DPP v Tokava [2006] VSCA 156

Court of Appeal (Vic)|2006-07-27|Before: MAXWELL, P., BUCHANAN and VINCENT, JJ.A.

Criminal law - Sentencing - Intentionally and recklessly causing serious injury - Crown appeal - Community based order and wholly suspended sentence manifestly inadequate - Respondent re-sentenced to two years' imprisonment with a minimum term of 12 months' imprisonment - The effects of imprisonment on rehabilitation.

1 I will ask Buchanan, J.A. to deliver the first judgment.

2 On 7 March 2005 the respondent, who was then 21 years old, engaged a taxi driver to take him to his house in Sunshine. When he arrived at the house the respondent alighted from the taxi and walked to the front door. He then returned to the taxi driver, who was standing beside his cab. Without warning or reason, the respondent punched the driver to the head, causing him to lose consciousness, fracturing his jaw and displacing his teeth. The respondent drove the taxi to a nearby reserve and stole the security camera, the EFTPOS machine, the swipe card machine and other small items. The taxi driver remained in hospital for three or four days.

3 On 9 March 2005 the respondent attended at the Sunshine police station and admitted that he had committed the offences two days earlier. He was charged with recklessly causing serious injury, theft of the taxi and unlicensed driving. He was released on bail.

4 On 10 June 2005, three days after being committed for trial in respect of the first assault, the respondent went to a bottle shop in a hotel at Sunshine. He asked for a bottle of wine displayed in a locked cabinet. When the 58-year-old sales attendant walked past the respondent to open the cabinet, the respondent punched him on the jaw, knocking him out. The attendant suffered a laceration to his right temple and eyebrow when he fell upon a wine rack. The respondent stole $912 from the cash register and $200 from a tool box. The crimes were recorded by a surveillance camera. The police readily identified the respondent.

5 The respondent made full admissions to the police with respect to the assaults and thefts.

6 Both the assaults were preceded by heavy drinking on the part of the respondent.

7 On 17 January 2006 the respondent was arraigned in the County Court and pleaded guilty to a presentment containing one count of recklessly causing serious injury and one count of theft. He also pleaded guilty to a summary offence of unlicensed driving. The offences were those committed on 7 March 2005. On 22 February 2006 the respondent was arraigned and pleaded guilty in the County Court to a presentment containing one count of intentionally causing serious injury and one count of robbery. The offences were committed on 10 June 2005. After a plea, the respondent was sentenced on the first presentment to a community-based order for a period of 12 months on each of the two counts, the community-based orders to be served concurrently, and on the second presentment he was sentenced to be imprisoned for a term of 12 months on the count of intentionally causing serious injury and for a term of three months on the count of robbery, producing a total effective sentence of 12 months' imprisonment. The sentence was wholly suspended for a period of three years.

8 The Director has appealed against the individual and total effective sentences on the ground that they are manifestly inadequate. In particulars of that ground the Director alleges that the sentencing judge failed to adequately reflect the gravity of the offences, failed to sufficiently take into account the need for specific and general deterrence, gave too much weight to factors going to mitigation, and gave insufficient weight to the maximum penalties applicable to the offences, the respondent's prior convictions and the effect of the offending upon the victims.

9 The respondent was born in Tonga. He is now 22 years old. He spent his early years in California. In 1989 his parents separated and his mother brought the respondent and his siblings to Melbourne. In his early years at secondary school the respondent joined a gang of Islanders. He began roaming the streets, fighting and stealing. As a consequence, the respondent gathered a large number of convictions for offences of dishonesty and street offences, although he was not punished by incarceration. In that period the respondent drank heavily. At the age of 16 years the respondent was persuaded by his mother to attend church. The respondent reformed his life. He left the gang, sought employment, moderated his drinking and ceased to commit crimes.

10 The respondent gained employment as a real estate salesman. This job turned out to be his undoing, for his employer gave him little work to do and encouraged his employees to drink. The sentencing judge accepted the opinion of a psychologist that the offences were due to the respondent's excessive consumption of alcohol. The psychologist reported to the court that the respondent " ... does have insight and he is intelligent enough to understand the seriousness of this situation. He is also intelligent enough to indicate symptoms of remorse including his awareness that that should never happen and his strong regret that it did."

