DPP v Giffen [2006] VSCA 219

"In imposing a head sentence of 30 months' imprisonment and fixing a non-parole period of 16 months' imprisonment, the learned sentencing judge:

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

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

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

(d) gave too much weight to factors going to mitigation;

(e) gave insufficient weight to the Respondent's relevant prior criminal history;

(f) gave insufficient weight to the applicable maximum penalty for this offence; and

(g) gave insufficient weight to the effect of the offending upon the victim in particular, the permanent and debilitating injuries suffered by the victim."

8 Before turning to consider this single ground of appeal, it is convenient to outline the facts constituting the offence upon which the respondent was sentenced.

9 On 12 November 2004, the respondent attended at the Dorset Gardens Hotel in Croydon arriving in the early afternoon. Evidence from one of the witnesses is of observing him at some time after 4.00 p.m. He described the respondent as being unhappy and verbally angry with his ex partner over money and a failed business venture. Another witness at the hotel stated that the respondent did not appear to be drunk or intoxicated when he spoke to him. Both witnesses describe the respondent as giving out business cards and indicating that he was commencing his own business as a concreter. As to the amount of alcohol the respondent consumed on that afternoon, the respondent later told investigating police that he had one jug and one pot of beer.

10 However, it is reasonable to assume (and the sentencing judge found) that the respondent was affected by alcohol when he left the Sports Bar area of the hotel at about 6.00 p.m. At that time the victim of the assault, Ian Hay, was standing outside the Sports Bar entrance. The respondent verbally abused him and accused him of stealing from him at some time in the past. (I should interpolate that this allegation has always been denied by Mr Hay.) The respondent then walked to his utility, which was situated nearby in the hotel car park, checked its contents and then walked back towards Mr Hay. Without any warning and without any provocation, the respondent punched Mr Hay a number of times to the head. He then rammed the victim's head a number of times against the protruding edge of a metal framed grill on the wall adjacent to the hotel entrance doors. At this stage the respondent had his victim in a headlock or around the torso. In any event he appeared to have full control over Mr Hay's body. The respondent then let go of the victim who collapsed backwards striking his head heavily on the concrete pavement. The sound of this contact was described by one witness as loud and sickening. Examination of the film from the hotel surveillance camera suggests that, by this stage, Mr Hay was quite helpless. Nonetheless, the respondent told him to get up and then kicked him a number of times to the upper body. Leaving Mr Hay lying on the concrete pavement, the respondent walked to his car and drove off. The registration number of that vehicle was obtained by witnesses and, early the next morning, the respondent was arrested at his home address and taken to Croydon Police Station. He made a largely "no comment" record of interview although he did mention the alcohol consumption to which I have referred.

11 Mr Hay's account of the events on this afternoon is contained in his police statement. He speaks of being confronted in the hotel on the afternoon of 12 November by the respondent who called him "a mongrel thief". He left the hotel soon after that and was waiting outside for a lift home. His next recollection is of waking up in hospital.

12 During the plea hearing, the extent of Mr Hay's injuries were detailed. After regaining consciousness, Mr Hay's condition rapidly deteriorated. An assessment at Maroondah Hospital, to where he had been conveyed, indicated that he had sustained severe internal head injuries. He was immediately transferred to the Austin Hospital where he underwent emergency surgery to control extensive bleeding to the left side of the brain. Part of Mr Hay's skull was removed to accommodate swelling in the brain and this was not replaced until approximately three months later. Mr Hay remained in a critical condition and was ventilated on life support at the Austin Intensive Care Unit for approximately seven days. He later developed regurgitative pneumonia as a complication to the brain injury. On 25 November 2004, Mr Hay was transferred to the Royal Talbot Rehabilitation Hospital.

13 Initially, Mr Hay was paralysed down the right side of his body but that condition has been subjected to some improvement. Additionally, he has suffered post-traumatic amnesia having no recollection of the assault with the events leading up to it. Some three months after the assault he underwent follow-up surgery to replace the skull section and, on this account, remained in hospital a further five days. Acquired brain injury rehabilitation has been required with Mr Hay needing to re-learn much of the activities involved in daily life.

