DPP v Lawrence [2004] VSCA 154

Court of Appeal (Vic)|2004-08-19|Before: WINNEKE, P., BATT and NETTLE, JJ.A.

Criminal Law - Sentencing - Intentionally causing serious injury - Wantonly violent attack employing kicking and bottles - Offender aged 20 at time, intoxicated and with prior convictions for violence - Prospects of rehabilitation - Sentence of 20 months' imprisonment with 14-month non-parole period manifestly inadequate - Re-sentenced to five years' imprisonment with three year non-parole period.

I invite Batt, J.A. to give the first judgment in this appeal.

On 17 May 2004 the respondent, Benjamin Lawrence, who was born on 2 December 1982 and so was aged 20 at the time of the subject offending, was found guilty by a jury in the County Court at Melbourne of one count of intentionally causing serious injury to one Steven Kumetaitis on 18 March 2003. The maximum custodial penalty for the offence was imprisonment for 20 years. The respondent admitted 19 prior convictions from six court appearances between 27 January 2000 and 14 May 2002. Those offences included robbery (three charges), using heroin, causing serious injury recklessly (two charges), causing injury recklessly, unlawful assault and attempted armed robbery. Most of the other convictions were for offences of dishonesty. After hearing a plea in mitigation of penalty, during which evidence was called from Anne Hooker, the Youth Development Officer of the Port Phillip Prison, as to the behaviour of the respondent while on remand pending trial and sentence, her Honour on 28 May 2004 sentenced the respondent to be imprisoned for a term of 20 months and fixed a non-parole period of 14 months.

Pursuant to s.567A of the Crimes Act 1958 the Director of Public Prosecutions has appealed against that sentence on the ground that it is manifestly inadequate. The particulars of that ground stated in the appellant's notice, which relate both to the head sentence and to the non-parole period, are reflected in the appellant's submissions summarised later.

Before the ground of appeal can be considered, it is necessary to summarise the facts of the offending and facts personal to the offender and to state the essence of her Honour's reasons for sentence.

The following recitation is based on the judge's sentencing remarks and the summary of evidence prepared for the Court, amplified by references to the trial transcript contained in the outline of argument for the appellant, none of which was challenged on behalf of the respondent before this Court. At about 6.45 p.m. on 18 March 2003, 15 days after he had been released from youth detention on a youth parole order, the respondent, in company with his elder brother Troy Lawrence, met his girlfriend by arrangement in the car park at the Dandenong railway station. He and his brother had spent much of the day drinking stubbies of beer, smoking cannabis and taking drugs, including some Serapax pills. While walking through the station they had a chance meeting with a friend of the respondent, Kumetaitis, who was then aged 16 years, and with a friend of his. They joined together to socialise. The five of them decided to travel to Cranbourne to avoid further contact with the police, as the police had encountered the respondent at least twice on that day. They purchased alcohol, and consumed some. The remainder was taken with them to Cranbourne, where they arrived at about 9 p.m. The respondent was said by one witness to be "pretty wasted". They walked to a small park, where the offence occurred. The group sat down at a table and some benches and continued to drink and socialise. After about half an hour the respondent and his girlfriend left the group for a short time to buy cigarettes. She left her mobile phone with Kumetaitis for the purpose of his playing a game programmed into it.

When they returned about ten minutes later, Kumetaitis had left the group and was standing in a telephone box near some shops, just across a local street from the park. Both he and the respondent had apparently consumed some quantity of Serapax pills. The respondent approached Kumetaitis, seemingly to try to persuade him to return to the group. He refused to do so. The respondent returned to the park bench, discovered from his girlfriend that Kumetaitis still had her mobile phone and returned to retrieve the phone from him. According to the respondent's account, he became extremely upset by the discovery about the mobile phone. An argument ensued between the respondent and Kumetaitis. Some nearby residents, John and Joan Sweep, heard loud noises outside their home and went to look. John Sweep saw the respondent get up from a bench and go into the phone box. Another person was in the phone box and they started to fight. One (the respodent) knocked the other (Kumetaitis) out, that is, unconscious. He fell to the concrete floor of the box and the respondent pulled him out of the box. Joan Sweep saw the respondent kick the other person, who went down in the corner of the box "like a bag of potatoes". The respondent then started to pull him away from the phone box. The respondent sounded drunk, not normal, and was shouting. The respondent then lifted Kumetaitis up off the footpath and carried or dragged him across the road and dropped him on the concrete of the footpath on the other side of the road. Both the Sweeps heard him fall. He made an awful screaming noise. The respondent then dragged him over the ground into the park and dropped or threw him on to the ground, flat on his back.

