DPP v Smeaton [2007] VSCA 256

Court of Appeal (Vic)|2007-11-15|Before: MAXWELL P, NETTLE and DODDS-STREETON JJA

CRIMINAL LAW - Sentencing - Crown appeal - Intentionally causing serious injury - Manifest inadequacy - Respondent long term drug user - Offence committed while on bail - Respondent re-sentenced to a term of five years' imprisonment with a non-parole period of three years.

**1 I will invite Nettle JA to deliver the first judgment.

**3 The respondent was born on 27 June 1975 and at the time of the commission of the offence on 14 September 2006 he was 31 years of age. The victim of the offence was a 23-year-old woman who, at one time at least, had been the respondent's girlfriend. The offence occurred in the Footscray Mall after the respondent had seen the victim there and approached her. He asked her whether she was there to buy heroin and she replied that she was not. The respondent immediately became abusive and aggressive, saying that she should help him for the help he had given her on occasions in the past. He punched her to the head and when she fell to the ground he kicked her whilst she was on the ground. The kicking was repeated and according to eye witnesses the respondent appeared to line up the victim's head and kick it like a football. One onlooker described the attack as 'vicious and cowardly' and another as 'one of the worst senseless acts I have seen'. It was conceded that the motive for the attack was the respondent's anger at the victim's refusal to assist him to 'score' heroin.

4 The victim lost consciousness and then the respondent ordered one of her friends to pick her up. When the friend was unable to do so alone, the respondent and the friend picked up the victim and took her to a medical centre in the mall. The respondent kissed the victim then and said that he was sorry for what he had done. But when police later arrived he tried to avoid them. After a while, he was located and taken into custody but initially he denied assaulting the victim and he was violent and uncooperative to the point where he had to be subdued with OC spray. When later interviewed, he suggested that the attack had been committed by someone else.

5 Fortunately, as the judge said, the victim's injuries were not as great as might have been expected. But they were significant. She sustained a five-centimetre jagged laceration in the area of her right eyebrow, a bruise on her lower eyelid, and there was bony tenderness to the right upper orbit beneath the laceration. She was tender on palpation over the left cheekbone and the angle of her jaw. A CT scan of the brain revealed two sub-one-centimetre hypodensities, which were consistent with oedema, one on the right sub-cortical superior right frontal lobe and one in the left caudate nucleus. Medical opinion was that the wound was likely to heal, but with some degree of permanent scarring.**

