DPP v Anderson [2005] VSCA 68

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 I adopt the description of the facts and circumstances of the appeal set out in the judgment of Batt, J.A..

2 The Director appealed on the ground that the sentence below, namely, 12 months' imprisonment to be wholly suspended for a period of two years on conviction of causing serious injury recklessly, was manifestly inadequate. The Director asserted that the sentence failed adequately to reflect the gravity of the offence; failed to take into sufficient account of deterrence, both general and specific; failed to give sufficient weight to prior criminal history, the maximum penalty[1] and the fact that the perpetration of the offence occurred whilst a suspended sentence applied. The Director also alleged that too much weight was given to mitigating factors.

3 Mr McArdle for the Director submitted before this Court that specific error by the sentencing judge was demonstrated with respect to manifest inadequacy, inter alia, in that the reasons for sentence did not refer to the occurrence of the offence during a current suspended sentence. Examination of the transcript of the plea makes it apparent that the matter of the suspended sentence was before her Honour. It was mentioned, more than once, including by the prosecutor.[2] Whilst not specifically adverted to in the reasons for sentence, the matter in my view was so obviously before the sentencing judge that it could not have been overlooked. I do not find error in this respect. I regard it as a matter taken into account by her Honour in sentencing the respondent.

4 Mr McArdle further alleged error as demonstrated by the failure of the sentencing judge to give sufficient weight to the effects of the injury upon the victim, Mr Mozoroff. The gravity of the offence and the seriousness of the injury are clearly reflected in the reasons of the sentencing judge. In the report of the treating neurosurgeon, Dr Drnda, there was a reference to ongoing suffering by the victim. However, the victim impact statement made by Mr Mozoroff made no reference to ongoing suffering. The victim impact statement was unchallenged by the prosecution and the judge below acted upon it. Having read the statement and the reasons for sentence I do not consider that the matter was given insufficient weight by the sentencing judge.

5 Mr McArdle submitted that error was shown further in the failure of the reasons of the sentencing judge to refer to deterrence as a sentencing factor. However, it is apparent that her Honour referred to general deterrence.[3] Further, the fact that specific deterrence was to the fore of the exercise of the discretion in the difficult task before the judge is apparent from the statement in the reasons that ordinarily her Honour, in such circumstances, would not hesitate to sentence the respondent to a term of imprisonment.[4] I do not consider that there was error as asserted on behalf of the Director. In my view, when the plea transcript and the reasons for sentence are considered, it is apparent that deterrence was a matter considered.

6 Turning to the offence itself, it was a serious offence. In considering the sentence the judge had before her the maximum penalty, the fact of foresight by the respondent of the injury (and its consequences), the fact that a serious injury had been inflicted upon the head of the victim by a hammer, the prior criminal history of the respondent (including the currency of a suspended sentence at the time of the offence) and the need for deterrence, both general and specific, and the role of anger and alcohol in the perpetration of the offence. It was acknowledged by Mr Tehan for the respondent that the sentence was "very, very light". However, it was important, in my view, that in the course of the plea the prosecutor at no stage submitted to the sentencing judge that a term of 12 months' imprisonment was outside the range. Furthermore, at no stage was it suggested to her Honour by the prosecutor that there ought be an immediate custodial sentence imposed.

7 The amount of time ordered to be served on a term of imprisonment and, further, its period of suspension, wholly or in part, is quintessentially a matter for the sentencing discretion. In this case the sentencing judge was confronted by a difficult task. So much was noted by the prosecutor.[5] Against the factors weighing against the respondent that I have referred to, there were also important mitigatory factors. They included the admission and early plea, the significant remorse by the respondent at the earliest time, the absence of re-offending in the 18 month period up to conviction and sentence and the virtual abstention from alcohol. It is apparent from the remarks of the sentencing judge that the personal and family circumstances of the respondent were attributed important weight. The circumstances of particular significance were the family support, the positive role of the respondent's father, the recent de facto relationship and subsequent parenthood and the employment history of the respondent. There was also an additional factor before the sentencing judge, namely, that the offence and its consequences had been hanging over the respondent for a period of eighteen months prior to sentence, including a trial for a more serious charge of which he was acquitted.[6]

8 It is evident that the sentence was at the very low end of the range. In my view, her Honour considered the circumstances weighing in favour of a longer custodial sentence, including the prospect of suspension, but ultimately concluded that the mitigatory factors warranted the particular sentence imposed. However, I do not consider sufficient weight was given in this case to the gravity of the offence, the factor of alcohol and specific deterrence. In the context of the circumstances of the offence and the history of the respondent, the sentence was not within an appropriate range. In my view the sentence was manifestly inadequate.

