DPP v Ross [2006] VSCA 223

"Ms. Kelly moved out of the home they shared in early January, 2004. She had told him that the separation would help them 'work things out,' implying a continuance of the relationship.

Mr Ross perceives that Ms Kelly's behaviour after moving out appeared to be 'all over the place.' She would be very cold and insulting to him when he was there in the presence of her friends, and he would then stay away from her. Within days she would then call him and propose that they get together or go out for the day and she would be privately affectionate and seem to care for him like she used to. He perceives that he 'tried to separate from her but the further I pulled away, the closer she got to me and when I was close to her, she would pull away'. It was decided that Mr. Ross would stay over one night per week in order to help both mother and toddler with the transition and on occasion they would be sexually intimate. On the 2/10/04, almost 10 months after she had moved out of the house, this was continuing and Mr. Ross and Ms. Kelly were still doing things together. Towards the end of the relationship, Mr Ross's symptoms of anxiety became even more marked, in response to the pressure his partner was putting on him and her erratic behaviour. He began to experience further palpitations and panic attacks and on two occasions required hospitalisation."

6 On 23 October 2004, Ross rang Ms Kelly and asked whether she was seeing someone else. She admitted that she was with Morris. Shortly afterwards, Morris saw Ross's car when he returned to Kelly's house from shopping. Morris went upstairs to warn Kelly that Ross was there. Ross went up the stairs to Kelly's place and kicked open the small door. Ross was holding a 20-inch-long metal torch. Ms Kelly stood between Ross and Morris.

7 Although Kelly was the person with whom Ross wanted to resume a relationship and was the mother of his son, he struck her on the arm with the torch and then threw her out of the way. Ross then struck Morris on the head with the torch twice, causing him to fall to the ground, and then kicked him in the chest while he was on the ground. While Morris was on the ground, Kelly again tried to prevent Ross from hitting Morris but was unable to do so. Ross continued to hit Morris on the head with the torch. The sustained attack only stopped when Kelly put her body between the attacker and the victim.

8 The victims fled down the stairs. Ross disposed of the torch and then called an ambulance, saying that he had assaulted a man, and went downstairs to where the victims were. His prompt action in that regard was commendable, but having gone downstairs, Ross taunted and threatened Morris. At the same time he assisted Kelly to treat Morris with a towel. The police arrived shortly afterwards and arrested Ross.

9 Both victims were conveyed to hospital. Morris suffered a fractured skull and an acute left frontal extradural haematoma. He has lost sensation in the fingers of his right hand which, according to his victim impact statement, now prevents him playing the guitar, which was something he had done with pleasure for fifteen years. Morris remained in intensive care for two days. Kelly received bruises and grazing. The physical injuries to both victims later healed fully, but their victim impact statements eloquently describe the very serious psychological effects of this violent attack, which were continuing as at the date of the victim impact statements.

10 The reports of two psychologists were presented in support of the plea in mitigation. Evidence was given by one of them, Mr Cummins. According to the treating psychologist, Ms Kobatsiari-Karvelis, Mr Ross had been suffering from depression and anxiety for several years. He was, at the time of the offending, on antidepressant medication. A significant factor in these conditions was a back injury which he had suffered in 2001 while doing unpaid community work as part of an intensive corrections order. The injury caused significant financial strain, and his inability to work affected his self-esteem, understandably. His relationship with Kelly inevitably suffered as a result of his being out of work and the dejection associated with his injury and his unemployment.

11 On the plea, reference was made by defence counsel to what had been said in the County Court by Judge Davis, who subsequently heard Mr Ross's serious injury claim. Her Honour found that Mr Ross's real problem was his own attitude and his own state of mind. In her view, Ross needed "to get a proper attitude and move on". This assessment of Mr Ross was adopted by his own counsel and by Mr Cummins, the expert called on his behalf.

