DPP v Cook [2004] VSCA 11

Court of Appeal (Vic)|2004-02-20|Before: CHERNOV and EAMES, JJ.A. and SMITH, A.J.A.

Criminal law - Sentence - Director's appeal against sentence - Intentionally causing serious injury - Whether sentence of four years' imprisonment with non-parole period of two years manifestly inadequate - Whether extending mercy open in all the circumstances.

On 18 August 2003 the respondent, David John Cook, who was then aged 41, pleaded guilty in the County Court of Victoria at Melbourne to a presentment charging him with one count of intentionally causing serious injury contrary to of the . The maximum penalty for the offence is 20 years' imprisonment. Although the respondent admitted a number of prior convictions they are not relevant for present purposes. Following a plea in mitigation made on his behalf, the respondent was sentenced on 19 August 2003 to four years' imprisonment with a non-parole period of 2 years. By Notice of Appeal dated 17 September 2003 the Director appeals against the sentence imposed pursuant to s.567A of the , claiming that the head sentence and the non-parole period are manifestly inadequate. Before us, however, Mr. Coghlan conceded that, given the concession made by the Crown at the hearing of the plea in mitigation, to which reference will be made later, the appeal against the non-parole period cannot succeed unless the appeal against the head sentence is allowed.

I turn first to the circumstances of the offending which were as follows. On 5 March 2003, the respondent, who is a member of a New Zealand chapter of the Outlaws Motor Cycle Club, together with another member of that club, travelled to Melbourne to attend a club meeting. On the following day, a number of them, including the respondent, attended the Railway Hotel in Pakenham. They arrived there at approximately 1.45 p.m. and met members of the Pakenham Outlaws Motorcycle Club. It is apparent that throughout the afternoon the respondent consumed a considerable quantity of rum and it was common ground that he had also had a substantial amount to drink on the previous day and that during the period he had used amphetamines. Later that afternoon, the victim, William Anderson, arrived at the hotel at about 4.00 p.m. after finishing work for the day at his job at a nearby abattoir. He met with some acquaintances and they sat drinking beer. At approximately 6.30 p.m., the respondent, who had earlier been playing pool, picked up a pool cue and walked over to the table where Anderson was seated, approaching him from behind. He proceeded to line up the pool cue with Anderson's head, much like a baseball player preparing to strike a ball, took a couple of steps back and then swung the heavy end of the cue at Anderson's head. Because Anderson turned his head at that very moment, the cue struck him across his left eye and the bridge of his nose. The respondent then dealt Anderson another four blows with the cue, to the front of his face and twice to the back of his head, following which the victim lapsed into unconsciousness.

Following this incident, the respondent left the premises and Anderson was rushed to hospital, all the while falling in and out of consciousness. He remained in hospital for some time and underwent reconstructive surgery in relation to multiple fractures to the facial bones around his left eye, nose and jaw. He also had his left eye surgically removed and an implant was inserted in its place. Other injuries that were sustained included swelling and bruising to his head and facial region, deviation of the nasal bridge to the right and nerve damage to the face. It was also noted by the sentencing judge that the victim may have suffered some degree of acquired brain injury, although this was not expected to be severe. The learned sentencing judge referred to the victim impact statement which revealed that Anderson spent approximately four to five weeks in hospital and suffered constant headaches and facial pain. As a consequence of his injuries Anderson has been unable to resume his employment at the abattoir as a boner, which involves a high level of skill with a knife. Thus, the assault has had the added consequence of the victim suffering a loss of income of approximately $290 per week and being forced to rely on sickness benefits to make ends meet. The judge also noted that although Anderson is expected to be able to return to work in the future this will require additional effort and concentration on his part. His victim impact statement also detailed the emotional trauma he has suffered since the assault, including nightmares, anxiousness, frustration, irritability and depression. He also stated that he is reduced to tears each time he removes his false eye to wash it.

