Winch v The Queen
[2010] VSCA 141
•17 June 2010
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:
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.
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.
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.
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
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 was that the sentencing judge had erred in deciding that ‘a suspended sentence would fail to give appropriate weight to the principles of general deterrence and that of denunciation’. The third ground was that the judge had given excessive weight to those principles.
The Crown opposed the grant of leave to appeal. This is of particular significance since, on the appeal, the Crown not only acknowledged that its opposition to the grant of leave had been erroneous but conceded that the appeal must be allowed. The Crown’s change of position came after extensive research into current sentencing practices for RCSI, and for glassing in particular. This research was undertaken following a direction given by Maxwell P in granting the appellant leave to appeal.
The basis of the Crown’s concession was that there was an unjustifiable disparity between the sentence imposed on the appellant and the sentence imposed on others in comparable cases. The disparity was recognised by the Crown when it collated and reviewed 16 County Court sentencing decisions, covering the period 2007–2009, where the offender was sentenced for RCSI, the serious injury having resulted from glassing.[1] We will refer to this kind of case as a ‘glassing case’.
[1]Those decisions, and the sentences imposed, are listed in Appendix A (which is taken from the Crown’s submissions).
Importantly, the Crown pointed out that no one sentenced for RCSI for a ‘glassing’ attack in this three year period had received a term of imprisonment of four years, let alone a term of five years. The Crown conceded – rightly, in our view – that the sentence of five years imposed on this appellant was ‘out of kilter’ with current sentencing for such offending, and that the sentence fell outside the range reasonably open to this judge sentencing this person for this offending in these circumstances.[2]
[2]R v Abbott (2007) 170 A Crim R 306.
That concession having been made, counsel for the appellant maintained the submission advanced on the plea, that any term of imprisonment which this Court imposed on re-sentencing should be wholly suspended. He pointed out that suspension of all or part of the sentence was a common outcome in the glassing cases compiled by the Crown and contended that such an outcome should follow in the present case, in view of the strong mitigating features.
In response, the Crown submitted that a suspended sentence did not properly reflect the level of seriousness of the conduct. (The same submission had been made on the plea). Whilst acknowledging the ‘powerful constellation of mitigatory features warranting a degree of clemency’,[3] the Crown submitted that only an immediate custodial sentence would be appropriate. As will appear, we agree with the Crown’s submission, and would re-sentence the appellant accordingly.
[3]See [15]-[18] below.
Circumstances of the offending
The appellant and his girlfriend had travelled to Mildura in order to visit her parents. After booking into a motel for two nights, they spent the evening with friends. The sentencing judge described the events which followed:
During the course of the evening you consumed approximately half a 700 ml bottle of Jack Daniels bourbon. Having arrived back at the Chaffey Motor Inn at about 12.30 am on Sunday morning you then consumed the rest of the bourbon before than deciding to go to O’Malley’s Tavern here in Deakin Avenue, almost next door to this court facility.
On that Saturday, earlier on the day, [TH] and his elder brother, [NH], and some friends had attended a wedding reception and at the conclusion of that wedding they decided, like you, to go to O’Malley’s Tavern in Deakin Avenue. While at the tavern [TH] observed you push past one of his friends to reach the bar. Because of your perceived state of intoxication and your general demeanour [TH] and his brother, the victim, and their friends, decided to move to the beer garden.
At about 2.30 am on Sunday morning [TH] observed you come into the beer garden where he heard you accuse [NH] of indicating rude remarks to your lady friend. You demanded an apology from [NH]. While [NH] was endeavouring to say to you that he had not seen your girlfriend before and had not done things of which he was being accused, [TH] saw that you were holding a handled beer pot. You struck [NH] in the face with that beer pot.
The force of the blow felled [NH] and the effect of the impact was described by a witness …, one of the members of the group, as causing [NH’s] face to explode in blood. Photographs taken shortly after the event and after medical treatment show the visible injury caused by that blow.
…
The victim, [NH], was taken to the Mildura Hospital where he was seen by Dr North. The pictures exhibited in this case portray the dreadful lacerations and broken teeth your violence caused to [NH]. Dr North very, very succinctly says that [NH] suffered a large laceration to the left side of the face from the middle of the nose down to, and involving, full thickness of the upper lip. There was muscle involved. He also said there was another laceration involving the lower lip and this too crossed the vermillion border. A third laceration involved the left side of the bridge of the nose, just below the medial to the left eye. Dr North’s diagnosis from these observations was that there were significant deep lacerations to the left side of the face, deep too and involving muscle. Dr North then referred [NH] for surgical exploration of those injuries. Those explorations continue and will continue, I suspect, for quite some time to come.[4]
[4]R v Winch (Unreported, County Court of Victoria, Judge Pilgrim, 2 April 2009), [2]–[5], [14].
