DPP v Coley [2007] VSCA 91

4 This is an appeal by the Director of Public Prosecutions against the sentence imposed on the respondent, Adam Nigel Coley, who was convicted by a jury on one count of recklessly causing serious injury. At trial, the respondent was acquitted of one count of intentionally causing serious injury and one count of threat to kill, which arose out of the same incident. He was sentenced to two years' imprisonment, wholly suspended for a period of three years.

The Facts

5 The circumstances which gave rise to the offences were as follows. In October 2004, the respondent travelled to Thornton Caravan Park with his father, Robert Coley, and his father's friend, Mr Robert Aien, to take part in a fishing competition the next day. There they rented a cabin for the night and had dinner at the local hotel. Following dinner, the three men returned to their cabin where they played cards and watched TV until Mr Aien and Robert Coley went to sleep. The respondent then went for a walk.

6 Whilst walking back through the caravan park, the respondent met Jason and Karen Pitman sitting by a campfire at the front of their cabin. Mr and Mrs Pitman were on a family holiday with their children. The respondent joined the Pitmans for a drink and chat by their fire for a short period. The Pitmans had drunk a great deal over the course of the afternoon and evening and the trial judge was satisfied that the respondent had also drunk a considerable amount during the evening.

7 The respondent said that the friendly nature of this conversation began to deteriorate when Mr Pitman began to order him around, so that he left and walked back to his cabin where his father and Mr Aien were asleep. As I explain below, Mr and Mrs Pitman disputed the respondent's version of events. The respondent said that Mr Pitman followed him into the cabin yelling, acting aggressively and wanting to fight. He said that even after his father, who suffers a heart condition, collapsed, Mr Pitman repeatedly forced his way back into the cabin trying to fight. Both the respondent's father and Mr Aien gave evidence that the fight broke out when Mr Pitman ran into the cabin and began throwing punches at the respondent. Their evidence was that the complainant kept returning to attack the respondent after he had been evicted from the cabin.

8 Mr Pitman admitted that he and his wife had entered the respondent's cabin, but both he and his wife said that they had done so only after hearing people shouting and seeing the respondent's father lying on the floor of the cabin. Mr Pitman said he thought the man on the floor was having a heart attack and he and his wife rushed over to see if the man was all right.

9 The respondent and the complainant gave different versions of what occurred next. What is clear, however, is that some time after Mr Pitman entered the respondent's cabin, Mr Pitman was seriously injured. These injuries included a wound in his mid-back, at least five centimetres in length, which penetrated to his chest cavity and caused a pneumothorax or punctured lung; a potentially life threatening injury. In addition to this wound, Mr Pitman suffered wounds to the front of his chest, his right forehead and several wounds on his left hand.

10 Mr Pitman said that these wounds were inflicted when the respondent repeatedly stabbed him with a large knife. The stab wound in the back was said to have been inflicted as he leant over the respondent's father, the later wounds as he turned to fend off the respondents blows. After being stabbed he tried to run away but fell and crawled to the toilet, where he was found a short time later by other occupants of the caravan park.

11 The respondent's evidence was that he did not recall striking Mr Pitman. He admitted that he had smashed and then thrown a broken whisky bottle at Mr Pitman and that he had then wrestled with Mr Pitman, although no remnants of a broken whisky bottle were found by the police or the caravan park manager. The respondent said he did this only when Mr Pitman re-entered the cabin holding a knife.

12 Shortly after these events occurred the respondent, his father and Mr Aien packed up and drove home. The knife with which Mr Pitman was wounded was never found.

13 Based on the jury's verdicts on the various counts, the learned trial judge was satisfied that the respondent inflicted the wounds on Mr Pitman and that he was not acting in self-defence.

14 In addition, her Honour was satisfied that:

"[The respondent] did not actively seek out Mr Pitman to injure him or pick a fight with him.

[The respondent] had walked away from any disharmony that was developing with [Mr Pitman] and [Mr Pitman] had entered his cabin, following [him], creating a situation where [he] had nowhere to go, there being no back door to the cabin.

