DPP v Douglas [2006] VSCA 160

2 On 27 March 2004 one Shamsi telephoned the respondent's wife and left a message on her answering machine. He said that "I have been with you three times", that "I don't want you any more" and that she was "very very slutty and very very shifty" and her body is "very very smelly and very very ugly." The sentencing judge accepted that the allegations were untrue. The respondent's wife heard the message in the presence of her seven-year-old daughter. She told the respondent, who listened to the message himself.

3 The respondent armed himself with a baseball bat and enlisted the aid of one Malloy. Together they went to the house in which Shamsi was living. The couple who owned the house and their four young children were all in the house. Shamsi answered the door. A fight ensued. Shamsi retreated into the house and locked himself in a bedroom where the children were asleep. The respondent and Malloy entered the house, attacked the bedroom door with the baseball bat and assaulted Shamsi. Shamsi was dragged to the front of the house where he was further punched and kicked. Shamsi suffered a laceration to his right eyebrow and upper lip, broken teeth, a fractured rib and bruising to his chest. Shamsi was treated in hospital for five days.

4 The respondent was arraigned in the County Court and pleaded guilty to a presentment containing one count of aggravated burglary, one count of intentionally causing serious injury and one count of damaging property intentionally and without lawful excuse. After a plea the respondent was sentenced to be imprisoned for a term of 15 months on the count of aggravated burglary, for a term of 15 months on the count of intentionally causing serious injury and for a term of three months on

the count of criminal damage. Three months of the sentence on the second count was directed to be served cumulatively upon the sentence on the first count, creating a total effective sentence of 18 months' imprisonment. The sentencing judge wholly suspended the term of imprisonment for a period of 18 months.

5 The appellant has appealed against sentence, contending that the individual sentences and the total effective sentence are manifestly inadequate and the suspension of the whole sentence has resulted in a sentence which is manifestly inadequate. In particulars of that sole ground of appeal the appellant has alleged that the sentencing judge failed to adequately reflect the gravity of the offences, failed to sufficiently take into account specific deterrence and general deterrence, gave too much weight to factors going to mitigation, and gave insufficient weight to maximum penalties applicable to the offences, the respondent's prior convictions, the effect of the respondent's conduct upon the victim and to the different circumstances applicable to the respondent's co-offender.

6 Malloy pleaded guilty to the same charges as those preferred against the respondent. Malloy received a total effective sentence of 12 months' imprisonment, which was wholly suspended for a period of 12 months. The Crown did not appeal against that sentence.

7 The respondent is now 39 years' old. He has 13 prior convictions from three court appearances. Apart from driving offences, the prior convictions, which were for theft and criminal damage, were in 1984.

8 The respondent co-operated with the police. He made full admissions and identified his co-offender, which led to Malloy's arrest. The respondent pleaded guilty at the first available opportunity.

9 The respondent came to Australia from Scotland when he was six months' old. He left school at the end of year 11 and commenced his career as a brick layer. He completed an apprenticeship and at the age of 21 years he began conducting his own businesses. He has worked long hours and has employed as many as 15 workers at one time. The respondent has been married twice. He has two children from his first marriage and three children from his second marriage.

10 In the course of the plea a psychologist reported to the Court that in his opinion the respondent was " ... an uncomplicated, hard working Australian man who places a heavy emphasis on his employment and what it can provide in financial rewards. He places a strong value on his family and works long hours to provide for them." The psychologist said that the offences occurred in a state of considerable emotional distress. He said:

"I have no hesitation in indicating that the psychological upset he observed in his wife when she heard the tape and his own upset were the only basis of the offending."

11 The sentencing judge recognised that offences of aggravated burglary and intentionally causing serious injury ordinarily call for the imposition of a sentence that reflected the need for general and specific deterrence. He said, however, that Shamsi's actions were highly provocative and lessened the respondent's moral culpability. His Honour described the phone call as "scandalous" and "designed to hurt and upset you and your wife and indeed your family." His Honour accepted that the respondent's prognosis was good, and he would " ... continue to be a hard working law abiding person who strongly supports your family and continues to be a good provider for your family."

12 While the provocation offered by Shamsi to the respondent may explain the crimes, it certainly does not excuse them. Taking the time to arm himself and recruit another, with the result that he did not fight Shamsi on equal terms, the respondent, wielding the baseball bat, smashed his way into a room containing sleeping children and severely beat his victim. In my opinion the individual sentences did not appropriately reflect the serious nature of the crimes committed by the respondent or the need for general deterrence.[1] The courts will not tolerate those who take the

law into their own hands or avenge perceived slights by invading houses and severely beating those who have offended them. Despite a good work record, co-operation with the authorities and pleas of guilty, a person who commits crimes such as these would ordinarily be sentenced to a term of imprisonment to be served immediately.[2]

13 Nevertheless, in all the circumstances I do not consider that the sentence warrants interference by this Court. In the end the Director did not submit that the respondent should now be sentenced to a term of imprisonment that was to be served immediately. When regard is had to the restraint in re-sentencing which is required in a Crown appeal[3], considerations of parity with the (unchallenged) sentence imposed on the co-offender and the fact that the respondent has been at liberty, in the exercise of this Court's discretion[4], I would dismiss the appeal.

14 I agree in the disposition of this matter as proposed by Buchanan, J.A. and I do so for the reasons advanced by him in his judgment.

[1] See DPP v. Zullo [2004] VSCA 153 at [9] - [11] per Nettle, J.A.

[2] See The Queen v. Lacey [2006] VSCA 4.

[3] R. v. Allpass (1993) 72 A.Crim.R. 569 at 562 per Gleeson, C.J.; Griffiths v. R. [1989] HCA 39; (1989) 167 C.L.R. 372 at 382 per Deane, J.; R. v. Josefski [2005] VSCA 265 at [4] - [20] per Maxwell, P.

[4] In R. v. Clarke [1986] 2 V.R. 520 at 522, Charles, J.A. acknowledged that an appellate court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process.