The respondent was apprehended on 12 March 2003 whilst waiting to board a plane back to New Zealand. During the record of interview, he said that he recalled having struck Anderson to the head with the pool cue, but only on one occasion, although he did admit that it was possible that he could have struck him more than once. His initial explanation for the assault was that he had been annoyed by Anderson all day but he later retracted this, stating, "No reason. Can't explain it to myself." In fact, the respondent and the victim had not previously met and had not had any contact with each other in the hotel and there was no suggestion at the hearing of the plea in mitigation that Anderson somehow provoked the respondent to behave as he did.

I will deal later in more detail with his Honour's sentencing remarks but for the present it is sufficient to note that, although he found that the offending was very serious and had devastating effects on the victim and warranted consideration of the principles of denunciation, punishment and deterrence, his Honour considered it was appropriate to impose a merciful sentence in light of the applicable mitigating circumstances and those personal to the respondent. But for such mitigating factors, said the judge, a considerably heavier sentence would have been imposed.[2] Mr. Coghlan, however, submitted, as I have indicated, that the head sentence of four years' imprisonment was plainly too low, being only 20 per cent of the maximum sentence, although he accepted that no precise arithmetic calculation of the appropriate sentence could be made and that the question whether it is manifestly inadequate did not admit of much elaboration. In essence, it was said that the judge failed to recognise sufficiently the very serious nature of the offending conduct and the consequences of it to the victim with the result that he imposed a sentence that was plainly too low.

The principles applicable to the determination of Director's appeals are well known.[3] For present purposes I highlight two of these principles. First, as with any sentencing appeal, this Court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a different manner to that exercised by the sentencing judge.[4] Secondly, where on a Director's appeal this Court decides to re-sentence the offender it should ordinarily give recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than it considers should have been imposed at first instance.[5] The Court may, in any event, exercise its overriding discretion to decline to interfere.[6] In light of those principles and given that no specific error was contended for, the Director's appeal can only succeed if the sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle: Everett v. The Queen[7].

In sentencing the respondent his Honour had to fix a sentence which properly reflected the gravity of the offence and the offending, balancing against such aggravating factors matters in mitigation, including those personal to the respondent, and applying the relevant sentencing principles to the disposition. That his Honour sought to carry out such a balancing exercise is apparent from the sentencing remarks, in particular from the judge's stated recognition that there was a tension between the various factors which he identified as being relevant to sentencing.

There is no doubt that the offence and the offending in this case were very serious. That Parliament has fixed a maximum penalty of 20 years' imprisonment demonstrates the seriousness and concern with which the crime is regarded by the community. The offending itself was grave indeed - it was premeditated, unprovoked, brutal and cowardly and resulted in long term serious physical and psychological injuries to the victim, including the loss of an eye. The injuries have also had a detrimental impact on the victim's work prospects and enjoyment of life. In my view, a fair reading of his Honour's sentencing remarks makes it apparent that he recognised the seriousness of the offending and its attendant consequences, and that, but for the mitigating circumstances which he considered were relevant and to which I will refer shortly, he would have imposed, as he said, "a considerably heavier sentence".

Turning to the respondent's personal circumstances, after leaving school he worked as a labourer and then, at the age of 19, joined the Army. He was discharged when he was aged 24 as a result of multiple injuries that he sustained from a hit and run accident. At the time of sentencing, said his Honour, the respondent was suffering chronic back pain and associated problems as a result of those injuries. Since the accident he has been on accident compensation payments and, more recently, on sickness benefits. Notwithstanding this it seems that, over the years, he has participated and assisted in community work and activities, particularly in the areas of sport and education. The respondent has been married and has children and after he separated from his wife six or seven years ago he had assumed the care of their son who is now aged 15.