14 In assessing the seriousness of the injuries sustained by Mr Hay, it is pertinent to refer to portions of his Victim Impact Statement of 23 August 2005. In it he remarked:

"My reading and writing is now ruined. My short term memory is almost non-existent.

Physically I am ruined. I haven't worked since the incident. I am weak down my right side and I have no stamina at all. I used to be able to work all day flat out five-six days a week. Now I can't work for more than an hour straight without being exhausted.

Emotionally I have been devastated by this. I have nightmares regularly. My brother often has come into my room and asked me what I am crying about. At night time the noises outside petrify me."

15 The sentencing judge also had before him a somewhat cursory medical report from a Dr Matthew Taine. The report followed an examination of Mr Hay in February 2005. It included the following:

"As a result of this injury he had undergone brain surgery and had a partial paralysis affecting the left [sic] of his body. ... Progress is slow despite weekly physiotherapy, his mobility is gradually improving.

Mr Hay has been unable to return to work since the injury - he was previously employed as a labourer in a flower farm. He continues to complain of headaches, and has little energy and low endurance, requiring to rest frequently after physical exertion. He is unable to walk long distances without difficulty, and his concentration is impaired. ... I am of the opinion that there will be a degree of permanent impairment both physically and psychologically."

16 It could not be argued that the sentencing judge did not take the extent of the victim's injuries and their aftermath into account in his sentencing remarks.[1]

17 In his sentencing remarks the judge noted a number of factors personal to the respondent. These included that he was 32 years of age and lived with his partner, Chelsea Haworth, and two children. He had lived in Scotland until the age of 22 where he had attended school until the age of 16. He had been an excellent rugby player until an injury ended his aspirations of representing Scotland. The judge noted that the respondent had had a number of occupations but had worked mainly as a fisherman. Similarly, in Australia he had worked in a variety of jobs and was currently working as a self-employed concreter.

18 The sentencing judge also heard from Ms Haworth who deposed to the respondent being horrified at what he had done and being very sorry. She also said that the respondent was disgusted about his behaviour. Additionally, Ms Haworth stated that the respondent definitely had a problem with alcohol. It manifested itself in him getting "highly strung and easily provoked".

19 A psychological report prepared by Mr Ian Joblin was also before the Court. In it Mr Joblin expressed the opinion that the respondent had a serious problem with alcohol. According to Mr Joblin, the respondent acknowledged that he had had difficulties in relationships because of his drinking. He was aware that if he drank certain spirits, he developed an extremely low threshold of tolerance and could become aggressive. The respondent also reported to Mr Joblin that his previous convictions in Scotland related to interaction with the police or street offences on occasions when he had been drinking.

20 Mr Joblin also stated that the respondent appeared to be of good intellect and that he was not psychotic. In Mr Joblin's view the respondent was "remorseful and extremely regretful". Finally, Mr Joblin expressed the opinion that the respondent would need a reasonably lengthy period of supervision following any sentence and that should include supervision for alcohol abuse in particular.

21 All these matters were noted by the trial judge including that the respondent was remorseful. Whilst the respondent had certainly expressed such remorse, the extent of it may be questioned given his account to Mr Joblin about the circumstances of the offence. It was as follows:

"When Mr Giffen saw Mr Hay near his ute and given his previous experience of Mr Hay, Mr Giffen indicated to him that he hoped that he had not taken any of his equipment from the ute. Mr Giffen acknowledged that he made some comments to Mr Hay about that. He believed that Mr Hay retorted. Mr Giffen considered that provoking and he acknowledged that he hit Mr Hay. [My emphasis]

Mr Giffen reported that when he hit him, his ambition was simply to indicate his displeasure to Mr Hay and not to result in the subsequent issue. Mr Giffen acknowledged that Mr Hay, in being somewhat intoxicated, would have been unsteady on his feet and thus, when he hit him, Mr Hay fell over. In doing so he hit his head."