By his plea of guilty, the appellant acknowledged[5] that:
(a)the injury he caused was serious – as it plainly was;
(b) when he struck the victim with the beer glass, he was aware, even in his drunken state, that to do so would probably cause serious injury; and
(c) he had consciously disregarded that risk.
[5]See [34]–[35] below.
The effect on the victim
The victim of this attack filed two victim impact statements: the first, completed about three months after the incident; the second, almost a year later. His partner, with whom he has two children, also filed a victim impact statement.
The sentencing judge summarised the statements in the following terms:
These two young people have been down a long road since the early morning of 23 December 2007. There is much further to go. Many bends, crests and twists are yet to be traversed in repairing this man’s horrifically damaged face and no doubt his mental state. It is to be hoped that after the completion by the medical and dental teams, in particular the skills of the plastic surgeon, that [NH] may be restored to good health and the effects of the substantial scarring presently existing may ultimately diminish. I have no doubt that this appalling attack upon [NH] will remain evident, to at least some degree, for the rest of his life. His partner and two children share [his] distress. It is to be hoped that counselling will assist in repairing their shattered family lifestyle.
The contents of these victim impact statements indicate the distress experienced by this young family as very, very, difficult and serious. I empathise with them.[6]
[6]R v Winch (Unreported, County Court of Victoria, Judge Pilgrim, 2 April 2009), [28]–[29].
Strong mitigating factors
As the Crown properly conceded, the appellant was able to advance very substantial matters in mitigation of sentence. They were helpfully summarised in the Crown’s submission, as follows:
·co-operation with investigating authorities;
·admissions in record of interview;
·genuine and immediate remorse, including an apology to the victim which was read out in court;
·disadvantaged background;
·good employment history;
·strong family support;
·good character;
·significant steps taken towards reformation, including counselling;
·very good prospects of rehabilitation.
As the judge recorded in his reasons, 12 written references were produced in support of the plea in mitigation:
They come from varying persons, some from your Aboriginal family, your lecturers, your tutors, your past employers, especially in [the NSW National Parks Service], and numerous friends. These references are [at] one in that they all indicate that you are a hard working, dedicated young man, highly admired by your peers and you are proceeding very well in academia.[7]
The following, from his manager in the Parks Service, was typical:
As an Aboriginal person, John has overcome many personal obstacles and challenges in reaching his current position in life. He is very respectful of his culture and maintains a strong sense of identity and pride for himself and his people. John is the father of a young family and is on the verge of completing his degree which will see him embark on a career that is full of hope and opportunity for the future and that of his family and community.
[7]Ibid [23].
Earlier the judge had said:
Mr Winch, your past industry and academic pursuits indicate that you have the capacity to discipline yourself. You were selected … to represent Aboriginal people at the Catholic World Youth Day held in Rome where your group, as a group, met with the Pope. You were amongst two other Aboriginal persons chosen for this significant event. You have obviously the potential to be a leader, particularly within your cultural group. This honour recognised that you have reached and achieved high standards within the community.[8]
[8]Ibid [20].
Apart from one drink driving offence 10 years earlier, the appellant had no prior convictions. Since the incident, he had attended Alcoholics Anonymous and, since late 2008, had abstained from consuming any alcohol. The judge was satisfied that the appellant accepted ‘the enormity’ of his actions and that he empathised with his victim for the harm he had caused.
The sentencing range applicable to the case at hand
In compliance with the direction given on the leave application, the Crown assembled for the purposes of this appeal[9] all instances of sentencing in the County Court for the offence of RCSI in the period 2007–10. As a result in particular of the efforts of Mr Sonnet, who appeared for the Crown on this appeal, some 276 individual RCSI sentencing decisions have been tabulated in summary form. This was, as it turned out, an enormous task. It far exceeded in scale what might have been anticipated when the direction was given.[10]
[9]And of the appeal in Ashdown v The Queen, which was heard at the same time.
[10]We wish to record our appreciation of the very substantial work undertaken in obtaining this material, which it would have been beyond the resources of the Court to obtain.
In the process, the Crown identified 16 instances in the period 2007-09 of persons sentenced in the County Court for RCSI where the serious injury was caused by ‘glassing’. Copies of those decisions (which are listed in Appendix A) were provided to the Court.
Compilations of this kind can be of great assistance in enabling the Court to ascertain (where relevant) current sentencing practice for a particular offence or a particular type of offending.[11] The material has illuminated the Court’s consideration both of the case at hand and of the general issues discussed later in these reasons.
