DPP v Dalley [2008] VSCA 173

2 On the evening of Monday 7 August 2006, the respondent, then aged 19 years, was drinking with a friend, Mauricio Ledesma, at the respondent's uncle's home in Sunshine. At around midnight, Ledesma and he decided to go for a walk. He had concealed in his trousers a metal shopping trolley handle which he later told police he carried as a precaution against any trouble that they might encounter.[2]

3 A short time later, they were walking in Anderson Road when they came upon the victim, Anyieth Anyieth and his companion Mohammed Kuloba, both of whom were obviously intoxicated, staggering and drinking from a wine cask.

4 As the men approached each other, words were exchanged and the respondent struck Anyieth twice to the head with his fist and then twice in the same area with the shopping trolley handle, knocking him to the ground.

5 When the unfortunate man regained his feet, the respondent struck him once more with the handle again causing him to fall. When he returned to his feet on this occasion, he was dealt another such blow.

6 The respondent then grabbed Ledesma, who was fighting with Kuloba, and they fled the scene.

7 Anyieth was found by police wandering a short distance from the scene, and taken by ambulance to the Royal Melbourne Hospital. On examination, he was found to have suffered: an open wound to the head requiring sutures; a small right subdural haematoma; bilateral cereberal contusions; traumatic subarachnoid haemmorage; a laceration to the left parietal area of the scalp; an extension commuted fracture of the left maxillary antrum and left orbit; and a soft tissue injury to the right knee. He was admitted to the Intensive Care Unit where he was kept in an induced coma until 8 August 2006, remaining in hospital until 15 August 2006 when he was transferred to the Royal Talbot Rehabilitation Centre where he underwent rehabilitation. He has virtually no recollection of the incident.

8 When interviewed by police, the respondent made full admissions in relation to this offending. He stated that he assaulted Anyieth as he was 'standing over him' aggressively, as though he was going to hit him. He admitted striking the victim approximately four times with the shopping trolley handle, accepting that he could not describe his actions as self-defence. He said that he continued to hit Anyieth as he did not want him to get back up and hit him.

9 After hearing a plea in mitigation of penalty, the sentencing judge, on 7 March 2008, imposed upon the respondent a term of 18 months' imprisonment, the service of 12 months of which was suspended for an operational period of two years.

10 The Director appealed against these orders on the ground that the sentence and the order for partial suspension have resulted in a disposition that is manifestly inadequate in the circumstances. In support of this contention, the following particulars were advanced for consideration:

In fixing a term of 18 months imprisonment and by ordering that 12 months of such sentence be suspended for 2 years in respect of count 1 the learned sentencing judge -

(a) failed to adequately reflect the gravity of the offence generally and in this case in particular;

(b) gave insufficient weight to the maximum penalty applicable to this offence;

(c) failed sufficiently to take into account the need for public denunciation of offending of this nature;

(d) failed to take into account or sufficiently to take into account the aspect of general deterrence;

(e) failed to take into account or sufficiently to take into account the aspect of specific deterrence;

(f) gave insufficient weight to factors going to aggravation;

(g) gave insufficient weight to the serious and life long consequences of the offending upon the victim;

(h) failed to sufficiently punish the offender to an extent which is just in all the circumstances; and

(i) gave too much weight to factors going to mitigation.

11 The principles upon which this Court must act in considering a Crown appeal against sentence are set out in the judgment of Charles JA in R v Clarke.[3] They are well recognised and repeatedly applied in this Court and consequently require no recitation here.

12 Recognising that there were a number of factors militating in favour of mitigation of penalty in the respondent's case, including his age at the time of the commission of the offence, the absence of any prior convictions, his plea of guilty, good prospects of rehabilitation and genuine remorse, counsel appearing on behalf of the Director contended that the extreme seriousness of the conduct in which the respondent engaged was simply not reflected in either the term of imprisonment imposed or in the period of immediate incarceration that he was required to serve. In this context, he emphasised the fact that the respondent had armed himself with a weapon with which he was aware he could inflict really serious injury. He then embarked upon a gratuitous and violent attack upon an unarmed and quite intoxicated man for no better reason than his perception that the victim had insulted him. Whilst there was no evidence that Anyieth had sustained some permanent or residual disability, it was apparent that he had suffered very serious head injuries resulting in a significant period of hospitalisation and rehabilitation. Although the respondent was a youthful offender and had to be dealt with as such, counsel submitted, it was necessary for the sentencing judge to regard general deterrence as very important, if not the dominant sentencing consideration in a case of street violence of this type. Even if the sentence of 18 months' imprisonment could be regarded as available in the proper exercise of sentencing discretion, which was not accepted, the suspension of the service of all save six months of it could not, he contended.

