DPP v Higgs [2010] VSCA 154

1 The comprehensive reasons of Redlich JA explain both why the sentence imposed was manifestly inadequate and why the Director's appeal was nevertheless dismissed. It was for those reasons that I joined in the order of the Court.

2 The respondent pleaded guilty in the County Court to a presentment containing five counts. All of the offences were committed on the evening of 24 April 2008. He was sentenced as follows:

Count 1 - Recklessly cause serious injury - 2 years imprisonment (maximum penalty for the offence - 15 years imprisonment)

Count 2 - Recklessly cause serious injury - 2 years imprisonment

Count 3 - Criminal Damage - 3 months imprisonment (maximum penalty for the offence - 10 years imprisonment)

Count 4 - Aggravated burglary - 2 years imprisonment (maximum penalty for the offence - 25 years imprisonment)

Count 5 - Criminal Damage - 3 months imprisonment.

Six months of the sentences imposed upon counts 2 and 4 were cumulated upon the sentence imposed upon count 1. The consequence was a total effective sentence of three years' imprisonment. The learned sentencing judge then directed that the sentence be wholly suspended for an operational period of three years.

3 On 20 May 2010 this court dismissed the Director's appeal. These are my reasons for doing so.

4 The Director appealed on the single ground of manifest inadequacy, alleging

The individual sentences imposed in respect of all counts, the total effective sentence and the decision to wholly suspend the sentence are all manifestly inadequate in the circumstances.

5 During the appeal senior counsel for the Crown with his customary fairness made a number of important concessions. He acknowledged that were it not for the order suspending the sentences, the Director would not have appealed. While it was

not contended that a sentence of three years would have justified appellate intervention it was submitted that the offences were so serious that to wholly suspend the sentence constituted error. In the event that the respondent were to be re-sentenced, he conceded that a portion of the sentence that we would impose should be suspended.

6 The facts and circumstances of the offending were comprehensively set out in the reasons of the learned sentencing judge. None are in issue on this appeal. It is convenient to summarise those facts by reference to the judge's reasons.

7 Each of the offences occurred whilst the appellant was acting in concert with a number of other young males. The confrontation had its genesis in an altercation between the respondent and one David Needham. Immediately following that confrontation, Needham rang his friend Jay Morrow to tell him that he had been assaulted by respondent. At that time, Morrow was at his Bayswater bungalow with his friends Michael Spithill, Glen Ive and Brock Price.

8 Morrow then rang the respondent and a heated argument transpired during which the respondent threatened that he was going to 'run through' the bungalow. Morrow asked the respondent not to come and told the respondent that they should 'deal with it' elsewhere. Needham then arrived at Morrow's house and they drove to a nearby park. At some point the respondent arrived with some other men in a Holden. There was a verbal exchange between the two groups. Ultimately, Needham and Morrow returned to Morrow's bungalow. At that stage Morrow telephoned Spithill, and told him to come outside with Ive and Price.

9 Quite separately from these events, three 16 year old men had arrived in the general area. They were Chase Macney, Rhys Abela and Wesley Mumford. They recognised Morrow as they knew one of his younger brothers. Morrow told them something of the confrontation with the respondent. They then left the area. Morrow and his friends returned to the bungalow. By this stage Needham had left.

10 A few minutes later, around 11 pm, the respondent returned to Morrow's property accompanied by three co-offenders. Each were armed with baseball or cricket bats as weapons. At this stage the three 16 year olds had innocently returned to the area. Two of the boys (Abela and Mumford) recognised the danger and ran into Morrow's home to seek refuge. They remained in one of the bedrooms, where Mumford sat against the door for protection.

11 This left Mackney who was confronted by the respondent and the co-offenders. The subsequent events, with some interpolation by the trial judge, are as set out in his Honour's reasons:

As Abela and Mumford ran to the bungalow, Chase Mackney was confronted by you and the co-offenders and realised that there were weapons. One of your group tried to hit him but he grabbed that person, Mr Mackney was alone and you were in company. One of your group hit him, causing him to fall to the ground. He lay on his back with his eyes closed. He tried to protect himself by holding his arms up. As he did this, he was repeatedly kicked, punched, stomped to the head and body by you and your mates. He did not stand a chance. He was never a threat. To say this was cowardly is an understatement [Count 1].