[11]See, eg, DPP v Patterson [2009] VSCA 222; DPP v El Hajje [2009] VSCA 160.
In his submission, Mr Sonnet helpfully analysed the 16 ‘glassing’ sentences, as follows:
· eight offenders (50 per cent) were given a term of immediate imprisonment;
· eight offenders (50 per cent) were given a wholly-suspended sentence;
· imprisonment terms ranged from nine months to three years and nine months;
· the median term of imprisonment was 22 months;
· the most common term of imprisonment was two years (five instances); and
· the average term of imprisonment was 22 months.
‘Outside the range’
The concession by the Crown, that the sentence was outside the range of sentences reasonably open to the judge in this case, involved the proper acknowledgement of two matters. First, in sentencing the appellant, the judge was obliged to have regard to current sentencing practices.[12] Secondly, the appellant’s plea of guilty had been entered on the reasonable assumption that his sentencing would be in line with current practice.[13]
[12]Sentencing Act 1991 (Vic) s 5(2)(b).
[13]DPP v CPD (2009) 22 VR 533 (‘CPD’); DPP v DDJ (2009) 22 VR 444 (‘DDJ’).
Consistency of sentencing is a fundamental objective of the criminal law. The rule of law requires that like cases be treated alike. Although the notion of sentencing range accepts that minds may reasonably differ regarding the appropriate sentence for a particular case, the sentencing decisions listed in Appendix A show that the sentence imposed in the present case was anomalously high. The disparity between this sentence and other sentences for comparable offending is not reasonably justifiable, in our view.[14]
[14]Cf Bala v The Queen [2010] VSCA 78, [8]–[14].
The anomalous result may be explained by the fact that, in contrast to some of the other cases in the survey,[15] the sentencing judge did not have the assistance of a Crown submission on sentencing range. His Honour was simply told that ‘a proper disposition demands the imposition of a custodial sentence and … such a sentence that is not capable of being suspended’. That this appeal has succeeded – on a Crown concession – may be thought to emphasise the importance of a Crown submission on range at first instance, in promoting consistency of sentencing and reducing appellable error.[16]
[15]In R v Brooks [2009] VCC 1172, the Crown’s submission was that the appropriate range was a head sentence of 18–36 months’ imprisonment and a non-parole period of 12–24 months’ imprisonment. The sentence imposed was two years’ imprisonment with a non-parole period of 12 months. In R v Wallace [2009] VCC 1666, the Crown submitted that the appropriate range was a head sentence of two to three years and a non-parole period of 18–24 months. The sentence imposed was two years’ detention in a Youth Justice Centre. Neither sentence was appealed.
[16]See R v MacNeil-Brown (2008) 20 VR 677, [4] (Maxwell P, Vincent and Redlich JJA).
As counsel for the Crown noted, the sentencing judge, in fixing a head sentence of five years’ imprisonment, did not suggest that he was consciously departing from current sentencing practice. To have done so after a plea of guilty had been entered would, in any case, have created the unfairness to which the Court referred in CPD[17] and DDJ.[18]
[17](2009) 22 VR 533, [69].
[18](2009) 22 VR 444, [65].
For the same reason, we are constrained by current sentencing practices in re-sentencing the appellant. As on a Director’s appeal, so on a prisoner’s appeal, it ‘would work a great injustice if this court were to inflict on [the appellant] a higher sentence than he could reasonably have anticipated when considering whether to plead guilty or contest the charges.’[19]
[19](2009) 22 VR 533, [69].
Existing practice did not, however, bind the sentencing judge, nor does it bind this Court in re-sentencing, to suspend the custodial sentence imposed on the appellant. Although the cases in Appendix A reveal a high rate of suspended sentences, in an equal number of cases the offender sentenced for RCSI glassing has had to serve some actual custody.
Re-sentencing
In our view, the judge was right to conclude that a fully-suspended sentence was inappropriate in the present circumstances. Notwithstanding the very significant matters advanced in mitigation, we agree with his Honour that a term of actual imprisonment was required. The term imposed was, however, excessive, for the reasons we have given.
The appeal should be allowed, the sentence imposed should be quashed and the appellant should be re-sentenced to two years and nine months’ imprisonment, with a non-parole period of 15 months.
II. GLASSING CASES – A SERIOUS EXAMPLE OF RCSI
The work undertaken on current sentencing pursuant to Maxwell P’s direction led the Crown to submit on this appeal that current sentencing for glassing (as an instance of RCSI) should be incrementally uplifted. For reasons which follow, we agree with the Crown’s submission that the general run of sentences imposed for glassing as an instance of RCSI does not sufficiently reflect the fact that such conduct is inherently dangerous, and should not be treated as a less serious form of the offence of RCSI.