13 It is apparent, counsel for the respondent replied, that the sentencing judge was acutely conscious of the seriousness of the conduct in which his client engaged and his level of personal responsibility with respect to it. This was made clear in his sentencing remarks, where he stated (inter alia) -

...[Y]ou knew what damage that blows from this type of weapon could do, and damage you certainly did.

This ... was in my view a savage and merciless beating.

In my view your pre-emptive attack or strike as it was, was built not as a product of fear. You had the weapon. You were teaching the victim a lesson.

Equally there could be no doubt, he continued, that his Honour appreciated that it was necessary to have regard, notwithstanding the youth of the respondent, to both specific and general deterrence in the determination of an appropriate sentence. However, and in accordance with well recognised principles, his Honour took into account, in addition to matters previously mentioned, the respondent's unfortunate family history, the support that he provided to his mother and sisters since his father deserted the family some years ago; and his good work record; His Honour considered that respondent's rehabilitation 'must loom large' as a sentencing consideration and particularly in view of the respondent's age.[4] It was in light of these circumstances, it was said, that the sentencing judge arrived at a disposition which, although seemingly lenient, could be seen to reflect a careful attempt to effect an appropriate synthesis of all the relevant factual circumstances and sentencing factors.

14 It was clear to the Court that the sentencing judge in this case approached his task with considerable care. He addressed directly all relevant matters and principles and endeavoured to attribute appropriate weight to each of them. However, the Court was satisfied that he did fall into error in that the sentence imposed, and particularly the immediate custody directed to be served, were manifestly inadequate in the circumstances as they could not be seen to reflect the seriousness of the respondent's conduct. In this context, it had to be borne in mind that the respondent engaged in a vicious attack upon an inebriated and, for practical purposes, defenceless person with a weapon that he well understood could cause serious injury. He did so for no better reason than he perceived that he had been insulted and in the words of the sentencing judge to '[teach] the victim a lesson.'

15 There is no need to set out any of the statements, with which the judgments of this court are replete, that emphasize the seriousness with which the unlawful resort to violence will be regarded, whether it represents an expression of dominance, frustration, anger (whether justified or not), or as a means of resolving some personal dispute. The courts through the sentences that they impose must leave no doubt in anyone's mind that the resort to physical force in this manner will not be tolerated. Why this must be so requires no explanation and only a moment's thought.

16 Notwithstanding the presence of a number of features that had to be taken into account in mitigation of penalty in this case, the court would have allowed this appeal and increased the sentence were it not for the presence of two considerations. First, the necessity to give proper effect to the principle of double jeopardy and, far more importantly in the particular circumstances of this case, the fact that the respondent was within days of having served the whole of the non-suspended portion of the sentence.

17 The Court has always been hesitant in the case of a Director's appeal to return to custody an individual who has already been released from custody, either on parole or in the case of a partially suspended sentence, because the period of immediate incarceration has been served. Although in this case the respondent had not been released, only a matter of a few days remained. This case emphasises the importance of ensuring that such appeals are dealt with quickly.

[1] Crimes Act 1958, s 16: This offence carries with it a maximum penalty of 20 years' imprisonment.

[2] It was accepted that he had twice been subjected, within the relatively recent past, to violent assaults and may well have experienced some concern that it could happen again.

[3] [1996] VICSC 30; [1996] 2 VR 520, 522. See also DPP v Johnston [2004] VSCA 150; (2004) 10 VR 85; DPP v Bulfin [1998] 4 VR 114; and DPP v Bright [2006] VSCA 147; (2007) 163 A Crim R 538.

[4] R v Mills [1998] 4 VR 224.