DPP v Doncon [2003] VSCA 103

Court of Appeal (Vic)|2003-07-31|Before: WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.

Criminal law - Sentencing - Intentionally causing serious injury - Crown appeal - Whether three-and-a-half years' imprisonment with non-parole period of 18 months manifestly inadequate - Particulars including lack of remorse and permanent and debilitating injuries - Plea of guilty - Respondent otherwise of good character and having made contributions to local community - Double jeopardy - Respondent re-sentenced to five years' imprisonment with non-parole period of two-and-a-half years.

WINNEKE, P.: I will invite Callaway, J.A. to give the first judgment in this appeal.

The respondent, who is now aged 43, pleaded guilty in the County Court at Shepparton to one count of intentionally causing serious injury. The victim was his brother, who is some four years older. The maximum custodial penalty is 20 years' imprisonment. The respondent had no previous convictions or findings of guilt. After hearing a plea for leniency on his behalf the learned judge sentenced him to 3½ years' imprisonment with a non-parole period of 18 months. The Director of Public Prosecutions appeals against that sentence pursuant to s.567A of the Crimes Act 1958.

The sole ground of appeal is that both the head sentence and the non-parole period are manifestly inadequate. The particulars are that his Honour failed adequately to reflect the gravity of the offence of intentionally causing serious injury both generally and in this particular case, failed to take into account general deterrence, gave too much weight to factors going to mitigation and gave insufficient weight both to the permanent and debilitating nature of the injuries inflicted and the respondent's lack of remorse or contrition.

The respondent, his father and brother had worked together in a family dairying business for a little over twenty years. There was a long history of tension between the respondent and the victim. On the morning of 6th March 2002, a young farm hand, Michael Ponting, witnessed a verbal altercation between them at the dairy. Ponting described it as very heated. It culminated in the victim punching the respondent with a closed fist to the head. The respondent left the dairy, went to his nearby home and loaded a shotgun with two cartridges, putting another two in his pocket. He returned to the dairy, approached his brother and shot him at close range with a single cartridge to the left flank. The victim fell to the ground, bleeding profusely. The respondent then laid the gun on a bench, grabbed hold of the victim's shirt and started punching him to the head and shoulder. It is also said that he smacked the victim's head into the bench, which was made of steel. Whatever the precise details, the second phase of the attack resulted in the victim's sustaining a broken jaw and brain damage. The respondent instructed his wife, who had been a nurse, to telephone for an ambulance and assist the victim. He himself drove to his parents' home about five kilometres away and told them what he had done. He then returned to the dairy, helped his wife move the victim and resumed milking the cows. He provided no other assistance.

The victim was taken to the Goulburn Valley Health Hospital and underwent emergency surgery before being transferred to the Monash Medical Centre a few days later. He remained in hospital until 3rd June 2002. On discharge he required a walking brace and a left knee-ankle-foot orthosis, medication and physiotherapy. He has remained in constant pain and is permanently precluded from physical work. There was medical opinion that he may also be at a significant disadvantage in seeking and maintaining sedentary or like work as a result of the brain injury. The family business has been broken up and the victim and his family have felt obliged to move to rented accommodation.

Counsel on the plea placed some reliance on the hardship that would be suffered by other members of the respondent's family if he were incarcerated. The judge rightly held that such hardship was not exceptional within the meaning of the authorities. Reliance was also placed on a psychiatric report by Dr Walton to the effect that the respondent had been suffering from an anxiety/depressive disorder for many years, caused by conflict with his brother, and had required antidepressant medication for about six months after the offence. His Honour rightly held that that was a far cry from cases like R. v. Tsiaras,[1] to which counsel had referred. His Honour accepted, however, that the role of specific deterrence in the sentencing disposition was small, because of the unlikelihood of the respondent's re-offending.