His Honour accepted, as did the Crown, that there were a number of factors that mitigated the offending. Thus, the learned judge noted that the respondent had no relevant prior convictions and that his offending conduct was out of character - it was an aberration said his Honour - and that he was bewildered and ashamed by his conduct. His family and friends in New Zealand were also shocked and ashamed of his behaviour. Furthermore, it was recognised by his Honour that the respondent had shown genuine remorse for his offending conduct and an appreciation of the gravity of his crime, having pleaded guilty to it at the first reasonable opportunity. It was noted that the respondent did not seek to lay the blame for his behaviour on anyone else. The learned sentencing judge also took into account that the respondent would experience additional hardship in serving the sentence, given his separation from his son and friends, all of whom reside in New Zealand. Importantly, it is apparent that his Honour also accepted that the respondent had sound, or at least reasonable, prospects of rehabilitation. Many of the mitigating factors were referred to in the report of the psychologist, Mr. Jeffrey Cummins, dated 24 July 2003 that was tendered in evidence on behalf of the respondent. In terms of the applicable sentencing principles his Honour said, in essence, that in light of the mitigating factors, although specific deterrence remained a relevant sentencing consideration, its relevance was significantly reduced. As for general deterrence, the judge considered that it also remained a relevant consideration but added that "the lack of clear motive reduces the significance of this factor." As will become apparent later, the Director contended that this aspect of his Honour's reasoning was flawed and led to the imposition of the unjustifiably low sentence.

In support of his case that the head sentence was "just too low" the Director emphasised the unprovoked and vicious nature of the attack, describing the offence as being at the upper end of the scale of seriousness. He also highlighted the horrific nature of the injuries caused to the victim and contended that the head sentence did not reflect these matters or the need for just punishment and general and specific deterrence. The Director contended that, given the circumstances of the offending, the head sentence could not be justified even if appropriate weight were given to matters of mitigation, including those personal to the respondent. Nothing in the case, said Mr. Coghlan, warranted the extension of mercy to the respondent so as to produce the impugned sentence. The Director also argued that the sentence was the result of flawed reasoning by his Honour. First, it was claimed that his Honour considered that the lack of an explanation for the respondent's behaviour constituted a mitigating factor and that such a view was unduly favourable to the respondent. It was next said that his Honour's reasoning as to the abatement of the significance of deterrence was unjustified. Moreover, it was argued, even if it could be said, as his Honour seems to have accepted, that the offending was partly explicable by the respondent's consumption of alcohol, that was not a mitigating factor; if anything, said the Director, it was an aggravating circumstance. I note that at least some of these conclusions have the hallmarks of an allegation of specific error but, as I have already noted, the grounds of appeal do not contain such an assertion and before us the Director disclaimed that he sought to argue for such error. Be that as it may, I am prepared to assume that in putting those arguments the Director has not transgressed Practice Statement CA1 of 2000.[8]

Turning to the Director's first mentioned attack on his Honour's reasoning, it seems plain enough that, as Mr. Coghlan said, mere lack of explanation for the offending conduct does not amount to a mitigating factor. But I am not persuaded that his Honour treated the lack of explanation as a mitigating factor. When he spoke in his sentencing reasons about the lack of explanation for the respondent's offending the judge generally did so in the context of making the point that his behaviour was out of character - that it was an aberration. Such a circumstance clearly goes to mitigation, as Mr. Coghlan rightly accepted. Thus, for example, when his Honour first mentioned that the respondent's conduct was unexplained he did so in the context of noting that the plea material (which he accepted) suggested "that you are normally quiet and do not have any angry disposition". A little later on the judge made the observation that "There was nothing in your history to suggest a violent disposition. Your behaviour seems to have been a spontaneous act".[9] Later still his Honour characterised the respondent's conduct as an aberration and subsequently noted that the prosecutor had conceded that a greater than normal discrepancy between the head sentence and the minimum sentence was justified given, inter alia, the total lack of explanation for the offence and that it was out of character. Thus, as I have said, the judge's reference to the lack of explanation for the offending conduct was made in the context of, and as if to highlight, the fact that it was, on the material before him, an aberration. In all the circumstances, therefore, I am not persuaded that his Honour erred in this regard as is contended for by the Director.

I am also not satisfied that the judge regarded the respondent's consumption of alcohol or his intoxicated state as a mitigating factor. These matters were not mentioned by his Honour in the context of discussing mitigating circumstances. Rather, the description of the respondent in the sentencing remarks as being "an episodic heavy drinker", the reference to his consumption of rum for two days before the offending and the observation that the only explanation which the respondent could offer for his behaviour was the consumption of alcohol and perhaps amphetamines, in my view, amounted to no more than descriptions of the context in which the offending took place. I mention for completeness that, although the respondent's moral culpability for the offence would not be reduced by his intoxication, given particularly that there was no suggestion that he had a history of lapsing into violent behaviour when he drank, his intoxicated state could not be properly characterised as an aggravating factor.[10]