‘Glassing’ cases have a number of recurrent features. The typical glassing – of which the present appeal is an illustration – occurs in or near licensed premises. It is usually an act of alcohol-fuelled aggression, in disproportionate response to an actual or perceived slight. The typical offender is young and of generally good character, and is full of remorse after the event.
The consequences of glassing are, almost invariably, very serious. Striking to the face or head with a bottle or glass carries a high – and obvious – risk of serious injury. The victim of a glassing almost always suffers severe lacerations; often has permanent facial scarring; and suffers physical and psychological damage which is typically long-term and often permanent.
It is important to recall that RCSI is a very serious offence. It carries a maximum penalty of 15 years. An examination of the elements of the offence reveals why this is so. First, the offence involves the causing of serious injury to the victim. Secondly, the mental element of the offence – recklessness – means that the offender has consciously disregarded a known risk.[20]
[20]R v Towle [2009] VSCA 280, [31] and the decisions there cited.
The offence of RCSI is only committed if the offender foresaw the probability that his/her action would cause serious injury to the victim, and went ahead regardless of that probability.[21] 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.
[21]DPP v Castro [2006] VSCA 197, [13] (Coldrey AJA, with whom Callaway AP and Redlich JA agreed); DPP v Fevaleaki (2006) 165 A Crim R 524, [12] (Redlich JA) (‘Fevaleaki’); R v Pota [2007] VSCA 198, [19].
As this Court pointed out in Ashe v The Queen,[22] the court’s 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 injury thus foreseen. What makes glassing a serious instance of RCSI – almost by definition – is the obvious dangerousness of a glass or bottle (whether broken or not) when used to strike a blow to the face or head. Hence, the offender who is convicted of this offence of recklessness is to be taken to have foreseen a high probability of serious injury.
[22][2010] VSCA 119, [27].
The importance of general deterrence
The decision in R v Mills[23] is most often cited for its clear statement of the approach to be taken to sentencing young offenders but, as counsel for the Crown pointed out in this appeal, Mills was itself a ‘glassing’ case. Indeed it had all of the typical features of such cases referred to earlier. The offender was 20 years old. He had no prior convictions. He had been binge drinking in a hotel for some hours. After a verbal altercation with the victim, the offender ‘then struck him across the left side of the face with a glass beer mug which he had in his right hand’. The victim required 22 stitches in the facial lacerations which he sustained. The offender pleaded guilty to RCSI and was sentenced to 18 months’ imprisonment, with a non-parole period of nine months. On appeal, this Court reduced the sentence to 12 months’ imprisonment, and ordered that eight months be suspended.[24]
[23][1998] 4 VR 235 (‘Mills’).
[24]The maximum penalty for RCSI at the relevant time was 10 years. The increase to the present maximum of 15 years came into force from 1 September 1997.
What is of particular relevance for present purposes is what was said – in 1998 – about the importance of general deterrence in a case such as this. Batt JA noted the sentencing judge’s comment that ‘… assaults involving glasses … seem to be becoming even more prevalent in the community’.[25] His Honour then set out the following passage from the sentencing remarks:
This community obviously has a number of night spots where, through the night, young people can drink and get intoxicated. Such places are a recipe for disasters of this kind …
Violent crime in the community is a matter of considerable concern. When it occurs without provocation or lawful excuse, and is of a serious kind, the community expects a court to deal sternly with offenders. Sentences of this type must be such as to not only deter you but also others who might be tempted to engage in violent crime. In imposing a substantial gaol sentence, it is essential that you be treated fairly in accordance with proper sentencing principles. I am conscious that you have good points which you have displayed in your life. You are now just 21 years of age and never been in trouble before and a hard-working young man, who will lose his job.[26]
[25]Mills [1998] 4 VR 235, 239.
[26]Ibid.
Batt JA said that, although the sentencing judge had been referring to the local community, it was ‘notorious’ that what his Honour said was true of the Victorian community as a whole.[27] In the event, however, Batt JA concluded[28] that the sentencing judge had ‘overemphasise[d] general deterrence at the expense of the applicant’s status as a youthful first offender’.[29] His Honour accepted the following proposition advanced on behalf of the offender:
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.)[30]
[27]Ibid 240.
[28]Phillips and Charles JJA agreed.
[29]Mills [1998] 4 VR 235, 241.
[30]Ibid.