9 If the sentencing discretion is to be re-exercised I regard the non-mitigating factors as warranting a custodial sentence. However, the mitigating factors are

important and have increased since the sentence below. In one sense, the merciful approach of the sentencing judge has been vindicated by the relationship, parenting and employment components of the respondent's life post sentence. Significantly, there has been recognition of the dangers for him if alcohol is consumed. There is, too, the compounding factor that the respondent, in addition to showing signs of rehabilitation, has had the offence and its consequences hanging over him now for a period of two years. He has had to bear the burden of awaiting trial (having pleaded on the present count) and then the burden of this appeal. In the meantime, he has got on with his life and changed his ways.

10 In order to reflect the gravity of the offence and the seriousness of the injury and conduct of the respondent, I consider he should be subject to a custodial sentence. I would re-sentence him to a period of 22 months' imprisonment. The question then arises as to whether the sentence should be suspended. In the circumstances of this case I would consider it appropriate to suspend the whole of the sentence for a period of two years from 24 September 2004.

11 Accordingly, I agree with Eames, J.A. that the appeal should be allowed, the sentence of 12 months' imprisonment be set aside, and in lieu, a sentence of 22 months' imprisonment be imposed and that, pursuant to s.27 (1) of the Sentencing Act 1991, the whole of the sentence should be suspended for a period of two years from 24 September 2004.

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:

"Good luck! I am sure you will go well. I hope everything is going well with the baby and your business and I hope I never see you again."[11]

30 I can now turn to consider the appeal. The principles on which the Court acts in appeals under s.567A are well established. A useful summary of them appears in the judgment of Charles, J.A. in R. v. Clarke[12]. Amongst the occasions there enumerated for bringing, and (I would add) allowing, a Crown appeal are where a sentence reveals such manifest inadequacy as to constitute error of principle and to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience. It is not sufficient that the appellate court, if sentencing, would have imposed a heavier sentence or that it considers the sentence imposed to be inadequate. That sentence must be manifestly inadequate. It must be "unreasonable or plainly unjust".[13] That a sentence is manifestly inadequate (or manifestly excessive) is a conclusion that does not admit of much amplification.

31 Sentencing is a paradigm discretionary exercise: mandatory sentences apart, there is no single "correct" sentence. Rather, there is a range of sentences open to a sentencing judge in the exercise of a sound discretionary judgment. Nevertheless, I have no doubt but that, when the relevant features of the offending and the offender are marshalled, the sentence of one year's imprisonment imposed on the respondent for recklessly causing serious injury, which Mr Tehan for the respondent conceded to be "very light", is to be seen as manifestly inadequate. Significant amongst the features are the maximum penalty of 15 years; the fact that the offence necessarily involved foresight by the respondent that a probable consequence of his conduct was serious injury, coupled with indifference to whether that consequence occurred[14]; the part of the body principally injured (the head) and the nature of that injury (the fracture of the skull) together with its after-effects for the victim; the means by which the injury was effected (a weapon, a hammer with a metal head); the prior criminal history of the respondent, particularly his convictions for assaults and other violent offences, which showed that in committing the instant offence he had manifested a continuing attitude of disobedience of the law, showed his dangerous propensity and showed a need to impose condign punishment to deter him and others from committing like offences;[15] the finding that anger and alcohol[16] played a part in the offence; and the fact that the offence was committed during the operational period of a suspended sentence of imprisonment. Also significant, but of a mitigatory nature were the respondent's admissions and early plea of guilty; his significant remorse; his strong employment history, supported by cogent references; his family support; the seemingly stabilising effect of his relatively recently formed relationship, particularly as deposed to by the respondent's father; the absence of offending since the instant offence; and the respondent's abstention or virtual abstention from alcohol since the instant offending, alcoholism having been at the root of his problem. Those mitigatory features, however, together with the principle of parsimony embodied in s.5(3) and (4) of the Sentencing Act 1991, were not, I consider, of such weight as against the aggravating features as to justify a sentence of imprisonment of merely one year. It was outside the range of sentences available. It was unreasonable. Reliance was placed for the respondent, as so often occurs in Crown appeals, upon the well known statement of King, C.J., in R. v. Osenkowski[17]. But that passage is directed to the exceptional case. It is often overlooked that in Osenkowski the Chief Justice expressed a firm view that the sentence there in question was far below the acceptable level and was party to allowing the appeal and increasing the sentence. It was also said for the respondent that, in at least suggesting the possibility of an intensive correction order, the prosecutor impliedly accepted that one year's imprisonment, the maximum for such an order, was within the range. But any such implied admission in no way binds this Court. My conclusion that the term of imprisonment was manifestly inadequate derives some support from the fact that, although the maximum penalty and the fact that the offence occurred during the operational period of a suspended sentence[18] were drawn to her Honour's attention during the plea, they are not mentioned in her sentencing remarks delivered a month later. In short, then, in my opinion, this is a case where the sentence reveals such manifest inadequacy as to constitute error of principle and is so disproportionate to the seriousness of the crime as to shock the public conscience.

