DPP v Hooker [2006] VSCA 95

Court of Appeal (Vic)|2006-04-24|Before: BUCHANAN, VINCENT and NETTLE, JJ.A.

Criminal law - Sentence - Intentionally causing serious injury - Recklessly causing serious injury - Summary charge of assault - Crown appeal - Manifest inadequacy - Respondent with minor criminal history and unfortunate background - Respondent at liberty for several months - Respondent's rehabilitation - Interests of the community - Seriousness of offending not reflected in the sentences imposed - Appeal allowed - Respondent re-sentenced on count 1.

1 I will invite Vincent, J.A. to deliver the first judgment.

2 This is an appeal by the Director of Public Prosecutions against the sentences imposed upon the respondent in the County Court at Melbourne, on 13 December 2005, following his plea of guilty to one count of intentionally causing serious injury (count 1), one count of recklessly causing injury (count 2) and a further summary charge of assault.

3 It arises against the following background.

4 On 23 January 2005, the respondent attended a party at a residence in Noble Park where much alcohol was being consumed by those present. During the evening a fight broke out between two men and the police were called. They attended at about 11.50 p.m. and found a number of intoxicated youths in the house. At this stage, the respondent had left the premises and the police came upon him a little way down the street. They stopped and spoke to him. He indicated that he was going home and they encouraged him to do so, suggesting that he not return. The police noted that the respondent appeared to be intoxicated, but in control of himself.

5 He then went home, but instead of adopting their suggestion, armed himself with a hunting knife and almost immediately returned to the house. One of the youths staying there, Brendan Hellyer (the subject of count 1), went outside to lock his car that was parked in the street. As he was doing so, the respondent approached him from behind and struck him to the back of his head. As Hellyer turned to face his assailant, the respondent hit him again. Hellyer, who described himself as too intoxicated to fight back, said that he was then struck a couple more times to the head before he fell to the ground. Unbeknown to Hellyer, he had also been stabbed under the left armpit with the knife that the respondent had brought with him. Hellyer's cries for help were heard by two other guests, Kim Reeves and Kristy Mayes, who ran to his aid. In her statement, Reeves reported seeing the respondent holding a knife approximately 20 centimetres in length.

6 He then ran towards Mayes and struck her to the stomach with it. Initially she thought that she had been punched, but then she noticed that she was bleeding. She was about five months pregnant at that time and stated that she began to experience difficulty in breathing and went inside. The respondent then turned to Reeves and threw her to the ground, causing her to hurt her left knee.

7 The police and ambulance were called and Hellyer was conveyed to the Alfred Hospital. His injuries consisted of minor cuts and bruising to his face and a stab wound that required stitches and the administration of pain relief medication.

8 Mayes was conveyed to the Dandenong Hospital. She had sustained a one-centimetre laceration to the stomach but required no treatment other than the dressing of her wound.

9 The respondent left the scene and buried the knife in the garden bed of a nearby residence. At approximately 1.25 a.m. he attended the Dandenong Police Station and told the police officer on duty at the desk that he had just stabbed someone. The respondent provided the location of the house at which the incident had occurred and said that he had left a party being held there, but had returned and stabbed one of those present. He became upset and said, "There's no point running, I'm here to hand myself in, I stabbed someone".

10 In the course of his subsequent interview by the police, the respondent said that he was not sure whether he had stabbed Hellyer, but thought that he had committed a crime. He denied being asked to leave the party, but that when he spoke to the police on his way home, he formed the impression that they regarded him as responsible for the fight that had taken place. He told the police that he went home, collected the hunting knife and returned to the party. He said that he remembered arriving back at the house and then leaving, but not what occurred whilst he was there, and asserted that although he could not recall stabbing anyone, he remembered being involved in an argument. He denied stabbing Kristy Mayes or pushing Kim Reeves. He told the police where he had buried the knife and went with them to retrieve it.

11 The respondent admitted eight prior convictions from five Local or Magistrates' Court appearances in different States between 4 December 1986 and 30 April 2003. They appear to have related to relatively minor matters and none resulted in the imposition of a sentence of imprisonment. Importantly, they convey no suggestion that the respondent may be an inherently violent individual.

12 After hearing a plea in mitigation of penalty in relation to the matters presently under consideration, the learned sentencing judge, on 13 December 2005, imposed the following sentences:

On count 1 - The respondent was convicted and sentenced to eight months' imprisonment, the service of which was wholly suspended for a period of 15 months;

On count 2 - He was convicted and released on a community based order for a period of 12 months, under which he is required (inter alia) to perform 100 hours of unpaid community work, undergo supervision, attend for such assessment or treatment for drug or alcohol addiction and to submit to psychological or psychiatric treatment as may be directed by his Community Corrections Officer;

On the summary

charge of assault, - The respondent was a convicted and released on a good behaviour bond for a period of six months.

13 The Director of Public Prosecutions contends that when regard is had to the serious character of the respondent's conduct these dispositions were manifestly inadequate, asserting that:

"In imposing each of the sentences the learned sentencing judge -

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

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

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

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

(f) gave insufficient weight to the maximum penalties applicable to these offences;

(g) gave insufficient weight to the respondent's prior convictions; and

(h) gave insufficient weight to the effect of the offending upon the victims."

14 However, the Director also made clear from the outset of the hearing, with his customary frankness, that in the particular circumstances, which included the facts that the respondent had been at liberty under the sentence for several months and had been complying properly with the terms of the community based order that was then imposed, the Court was not being urged to substitute sentences requiring immediate incarceration. It does not follow, as he also made evident, that he abandoned the contention that the proper exercise of sentencing discretion by the judge in the court below required the imposition of an immediately effective period of imprisonment.