In 2004, in Director of Public Prosecutions v Cook,[31] this Court dealt with an even more serious example of alcohol-fuelled violence in a hotel. The victim had been hit in the head with a pool cue. The offender pleaded guilty to intentionally causing serious injury. Chernov JA said this about general deterrence:
… [E]ven absent clear motive for the offence …, the principle [of general deterrence] would, nevertheless, continue to be of considerable importance in this case given that its primary rationale is to deter others from engaging in like offending conduct. Violence in the context of physical fights and assaults at or near places like hotels, bars and clubs seems to have become more prevalent in the community in recent times and I consider that it is important that those who propose to engage in such conduct … should be made aware through the sentencing process that courts will not treat such conduct lightly, but will, in the appropriate case, impose condign punishment on the offender. The enjoyment and relaxation of those attending such venues should not be marred by such incidents.[32]
In the same case, Eames JA said:
Unexplained, unprovoked, violence of this character occurring in a hotel towards an innocent and unsuspecting member of the public is conduct which demands considerable weight be given to general deterrence.[33]
[31](2004) 141 A Crim R 579.
[32]Ibid 585, [14] (emphasis added).
[33]Ibid 588, [26].
In the present case, the sentencing judge expressed similar sentiments, as follows:
… The media in all forms – television, the air waves and the press, are full of, and continually report on, and are consumed by alcohol-fuelled violence on our streets and in our nightclubs, almost in a daily basis in this State. The courts must send a message loud and clear on behalf of the community and to the community that such mindless violence and aggression will not be tolerated. Males, in particular young males such as yourself, must realise that consuming copious quantities of liquor – in your case, high quality liquor when judged by the alcohol content – I think it is 34 per cent compared with beer which is 4.9 – does not excuse physical violence. Those who engage in violence such as glassing, and indeed in the use of any other weapon, [must realise that it] has the very real potential to lead to the imposition of significant terms of imprisonment.[34]
His Honour had referred, on the plea, to the decision of this Court in
R v Wyley[35] and set out in his reasons the following statement in that case by Kellam JA:The regrettable fact is that gratuitous violence by drunk and aggressive young men in our streets at early hours is prevalent and the cause of grave harm on many occasions.[36]
[34]R v Winch (Unreported, County Court of Victoria, Judge Pilgrim, 2 April 2009), [30].
[35][2009] VSCA 17.
[36]Ibid [10].
Prevalence
That the County Court has been called on to impose sentence for glassing (RCSI) on 16 occasions over three years is testimony to the prevalence of this kind of offending. No material was presented to the Court to suggest that such offending was more prevalent now than in the past, but it was common ground that the situation had certainly not improved. The incidence of alcohol-fuelled violence, and the level of legitimate community concern, are at least as high as they were in 1998, when Mills[37] was decided.
[37][1998] 4 VR 235.
Those circumstances alone heighten the importance of general deterrence as a sentencing objective. They also highlight the urgent need for sentencing decisions in cases such as this to be communicated to those most likely to commit this kind of offence. How to make general deterrence effective remains one of the great challenges in the administration of criminal justice.
In our view, the seriousness, and the prevalence, of glassing (RCSI) mean that general deterrence (and, where necessary, specific deterrence) must be given primacy in the sentencing synthesis. The approach which should be followed is, we think, that which was described by Batt JA (with whom Winneke P and Nettle JA agreed) in Director of Public Prosecutions v Lawrence,[38] as follows:
… Youth and rehabilitation must be subjugated to other considerations. They must 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 … 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 … the persons who commit the offence and wreak appalling injuries … are predominantly youths and young men acting under the influence of alcohol or drugs or both.
[38](2004) 10 VR 125, [22].
That was a case of intentionally causing serious injury but, for the reasons we have given, what was there said applies with equal force to ‘glassing’ as a serious instance of RCSI.
Provocation
In none of the 16 ‘glassing’ cases listed in Appendix A was there any provocation for the assault. In so saying we do not overlook the fact that in most of the cases there was some altercation – typically, an exchange of words – which can be seen to have triggered the violence. Axiomatically, such an altercation can never excuse a violent response. The offender’s culpability is therefore the same as if there had been no altercation. The violence must be viewed as wholly unprovoked.
Premeditation
In most of the ‘glassing’ cases reviewed, the violent assault was ‘spontaneous’, rather than premeditated. This is unsurprising, given the circumstances in which such assaults typically occur. Moreover, the presence of any real premeditation might well preclude the assault being treated as ‘reckless’.
Similarly, in none of the cases reviewed did the offender pause to smash the glass or bottle before using it as a weapon. The offender simply struck out with the glass or bottle, or threw it at the victim. Either way, it shattered on contact.