12 Mr Boyce, for Ross, accepts that his depression and the dejection attributable to the loss of work was not intractable, but was amenable to being improved by effort of his own will, which is often not the case with depression. Mr Boyce said it was "understandable that Ross might indulge for a period in some self-obsessive behaviour". Accepting that his psychological condition was capable of self-correction, the existence of the condition would not mitigate the conduct in the Tsiaras[1] sense. Moreover, I think there would need to be very clear evidence before it could be concluded that depression - or antidepressant medication for that matter - was productive of violent behaviour of this kind. As far as I am aware, depression is much more typically associated with inaction, lethargy and incapacity to act.

13 Mr Boyce's central submission was that the sentence imposed showed that the judge had intuitively appreciated "the human story". According to the submission, the judge could see in the respondent an "immense capacity for rehabilitation". Ross was "a man who dragged himself out of a pit by his own effort of will and that good work should not go to waste". I accept the force of that submission, as his Honour obviously did.

14 His Honour said:[2]

"In result, the prisoner has now built a responsible life based on sound employment, a contented domestic arrangement and a considerable growth in understanding and control of his psychological problems. Nevertheless, both psychologists describe his psychological condition as fragile and in need of further treatment. I am satisfied that the prisoner has largely overcome the problems which caused his offending and unless imprisoned, is unlikely to offend again.

The case obviously turns on the striking of a balance between retribution and general deterrence on the one hand, and reformation on the other. The balance is made more unstable than usual by my satisfaction that there is a high danger that imprisonment may damage or destroy the performance which has been achieved. This is a matter which has caused me great concern and continues to do so."

15 I note his Honour's reference to "a high danger that imprisonment may damage or destroy the performance which has been achieved". As I said in Director of Public Prosecutions v Tokava,[3] it is of the first importance to recognise what underlies the sentencing court's concern with rehabilitation. Apart from the interest of the individual whom it is sought to rehabilitate - an important interest in itself - there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime.

16 His Honour was right to have regard to the likelihood that imprisonment would have deleterious effects on the person sentenced. As I said in Tokava, it would be unreal and artificial for sentencing courts to ignore the evidence about the antisocial effects of time spent in gaol. Nevertheless, for so long as the available sentencing options remain as they are, the Court has no alternative but to impose prison sentences for serious offences. As judges have said for decades, it is much to be hoped that time spent in prison will in the future be less counterproductive and more constructive as correctional methods improve.

17 Taking full account of the importance of rehabilitation and the commendable rehabilitation which Mr Ross has demonstrated, I am satisfied nevertheless that this sentence was so clearly below what was required, having regard to specific and general deterrence and denunciation, as to show error of principle. It is important to bear in mind what was said in R v Tran,[4] as follows:

"It is true that in the case of a youthful offender rehabilitation is usually far more important than general deterrence, but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important."

As Callaway JA pointed out in DPP v Karipis,[5] there will be circumstances - of which the present case is an example - where the seriousness of the offence means that just punishment and general deterrence have to take precedence over rehabilitation.

18 Much was made by Mr Boyce of the fact that Mr Ross feared losing contact with his son once he learned that his former partner, the mother of the boy, was romantically involved with somebody else. In evidence given on the plea, the psychologist was asked by counsel for Ross about the likely effect on Mr Ross of Ms Kelly denying or threatening to deny access to Ross before the incident. Mr Boyce properly conceded that that question was put on a false basis. There was nothing said at any time by Mr Ross, to either of the psychologists, to suggest that there had ever been a threat of denial of access. Indeed, Ms Kobatsiari-Karvelis' report records that the issue of denial of access arose for the first time after the attack. It is hardly surprising that it arose at that time, given the behaviour that Ms Kelly had seen the father of her son engage in.

19 In the end, however, it seems to me to be unimportant whether what occasioned this angry and violent invasion of Ms Kelly's house was a sense of loss of the relationship with Ms Kelly, or a threat to the relationship with the son, or both. It was not unreasonable for Mr Ross to fear some attenuation of the relationship with his son. But even if there had been an actual threat to deny him access - and, as I have said, there was not - that circumstance would not affect the culpability of the conduct.