32 The conclusion expressed in the last paragraph re-opens the sentencing discretion (in which I include the discretion to decline to pass any different sentence) and therefore makes it unnecessary to determine whether her Honour's order for total suspension of the term of imprisonment was also manifestly inadequate (in the sense of being clearly inappropriate), as well as the effect (if any) of s.27(3) of the Sentencing Act 1991 on that question. Mr. Tehan, however, who stated frankly that the respondent wanted to hold the total suspension, submitted - and, when taxed, he persisted in the submission - that the sentencing discretion was not re-opened in relation to the total suspension unless that suspension itself was shown to be clearly inappropriate. As to that, it is sufficient to say that the submission is completely heterodox, especially where the suspension is founded upon a term of imprisonment assumed to be manifestly inadequate. I would, however, for the removal of doubt say that, in my opinion, even assuming (but in no way deciding) that a term of imprisonment of three years was within the range open to her Honour, total suspension of it would have been, on the material before her Honour, clearly inappropriate, essentially for the reasons I have given for holding the term of one year manifestly inadequate.

33 Since, when the court considers re-sentencing an offender, it proceeds on the law and the facts as they are at that time, the respondent was entitled to rely on the affidavit which he had sworn on 17 February 2005 as to the facts then existing. That affidavit showed that he had continued to carry on business in partnership with another man as concreting contractors, working six days a week undertaking concreting of large residential and commercial developments and some small ones. They had recently been awarded a major concreting contract for all footpaths and gutter edging in a large residential development at the Lynbrook Estate at Cranbourne, a job expected to last three months. The respondent referred to other contractors for which his partnership undertakes contracting work. The respondent also swore that he continued to be substantially abstinent from alcohol. He stated that he did not drink any alcohol during the working week and in the last five months had had a couple of beers occasionally at a barbecue on a Sunday, but had otherwise consumed no alcohol. Since being sentenced, he had received counselling from Mr. Horton once a month on alcohol and aggression issues. He continued to find that counselling beneficial. Finally, he referred to his domestic arrangements. They seem to be as stated by her Honour in her sentencing remarks, save that the child of his de facto wife from a previous relationship who is living with them is a boy. The respondent made clear that he had met his de facto wife in March 2003 shortly after the instant offence, though he did not commence living with her until about December that year. He concluded that they have continued since the date of sentence to have a strong and stable relationship.

34 As her Honour rightly said, the respondent's offence was serious. Although we were invited, even if we considered the judge's sentence manifestly inadequate, to exercise the discretion we have to decline to pass any different sentence, I do not, having regard to the significant features of the offence and the applicant's prior criminal history that I have enumerated earlier, consider that that would be a sound or proper exercise of our discretion, even when the facts, which I consider impressive, in the respondent's affidavit are taken into account. On the other hand, the court is constrained by authority to make a moderating allowance in re-sentencing for what is called double jeopardy, and there is the additional feature in this case that the respondent has been at large continuously since being sentenced. The respondent has achieved significant rehabilitation, but general deterrence and just punishment in my view require that he serve a term of actual immediate imprisonment. Achieving that rehabilitation after having served several terms of imprisonment gives ground for confidence that service of another, relatively short, term will not undo the rehabilitation or end the respondent's business. Since I am in the minority in my view that some actual immediate imprisonment should be served, it is not appropriate that I specify the sentence I would have imposed.