6 As the judge observed in his sentencing remarks, the respondent had many prior convictions for violent offences and also for a number of drug related offences. On 26 May 1993 he was convicted before the Magistrates' Court of one charge of causing injury intentionally or recklessly and one charge of unlawful assault, and was sentenced to be released on a community-based order for a period of 12 months. On 23 July 1993 he was convicted before the Magistrates' Court of two charges of assaulting a police officer in the lawful execution of his duty as well as using indecent language in a public place and being drunk in a public place and he was sentenced to be released on a community-based order for a period of six months. On 6 August 1993 he was convicted before the Magistrates' Court of one charge of wilful damage, for which he was sentenced to pay a fine of $50. On 17 November 1995 he was convicted before the Magistrates' Court of one charge of possession of a regulated weapon and one count of possession of a dangerous article, and he was sentenced to pay an aggregate fine of $500. On 26 July 1996 he was convicted before the Magistrates' Court of one charge of theft and charges of going equipped to steal, unlawful assault and causing wilful damage, and he was sentenced to a term of imprisonment of three months suspended for a period of 12 months. On 9 October 1996 he was convicted before the Magistrates' Court of one charge of causing injury intentionally or recklessly and sentenced to a term of imprisonment of four months wholly suspended for 12 months. On 7 March 1997 he was convicted before the Magistrates' Court of one count of possession of cannabis and one count of using cannabis, and was sentenced to pay an aggregate fine of $100. On 19 March 1998 he was convicted before the Magistrates' Court of one charge of damaging property with intent, one charge of unlawful assault, one charge of possession of cannabis and one charge of behaving in an offensive manner in a public place, for which he was sentenced to a term of imprisonment of six months wholly suspended for a period of two years, with special conditions that he remain at Odyssey House drug treatment program and not use drugs of dependence. But on 26 May 1999, having been brought up for breach of the suspended sentence, it was wholly restored with a term of six months to be served. On 26 May 1999 he was convicted before the Magistrates' Court of using a drug of dependence (heroin) and sentenced to a term of imprisonment of seven days. On 3 June 1999 he was convicted before the Magistrates' Court of one charge of theft and one of possession of a regulated weapon and sentenced to be imprisoned for a period of two months. On 1 August 2000 he was convicted before the Magistrates' Court of four charges of theft, one charge of unlawful assault, one charge of threatening serious injury recklessly and one charge of assault with an instrument, and for that he was sentenced to an aggregate term of imprisonment of six months with a special condition that he attend alcohol and other drug treatment programs. On 19 December 2000 he was convicted before the Magistrates' Court of one charge of theft and sentenced to one month imprisonment. On 12 July 2001 he was convicted before the Magistrates' Court of charges of theft, possession of a controlled weapon without excuse, going equipped to steal, attempted theft, using a drug of dependence (amphetamine) and several driving offences, and on that occasion he was sentenced to imprisonment for three months. On 23 November 2001 he was convicted before the Magistrates' Court of charges of damaging property with intent, using indecent language in a public place, causing wilful damage, unlawful assault, using threatening words in a public place, theft and failing to answer bail, and he was sentenced to an aggregate term of imprisonment of six months. On 17 December 2001 he was convicted before the Magistrates' Court of charges of robbery and attempt to commit an indictable offence and sentenced to a period of imprisonment of two months. On 15 August 2002 he was convicted before the Magistrates' Court of charges of theft, being an unlicensed driver and going equipped to steal, and for that he was sentenced to a period of imprisonment of 12 months, with a non-parole period of five months. On 13 November 2002 he was convicted before the Magistrates' Court of charges of theft, using a drug of dependence (heroin) causing injury recklessly and unlawful assault, for which he was sentenced to an aggregate term of imprisonment of 180 days, with 140 days suspended for 12 months. On 30 September 2003 he was convicted before the County Court of one count of attempted armed robbery and one count of damaging property with intent, and for that he was sentenced to a total effective sentence of three years and six months' imprisonment with a non-parole period of two years and nine months. Finally, before the commission of the subject offence, on 5 May 2004 he was convicted before the County Court of two counts of theft, one count of being an unlicensed driver and one count of going equipped to steal, and for that he was sentenced to an aggregate term of imprisonment of 12 months.

7 The judge noted that the respondent was afflicted by long-term substance dependence and that he was prone to violent rages, especially under the influence of drugs, with subsequent specific amnesia. There was also evidence that the respondent had taken 24 Xanax tablets about an hour before the commission of the subject offence, and that he was to some extent perhaps under the influence of Xanax at the time of committing the offence. There was, however, no suggestion of the availability of a defence under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. In a report dated 27 May 2007, which was before the sentencing judge, Ms Pamela Matthews, consulting psychologist, stated that the respondent's profile indicated a history of damaged attachments, difficulty forming adult attachments and depressive disorder with suicidality, but no cognitive deficits as such.

**8 The Director of Public Prosecutions contends that the objective seriousness of the offending, the effect of the offence on the victim, and the need for general and specific deterrence, denunciation and community protection, necessitate a significantly greater sentence than three years' imprisonment.

9 Counsel for the Director relies on observations of Redlich JA in Director of Public Prosecutions v Bright[1] as to the need to assess the objective gravity of the offence and avoid giving undue weight to other relevant sentencing considerations, and in particular to subjective factors. In counsel's submission, the leniency of the sentence imposed in this case implies that the sentencing judge failed to heed that imperative.**

10 Counsel for the respondent submits to the contrary that the sentence was within the range for this type of offence; especially having regard to the relatively limited extent of the victim's injuries. Counsel also points to a range of mitigatory considerations to which the judge referred, including the respondent's willingness to plead guilty at an early stage (reflecting, as the judge said, both remorse and a will to save the victim and the community from the need for a trial). Counsel argues that the judge was right to regard the respondent as having reasonable prospects of rehabilitation (in that the respondent had remained drug free during the 264 days which he had spent in custody before he was sentenced). There was, counsel said, as well the respondent's psychological condition which, although not directly linked to the offending, remained of relevance in determining the needs of general and specific deterrence and the degree of the respondent's moral culpability. As counsel also pointed out, the respondent had a background of deprivation and disadvantage and a history of depression, substance abuse and an inclination to self-harm. In counsel's submission, there was a risk, too, that a greater sentence would lead to the respondent becoming institutionalised.

