12 On arraignment in the County Court at Melbourne on 16 August 2004 the respondent, Leonard John Anderson, who was born in May 1965, pleaded not guilty to one count of causing serious injury intentionally (count 1), but guilty to one count, which was an alternative count, of causing serious injury recklessly (count 2)[7]. That plea was not accepted by the prosecution and a trial on count 1 proceeded. On 19 August the respondent was found not guilty on count 1.
13 The following day the County Court judge heard a plea in mitigation of penalty in relation to count 2. The maximum custodial penalty for causing serious injury recklessly is imprisonment for 15 years. The respondent had admitted 49 previous convictions and findings of guilt from 16 appearances in the Magistrates' Court. They included assaulting police, arson, damaging property (11 convictions), making a threat to kill, causing injury intentionally or recklessly, unlawful assault, causing injury recklessly (two convictions), driving while exceeding prescribed blood alcohol content, and acting in a disruptive or abusive manner. He had served terms of imprisonment of three months (twice), six months, two months and 21 days. On five occasions[8] sentences of imprisonment imposed upon him had been suspended, in two cases partly and in the others wholly, and in the case of two suspended sentences he had offended in breach of the suspended sentence during its operational period, the second such breach being caused by the instant offending. During the plea counsel for the respondent tendered a number of character references and a report by Mr. Peter Horton, psychologist, of the Trauma Centre of Australia Pty. Ltd., and called the respondent's father, whom the prosecutor described as "present[ing] fantastically well". He gave evidence, largely in response to her Honour's questions, to the effect that the respondent had had drinking and anger problems since his early teens, but was an excellent worker when not under the influence of alcohol and that his current de facto wife had provided a steadying influence on his life.
14 Her Honour ordered a pre-sentence report to determine the respondent's suitability for an intensive correction order. The report assessed him as suitable but "with extreme reservations" because of his onerous employment and family obligations. In the event, her Honour considered that an intensive correction order was inappropriate.
15 On 24 September 2004 the respondent was convicted on count 2 and sentenced to 12 months' imprisonment to be wholly suspended for a period of two years.[9]
16 By notice served on the respondent on 24 October 2004 the Director of Public Prosecutions, being satisfied that an appeal should be brought in the public interest, has appealed to this court pursuant to s.567A of the Crimes Act 1958 on the ground that the sentence imposed was manifestly inadequate. The particulars of that ground are that, in imposing a sentence of one year's imprisonment and in ordering that term to be wholly suspended for a period of two years, the sentencing judge failed adequately to reflect the gravity of the offence generally and in this case in particular; failed to take into account or sufficiently into account general deterrence and specific deterrence; gave too much weight to factors going to mitigation; and gave insufficient weight to the respondent's relevant prior criminal history, to the applicable maximum penalty (15 years), to the effect of the offence upon the victim, including the physical and psychological injuries suffered by him, and to the fact that the present offending occurred during the currency of a suspended sentence.
17 Before the merits of the appeal can be considered it is necessary to state the facts of the offending and to indicate the course of her Honour's reasoning in her sentencing remarks. Her Honour stated that in light of the jury's acquittal of the respondent on the more serious charge all parties agreed that the defence "scenario" of the circumstances of the offending was the one on which she should proceed for the purposes of sentencing on count 2. That had been fully described by the respondent in answers in his recorded interview with police and in a 12-page handwritten statement he provided to the police. In essence it is as set out below, but a more detailed statement is to be found in the first three pages of her Honour's sentencing remarks.