35 In short, I would have allowed the appeal, quashed the sentence below and re-sentenced the respondent so that he actually served a term of imprisonment.

36 I have had the benefit of reading in draft the judgment of Batt, J.A. and I gratefully adopt his Honour's statement of the facts and background to this appeal by the Director.

37 Substantially for the reasons given by Batt, J.A. I consider that the sentence of 12 month's imprisonment was manifestly inadequate. Whilst not conceding that to be so, Mr Tehan acknowledged the difficulty of seeking to support that sentence, conceding that it was "very, very light". Mr Tehan's primary concern was to maintain the effect of her Honour's order as to the total suspension of the sentence imposed, and as to that question I am in disagreement with Batt, J.A.

38 The respondent's prior criminal history weighed heavily against his plea for leniency. Not only were there convictions for violence, weapons had been used on two previous occasions. His convictions for personal violence comprised an assault on a police officer in 1994, which was adjourned without conviction; in 1996 a series of offences which arose in breach of an intervention order included assault, threatening to kill and an offence described as "causing injury intentionally or recklessly". He was sentenced to an effective 9 months' imprisonment, wholly suspended for 12 months; the next conviction for an offence of personal violence occurred in September 2001, with a sentence of two month's imprisonment for causing injury recklessly; in October 2001 he was again convicted of causing injury recklessly and was sentenced to 21 days' imprisonment.

39 The suspended sentence which he was undergoing when this offence occurred had been imposed in September 2001 for theft, driving while disqualified and other traffic offences. He had been sentenced to four months' imprisonment on each of two counts, with two months on each count suspended for 2 years. In my opinion, the failures of the learned sentencing judge to mention in her sentencing remarks the fact that he had been on a suspended sentence at the time of this offence and her failure to expressly refer to the need for general deterrence were significant omissions, which might suggest oversight. However, whilst they were very unfortunate omissions in the reasons given by the judge, when regard is had to the fact that not only had the past instances of suspended sentences been emphasised and acknowledged several times during the plea, but her Honour also expressly referred to the importance of general deterrence during the plea. Indeed, during the submissions on sentence the judge said that "general deterrence is the issue that I have most to grapple with".

40 I find it difficult to accept that the judge simply forgot about those factors when preparing her remarks on sentence which she delivered a month later. Counsel for the respondent had predicated his plea on the basis that the prior criminal history and the fact that he had breached suspended sentences before meant that a sentence of immediate imprisonment would be appropriate were he not able to satisfy the judge that there were unusually powerful factors weighing in mitigation, in particular as to events that had taken place since the offence was committed.

41 Before us, Mr McArdle did not suggest that her Honour had completely overlooked the previous suspended sentences or the need for general deterrence, but he submitted that they were factors which had been given too little weight by her Honour. When adjourning to consider sentence her Honour said that she wanted to give the case careful thought, and needed time to do so. That suggests to me that her Honour was alert to the many factors which she had to balance in the sentencing process.

42 In considering why it was that her Honour imposed a sentence of only 12 month's imprisonment, notwithstanding the prior criminal history of the respondent, it seems to me highly likely that her Honour misunderstood the submissions made to her by the prosecutor both as to the appropriate length of the sentence that ought be imposed and also as to the appropriateness of a suspended sentence in this case.

43 Although defence counsel had said at the outset of his submissions that he understood the prosecutor's position was that the only appropriate disposition was "a term of immediate - a term of imprisonment", the prosecutor himself never actually said as much, although when opening his remarks in reply to the defence submissions he said that his instructions were as outlined by defence counsel. The prosecutor said that it was offending conduct at the upper end of the scale of seriousness, and he highlighted the prior convictions and breaches of a suspended sentence, among other aggravating factors. However, after her Honour had discussed the positive signs of rehabilitation, the prosecutor commented, "Look I agree with my learned friend, it's a difficult sentencing exercise and clearly, Mr Anderson Senior presents fantastically well". In response to her Honour's query as to what imprisonment would achieve, the prosecutor said that it probably would not help, but that people do need to be punished.

44 Those remarks of the prosecutor are to be coupled with the statement made by him soon thereafter that:

"I'm not sure what your Honour is thinking about this but if your Honour was considering an ICO of course you need a report and I know we haven't spoken about it but I was saying before that - and I just thought that we could - if your Honour was thinking that we could usefully use the one - . . ."

