DPP v Patching [2000] VSCA 14

9. This record, in my view, was significant for sentencing purposes not only because of the frequency of the respondent's prior convictions and court appearances and the nature of a number of his offences, but also because of his responses to some of the sentences imposed. The record starts in October, 1992 and runs to June, 1998. The instant offences were committed in February, 1999. Over 20 of the convictions or court appearances related to offences of violence to a person or property. The respondent had committed 19 offences before he was sentenced to imprisonment, but that sentence was suspended. The respondent then proceeded to commit four more offences but only received a sentence of imprisonment after he had breached a community order granted to him for three of them. Three more offences followed but resulted, so far as the two more serious were concerned, in a sentence of imprisonment wholly suspended. Regrettably, the respondent has breached each community based order granted to him and he committed the instant offences shortly after the expiry of a sentence to be served by way of combined custody and treatment order. His previous convictions included attempting to intentionally cause serious injury, causing injury intentionally and several counts of recklessly or intentionally causing injury. It is apparent that consistent leniency and opportunities for rehabilitation have been granted the respondent to no avail.

13. Consisting as they did of two attacks from behind with a knife and damage inflicted with malice, I regard the offences as serious. The consequences, in the case of the victim Dennis King, were very grave indeed. The offences were aggravated by the respondent's possession of a knife which circumstance he should have been careful to avoid.

17. In my view, after full weight is given to these matters, the inadequacy of the sentences remains manifest. In particular, the evidence of the witness, Mr Simpson, cannot change that circumstance. This gentleman, who is plainly of a kindly and generous disposition, employed the respondent twice, from May, 1997 until April, 1998 and then from October of that year until March, 1999. He found that the respondent was "better than an ordinary ... someone straight out the streets"; that he had potential and got on with the staff on his building sites. An engineer employed by Mr Simpson was willing to be a mentor for him and the witness was prepared to re-employ him. Unfortunately, as Brooking, J.A. has shown, the respondent did not refrain from criminal conduct at times material to his employment.

20. Having given consideration to the circumstance that the respondent is presently on parole, together with the other matters relevant to re-sentencing upon an appeal such as this, I subscribe to the sentences, cumulation directions and non-parole period proposed by Brooking, J.A.

25. On 28 February 1999, late at night, a brawl took place outside a toilet block at Eastern Beach, Geelong, between two car-loads of young men. First to arrive was a Ford LTD containing the King brothers (Matthew and Dennis), Leworthy and Corbett. Matthew King went into the toilet block. A Nissan car pulled up behind the LTD. It contained the Patching brothers (Allen and Darren) and at least three other men including one Rayner. Darren Patching and Rayner entered the toilet block, accompanied by one or two others from their group. Leworthy then went into the toilet block, evidently because he feared that Matthew King might be in trouble, and pretended to urinate. The men who had entered from the Patching car were yelling out and screaming, although their behaviour was not directed at anyone in particular. They left the building, followed by Matthew King and Leworthy.

28. Matthew King and Leworthy found that two members of the other group - Darren Patching and Rayner - were standing between the two cars. One of them said to Matthew King, as he looked at them, "What are you staring at?" King shrugged his shoulders. Darren Patching and Rayner walked up to Matthew King and Leworthy and one of them, who was clenching and unclenching his fists, asked if King and Leworthy wanted "to go on with it". It was apparently Leworthy who then made what the judge was later to describe as a "pre-emptive strike", punching both Darren Patching and Rayner. At about this point Dennis King and Corbett got out of their car and Allen Patching and his companions got out of their car. All ran up to the other four men. Allen Patching stabbed both Matthew and Dennis King with a folding knife. He first stabbed Matthew in the back - the right shoulder. He then approached Dennis. The two men exchanged blows with their fists. Shortly after this the applicant stabbed Dennis twice from behind - in the right armpit and right shoulder. Dennis began screaming and fell to the ground. His brother helped him to his feet and the pair ran away up the hill to another car park, where they found someone who drove them to hospital. In the meantime, Allen Patching stabbed each of the four tyres of the Nissan.