At this stage Jay Morrow's father, Darren, was upstairs in the house. He heard sounds he described as 'banging and crashing' and went downstairs. He was very concerned, understandably, because his young son Jackson, who was 12, was in his care. Through a glass door he saw you and your mates assaulting Chase Mackney. He saw the kicking and the hitting. He said he was afraid you would kill Chase Mackney, so he went out of the house to try and assist the young lad and he was assaulted. You swung at him with a cricket bat. He tried to protect himself by raising his left arm but was struck on his elbow. That broke his arm. Mr Morrow fell to the ground when one or more of the co-offenders kicked him whilst he was down to the right side and hit him with a bat to the forehead. He screamed, saying, 'Stop, I've got kids inside'. Again, the attack was in company of a defenceless man and, again, extremely cowardly [Count 2]...

12 Of the remaining counts, count 3 (criminal damage) related to the respondent and a co-offender smashing several windows of Mr Morrow's house and a television receiver. Internal walls and doors of the garage were also damaged during what the learned sentencing judge described as a 'rampage'.

13 Count 4 (aggravated burglary) occurred as the respondent and co-offenders entered the bungalow through a door which was unlocked towards the rear of the property. The respondent was armed with the cricket bat at this time and was aware that the bungalow was occupied. As those persons hid in various rooms, the appellant and his co-offenders yelled threats such as 'you're all fucked, come here we're going to bash you'. The respondent kicked and banged on doors whilst searching for the occupants, demanding that the doors be opened.

14 Count 5 is another count of criminal damage. The respondent and his co-offenders smashed a television receiver and a fan inside the bungalow. The offenders left the premises but returned minutes later as Darren Morrow was lowering the garage door. They kicked at and damaged the door and re-entered the yard chasing some of the occupants of the bungalow who had come outside. Shortly after the respondent and the co-offenders left the area when the fathers of Mackney and Abela arrived.

15 Both Mackney and Morrow were seriously injured as a result of these assaults. Mackney was hospitalised for two and a half days. He sustained a fractured skull; a fractured left arm requiring surgery; a laceration across the forehead requiring 12 stitches; bruising and swelling to the right eye and bruising to the chest. Darren Morrow was hospitalised for three days. He sustained a fractured left elbow requiring surgery; severe swelling and deformity over the left elbow; a laceration to the left forearm; bruising to the left buttock and swelling to the forehead.

16 The respondent was known to Jay Morrow. The police thus became aware of the respondent's involvement. The next day the respondent voluntarily attended the Mooroolbark Police Station with his father. He made admissions to assaulting someone with a bat, but after that provided a 'no comment' interview. He has refused to assist the police in relation to the identity of the co-offenders.

17 The respondent was born on 28 March 1987. He appeared before the sentencing court as a youthful offender, aged 21 at the time of offending and 22 at the time of sentencing. He had previously served a community based order and an intensive corrections order on unrelated matters, although as is explained in the reasons of the learned sentencing judge, they were not prior convictions.

18 The respondent endured a difficult upbringing. He suffered a disrupted home life when his parents separated when he was three and a half. He was raised by his mother from then on in a dysfunctional setting. His mother was a drug user and the respondent slipped into truancy and drug use. Later the respondent was to move in with his father.

19 In the period leading up to the offending, the respondent was abusing alcohol and drugs such as cannabis and amphetamines. He had moved out from his father's home after an argument which occurred when his father found out that the respondent had lost his job and had got into trouble with the police. In the words of the sentencing judge, the respondent's life 'was becoming more and more chaotic' and he had begun to 'lose control'. This culminated in the events which are the subject of the present appeal.

20 Since the time of his offending, the respondent has taken significant steps towards rehabilitation. The learned sentencing judge had before her a large body of material which spoke favourably of the respondent's efforts to rehabilitate himself, and of the respondent's good prospects for rehabilitation. Evidence was called from the respondent's father, who informed the Court that the respondent had moved back into his home and was now taking the benefit of a stable home life. In the previous 18 months the respondent had been engaged in consistent employment. A positive letter was provided by the respondent's manager. The Court was also provided with evidence that the respondent had fully complied with the previous court orders referred to above.