The characteristic of spontaneity does not detract from the obvious dangerousness of the act, or the seriousness of the offence. Where there is premeditation, or deliberate preparation of the weapon, this should be treated as a circumstance of aggravation.
Is a suspended sentence appropriate?
The appellant, as we have said, relied upon the fact that, in half of the 16 glassing (RCSI) cases, the sentence of imprisonment imposed was wholly suspended. Hence the submission for the appellant on the plea, and on appeal, was that the sentence of imprisonment (which counsel accepted was necessary in the circumstances) should be wholly suspended.
In several of the cases where an order for full suspension of sentence was made, the sentencing judge referred to the statement of Redlich JA in Fevaleaki[39] that
… the imposition of an immediate custodial sentence for the offence of intentionally causing serious injury will not always be obligatory.[40]
[39](2006) 165 A Crim R 524.
[40]Ibid [20].
Redlich JA there referred to what had been said in 1998 by Batt and Buchanan JJA in Director of Public Prosecutions v Buhagiar and Heathcote.[41] In that case, the Director of Public Prosecutions had challenged a sentence solely on the ground that the period of imprisonment had been wholly suspended. Their Honours said:
[41][1998] 4 VR 540, 547–8.
Whilst the purpose of the criminal law is to bring wrongdoers to justice for the protection of the community and whilst that protection must be borne in mind as primary and paramount, there are cases where a judge may reach the view that suspension of a sentence is appropriate, not because it would be less unpleasant for the offender, but because it may be productive of reformation, which offers the greatest protection to society ... A suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency. Rather it is an order made in the community's interest and generally designed to prevent re-offending. … In deciding whether to suspend in whole or in part a term of imprisonment a judge is deciding whether, in all the circumstances, the offender should have the benefit of a special opportunity for reform, to rebuild his own life, or to make some recompense for the wrong done, or should have the benefit of the mercy to which King CJ referred in R v Osenkowski [(1982) 30 SASR 212, 212–3]. …[42]
Their Honours added that it was
… wrong to assume that a sentence of imprisonment, albeit wholly suspended, does not play a role in deterring others …[43]
They referred here to what was said by Winneke P in Director of Public Prosecutions (Cth) v Carter.[44]
[42]Ibid (emphasis added).
[43]Ibid 548.
[44][1998] 1 VR 601, 607–8.
The frequency with which sentences of imprisonment for glassing (RCSI) have been wholly suspended is doubtless to be explained by the features referred to earlier – typically, the offender is young, and of otherwise good character, is remorseful after the event and has good prospects of rehabilitation. It may also reflect an unstated acceptance that glassing (typically) occurs in a social setting, where alcohol is being consumed and where the utensil (glass or bottle) is a necessary (and ordinarily innocuous) feature of the setting.
But, adopting what Redlich JA said in Fevaleaki:[45]
The serious nature of this offence will ordinarily call for an immediate custodial sentence …[46]
That is, in a glassing case (where the offender is being sentenced for RCSI) the full suspension of a custodial sentence will not ordinarily be an available sentencing option. The objective gravity of the offence will usually require a term of immediate imprisonment. This approach is necessary, in our view, if the courts are to give appropriate effect to the maximum penalty – which marks out the sentencing parameters[47] – and to general deterrence, and to recognise the objective seriousness of ‘glassing’ as an instance of RCSI.
[45](2006) 165 A Crim R 524.
[46]Ibid [20] (emphasis added).
[47]R v AB (No 2) (2008) 18 VR 391, [40]–[41], [48]–[51].
Glassing cases should, in our view, be treated as being in the same category as other RSCI offences which involve the use of a dangerous weapon likely to produce serious injury. There is no warrant for placing these cases in a lower category of seriousness where an immediate custodial sentence is not ordinarily required.
It follows, in our view, that sentencing judges should not regard themselves as constrained to follow the course disclosed by the glassing cases to which we have referred. Those advising clients in the future whether or not to plead guilty to RCSI in a glassing case should ensure that no assumption is made about the availability of a suspended sentence. For all the reasons we have given, a person who comes to be sentenced for RCSI, on a plea of guilty, for a ‘glassing’ offence – even with all the mitigating features to which we have referred – should proceed on the assumption that he or she will be required to spend a significant period of time in actual custody.
ASHLEY JA:
A preface
What follows at [61]-[74] was written, in substance, before I had the opportunity of reading in draft the reasons for judgment of Maxwell P and Redlich JA. Having studied those reasons, I wish to make these observations.
First, notwithstanding my view that it is stern enough when regard is had to the ‘range’ disclosed by the relevant Sentencing Snapshot, I agree with the substituted sentence which their Honours propose.
