Winch v The Queen

[2010] VSCA 141

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 587

JOHN THOMAS WINCH

Appellant

v

THE QUEEN

Respondent

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JUDGES	MAXWELL P, ASHLEY and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 May 2010
DATE OF JUDGMENT	17 June 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 141
JUDGMENT APPEALED FROM	R v Winch (Unreported, County Court of Victoria, Judge Pilgrim, 2 April 2009)

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CRIMINAL LAW – Appeal – Sentence – Recklessly causing serious injury – ‘Glassing’ – Offender very drunk – Victim permanently scarred – Offender remorseful, no prior convictions – Guilty plea – Sentence of five years with non-parole period of three years – Whether manifestly excessive – Crown conceded sentence ‘out of kilter’ with current sentencing – Sentence outside range reasonably available – Re-sentenced – Two years nine months’ imprisonment, non-parole period 15 months.

CRIMINAL LAW – Sentencing – Current sentencing practices – Recklessly causing serious injury – ‘Glassing’ – Frequency of wholly-suspended sentences – Whether current sentencing adequate – Whether commensurate with objective gravity of offence – ‘Glassing’ equivalent to assault with weapon – Wholly suspended sentence not appropriate.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr M J Croucher with Mr K J Dernelley	Victorian Aboriginal Legal Service

MAXWELL P
REDLICH JA:

1. The present appeal concerns the ugly phenomenon known as ‘glassing’.  ‘Glassing’ is the description which is applied where one person strikes another with a glass or bottle, typically to the face or the head.  If the glass item is not already broken, it will almost inevitably break on impact, making it a most dangerous weapon. 

1. That is what occurred in the present case.  The appellant struck his victim in the face with a beer pot.  It smashed on impact and the victim suffered severe lacerations.   He is permanently scarred, both physically and psychologically.  The appellant pleaded guilty to recklessly causing serious injury (‘RCSI’).  He was sentenced to five years’ imprisonment, with a non-parole period of three years.  He now appeals, by leave, against that sentence.

1. As will appear, the Crown correctly conceded on the appeal that the sentence was manifestly excessive.  It is therefore necessary for this Court to re-sentence the appellant.  As a matter of fairness to the appellant, we must do so conformably with current sentencing practices, as the Crown also conceded.  We deal with these matters in Part I of these reasons.

1. The Crown made the further submission, however, that glassing cases should not be viewed as a discrete category of recklessly causing serious injury, less serious than cases in which a weapon likely to inflict serious injury is employed, and that this Court should say so, in order to assist sentencing judges.  We deal with this general issue in Part II of these reasons.

I.         THE PRESENT CASE

1. Leave to appeal was granted by Maxwell P on 29 October 2009.  The first ground of appeal was that the sentence imposed was manifestly excessive;  the second…