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[2005] VSCA 222
Court of Appeal (Vic)
2005-09-01
EAMES and NETTLE, JJ.A. and HOLLINGWORTH, A.J.A.
Original judgment source is linked above.
Criminal Law - Sentencing - Director's appeal - Intentionally causing serious injury - Unusual mitigatory circumstances - Delay - Long period between commission of assault and sentencing - Aboriginality - Whether respondent's aboriginality a mitigating factor - Whether sentence of two years with a non-parole period of six months manifestly inadequate - Appeal dismissed.
1 I will ask Nettle, J.A. to deliver the first judgment.
2 This is an appeal by the Director of Public Prosecutions against a sentence of two years' imprisonment with a non-parole period of six months imposed on the respondent in respect of one count of intentionally causing serious injury.
3 The background circumstances are unusual. The respondent is of aboriginal descent. He was born on 14 September 1968, the eldest of six children, to parents who were heavily dependent on alcohol. He was brought up in an environment of alcohol and drug abuse and in which domestic violence was the norm. His parents separated when he was still in primary school and he left school at Year 8. He worked for a few years on a casual basis as a grape picker and a roustabout, apparently with the intention of becoming a shearer. But he too became addicted to alcohol and substance abuse at a very young age and therefore has never made anything of his life. In 1994, when he was about 26 years of age, he entered into a de facto relationship with a woman named Simone Payne and moved with her and her three year old daughter, Rowena, to live in the Bendigo area.
4 Although it has not always been so in the course of these proceedings, there is now agreement that the relevant facts were that at about 6.30 am on 15 January 1996 Rowena cried out that she had wet the bed and the respondent attended to her. He picked her up and shook her many times. Whilst that was occurring, Rowena's head was flopping and her eyes were turned up. Ms Payne subsequently picked up Rowena and took her to a bedroom and called an ambulance.
5 The child was taken to the Bendigo Hospital and from there by air ambulance to the Royal Children's Hospital in Melbourne, where she was admitted to a neurosurgical ward. She had suffered a brain haemorrhage and was acutely ill. Following neurosurgical intervention she made reasonable neurological recovery.
But ongoing problems remained in the form of a residual left hemiparesis, probable cognitive deficits and abnormal myoclonic movements of her face and left arm.
6 About six weeks after the incident, the Bendigo police made some inquires. But by that stage the respondent had persuaded Simone Payne to say nothing or little of what had occurred. The police were unable to take the matter any further and the relationship between the respondent and Simone Payne continued for a number of years. Then, shortly after the relationship broke up on 1 December 1999, Simone Payne made a written complaint to the New South Wales Police and police began efforts to locate the respondent again.
7 The police were unable to make contact with the respondent for some time. After breaking up with Simone Payne, he had first gone back to Mildura, whence originally he came, and then to Orange, and then from Orange to Whyalla in South Australia. At that stage he was diagnosed as suffering from schizophrenia and pancreatitis, the consequence of chronic alcoholism, and he returned to Echuca to be with his father and other members of his family. He has lived there as an invalid pensioner ever since. He has received medical advice that if he drinks to excess again he is likely to die, and accordingly he has not drunk again.
8 Police finally located the respondent in 2003 and interviewed him about the offence. He made substantial admissions. The respondent denied that he had hit the child. He said that Simone Payne had. But he admitted that he had shaken her and that it was probable that he had caused her injuries. He said, however, that he did not intend to. When asked by police what had happened, the respondent replied: "She was crying and would not stop. All I can remember was shaking her so she would stop crying." Asked how hard he had shaken her, he replied: "Pretty hard." When asked what happened next, he said: "She started collapsing, it frightened me, so I told Simone to ring the ambulance."
9 The respondent appeared before the Magistrates' Court at Bendigo on 19 November 2003 and reserved his plea. Then on 12 November 2004 he was arraigned before the judge in the County Court at Bendigo on one count of causing serious injury intentionally and one alternative count of causing serious injury recklessly and he pleaded guilty to the count of causing serious injury intentionally and admitted three prior convictions related only to road traffic offences. The prosecutor opened the case by outlining the version of facts for which the Crown contended, and then read out the respondent's record of interview, but after that in effect left it to the judge to look himself to the depositions in order find further facts.
10 Rowena had been examined by a general practitioner shortly before the sentencing hearing. By that stage she had reached Grade 5 in primary school in Sale and superficially appeared to be coping at school. But the doctor noted that the child had pain behind her knee when running, which the doctor considered may have been associated with residual mild left hemiplegia, and she recommended further neurological testing.
