Gumwel v The Queen [2016] VSCA 14

2 On 26 June 2015, following a plea hearing, the trial judge sentenced the applicant to a term of imprisonment of five years with a non-parole period of three years.

3 On 6 October 2015, Priest JA refused the applicant's application for leave to appeal against his sentence. Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant has elected to renew his application, and seeks leave to appeal against his sentence on the following grounds:

1. The learned trial judge erred in his reasons for elevating general deterrence above other sentencing objectives.

2, The learned trial judge incorrectly described the offence as a 'serious example' of such offences.

3. The sentence imposed was manifestly excessive in that:

(i) His Honour gave insufficient weight to the fact that the serious injuries were caused in the context of an affray that had been initiated by the complainant.

(ii) His Honour gave undue weight to the complainant's level of intoxication.

4 The offence occurred on 1 November 2013. In his reasons for refusing leave to appeal, Priest JA described the offending as follows:

About two weeks prior to the instant offence, the applicant and the victim were involved in a brief fight, and were separated by associates. They had known each other for approximately two years.

During the afternoon of 31 October 2013, the victim had been drinking with friends. He continued to drink into the early hours of the next morning, 1 November 2013. Following apprehension by police whist driving, the victim was breathalysed and was found to have a blood alcohol concentration of 0.157 per cent. He was released from the police station at 5:38am.

After his release, the victim went to 'Hopkins House', a student accommodation facility in Hopkins Street, Footscray, in order to see his girlfriend. Whilst he waited outside, the applicant and two other men arrived. One of the two men, 'Madingo', had gone to Hopkins House to tell his brother that his brother's car had been damaged. As the applicant approached the victim, the victim pushed the applicant backwards. The two men accompanying the applicant then assaulted the victim, while the applicant looked on. (The applicant was acquitted by the jury of common assault, charge 1, relating to this incident.)

Once the two men had finished assaulting the victim, they and the applicant asked him to go to a nearby carpark.

Upon arriving at the carpark, the victim went to a bathroom to wash himself and to attend to his injuries. When he returned to the carpark, only the applicant was present.

CCTV footage showed the applicant gesturing towards the damaged car owned by Madingo's brother. The applicant and the victim then walked a short distance away. They then stood face to face in close proximity and talked for approximately six minutes. The victim then struck the applicant twice to the face. A struggle ensued, in which both men grappled with each other and swung blows. Both then assumed boxing stances, and the victim removed his shirt.

Shortly afterwards, the applicant picked up a bottle from the ground - it is unclear if the bottle was already broken or whether he broke it - and struck at, and cut, the victim's wrist. The victim then himself attempted to pick up a bottle. As he took hold of the bottle, the applicant made slashing motions towards him, and inflicted two lacerations to the base of the right hand side of victim's neck, about 20 to 30 centimetres long, one of which involved muscle fibre tissues.

The sequelae to the victim's injuries, and, in particular, whether he continued to suffer any ill effects for any significant period of time is unknown, since he declined to make a victim impact statement.[1]

5 This morning, counsel for the applicant conceded that the statement that it was unclear whether the bottle the applicant picked up was already broken, or whether the applicant broke it, was an error that had come from the applicant's written case. While Priest JA (favourably to the applicant) considered the applicant's application for leave to appeal on the basis that this issues was 'unclear', on the plea hearing, and before us, the applicant accepted that he had smashed the bottle himself.

6 The applicant was born on 26 June 1989 and was 24 years of age at the time of the offence. He was born in Sudan, went to Egypt when he was eight years old, and came to Australia in 2003. The trial judge described the applicant as having come from a background of 'turmoil and disruption' in his childhood years.[2]

7 The applicant had a number of prior convictions. Of relevance for present purposes are the following convictions. On 12 June 2009, he was sentenced to a Community Based Order for armed robbery and intentionally causing injury. He was dealt with for breaching that order twice, and ultimately sentenced to an aggregate of 12 months' imprisonment, with a non-parole period of six months for those offences. As was noted on the plea hearing (and accepted by the applicant), the complainant in that matter was struck to the head with a bottle. Additionally, on 9 June 2011, the applicant was sentenced for affray and assault with a weapon and was sentenced to an aggregate of three months' imprisonment.

The glassing occurred in the context of a fistfight between you and the victim. An earlier assault also had occurred that night in which the victim suffered injuries caused by two others. You have been acquitted of involvement in that assault. There had been bad blood between the two of you over some time. The jury rejected your defence that you were acting in self-defence. You were sober at the time you intentionally inflicted the serious injury. I regard this as a serious example of this type of offending. Your intention to cause serious injury has been proved. The seriousness of the injury to the neck speaks for itself.