Next, the respondent kicked Kumetaitis as hard as he could at least ten times to the head and body, on the respondent's account in fact 14 or 15 times. He desisted briefly to speak to his girlfriend, who had approached the scene. He ordered her away. The Sweeps heard the sound of glass breaking. This was a beer stubby which Kumetaitis had been holding and, having got to his knees, was swinging around, no doubt in a vain attempt to try and keep the respondent away. The respondent had commenced kicking him again until he dropped the bottle and dropped back to the ground.

John Sweep described seeing the respondent sitting on the victim with his hand going "up and down", whilst his wife said in evidence that she saw the respondent kneeling down and making downward movements with his hand, stabbing Kumetaitis. The latter was crying. He was stabbed at least three times with the broken stubby in the lower back and other parts of the body. He did not offer any resistance. He was making noises as though he was in agony. The respondent then dragged his victim under some bushes to conceal what he had done or (on another version) tried to do so but could not and somebody else did this. In any event, the victim was left in the park by the respondent seriously injured. The latter left soon after with his brother and girlfriend and went home to bed.

In his recorded interview, made after his arrest the following day, in which he made full admissions, the respondent gave a description of a brutal attack upon the victim which confirms parts of the foregoing recitation and supplements it in some respects. Amongst other things he said that he grabbed Kumetaitis by the collar and shook him; they ended up in a wrestle; he grabbed his leg and twisted it, sitting on his back and pulling his leg back. That was a "submission move". As he carried Kumetaitis across the park, he started punching the respondent and the latter threw him and he just dropped flat on his back. He grabbed a bottle and threw it at Kumetaitis and it hit him. Then he started kicking him at the head and ribs. The victim was face down "and I kicked him two to three times ... A total of 14 to 15 kicks [and] a couple to the ribs". He "kicked him hard - like I am kicking a footy. Bang". He did not use all his strength, "seven-tenths". After walking over to his girlfriend and telling her to keep away, he went back to the victim "and kicked him again ... until he dropped." Then he grabbed the stubby (a full bottle not opened) "and went 'bang' with the bottom of it on to his face ... I think it split his eyebrow. ... I gave him a few whacks with it, ... then it went 'crack' when I used the side of it, that's when it broke." He struck him with the bottle around the eyes, "not aiming for the eyes, just around his face. Anywhere on his face." The victim was pretty much spitting out blood. When asked what he was intending to do by hitting Kumetaitis in the face, the respondent answered, "Knock some sense into him. Just make him shut up and wake up." A little earlier he had said, "He should respect me. I am 20, he's 17." He hit the victim with the bottle about 12 times. "I could have walked away, ... but something kept, just, driving me back."

The victim sustained very serious injuries. He was conveyed, first to the Dandenong Hospital, and then to the Monash Medical Centre, where he underwent emergency surgery. He was treated for a depressed fracture of the skull, multiple fractures of the skull (to the facial and neck bones), multiple deep lacerations to the face, and three stab wounds to the lower back. A CT scan revealed a brain contusion and glass was found in one of the neck wounds. His condition was described as critical and police were initially informed that he might not survive. He was in a coma for three to four days and stayed in hospital for three weeks. He spent some time thereafter in rehabilitation. There was, however, no victim impact statement tendered to the sentencing judge.

In her sentencing remarks the County Court judge, having summarised the events of 18 March 2003, turned to the respondent's personal circumstances, saying that the material on them that was before the court was "rather scant". The respondent had been living at home with both his parents. He started drinking alcohol while still at school. He left school at Year 10 and had no employment history to speak of, though a family friend who ran an automotive shop had indicated he was prepared to put the respondent on a three-month motor mechanic probation on his release from prison, as he was a good worker and was honest and reliable.