I now turn to the Director's criticism of his Honour's treatment of the relevance and significance of specific and general deterrence. It should be emphasised, as I have already mentioned, that the judge made it plain that he considered that those sentencing principles were relevant to the exercise of the sentencing discretion. Furthermore, the relevance that his Honour attached to specific deterrence must be viewed in the context of the mitigating circumstances, as found by his Honour, particularly the respondent's sound or reasonable prospects of rehabilitation. Given that context, it seems to me that there is some justification for his Honour's view that, in the circumstances, the relevance of specific deterrence was significantly reduced. But I find it difficult to understand why his Honour considered that "lack of clear motive" reduced the significance of general deterrence. It seems to me that, even absent clear motive for the offence (and it is difficult to think what justifiable motive could have existed in this case), the principle would, nevertheless, continue to be of considerable importance in this case given that its primary rationale is to deter others from engaging in like offending conduct.[11] Violence in the context of physical fights and assaults at or near places like hotels, bars and clubs seems to have become more prevalent in the community in recent times and I consider that it is important that those who propose to engage in such conduct - as the respondent did here - should be made aware through the sentencing process that courts will not treat such conduct lightly, but will, in the appropriate case, impose condign punishment on the offender. The enjoyment and relaxation of those attending such venues should not be marred by such incidents. Thus, it seems to me, the mere fact that the respondent may have lacked a "clear motive" for the attack did not, on its face, reduce the significance of the principle of general deterrence. Having said that, however, it is plain, as I have already mentioned, that his Honour considered that general deterrence remained a relevant sentencing principle which he plainly took into account in constructing the sentence.

Importantly, I consider that his Honour's view as to the relative abatement of the significance of general deterrence (and specific deterrence) did not "drive" the imposition of the very low sentence. That the sentence is very low is, in my view, plain having regard particularly to the gravity of the offence and the offending and the resultant serious long term injuries that were inflicted on the victim. There is much force in Mr. Coghlan's criticism of it and his claim that greater punishment by way of a longer sentence should have been imposed on the respondent. Nevertheless, as I have said, it is not a question of what sentence this Court would have imposed but whether his Honour's sentencing discretion miscarried and in particular, whether the sentence is so low that it demonstrates error of principle on the part of the sentencing judge. A fair reading of his Honour's sentencing remarks makes it apparent that a principal factor that led to the impugned sentence was his

decision that the circumstances warranted extending mercy to the respondent. It is important to bear in mind what King, C.J. said in that regard in Osenkowski[12]:

"It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."

Given the mitigating circumstances referred to earlier, particularly the respondent's prospects of rehabilitation, I think that it was open to the judge to extend mercy to the respondent. But it should also be said that, merely because the circumstances may warrant the extending of mercy to the offender, it does not necessarily follow that the merciful sentence is not unacceptably low. A situation could arise where the exercise of mercy is justified but the consequential sentence is plainly inadequate. In this case, I have wavered on this critical question but in the end I have come to the firm conclusion that the extending of mercy to the respondent did not produce such a result. Although the head sentence is very low, given the principles that operate in relation to Director's appeals and the circumstances of the case, I consider that the sentence does not demonstrate error of principle on the part of the sentencing judge. In any event, I think that the circumstances here are such that the Court should exercise its overriding discretion not to interfere. Thus, I would not set aside the sentence but would dismiss the appeal.

The severity of the consequences suffered by a victim of a criminal act are relevant to sentencing[13], but however catastrophic they be the extent of the injury

and damage flowing from an offence ought not be permitted to swamp all other sentencing considerations. That is especially so where the consequences were unintended: R. v. Boxtel[14]. Mr Holdenson, counsel for the respondent, submitted that the learned sentencing judge in this case applied those principles appropriately and, whilst recognising the need for denunciation of the conduct of the respondent, was justified in giving appropriate weight to mitigatory factors. Whilst the sentence may have been merciful and may not have been the sentence which another judge might have imposed, it was within the range appropriately available, Mr Holdenson submitted, and ought not be disturbed.