**11 Plainly enough, the judge in this case was faced with a difficult sentencing task. His Honour was presented with a broad range of competing sentencing considerations and he was urged not to impose a sentence which might lead to the respondent becoming institutionalised. It was not surprising, therefore, that his Honour reserved his decision in order to consider how best to balance those requirements. And if I may say so, with respect, his sentencing remarks reflect an assiduous consideration of the matters which were urged upon him. But, despite the care with which his Honour thus approached the task, I have come to the clear view that the sentence is manifestly inadequate.

12 Counsel for the respondent submitted that the crime had to be seen in the context of a long-term drug-based relationship, in which the respondent and the victim had committed offences together and throughout which they had sought psychologically to control each other. He contended that, viewed against that background, and knowing that the victim had rejected the respondent's request for help in scoring heroin, it was to be inferred that the respondent had snapped, and thus that his moral culpability was less than otherwise it might be. I accept that may be so. It is possible to construe what the judge said on the point as amounting to a finding that the respondent snapped and attacked the victim in a fit of rage, and therefore that his moral culpability was to some extent less than it would be if he had acted with cold deliberation.

13 But, that having been said, this was a vicious, cruel and unprovoked attack on a small and virtually defenceless woman. To kick anyone in the head is grossly dangerous. To do it more than once, deliberately, is courting the worst kind of disaster. Fortunately, that did not occur. But her injuries were serious, and they are to some extent likely to be permanent. Furthermore, the offence was aggravated by the fact that it was committed in a busy shopping mall at about 2 pm on a week day, when it could be expected to cause distress and concern to passers-by. As counsel for the Director put it, in my view correctly, the offence also represented a gross breach of the trust which the victim reposed in the respondent, without which he may not have got near her. Despite what was said by Mr Tehan on behalf of the respondent, I think the respondent's moral culpability was high. As I have noticed, his motive was his anger because of the victim's refusal to score heroin on his behalf.

14 It may be that the respondent was affected by Xanax tablets at the time of the offence, and it may be perhaps that he would not have behaved as he did if he had not taken the tablets. But that is not a mitigating circumstance in this case. Despite all the deficits by which he is afflicted, the respondent knew from previous experience that he would be prone to anger and aggression if he put himself under the influence of drugs, and yet he took the tablets. If anything, therefore, in the circumstances of this case, the respondent's consumption of the drug was an aggravating factor[2] and, more importantly, it emphasises the need for community protection.

15 To that must be added that the offence was committed while the respondent was on parole for the offence of attempted armed robbery for which he was sentenced on 30 September 2003 (and in respect of which he had been released from custody only five months before the commission of this offence); and that this offence represents one more, and thus far the most serious, violent offence among the long list of violent and other offences of which he now stands convicted. For, although a serious criminal history does not necessarily call for the imposition of a greater penalty, as Redlich JA noted recently in R v McNamara,[3] it is an indication of 'the offender's moral culpability, his prospects of rehabilitation, his dangerous propensity, and the community's need for protection, with the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence.'[4]

16 Given the nature and gravity of this offending and the extent of the respondent's criminal history, I consider that a sentence of only three years, with a non-parole period of only 20 months, would shock the public conscience.[5] In my view, the requirements of general and specific deterrence, denunciation, just punishment and community protection demand a sentence so much more than was imposed as to imply that the sentencing discretion miscarried.**

17 Bearing in mind the considerations to which I have referred, I would quash the sentence passed below and re-sentence the respondent to a term of imprisonment of five years. Were it not for the respondent's plea of guilty and the principle of double jeopardy as it applies in Crown appeals against sentence, the sentence would in my view need to be more. Further, in order not to undermine the denunciatory effect of the sentence, I consider that it is necessary that the respondent serve a substantial part of the sentence before being eligible for parole.[6] Having regard, however, to the objects of rehabilitation,[7] the degree of progress made so far, and the risk of institutionalisation to which Mr Tehan referred, I would limit the non-parole period to three years.

19 I agree with the disposition proposed by Nettle JA for the reasons his Honour has stated.

20 I add that some of the details of the respondent's crime are particularly troubling. Having encountered his former girlfriend in a public shopping mall, the respondent, apparently due to her refusal to pay for the drugs he desired, punched her in the head, knocking her down. He then kicked her in the head twice. He was described as first lining the young woman's body up and running at her as if to kick a soccer ball. With good reason, one witness stated that he was nauseated by the respondent's vicious and cowardly attack on the victim, who was knocked unconscious, sustained swelling of her brain and received wounds to her face with probably permanent scarring.