11 During the first day of the plea hearing, the judge determined that the child should be neurologically examined and his Honour adjourned the plea part heard in order that it be done. As a result, on 28 February 2005, she was examined by Dr Lloyd Shield, the senior neurologist at the Royal Children's Hospital, who reported that although the child was currently in Grade 6 (which was her natural grade for age) she required a full time aide, her spelling was restricted to simple words such as "cat", "hat" and "bag", and whilst she was able to add 2 plus 2 accurately, she could not successfully add 2 plus 4 or 4 plus 4. Dr Lloyd thought the child to be functioning at about Grade 3 level. She was not able to do up shoe laces, or do her hair well or dress properly, and she required help with those activities, although she could wash and dry herself and take part in washing up activities and taking the clothes off the line. She was, however, given to tantrums with little provocation, with aggressive physical activity directed at her mother and siblings. She walked with a limp due to a mild left hemipareses, the result of impaired functioning of the right side of the brain. That situation will be permanent and so she will always walk with a limp and have problems with co-ordination. The most serious feature, however, now and for the future, is her intellectual impairment. She is currently performing well below her proper grade level and can be expected to remain well behind her peers.
12 Finally, after receiving Dr Lloyd's report and after hearing the remainder of the plea in mitigation, the judge sentenced the respondent on 13 May 2005.
The Director's contentions
13 The Director contends that the head sentence of two years and the non-parole period of six months are both manifestly inadequate. The maximum sentence for intentionally causing serious injury is 20 years' imprisonment and, as the Director points out, a sentence of only two years represents a mere 10% of the available maximum. There is some force in that submission. On the facts as found, the respondent shook a young child who was in his care and left her with permanent injuries which will seriously affect her quality of life for the rest of her life. Such an offence would ordinarily warrant very strong punishment indeed. Ordinarily, a sentence of only two years for such a crime would be manifestly inadequate.
14 That said, however, the circumstances of this case are unusual. As appears from the judge's sentencing remarks, his Honour discerned from the fact that the respondent had no relevant prior convictions and had not re-offended during the nine years since the offence was committed, and had striven to rehabilitate himself from alcoholism, that the respondent no longer posed a threat to the community. Specific deterrence would seem also not to be an issue, and it appears too that the judge was of the view that the sentence should take account of the respondent's remorse and prospects of rehabilitation, and that his Honour was influenced by the respondent's aboriginality, and his dysfunctional upbringing and the parental neglect to which he had been subjected. Clearly, they were all factors to which the judge was entitled to have regard.[1] As Eames, J.A. put it in R v Fuller-Cust :[2]
"79. To ignore factors personal to the applicant, and his history, in which his Aboriginality was a factor, and to ignore his perception of the impact on his life of his Aboriginality, would be to sentence him as someone other than himself. Not only would that offend principles of individual sentencing which apply to all offenders but in this case it would fail to identify the reasons for his offending and, in turn, the issues which have to be addressed if rehabilitation efforts are to successfully be adopted so as to ensure that he does not re-offend and, in turn, to ensure the long-term safety of the public.
80. To have regard to the fact of the applicant's Aboriginality would not mean that any factor would necessarily emerge by virtue of his race which was relevant to sentencing, but it would mean that a proper concentration would be given to his antecedents which would render it more likely that any relevant factor for sentencing which did arise from his Aboriginality would be identified, and not be overlooked. Exactly the same approach should be adopted when considering the individual situation of any offender, so that any issue relevant to that offender's situation which might arise by virtue of the offender's race or history would not be overlooked by a simplistic assumption that equal treatment of offenders means that differences in their individual circumstances related to their race should be ignored.
81. In Neal v R_[3]_ Brennan J held:
'The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of the particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the administration of justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal.'"[4]
15 It also seems that the judge in this case was significantly influenced by the long delay between the time of the offence and the time of sentencing, which the judge found not to have been caused deliberately or contributed to deliberately by the respondent, and which therefore his Honour regarded as in itself warranting a degree of leniency. In my judgment his Honour was entitled to adopt that view.
16 The Director argues that the sentence nevertheless fails to satisfy the principle of general deterrence, inasmuch as a clear message needs to be sent to the community that the courts will not tolerate the kind of behaviour committed by the respondent, and the Director says that assaults by males on children of their de facto partners are all too frequent and that the phenomenon of shaking babies needs to be denounced and condemned by means of stern punishment. The Director submits accordingly that a head sentence of only two years' imprisonment for such a crime is manifestly short of the mark.