The judge in this case gave full and careful reasons for sentence. Although only recently appointed to the bench his Honour had long experience in the criminal law. I recognise that an appellate court ought not allow a Director's appeal merely because the sentence imposed in the exercise of the sentencing judge's discretion is less than that which its members would have imposed in the exercise of their own discretion[15]. However, notwithstanding the care and experience that his Honour brought to bear in determining sentence in this case, and acknowledging that I am in a minority in so concluding, I have concluded that the sentence imposed in this case betrays error in principle and constitutes a sentence which is manifestly inadequate.

Whilst it is appropriate that the unintended consequences of the crime ought not overwhelm other considerations, in particular mitigatory factors which ought weigh in favour of the offender, full weight must nonetheless be given to the effect on the victim of the crime. To do less would be to undervalue one of the most important factors in sentencing. In this case I have concluded that the sentence imposed did not reflect adequately the seriousness of the offence and the need for deterrence and overvalued the factors bought to bear in mitigation.

The learned sentencing judge concluded that although "the offence was an aberration" the need for specific deterrence remained but was "significantly reduced" by virtue of factors which, in context, may be taken to have included remorse, the offence being out of character, and "the total lack of explanation" for the offence. The factor of general deterrence was held to be relevant, but his Honour said that "once again the lack of a clear motive reduces the significance of this factor".

I do not suggest that his Honour ignored the severity of the injuries suffered. In considering the need for deterrence he said that the offending "is very serious and has had devastating consequences". He added that: "It requires denunciation and demands punishment". I respectfully conclude, however, that the sentence imposed substantially undervalued those objectives. The reason why that was so, in my opinion, may be traced to the emphasis placed by counsel for the accused, during submissions, on the apparent inexplicability of the conduct of his client.

In his sentencing remarks his Honour made frequent references to the lack of an explanation for the offence and accepted that it was out of character. The lack of explanation was the sole factor which his Honour identified as reducing the significance of general deterrence. In my opinion, the sentence which was imposed reflects that his Honour accorded too little weight to general deterrence.

In my opinion, the fact that the offence was unexplained could not have reduced the importance of general deterrence in this case, at all. It had to be borne in mind that while the respondent did not intend the particular severe consequences which the victim suffered, he was pleading guilty to intentionally causing serious injury. There was no suggestion that he did not know what he was doing and, given the circumstances of the offence in this case, the fact that he did not intend these particular consequences was a matter incapable, in itself, of mitigating penalty.

The respondent had been seated with friends, then got up from his chair, walked to a whiteboard where a pool cue was located, picked up the cue and made a point of holding it by its thinner end. He then stood behind the unsuspecting victim, lining up the victim's head, as though he was holding a baseball bat prior to a pitch, took a couple of steps back then swung the pool cue into the face of the man, who, apparently having sensed something occurring behind him, turned just as the blow was struck. The respondent then struck the victim four more times to the head and face before departing the hotel, leaving behind his victim lapsing in and out of consciousness.

In my opinion, given those circumstances the fact that (save, possibly, for intoxication and the effect of amphetamine use the previous day[16]) the respondent could offer no explanation for what he admitted was the intentional causing of serious injury to the victim, was quite incapable of diminishing the importance of general deterrence. Indeed, the fact that such conduct was unexplained would also cause little diminution of the relevance of specific deterrence, in my opinion, let alone to the extent of significantly reducing its application, as his Honour said he had assessed it as a sentencing factor. It was, however, the devaluing of general deterrence which in my opinion produced the manifest inadequacy in this sentence.

Unexplained, unprovoked, violence of this character occurring in a hotel towards an innocent and unsuspecting member of the public is conduct which demands considerable weight be given to general deterrence. That these particular horrendous injuries and disabilities befell the victim and not some other serious consequences can produce little, if any, amelioration of sentence. The intentional infliction of such repeated force by such a weapon was bound to produce dire consequences. As it happened the innocent victim has not only lost an eye and suffered other serious disabilities, which may include some degree of acquired brain damage (albeit, as his Honour found, not likely to be severe if, in fact, it was later confirmed) but he had also been unable to return to his work as a boner. The employment consequences for the victim, who was illiterate, were profound. After this assault he was supporting himself and his mother on sickness benefits. In his victim impact statement he said that he was undergoing psychological counselling, was suffering nightmares and headaches, was shaky and sweating, was prone to losing his temper with his mother and then crying in remorse for so doing, and cried every time he removed his prosthetic eye for washing.

