Hards v The Queen [2013] VSCA 119

2 There is a single ground of appeal, that is, that the head sentence and the nonparole period were each manifestly excessive. For reasons which follow, I consider that that proposition is not reasonably arguable. In so saying, I wish to acknowledge the care and thoroughness with which the arguments for the applicant have been advanced. The submissions addressed cogently and forcefully a number of matters which bore on the sentencing discretion.

3 The facts of the offending are helpfully set out in the respondent's written case, as follows:

The applicant was born on 15 October 1990. At the time of the offending he was aged 20. At the time of sentence he was aged 21. The applicant and victim had played together for the Imperial Football Club.

At approximately 7:00 pm on Friday 14 January 2011, the victim ... arrived at a nightclub in Mildura called the Sandbar with two of his friends. At approximately 7:30 pm a group of people from the Imperial Football Club, including the applicant, arrived at the Sandbar.

At some stage during the evening, the applicant and the victim had an amicable conversation about to the victim's decision to go play for the Bambill Football Club as an assistant coach.

Later, at approximately 9:00 pm, the applicant approached the victim at the bar and asked him: 'What's your problem?'. The applicant suggested that two of them 'go for a walk' in order to 'sort it out'. The applicant wanted to fight the victim. The victim was concerned that the applicant might hit him. At this point, one of the security staff ejected the applicant from the Sandbar.

At approximately 10:00 pm, the victim and one of his friends left the Sandbar. As they left they saw the applicant talking to the security staff. The victim's friend went to the Kebab shop across the road. The victim waited on the footpath outside the Kebab shop. He stood with both of his hands in the pockets of his pants. The applicant then crossed the road towards the victim. A conversation occurred between the two. The applicant walked away but turned around after a few steps and came back to the victim.

The following incident was captured on CCTV and the assault was witnessed by some people, and many more saw the victim after the attack.

The victim still had his hands in his pockets when without warning the applicant threw a punch at the victim's head. The victim turned away in order to avoid the punch. It is unclear if this punch connected. Whilst the victim had his back to the applicant, the applicant grabbed the victim around his waist and arms and lifted him off the ground. The applicant threw the victim head first onto the concrete footpath. The force of the impact immediately rendered the victim unconscious. As the victim lay motionless on his stomach with his hands still in his pockets, the applicant climbed on top of the victim's back and forcefully punched the victim in the face and head. The applicant then fled the scene.

[One witness] saw the applicant punching the victim in the face. She was shocked by the seriousness of the attack and the fact that the victim could not defend himself as he was unconscious. [Another witness] was also shocked by the viciousness of the attack. [Both witnesses] went to assist the victim and saw that the victim's face was covered in blood and one of his eyes was very swollen.

The victim lay on the ground for some time after the incident and did not get onto his feet until after police had arrived on the scene.

The victim was taken by ambulance to the Mildura Base Hospital. The injuries caused by the applicant included being rendered unconscious by the initial blow from the applicant, a closed swollen left eye, two lacerations to his left eyebrow requiring five stitches, tenderness to the back of his head, a 'blow out' fracture of his left orbit and bruising. The victim was required to consult a specialist in Adelaide in relation to his fractured orbit. However, this fracture was able to be conservatively managed and did not require surgery.

4 Manifest excess is a difficult ground to make good. In Clarkson v The Queen[1], a five member bench of this Court said:

As this court has repeatedly emphasised, the ground of manifest excess will only succeed if it can be shown that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.[2]

5 This is a proposition which apparently needs constant repetition. The fact that the ground of manifest excess is so often advanced suggests that practitioners in this field do not fully appreciate just how stringent a ground it is. There are, of course, cases where the sentence can be seen to be obviously wrong, where the error is, as the language of the ground suggests, manifest. But in the present case, the proposition that this sentence could not reasonably have been arrived at is untenable, in my opinion.

6 As the Court said recently in DPP v Anderson,[3] cases of gross violence by young people when intoxicated raise very difficult challenges for sentencing judges:

This appeal by the Director of Public Prosecutions concerns the sentencing of a young offender for a very serious offence of violence. It highlights, once again, the difficulty faced by sentencing judges in endeavouring to strike a balance between, on the one hand, the need to maximise the young offender's prospects of rehabilitation and, on the other, the need to fix a sentence which recognises the objective gravity of the offending and serves the important sentencing objectives of denunciation, community protection and specific deterrence.[4]

7 Balancing the countervailing considerations of rehabilitation, on the one hand, and deterrence and denunciation, on the other, is always difficult. There is no right answer to the question where the balance should be struck. But, as decisions of the Court indicate, we will be slow to intervene where a judge has carefully and conscientiously addressed the competing considerations.[5]

8 In this case the judge highlighted the difficulty of the task:

It is a sad case. A young man of otherwise good character falls to be sentenced for a very serious offence. There are competing sentencing considerations which must be balanced and weighed. It brings me no joy to have to send such a young man to gaol, but that is what this case demands. In my view, I would be failing in my duty if I were to do otherwise. But I am conscious that this will represent your first time in prison, and, to the extent that the law permits, I will keep that time to the minimum.[6]

9 In my opinion, the sentence of four years with a nonparole period of two years was a moderate sentence in the circumstances of this case. That is so notwithstanding the applicant's good character and the fact that the injuries were at the moderate end of the range of seriousness. In my opinion, the applicant's conduct was of high culpability and it is simply not correct to describe this as a case which 'tends to the lower end' of the range of possible instances of this offence.

