DPP v Castro [2006] VSCA 197

6 Before turning to consider this ground of appeal it is convenient to outline the facts constituting the offence upon which the respondent was sentenced.

7 On 7 December 2003 the respondent was participating in an indoor soccer match at the Albert Park Sports Centre, Albert Park. The game involved both male and female players. Also present were a number of spectators. The victim, Russell Griffin, was participating in the game as a player on the opposing team. The match was a heated one involving an increasing degree of rough play and associated frustration on the part of the participants. According to Mr Griffin, early in the second half of the game the respondent elbowed him in the face during the course of play. Mr Griffin considered the action to be deliberate and retaliated by swinging his right arm towards the respondent without making any contact. A spectator then ran on to the field and confronted Mr Griffin about his action. Mr Griffin states that he then turned to complain to the referee both about the initial incident and the action of the spectator. According to his account, Mr Griffin remembered nothing further until he lifted himself off the ground after the offence was committed. He then observed bleeding from his nose and was experiencing considerable pain emanating from his nose and face area.

8 At the time of the incident, Mr Griffin's wife, baby son and brother were present.

9 It appears that Mr Griffin's loss of memory commenced from the moment he was pushed to the floor by a player on the opposing team. Descriptions of what occurred next are contained in the statements of several witnesses. In summary Mr Griffin was described as being on all fours or half lying on the ground or trying to get up off the ground by pushing with his arms but with his head down, when he was kicked in the face by the respondent. A cracking noise like the sound of bones breaking was heard.

10 The police and ambulance were called and arrived a few minutes later. The respondent was arrested shortly after the incident. Mr Griffin was taken to hospital.

11 In a record of interview the respondent denied pushing the victim to the ground or kicking him in the head while he was in a prone position. Indeed, he claimed that the victim was standing at the time he kicked him, and that he did so as retaliation for being hit by the victim and feeling threatened. Additionally, he conceded that he had training in kick boxing as a form of self-defence.

12 The witness statements to which I have previously referred do not support the respondent's contention that the victim was standing at the time the kick was delivered to his head. This, of course, undermines the claim by the respondent in his record of interview that he was aiming to kick Mr Griffin in the chest area but misjudged the blow. In her reasons for sentence, the sentencing judge noted the respondent's claim, but made no finding of fact about it. In the course of this appeal, however, the Crown conceded that the kick was not aimed specifically at the victim's head.

13 In any event, by his guilty plea, the respondent may be taken as having admitted that at the time of performing the act of kicking, he foresaw that serious injury was the probable result of it but nonetheless took the risk that it would result by performing that act.

14 In a Victim Impact Statement Mr Griffin described the extent of his injuries in detail. These included a broken nose in two places, the loss of two rear teeth which required crowning, a black eye and severe bruising to the side of the face. Subsequent surgery included the re-breaking of his nose from which it took several weeks to recover. Further, Mr Griffin described the considerable financial costs incurred as the result of his injuries and the continuing emotional trauma he has suffered as a consequence of the offence.

15 At the outset of this appeal, the appellant indicated that an immediate custodial sentence was no longer the disposition being sought, both because of the time that had elapsed since the commission of the offence and the application of the principle of double jeopardy. Accordingly, the issue for determination by this Court was whether the sentence of imprisonment for 4 months, wholly suspended for a period of 18 months, was manifestly inadequate and, if so, whether the Court should intervene to increase it.

16 No specific challenge was addressed to the findings of fact by the sentencing judge; nor was it asserted that her Honour failed to address such matters as the gravity of the offence, specific and general deterrence, mitigating factors, the maximum penalty applicable to the offence, the respondent's relevant prior criminal history, and the effect of the offending upon the victim. Rather, the particulars of the single ground of appeal were generally couched in terms of the insufficiency of the weight accorded to these matters; or, in the case of mitigation, the excess weight given to it.

17 In this regard, and allowing that this is a Director's appeal, the comments of Callaway, J.A. in R. v. Bernath[1] are apposite.

18 As I have indicated, having regard to the sentencing judge's reasons for sentence, it could not be asserted that she failed to advert to the matters particularised by the Crown. Nonetheless, in arguing manifest inadequacy, the appellant submitted first that her Honour had failed to sufficiently reflect the gravity of this offence. Specifically the lack of provocation, the nature of the kick by a trained kick boxer and the fact that the assault occurred at a time when the victim was on the ground and unable to defend himself. Further, the appellant pointed to the occurrence of the incident in a public place where it was witnessed by many people, including the victim's wife.

19 The appellant also pointed to the significant injuries sustained by the victim (including the need for additonal surgery to treat complications arising from such injuries). Finally, reference was made to the ongoing emotional suffering and diminished enjoyment of life of the victim attributable to this assault.

20 It was further argued that the nature of the respondent's criminal history, (albeit limited and occurring when he was 17 years of age) was, nonetheless, highly relevant to the need for specific deterrence. Moreover, given the circumstances surrounding the commission of the offence, general deterrence, denunciation, and just punishment were significant sentencing principles that needed to be accorded considerable weight in the exercise of the sentencing discretion. It was submitted that the sentence imposed did not give sufficient recognition to those principles.