Her Honour stated that the respondent had spent significant periods of his short life to date in custody for his violent criminal offending. She had earlier reviewed most of those offences. He had twice been placed on a community-based order, the first of which he breached three times and the second twice, and had been ordered to be detained in a youth training centre for one month in respect of each order. Counsel for the appellant, on the basis of the contents of a summary that was before her Honour, took this Court through four incidents the subject of prior convictions. They occurred on 21 October 2001, 2 May 2001, 18 April 2002 and 1 May 2002. It is not necessary to go into details, but counsel drew attention to the facts that two of the incidents occurred on trains, that in them, at least, the respondent was affected by alcohol and possibly drugs, that those incidents involved assaults to the head and face by punching, head-butting and kneeing and threats (in one case with knives) to other passengers and threats on another occasion with a broken stubby bottle, that another incident involved punching and stabbing to the head, resulting in three puncture wounds, and that one victim was concussed, while some victims required stitches or surgery. Counsel highlighted similarities to the instant offending.

Her Honour then referred to the evidence of Ms Hooker, a person with 20 years' experience in youth corrections. Ms Hooker had first met the respondent in April 2003, when he entered the youth unit in Port Phillip Prison, and thus had been able to observe the respondent for some 13 months. She said that he had initially had a very poor attitude and had behaved inappropriately, so that his place in the unit was under scrutiny. Then, however, a change in his attitude and behaviour had occurred and he actively sought assistance to obtain drug and alcohol counselling and enrolment in the various courses available, active participation in a minimum of three programs per week being required. (Some 13 certificates as to satisfactory completion of the courses were tendered.) Ms Hooker had made positive observations about the respondent's developing insight and determination to change his ways.

Her Honour then stated that the applicant was still young and fitted within the broad sentencing principles for youthful offenders, which, she said, required his rehabilitation to be foremost in the mind of a sentencing court. On the evidence of Ms Hooker he had made some gains on the road to rehabilitation. However, that had to be weighed, her Honour said, against his serious history of crimes of violence. For the reasons she gave her Honour did not, as I read her remarks, accept the submission that the respondent did not realise the serious consequences of his actions. The respondent had to counter the conclusion that he would continue to abuse drugs and alcohol and re-offend by committing crimes of violence. He had the evidence of Ms Hooker to counter that conclusion, which would otherwise have been inevitable, her Honour said. There was no evidence that the respondent had any mental health or behavioural problem nor evidence of any detrimental life experience impacting on his capacity to resist criminal behaviour.

In such circumstances, her Honour continued, there was a need not only to denounce and punish such vicious conduct, but to provide "a strong measure of general deterrence" for it, tempered, as it must be in the respondent's case, with a focus on his rehabilitation. His own history also demanded "a strong measure of specific deterrence" in circumstances not only of a history of violent criminal offending but where the offence was committed 15 days after the respondent's release on parole. Her Honour then proceeded to impose the sentence stated earlier.