The mitigatory factors that were accepted were the respondent's plea of guilty, his good character to the age of 41 when the offence was committed and the contribution he had made to his community, especially as a school and shire councillor. His character and contribution were attested by 45 written references, of which twelve were tendered, and the testimony of five witnesses, three of whom had known the respondent for well in excess of thirty years. The judge found the respondent to be a hard working, honest man and a loving and caring husband and father who had not otherwise exhibited aggression or violence. His Honour said, nevertheless, that this was "a serious example of a serious offence" and that he had looked in vain in the record of interview for any expression of contrition or remorse. He observed, again correctly, that sentences handed down in other cases, to some of which he had been referred on the plea, were of limited assistance, as every case is dependent on its own facts and circumstances, and that the mitigatory factors had to be reflected in the head sentence and not only in the non-parole period.

Mr Morgan-Payler began his submissions by reminding us that in 1997 Parliament increased the maximum custodial penalty for this offence from 12½ years' to 20 years' imprisonment. On any view, it is a serious offence in the criminal calendar. Moreover, so the submission proceeded, this was a serious instance of the offence. It was not a spontaneous act. The respondent aimed the shotgun at the victim's stomach. He had considered merely threatening his brother but had rejected that course. His brother was unarmed and shot at close range. Not content with inflicting a life-threatening wound, the respondent continued the attack in the manner that I have described. Moreover, counsel emphasised, the consequences of the offence have been devastating for the victim. He suffered major nerve damage to his legs, hips, and back, permanent damage to his left leg amounting to complete loss of movement, chronic nerve pain, a fractured jaw, brain injury, facial numbness and memory loss. He is unable to walk without the brace, a hip support and crutches. He requires assistance for showering and dressing. He needs to carry a urine bottle because of limited mobility. He has lost his occupation and lost his home. In conclusion, it was said that the judge was right in detecting no expression of contrition or remorse and correct in attributing only limited weight to the respondent's depressive disorder. The non-parole period was, it was said, so low as to undermine the objectives of the head sentence.[2]

Mr Ross emphasised, correctly, the constraints that attend a Crown appeal against sentence and the caution that this Court should exhibit before it disturbs a sentence imposed by a very experienced judge. That was particularly so, he submitted, where the sole ground of appeal is that his Honour's instinctive synthesis resulted in a disposition that was manifestly inadequate. On the contrary, counsel submitted, the disposition was justified and the leniency explained by a number of factors. First, there was the respondent's good character. He was a man who had reached his middle years without conviction and, moreover, was well thought of in his community. That was to be taken into account in his favour and the judge had done so. Secondly, there was the element of provocation. Mr Ross relied on the altercation on the morning of 6th March 2002 culminating in a blow to the head not only in its own right but as the last act in a long history of verbal nettling by the respondent. Nor was the provocation restricted to verbal abuse. In his record of interview the respondent had said that he and his brother had had "physical clashes ... a fair few times". The judge had taken the history into account, but, counsel submitted, his Honour should have gone further. He should have treated this as a loss of control, not, as he did, as an instance of "callous, cold-blooded, cowardly and vindictive" conduct. As the respondent had also said in his record of interview, "something snapped". Because this submission played such a large part in Mr Ross's argument, I pause to say something about it before I resume the narrative.

The plea was conducted on the basis that there was a long history of animosity between the respondent and his brother. Although there was surprisingly little information by way of detail, it may be accepted on the balance of probabilities that the altercation and blow in the dairy, witnessed by Ponting, were the last act in a long history. Although the respondent went home, loaded a weapon, considered an alternative course of action and returned to the dairy and committed the offence, there was a sense in which the attack was a sudden reaction to events. So much may be accepted and taken into account in mitigation, but that is all. It did not mean, as counsel submitted, that this offence was at the bottom of the scale. Even in cases of homicide where the offence is reduced to manslaughter by provocation, the killing is usually regarded as being in the worst category of manslaughter. In the case of assaults falling short of homicide, sight must not be lost of the fact that one of the purposes of general deterrence in the sentencing process is to deter revenge.