There was much shouting, whether to quieten [the respondent] or Mr Pitman or both of them.

[The respondent] perceived Mr Pitman to be aggressive towards him; Mr Pitman was of bigger build than [the respondent ] was.

Mr Pitman resisted leaving the cabin even when his wife did, and when she urged him to leave also.

These events occurred in the early hours of the morning, waking [the respondent's] father, who [the respondent] knew had a vulnerable heart condition.

Mr Pitman's judgment and behaviour were probably impaired by alcohol, and so was [the respondent's].

The position and nature of the major wound to Mr Pitman's back makes it very difficult to see how it could have occurred other than by [the respondent's] direct act, even if during a struggle or scuffle."

15 I note here that there is an apparent inconsistency between this statement and an earlier paragraph in her sentencing reasons in which her Honour said that:

"the jury was not satisfied beyond a reasonable doubt that there was a direct and deliberate stabbing of Mr Pitman in the back."

I take it that in the earlier paragraph her Honour was referring to the fact that the respondent was convicted of reckless, rather than intentional infliction of serious injury.

16 Finally, her Honour said that:

"Although the knife was never located, it was likely to have been one from the cabin, not one [the respondent] generally carried or brought of [his] own accord. It appears to have been used in the immediacy of the situation, and not taken by [the respondent] in advance as an intended weapon."

17 The Director of Public Prosecutions appeals against the sentence on the sole ground of manifest inadequacy. The alleged manifest inadequacy relates not to the term imposed, but to the fact that "the period of two years imprisonment was ordered to be wholly suspended for a period of three years". The particulars allege that the sentencing judge gave insufficient weight to the seriousness of the offence and to general and specific deterrence and too much weight to mitigating factors.

18 In their written submissions, the Director also alleged that her Honour erred in making a finding of fact as to the respondent's ability to escape which was inconsistent with the jury verdict, and giving insufficient weight to the respondent's relevant criminal history. However, these submissions were not actively pursued by Mr Gyorffy in the course of oral argument.

19 Counsel for the Director, Mr Gyorffy, submitted that the learned sentencing judge should have given greater weight to general deterrence. This was a very serious stabbing which penetrated the complainant's bodily cavity, causing a potentially life-threatening pneumothorax. The victim also suffered injuries to his chest, forehead and hand. Although the circumstances in which the stabbing occurred were not clear, the jury had rejected the respondent's assertion that the injury occurred accidentally or that the respondent had acted in self-defence.

20 Unlike examples of intentional or reckless infliction of injury by use of fists or sticks, the use of a knife to injure another person would normally call for the imposition of an immediate custodial sentence. Mr Gyorffy said that for an injury of this severity, a sentence in the order of three years imprisonment would have been appropriate. In the case of R v Studdart,[1] for example, which also involved reckless infliction of serious injury by use of a knife, it was held that a sentence of three years imprisonment, with a non-parole period of two years, was not manifestly excessive.

21 Despite his submission that the period of the sentence may well have been inadequate, Mr Gyorffy said that the Director did not seek an increase in the term of the sentence, because of the principle of double jeopardy. However he submitted that the sentencing judge's sentencing discretion had miscarried in ordering that the two year sentence of imprisonment be wholly suspended. Total suspension of the sentence failed to recognise the weight which should be given to general and specific deterrence in sentencing a person who had recklessly inflicted serious injury through use of a knife.

22 The seriousness of the offence was aggravated by the respondent's complete lack of remorse and his denial of any blame for the injury suffered by the complainant. He had denied using the knife and claimed that the only weapon he used was part of a broken bottle that he threw at the victim. Apart from the birth of the respondent's third child after he was sentenced, most of the mitigating factors to which her Honour referred were in existence at the time the respondent offended.