Second, this appeal raised no novel point of legal principle. There were nine grounds of appeal. But the last eight were simply particulars of the first – that is, that the sentence was manifestly excessive. A reading of the relatively small amount of material which constituted the core appeal papers – the presentment, the exhibits, the victim impact statement, the sentencing remarks and the grounds of appeal – and a confirmatory glance at the Sentencing Snapshot, was enough to show that something had gone seriously wrong in the sentencing process. The Crown’s belated concession that this was so simply reflected the inevitable.
In the event, this Court was required to apply well-recognised principles –
many of which were entrenched by authority long before being gathered into the Sentencing Act1991 (Vic) as ‘sentencing guidelines’[48] – in considering what new sentence should be passed.
[48]Which is not to say, and it is not the case, that the guidelines are a code.
Subject to an invitation to which I refer at [68], which I am unable to accept, this appeal thus raised very confined issues. In my view, consistently with the need for the timely and fair disposition of the many appeals which this Court must hear, those issues could be accommodated by a brief hearing and short reasons.
My reasons
John Winch appeals by leave against sentence imposed upon him in the County Court at Mildura on 2 April 2009 on a count of recklessly causing serious injury. On that day he was sentenced to be imprisoned for five years. The judge fixed a non-parole period of three years’ imprisonment. The maximum penalty for the offence is 15 years’ imprisonment.
The circumstances in which the offence was committed can be described quite quickly. The appellant, his partner and child had come to Mildura on a visit shortly before Christmas 2007. On 22 December the appellant had far too much to drink. In the early hours of 23 December he and his partner were at a tavern in Mildura. The appellant wrongly supposed that the victim had offered offence to his partner by a sexual gesture. Without warning, he swung a glass into his victim’s face, this causing severe lacerations and dental damage. It is beside the point that, as it seems, some other person had made an inappropriate gesture to the appellant’s partner.
The substantial ground of appeal is that the sentence imposed was manifestly excessive. The grounds of appeal specify a number of additional matters; but, as appellant’s counsel agreed, they are particulars of the allegation of manifest excess.
I do not doubt, on consideration of all the circumstances of the matter, that the sentence passed was manifestly excessive. I would have reached that conclusion regardless of the concession by counsel for the Crown that, by reference to sentences imposed in the superior courts for this offence as disclosed by the relevant Sentencing Snapshot, and by reference to sentences imposed for this offence constituted by so-called ‘glassing’, the sentence was outside the permissible range. The material to which counsel referred simply confirmed that the sentence imposed was, broadly, about twice that which might have been expected.
Upon the question of re-sentencing, counsel for the Crown submitted that the appropriate range of head sentences was between two and four years’ imprisonment. He relied upon the nature of the weapon used by the appellant, the fact that the attack took place in a public place and so was apt to cause fear to others, and the circumstance that the victim was left with permanent scarring. He submitted that the judge had rightly taken into account the prevalence of violent behaviour by young alcohol-affected men; and that this had been taken into account by his Honour in fixing sentence. He did not contend that there was any evidence that the prevalence of such conduct had increased; or that the judge had acted upon such an assumption.
Counsel for the Crown rightly conceded that ‘there was a powerful constellation of mitigatory features warranting a degree of clemency’. There were. Thus – (1) the appellant was a youngish man at time of offending and at time of sentence, 26 and 27 years of age respectively; (2) the appellant had no history of violent offending, and virtually no criminal history at all; (3) as soon as he was able to be interviewed, the appellant exhibited deep remorse for his conduct, and empathy for his victim; (4) the appellant pleaded guilty at the first possible opportunity; (5) the appellant had committed no subsequent offending; (6) the appellant had embraced a course of reformation, including attendance at courses run by Alcoholics Anonymous, and had ceased consumption of alcohol; (7) the appellant had an excellent employment history; and at the time of offending was well towards completing a bachelor science degree specialising in the environment;[49] (8) the appellant was a young leader in the aboriginal community, and had been one of three young Australian aboriginals chosen to attend Catholic World Youth Day; (9) the appellant was in a stable relationship, and was the father of two young sons.
[49]Appellant’s counsel informed us that his client had completed his course during the period of his imprisonment.
In proof of the matters going in mitigation, none of which were in dispute, the appellant tendered on the plea no less than 12 testimonials from family, lecturers, friends and past employers.
There was discussion on the hearing of the appeal about sentencing statistics; and reference was made to the circumstances revealed by 17 instances of sentences imposed for ‘glassing’.[50] The discussion was prompted, no doubt, by the fact that much material was provided in response to a direction given on the leave application. But counsel for the Crown did not suggest, in the event the appeal was allowed, that the appellant should be re-sentenced on the basis of a re-calibrated sentencing range. What counsel did submit was that, although the Crown had not appealed in any of the 17 cases, the sentences imposed in eight instances had been inadequate. He invited this Court to declare, in effect, that sentences for this particular form of the offence have been generally inadequate.
