DPP v Gull [2003] VSCA 123

There being no order for cumulation made by the learned sentencing judge, this created a total effective sentence of 15 months' imprisonment in respect of which a non-parole period of eight months was fixed.

12. The Director of Public Prosecutions has appealed, pursuant to s.567A of the Crimes Act 1958, against the individual sentences imposed upon the respondent, the total effective sentence thus created and the non-parole period fixed by his Honour, asserting that each was manifestly inadequate in the circumstances. More particularly, it has been asserted that the learned sentencing judge has in his disposition of the matter:

(a) failed to reflect the gravity of the offences generally and in the specific case;

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

(c) failed to take into account sufficiently specific deterrence as a sentencing consideration;

(d) attributed too much weight to factors militating in favour of mitigation; and

(e) attributed insufficient weight to the respondent's relevant prior convictions.

The Background

18. On the evening of 24 May 2002, the respondent was present in a club in Vincent Street, Daylesford called the D Bar. At about 10.30 p.m. he approached a young man named Mark Powell who was on the dance floor with a girl. He suddenly punched Powell with a clenched fist to the right eye. This caused the victim too lose his balance and his eye began to bleed. It appears that the victim knew of the respondent but had not had anything to do with him on any prior occasion. It also appears that the attack was related in some undisclosed fashion to the victim's choice of a dancing partner. As a result of this behaviour, which constituted the basis of count 1, the respondent was evicted from the premises.

21. Approximately two hours later, Powell left the club and entered the front seat of a taxi. He was requested by the taxi-driver to extinguish a cigarette that he was smoking at the time, and he opened the door to do so. The respondent, who had been lying in wait, approached him, pulled him from the vehicle and commenced punching him. The blows caused Powell immense pain and he lost his vision momentarily. The taxi-driver observed that his eyeball appeared to be almost hanging out of its socket. The victim then returned to the taxi and was taken to a local hospital from which he was transferred to the Royal Victorian Eye and Ear Hospital for treatment. He suffered a traumatic injury to his right lower lid that required surgical repair. A silicone tube was inserted to repair the tear draining apparatus of his right lower lid.

24. No explanation for this conduct was provided to the police members, who subsequently interviewed the respondent, nor was any advanced on his behalf in the subsequent plea proceeding. He was at the time of these offences 22 years of age and had a substantial and relevant criminal history which included offences of dishonesty and violence. Of particular relevance to the present appeal are the following matters:

1. The respondent had been convicted in the Magistrates' Court at Ballarat on 9 December 1996 on three charges of criminal damage in respect of which nine months' imprisonment on each charge was imposed to be served by way of an intensive correction order.

2. At the same court, on 19 February 1999, he was convicted of unlawful assault and fined $650.

3. On 25 February 1999, and again at the Magistrates' Court at Ballarat, he was convicted and sentenced to six months' imprisonment for recklessly causing serious injury. A subsequent appeal to the County Court was allowed and the sentence was varied to four months' imprisonment to be served by way of an intensive correction order.

4. The respondent next appeared before the Magistrates' Court at Ballarat on 21 July 1999 on charges of recklessly causing serious injury, assault by kicking and unlawful assault. On the charge of recklessly causing serious injury he was sentenced to four months' imprisonment, the service of which was wholly suspended for a period of two years. Fines were imposed for the other offences. He was subsequently brought before the court for breach of that suspended sentence. The breach was found proven but no order was made in respect of it.

5. On 28 November 2001 he was again convicted at the Magistrates' Court at Ballarat of two counts of wilfully damaging property, being drunk in a public place and unlawful assault. He was sentenced on the first two of these charges to an aggregate sentence of three months, the service of which was wholly suspended for a period of two years. An order for compensation was made and on the third charge he was fined $500. The sentence of three months was restored following his conviction of the offences presently under consideration on 2 April 2003.

32. The learned sentencing judge in the present matter could hardly be accused of exaggeration when he remarked to counsel who appeared for the respondent on the plea, "He has had a good run with the courts".[1] Counsel, not surprisingly did not demur.

35. His Honour in his sentencing remarks made, inter alia, the following findings:

"You twice viciously attacked and injured your victim Mark Powell, apparently simply because you disapproved of his choice of dancing partner. He was a stranger and your attack was wholly unprovoked."[2] "The first attack may have been spontaneous and unplanned, but the aggravating aspect includes the premeditation and planning involved in the later and more serious attack."[3] "The victim of the crime has suffered very considerably. Indeed, he is lucky he has not suffered more permanent damage."[4]

Referring to the respondent's prior criminal history, the learned sentencing judge stated:

"The nature of some of those convictions, in particular the convictions for assault and causing injury, is such that they are highly relevant to my task in sentencing you today."[5]

Counsel appearing for the respondent in the court below replied to the judge's inquiry as to his client's state of intoxication:

"He wasn't drunk, no. He had been drinking, but on my instructions he was not drunk."[6]

43. Little was advanced before the judge in mitigation of penalty in this matter. There is no criticism implied in this comment as there appear to be no ameliorating features of the conduct in which the respondent engaged and his record speaks eloquently of his violent disposition. Reliance was placed primarily upon the entry of a plea of guilty and some evidence of the modification of the respondent's conduct following the commission of the offences. Counsel pointed out that he was living at home and that he had been reporting to the police on bail three times a week for approximately a year at that stage. It was said that he was a young man who had a strong and supportive family and he was, at the time of sentencing, employed.