Respondent's Submissions

23 Counsel for the respondent, Mr Tehan, said that Mr Gyorffy had, in effect, submitted that total suspension of a sentence was not open to a sentencing judge when a serious injury was intentionally or recklessly inflicted by use of a weapon. He referred to the judgment of Redlich JJA in DPP v Fevaleiki,[2] in which the respondent had been convicted of the offence of intentionally causing serious injury. The respondent in that case had punched the complainant in the head causing a brain injury requiring emergency surgery. His Honour commented that:

"the imposition of an immediate custodial sentence for the offence of intentionally causing serious injury will not always be obligatory.[3] A sentence which does not require an offender to serve an immediate term of imprisonment for the offence of intentionally causing serious injury will not necessarily be manifestly inadequate. The serious nature of this offence will ordinarily call for an immediate custodial sentence but the imposition of a different sentence is not necessarily indicative of sentencing error."[4]

24 Mr Tehan said that if it was not necessarily a sentencing error to order total suspension of a sentence for the offence of intentionally causing serious injury, the same must apply in a case where the respondent was convicted of the less serious offence of recklessly causing such injury. He referred to a number of cases involving the use of a knife and/or the infliction of very serious injury, in which the offender's sentence had been totally suspended.[5]

25 Although the jury had rejected the respondent's claim of self-defence it was likely they had done so because they regarded the respondent's reaction as excessive, rather than because they rejected his account of events. The circumstances in which the stabbing occurred were not clear and her Honour was entitled to take account of the mitigating factors set out in paragraph 11 above.

26 Mr Tehan relied on the statement of Winneke P in DPP v Carter[6] that:

"it is wrong to assume that a sentence of imprisonment, albeit wholly suspended, does not play a role in deterring others: [citations omitted]."

27 Her Honour's reasons showed she had given weight to general and specific deterrence in deciding whether the sentence should be wholly suspended. Her Honour had given appropriate weight to the respondent's good employment record, stable family relationship and the imminent birth of his third child. She had not erred in suspending the sentence in order to give the respondent "one last chance" to rehabilitate himself. [7]

28 In effect the Director 's appeal was based on the weight which her Honour had given to the factors in favour of and against showing some leniency by suspending the sentence. In DPP v Buhagiar and Heathcote[8] Batt and Buchanan JJA said that:

"It is difficult to make good a Crown appeal on the ground of the insufficiency of the weight given to various factors."

29 Finally, Mr Tehan contended that, even if her Honour had erred by giving insufficient weight to general deterrence and to the respondent's lack of remorse, this court should not exercise its re-sentencing discretion to impose a more severe sentence for an offence which occurred two and a half years ago. The respondent had not offended since that time. He had a de facto partner and three dependent children and he was the sole breadwinner. His partner had a significant need for emotional support, as she had suffered from post-natal depression since the birth of their third child.

Directors' Appeals Generally

30 Directors' appeals against sentence are now more common than was once the case.[9] Nevertheless, in considering whether to allow such an appeal, the court is constrained by the principles set out in cases such as R v Clarke[10] and DPP v Josefski.[11] As Maxwell P said in DPP v Josefski.[12]

"[i]t is important ...that the exceptional character of a Crown appeal is clearly understood."

31 In order to succeed in this case the Director must demonstrate that the sentence (in this case the total suspension) is so inadequate or so inconsistent with sentencing standards that her Honour must have erred in principle, or is so disproportionate to the circumstances of the offence as to shock the public conscience. In the absence of a specific sentencing error, unless the sentence is outside the range of those which the sentencing judge could have imposed in the exercise of her discretion, the court will not allow the appeal merely because it might have sentenced the respondent differently.

Conclusion

32 I have found this a difficult case. On the one hand, this was a very serious example of the offence of recklessly causing serious injury, which carries a maximum sentence of 15 years imprisonment. Cases which were cited by counsel for the appellant and the respondent are of only limited assistance in determining whether the sentence imposed in this particular case was manifestly inadequate.

33 I accept Mr Gyorffy's contention that general and specific deterrence must be given considerable weight in sentencing those who use a weapon such as a knife to seriously injure others. An intentional or reckless knife attack would ordinarily require an immediate custodial sentence.

