, often including RCSI.
….
Use of weapon
18.The offence of RCSI is only committed if the offender foresees the probability that his/her action will cause serious injury to the victim, and goes ahead regardless of that probability. As noted in Winch, this is not mere carelessness, where the offender fails to appreciate the risk of injury. This is conscious disregard of a risk of serious injury which the offender knows to exist.
19 As this Court pointed out in Ashe,the assessment of the seriousness of a particular instance of RCSI will involve considering both the degree of probability that serious injury will result, and the degree of seriousness of the probable injury. Ordinarily, therefore, the use of a weapon will mean that the offence is more serious, since it heightens both the probability of serious injury and the degree of seriousness of the probable injury. The conclusion in Winch was that glassing was a serious instance of RCSI because of ‘the obvious dangerousness of a glass or bottle (whether broken or not) when used to strike a blow to the face or head.’
…
25.The foregoing analysis of current sentencing practice reinforces the conclusion that the five year sentence imposed on the appellant was not reasonably open in the circumstances. Put another way, the sentence represented an unjustifiable departure from current sentencing practices, which the appellant having pleaded guilty was entitled to assume would apply. The majority in Winch came to a similar conclusion.
26.The adequacy of current sentencing practice for this offence is, however, a separate question, which was raised for the first time in the written submissions of the Crown, in this appeal and in Winch.[3]
[3]Ibid 462-3, 465-6 (citations omitted).
Mr Dann submitted that, since none of the aggravating factors set out in [16] were present in this case, a sentence of six years could not be justified. He referred in particular to what Maxwell P had said at [25] of his judgment.
In Ashdown, both Ashley JA and Redlich JA agreed with Maxwell P that the sentence (in that case five years) was manifestly excessive.
Ashley JA (with whom Redlich JA agreed on this point) said:
Mention was made, in the submissions for the appellant and for the Crown, to the relevant sentencing snapshot. Unequivocally, the statistics set out in the snapshot show that the sentence imposed on the appellant was very much at the upper end of sentences imposed. To the extent that such statistics reveal current sentencing practices, they show, in my opinion, that the sentence passed, in the circumstances of this offender and this offence, was inconsistent with such practices.[4]
[4]Ibid 482 [122] (citations omitted).
For the purposes of comparison between the gravity of the offending in Ashdown, and that of the appellant, Mr Dann also referred to Ashley JA’s following comments:
It must next be said that the appellant’s criminal history, particularly with respect to offences against the person, had other significance. First, it underlined the relevance of specific deterrence as a consideration in the sentence imposed on this occasion. Second, it disclosed, because of the likely association between alcohol and/or drug use and angry outbursts, both the difficulties and the opportunities for the appellant to rehabilitate himself. The difficulties lay in the long pattern of drug and alcohol abuse. The opportunities lay in the appellant’s insight into his problems, as detected by Dr Sullivan.[5]
[5]Ibid 482 [120].
It is fair to say that Ashley JA concentrated less on the question of current sentencing practice and more on general sentencing principles, in coming to the following conclusion:
There was varying force in all the submissions which I have noted. That said, in my opinion the appellant has met the difficult obligation of demonstrating that the sentence on count 1 was impermissibly high. Granted that the offence was committed against a person who was somewhat vulnerable, it was a spur of the moment act by an agitated man, carried out in the heat of argument — albeit one that he had instigated. It was constituted by a single blow — struck, indeed, using the appellant’s injured hand. Contrary to the submission for the Crown, the effect of the assault was not profound. In all, the attack, and its physical and emotional consequences for the victim, did not put the offending at all in the upper reaches of seriousness.[6]
[6]Ibid 481 [115].
I have no doubt that reference to current sentencing practice may lead to the conclusion that a particular sentence falls outside the range. However, it is only one of a number of factors to be considered.