31. The respondent was arrested on 3 March 1999 and made a "no comment" record of interview.

34. What took place is not as clear as one would wish. The judge thought that everyone had had too much to drink. It is not easy to glean from the Crown summary prepared for the purposes of the application, the assertions or concessions of counsel on the plea and the judge's findings just what took place. This difficulty may well reflect the confusing and contradictory state of the evidence itself. The judge made no finding about whether Darren Patching and Rayner were on the ground when Allen Patching got out of his car. The judge, in sentencing Allen Patching, and evidently speaking of the time when he got out of the car, said this:

"You had at that initial stage, I suspect, held a genuine belief that an occasion had arisen to defend yourself and perhaps defend others. However as you got into the thick of the fight you produced a knife; I suspect your ability to control your temper; you [sic] emotions were such that you used the knife in a way that went beyond any aspects of self-defence or in defence of another and stabbed two of these young men."

38. The words "I suspect" in the first sentence are not apt to introduce an affirmative finding. The words "to defend yourself and perhaps defend others" (my emphasis) create a further difficulty. It is hard to see how Allen Patching could have genuinely believed when he got out of the car that he needed to defend himself. The words "and perhaps defend others" suggest that the judge was mainly concerned with a danger which Patching may have apprehended to himself. But the submission made to us has essentially relied on a danger to others that was apprehended. The words "I suspect" in the second sentence I have cited may have governed only "your ability to control your temper" or on the other hand have governed the whole of the remainder of the sentence. The reasons were given immediately the plea ended and have not been revised. Whatever his Honour intended to convey by these remarks, the plea was conducted by the Crown on the basis that Allen Patching got out of the car to go to the assistance of two members of his group who were engaged in a physical struggle with others. But the Crown did emphasise that the knife was used on both victims from behind and when they were otherwise engaged and distracted. The judge found that the respondent was carrying the knife in his pocket as he approached the other men and that he produced it as he got into the thick of the fight.

41. On arraignment Allen Patching pleaded not guilty to four counts alleging that he intentionally or recklessly caused serious injury to each victim and guilty to one count of damaging property. When he was arraigned again a month later the presentment was amended so as to make it contain one count of recklessly causing serious injury to Dennis King, one count of recklessly causing injury to Matthew King and the count of damaging property. The accused then pleaded guilty to all three counts. The maximum penalty for the three offences was 15, 5 and 10 years' imprisonment respectively. On 12 October 1999 sentences of 22 months', six months' and two months' imprisonment respectively were passed on the three counts, two months of the sentence on the second count being directed to be served cumulatively on the sentence on the first. The total effective sentence was thus 24 months and a non-parole period of 10 months was fixed.

44. The Director of Public Prosecutions has appealed against the sentence, on the ground that each of the individual sentences, the total effective sentence and the non-parole period were manifestly inadequate and that greater cumulation should have been ordered. I need not set out the eleven particulars given of those grounds.

47. The seriously injured victim, Dennis King, was admitted to hospital for emergency surgery. His wounds were life-threatening owing to his considerable loss of blood. He required resuscitation and prolonged surgery to repair the axillary vein and the median, ulnar, medial-cutaneous and thoracodorsal nerves, which had been completely divided. He was right-handed. At the time of sentence the victim, who was a boilermaker, had yet to return to work and had no useful function of the right hand or arm. He was on the waiting list to have tendon transfers. He was unlikely ever to regain good functional use of the right hand and unlikely ever to return to his work as a boilermaker. Matthew King had suffered damage to the right shoulder muscle necessitating surgery. He had spent a few days in hospital and been away from work for three months.