34 The respondent was aged 31 and this was not the first offence he had committed. He admitted two prior court appearances. Although one was 13 years old and has no relevance to this offence, the other appearance related to the unlawful assaults to which I refer below and the offence of failing to answer bail. The knife attack on the complainant resulted in a life-threatening injury. Although he has now recovered physically, he still suffers from anxiety. If the complainant had not received medical attention quickly he might have died and the respondent could then have faced a charge of murder.

35 On the other hand, I do not accept Mr Gyorrffy's submission that there were few mitigating circumstances in this case. Her Honour was entitled to give considerable weight to the respondent's stable family relationship, his steady employment record, and his favourable references from his employer and the treasurer of his football club.

36 Nor do I accept the submission in the Director's outline of argument that her Honour made unfavourable findings as to the respondent's prospects of rehabilitation. Her Honour accepted that his criminal record did not reflect:

"sustained or entrenched criminal behaviour"

and found that

"[the respondent] had learned a considerable lesson from having gone through the criminal justice system as a result of these events."

37 Although the jury rejected the claim that the respondent acted in self-defence, her Honour found that he did not seek out Mr Pitman to injure him, and that it was likely that the knife came from the cabin and was not brought to the scene by the respondent. The confrontation occurred inside the cabin where the respondent and his father were staying, in a situation in which he was concerned about his father's well-being. Her Honour accepted that--

"The respondent's history was not of actively seeking out confrontation even when drunk and ... [he did] not set out to provoke or invite violence."

38 Her Honour was concerned about the respondent's lack of acknowledgment that he carried any blame for what occurred, but regarded it as to some extent explicable by the circumstances in which the offence occurred. By comparison the respondent did plead guilty to an assault on his partner which resulted in the imposition of a good behaviour bond in late 2002.[13] The police evidence was that those assaults took the form of grabbing the victim and pinning her to the couch, in the presence of his daughter. The assault charges were adjourned to enable the respondent to complete a course with the Salvation Army which included anger management issues. The respondent admitted these events to the forensic psychologist, Dr Ian Joblin.

39 Dr Joblin's psychological report provided "a reasonably rare optimistic prognosis" for the respondent and said that he was of the opinion that:

"Mr Coley has a very positive and constructive attitude to his employment, his family and society in general. He is certainly not an anti-social personality."

40 While Dr Joblin's view was undoubtedly influenced by the respondent's version of the events which occurred on the evening of the stabbing, in my view her Honour was entitled to conclude that the respondent had reasonable prospects of rehabilitation which would be best served by wholly suspending the sentence.

41 In my view her Honour did not err in principle in doing so, despite the concern she expressed that the respondent:

"may not recognise the need to avoid reacting with violence when confronted with a stressful situation, and when also affected by alcohol."

42 As Eames JA noted in exercising his re-sentencing discretion in R v Anderson[14] in the context of the trial judge's decision to wholly suspend a sentence:

"... the evaluation of factors [such as remorse and prospects of rehabilitation] 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."

In this case her Honour's sentencing remarks show that she carefully weighed all of the factors relevant to her decision.

43 In DPP v Leach,[15] Eames JA commented that:

"It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which redounds very much to the benefit of the community."

44 In my view, her Honour was entitled to take a merciful view and to regard a suspended sentence as the most appropriate means of taking account of the seriousness of the offence, while extending some mercy to the respondent and recognising his prospects for rehabilitation.

45 Even if I am incorrect in this view, I would decline to re-sentence the respondent, having regard to the principle of double jeopardy. The offence occurred in October 2004 and the respondent has not committed any further offences since then. A third child has been born to his partner, who depends on the respondent for emotional and financial support. She is suffering from post-natal depression. In these circumstances, requiring the arrest and imprisonment of the respondent would

have very serious effects on the well-being of his partner and young children and might well hinder his prospects of rehabilitation.

46 I would therefore dismiss the appeal.

47 I agree with the other members of the Court that in all the circumstances the appropriate exercise of discretion is to dismiss this appeal.