21 A letter was tendered from Anglicare (an organisation for which the respondent completed some court ordered work) which spoke very highly of the respondent's character and indicated that he had performed voluntary work after the expiration of his obligations. Results from drug tests were also put before the Court which indicated that the respondent had succeeded in overcoming his drug addiction. The sentencing judge found that the respondent no longer engaged in the lifestyle which led to the commission of the offences. The sentencing judge acted upon the report of a psychologist, Mr Cummins, who opined that the respondent's long term rehabilitation prosects were most probably very favourable. Her Honour concluded that the respondent had gained insight into the reasons he became involved in his previous chaotic and non-productive lifestyle. Her Honour stated in her sentencing remarks that as a youthful offender the respondent's good prospects of rehabilitation would be given considerable weight while specific deterrence would receive little weight.

22 The Crown emphasised a number of aggravating factors of the offending. In particular it was observed that the attacks were carried out in company and against single, defenceless and innocent victims who offered no provocation or significant resistance to the attack. Additionally, the respondent and each of his co-offenders were armed. Further, it was observed that in respect of the victim Mackney, the assault involved a persistent attack by the group involving repeated kicks, punches and stomps to the victim's head and body whilst he was lying helplessly on the ground. In the case of Morrow, the attack occurred upon a victim who was coming to the aid of another and involved significant violence, involving, in particular, the respondent using a cricket bat to strike a blow against the victim's elbow: causing him to fall to the ground. As with Mackney, the assault was persistent and involved kicks to the victim's side and hits to his forehead with a cricket bat, during which time the victim was lying helplessly on the ground and asking his attackers for mercy. It was submitted that these circumstances invite the conclusion that the offending demonstrated a high degree of moral culpability.

23 As to the question of remorse, the Crown observed that it was accepted at the plea hearing that the guilty plea was not entered at the earliest of opportunity. The respondent gave a 'no comment' record of interview. The respondent elected to run a contested committal. The matter resolved at the conclusion of that hearing. The Crown also relied upon the respondent's refusal to implicate his co-offenders at any stage in the proceedings. To this day no identification has occurred. That bore upon an acceptance of responsibility and a willingness to facilitate the course of justice, those being other subjective matters which may be indicated by a plea of guilty.[1] No reason was advanced on the plea or on appeal why the respondent refused to identify his co-offenders. That spoke poorly of his willingness to facilitate the course of justice and was a factor relevant to his prospects of rehabilitation.

24 The Crown submitted that the respondent's youth and what the sentencing judge found to be his sound prospects of rehabilitation should not be allowed to 'swamp' other considerations in the sentencing process. In particular, it was said, the sentencing purposes of general deterrence and denunciation were not served by the sentence imposed. Reference was made to the prevalence of violent attacks in the community, particularly by young men afflicted by alcohol and drugs. The Director submitted that mercy cannot justify the imposition of an unacceptably low sentence.[2]

25 The respondent challenged the contention that a wholly suspended sentence did not adequately reflect the sentencing principles of general deterrence and denunciation, as a wholly suspended sentence is not to be regarded as a mere exercise in leniency.[3] It may in some circumstances satisfy the sentencing principle of general deterrence.[4]

26 The essence of the submissions made on behalf of the respondent was that he was a 'changed man' since the time of the offending and had taken significant steps to rehabilitate himself. A significant influence in the respondent's offending was his drug use (including amphetamines) and drinking to excess. Since this time, the respondent had stopped using drugs, was now in control of his alcohol consumption and had developed strategies in anger management. He no longer associated with those involved in drug taking and alcohol abuse. He could point to an employment history of some 18 months. In sentencing young offenders primacy should be given to the offender's prospects of rehabilitation.[5] The respondent emphasised the number of character witnesses who were willing to come forward and speak positively of the way in which the respondent had turned his life around. These positive prospects of rehabilitation, it was said, should be given great weight.

27 Accordingly, the respondent submitted that it could not be said that that the sentence imposed was manifestly inadequate, in the sense of being 'plainly wrong' or outside the range of disposition available to his Honour.[6] Alternatively, it was submitted that in the event the Court found the sentence to be manifestly inadequate, it should decline to exercise its discretion to re-sentence. Counsel relied upon the respondent's continued steps towards rehabilitation since the time his sentence had been wholly suspended. The respondent now leads a stable, family life and is gainfully employed. It was strongly submitted that the Court should not 'set back' the rehabilitation of the respondent by the imposition of a custodial term in these circumstances. Having regard to the element of double jeopardy that is present on a Crown appeal, and the fact that the respondent would lose his liberty, it was urged that no different sentence ought be imposed.