"OK. Well I'm prepared to do that. The only reason I hadn't thought of an ICO, I always view ICOs as having been enacted for young offenders . . . but it's not a bad option, I suppose. Thank you for the suggestion".

46 The words highlighted indicate that her Honour understood that the prosecutor had suggested an Intensive Corrections Order to be an available option, notwithstanding the fact that it could not apply if the sentence was longer than 12 month's imprisonment[19]. That her Honour did understand it to be the prosecutor's suggestion that a non-custodial disposition ("that being an Intensive Correction Order") was an available option, is confirmed by her Honour's report to the Court of Appeal. The prosecutor may not have meant to give her Honour that impression, but despite the assistance which he provided to her Honour, as she acknowledged, the prosecutor's words invited that confusion. It seems to me likely that her Honour fell into error as to the appropriate length of sentence by virtue of that confusion. Mr McArdle submitted that the prosecutor was merely being helpful by pointing out to her Honour that if she was considering an ICO then a pre-sentence report was essential[20]. That may have been his intention, but unfortunately he did not clearly convey what he meant.

47 As to the suspension of the sentence, when her Honour queried the prosecutor as to the impact of imprisonment on the respondent's current good employment prospects the prosecutor said that it would depend on the length of sentence and "there are part-suspended sentences and part-serving [ones]" and added that "a short period of [imprisonment] may not put him off course at all; it may be able to satisfy both camps, so to speak". Although the decision was her own, those comments might well have lent some support to the judge in reaching the conclusion she later reached as to wholly suspending the sentence.

48 As serious as the offending was on this occasion, both as to the actual and potential injuries suffered by the victim, her Honour had to carefully evaluate the offence and its sequelae, and she was in a good position to do so, having heard the trial evidence. Dr Drnda gave evidence that if a hammer had been used then it did not require exaggerated force to have produced the injury which was caused. The handle of the hammer was unusually long and the doctor said that for that reason less hand force would have been required to produce the injury. That evidence was consistent with the assertions of the respondent that he had not applied great force when wielding the hammer, and, in fact, had attempted to stop the trajectory of the hammer in flight. Be that as it may, the respondent while affected by alcohol, armed himself and swung the hammer at the head of a drunken man. In the light of his history of prior convictions, and past leniency by the courts, the respondent could have expected a severe sentence of immediate imprisonment. Her Honour chose not to take that course, but it was a decision taken only after very careful deliberation. It is clear that her Honour accepted that since the offence the respondent had displayed real and genuine remorse and had substantially turned his life around. Her Honour was particularly influenced by the evidence of the respondent's father.

49 Her Honour described the evidence of the respondent's father as "extremely helpful and impressive". The father gave a comprehensive history of early temper and behavioural problems which caused the respondent's parents to seek the help of psychiatrists and psychologists for their son from the age of nine years. In later years the early, but unhelpful, predictions of experts that trouble would accompany their son in his life proved prophetic, with alcohol and relationship problems adding to his difficulties, and leading to court appearances. His father described the respondent as having a temper like a volcano, which builds up and then lets go. Despite that gloomy picture the father did give strong evidence of the benefit which the respondent was gaining from his current relationship, his partner being a non-drinker, and from his counselling sessions with psychologist Mr Peter Horton. His previous relationships had been disastrous. At the time of the plea the mother of two of his children was herself in prison, she having been the victim of his breach of an intervention order and of his violence on an earlier occasion. Although the father said that his son had not accepted that he was an alcoholic, he considered that for the first time in his life he now appreciated that he had a drinking problem. The father also stressed the many positive aspects of his son's personality and his enthusiasm for hard work.

50 This case presents very starkly the disadvantageous position of the appellate court in comparison to that of the sentencing judge, when assessing evidence on sentence. It seems very likely that the transcript of the father's evidence did not adequately capture the force of his evidence. As noted earlier, it impressed the prosecutor, too.

51 The three factors which defence counsel relied on as militating against immediate imprisonment were the plea of guilty, the respondent's genuine and deep remorse and his substantial life change and rehabilitation since the offence. One month after the offence the respondent had commenced a relationship with his present partner. Counsel submitted that unlike his previous relationships, the respondent's new partner was a non-drinker and rather than contributing to his own drinking and anger problems had greatly modified his behaviour in both respects.