48 That said however, I agree with Vincent JA that in all the circumstances of this case the imposition of a wholly suspended sentence was not appropriate. The use of knives, whether in circumstances of recklessness or otherwise, as a means of resolving disputes is a matter of great concern to the community and to the courts and must be deterred. The serious injuries sustained by the victim, which included a penetrating wound in the back of sufficient depth to cause a pneumothorax are ample evidence of a high degree of recklessness on the part of the respondent and of the serious nature of this offence in all the circumstances.

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[1] [2006] VSCA 112.

[2] [2006] VSCA 212; (2006) 165 A Crim R 524.

[3] In Director of Public Prosecutions (Vic) v Snell [2005] VSCA 131 at [21] per Charles, JA, [41]-[42] per Eames, JA, the Court recorded the Director's concession that a fully suspended sentence could be within range. See Director of Public Prosecutions (Vic) v Lawrence [2004] VSCA 154; (2004) 10 VR 125 at [25] per Winneke, P; Director of Public Prosecutions (Vic) v Anderson [2005] VSCA 68 at [58] in relation to the offence of recklessly causing serious injury. See also Director of Public Prosecutions (Vic) v Buhagiar [1998] 4 VR 540 and R v Showell [2005] VSC 407.

[4] [2006] VSCA 212; (2006) 165 A Crim R 524 at 529 [20].

[5] See for example DPP v Hooker [2006] VSCA 95 (Director's appeal. Respondent pleaded guilty to intentional infliction of stab wound requiring stitches and pain relief. Respondent had 8 prior convictions not involving violence. Having regard to double jeopardy respondent's term of imprisonment increased from eight months to two years and six months but total suspension of sentence maintained); DPP v Castro [2006] VSCA 197 (Director's appeal. Respondent, who was a kick boxer, pleaded guilty to recklessly causing serious injury by kicking the victim in the head, breaking his nose and knocking out two teeth. Having regard to double jeopardy respondent re-sentenced to 10 months imprisonment totally suspended); DPP v Anderson [2005] VSCA 68 (Director's appeal. Respondent pleaded guilty to recklessly causing serious injury by a hammer blow to the complainant's head resulting in a fractured skull. Respondent had numerous prior convictions, including convictions for violence. Strong prospects of rehabilitation. Buchanan and Eames JJA held the sentence should be increased from 12 to 22 months but said that the sentence should be wholly suspended. Batt JA considered total suspension inappropriate).

[6] [1998] 1 VR 601 at 607.

[7] Citing R v Groom [1999] 2 VR 159 at 168-9 [37].

[8] DPP v Buhagiar and Heathcote [1998] 4 VR 540 at 547-8 per Batt and Buchanan JJA.

[9] In Everett v R [1994] HCA 49; (1994) 181 CLR 295 per Brennan, Deane, Dawson and Gaudron JJ at 299 it was said that they should be brought only in the "in the rare exceptional case." For comment on the increased frequency of such appeals see DPP v Leach [2003] VSCA 96; (2003) 139 A Crim R 64 at 74 per Eames JA and Richard Edney, "Crown appeals against sentence in Victoria: Results and implications of an empirical study" (2005) 79 ALJ 513.

[10] [1996] VICSC 30; [1996] 2 VR 520, 522 per Charles JA. See also the cases cited therein.

[11] [2005] VSCA 265; see also DPP v Whiteside; DPP v Dieber [2005] VSCA 265.

[12] Ibid, [15].

[13] There is some lack of clarity as to whether the respondent also pleaded guilty to an assault on his daughter. He was not represented in the Magistrates' Court. At the plea hearing for this offence his counsel said that he pleaded to the assault on his partner, but the Magistrate inadvertently entered pleas of guilty to assaults on both the partner and the daughter. Her Honour refers in her sentencing remarks to an assault on his partner in the presence of his daughter.

[14] [2005] VSCA 68 at [58].

[15] [2003] VSCA 96 at [48].