11 The crimes committed by the respondent were serious indeed. His attacks upon the victims were brutal and cowardly. The second assault occurred when the respondent was on bail for the first assault. Both the victims were seriously injured and their victim impact statements reveal that they will suffer consequences for some time, if not permanently. General deterrence, denunciation of the crimes and protection of the community are important considerations in determining an appropriate sentence for such offences. The sentencing judge was alive to those matters. He said that ordinarily they would dictate a sentence of imprisonment to be served immediately. His Honour reached the conclusion, however, that the risk posed by the respondent's propensity to sudden, unprovoked violence was to be met by a regime which gave the best prospects of the respondent's reformation. He said that three matters influenced his choice. They were:

"First, the prisoner is 22 years of age. His social and moral conscience is still in the formative stage. Secondly, the prisoner has indicated remorse both explicitly and by pleading guilty. Thirdly, I think that society is more likely to be well served by keeping him away from the prison environment, if possible, and concentrating correctional endeavour upon psychological and perhaps psychiatric connection between his drinking and his outbursts of violence. I do not think in the long run that the last resort, in his case, has been reached."

12 It is now said by the appellant that his Honour erred. The offences themselves and the respondent's record required the imposition of a sentence of imprisonment which was to be served immediately. Nothing short of that was permissible.

13 The sentence is to be described as lenient, even merciful. I think, however, that in the circumstances it amounts to a sentence that is manifestly inadequate. The sentencing judge regarded the respondent as one who was at a crossroad, and chose a course which in his view held the best prospect of setting the respondent's feet upon the correct path. In so doing, I consider that the sentencing judge elevated the rehabilitation of the offender above all other considerations and in so doing devalued the crimes and their effects.

14 The crimes were serious viewed individually. Their combined effect was even more serious. Knowing the effect which the consumption of alcohol had produced on 7 March 2005, three months later the respondent again drank heavily and again turned upon a vulnerable, isolated person, smashed him to the ground and stole over $1,000. When he was interviewed by the police, the respondent admitted that alcohol "makes me an aggressive person." He said:

"I've knocked a lot of people out ... I just hit him 'cause I wanted to hit him ... My mind's just like that every time I'm wasted, like, drunk ... I know where to hit a person ... I know where - well you can just - you can just tell by looking at a person. You can see their weak spots. I was taught. ... I normally wait for someone to provoke me, but that's unlikely to happen. It's mostly me looking for trouble."

15 This Court has said on many occasions that those who engage in unprovoked and vicious attacks upon members of the public offering no reason to be disturbed, let alone beaten unconscious, must expect condign punishment. See, for example, R. v. Stephenson[1]; DPP v. Zullo[2]. Denunciation, general and specific deterrence are imperative in such a case. The maximum sentence for intentionally causing serious injury is 20 years' imprisonment. Accordingly, I would allow the appeal.

16 I bear in mind the restraint which must be exercised in re-sentencing after a successful Crown appeal and the fact that hitherto the respondent has been at liberty. But for these considerations, the respondent could expect a heavier sentence. I would re-sentence the respondent in respect of presentment No. T00568491 to a term of 12 months' imprisonment on count 1 and to a term of six months' imprisonment on count 2. In respect of presentment No. T01436165 I would re-sentence the respondent to a term of 18 months' imprisonment on count 1 and to a term of nine months' imprisonment on count 2. I would order that six months of the sentence on count 1 in presentment No. T00568491 be served cumulatively on the sentence on count 1 in presentment No. T01436165, producing a total effective sentence of two years' imprisonment. I would order that the respondent serve a minimum term of 12 months' imprisonment before he is to be eligible for parole. I would fine the respondent $200 on the summary offence of unlicensed driving.

17 I agree that the respondent should be re-sentenced in the manner which his Honour proposes, for the reasons which his Honour has given. I add the following remarks of my own.

18 In the course of a very clear and powerful submission on behalf of the respondent, Mr Priest drew attention, rightly in my view, to the concern which the learned sentencing judge expressed, about the need to identify a sentencing disposition which would serve the community's interests. His Honour said:

1 "It seems to me that the public is at serious risk of this prisoner's propensity to sudden violence when drunk and that I should seek to avert that risk by a disposition reformative of the prisoner. Such a disposition would be to impose a wholly suspended sentence on one count, and a Community-based Order with conditions designed to meet the problems of drinking and violence on other counts. Another way would be to impose terms of imprisonment but with a significant element of supervision upon parole. Imprisonment is not reformative and may be deleterious in this case. I would prefer the non-custodial course, if I thought that proper. I have long considered these options."

19 The Director's appeal is brought because, after anxious consideration, his Honour decided to take the non-custodial course, judging that the interests of the public would thereby be best served.