It is important, before proceeding further, to discuss where the present offending sits in the range of seriousness. The learned sentencing judge, after setting out the background facts, made the following remarks:
31.It was, from Mr McCluskey’s perspective, a random attack on a stranger. He had done you no harm and given you no cause to bear him ill will. The various explanations given by you, Mr West, are at best, or kindest, the product of your imagination, or based on a misunderstanding about the identity of personal people you thought had done the wrong thing by Mr Beyer.
32.At worst, it is an appalling example of drug or alcohol fuelled vengeance directed at a person you did not know, but who you believe, wrongly, as it turns out, had done wrong to someone else. That you were entirely wrong in believing that Mr McCluskey had done wrong by Mr Beyer, only serves to make your conduct more reprehensible and to re-enforce the need to condemn and punish such ungoverned and lawless behaviour.
33.None of Mr West's explanations could have motivated you, Mr Beyer, as you knew the identity of the people, or the person you had a grievance against. The one who you bore the gravest ill will was, to your knowledge, still in gaol serving a sentence for shooting at you. His latest act in a vendetta that, it would appear on the material before me, each of you had sustained for a number of years.
34.Your inability to advance any explanation for the attack or for your participation in it, is not, in those circumstances, a mitigating feature. Mr McCluskey was lured away from the safety of his home and, defenceless and unsuspecting, subjected to a cowardly two on one attack which gave him no opportunity to flee, or to defend himself.
35.There was a level of planning. You, Mr West, armed yourself with the hedge clippers, explaining you did that in case you were outnumbered, and then lured Mr McCluskey out of the house and down the drive to where you, Mr Beyer, were concealed and waiting. The two of you were ready when the police arrived, despite your obvious intoxication, to advance that patently false account of being rushed at with the axe and acting in self-defence.
36.Given the sustained nature of the attack and the injuries that you inflicted upon Mr McCluskey with your fists and with kicks, the absence of use of other weapons is no mitigating feature either.[7]
[7]DPP v West & Beyer [2013] VCC 951, [31]-[36].
In my opinion, her Honour’s remarks were entirely appropriate.
I accept that the sentence imposed on the appellant West could be viewed as a severe one. However, it must be borne in mind that his offending involved the following features of aggravation:
(1)The victim was lured out of his home by the appellant who took him to a place nearby where his co-accused could attack him.
(2)The victim fell to the ground where he was beaten and kicked in a sustained attack.
(3)The victim suffered numerous lacerations and abrasions, stitches near his right eye, left ear and two other areas that required gluing, haematoma to the left side of the skull, four fractured ribs, a fractured vertebra, a broken nose, and a collapsed lung.
(4)The attack was in the presence of the victim’s son, who was so scared he locked himself in the house. Both victims have since moved interstate, at very considerable personal cost to themselves.
(5)There was no reason, even an imagined one, for the attack.
(6)The attack was brazen, in broad daylight in the street outside the victim’s home.
(7)The appellant went to the victim’s home with the intention of attacking him. This was not an attack which arose in response to any form of provocation.
(8)When the police attended, the appellant and his co-accused attempted to blame the victim. They told the police the victim had attacked them with an axe.
(9)No explanation had been offered for the offending.
(10)At the time of the offence West was on bail.
(11)West was given the opportunity to be in the ARC (Assessment and Referral Court) programme at Melbourne Magistrates’ Court. He had breached the conditions of that program by the use of alcohol and drugs, and by further offending.
(12)West had significant prior convictions. These included convictions for violence and threats to inflict violence, as well as possession of weapons. As noted by the learned sentencing judge, they spoke of a history of alcohol and drug abuse. West had been offered opportunities in the past, including a number of community based orders and suspended sentences (many of which he had breached).
(13)His prospects of rehabilitation were guarded.
Of course there were a number of matters in mitigation including:
(1)The early guilty plea.
(2)The fact that the appellant had some difficulties in his upbringing and had started using drugs at about age 14. His level of intellectual functioning is in the lower range and he may have an acquired brain injury (either as a result of the ingestion of drugs, or from a motor vehicle accident, or both, but more probably the latter).