52 It is to be borne in mind that the judge in this case had also sat through a trial. The respondent himself did not give evidence, but the victim did, as did others who were present at the time of the assault and during the lead up to that event. There were significant differences in the accounts given and the jury verdict might well have indicated that the jury did not wholly accept the victim's account. Her Honour was, therefore in a good position to evaluate the roles both of the victim and the respondent. Not only did the judge have the opportunity to see the respondent throughout the trial so too she would have seen his father and the respondent's new partner, who attended the trial. Those opportunities might well provide an insight into not only the offending conduct but also the genuineness of claims of remorse and rehabilitation which, in turn, would provide subtle clues as to the appropriateness of granting leniency to an offender. During submissions the judge said that she had indeed observed the respondent and noted that he was one of the most anxious looking accused persons she had ever observed in court, and considered that her observations were consistent with the report of the psychologist that the respondent had suffered great anxiety about the offence and the impact on his life if he was to be further imprisoned. Her Honour concluded that he had, in effect, been punished already, to some extent. Her Honour said that he appeared to have reached a point in his life where he wanted to change.

53 Although I have identified some omissions from it, I consider that the judge's sentencing remarks were carefully constructed and demonstrated her very clear appreciation that there were, indeed, significant factors which weighed against leniency in sentencing, in particular against a wholly suspended sentence. Recognising that, her Honour nonetheless concluded that this was a case justifying the course she proposed to take. Her Honour cited a substantial passage from the judgment of Batt and Buchanan, JJ.A., in DPP v. Buhagiar and Heathcote[21]. In that case, where the offenders committed serious acts of violence and had relevant prior convictions, the Court did not intervene to overturn suspended sentences. In their judgment their Honours accepted that a suspended sentence may be an order made in the community's best interest, if the sentencing judge concluded that a special opportunity arose for the reform and rebuilding of the life of a convicted person. As their Honours also noted, it is wrong to conclude that a suspended sentence, even wholly suspended, does not play a role in deterring others[22]. Her Honour, as she was entitled to do, regarded the fact of a suspended sentence as providing specific deterrence for the respondent, and she must have had regard to his previous breaches of such orders before so concluding.

54 In his submissions Mr McArdle highlighted a statement made by the judge to the respondent, "Good luck, I am sure you will go well. I hope everything is going well with the baby and your business, and I hope I never see you again". Taken out of context those words might give what I consider would be a misleading impression that her Honour was more concerned with the respondent than with the victim of the crime. It would be quite wrong to interpret the words in that way. The remarks were made well after the sentencing remarks had concluded and were made when the judge gave the respondent the statutory warning about the consequence of his breaching the suspended sentence. The whole thrust of that warning is to caution about to the disastrous consequences for the offender of re-offending. It is a time for clear and plain language.

55 It is apparent upon reading not only her sentencing remarks but also her comments during the submissions on sentence that her Honour was fully aware of the seriousness of the offence for the victim. She expressed considerable anxiety about balancing the need to express community disapproval for that conduct with what she saw as being the powerful indicators that the respondent had turned his life around and that further imprisonment might jeopardise his prospects of rehabilitation. Her Honour was anxious to preserve a family unit which had been of great importance to the respondent's rehabilitation. The respondent was caring not only for their own child but also for the three children of his new partner by an earlier relationship. In addition he had children by his former partner, to whom he had regular access.

56 The judge recognised that it had been a significant step for the respondent to acknowledge his alcohol problem and to address it. She had a very positive report from the psychologist and strong written character references, but it was clear from that material that the respondent faced many obstacles in maintaining a non-offending path. In those circumstances the expression of good wishes represented nothing more than encouragement to the respondent. Similar remarks have been made many times by sentencing judges, when taking what they know to be a chance on the reformation of an offender, but doing so in the broader community interest. Perhaps more experienced judges would today eschew such comments lest they invite the very attention that these remarks attracted. It would be a pity, however, if through fear that their informal remarks would be taken out of context and subjected to unreasonable criticism, judges denied themselves the expression of their own humanity and the opportunity to encourage the reformation of offenders in other than formal and stilted language.

57 The fact that the sentence of 12 month's imprisonment was manifestly inadequate re-opens the sentencing discretion. Having regard to principles of double jeopardy, and the need to moderate sentence accordingly, I would re-sentence the respondent to 22 month's imprisonment.