15 In support of his claim that the individual sentences imposed on counts 1 and 2 were so inadequate as to demonstrate failure to apply proper sentencing principles, as I have already mentioned the Director argued that the conduct of the respondent constituted a serious example of the offence of intentionally causing serious injury, pointing out that the respondent had formed a grievance against people at a party he had been requested to leave, and his attacks on the victims were motivated solely by vengeance concerning some perceived wrong. His actions, Mr Coghlan submitted, were not spontaneous but rather were undertaken in a quite deliberate fashion. He disregarded the advice of the police who spoke to him in the street to go home and remain there, and instead, returned to the party with a weapon capable of causing very serious injury indeed. It was, Mr Coghlan submitted, simply a matter of good fortune that the injuries which resulted from its use were not much worse.

16 The respondent approached the first victim (Hellyer) from behind, struck him to the head and gratuitously stabbed him. He then assaulted the two young women who responded to a call for help from Hellyer. One of them, Kristy Mayes, who was five months pregnant, was stabbed to the stomach, and it was not surprising that, when she realized what had occurred, she was placed in great fear.

17 Attributing full weight to the factors militating in favour of mitigation, to which I will return, Mr Coghlan argued that the seriousness of the respondent's conduct was not reflected in the sentences imposed.

18 In response, Mr Holdenson, who appeared on behalf of the respondent, submitted that there were a number of important considerations operating in favour of mitigation to which the sentencing judge was required to, and did, have regard in the performance of his duty.

19 They included -

(a) the respondent's acceptance of responsibility within a very short time of the commission of the offences and his subsequent co-operation with the authorities;

(b) his early entry of pleas of guilty;

(c) his genuine expressions of remorse; and

In relation to the last matter, I observe that the respondent was aged 37 years at the time of sentencing. His background was extremely unfortunate. He had been taken from his alcoholic mother when he was six years old and lived in an orphanage until he was 15 years of age. Whilst under what was supposed to be the care of the community, he was subjected to both a harsh disciplinary regime and repeated sexual abuse. It appears that he was unaware that he was of Aboriginal descent and when he eventually did learn that that was the case, he experienced serious personal difficulties relating to his sense of identity. Mr Joblin, the forensic psychologist whose report was before the sentencing judge, formed the view that the respondent was of good intellect and had developed a degree of insight into his problems and their causes. The respondent, perhaps unsurprisingly in view of his background, has led a relatively unstable life, although he has generally been able to secure and maintain employment. He was at the time of the commission of the offences in a relationship and endeavouring to develop an appropriate lifestyle for himself. He has had over the years a significant problem with alcohol and it is evident from the material that he is not only well aware of it but has, from time to time, endeavoured to address it in a serious fashion. Almost certainly as a result of his mistreatment as a young person, the respondent appears to be prone to anger when affected by alcohol, and there would seem to be little doubt that this addiction has been something of a struggle for him for a long time. He has sought assistance from organizations such as DAS West and MAYA, an Aboriginal men's support agency.

20 Mr Holdenson submitted that the respondent was a person who was both capable of benefiting from available rehabilitation programmes and who had demonstrated that he was motivated to participate in them. Acknowledging the seriousness of the respondent's actions, he submitted that nevertheless, when the powerful mitigating factors present in this case were taken into account, it was open to impose a sentence that would maximize the respondent's prospects of leading a stable, law abiding life. To so approach the task of sentencing, he argued, not only served the interests of the respondent but those of the community generally, and this, he said, was appreciated by the sentencing judge.

21 These arguments, in my view, possess a great deal of force and there is clearly much that can be said in the respondent's favour. However, the actions in which he engaged must be viewed gravely. The employment of violence, and in particular the use of weapons, to settle personal grudges obviously cannot be countenanced. The courts must endeavour, through the sentences handed down upon those who resort to such measures, to deter any who may contemplate such behaviour. It was, as Mr Coghlan emphasized, extremely fortunate that the injuries sustained by the respondent's victims were not much worse, perhaps resulting in death or permanent disability. And it must not be forgotten that, having been advised by the police who spoke to him before the incident to go home and not return to the house, the respondent chose to do otherwise, armed himself and went back with the clear intention to assault at least one or some of those present at the house.

22 The seriousness of this offending cannot be seen to be reflected in the sentences imposed upon him. In my view, the departure from proper sentencing standards is such that the intervention of the Court is required. However, having regard to the principle of double jeopardy, and particularly bearing in mind that the respondent has been permitted to remain at liberty under the order made in the court below, I would interfere only with the sentence imposed on count 1, which I would increase to imprisonment for two years and six months, the service of the whole of which would be suspended for the same period. This sentence would be operative from the date on which sentence was handed down in the court below. Otherwise the sentences imposed would be confirmed.

The appeal is allowed.

The sentence below is affirmed, save that the term of imprisonment imposed on count 1 is increased from eight months to two years and six months.

That sentence is to be wholly suspended for a period of two years and six months and the suspension is to date from the imposition of the sentence in the County Court.

The community-based order imposed in respect of count 2 is confirmed.

An indemnity certificate pursuant to s.15(1) of the Appeal Costs Act 1998 is granted to the respondent.

I certify that this and the preceding 97 pages are a true copy of the reasons for judgment of Buchanan, Vincent and Nettle, JJ.A. of the Court of Appeal of the Supreme Court of Victoria delivered on 24 April 2006.

DATED the day of 2006.

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