For the appellant, particular reliance was placed upon the gravity, said to be extreme, of this instance (as summarised earlier) of a serious offence. Emphasis was placed upon the deliberate attacking of the head area of the victim, the use of the full stubby and then of the broken stubby, the number of blows struck and the resumption of the attack after a break. Counsel for the respondent on the plea had accepted that this was "a very serious crime of violence" that resulted in "grave consequences for the victim". But, this branch of the argument concluded, the head sentence of one-twelfth of the available maximum and a non-parole period of about six percent of it simply did not reflect the gravity of the offending even when all matters personal to the respondent were taken into account. It was then submitted that the sentence imposed should have reflected the need for general deterrence and specific deterrence. Counsel on the plea had acknowledged this, though pointing out that those objects had to be balanced with youth and rehabilitation prospects. It was submitted for the appellant that, whilst careful analysis of all matters relevant to youthful offenders was important, there was still a need for the sentence to reflect general deterrence. Further, the respondent had amassed a significant and relevant criminal history and had offended after having so recently been released on parole. Even taking into account matters relevant to rehabilitation, the sentence simply did not provide the "strong measure" of general deterrence and of specific deterrence of which her Honour had, correctly, spoken. This was because her Honour gave too much weight to factors going to rehabilitation. Counsel accepted that in sentencing youthful offenders rehabilitation was an important sentencing consideration, citing R. v. Mills[1]. However, the general propositions in R. v. Mills were just that, general propositions, not of usual or automatic application. Each case depended on its own circumstances, including the circumstances of the offence as well as of the offender: R. v. Bell[2] and R. v. Hennen[3]. It was submitted that, whilst in the case of youthful offenders rehabilitation was usually far more important than general deterrence, its application depended on the facts, including the age of the respondent, his potential for rehabilitation and the prevalence and other characteristics of the offence. Here, violent offending by youthful offenders under the influence of alcohol or drugs was prevalent. Moreover, the respondent was not a first offender or a callow youth of 17 or 18. He had had previous opportunities to rehabilitate through community-based orders and youth training centre orders and had declined them. The benefits that flow to youthful offenders diminish the older they become. No reports had been tendered to assist in explaining the respondent's past or instant behaviour. Although her Honour had noted the significant history of serious criminal offending and the constant theme of serious violence, the sentence gave insufficient weight to the gravity of the offending when viewed against the respondent's prior convictions for extreme violence directed in the main to the head area of his victims. Further, although her Honour noted the injuries sustained and the hospital treatment received by the victim, the sentence gave insufficient weight to these effects upon the victim, to which s.5(2)(da) and (db) of the Sentencing Act 1991 required regard to be had. It was an aggravating factor that the offence occurred while the respondent was on parole.

In general, it was submitted, her Honour's statements had been correct, but the difficulty was that the sentence did not reflect them. However, her Honour was incorrect, it was submitted, in stating that rehabilitation was the main consideration with this offender and this offence. (This was not propounded by the appellant as a specific error but as an explanation for the claimed manifest excessiveness.)

For the respondent it was submitted that, as is not unusual, there were competing factors pertinent to sentencing vying for supremacy. It was plain that the sentencing judge had had regard to all relevant matters and had not taken into account any irrelevant ones. It was further observed that, to a significant extent, the sentence appeared to have been animated by youth and prospects of rehabilitation. The term selected reinforced the view that her Honour was intent on imposing just punishment, while at the same time encouraging the respondent's rehabilitation. In his oral submissions Mr Priest concentrated, as, in my view, he had to if the sentence was to be upheld, upon the rehabilitation, achieved and prospective, of the respondent as a relatively youthful offender. He submitted that the evidence of Ms Hooker, which, he said, was impressive, provided a spark of incipient rehabilitation which animated her Honour in sentencing and further submitted that the spark should not be extinguished by an overly punitive sentence. Conceding for the sake of argument that the sentence was lenient and towards the bottom end of the range, it was, counsel submitted, nevertheless, within the range for this respondent. The discretion of sentencing judges should not be unduly circumscribed.

The principles applicable to appeals by the Director of Public Prosecutions are well known and I do not pause to state them yet again. They may be found stated in cases such as R. v. Clarke[4] and D.P.P. v. Whiteside and Dieber[5].

For the appellant to succeed it is not enough that this Court might have imposed a heavier sentence if sentencing at first instance or that the sentence is shown to inadequate. It must be manifestly inadequate. In this case I am amply satisfied that the sentence answered the latter description. Except that I do not need to locate this case precisely on the register of seriousness, I would accept the arguments for the appellant almost in their entirety. I shall, however, state in my own words the essential reasons leading me to the conclusion expressed.