This sanitised version of events is quite at odds with the objective evidence and raises the question as to the level of responsibility the respondent may be regarded as having taken for his actions. The account given to Mr Joblin tends to put the blame on the victim and the lack of insight goes to the quality of remorse. Indeed, the sentencing judge was alive to this issue and noted:[2]

"In my view this account flies in the face of the evidence and is an attempt by you to minimise your attack on Mr Hay. I am satisfied beyond reasonable doubt that you were the aggressor and engaged in a vicious attack on Mr Hay."

22 Additionally, the sentencing judge had before him a number of character references, the gist of which was that the writers had never known the respondent to be violent and that he was remorseful.

23 In the course of his sentencing reasons, his Honour listed factors which he regarded as being in the respondent's favour as well as factors he regarded as aggravating the offence. He also acknowledged the need for specific and general deterrence. Ultimately, these factors were gathered together by his Honour.[3]

"To my mind the following matters are significant:

(i) Your plea of guilty;

(ii) Your stable family and support from your partner;

(iii) Your support from the wider community;

(iv) That you have good prospects for rehabilitation;

(v) That you do not have any convictions since arriving in Australia;

(vi) That you have a good employment record;

(vii) That this incident was fuelled by your alcohol consumption;

(viii) That you were aware prior to this incident of the effect of alcohol on you and that it makes you aggressive;

(ix) That the victim was no physical threat to you;

(x) That this was a vicious attack with the intention of causing serious injury;

(xi) That the attack was not premeditated or random;

(xii) That such attacks in and around licensed premises are prevalent;

(xiii) That specific deterrence is appropriate to consider;

(xiv) That general deterrence is a significant matter for the Court to take into account;

(xv) That you will benefit by supervision for a substantial period by the parole board, in particular to ensure that you continue professional treatment for your alcohol abuse;

(xvi) That the serious nature of the injury suffered by the victim and the impact on him of your criminal conduct."

24 The essence of the submission made on behalf of the appellant was that this was a particularly bad example of a serious offence. In the circumstances a penalty which represented 12% of the maximum for such an offence was sufficiently outside the appropriate range as to demonstrate sentencing error. In particular, this attack was brutal and sustained. It continued after the victim was obviously lying defenceless on the ground. It occasioned injuries that were permanent and severe. It was essentially unprovoked. It had its genesis in the excessive consumption of alcohol which, to the knowledge of the respondent, created in him a propensity for violence. Additionally, this attack attracted the need for both specific and general deterrence.

25 On behalf of the respondent it was argued that the judge's sentencing remarks demonstrated that he had taken into account all of the relevant considerations and none that were irrelevant. He had carefully considered both the submissions of defence counsel[4] and the Crown[5]. Moreover, the sentencing judge had dealt with all of the factors required to be considered pursuant to s.5 of the Act.

26 It was acknowledged that the sentence was very lenient and at the bottom of the range. It was put, however, that more than mere inadequacy was required. It was a sentence that needed to shock the public conscience.

27 Counsel also referred to the principles applicable to Crown appeals as set out, for example, in such cases as R. v. Clarke[6]; D.P.P. v. Leach[7]; and D.P.P. v. Josefski[8]. It is not necessary to yet again set out such well known statements of general principle. I bear them in mind.

28 In the course of argument, reference was made to a number of Director's appeals in which the sentences imposed for intentionally causing serious injury had been increased. Each of these cases is merely illustrative and each necessarily turns on its own facts. Such cases, however, enunciate the current conceptual approach to the offence of causing serious injury intentionally. For example, in D.P.P. v. Zullo[9] this offence was placed in context by Nettle, J.A. who remarked:

"It is said that the longest sentence ever imposed in this State for an offence of causing serious injury intentionally is ten years' imprisonment, and it has been said that it is only the most serious cases of the offence that have attracted a sentence within what is described as 'the very top of the range' of between six and ten years. [Citation omitted.] In the past that may have been so. ... But it is no longer the case. The so-called 'very top of the range' of six to ten years was established when the maximum penalty for causing serious injury intentionally was only twelve years and six months' imprisonment. The maximum penalty is now almost double that amount. Now the 'very top of the range' is upwards of fifteen years.