17 I agree that assaults by males on children of their de facto partners are all too frequent, and that the phenomenon of shaking babies needs to be denounced and condemned by means of stern punishment. Men who engage in the intentional infliction of serious injury on children should expect that there will be no leniency. They will be sternly punished. But I am not persuaded of the need for general deterrence in the particular circumstances of this case. Whilst I am not sure that I would give as much weight to those circumstances as his Honour appears to have done, I am not satisfied that there is appealable error.
18 The Director complains that there was very little evidence of rehabilitation and that the delay was not such as to warrant the light sentence which was imposed. He also suggests that the delay may have been deliberately caused or contributed to by the respondent. I do not accept those criticisms. It may be that there was not a great deal of evidence of rehabilitation, but the judge found that there had been significant steps towards rehabilitation, and it is not suggested, and could not be, that it was not open for his Honour so to find, at least on the balance of probabilities. Similarly, the judge found that the delay was not caused by the respondent, and again, whilst there appeared to be some reservations in the Director's submissions on that point, I do not consider that it could be said that it was not open to his Honour so to find, at least on the balance of probabilities.
19 The extent to which undue delay may warrant leniency equally permits of no hard and fast answers. As Ormiston, J.A. (with whom Callaway and Vincent, JJ.A. agreed) put it recently in R v Nikodjevic:[5]
"...there are many circumstances which need to be taken into account to determine what is 'undue' delay, and further factors must be considered in seeing whether such delay in fact 'should work in favour' of a particular prisoner. As Callaway JA said in R v MWH_[6]_: 'It is the effects of delay that are important for sentencing'. Thus the principle, assuming it should be described as such, is often expressed in terms of the delay between 'offending' and sentencing: see, for example, the passage from the judgment of Street CJ in R v Todd [7] cited with approval in the High Court in Mill v R.[8] However, with great respect, one should be cautious about recognising the time between offending (as such) and sentencing except for certain specific purposes which were analysed with some care by Callaway JA in MWH. Thus it may show reformation of character over a significant period of a kind which would make rehabilitation largely irrelevant and greatly reduce, if not extinguish, the need for specific deterrence to be recognised in the sentence...
Delay in sentencing nevertheless may be otherwise significant if the delay has occurred between the detection and charging of an offender and the time of sentencing, where the offender can fairly say that the sentence has been hanging over him or her for an unreasonable time, or where that person had chosen to reorganise his or her life upon an acceptance of guilt for the matters charged. Thus it is put forward not infrequently as a factor to be considered in the case of first offenders who have committed serious offences, for which they may feel uncertain whether they will be required to serve any term of imprisonment at all. The truth of the matter, however, is that every case is different and the factors seen properly to affect the exercise of the sentencing discretion will vary according to circumstance. One should therefore be cautious about asserting that there is a right to some automatic discount in every case of asserted delay. The most that can be said is that where the prosecuting authorities have in fact unduly delayed bringing the matter to court, there is much more likely to be such a discount, without the need to have regard to its particular consequences."
I see nothing in the judge's treatment of delay in this case which ill-accords with those principles.
20 Evidently, the judge concluded that there had been reformation of character over a significant period of a kind which would make need for further rehabilitation largely irrelevant and greatly reduce, if not extinguish, the need for specific deterrence to be recognised in the sentence. I consider that his Honour may also have seen this as a case in which the offender could fairly say that the sentence had been hanging over him for an unreasonable time, or where he may have chosen to reorganise his life upon an acceptance of guilt for the matter charged. His Honour referred specifically to paragraph [3.286] of Fox and Frieberg,[9] in which the learned authors consider Mill v The Queen[10] and conclude that delay may be taken into account where, among other things, the offender has during the intervening period shown evidence of rehabilitation. Most importantly, however, as Ormiston, J.A. put it in Nikodjevic[11], the truth of the matter is that every case is different and the factors seen properly to affect the exercise of the sentencing discretion will vary according to circumstances. This is an exceptional case about which I am not persuaded that the judge was in error in imposing a very lenient head sentence based in part on the extent of the delay.
21 The Director submits that even if the judge did not err in imposing a head sentence of only two years' imprisonment, the non-parole period of only six months was extraordinarily low relative to a head sentence of two years' duration and that the judge did not provide any reasons to warrant that order of disparity. In the Director's submission, that in itself is indicative of error.