28 The principles upon which a Crown appeal falls to be determined were summarised in DPP v Bright[7] in these terms:

A number of the principles which govern appeals by the Director of Public Prosecutions are set out in R v Clarke and R v Johnsto__n. One is that an appeal should not be brought unless the sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle. An examination of authorities suggests, as was conceded by the Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be 'clear and egregious', the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and 'undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes'. When re-sentencing the offender the appellate court must pay careful heed to the factor of double jeopardy, inherent in a Crown appeal, arising from the respondent's exposure to sentencing on a second occasion for the same crime. Because of the element of double jeopardy, Crown appeals are regarded as having a 'rare and exceptional' character which calls for restraint, even where manifest inadequacy may be present, the Court having an overarching discretion not to interfere. Double jeopardy is a factor which must be considered in both the Court's determination of whether this Court should exercise its discretion to allow the Crown appeal and, where the discretion is exercised, as to the sentence which should be imposed. Any different sentence to be imposed must allow for double jeopardy.

29 Two questions here arise. First, was the full suspension of the three year sentence so manifestly inadequate as to demonstrate error in principle? If so, given that the respondent has been at liberty does the public interest require that he now serve an immediate period in custody?

30 It is always to be remembered that there is a great public benefit in the rehabilitation of youthful offenders. But, as has often been stated, rehabilitation may have to be subjugated to other factors relevant to the instinctive synthesis where the offence is of a particular order of seriousness.[8] There must always be a reasonable proportionality between the sentence and the gravity of the crime. Ormiston JA stated in Thompson that it will not ordinarily be appropriate to extend mercy to young offenders in cases of intentionally causing serious injury because to do so will not give effect to the required principles of sentencing which are reflected in the Sentencing Act and in the common law.[9] The following similar observations were made in DPP v Simpas:[10]

But that said, as this court has observed before, youths who roam the streets at night, charged with alcohol and participating in serious acts of criminal violence will not be excused on the basis of youth or immaturity. The nature and prevalence of that kind of conduct is such that society properly regards it as intolerable and, in those circumstances, the court is bound to do what it can to make clear that such offending will not be tolerated. To that extent, the ameliorating effects of youth and rehabilitation must yield to the needs of deterrence.

31 Although we are here dealing with two counts of recklessly cause serious injury (not the more serious charge of intentionally doing so), the seriousness of those assaults in company and the further count of aggravated burglary bring similar considerations into focus. The respondent was armed with a weapon which he used upon the defenceless victims. Both were entirely innocent. They admitted of no provocation. There was a clear element of premeditation in the respondent's conduct having arrived in the company of others. It was persistent and involved repeated kicking and hitting, even after the victims were taken to the ground. The assault also occurred in company. As this Court said in DPP v Terrick:[11]

An assault in company is more frightening and - almost always - more lethal than an assault by one, not least because the action of each tends to encourage the others. It is also more cowardly, because of the overwhelming physical superiority of the attackers.

32 A sentence which did not require the offender to serve a period of immediate custody was, in my view, manifestly inadequate. The learned sentencing judge, in weighting particular subjective factors, produced a sentence that was not, in my respectful view, commensurate with the seriousness of the crime. But as the above quoted passage from Bright states, something more than manifest inadequacy must be shown to warrant intervention. In determining whether an appeal by the Director is justified, we should be guided, as the joint judgment of the High Court in Everett v The Queen[12] directs, by the observations of Barwick CJ in Griffiths v The Queen[13] that such appeals should be brought 'only to establish some matter of principle' and to afford an opportunity to the appellate court to lay down principles for the governance and guidance of sentencing courts. Barwick CJ considered 'error in point of principle' could include a '[g]ross departure from what might in experience be regarded as the norm'.[14] Everett further explained the reference to 'matter of principle' as 'encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standard which Barwick CJ saw as constituting "error in principle".'[15]

33 Accordingly, this court will only interfere on a Director's appeal where it is necessary to fulfil the function of putting right errors of sentencing principle or to maintain appropriate sentencing standards.[16]

34 The Court has recently handed down its decision in DPP v Fleiner.[17] It was evidently submitted by the Crown in that case that the Court should not apply the law as expounded in Bright. That submission was rightly rejected. The analysis in Bright has been applied in a very large number of Director's appeals. It is consistent with the High Court authority referred to above. Moreover, both in Bright and in numerous subsequent appeals, the Director's counsel conceded the very proposition that was impugned in Fleiner.