20 As the daily business of the Family Court demonstrates, these are absolutely fundamental relationships, with a partner and with a child. I would readily accept that any threat to either of those relationships can have the most profound impact on the person concerned. A father threatened with the loss of contact with his son is likely to be extraordinarily upset at the prospect. That is of the very nature of these important relationships. In my opinion, the inevitable pain occasioned by a threat to those relationships can never - repeat, never - justify violence against any other person. The existence of that recognisable and understandable emotional upset and anguish is not, and can never be, an excuse for violence.

21 In my opinion, the sentence imposed was simply not commensurate with the seriousness of the offence. The appeal raises an important question of consistency of sentencing, that being one of the recognised categories in which the Court of Appeal will intervene upon a Director's appeal.[6] I will refer to what the Sentencing Council has recently published in relation to sentences for intentionally causing serious injury, and to a series of relevant decisions. This comparative material is a necessary part of the framework within which this Court deals with questions of consistency.

22 I hope that, in future, this Court will receive greater assistance from the parties when dealing with the question of what is within, and what is outside, the applicable sentencing range. While it is of great assistance to have the Director give us his view about what the range is, we do need reference to relevant recent decisions, and it should not fall to the Court to do all the research. Since the Director shares with this Court the responsibility for maintaining consistency in sentencing, he must be adequately resourced so that we can receive proper submissions in these matters.

23 In the Sentencing Snapshot published by the Sentencing Advisory Council, September 2006, there are two very important tables dealing with sentencing for intentionally causing serious injury. The Council regularly publishes such "snapshots", and this is a very good illustration of how useful they can be.

Figure 1: The average length of imprisonment term imposed on people sentenced for causing serious injury intentionally, 2000-01 to 2004-05

[ IMAGE ]

Figure 2: People sentenced to imprisonment for causing serious injury intentionally by average total effective sentence and average non-parole period, 2000-01 to 2004-05

[ IMAGE ]

24 As to recent decisions, I refer first to R v Stuttard.[7] The defendant was convicted of recklessly causing serious injury. He had been sentenced to three years' imprisonment with a non-parole period of two. He was given leave to appeal on the non-parole period only, and the appeal was dismissed. He had never been in trouble with the police, pleaded guilty at the first opportunity, co-operated with the police and showed genuine remorse, had a full-time job, steady relationship with his girlfriend, strong family support and excellent prospects of rehabilitation. But, on the one night in question, he went to his car and got a knife which he took with him to an altercation. He stabbed the victim, who nearly died from loss of blood. As with the present case, it was sheer good luck that the offender was not facing a charge of murder or manslaughter.

25 As a matter of consistency, it would be difficult to justify upholding the present sentence of 12 months for intentionally causing serious injury, when Mr Stuttard is serving a sentence of three years (with a minimum of two) for recklessly causing serious injury. Conscious as I am that each case is factually different from the next, there are no such differences between those cases as could justify such a disparity in sentencing.

26 Consistency in sentencing is absolutely fundamental to public confidence in the criminal justice system.[8] It is also a basic requirement of the rule of law. Deference to and reliance on the individual judgment made by the trial judge is also vitally important, and inevitably there will be variation from one judge to another. But this Court must intervene when there is unacceptable disparity between one case and another.

27 The next relevant decision is R v Lacey.[9] In that case Mr Lacey took his two sons and a friend, and an iron bar, to attack his former partner's new partner. As Vincent, J.A. said, he "went to the victim's home with an aggressive purpose that he then fulfilled".[10] Exactly the same can be said of the present case. Vincent, J.A. then said, in terms which are equally applicable to the present case:

"The offences ... were ... extremely serious. [The appellant's] level of culpability for their commission is high. Not only are the circumstances relative to these offences and the particular offender such that his conduct merits the imposition of significant punishment, but clearly gives rise to the need to attribute significance to the principle of general deterrence. The resolution of personal disputes by the resort to the kind of armed attack for which the appellant was primarily responsible cannot be countenanced and it must be understood that the engagement in such behaviour will be likely to attract serious consequences to attend it."[11]

I respectfully endorse those remarks. His Honour made the further point that, even if there had been threatening phone calls made to the defendant in that case, that was no excuse for the outbreak of violence which followed.[12]

28 In my opinion this Court needs to make very clear to sentencing judges, and through them to the community, that resorting to violence of this kind to resolve emotional disputes or personal antipathies will be treated very, very seriously by the courts.