I am mindful of the fact that the Director has not advanced a ground of appeal asserting specific error in the approach adopted by his Honour with respect to general and specific deterrence. On a Director's appeal any complaints about sentence must be strictly confined by the grounds advanced. I am satisfied, however, that the ground asserting manifest inadequacy appropriately encompasses complaints as to the undervaluing of general and specific deterrence, which in any event were specifically itemised as particulars of the complaint of manifest inadequacy.

Certainly there were factors which weighed in mitigation of sentence, such factors being detailed in the judgements of Chernov, J.A., and Smith, A.J.A., which I have had the benefit of reading in draft. So much was conceded by the prosecutor, who told his Honour that the Crown took no issue with the submissions made in mitigation, and did not dispute the contention of counsel for the accused that it was an appropriate case for a longer than normal non-parole period to be fixed, in acknowledgment of those mitigatory factors and his prospects of rehabilitation. Having said that, however, and recognising that there must always be a place for a sentencing judge to accord leniency in a case where it instinctively seems appropriate[17], I do not consider that any of the mitigatory factors individually or when taken together were of such weight as to justify the head sentence imposed in this case.

Having concluded that the sentence is manifestly inadequate there remains a discretion not to intervene, having regard, in particular, to the principle of double jeopardy[18]. In determining whether it was appropriate to re-sentence the court would need to consider whether any different sentence would be imposed once due allowance was made for the factor of double jeopardy in addition to all of the mitigatory factors which weigh in favour of the offender. That principle of double jeopardy does not, however, oblige the appellate court, upon intervention, to impose a sentence at or near the bottom of the range open for the offence, but merely to provide what Callaway, J.A in Director of Public Prosecutions v. B.A.B[19]. called "an adequate discount" which reflects the fact that the respondent has suffered the ordeal of having the finality of his sentence overturned and of being re-sentenced.

Whilst paying due regard to those considerations I nonetheless consider that it would be appropriate to intervene and impose a new head sentence in this case. In consequence of the imposition of a new head sentence a new non-parole period ought also be fixed, but given that the Director did not maintain a complaint concerning the relationship of the non-parole period to the head sentence it would be appropriate that the new non-parole period represent a similar proportion to the head sentence as had been the case on the original sentence.

Although I have concluded that the judge erred in this case I agree with the observation made by Smith, A.J.A. that the submissions of the prosecutor, and his failure to address the question directly, may well have implied to his Honour that the Crown would not have contended that a head sentence of about four years imprisonment was outside the appropriate sentencing range. In declining to express a view as to the appropriate head sentence the prosecutor was following a long established practice, and it is to be noted that the judge, no doubt in recognition of the practice, expressly said that he would not require the prosecutor to nominate an appropriate head sentence. Notwithstanding the introduction of Director's appeals

against sentence there remain good reasons in principle for the maintenance of the practice. Whether that remains true for all cases is a question on which I express no concluded view. In the present case, however - where uncertainty was created by the prosecutor's silence - it would have been better for all concerned had the practice not been followed.

My opinion that the appeal should be allowed and a new sentence be imposed is a minority one, and in those circumstances I do not consider it appropriate to say more as to the sentence which I consider would be appropriate to substitute.

I have read in draft the reasons for judgment of Chernov, J.A. and Eames, J.A. They reveal the difficulty of the task facing the sentencing judge and the difficulty of the task facing this Court.

I agree with their conclusion that the learned sentencing judge erred in his analysis of general deterrence by treating the absence of explanation as in some way reducing the significance of general deterrence as a sentencing factor. While he also made reference to the lack of explanation in dealing with specific deterrence, it seems to me that His Honour was seeking to emphasise the fact that the offence was totally out of character and for that reason (among others) the significance of specific deterrence as a factor was reduced significantly. In my view, while specific deterrence was a relevant sentencing factor because of the potential dangers in the respondent's drinking habits, it was, in fact of only slight significance because of the respondent's remorse, guilt and shame which His Honour held to be genuine and because the act was so out of character. In addition, His Honour accepted that the inability to explain was honest and genuine. As a result it may be said that, while the learned sentencing judge attached too little weight to general deterrence, he may have attached too much weight to specific deterrence.