10 The third factor on which Mr Ross relied in his defence of the sentence was the respondent's plea of guilty. He had cooperated with the police in his record of interview and pleaded guilty at the committal. It may readily be accepted that that was a significant matter which was taken into account by the judge and should be taken into account by this Court, both in deciding the appeal and in any re-sentencing. Fourthly, counsel submitted, there was evidence of remorse. It was said that his Honour should have found a measure of remorse, based mainly on the plea of guilty and the arrangements that the respondent made through his wife for some care to be extended to the victim and an ambulance to be called. I should say at once that I can detect no error in the learned judge's approach to this matter. It is significant that remorse was not relied on by counsel at the plea and that none of the witnesses who were called testified to remorse. As I have already said, after helping his wife to move the victim, the respondent went back to his dairying duties. The sole expression of concern for his brother is to be found in one sentence of the history included by Dr Walton in a second report. In conclusion, counsel referred to the respondent's depressive illness and to the issue of family hardship. I did not understand the judge's treatment of those matters to be challenged. As I have already said, in my opinion his Honour dealt with them correctly.

Manifest inadequacy, like manifest excess, admits of no elaborate analysis. That is not to say, as Mr Ross suggested, that it cannot be particularised. The difficulty with this sentence is that it does not match up with the judge's characterisation of the attack as a serious example of a serious offence.[3] That is so despite the history of provocative conduct to the extent that that may be accepted. This was a vicious assault that has resulted in permanent and debilitating injuries. The absence of remorse, or significant remorse, may be explained in part by the antagonism between the respondent and his brother, but it is not justified by that antagonism. The injuries are too serious. Notwithstanding his previous good character and the weight to which that is entitled, the respondent lacks the kind of mitigatory factor that might have justified such a lenient disposition. There is, I think, such error of principle as to warrant appellate intervention. I stress the last point because I accept Mr Ross's submission that a person who has stood for sentence should be exposed to double jeopardy at the instance of the Crown only in rare and exceptional cases. There is abundant authority to that effect.[4] Moreover, when a respondent is re-sentenced, the leniency extended below should not be forgotten if there was a reason for it. In the present case a very low non-parole period was fixed. In my respectful opinion it was too low, but I have borne it in mind in considering the non-parole period that should be substituted.

I would allow the appeal and re-sentence the respondent to 5 years' imprisonment with a non-parole period of 2½ years.

One of the functions to be performed by this Court on a Director's appeal is to ensure that proper sentencing standards are maintained in this State. This is a function not easy to fulfil when the Court is required to exercise its sentencing discretion in the event of allowing an appeal subject to the restraints flowing from the principles of double jeopardy.

I agree with Callaway, J.A. that the appeal should be allowed and that the sentence which he proposes be substituted for the one imposed by the judge. Furthermore, I agree with the reasons given by Callaway, J.A. for substituting that sentence. The respondent should, nevertheless, regard himself as fortunate. Notwithstanding his plea of guilty, this is, in my view, the lowest sentence which could justifiably be imposed for an offence as serious as this one was.

The formal order of the Court is that the appeal is allowed. The sentence imposed below is set aside. In substitution for it this Court imposes a sentence of 5 years and fixes a non-parole period of 2½ years.

The Court declares in accordance with s.18 of the Sentencing Act that the respondent has already served 178 days pursuant to the sentence which we have imposed and we order that that declaration and its details be entered in the records of this Court.

The Court will grant a certificate to the respondent pursuant to the Appeal Costs Act.

[2] Compare R. v. VZ [1998] VSCA 32 at [15].

[3] Compare R. v. Laffey [1998] 1 V.R. 155, especially at 162, per Winneke, P.

[4] See, for example, R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522, Director of Public Prosecutions v. Raddino [2002] VSCA 66; (2002) 128 A.Crim.R. 437 at [14] and the cases there cited.

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