It has also been said that the sentence to be imposed for an offence of causing serious injury intentionally should be considered in the context of what might be appropriate for a case of manslaughter. [Citation omitted.] With respect, I would agree with that sort of approach, provided all that is meant is that a particular case of causing serious injury intentionally may be so grave and productive of consequences so serious as to warrant a penalty similar to the penalty for manslaughter. But I do not accept that a sentence for causing serious injury intentionally may not ever exceed the sorts of sentences that are imposed for less serious forms of manslaughter. A head sentence of six or so years may be imposed for some forms of manslaughter at the lower end of the range, although of course much will depend upon the age and antecedents of the offender and the prospects of rehabilitation. But where a sentence of that order is given for manslaughter, the offence is more often than not a case of accidental homicide. It does not often involve an intention to inflict serious injury. Contrastingly, an intention to cause serious injury is of the essence of the offence of causing serious injury intentionally and in that respect the latter is a graver offence than unintentional homicide. Depending upon the circumstances, I consider that a sentence for a serious case of causing serious injury intentionally may well exceed a sentence for manslaughter at the lower end of the scale."[10]

29 Further, in considering the adequacy of the sentence, s.5(2)(da) of the Act requires the sentencing judge to have regard to "the personal circumstances of the victim of the offence" and s.5(2)(db) to have regard to "any injury, loss or damage resulting directly from the offence". This was a particularly apposite consideration in this case.

30 It has been remarked many times that manifest inadequacy, like manifest excess is not a concept capable of attracting lengthy argument. Moreover, in considering this Director's appeal, I am also mindful of the comments of Callaway, J.A. in R. v. Bernath[11]:

"A ground of appeal may complain that a sentencing judge failed to give due weight or, alternatively, gave excessive weight to a relevant factor, but that stands in contrast with a ground that asserts that the judge disregarded such a factor altogether or took any relevant factor into consideration. Where the complaint is made in terms of weight, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error ..."

31 It is not suggested that the sentencing judge did not advert to all of the relevant sentencing factors. However, in the circumstances of this case, I have no doubt that the sentence imposed was so inadequate as to reflect an error of principle.

32 This was a vicious and unprovoked attack. It continued when the victim of it was helpless on the ground. It was, as the plea indicates, perpetrated with the specific intention of causing serious injury, and it produced injuries horrific in both their immediate effect and their permanent consequences for the victim. The fact that the respondent was intoxicated is, on this occasion, an aggravating factor, given his awareness of the effect of alcohol upon his propensity for violence. Specific deterrence thus loomed large in the sentencing mix. The need to deter attacks of this nature in and around licensed premises was also important.

33 Even allowing for the respondent's plea of guilty, any degree of remorse and his prospects of rehabilitation, the nature of this offence cried out for condign punishment. Indeed, I agree entirely with the submission on behalf of the appellant that this sentence would, in fact, "shock the public conscience". In summary, I am persuaded by the arguments advanced by the appellant.

34 Accordingly, I would allow this appeal. The sentence I propose would be greater save for the application of the principle of double jeopardy.

35 I would propose that the respondent be re-sentenced to a term of imprisonment of 41/2 years. In the circumstances the increase in the head sentence should, in my view, also result in an increase in the non-parole period, and I would fix a period of 21/2 years before eligibility for parole.

- - -

[1] See reasons for sentence paras. [5], [6],[ 7] and [17].

[2] Reasons for sentence para. [11]

[3] Para. [20]

[4] Para. [13]

[5] Para. [14]

[6] [1996] VICSC 30; [1996] 2 V.R. 520

[7] [2003] VSCA 96; (2003) 139 A.Crim.R. 64

[8] [2005] VSCA 265; (2005) 158 A.Crim.R. 185

[9] [2004] VSCA 153

[10] Paras. [10] and [11]

[11] [1997] 1 V.R. 271 at 277