21 Violence, and in particular violence by men against women as a means of control in current relationships or in relationships which have ended, is a prevalent and even critical social evil. As in the present case, the perpetrator not uncommonly expresses remorse immediately after a violent assault, but nevertheless seeks to blame the victim for causing the attack. Although the respondent did appear to regret the assault, as the sentencing judge observed, his letter to the court denigrated the victim's character and effectively sought to blame her for his backsliding into drug use and for provoking the attack. In the police interview, he denied the crime, at one point apparently claiming that the victim had assaulted him, and called her a lying dog.

22 While, as his counsel submitted, much in the respondent's background and aspects of his psychological and mental health must properly be accorded weight in**

**mitigation, it remains necessary that the sentence be proportionate to, and reflect the gravity of, the crime, the impact on the victim, the need for denunciation and for specific and general deterrence. In the present case, in my opinion, the sentence fails to accord with those principles. It does not sufficiently express the deep abhorrence excited by a violent and brutal physical assault by an adult male on a slight young woman, which is in no degree abated by the fact of a prior relationship between the victim and the perpetrator. The sentence does not adequately reflect the community's current determination to deter the repetition of such crimes, whether by the offender or by others. The sentence is, in my view, manifestly inadequate and such as to shock the public conscience. It devalues the victim and discounts the gravity of the crime, to such an extent that, making due allowance for double jeopardy, in my opinion, re-sentencing as proposed by Nettle JA is warranted.

23 I agree with the re-sentencing proposed, for the reasons respectively given by their Honours.

24 I add only this for myself. At the end of his submission, Mr Tehan made a contention to this effect: 'The niceties of human behaviour need to be qualified or moderated by reference to the realities of the world of small-time drug addicts.' Mr Tehan had earlier, as I understood him, abandoned a submission that a mitigating aspect of this vicious assault was to be found in what he described as the manipulative, mutually destructive drug relationship between the perpetrator and the victim. But the later submission seemed to be an argument of the same kind, that what goes on in what Mr Tehan describes as 'the world of small-time drug addicts' is somehow qualitatively different, such that what he calls 'the niceties of human behaviour' are not to be regarded as the governing considerations when a court considers the gravity of the conduct when sentencing for it.

25 I regard that submission as wholly untenable. It seems to me that the phrase**

**'the niceties of human behaviour' is an altogether inappropriate description of the core issue in this case, which is the right of each person to be free of physical violence of any kind. That is not a matter of niceties. That is a matter of human rights. Every person, however troubled or afflicted, is entitled equally to the enjoyment of that human right. It seems to me fundamental to the rule of law that that universality be asserted and maintained.

26 Of course, the particular circumstances of an offender must be borne in mind, as the trial judge did bear them in mind, and as Nettle JA has in his reasons. That is an altogether different point. But the suggestion that this is somehow less serious, or is to denounced less strongly, because it occurred in 'the world of small-time drug addicts' is, in my opinion, a suggestion to be repudiated. The objective gravity of the offence has been amply described in what my colleagues have said.

The sentence of imprisonment imposed below is quashed. In lieu thereof, the appellant is sentenced as follows:

It is declared that the period of 426 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 14 of the Appeals Costs Act 1998.

[2] R v Coleman (1990) 47 A Crim R 306, 327; R v Walker Unrep. VSCA 31 May 1996, (Hayne JA with whom Southwell AJA agreed); R v Groome [1999] 2 VR 159, 164 [23]-[24] (Batt JA with whom Tadgell and Buchanan JJA agreed); R v Hay [2007] VSCA 147 [53] (Maxwell P).

[4] Ibid, [17] (Redlich JA citing R v O'Brien and Gloucester [1997] 2 VR 714, 718 (Charles JA with whom Winneke P and Southwell AJA agreed)).

[5] DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538 [10], and the cases there cited.

[6] R v VZ [1998] VSCA 32; (1998) 7 VR 693, 698 [18] (Callaway, JA).

[7] In her report dated 27 May 2007, Ms Pamela Anderson, consulting psychologist, recommends that, from a rehabilitative perspective there should be an ongoing focus on intensive treatment plans during parole periods.

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

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