21 Insofar as mitigation was concerned, it was argued that, although the sentencing judge found that the respondent was remorseful at the time of plea and sentence, such remorse was not apparent in the immediate aftermath of the offence. Rather, in the answers proffered during his record of interview, the respondent sought to minimise his own criminality.

22 Finally, it was submitted that the respondent's plea of guilty did not entitle him to a significant discount, not only because it was not entered at the earliest opportunity (but rather at a plea hearing on 31 March 2006 some seven months after the respondent was charged with this offence) but also because the prosecution case was a strong one.

23 Given the concession made by the Crown in relation to an immediate custodial sentence, the submissions of the respondent were directed towards justifying the current period of suspension ordered. In this regard a number of matters were advanced. Attention was drawn to the plea of guilty which ensured that no witness was required to give sworn evidence and that the State was saved court time and expense. This, it was asserted, entitled the respondent to a discount which was real and not illusory. Insofar as remorse was concerned, reliance was placed on a report prepared on behalf of the respondent by Ms Wendy Northey, a consultant psychologist and dated 10 March 2006, as well as a pre-sentence report dated 30 March 2006, both of which referred to the respondent's remorse at his actions. This, it was put, entitled the respondent to a further discount in sentence. Emphasis was given to a number of character references which, despite the respondent's prior finding of guilt, indicated that this offending was out of character.

24 Significantly, during the considerable period of time which had elapsed between the commission of the offence, on 7 December 2003 and the hearing of the plea in this matter on 10 March 2006 - in all, a period of some 21/4 years - the respondent had committed no further criminal acts and had matured. It was submitted that, in these circumstances, the respondent was, at the time of sentence, a different person from the person who had committed the offence.

25 Further, the respondent was involved in a stable relationship with a young woman and was assisting her in the care of her son. His history indicated that he was a hard worker and was both studying full time and working on a part time basis. Indeed the respondent was in the fourth year of a degree course in civil engineering at Victoria University and was scheduled to take out the bachelor's degree after one further semester.

26 It was further submitted that the respondent was committed to ensuring that he did not reoffend. To this end he had proposed, at the time of the plea, to complete an anger management program with an organisation called Life Works, and he was currently enrolled for the course which was scheduled to commence in September 2006.

27 It may be acknowledged that the sentencing judge accepted all of these matters[2] and that, on the basis of the material placed before the Court, her Honour agreed with the proposition that the respondent had reasonably good prospects of rehabilitation. As is clear from the reasons for sentence, her Honour regarded the ultimate issue for resolution as being whether the respondent should face immediate incarceration or some other form of disposition.[3] Ultimately that issue was resolved in favour of a suspended sentence. It is also clear that the sentencing judge took the view that this form of disposition was best calculated to maximise the respondent's chances of rehabilitation.

28 As I have previously indicated, the imposition of a suspended sentence is no longer the subject of the Crown challenge, and the question for resolution by this Court is whether the sentence of 4 months' imprisonment, wholly suspended for 18 months is manifestly inadequate. As is the case with the ground of manifest excess, the ground of manifest inadequacy is not one which is susceptible to protracted argument, and in approaching that question I bear in mind the admonition of Callaway, J.A. in Bernath's case.

29 In the present case, even allowing for the cogency of all of the matters to which I have referred that may be urged in favour of the respondent, I have no doubt that the sentence imposed is manifestly inadequate. The assault perpetrated by the responent was, to quote the respondent's own counsel at the plea[4] "reprehensible and cowardly." It was a vicious kick inflicted at a time when the victim was unable to defend himself. Moreover, it was delivered by a person trained in the art of kick boxing and, consequently, well aware of the potential results that may flow from such an act. As a result of this assault, the victim, Mr Griffin, suffered both physical and psychological injury. Furthermore, the assault occurred in the context of a sporting contest where persons of both sexes had come to enjoy the competition. Violence of this magnitude has no place in the sporting arena. That it occurred in front of members of the public, including the victim's wife, who had come to watch the game, is a further aggravating feature of this conduct.

30 Not only was this a grave offence in all the circumstances, it was necessary to send a strong message to the community generally that this type of behaviour will not be tolerated or condoned. Moreover, given that this was not the first occasion upon which the respondent had engaged in reprehensible behaviour on the sporting field, there was a clear need for specific deterrence.

31 It should be recorded that the sentencing judge produced reasons for sentence which were thorough and comprehensive. Moreover, those reasons acknowledged the seriousness of the offence and the need for specific and general deterrence. Nevertheless, I am of the view these factors were not adequately reflected in the sentence imposed.

32 Accordingly, I would allow this appeal. In re-sentencing the respondent, I am mindful of the principle of double jeopardy.[5] I would propose that the respondent be re-sentenced to a term of imprisonment of 10 months, wholly suspended for a period of 2 years.

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Judgment (9 paragraphs)

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