10 The actions of the applicant on the night in question speak for themselves. As his Honour found, the applicant intended to cause 'very significant injury indeed'.[7] This was a persistent, sustained, vicious attack. The fact that it lasted only a matter of seconds does not invalidate that description. The aggression, so his Honour found, shocked bystanders. Indeed, defence counsel on the plea described it as a 'frenzied attack'. When his Honour described it as 'brutal and cowardly', defence counsel - quite properly, in my view - conceded that that was an accurate description. The attack took place in a public place, causing fear and disquiet to members of the public going about their ordinary business.

11 His Honour outlined the serious aspects of the offending as follows:

There are a number of serious aspects to the offence that you committed. Your victim was an extremely vulnerable one. At the time that you first launched your assault on him, you well knew that he had his hands in his pockets and was therefore unable to defend himself, particularly by way of breaking his fall as you threw him to the ground. He was totally incapable of defending himself once thrown to the ground because he had, by that time, been rendered unconscious. The act of throwing your victim headfirst into a concrete footpath was an extremely dangerous one. It had the potential to cause grave injury or even death. It is indeed fortunate that the victim did not sustain more serious injuries. The level of your aggression was extreme and totally disproportionate to any slight that you perceived from what the victim may have said. Not content with knocking your victim out cold, you continued your battery by directing four forceful punches to his head and face while his head was laying against a concrete surface. You did so knowing that he was already unconscious.

Your conduct on that night was brutal, sustained and cowardly. I have no doubt that from the moment that you approached the victim for the second time outside the kebab shop, you were determined to cause him very significant injury indeed. Your actions are the clearest demonstration of that fact. A disturbing feature of this case, is the fact that it occurred at night on a busy street in full view of a number of horrified bystanders. There were others that could have witnessed the assault had they also been looking in that direction. A number of people saw the immediate result of what you had done and were upset by it.[8]

12 In particular, as his Honour notes, to apply a spear tackle - that is, to pick someone up and drive them into the ground head first - is self-evidently highly dangerous. It was a matter of sheer good fortune that the victim was not much more seriously injured. Indeed, the applicant could count himself lucky that his victim did not suffer catastrophic head injuries as a result. Again defence counsel, who conducted the plea in exemplary fashion, properly acknowledged that his client was 'incredibly lucky' and that the injuries to the victim 'could have been catastrophic'.

13 There is, in my opinion, something particularly shocking about an attack which persists after the victim has been rendered unconscious. That in itself pushes a case like this into a higher level of gravity, because of the evident determination to cause really serious harm, and the cowardice of attacking someone who is unable to defend himself.[9]

14 For obvious reasons, sentencing courts are entitled to take, and will continue to take, a very stern view of conduct of this kind. His Honour outlined this important role of sentencing as follows:

Acts of violence such as the one that you committed are commonly committed by young men, late at night whilst under the influence of alcohol. By the penalty that it imposes, this court must seek to deter other persons from offending in a similar way. On behalf of the community, this court denounces the serious criminal conduct in which you engaged. You must be justly punished for that conduct, having regard to the gravity of your offending together with your personal circumstances and the relevant matters in mitigation upon which you can rely.[10]

15 There was some discussion on the plea, and again briefly on this application, about whether words had been exchanged between assailant and victim. Defence counsel properly acknowledged on the plea that nothing said between them could have in any way excused what had occurred. It needs to be emphasised over and over again that, particularly in circumstances of intoxication, those who feel insulted or offended need to learn that the only safe thing to do is walk away.