18 About midnight on 16 March 2003 (by which her Honour clearly meant 12 o'clock between 15 and 16 March) the respondent received a call from George Samoiloff, who wanted to have a talk. Samoiloff collected the respondent and took him back to his home in Hampton Park. It had been damaged in a deliberately lit fire and the respondent was apprehensive that Samoiloff believed him to be the culprit. At about 3.00 a.m. one Bill or Billy Morozoff, the ultimate victim of the respondent's offence, whom the respondent knew, arrived at Samoiloff's house with his girlfriend, Nicole Elston, and another friend Aleksei Dostovaloff. The latter went inside the house and went to sleep on a couch. The others drank in the garage over the next couple of hours. Morozoff was obviously intoxicated, having been drinking spirits since the early evening. He made some remarks about his shooting prowess which the respondent did not take seriously. There was an argument about salvation, in which Morozoff, whom Samoiloff described as being loud and annoying at that point, told the respondent that he would go to hell and the respondent gave a reply that disgusted Morozoff, who began poking the respondent in the chest and preaching at him. Samoiloff went inside to awaken Dostovaloff as he wanted all to leave. Elston was of the same mind and went and sat in Morozoff's car in the street. Morozoff then stormed up the driveway to his car and the respondent followed. He asked Elston for cigarettes because her "pain-in-the-arse boyfriend" had smoked all his. At this Morozoff grabbed the respondent round the throat. The respondent hit his arms away and Morozoff took up a boxing stance, inviting the respondent to fight. But he went back down the driveway and made some derogatory remarks about Morozoff, obviously designed for him to hear. Morozoff yelled that he was going to get a gun from his car and shoot the respondent, a threat which the latter did not take seriously. The respondent returned to the garage for his lighter, discovered it was gone, assumed Morozoff had taken it and criticised him for doing so, essentially (it appeared to her Honour) to tease and enrage him.
19 Morozoff responded by saying that he would shoot the respondent. Although the latter did not believe the threats, he picked up an engineer's hammer, with a metal head and a wooden handle of about two feet, from some tools near the front door of the house and, in what appeared to the judge to be a decision to taunt or stir up Morozoff, said to him: "How would you pull the trigger if your brains were on the concrete?" (The respondent told the police he had no intention of using the hammer). Further enraged, Morozoff took a step towards the respondent, lifting his arm, and the respondent reacted by swinging the hammer as an immediate reflex reaction, hitting him on the head. The respondent realised the dangerousness of his reaction and tried to pull back, but it was too late. In his recorded interview the respondent said that he believed that, had he not pulled back on the hammer, he might have missed Morozoff on a full swing. Morozoff collapsed on the ground. Elston and Dostovaloff conveyed him to the Dandenong Hospital, where it was found that he had suffered a fractured skull. The respondent ran into the backyard, threw the hammer into the garden and then returned to the driveway, where Samoiloff was cleaning up blood with some bleach. Samoiloff then drove him home.
20 The respondent believed for a couple of days that he might have killed Morozoff. On 23 March he attended at Cranbourne Police station, where he answered all questions put to him and provided the statement already mentioned. In that statement he referred to the guilt he felt, expressed deep sorrow for the injury, said that it should not have happened and stated that he felt that he had failed and his life was over.
21 Morozoff was examined by a doctor in the Emergency Department of the Dandenong Hospital at approximately 7.00 a.m. on 16 March 2003. He found the following injuries: a three-centimetre crescent-shaped laceration over the left parietal area; a two-centimetre linear partial-thickness scalp laceration in the mid-line frontal area; multiple superficial abrasions over the left forehead and left cheek; and bruising over the right clavicle, right neck and right loin. The patient was conscious and oriented with slurred speech and a strong smell of alcohol. He had a blood alcohol reading of 53 mmol/l, which Morozoff admitted was 0.25% blood alcohol content. A CT scan showed a comminuted depressed fracture of the left parieto-occipital region with a 26-millimetre depression of the bony fragment but no underlying haematoma. X-rays of the right clavicle and sternum showed no fractures.
22 The neuro-surgeon who operated on Morozoff stated that the CT scan showed no injury to the brain and no bleeding in it. In theatre it was noted that there was no damage to the brain membrane or dura. The bone was re-shaped and fixed to the surrounding bone with a special plate and the skin was sutured. The fracture injury was, he said, probably caused by being struck in the head with a heavy object. (It seems that most of the other injuries came from the fall.) Tissue was glued to the linear mid-line scalp laceration.
23 After stating the facts of the offending, stating that the respondent had entered a plea of guilty to recklessly causing serious injury at the earliest opportunity and reviewing the respondent's criminal history, her Honour said that the latter clearly reflected personality difficulties suffered by him from an early age. She stated that his father had given extremely helpful and impressive evidence. The respondent's criminal history did not proceed from a childhood of trauma and disruption. The respondent was the eldest of three children born to law-abiding parents. In his very early teens the respondent had fallen in with a peer group experimenting in drinking and alcohol had become and continued to be ever since his drug of choice. The women with whom he had lived (excluding the current one) who had borne him three children in all, also abused alcohol. Her Honour reviewed those relationships and some of the offences arising out of them. The respondent had, however, maintained the support of his family and had a strong work history, which her Honour then reviewed. She referred to the four references from employers describing the respondent's considerable abilities as a worker. The respondent's chief problems, her Honour concluded, had been his loss of temper and alcohol abuse.