35 The proposition enunciated in Bright, and applied consistently since, is quite clear. Something more than manifest inadequacy must be present if this Court is to intervene on a Director's appeal.[18] As many of the appeals applying Bright have emphasised, the mere fact that a sentence falls outside the range of sentences reasonably open and is therefore manifestly inadequate does not necessarily reveal error in principle. Assuming there to be no other basis upon which error of principle can be demonstrated, the Court must be persuaded that the inadequacy is so egregiously disproportionate to the seriousness of the crime as to betoken such error.[19]

36 Here the Director's submission was not that a sentence of more than three years should have been imposed, but that the respondent should have been required to immediately serve a part of that sentence in custody. The sentencing judge, in her careful reasons, recognised both the objective gravity of these offences and the compelling evidence of the respondent's rehabilitation. I can discern nothing in her Honour's approach that demonstrated error in principle that would warrant appellate intervention. When pressed, senior counsel did not submit that the inadequacy of the sentence necessarily established error in principle. That again was a concession rightly made. It could not be said that the sentence imposed was a gross departure from the norm, or egregiously disproportionate to the seriousness of the crime. In any event, in the exercise of this court's overriding discretion, taking into account the principle of double jeopardy, I would have declined to intervene.[20]

37 Additionally, there was a powerful consideration that militated against now imposing a custodial term which would have the consequence that the respondent would be deprived of the liberty which he had enjoyed.[21] As an immediate custodial sentence did not commend itself to the sentencing judge, it would require a very strong case before this court should intervene.[22] It is considered a very serious step to deny a person their freedom when they have been dealt with and released into the community by a sentencing judge, particularly where it may put at risk the rehabilitation which has been achieved.[23] For such reasons I would in any event have declined to impose a different sentence.

38 I have had the benefit of reading in draft the reasons for judgment of Redlich JA. I agree with his Honour that, because the sentence did not require the respondent to serve a period of immediate custody, it was, in all the circumstances, manifestly inadequate. I note that the Crown did not press for a conclusion that this therefore demonstrated 'error in principle'.

39 In any event, having regard to the 'over-riding discretion' that an appellate court has on a Crown appeal that may lead it to decline to intervene,[24] I considered it inappropriate to intervene in this case to deprive the respondent of the liberty that resulted from the wholly suspended sentence imposed below, having regard to the unchallenged material regarding the respondent's continuing rehabilitation. For that reason, I agreed that the appeal should be dismissed.

[1] Cameron v R (2002) 209 CLR 339, [22].

[2] DPP v Cook [2004] VSCA 11; (2004) 141 A Crim R 579, [16].

[3] DPP v Buhagiar & Heathcote [1998] 4 VR 540, 547.

[4] DPP (Cth) v Carter [1998] 1 VR 601, 607; cf R v Feretsanis [2003] VSCA 8, [48] (Callaway JA).

[5] R v Mills [1998] 4 VR 235.

[6] R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306, [14] (Maxwell P).

[7] [2006] VSCA 147; (2006) 163 A Crim R 538, 542, [10].

[8] DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125, [22] (Batt JA with whom Winneke P and Nettle JA agreed); R v Wyley [2009] VSCA 17, [20]-[21] (Maxwell P).

[9] R v Thompson (Unreported, Court of Appeal, Supreme Court of Victoria, Phillips CJ, Tadgell and Ormiston JJA, 21 April 1998).

[10] [2009] VSCA 40, [13].

[11] [2009] VSCA 220, [82].

[12] [1994] HCA 49; (1994) 181 CLR 295, 300.

[13] [1977] HCA 44; (1976-7) 137 CLR 293.

[16] R v Laffey [1998] 1 VR 155, 161 (Winneke P).

[17] [2010] VSCA 143, [36].

[18] R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522.

[19] R v Burton (1996) 87 A Crim R 581 (Southwell AJA).

[20] DPP v Fevaleaki [2006] VSCA 212; (2006) 165 A Crim R 524, [24].

[21] DPP v Bourozikas [2009] VSCA 29, [31]; DPP (Cth) v Hizhnikov [2008] VSCA 269; (2008) 192 A Crim R 69.

[22] R v Smallacombe (CCA, 28 October 1993, unreported, (Crockett J).

[23] R v Martin [2005] VSCA 140; DPP v Anderson [2005] VSCA 68, [59]; DPP v Fevaleaki [2006] VSCA 212; (2006) 165 A Crim R 524, [24]-[27]; R v Best (1998) 100 A Crim R 127, 132-3.

[24] R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522 (Charles JA).