While it is clear you and the victim were in a fistfight and the victim threw the first punch, the context needs to be stated. It involves consideration of the fact that you described yourself as 'stone cold' sober at the time. So there was no effect of alcohol to cloud your judgment or thoughts as sometimes occurs in glassing cases. Yours was not an alcohol fuelled aggression. By contrast, you said you knew the victim was drunk. Also you told the jury the victim's face was really badly bruised and bleeding before you glassed him.[3]

9 As to the applicant's prior criminal record, the judge said:

You have admitted the contents of a criminal record which discloses crimes of violence in the past. Armed robbery, intentionally causing injury, affray and assault and assault with a weapon are all recorded. You have been shown mercy. You have been given dispositions by way of community based orders which you have breached. You have then served prison sentences for violent offending. These have obviously not deterred you.[4]

10 The judge then dealt with the applicant's background and personal circumstances. Next, the judge dealt with the applicant's prospects of rehabilitation. The judge said:

In my opinion, your prospects of rehabilitation are guarded in spite of your relative youth. You have shown no remorse. You have a criminal history of violence that has not been deterred by previous sentences and specific warnings by judges. Youth and rehabilitation must to some extent 'take a back seat' to other considerations.[5]

11 The judge then considered and rejected a submission made on behalf of the applicant that a Community Correction Order was the appropriate sentencing disposition. Finally the judge said:

As well as the matters personal to you to which I have referred, I must take into account other sentencing considerations. General and specific deterrence must be given weight in the sentence. General deterrence must be given primacy in the sentencing synthesis. In fact, general deterrence, specific deterrence and denunciation of your conduct must be emphasised.

The community cannot and will not tolerate offending such as this that leaves permanent physical consequences including obvious disfigurement for the victim. The message must be clear that appropriate punishment will result in these circumstances. Your sentence must manifest the community's denunciation of your very violent conduct and impose just punishment. I must protect the community from any repetition of this type of offending. I must seek to deter you as well as others from further offending of this type.[6]

Proposed grounds 1 and 2: The judge's findings

12 In proposed grounds 1 and 2, the applicant makes two complaints about the judge's findings: first, that the judge erred in 'elevating general deterrence above other sentencing objectives'; and secondly, that the judge incorrectly described the applicant's offence as a 'serious example' of such offences. There is nothing in either complaint. This Court has repeatedly emphasised the seriousness of offending of this kind involving the use of a broken bottle. In our view, the judge was entirely correct to describe the applicant's offending as a serious example of the offence of intentionally causing serious injury. The injuries inflicted were lacerations to the neck of significant length and of a sufficient depth to involve muscle fibre tissues. The applicant's offending was made all the more serious by the fact that the victim was significantly intoxicated while the applicant was (to use his words) 'stone cold sober'.

13 Similarly, there is nothing in the applicant's complaint concerning the judge's treatment of general deterrence. As has been said before, the use of makeshift weapons (including broken bottles and broken glasses) is all too prevalent in our society. Those who choose to use such weapons with the intention of inflicting serious injury can expect that courts sentencing them for offences of the present kind will regard general deterrence as a matter of primary concern. What was said by this Court in Winch v The Queen,[7] about the importance of general deterrence in cases involving 'glassing' (and remembering that Winch was a case of recklessly causing serious injury, rather than intentionally causing serious injury), has application in this case. It is not to the point (as was submitted by the applicant) that the 'glassing' in the present case did not occur on or near licensed premises and was not perpetrated on an unsuspecting member of the public.

14 In proposed ground 3, the applicant asserts that the sentence imposed was manifestly excessive. In support of this contention, the applicant submits that the trial judge gave insufficient weight to the fact that the serious injuries were caused in the context of an affray that had been initiated by the victim, and that the judge gave undue weight to the victim's level of intoxication. There is nothing in this complaint. The judge accurately set out the circumstances in which the applicant's offending occurred. That the victim instigated the affray is hardly germane. As counsel for the applicant accepted, the CCTV footage showed that the victim walked away before the applicant then pursued him, having broken the bottle, and then commenced to strike the victim with it. Further, we see no error in his Honour's conclusions about the victim's level of intoxication.

15 As has been said many times before, manifest excess is a difficult ground to make out. The test for manifest excess is whether the sentence was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[8]

16 There is no reason to suspect that the trial judge gave insufficient weight to all of the circumstances in which the applicant's offence was committed. Nor is there any basis for concluding that his Honour gave undue weight to the victim's level of intoxication. The maximum penalty for intentionally causing serious injury is 20 years' imprisonment. The applicant's offence was, as the trial judge said, a serious example of this serious offence. When one has regard to the circumstance of the offence and the applicant's prior criminal history (and notwithstanding the matters raised in mitigation for the applicant, such as his relative youth and background), it cannot be said that the sentence imposed by the judge was wholly outside the range of sentencing options available to him.

17 The application for leave to appeal against sentence must be refused.

[1] Gumwel v The Queen (Unreported, Court of Appeal, Priest JA, 6 October 2015), [4]-[11].

[2] DPP v Gumwell (Unreported, County Court of Victoria, Judge Jordan, 26 June 2015) ('Reasons') [9].

[7] [2010] VSCA 141; (2010) 27 VR 658 ('Winch').

[8] R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306.