22 There is force in that submission. As this Court said in R v Krasnov and Shlakht[12], when a sentencing judge decides to impose a sentence which in important respects is unusual, one generally expects to see stated reasons.[13] As Winneke, P. put it in R v Mulvale[14], there is public interest in discrete consideration of those factors which exist in the material before the court which bear upon the question of when the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision. Moreover, as Callaway, J.A. explained in R v VZ[15], while the factors to be taken into account are many and varied, they should be identified. It follows that where there is something ex facie unusual about a non-parole period and there is no mention of any of the sorts of factors to which Callaway, J.A. referred in VZ, error may be found to exist.[16]
23 In this case, however, I am not disposed to intervene. This is a Crown appeal and therefore this Court has an overriding discretion which may lead it to decline to intervene even if it comes to a conclusion that error has been shown in the original sentencing process.[17] Given the unusual circumstances of this case, the respondent's aboriginality and state of health, the long period of delay since the commission of the offence, and the relatively small difference between the non-parole period of six months and one of a duration more clearly within the range, I am not persuaded that it is contrary to the interests of justice to leave the matter where it lies.
24 There is also some uncertainty about the basis on which the judge sentenced the respondent. Although the established facts are now agreed to be those to which I have referred, it is less than plain that the judge sentenced the respondent on the basis of those facts. So to say is not intended to be critical of the judge. His Honour was faced with the difficulty, which sometimes occurs, of a plea in respect of which there are at least some agreed facts, but also contradictory depositional material, and sometimes, as I think in this case it was, too little prosecutorial assistance as to the evidence which is said to support the Crown version of events. In a case of that kind it is not surprising that errors may occur. Nevertheless, the point for present purposes is that, in the absence of certainty about the facts of the offence, there is even less reason to intervene at the instance of the Director than otherwise there
might be.
Conclusion
25 For those reasons I would dismiss the appeal.
26 The unfortunate child victim in this case suffered very serious injuries, as described by Nettle, J.A. It would usually be the case that an offender who admitted causing such injuries by violently shaking the child would be sentenced to a term of imprisonment much longer than that imposed in this case. However, for the reasons given by Nettle, J.A., which I respectfully adopt, there were many unusual and powerful mitigatory features in this case. It is apparent that his Honour weighed all of those mitigatory factors against the stark reality that the child's injuries had been so severe. Indeed, it was at his Honour's insistence that the further medical investigations were conducted that disclosed the true seriousness of those injuries. In the result, and again for the reasons given by Nettle, J.A., when regard is had to all relevant considerations which were weighed by the judge and which appropriately stood to be weighed, it cannot be said, in my view, that the sentence imposed was manifestly inadequate.
27 However, even if I had not reached that conclusion, I would have declined to allow the appeal in the exercise of the residual discretion held by the Court on a Director's appeal. This case, in my opinion, would be a very inappropriate vehicle to use for the purpose of setting sentencing standards. Not only was there, and still remains, a great deal of confusion as to the facts upon which the judge finally sentenced the respondent, there is a real question raised as to the state of mind of the respondent when the offence occurred. That is so notwithstanding his plea of guilty to the offence.
28 A further factor which would have weighed in the exercise of that discretion was the fact that there was such very long delay between the time of the offence and the time of sentencing, and until this appeal came to be conducted. Over that long period of delay the respondent had taken demonstrable steps to rehabilitate himself, and it is very much to his credit that over that whole period, and notwithstanding the itinerant lifestyle he was leading, he did not come to notice for any criminal offences, at all. Furthermore, he has no convictions, at all, for any matter of violence.
29 In all of the circumstances, I agree that this appeal should be dismissed.
30 I would also dismiss the appeal, for the reasons given by Eames and Nettle, JJ.A.
31 The order of the Court will be: The appeal is dismissed.
[1] R v Fernanado (1992) 76 A. Crim. R. 58 at 62-64; R v Simon [2005] N.S.W.C.C.A. 123 at [32].
[2] [2002] VSCA 168; (2002) 6 V.R. 496 at 520
[3] [1982] HCA 55; (1982) 149 C.L.R. 305 at 326.
[4] ibid. at 520 [79]-[81].
[6] [2001] VSCA 196 at [18].
[7] [1982] 2 NSWLR 517 at 519 - 520.
[8] (1988) 166 C.L. R. 59 at 64.
[9] Fox and Frieberg, Sentencing, State and Federal Law in Victoria , 2nd Ed.
[12] (1995) 82 A. Crim. R. 92 at 99, per Hayne, J.A. and Southwell, A.J.A.
[13] R v Krasnov and Shlakht (1995) 125 F.L.R. 120.
[14] VSCA 20/2/96; BC 9600747 at 11.
[15] [1998] VSCA 32; (1998) 7 V.R. 693 at 697 [15].
[16] R v PP. [2003] VSCA 100; (2003) 142 A. Crim. R. 369 at 376 [15] -[18], per Callaway, J.A.
[17] R v Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522, per Charles, J.A.
DPP
Taylor [2005] VSCA 222