36 It is not enough, however, that an error be shown in the reasoning of the learned sentencing judge. The critical question issue to be determined is whether the sentence was manifestly inadequate.

Plainly the offence and the particular offending were very serious. What occurred was unprovoked and brutal. It has had a devastating effect on the victim. I refer to the relevant facts set out in the reasons of Chernov, J.A. and Eames, J.A. As a result the need for punishment, denunciation and general deterrence loom large. As to specific deterrence I do not accept the appellant's submission, that it was a significant consideration. I refer to my comments above.

At the same time the learned sentencing judge had to consider some significant mitigatory circumstances. His Honour referred to them in some detail.

His Honour accepted that the respondent, who was then aged 42, had no prior history that would suggest a violent disposition. While he had a number of prior convictions for motor vehicle offences there was nothing pointing to a violent disposition in his history. Looking at the evidence before His Honour, it is clear that the respondent has had a very difficult life and experienced periods of extreme stress and difficulty which might have been expected to have resulted in violent action and displays of anger - particularly in someone like the respondent who has for some time been a heavy episodic drinker. In particular, he has had to cope with severe injuries received in a hit and run accident in 1984 which resulted in him having to leave the army. They continue to cause him pain in the back, hip, wrist and knee. About a year after the accident, he had to deal with the double deaths of his father and brother. He married in about 1988. The marriage lasted about nine years in the course of which there were separations. His wife has a bi-polar condition and suffered bouts of depression. She attempted suicide more than once. He tried to help her during their marriage and has continued to do so although they are separated and has also helped her by looking after their children, Karl and Hamish, and her child Andros. During this period, in 1995, his mother died of cancer. Looking at his history, the absence of any evidence of violent behaviour and a history, on the evidence, of responsible and caring behaviour makes the incident in this case even more difficult to understand and completely out of character.

His Honour also accepted that the respondent felt genuine guilt and shame and had shown genuine remorse. In addition, there was the important fact that the respondent had pleaded guilty and so assisted the community by expediting the administration of criminal justice and saving costs. It also avoided, as His Honour put it, "further pain to your victim". In assessing this factor it should be noted that the seriousness of the crime is a relevant consideration in determining the extent of the discount to be given.[20]

His Honour's view was that the fact that what occurred was an aberration, combined with his genuine remorse and his plea of guilty, entitled the respondent to "have it demonstrated that you have received a real reduction in the sentence". Having expressed that view, His Honour went on to consider other matters and referred to the fact of the hardship that would be caused to the respondent by his absence from his son that would result from a term of imprisonment, a separation which in his view would be felt very keenly. He also stated that he took into account the fact that the respondent had been caring for his son for six or seven years. His Honour also had regard to evidence from the respondent's sister of substantial community service. His Honour did not specifically mention, but also had before him evidence about the service he has rendered to his former wife and the three children.

Having regard to all relevant matters, it seems to me that the range of sentence that might be properly imposed was wide and that it cannot be said that the sentence in fact imposed was below the minimum of that range. It was plainly at the low end of the range but could not be said to be manifestly inadequate.

In any event, it appears that the learned sentencing judge, in the end, invoked his discretion to impose what he saw as a merciful sentence. I agree with the analysis of Chernov, J.A. that it was open to the learned sentencing judge to do so.

For these reasons, I would dismiss the appeal. Before concluding, however, I wish to mention an issue in the sentencing process that I believe should be reviewed. I refer to the long standing practice of the prosecution generally not making submissions about the appropriate sentence or range of sentence. I suggest the present case is one where the practice was not helpful. The appellant's counsel mentioned figures. He suggested, for example, five years imprisonment with four years and three months suspended.[21] When it was pointed out by His Honour that that could not be done, discussion ensued on the basis of a three year term of imprisonment. The prosecutor was asked to comment on the sufficiency of a three year term of imprisonment and, after some initial confusion, stated that such a period "would be insufficient". Prosecuting counsel, in accordance with normal practice, said no more. I could well understand the sentencing judge being left with the impression that the prosecution would not quibble with a sentence of four years' imprisonment. Judges would be assisted particularly in cases like the present, by a reasoned submission from the prosecutor on the range of sentences that the Crown regards as properly open.