47. The principles to be applied by the Court in the consideration of appeals by the Director of Public Prosecutions are well recognised and require neither elaborate exposition nor ritual recitation at this stage. It is necessary only to draw attention to one or two of the authorities in which they can be found. [7]

50. In support of his contention that the sentences imposed in the present matter were so inadequate as to manifest error, the Director has placed reliance upon a number of matters. They include:

(a) the entirely unprovoked and vicious character of the attack which formed the basis of each of the counts;

(b) the absence of any redeeming features in the offending; and

(c) the virtual absence of any matters which might militate in favour of mitigation of penalty in this case.

56. The attention of the Court was directed to the respondent's criminal history and his repeatedly demonstrated propensity for violence. This was, it was submitted by Mr Coghlan, a situation in which deterrence, both general and specific, assumed substantial significance as sentencing considerations. Whilst the learned sentencing judge said as much in his remarks, they were not reflected in the sentences handed down, the argument proceeded.

59. In response, Mr Priest submitted that, although the respondent had an unfortunate record, he was, at the time of the commission of these offences and at the time of sentencing, still quite young. The sentencing judge was justified in taking his youth into consideration and imposing sentences which sought to promote his prospects of rehabilitation. Further, as counsel pointed out, the respondent had not been previously incarcerated and the sentences, it was said, although very lenient, could be seen to reflect, in an appropriate fashion, the balance between the need for general deterrence, community protection, denunciation and just punishment on the one hand, and the prospects of rehabilitation of the respondent on the other. I find myself unable to accept this view of the matter.

62. The respondent, who, according to his instructions to his counsel, was not drunk at the time, engaged in two serious and unprovoked attacks. He waited for two hours for the opportunity to engage in the second attack which resulted in the infliction of a quite serious injury to his victim. No doubt one of the factors, which led those before whom he had earlier appeared to deal with him in an extremely lenient fashion, was his youth and their concern that he should be afforded the opportunity to avoid imprisonment and to promote his prospects for rehabilitation

65. However, he had clearly not been deterred from engaging in such conduct by the fact that he had faced a court on earlier occasions for acts of violence. He had taken no proper advantage of the opportunities given to him to avoid imprisonment and there was little advanced before the learned sentencing judge to support the suggestion that he may have made any attempt to modify his behaviour. As the learned sentencing judge remarked:

"There is no sign of remorse on your part and little to suggest that the chances of your rehabilitation is good, although I stress I make no finding that you are not remorseful or that you are beyond rehabilitation."[8]

69. Specific deterrence clearly assumed substantial significance as a sentencing consideration in his case.

72. It is also a regrettable fact that incidents of violence in places of resort attended by young people in our community have become the subject of increasing

concern. Attendance at such places should not carry the risk of assault and injury. General deterrence and the protection of the public, accordingly, will often assume importance as matters to be taken into account in cases of the present kind. This will be particularly the case where, as in the case of count 3 here, the violence is serious, unprovoked and premeditated.

76. In my opinion the sentences imposed upon the respondent did not reflect these considerations and were so inadequate in the particular circumstances as to manifest error. Taking into account the principles governing Crown appeals and, in particular, the principle of double jeopardy, I would allow this appeal.

79. I would set aside the sentences imposed in the court below and re-sentence the respondent as follows:

I would direct that three months of the sentence imposed on count 1 be served cumulatively upon the sentence imposed on count 3. This would create a total effective sentence of two years and three months' imprisonment in respect of which I would fix a non-parole period of 18 months.

86. I agree. In this matter it is just not possible to logically equate the sentencing judge's findings of fact and the sentence that he imposed.

90. I agree with the disposition of the appeal proposed by Vincent, J.A. and with His Honour's reasons.

The appeal of the Director of Public Prosecutions is allowed.

The sentence imposed on the respondent in the court below is set aside and in lieu thereof he is sentenced as follows:

The Court directs that three months of the sentence imposed on count 1 be served cumulatively upon that imposed on count 3, making for a total effective sentence of two years and three months.

The Court declares that the period of 64 days has already been served by the respondent as part of the said sentence and directs that the making of this declaration and its contents be entered in the records of the Court.

The Court pleases. Your Honours, we would seek a certificate.

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