[50]Of the 17, one was for the offence of recklessly causing injury rather than the offence of recklessly causing serious injury.
Counsel for the Crown did not seek a guideline judgment - although, as I see it, the invitation to which I have just referred was a request in substance, though not in form, that such a judgment be given. Neither again did he suggest that there was any evidence that the particular offence, or this manifestation of it, is now more prevalent than once it was.
On the plea, appellant’s counsel argued for the imposition of a sentence wholly suspended. On the appeal, his counsel recognised the inevitable fact that the appellant had already served more than 12 months’ imprisonment. He argued that, on a re-sentencing, his client should have to serve no further period of imprisonment. He submitted that the balance of any head sentence should be suspended.
In my opinion, notwithstanding the large number of matters standing powerfully in mitigation, the application of conventional sentencing principles meant that the offending did call for an immediate custodial sentence. The attack was in fact unprovoked. It was probably explained, but was not excused, by the appellant having been much affected by alcohol. A potentially dangerous weapon was used – albeit that the offending involved a single act with a glass that had not been transformed into a still more dangerous weapon by breaking it before the attack took place. It does not deny the need for imposition of an immediate custodial sentence that, at least ordinarily, an attack with a broken glass will be more serious than an attack of the kind perpetrated by the appellant. Again, the injury which the appellant inflicted was rightly characterised as severe. Indisputably, his victim suffered severe soft tissue injuries with resultant, probably permanent, scarring; and damage to a number of his teeth. Further still, the attack left the victim with psychological sequelae which were persisting at time of plea.
I consider that there was some force to counsel’s submission that it was appropriate that the remainder of any new sentence should be suspended. It is well arguable that the appellant is quite unlikely to require the supervision which parole brings with it. But there are other important considerations; and on balance I consider that a sentence of immediate custodial imprisonment together with a quite short non-parole period should now be imposed.
In my opinion, however, the sentencing range proposed by counsel for the Crown was considerably too high. It was not supported by the material in the Sentencing Snapshot, nor by an analysis of the sentences imposed in the 17 instances of ‘glassing’ to which I earlier referred.[51] Neither did it correspond with this Court’s quite extensive experience of sentences imposed for different manifestations of this offence which have been the subject of appeals over a period of years.
[51]They spanned the period May 2007 to December 2009.
In the event, consistently with my observation at [64], I consider that a head sentence approximately half as long as that which was originally imposed ought now be substituted; and I would fix a non-parole period of about half the head sentence.
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APPENDIX “A”
SENTENCES IMPOSED IN GLASSING CASES 2007–2009
| Name | Court | Date | Sentencing Order |
| R v Glass | County Court | 22/5/2007 | 9 months imp wholly suspended for 2 years |
| R v Mison | County Court | 9/8/2007 | 2 years imp – 12 months partially suspended for 18 months |
| R v Frazer | County Court | 31/8/2007 | 18 months imp (part of a TES with NPP fixed) |
| R v Toumngeun | County Court | 15/11/2007 | 15 months imp wholly suspended for 18 months |
| R v Martin | County Court | 5/5/2008 | 2 years imp wholly suspended for 3 years |
| R v Ropar | County Court | 16/6/2008 | 12 months imp – non-parole period of 3 months fixed |
| R v Ngawati | County Court | 25/7/2008 | 12 months imp wholly suspended for 3 years |
| R v Lomas | County Court | 24/4/2009 | 16 months imp wholly suspended for 2 years |
| R v Trowsdale | County Court | 8/5/2009 | 3 years 9 months imp – non-parole period of 2 years 3 months fixed |
| R v Busary | County Court | 21/5/2009 | 18 months imp wholly suspended for 2 years |
| R v Brooks | County Court | 4/9/2009 | 2 years imp – non-parole period of 12 months fixed |
| R v Dyer | County Court | 25/8/2009 | 2 years 6 months imp – non-parole period of 16 months fixed |
| R v Ellis | County Court | 14/10/2009 | 2 years 9 months imprisonment – non-parole period of 1 year 9 months fixed |
| R v Qorraj | County Court | 16/10/2009 | 20 months imp wholly suspended for 2 years |
| R v Burgoyne | County Court | 20/11/2009 | 2 years imp wholly suspended for 3 years |
| R v Wallace | County Court | 16/12/2009 | 2 years YJC detention |
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