29 The next decision is Director of Public Prosecutions v Hooker.[13] In that case, the sentence imposed at first instance for intentionally causing serious injury was eight months, wholly suspended for 15 months. In re-sentencing, this increased the sentence to two years and six months. Since, however, the defendant was not in custody, the order for suspension was maintained. What is relevant for present purposes is the very substantial increase in the head sentence from eight months to 30 months. Vincent JA said:

"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."

30 Lastly I refer to the very helpful summary given by Eames, J.A. in R v Mafulu Tafa Sa,[14] of three decisions of the Court (delivered in August 2004) in the matters of R v Huynh,[15] DPP v Zullo[16] and DPP v Lawrence[17] respectively. Each of those involved intentionally causing serious injury. They were all cases of unprovoked assaults on innocent people. In Huynh, the offence of intentionally causing serious injury produced a sentence of eight years. The appeal against sentence failed. In Zullo, the Court allowed the Crown's appeal and increased the sentence of three years and six months, with a non-parole period of two and a half years, to seven years with a non-parole period of five years for an "unprovoked and vicious attack". In DPP v Lawrence, a case described as one of "wanton and unprovoked viciousness,"[18] the Court increased the sentence of 20 months' imprisonment, with a non-parole period of 14 months, to five years imprisonment with a three year non-parole period. In all three cases there were prior convictions for causing injury.

31 In my opinion, this case has different aggravating features. Leave aside the vicious attack on Mr Morris, the violence against Ms Kelly is to be deplored. Any violence by men against women is to be condemned in the harshest terms. For Ross to have been violent to someone for whom he professed love and a wish to continue the relationship, and who was above all the mother of his beloved child, is little short of inexplicable. As I said earlier, she has obviously suffered very serious consequences from the attack. There were, as Mr Coghlan submitted, two victims here, not one, and I accept his submission that there was no reason not to order a degree of cumulation. It also seems to me to be an aggravating factor that Mr Ross continued to lie about how the fight started. He gave a version of events to police, and to the psychologists, which was quite untrue, as he well knew. Instead of admitting that it was a premeditated attack where he had brought the weapon, Ross lied, saying that he discovered Ms Kelly and Mr Morris having sex together and reacted spontaneously.

32 There are also mitigating factors, and they were properly considered by his Honour. In my opinion the most significant of these is rehabilitation, to which Mr Boyce has very properly given prominence. The sentencing court is faced with a very difficult decision when deterrence and denunciation point in favour of a longer sentence, but a shorter sentence would maximise the prospect that Mr Ross will continue his commendable rehabilitation and will continue the very important relationship with his son, which we are told he has re-established sufficiently to enable contact to occur.

33 Those matters of rehabilitation must all be recognised and responded to. It is important that Mr Ross appreciates that they make his position very much stronger than it would otherwise be. I take no different view from the trial judge about the significance of those matters. I regard them as very significant, and for that reason the sentence that I am about to propose is lower than it would otherwise have been. Moreover, what I am about to propose takes into account the double jeopardy discount to which a respondent to a successful Crown appeal is entitled.

34 I propose, therefore, that the appeal be allowed, the sentence below be set aside and Mr Ross be re-sentenced as follows:

On count 1, intentionally causing serious injury: a sentence of two years and six months.

On count 2, recklessly causing injury: a sentence of one year, of which six months should be served cumulatively on the sentence for count 1.

That would give a total effective sentence of three years, and I would fix a non-parole period of 18 months.

35 Substantially for the reasons stated by the President, I agree that the Director's appeal should be allowed and the respondent re-sentenced as stated by his Honour.