50. At the time of sentence the respondent was almost 25 years old. He has two young children from two separate relationships, neither of whom is in his custody. Both relationships have been at an end for some time. He has had a lot of trouble with the law and many of his prior convictions were of considerable significance for sentencing purposes. Drink has always been his trouble, as it was on the night now in question. The judge found that the respondent was intoxicated at the time of these offences. His counsel told him that drink had for many years been his client's problem and that with intoxication came anger. The respondent had been before the court twelve times between October 1992 and June 1998 and this had resulted in 38 convictions and eight findings of guilt (between which two categories I shall not hereafter distinguish). His convictions included a number of street offences and minor drug offences and half a dozen offences of dishonesty. He had often been convicted of resisting arrest and assaulting a member of the police force. He had eight convictions for criminal damage or some similar offence. He had a conviction for affray. Another was for possessing a prescribed weapon. Most important of all, he had, as a result of three previous court appearances, been convicted of attempting to intentionally cause serious injury, of three offences of causing injury intentionally or recklessly and of causing injury intentionally.

53. He had been shown leniency in a wide variety of ways. Charges had been adjourned upon his undertaking to be of good behaviour. He had been convicted and discharged. He had been fined. He had been placed on a community based order on two occasions and had been subsequently dealt with for breach of those orders. He had received a suspended sentence on condition that he attend Pleasant View and abstain from the use of alcohol and drugs. He had received a wholly suspended sentence. He had been placed on a combined custody and treatment order. This last sentence had been passed upon him on 4 June 1998, when he was convicted of six offences, including causing injury intentionally, possessing a prescribed weapon and assaulting a member of the police force (two charges), and sentenced to ten months' imprisonment, of which six months was to be served in custody and the balance in the community. On the material before him the sentencing judge rightly found that the present offences were committed within the term of the ten month sentence passed in June 1998. Mr Coghlan for the appellant told us, however, that the judge had not been informed of 57 days' presentence detention which had to be credited against the sentence of ten months passed in June 1998. This has the result that by the time of the commission of the present offences two or three weeks had passed since the completion of the service of the sentence of ten months. But the fact remains that the respondent was committing serious offences at a time when he had just completed service of a sentence for similar offences, a sentence that was specifically designed to deal with his longstanding problems and rehabilitate him.

56. As pointing in favour of leniency the judge gave weight to the plea of guilty, his view that the respondent had not been looking for trouble initially, the fact that his judgment was affected by alcohol and - as it seems to me - above all the evidence of a witness named Simpson, the proprietor of a construction company, which seems to have impressed the judge greatly. Mr Simpson had employed the respondent as a labourer in his company's business and said that he had worked well. There had been two periods of employment, the first of about eleven months, from May 1997 until about April 1998, and the second from about October 1998 until the beginning of March 1999. In the first few months of the first period of employment the respondent came before the Court on three occasions. In two separate court appearances in July 1997 he was convicted of offensive behaviour and wilful damage and fined. On 25 August 1997 he was convicted and fined for resisting police and drunkenness. The dates of these offences were not established. Then early in April 1998 the respondent, in another drunken episode, committed seven offences, including causing injury intentionally, possessing a prescribed weapon and two assaults on a member of the police force. These were the offences for which, on 4 June 1998, he was given a total effective sentence of ten months' imprisonment, to be served by way of a combined custody and treatment order. His first period of employment with Mr Simpson's company ended upon his commission of those offences early in April 1998. The second period of employment began in October 1998, when he was released after serving in prison the six months he had been required to serve by the sentence passed on 4 June 1998. This second period of employment, having begun on the respondent's release from prison, ended when he went back into custody for the present offences on his arrest on 3 March 1999. Those offences had been committed on 28 February 1999 and, as I have said, only two or three weeks after the expiration of the ten month sentence to be served by a combined custody and treatment order. Thus each of the two periods of employment ended with another drunken episode in which the respondent's anger got the better of him, causing him to commit serious offences. The last set of offences were committed when he had just finished the course of treatment intended to deal with his addiction to drink and consequent offending.

59. I think his Honour must have given quite disproportionate weight to the evidence of Mr Simpson. When regard is had to all the circumstances, including in particular the number and nature of the previous convictions, the leniency frequently extended to the respondent in the past, the weapon in his possession (after his conviction of carrying a prescribed weapon) and the way in which it was used to stab both victims in the back, the injuries inflicted and their consequences, especially in the case of Dennis King, and the wanton damage done by the respondent to the car tyres, the sentence passed in such as to bring the case within the principles on which this Court acts in considering Director's appeals against sentence, principles which are too well known to require restatement or the citation of authority. One matter particularly troubling is that, as I have mentioned, there were previous convictions for attempting to intentionally cause serious injury, causing injury intentionally or recklessly (three charges) and causing injury intentionally, not to mention the other convictions of offences of violence, and there were the criminal damage convictions. I am persuaded that all three head sentences were in the necessary sense manifestly inadequate, as was the total effective sentence and the non-parole period, and that even if the head sentences had been adequate the cumulation ordered was manifestly inadequate.

62. Mr Holdenson has urged that, if we take the view that there is manifest inadequacy, we should nevertheless exercise our discretion by declining to interfere with the sentence. He relies in particular on the consideration that the respondent has been granted parole and released on 29 December 1999. It is a strong thing to require the taking back into custody of a person who, having served the non-parole period fixed by the sentencing judge, has actually been set free. Nevertheless, in some cases it will be necessary for this to be done, and I am afraid that I consider that the present is one of them. In proposing a substituted sentence I, of course, bear in mind the principles that have been laid down about how the task of resentencing should be approached on a Director's appeal and I bear in mind in particular the fact of the grant of parole.

65. I should say something more about the evidence. On the plea Mr Simpson gave evidence that he was willing to re-employ the respondent. Mr Holdenson sought to rely on an affidavit made by him on the day of the hearing of the appeal showing that the respondent had been employed by his company since 11 January 2000. The Court deferred a ruling on whether this affidavit should be received. I do not think that any ruling is necessary or should be given. I am content to consider this appeal on the assumption that the respondent obtained re-employment with the company shortly after he was paroled.

68. I would propose that the appeal be allowed and that the respondent should be resentenced as follows:

On count 2 (recklessly causing serious injury) to be imprisoned for three years; On count 4 (recklessly causing injury) to be imprisoned for nine months; On count 5 (damaging property) to be imprisoned for four months.

72. I would order that five months of the sentence on count 4 and one month of the sentence on count 5 be served cumulatively upon each other and upon the sentence imposed on count 2, giving a total effective sentence of three years six months. I would fix a non-parole period of 16 months, which I regard as very lenient. The respondent having served the ten month non-parole period fixed by the judge, we should make a declaration that for the purposes of the substituted sentence there is presentence detention of ten months, which on my calculations amounts to 304 days. We should in addition order that in so far as may be necessary a warrant of commitment be issued.

77. Allen David Patching, the respondent to this Director's appeal against sentence, pleaded guilty in the County Court on 12 October 1999 to one count of recklessly causing serious injury, one count of recklessly causing injury and one count of criminal damage.

80. He admitted 42 previous convictions from 12 appearances between October 1992 and June 1998. A number of them, including the last convictions on the 4th of June 1998, involved causing injury. On this last occasion he received a combined custody and treatment order of which 6 months was served in custody.

83. In respect of the offences to which he pleaded guilty on 12th October, the respondent was sentenced to a total effective term of imprisonment of 24 months. A non-parole period of 10 months was fixed and 226 days of pre-sentence detention were declared to have been served.

86. The events which lead to the respondent being charged occurred on the 28th of February 1999 when two cars pulled up at the toilets at Eastern Beach. In the respondent's car there were a number of his friends and his brother. There were a number of young men in the other car. As a result of some comments a confrontation developed. The respondent's brother and another young man, Rayner, were involved in a fight during which the occupants of the other car began striking the respondent's brother and Rayner. Others from the other car joined in the assault as did the respondent's friends and a melee developed. The respondent did not initially become involved.

89. The learned sentencing Judge accepted that the respondent was called to assist his brother who was being assaulted. He acted on the basis that the respondent perceived the need to defend himself and others. The respondent was intoxicated and left the car to join the fight. After a short time he produced a pocket knife and stabbed two of the young men from the other car. John King was stabbed in the shoulder and as a result has suffered a significant loss of the use of his arm. He is a welder and his ability to work has been affected. The other young man, Dennis King, suffered a lesser injury but has significant psychological scarring as a result of the attack. After the fight was over the respondent cut the tyres of the other car as an act of retribution.

92. At the time when this occurred the respondent had been released from custody but was still undergoing in the community part of the sentence imposed on the 4th of June 1998.

95. It was obvious given the serious nature of the attack with the use of a knife when intoxicated, when the respondent was still undergoing part of a treatment program that a sentence of imprisonment had to be imposed.

98. The Director's appeal is brought on the grounds that in these circumstances the sentence imposed is manifestly inadequate in that it does not sufficiently reflect the principles of specific and general deterrence.

101. It was submitted on behalf of the Director that the sentencing Judge was required in these circumstances to impose a sentence which involved punishment as well as deterrence. It was further submitted that the inadequate sentence was imposed because His Honour overvalued the degree of rehabilitation, which was the main feature of the plea made on behalf of the respondent.

104. The respondent was 24 years of age. He had a disadvantaged background without the benefit of parental guidance and left school during Year 9, living on and off with his grandmother and attempting to make his own way in the world. The sentencing Judge observed that the respondent's life had been unsettled and he was deprived of emotional support and guidance and drifted into bad company, which led to abuse of alcohol from an early age and to his offending. He noted that the respondent had been given many opportunities but continued to offend nevertheless.

107. Evidence which impressed the sentencing Judge was given by a Mr Simpson who, through the auspices of the Brosnan Centre, had supported the respondent, had employed him and was prepared to offer him employment and support on his release from custody. His Honour also accepted that part of the respondent's problems were due to a break up in January 1999 of a relationship from he had two young sons. This separation and limited access to his sons caused the respondent to be depressed and angry. His Honour accepted that the respondent was trying to do his best despite his difficulties.

110. As to the events of the night when the offences were committed, His Honour took the view that the respondent was caught in a dilemma, not looking for trouble and his judgment was affected by alcohol when he did not anticipate placing himself in a position of risk. His Honour allowed for the fact that the respondent pleaded guilty and after balancing the various competing considerations concluded that the respondent's interests and the community's interests would be ultimately best served by his not being wasted at Port Phillip jail for any period longer than is necessary.

113. It was submitted on behalf of the respondent that the findings His Honour made both as to the circumstances of the offences and the mitigatory factors, particularly the prospect of rehabilitation, were open and entitled him to sentence the respondent as he did, after balancing the various competing considerations. It was submitted that the respondent was still a young man upon whom a sentence of imprisonment had to be imposed but whose prospects the learned and experienced Judge was entitled to assess as he did bearing in mind both the applicant's interest and those of the community. In those circumstances a sentence of 2 years' imprisonment was, it was said, not manifestly inadequate. It was also submitted that the respondent, having been released on parole at the end of December, had resumed his work with Mr Simpson thus taking the opportunity to continue his rehabilitation. In support of this submission, counsel for the respondent sought to rely on an affidavit by Mr Simpson confirming the respondent's good work history both past and present. The court reserved the question of the admissibility of this evidence. I would not allow the receipt of this material particularly as the learned sentencing Judge knew of and acted upon the evidence of Mr Simpson and there is nothing in the affidavit which takes the matter further. It is only when events occur after sentencing which were uncertain or unclear and which have a direct bearing on the way such events develop that the receipt of evidence of events after sentencing is justified. It is of course common ground that the respondent is now on parole in the community and employed by Mr Simpson.

116. For the purpose of this appeal the sentence which must be considered is 2 years' imprisonment. It is, I think, a light sentence in the circumstances. However, it was not outside the range of sentences available to the learned Judge in the light of the findings of fact and his view about the respondent's prospects for rehabilitation. Those findings were favourable to the respondent and the conclusions based upon them were open to the Judge. In any event, even if it could be said that this sentence is unduly lenient, I think this court should exercise its overriding discretion, now that the respondent is out on parole, not to impose a sentence which would place him back in custody for what would have to be a reasonably short time and thereby significantly impede his rehabilitation. The double jeopardy factor should also not be overlooked. I would therefore dismiss this appeal.