58 The question then arises whether all or any portion of that sentence ought be suspended. I recognise that it is my own discretion as to that question which must now be exercised[23]. Nonetheless, it is highly relevant that, in my opinion, no error in principle, either in fact or law, has been demonstrated in her Honour's decision to wholly suspend the sentence which she imposed. It is, in my view, potentially quite unfair for a respondent to a Director's appeal to be at risk of immediate imprisonment where the decision to wholly suspend his sentence has not been shown to be wrong and where it was based on factors such as remorse and prospects of rehabilitation. The evaluation of those factors was strongly influenced by the opportunity which the trial judge had, but which is denied to us, of observing the offender and all witnesses, including his character witness. It is that advantage which can be critical in evaluating whether an offender was truly at the cross roads and was worthy of an opportunity being taken to turn his life around.

59 It is now more than two years since the offence and more than seven months since the judge reserved to consider sentence (which was imposed a month later). In the meantime the offender has taken significant steps to re-organise his life, to rehabilitate himself, and to tackle his alcohol problem. He has maintained stable employment with very good business prospects, involving long hours of work. He has maintained a supportive relationship. In all of those circumstances I would be very slow to exercise my own discretion on a Director's appeal to order that an offender be arrested and commence a sentence of immediate imprisonment. It is the trial judge who has the primary obligation to impose sentence and it is a very serious step to imprison a person who has been dealt with and released into the community by a trial judge[24]. Even if in the exercise of my own discretion I would at first instance or on appeal have been minded to impose some period of immediate imprisonment, I would now decline to do so, in the exercise of the overriding discretion held by the appellate court upon a Director's appeal[25].

60 I conclude, therefore, that the appeal should be allowed, the sentence of 12 month's imprisonment be set aside, and in lieu a sentence of 22 months imprisonment be imposed. Pursuant to s.27(1) of the Sentencing Act 1991 I would suspend the whole of the sentence for a period of two years, from 24 September 2004.

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[1] 15 years' imprisonment.

[2] At T.6, 32, 36, and 39.

[3] At T.32.

[4] At para.[14] of the reasons, the sentencing judge referred to the background history of the respondent.

[5] At T.34.

[6] Causing serious injury intentionally.

[7] Regrettably, this is not recorded in the Associate's endorsement on the presentment, though it appears from the transcript.

[8] One of these was a sentence imposed by the County Court on appeal.

[9] Although it is clear from the judge's sentencing remarks that she sentenced the respondent for recklessly causing serious injury, regrettably the return of prisoners states the offence as recklessly causing "injury".

[10] [1998] 4 V.R. 540 at 547. The sentences for the present offence and for intentionally causing serious injury there were, it may be noted, three years' imprisonment, and the case was a special one.

[11] Somewhat similar remarks were made by the judge at the close of the plea hearing. (T40-41 and 46.)

[12] [1996] VICSC 30; [1996] 2 V.R. 520 at 522-523.

[13] Director of Public Prosecutions (C'th) v. Low and Ors [2004] VSCA 250, citing House v. The King [1936] HCA 40; (1936) 55 C.L.R. 499 at 505.

[14] The circumstances leading up to the blow, which I have thought it desirable to set out, show "provocative" conduct on the part of both the victim and the respondent.

[15] Veen v. The Queen [No.2] [1988] HCA 14; (1988) 164 C.L.R. 465 at 477.

[16] This was aggravating: R. v. Groom [1999] 2 V.R. 159 at 163-5; R. v. Walker (unreported, Court of Appeal, 31 May 1996) at pp.5-7 per Hayne, J.A.

[17] (1982) 30 S.A.S.R. 212 at 212-213.

[18] It was argued for the respondent that her Honour was aware of that, but more than awareness was required. The point needed to be dealt with as it tended against her Honour's disposition.

[19] S.19(4) Sentencing Act 1991.

[20] S.19(1)(a) Sentencing Act 1991.

[21] [1998] 4 V.R. 540, at 547-8.

[22] At 548, see, too, DPP v. Carter [1998] 1 V.R. 601, at 607-8.

[23] The situation is thus different from DPP v. Oversby [2004] VSCA 208, where the appeal was confined to the order as to suspension and where the actual sentence was not so low as to be outside range.

[24] See R. v. Low & Ors [2004] VSCA 250, at [23] per Winneke, P.

[25] R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520, at 522.