24 Her Honour said that the particular offence was a most serious one. The injury inflicted was extremely serious and the respondent was fortunate it was not more serious. Morozoff continued to suffer after-effects such as dizzy spells, black-outs and migraines. He also had anxiety attacks. Her Honour said that ordinarily she would not hesitate to sentence the respondent to a further term of imprisonment to be served immediately. Notwithstanding that the assault appeared to have been partly reactive and not to have involved a specific intention on the respondent's part, his words and actions towards Morozoff were deliberately designed to inflame the situation. In particular his action in picking up the hammer was dangerous and ill-considered. Obviously Morozoff was much more drunk than the respondent but he had not had to participate in the way that he did. This was a violent incident in which his temper and alcohol played some part.
25 Nevertheless, her Honour continued, the respondent was clearly deeply remorseful. He was frank and open with the police and gave considerable co-operation. Most importantly, in all other respects he had worked hard to change his life. He had consulted Mr. Horton in an attempt to regain his driver licence, but had initiated further and regular counselling over his concern finally that he had a drinking problem. He had apparently not sought assistance before. According to Mr. Horton, there was a direct relationship between the respondent's drinking and his aggressive behaviour. He diagnosed alcoholism. Since seeing Mr. Horton the respondent had, largely successfully, abstained from alcohol. Since the offence, the respondent had experienced great anxiety over the court case, which, given his extensive experience of courts, her Honour regarded as a positive sign. Mr. Horton said that he presented as a motivated and focussed man willing to try to control and change past maladaptive behaviours. Although the respondent himself did not believe that he was intoxicated on the evening in question, he had been drinking. There was, in her Honour's view, aggression by him, even though it might have been hidden, in the whole "scenario" which led directly to his swinging the hammer. Her Honour found that alcohol had had a part to play. That was not mitigatory, but the fact that he was now attending to that problem was important in terms of assessing remorse and rehabilitation and the need for specific deterrence.
26 Her Honour stated that the respondent had not re-offended in the 18 months since the incident. He had reduced his drinking, she understood, to the point of abstinence. Further, in December 2003 he had commenced a relationship with a 36-year old woman of no prior criminal history and sober habits. She had given birth to a son in July 2004. He lived with her and her daughter (and the baby). Her other two children visited her once a fortnight and he continued to have contact with his other three children. His father had described this relationship as the most positive one he had seen the respondent in. The respondent was working full time as a concreter in a self employed capacity with a partner. He had done various employment-related courses. During the trial he had presented as an extremely anxious man and so he should be. He now had a lot to lose.
27 Her Honour regarded the respondent's rehabilitative prospects as extremely strong. He seemed to be now at a turning point, finally confronting his "demons".
28 Her Honour agreed that the respondent's working hours and family commitments made an intensive correction order impractical. Any disposition must mark the seriousness of his behaviour and have regard to general deterrence and denunciation. There should also be an element of punishment. Mr. Horton's view was that it was vital that the respondent continue to see him at least once a month for at least 12 months. That could be achieved under a community-based order, but, in her Honour's view, such a disposition was not sufficient in view of the gravity of the offending. At the same time due recognition had to be given to the respondent's remorse and considerable efforts at rehabilitation and the benefit to the community in his continuing on that course. She was, therefore, reluctant to sentence him to a term of imprisonment to be actually served. In her view, the balancing concerns mentioned could best be met by a sentence of imprisonment to be wholly suspended. In so deciding, her Honour had had regard to comments of Buchanan, J.A. and myself in Director of Public Prosecutions v. Buhagiar and Heathcote[10] as to the nature of a suspended sentence of imprisonment, its benefits for the community and the fact that the criterion for suspension of a sentence of imprisonment was desirability in all the circumstances. In her Honour's view, it was desirable that the respondent continue on his current course - desirable for him personally, for his long-suffering family and, above all, for the community. It was largely for the benefit of the community that she was taking the course of suspension.
29 Her Honour then pronounced the sentence mentioned earlier, explained the effect of suspension to the respondent and checked as to any other orders required. She concluded her remarks: