DPP v Bridle [2007] VSCA 173

2 Before dealing with the parties' respective submissions, it is necessary to set out briefly the circumstances of the offending and of the respondent. At the time of the offence he was aged 18 years. He was then an unemployed VCE student at the Box Hill TAFE Institute. In order to generate income for himself he trafficked in cannabis and he was also a regular user of the drug. One of his customers was Andrew Kantaras, but it seems that recently they had had a falling out. At approximately 11 pm on 9 February 2006, Kantaras drove some friends to the Burvale Hotel that is located at the corner of Springvale Road and Burwood Highway. They planned to continue their drinking there and listen to a band. After Kantaras parked his car in the car park of the hotel most of his group went inside but Kantaras stayed at his car, cleaning out some of its contents. He was approached by the respondent who was affected by alcohol or drugs, or both (he later claimed to have no recollection of this part of the night). The respondent accused Kantaras of telling others of his trafficking and that he had a safe at his home (where he kept, amongst other items, drugs and cash). The respondent, who held a half-full pot of beer (a 285-ml glass) in his right hand, became increasingly angry and, without warning, smashed the glass into Kantaras' left cheek with such force that the glass broke, causing a serious injury to his face. As a result, Kantaras was taken by ambulance to an emergency ward of a major public hospital, where the medical treatment of his wounds included the placing of 20 stitches to four different wounds on the left side of his face. Thereafter, Kantaras continued to see a plastic surgeon and a consultant psychiatrist in relation to his resulting permanent scar. His victim impact statement and his reports to his health specialists whom he consulted since the attack make it apparent that the injury had a significant and probably a long-lasting effect on him, including post-traumatic stress disorder, and a feeling of inadequacy and self-consciousness about his scar in his dealings with others in the work environment and with members of his family and friends.

3 The respondent was arrested on the following day in relation to the offending, but denied being the perpetrator of the assault. At his home, which was searched pursuant to a search warrant, police located, amongst other matters, $14,000 in cash, quantities of cannabis, digital scales and an explosive item. The respondent did not co-operate with the police during the search, with the result that they required the assistance of the fire brigade to open the safe where some of the above items were found. The messages on his mobile telephone that was also seized during the search of his premises indicated that he had been trafficking in drugs on a scale, the sentencing judge said, that was above a low level. The respondent made a "no comment" police interview, in the course of which he falsely claimed that the seized cash was a combination of his savings and borrowings and that he had kept the cannabis for his personal use.

4 The respondent's background, which his Honour said was "chaotic and turbulent", was such that he grew up without parental supervision. His parents never lived together and he had only limited contact with them. He spent his early life mostly with his father who, his Honour found, neglected him. From about the age of 16 years the respondent had to fend for himself. At the time of the offending and sentence, the respondent was living on his own and had no family or other support. Unsurprisingly, his early school life was unsatisfactory. He left school at the age of 15 but, some 18 months or so later, and notwithstanding the lack of support from anyone, he decided to resume his education and pursue a course of full-time studies for the VCE. At the same time, however, as the sentencing judge noted, the respondent trafficked in cannabis and became a regular user of it. It seems that at the time of sentence he had significantly reduced his consumption of the drug and had done so without any professional assistance.

5 Although his Honour recognised the serious nature of the respondent's offending, he also had regard to his young age, his plea of guilty, his self-motivation towards pursuing education notwithstanding his isolated background, his good prospects of rehabilitation and his need for supervision. In the result, his Honour imposed the impugned the sentence, but did so on conditions that required the applicant to do 200 hours of unpaid community work over a period of two years, remain during this period under the supervision and directions of a community corrections officer, and to submit himself to treatment for alcohol and drug addiction or psychological and psychiatric assessment as directed by the Regional Manager. At the time of sentence, his Honour explained to the respondent in clear and forceful terms the serious nature of the offence and why, notwithstanding this, a non-custodial sentence was imposed. The judge also emphasised the importance of the respondent adhering to the conditions imposed in respect of the CBO.

6 The Director's principal case on appeal was that the impugned sentence is so inadequate as to demonstrate inconsistency in sentencing standards and error in principle, as those concepts were explained in R v Clarke[1] and Everett v The Queen[2]. More particularly, it was said that the sentence does not reflect the seriousness of the offence - in respect of which a maximum custodial period of 20 years has been prescribed - and of the offending conduct which, it was correctly said, was vicious and unprovoked and left the victim with significant physical and psychological scarring. Counsel pointed out that the "Sentencing Snapshot"[3] published by the Sentencing Advisory Council showed that, over the period 2001 to 2005, approximately 70 per cent of those convicted of this offence received a term of imprisonment, whether immediate or suspended. It was also argued for the Director that it is apparent that the sentence does not reflect the important sentencing principles of denunciation and general and specific deterrence. In that context, reference was made to Director of Public Prosecutions v Tokava[4] in which the Court recognised these important sentencing principles in respect of offending that involved an unprovoked and vicious physical attack on a member of the public. The Court in that case noted that such offenders should expect condign punishment. Counsel further argued that the sentence fails to have sufficient regard to the aggravating aspects of the offence, including the permanence of the injury to the victim and its impact. His Honour placed too much weight, so it was claimed, on factors going to mitigation to which reference has been made. In the circumstances, it was put, the sentence is so inadequate as to demonstrate sentencing error and should, therefore, be set aside.

7 The principles applicable to the determination of Director's appeals are well known[5] and need not be re-stated here. Given the circumstances of this case, it is only necessary to refer to one of the essential principles, namely, that "a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion".[6] Subject to the Court's discretion not to intervene, the essential question before us is whether the impugned sentence is outside the range of sentences that were reasonably open to his Honour in the exercise of sound discretionary judgment such as to amount to error of sentencing principle.[7]

8 The sentencing judge was required to impose a sentence that properly reflected the seriousness of the offence and the offending conduct and the applicable sentencing principles, but also taking into account the offender's personal circumstances and other mitigating factors. In my view, it is plain enough from the sentencing remarks that his Honour did just that. To the extent that it is claimed that the judge failed to give sufficient weight to the governing sentencing principles, there is nothing on the face of the sentencing remarks that bears out that contention. The Director's essential case was that the offence was so grave as to necessitate an immediate custodial sentence. A more lenient sentence in the circumstances of this case, it was said, would produce a sentence that is manifestly inadequate.

9 It is trite that the question whether a sentence is manifestly inadequate does not permit of elaborate argument. Once the relevant circumstances are ascertained, the sentence upon its face appears manifestly inadequate or it does not.[8] I should say that the appeal has troubled me, principally because, having regard to the obviously serious nature of the offence and of the offending conduct, the impugned sentence is lenient and, on its face, contradicts what this Court has said about unprovoked and vicious attacks upon members of the public.[9] In the end, however, I have come to the clear view that, given the exceptional circumstances of this case, the sentence is not manifestly inadequate as the Director contends.

10 Although brutal and unprovoked conduct of the kind with which we are concerned may generally call for the imposition of an immediate custodial sentence, it does not follow that such a sentence must be imposed on every such offender.[10] The difficult task of sentencing involves the exercise of discretion, having regard to aggravating as well as mitigating factors. In this case, the primary mitigating factors were these. First, the respondent was a young first offender (who pleaded guilty) in relation to whom, for the reasons given by Batt JA in R v Mills[11], the principle of rehabilitation assumed considerable importance, being usually far more important than general deterrence. Here, I think, the circumstances are not such as to require the abatement of the Mills principle in favour of general deterrence.[12] Secondly, there was sufficient evidence before his Honour to warrant his concluding that the respondent's prospects of rehabilitation were sound, particularly bearing in mind that they were the product of his self-motivation, notwithstanding his isolated circumstances. It was also open to his Honour to conclude, as he inferentially did, that there was sound prospect of the respondent meeting the conditions of the CBO. In this context I note that the material before us, which was not challenged by the Director, shows that to date the respondent has complied with those conditions. It is plain enough, therefore, that the sentencing judge concluded that a supervised CBO would be more productive from the point of view of the respondent and of the community than incarceration. The principal reason why courts strain against imposing immediate custodial sentences on first-time offenders whose prospects of rehabilitation are sound is that there is a real risk that if they were placed into an adult prison environment that would not only compromise their progress towards rehabilitation but may lead to further offending by them. In that context I refer to what Vincent AJA said in R v Misokka[13]:**

"The central principle when dealing with young offenders is, in my view, quite clear and has been enunciated on many occasions over the years. The incarceration of a young person in the adult prison system, carrying as it does a real potential to cause damage of a kind for which both the offender and the community may pay dearly in the long term, should not be ordered unless the court is satisfied that the

powerful factors which have been accepted by the legislature and the courts as requiring and justifying the existence of a separate youth correctional system have been very clearly displaced in importance in favour of the adoption of a more punitive approach."

And as Maxwell P said in Tokava[14] "it would be unreal and artificial for sentencing courts to ignore the evidence about anti-social effects of time spent in gaol".

**11 The difficult task of deciding whether to afford the respondent an opportunity to progress his rehabilitation and, at the same time, ensure that the sentence reflected the gravity of the offence and the offending, as well as the applicable sentencing principles, fell on his Honour. As has so often been said, there is no one correct sentence in respect of an offence and, providing it is within the relevant range of sentences reasonably available to the sentencer, absent relevant specific error, there is no basis for this Court interfering with the sentencing disposition.

12 In this case, I consider that the sentencing judge considered all the sentencing options that were properly available to him in the particular circumstances of this case and, given those options, this experienced judge moulded the sentence to meet the particular situation. In my view, the fact that no immediate custodial sentence was imposed does not bespeak sentencing error as the Director contends. Thus, as I have said, I consider that the impugned sentence is not manifestly inadequate and I would dismiss the appeal.

13 I agree, but would add that the circumstances of this matter are exceptional and that in the ordinary course of events one would have anticipated that a person behaving as the respondent did would be required to serve a term of imprisonment.

15 The order of the Court is that the appeal is dismissed.

16 A certificate under s 15(1)(a) of the Appeal Costs Act 1998 will be granted to the respondent.**

[1] [1996] VICSC 30; [1996] 2 VR 520.

[2] [1994] HCA 49; (1994) 181 CLR 295, 300.

[4] [2006] VSCA 156, [15] (Buchanan JA).

[5] See, eg, R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522-523 (Charles JA); Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

[6] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-672.

[7] DPP (Cth) v Trainor [2000] VSCA 249, [17] (Batt JA).

[8] See, eg, R v SJK [2002] VSCA 131, [60].

[9] See, eg, Tokava, [15] (Buchanan JA).

[10] See, eg, R v Young [1990] VicRp 84; [1990] VR 951, 955.

[11] [1998] 4 VR 235, 241-242.

[12] Compare R v Hatfield [2004] VSCA 195, [11].

[13] (Unreported, Supreme Court of Victoria, Court of Appeal, 9 November 1995, 10).

[14] [2006] VSCA 156, [24].