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[2010] VSCA 274
Court of Appeal (Vic)
2010-10-20
ASHLEY and WEINBERG JJA
Original judgment source is linked above.
R v Dow (Unreported, County Court of Victoria, Judge Gaynor, 13 October 2009)
CRIMINAL LAW - Appeal - Sentence - Causing serious injury intentionally - Crown concession of error - Concession accepted - Appeal allowed and appellant re-sentenced - Appeal decision without precedent value.
1 Sonny Dow is a 28 year old Aboriginal man who pleaded guilty in the County Court to a count of intentionally causing serious injury.[1] The offence was committed at Campbellfield on 14 February 2009. Dow was sentenced on 13 October 2009 to nine years' imprisonment. The judge fixed a non-parole period of six years and six months and made ancillary orders.
2 Now Dow appeals by leave. He relies upon the following grounds:
3 The judge described the circumstances leading up to and culminating in the offence, and its consequences for the victim, this way:
On 13 February 2009, you, your victim Ian Cooper who is a cousin, and three others Jaika Cooper, Tenille Rose, and Katrina Moburne met in the city to celebrate Sorry Day with other Aboriginal persons in Federation Square. The victim Ian Cooper had spent part of the day drinking with Tenille Rose near Princes Bridge by the Yarra River, returning to the steps of St Paul's Cathedral in Flinders Street and meeting up with other members of your party including yourself. Sometime later the group travelled to Collingwood by tram to meet up with Tenille Rose's sister.
It was alleged by the prosecution that whilst on the tram you saw Katrina Moburne who was your girlfriend at the time touch Mr Cooper's buttocks. You have told your counsel that you did not see this occur but agree that during that day you had a conversation with Ms Moburne where she revealed to you for the first time that she had once gone out with Mr Cooper and this caused you some concern.
The group continued further drinking after meeting up with Tenille's sister and at some point in the evening, you and Katrina Moburne began to argue. Apparently Mr Cooper saw that you were becoming rough and told you so and that you became upset with the situation and left the group, returning to the city from where you visited two aunties in Collingwood and Fitzroy and then ultimately returning to the city near St Paul's Cathedral. The remainder of the group had returned to the unit at 8/1708 Sydney Road, Campbellfield which she shared with you.
You returned home at about 7.30 the next morning, 14 February 2009. There, you found Ms Moburne in bed with the victim Mr Cooper. You pulled back the covers on the bed to discover that he was sleeping naked next to your girlfriend. You then grabbed a pocket knife that you carried with you and stabbed Mr Cooper to the neck as he slept. He awoke and you then stabbed Mr Cooper three more times to the stomach and body. You lost your knife during this attack and you left the bedroom and went to the kitchen to obtain a larger knife returning and stabbing the victim four further times to the body and then left the unit.
Mr Cooper received serious life threatening injuries as a result of your attack upon him. He was taken to the Royal Melbourne Hospital where he was treated for eight stab wounds on his body, three in the neck region, three in the chest and body region and two to his right leg. All required surgical intervention and suturing. One of the stab wounds to his neck caused the severance of the artery resulting in massive blood loss. Mr Cooper's bowel and right lung were punctured and he received permanent nerve damage to his left arm which required ongoing treatment to this day. His recovery was complicated by pulmonary embolus, that is pneumonia with respiratory failure and anaemia and his recovery was further worsened by an underlying psychiatric disorder and drug problems suffered by him so that he required intervention from the psychiatry and additional medicine services.
The aftermath of the offending; and other matters in mitigation
4 The appellant was arrested soon after the incident. He immediately made full admissions. He said that he head been angered to find the victim in bed with his girlfriend, and that he intended to hurt him in order to teach him a lesson.
5 The appellant's life history was shown to have been a very unhappy one. I summarise it this way. His parents were affected by drug and alcohol problems. They separated when he was only eight. These events had repercussions for the appellant and his siblings. Of three siblings, two were in custody when the plea was heard. The appellant himself was a poor student. He had engaged in little employment since being expelled from school in year 10. He was a long-time poly-substance abuser, this causing him to suffer auditory hallucinations. At the time of the present offending he was on prescribed medication, although he had not taken it on the particular day. He had only two significant relationships. There was a child by one of them. The child lived with the mother. The other relationship was with the woman whom he found in bed with the victim. The appellant's extensive criminal history - 14 court appearances between October 1997 and June 2008, with 51 convictions, included convictions for offences of violence on at least three occasions -was evidently related to his drugs problems.
6 At the time of the present offending, the appellant was on parole. He had only been paroled a month earlier. His parole was cancelled on 4 March 2009 - that is, not long after his arrest and remand in respect of the offence now under consideration. The parole period which was required to be served was about five months. That did not count as pre-sentence detention; but it was relevant to totality. Regrettably, although in the end it does not matter, the prosecutor did not correctly inform the judge about this matter.
7 Counsel for the appellant submitted below that, whilst in custody, the appellant had detoxified, had studied, and had worked well. He was motivated to change his ways. A longer than usual potential period of parole would ensure support. As to the offence itself, it was a crime of passion and of short duration. He accepted, broadly, the learned judge's stated impression that 'it seems to me something in the region of seven with a five'.
8 The prosecutor, in response to the judge's request for assistance, submitted that the appropriate sentencing range was imprisonment of between eight and a half and ten years, with a non-parole period of between seven and a half and nine years. The suggested gap between the head sentence and the non-parole period was very small - presumably reflecting the Crown's position that the appellant's prospects of rehabilitation were poor. The prosecutor argued that that the appellant had initiated a savage and prolonged attack on a defenceless victim who had suffered in consequence serious and permanent injuries; and that this attack showed an escalation in the appellant's violent offending. The prosecutor relied upon the decision of this Court in DPP v Terrick, Marks and Stewart.[2] In this Court, it is convenient to note, counsel for the Crown readily accepted that the circumstances in Terrick, considered overall, bore little resemblance to the circumstances of this case.
9 The learned sentencing judge accepted that the appellant was truly remorseful, and that he did have prospects of rehabilitation. It was in his favour that he had detoxified, was working and was educating himself whilst in custody. Again, the victim was not randomly picked out, but rather a man found in bed by the appellant with his partner. As against that, the offending was 'extremely serious to the point where [the appellant] must realise [he was] lucky not to be facing a charge of murder.' Further, the appellant's past behaviour whilst on parole did not encourage a conclusion that he would treat parole in the instance with much seriousness.
10 After imposing sentence, the learned sentencing judge engaged in a conversation with the appellant which revealed, in my opinion, the deep concern which she had for him and for his predicament; and her concern that he take advantage of the sentence, long though it was, to better himself. Those humane concerns cannot obscure, however, the impermissible severity of the sentence.
11 The appellant made full and frank admissions at first interview by the police. He pleaded guilty at the earliest possible opportunity. The learned sentencing judge concluded, as I have already noted, that he was truly remorseful for what he had done. The declaration made pursuant to s 6AAA of the Sentencing Act 1991 (Vic) shows that her Honour discounted the sentence for the plea of guilty by ten per cent.
12 In this case, albeit that the Crown case would have been very strong, the early admissions and the early plea of guilty evidenced true remorse and had utilitarian value. It may be noted that the plea removed the prospect of the appellant's cousin and girlfriend having to give evidence against him - a prospect, I should think, which neither of them could have viewed with enthusiasm.
13 In the circumstances described, the described discount for the plea of guilty was, in my view, far too small.
14 This Court has held a s 6AAA declaration may show that the sentencing judge evidently underweighed the value of a plea of guilty. Whether, in that event, an appellant will automatically fall to be re-sentenced, remains an open question.[3] It is not a question which needs to be decided in this case.
15 It is common ground that the appellant was entitled to call provocation in aid as a mitigating circumstance. The judge accepted that the circumstances had 'some part to play' in the offending. This was, with respect, a considerable understatement. I agree with the submission for the appellant, in this Court, that for the appellant to find his girlfriend of considerable duration in bed with his naked cousin, particularly bearing in mind the fact that this was only the second serious relationship for the appellant in his troubled life, was a considerable extenuating circumstance. But I also agree with the submission for the Crown that whether the apparent error - that is, undervaluing the mitigatory weight of this circumstance - requires this Court to interfere depends upon a consideration of all the circumstances, and whether they lead to a conclusion that a different sentence should be passed.
16 What I have said about grounds 1 and 2 takes me to ground 3. It was submitted for the appellant that the sentence was extremely heavy when consideration was given to current sentencing practices. Here, by comparison with the instances of the offence considered in DPP v Terrick, Marks and Stewart,[4] there was an absence of circumstances of aggravation and the presence of significant circumstances of mitigation. As to the former - (a) this was not an attack in company; (b) the victim did not suffer severe ongoing consequences; (c) intoxication was not a factor; (d) the attack was not gratuitous violence for its own sake; and (e) there was no attempt to intimidate witnesses. As to the latter - (a) the appellant's disadvantaged background; and (b) the immediate admissions and the early plea; and (c) the very considerable provocation; and (d) the appellant's efforts towards rehabilitation whilst on remand; and (e) the totality consideration arising from the cancellation of the earlier parole - were in point.
17 Counsel for the Crown fairly conceded that the sentence which was here imposed fell towards the extreme end of sentencing statistics for this offence. That was so although the circumstances, including matters in mitigation, did not place the case in the worst category.
18 Counsel further conceded, fairly and appropriately, that the sentence fell outside the permissible range. He nonetheless argued that a 'very significant sentence must be imposed', the range 'extending to eight years imprisonment at the upper end'.
19 It is unnecessary to rehearse the circumstances of the offence and of the offender. Consideration of all aspects of the matter, including what I consider were sentencing errors disclosed by grounds 1 and 2, satisfy me that the sentence was impermissibly high. I would allow the appeal and bearing totality in mind, would
sentence the appellant to six years' imprisonment with a non-parole period four years' imprisonment. I would declare that, had the appellant not pleaded guilty, and if he had been convicted, I would have sentenced him to eight years' imprisonment with a non-parole period of six years. I make it clear that the sentence which I propose makes allowance for the totality issue created by the appellant having been required to serve the reclaimed parole period of about five months.
20 For completeness, I would add this: The sentencing judge, when fixing a term of nine years' imprisonment, declared a period of pre-sentence detention of 241 days. That was an error on her Honour's part, in consequence, no doubt, of the prosecutor's erroneous submission. The period of just over five months that had to be served as a result of the parole being reclaimed ought not to have been included in the period of pre-sentence detention. In practical terms, her Honour's sentence ought be viewed as a sentence of about eight years' and seven months. The sentence of six years which I propose should be viewed, again in practical terms, as a sentence of six years and five months.
[1] The maximum penalty for the offence is 20 years' imprisonment.
[3] Cf R v Howard [2009] VSCA 281 [15] (Nettle JA).
[4] [2009] VSCA 220, [22]-[81].
# Dow
The Queen \[2010\] VSCA 274