16 Parliament has quite deliberately fixed a very high maximum penalty for this offence, 20 years. It follows, in my opinion, that this sentence was well within range. In DPP v Zullo[11] this Court described the impact of the 20 year maximum as follows:

It is said that the longest sentence ever imposed in this State for an offence of causing serious injury intentionally is ten years' imprisonment, and it has been said that it is only the most serious cases of the offence that have attracted a sentence within what is described as 'the very top of the range' of between six and ten years. In the past that may have been so. When it was the case, a sentence for this offence of three-and-a-half years' imprisonment with a non-parole period of two-and-a-half years might have been within the range. But it is no longer the case. The so-called 'very top of the range' of six to ten years was established when the maximum penalty for causing serious injury intentionally was only twelve years and six months' imprisonment. The maximum penalty is now almost double that amount. Now the 'very top of the range' is upwards of fifteen years.[12]

17 Senior counsel for the applicant relied in particular on two matters. One was that there had been a reconciliation between the applicant and the victim. His Honour dealt with this in the following way:

The victim bears you no continuing ill will and does not wish to see you sent to prison. That is a relevant matter, but care must be taken in not giving it undue weight.[13]

18 With respect, that was a perfectly correct statement of the approach to be adopted. Forgiveness is a relevant matter but it is to be viewed with caution, not least because the motivations behind a reconciliation of this kind in a small community may be quite complex.

19 Complaint was made about the judge's finding about remorse. His Honour stated:

You have demonstrated some remorse for what you did to Mr Hickey.[14]

I accept that you are to a degree remorseful about what you did and you have reflected on the seriousness of your conduct.[15]

20 When the ground advanced is manifest excess, it is simply not open to advance what amounts to a separate ground to the effect that there was no evidence to support a particular finding. As indicated to counsel in the course of argument, had any such ground been raised it would have then been addressed squarely by the Crown and we would have had to decide whether that finding of fact was open on the evidence or not.

21 In the event, with the assistance of counsel and the opportunity to refer to the material, we have been able to examine the issue more closely. We are satisfied that there was a proper basis for his Honour's finding and there was, in any event, no error.

22 Proper emphasis was given in the submissions for the applicant to the applicant's good character. It is a matter of great regret to this Court, as it was to the sentencing judge, that there was no alternative in the circumstances but to send a young man with good prospects to gaol for a substantial period. It is only to be hoped that eventually the deterrent message that these sentences are intended to send will be heard and understood in the community, that if gross violence is inflicted on defenceless people when the offender has had too much to drink, the courts will respond very sternly. Obviously enough, the effect on the victim in a case such as this is grave, but the effect on the offender is also grave. It is to be hoped that a greater understanding of these consequences will develop, so that tragic cases like this will cease to be presented in such numbers.

23 Two final matters. First, it is clear from the submissions made on the plea and in this application that there is a persistent misunderstanding of the role of the median sentence as identified in the very helpful Sentencing Snapshots published by the Sentencing Advisory Council.

There's a lot going for [the applicant] in the sense of reducing him from the median.

His Honour responded, quite properly, that it was wrong to

start with a median sentence and then consider the aggravating and mitigating matters.

25 In DPP v Maynard[16] this Court said:

Statistics do no more than establish minimum and maximum sentences and the average and median sentences imposed over a particular, and necessarily arbitrary period. Indeed, there is a danger that undue reliance upon the average or median sentence imposed during a particular period will distract the sentencing judge from the particular circumstances of the case in hand and has the capacity to distort sentencing in particularly serious cases towards the average or median figure. The statistics cited provide guidance in only a limited way to the sentence that should have been imposed in this case. By themselves, statistics do not establish a sentencing practice.[17]

26 The median is a statistical indicator only. It is quite wrong to treat it as having any role as a starting point, or a benchmark, for sentencing in a particular case. The question to be addressed is: what do current sentencing practices indicate about the appropriate range of sentences for an offence of this kind by this offender? The median reflects the whole range of cases in the period under review, in all gradations of seriousness. As we said in DPP v C P D,[18] sentencing practices are to be discerned both by reference to statistics and, where available, by reference to comparable cases.[19] Cases which can be seen to be comparable in gravity to the case at hand are likely to give the most useful guide to the applicable range.[20]

27 Finally, if I may say so respectfully, these were sentencing reasons of the highest quality. The judge dealt fairly, dispassionately and comprehensively with both the factual matters and the legal principles which he was obliged to take into account. In my respectful opinion, the community is very well served when the sentencing process is carried in that fashion.

[1] (2011) 32 VR 361.

[3] [2013] VSCA 45.

[5] R v Wyley [2009] VSCA 17, [23]; R v Studdard [2006] VSCA 112, [26].

[6] DPP v Hards (Unreported, County Court of Victoria at Mildura, Judge Gamble, 4 December 2012), [45] ('Reasons').

[9] For other examples of sentences for offending of this nature see DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457 (which involved more serious offending) and Jackson v The Queen [2013] VSCA 14 where a sentence of four and a half years with a nonparole period of two years for a similar attack involving kicking of the unconscious victim was held not to be manifestly excessive.

[11] [2004] VSCA 153.

[16] [2009] VSCA 129.

[18] [2009] VSCA 114; (2009) 22 VR 533.

[20] Hudson v The Queen (2010) 30 VR 610, 617 [28]; Hasan v The Queen (2010) 31 VR 28, 39-41 [46][53].