[1] Most of them related to motor vehicle offences.

[2] It was accepted by the learned sentencing judge that the offending conduct was unrelated to the fact that the respondent was a member of the motor cycle club. Similarly, his Honour said that he disregarded for sentencing purposes the fact that members of his club beat him by way of punishment for his assault on the victim.

[3] See, for example R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522 per Charles, J.A.; Lowndes v. The Queen [1999] HCA 29; (1999) 195 C.L R. 665; DPP v. Whiteside and Dieber [2000] VSCA 142; [2000] 1 V.R. 331 at 335-336 per Winneke, P.; Dinsdale v. The Queen [2000] HCA 54; (2000) 202 C.L.R. 321 at 339-340 per Kirby, J.; and The Queen v. Osenkowski (1982) 30 S.A.S.R. 212 at 212-213 per King, C.J.

[4] See Lowndes at 612-672 per Gleeson, C.J., Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan, JJ.

[5] See, for example, R. v. Allpass (1993) 72 A.Crim.R. 561, Clarke at 522 per Charles, J.A.

[6] See, for example, Director of Public Prosecutions (Cth) v. Trainor [2000] V.S.C.A 249 at [17] per Batt, J.A.

[7] [1994] HCA 49; (1994) 181 C.L.R. 295 at 299 per Brennan, Deane, Dawson and Gaudron, JJ. See also Clarke at 522 per Charles, J.A. and Whiteside and Dieber at 335-336 per Winneke, P.

[8] (2000) 1 V.R. 196. See also R. v. McCorriston [2000] VSCA 200.

[9] I note in passing that, on any view, the respondent's conduct could not be properly described as "spontaneous" given that he deliberately took the cue and walked up to the victim for the purpose of hitting him with it. For reasons which become apparent later, however, I consider that this mischaracterisation of the conduct did not vitiate his Honour's sentencing discretion.

[10] See R. v. Groom [1999] 2 V.R. 159.

[11] See, for example, R. v. Cooke (1955) 72 W.N.(N.S.W.) 132 at 135 per Street, C.J. and R. v. Kane [1974] VicRp 90; [1974] V.R. 759 at 764 per Gowans, Nelson and Anderson, JJ.

[12] At 212-213, a passage which has been cited with approval by this Court - see, for example, R. v. Miceli [1997] VSC 22; [1998] 4 V.R. 588 at 594 per Charles, J.A.

[14] [1994] VicRp 54; [1994] 2 V.R. 98, at 103, per Crockett and Hampel, JJ.

[15] DPP v. Whiteside and Dieber [2000] VSCA 142; (2000) 1 V.R. 331, at 336, per Winneke, P.

[16] A report by consulting psychologist, Mr Jeffrey Cummins, which was tended on the plea, recorded the respondent having said that "I thought about what I did a lot and I think at the time I thought this guy was being smart to me, but then I'd been on and off the rum for two days". He later added, "The thing is when I get pissed I do get a bit paranoid and now I'm even wondering whether I was paranoid because of the Speed - like I think I had one line of Speed the day I arrived here in Melbourne".

[17] The Queen v. Osenkowski (1982) 30 S.A.S.R. 212, at 212-213, per King, C.J.

[18] R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520, at 522, per Charles, J.A.

[19] (2002) VSCA 93, at [3]; see, too, R. v. Lepoidevin [2003] VSCA 61, at [37] per Cummins, A.J.A. In R. v. Clarke, at 522 Charles, J.A., with whom Winneke P. and Hayne, J agreed, said that the principle of double jeopardy would result in the imposition of a sentence which was "somewhat less" than that which the appellate court considered ought to have been imposed at first instance.

[20] R v Hall (1994) 76 A Crim R 454 at 469.

At a glance

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Judgment (69 paragraphs)

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