36 I further add that this was conduct that warranted condign punishment. It involved home invasion with force and violence followed by sustained violent conduct. Notwithstanding the contextual relationship between the respondent and the female victim, Ms Kelly, the behaviour of the respondent was unacceptable by any community standard. However, there are mitigating features of the respondent's position. These have been addressed by the President. In a case such as this, an individual might anticipate a longer non-parole period than that stated by the President, yet there ought be appropriate recognition of the attempts of the respondent in this case to rehabilitate himself. I am also mindful of the need in this case that the respondent not be crushed by the substituted sentence. He was until today facing release on 15 November 2006. That prospect has now evaporated and he will face a further year in prison before his earliest release date. In the circumstances of the respondent, this factor is properly reflected in the non-parole period indicated by the President.

37 I agree that the appeal should be allowed for the reasons stated by the President and that the respondent should be re-sentenced as his Honour proposes.

38 I would add that I do not altogether share the President's view as to the importance of a statement by counsel of his view of the upper and lower ends of the range of sentences available in a particular case.

39 In my view judicial references to a range of acceptable sentences are not to be taken literally. The essential question which arises when it is contended that a sentence is manifestly excessive or inadequate is whether the sentence could be imposed in the exercise of a sound sentencing discretion. The "range" is a reference to the concept of a sentence falling within the limits of a proper exercise of the sentencing discretion. That is not to say, however, that the limits are capable of expression in precise numerical terms. References to range and limits amount to no more than a recognition that there is not one particular sentence which can be demonstrated to be correct.

40 Sentencing is not a mathematical process.[19] To specify the point at which a range of acceptable sentences begins or ends lends a misleading air of scientific precision to an exercise that cannot be precise. A sentencing judge is required to take into account all the relevant circumstances of the offence, the maximum sentence and relevant factors, such as prevalence of the crime, which are common, not to the particular offence in question, but to all offences of that type, as well as the character and antecedents of the offender. The relevant factors are to be instinctively synthesized.[20] In reviewing the performance of that task, I do not think it is helpful that counsel for an offender or the Crown express his or her opinion as to the precise point at which a sentence becomes manifestly excessive or inadequate, or his or her

perception of the figure that is most likely to achieve a forensic objective and which would probably be based upon sentences imposed on other cases, where the circumstances of the offence and the offender were different.

41 The orders the Court would propose in this matter are as follows:

2. The sentence below is set aside and the respondent is re-sentenced as follows:

Count 1 - two years and six months imprisonment;

Count 2 - one year imprisonment.

3. The Court orders that six months of the sentence on count 2 be served cumulatively on the sentence on count 1, making a total effective sentence of three years.

4. The Court fixes a non-parole period of 18 months.

5. It is declared that the period of 144 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

The Court grants to the respondent an indemnity certificate pursuant to s.15

of the Appeal Costs Act 1998.

[1] [1996] VicRp 26; [1996] 1 VR 398.

[2] Reasons for sentence [8]-[9].

[3] [2006] VSCA 156 at [18]-[24].

[4] [2002] VSCA 52; (2002) 4 VR 457 at 462 [14] (footnotes omitted).

[5] [2005] VSCA 119 at [13].

[6] R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522.

[7] [2006] VSCA 112.

[8] See Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610-611 per Mason J; Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 591 per Gleeson CJ.

[9] [2006] VSCA 4.

[10] At [16].

[11] At [18]-[19].

[12] At [35].

[13] [2006] VSCA 95.

[14] [2004] VSCA 182.

[15] [2004] VSCA 156.

[16] [2004] VSCA 153.

[17] [2004] VSCA 154.

[18] At [22].

[19] Ryan v. R. (2001) 206 C.L.R. 267 at 278 per McHugh, J.; Pearce v. R. (1988) 194 C.L.R. 610 at 624 per McHugh, Hayne and Callinan JJ.

[20] See Wong v. R. [2001] HCA 64; (2001) 207 C.L.R. 584 at 611-2 per Gaudron, Gummow and Hayne, JJ.; Johnson v. R. [2004] HCA 15; (2004) 78 A.L.J.R. 616 at 623 per Gummow, Callinan and Heydon, JJ.