(3)Since being in custody, the appellant has been drug and alcohol free and has completed such courses as have been available.
(4)The appellant also has the support of his mother and his partner on release.
(5)A number of persons associated with the appellant have died in unfortunate circumstances.
It was submitted on behalf of both appellants that although they were reckless as to serious injury, the extent of the injuries sustained went beyond what might reasonably have been foreseen. I reject that submission.
In my opinion, the injuries sustained were well within the range of what was foreseeable from a vicious attack of the type that occurred. It seems to me that it was only the consumption of alcohol and drugs which led to this case being settled on the basis of recklessly, rather than intentionally, causing serious injury.
In Ashdown, Maxwell P, when dealing with the use of weapons, observed:
Of course, a clenched fist can be a lethal weapon when used to deliver a hard punch to a person’s head. And the combination of punching and kicking is more lethal again, as tragic cases such as Terrick illustrate. [8]
[8]Ashdown (2011) 219 A Crim R 454, 465 [23] (citation omitted).
The President’s comment seems particularly apposite to this case. In my view, this was a particularly bad example of recklessly causing serious injury. It has often been said that this offence covers a wide range of conduct. A large number of cases of recklessly causing serious injury involve reactive behaviour, usually over-reactive, which leads to confrontation. That is not this case. These appellants took themselves to the victim’s premises for no reason whatsoever. This case is to that extent quite different from those which arise as a result of the taking of perceived offence.
Having regard to current sentencing practice, the various aggravating circumstances, as well as the matters put in mitigation, I am not persuaded that the sentence imposed on West was outside the range that was reasonably available to the sentencing judge. I would dismiss West’s appeal.
Beyer’s appeal
When considering Beyer’s appeal, all of my comments regarding the gravity of West’s offending are equally applicable. There are, however, two features of Beyer’s case which are different. The first is remorse. Unlike West, Beyer was found to be remorseful. The second is Beyer’s background. His criminal history is less extensive than that of West. That suggests that his prospects of rehabilitation are better than those of West.
The sentencing judge sentenced Beyer to one year less than West, on both the head sentence and the non-parole period. No complaint is made by Beyer about the inadequacy of that disparity. His argument is simply that both the head sentence and the non-parole period are manifestly excessive.
Mr Stanton, who appeared for Beyer, adopted the submissions put forward by Mr Dann on behalf of West regarding current sentencing practice. He went on to develop a submissions that, having regard to current sentencing practice, and the absence of aggravating features in Beyer’s case, the sentence of five years’ imprisonment with a non-parole period of three years was outside the range.
I will not repeat what I said earlier regarding current sentencing practice for this offence. Beyer must be regarded as, in one sense, the ‘genesis’ of the attack. It must have been his perceived grievance which led the two appellants to attack the victim at his home.
Although it was West who was armed when he came to the house, it was Beyer who waited in ambush, and who threw the first punch. It was that blow which knocked McCluskey to the ground. Thereafter Beyer participated fully in the brutal attack which followed.
The matters relied upon as mitigation for Beyer were:
(1)He has, as a sole parent, the care and responsibility for two young daughters who were 12 and 14 at the time of sentence. That responsibility has kept him out of the work force.
(2)He was genuinely remorseful.
(3)He has completed all available courses whilst in prison.
(4)He is a qualified crane driver and his prospects of rehabilitation are good.
(5)He has suffered from depression, which is linked to his abuse of alcohol.
(6)His criminal record is significantly shorter than that of West. (However, it should be noted that he does have prior convictions for violence. These include two convictions for resisting police, recklessly cause injury and assault in company; assault and breaching an intervention order.)
(7)The report from psychologist Carla Lechner received on the plea was positive regarding his prospects for rehabilitation and recommended a lengthy period of parole.
When proper regard is had to the gravity of the offending in this case, and due regard is paid to the mitigating factors that were present, I am not persuaded
that the sentence imposed upon Beyer was outside the range reasonably available to the sentencing judge. Accordingly, I would dismiss his appeal as well.
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