20 In agreeing that the Director's appeal should be allowed, I nevertheless wish to endorse strongly his Honour's approach of taking account of the certain fact that a person who is imprisoned will in due course be released and will rejoin the community. This point is often overlooked in the public debate which sometimes accompanies non-custodial dispositions.

21 A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community's interest will be best served by that course. This Court should seek to promote public understanding of the fact that - 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.

22 Mr Priest also drew attention to what was said, now long ago, by Fox, J. in the Supreme Court of the Australian Capital Territory in R. v. Dixon[3], and he referred in particular to the following passages:

"In general, but by no means always, persons convicted of serious crime are the maladjusted people of the community, and some will have developed serious behavioural problems. ... Unfortunately, gaol may well make their anti-social tendencies worse. This is not always the case; sometimes the experience of gaol effects a real improvement. Nevertheless, I think it is well accepted that it is so in most cases; at least where the sentences are at all long. The reasons are obvious enough: the prisoners are kept in unnatural, isolated conditions, their every activity is so strictly regulated and supervised that they have no opportunity to develop a sense of individual responsibility, they are deprived of any real opportunity to learn to live as members of society, their only companions are other criminals, some of whom are bound to be quite vicious, their sex life must be unnatural, scope for psychiatric treatment is very limited, if not non-existent, and employment is limited and stereotyped. To many this must seem one of the most absurd aspects of the whole matter. They may well ask why the system has to be so anti-social in operation, why it cannot be improved so that people for whom there is a prospect of reformation, and who are not so dangerous that they have to be kept in strict confinement, are given a real opportunity for self-improvement. The irony is that prison authorities are among the strongest advocates of reform.

...

When, therefore, a court has to consider whether to send a young person to gaol for the first time, it has to take into account the likely adverse effects of a gaol sentence. A distinct possibility, particularly if the sentence is a long one, is that the person sent to gaol will come out more vicious, and distinctly more anti-social in thoughts and deed than when he went in. His own personality may well be permanently impaired in a serious degree. If he could be kept in gaol for the rest of his life, it might be possible to ignore the consequences to society, but he will re-enter society and often while still quite young. His new-found propensities then have to be reckoned with. A substantial minority of persons who serve medium or long gaol sentences soon offend again."

23 These passages set out a view held in 1975 of the likely effect of gaol. As I remarked in the course of argument, my impression is that almost everything which his Honour said then is still true 30 years later, despite the best efforts of many people. The community would still ask today, as his Honour suggested then, why the prison system has to be "so anti-social in operation, why it cannot be improved so that people for whom there is a prospect of reformation are given a real opportunity for self-improvement".

24 In my respectful opinion, the learned trial judge in the present case was right to have regard to the likelihood that imprisonment will have deleterious effects on the respondent. It would be unreal and artificial for sentencing courts to ignore the evidence about the anti-social effects of time spent in gaol.

25 Nevertheless, for the reasons succinctly expressed by my colleague Buchanan, J.A., I am clearly of the view that this was a case where the only sentencing disposition reasonably open was a custodial disposition, notwithstanding the

sundoubted desirability of the reformation of the respondent. I, of course, share the hope which his Honour expressed at the end of his very thoughtful reasons for sentence - that these convictions and this sentence will mark a turning point for Mr Tokava and that he will, upon completion of the custodial portion of the sentence which we are imposing, become a productive and happy member of this community.

26 I also agree with the disposition of this appeal in the manner proposed by Buchanan, J.A. I do so for the reasons given by him and by the President.

27 The order of the Court will be as follows:

1. The appeal is allowed.

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

In respect of presentment No. T00568491, to be imprisoned for a term of 12 months on count 1 and to a term of six months on count 2;

in respect of presentment No. T01436165, to be imprisoned for a term of 18 months on count 1 and to a term of nine months on count 2;

six months of the sentence on count 1 in the first presentment to be served cumulatively on the sentence on count 1 in the second presentment.

The total effective sentence is two years' imprisonment. The respondent is to serve a minimum term of 12 months' imprisonment before he is to be eligible for parole.

The respondent is fined $200 on the summary offence of unlicensed driving.

The respondent is disqualified from obtaining a licence for a period of 12 months in respect of the conviction on the count of theft of a motor vehicle.

Pre-sentence detention of 20 days is noted and an appropriate record will be made of that declaration in the records of the Court.

There will be the grant to the respondent of a certificate under s.15 of the Appeal Costs Act 1998.

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