The maximum penalty fixed by Parliament shows how intrinsically serious the offence is considered to be on behalf of the community. Although it is to state the obvious, it should not be overlooked that in this most serious of the non-homicidal injury offences there is the concurrence of serious injury with the intention to cause it. To move from the general to the particular, the offending here was grave indeed and the results of it life-threatening for the victim. The offending was aggravated by the fact that it was committed under the influence of alcohol and drugs. Moreover, the respondent's antecedent history showed that the instant offence was not an uncharacteristic aberration but rather that in its commission he manifested a continuing attitude of disobedience of the law, so that, whilst the antecedent criminal history could not be given such weight as to lead to the imposition of a penalty disproportionate to the gravity of the instant offence, retribution, deterrence and protection of society indicated that a more severe penalty was warranted than would otherwise be the case. Moreover, that antecedent criminal history showed the respondent's dangerous propensity and a need to impose condign punishment to deter him and other offenders from committing further offences of a like kind.[6] It is true that Ms Hooker's evidence was impressive as far as it went, but what she observed had not been tested by the respondent's exposure to the temptations to indulge in alcohol or drug-taking outside the prison, a point the President raised with counsel for the respondent during argument.

Further, as the cases[7] make clear, with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender's youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright[8], take a "back seat" to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that, as this very case exemplifies, the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both. Here, the respondent was in any event only on the borderline of youthfulness and moreover was not by any means a first offender. For these reasons I agree with Ms Pullen's submission that her Honour did err in her statement that the respondent's rehabilitation was required to be foremost in the mind of a sentencing court.

For the foregoing reasons, I consider that the sentence in this case reveals such manifest inadequacy as to constitute error in principle and also that this Court's intervention is required in order to maintain proper sentencing standards. In Thompson[9], Tadgell, J.A. said, "The courts must do what they can to send to the community a message of crystal clarity that conduct of this kind is intolerable in a civilised society." The two decisions being given today by this Court on appeals by the Director of Public Prosecutions in relation to the offence of intentionally causing serious injury should, it is to be hoped, make clear to sentencing judges and would-be offenders how seriously this offence is to be regarded.

24 The sentencing discretion therefore falls to be re-exercised by this Court. In all the circumstances which I have discussed, I consider that the respondent should be sentenced to be imprisoned for a term of five years and that the period of three years, calculated from the date of sentence in the County Court, 28 May 2004, should be fixed as the period during which the respondent is not eligible to be released on parole. An appropriate declaration should be made as to pre-sentence detention. It should be clearly understood that, but for what is called the principle of double jeopardy that is binding upon this Court, I would have passed a considerably heavier sentence. I would, therefore, allow the appeal, quash the sentence passed below, and pass sentence as I have indicated.

I agree with Batt, J.A. that this appeal should be allowed. I agree with him also that the penalty imposed by the trial judge is manifestly inadequate to meet the gravity of the offending. This was undoubtedly a serious example of the crime charged. Whilst the offender's youth is a matter which will always fall for consideration by a sentencing judge faced with the prospect of sentencing a young offender to a term of imprisonment, it should be recognised that this type of offence is often the province of young offenders, and in many cases the offender's youth will have to give way to other sentencing principles such as general and specific deterrence and protection of the community. This was such a case.

I too agree with Batt, J.A., for the reasons that he gives, that the appeal should be allowed, and with the sentence that he proposes.

The formal order of the Court will be that the appeal is allowed. The sentence imposed below is set aside and in lieu thereof this Court imposes a sentence of five years' imprisonment. We direct that the respondent serve a minimum period of three years' imprisonment before becoming eligible for parole.

1 Pursuant to s.18 of the Sentencing Act we declare that the respondent has served a period of 430 days of the sentence imposed. We direct that this declaration and its details be entered in the records of the Court.

The Court will direct that a certificate pursuant to the Appeal Costs Act be granted to the respondent.

[6] Veen v. The Queen [No.2] [1988] HCA 14; (1988) 164 C.L.R. 465 at 477.

[7] Such as R. v. Thompson (unreported, Court of Appeal, 21 April 1998) at pp.7-8; R. v. Wright [1998] VSCA 84 at [1],[5] and [6]; R. v. Teichelman [2000] VSCA 224 at [20]; R. v. Howarth (2000) 112 A.Crim.R.244 at [51]; and R. v. Hennen [2004] VSCA 42 at [24]. When considering the sentences upheld as not being manifestly excessive in those cases, regard must be had to the maximum penalty applicable at their respective relevant dates and to the fact that they were appeals or applications by offenders.

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