Johnson v The Queen [2011] VSCA 360

1 Glenn Travis Johnson ('the appellant') pleaded guilty in the County Court to one count of intentionally causing serious injury[1] and a summary offence of driving while exceeding the prescribed concentration of alcohol.[2] His blood alcohol level was 0.135%, in circumstances where his priors for drink driving required him to have a zero blood alcohol level when driving.

2 On 15 February 2010, he was sentenced to six years' imprisonment for intentionally causing serious injury and six months' imprisonment for the driving offence. The judge ordered that three months of the latter sentence be served cumulatively on the former, making a total effective sentence of six years and three months' imprisonment. The judge fixed a non-parole period of four years and three months. The judge also cancelled the appellant's drivers licence and disqualified him from obtaining a further licence for a period of 26 months, to commence on 15 February 2013.

3 The judge declared, pursuant to s 6AAA of the Sentencing Act 1991, that but for the plea of guilty, he would have imposed a sentence of 8 years' imprisonment, with a non-parole period of 6 years.

4 The appellant was granted leave to appeal against sentence on the ground that the sentence is manifestly excessive. The appellant also seeks leave to rely on a further ground that the judge erred in ordering that three months of the sentence imposed on the driving offence be served cumulatively on the sentence for intentionally causing serious injury. I would give the appellant leave to rely on the further ground and we have heard argument upon it.

5 The judge sentenced on the basis of the Crown Opening, which he incorporated into his sentencing remarks. On 6 December 2008, the appellant, then aged 34, was at his home in Melton South with his friend Ms Holding and her children. The appellant had been drinking alcohol throughout the day and was cooking a barbeque. The victim, who had previously been in a relationship with Ms Holding, lived about 600m to the south of the appellant and was unknown to him. The victim walked past the appellant's home. Ms Holding had an intervention order against the victim but his presence outside the appellant's house was not in breach of that order. Ms Holding's children reported the victim's presence, the appellant became extremely angry and decided to drive after the victim. He took Ms Holding's 12 year old son with him, who pointed out the victim to the appellant in a street a few hundred metres to the north. The appellant got out of his car and yelled at the victim 'It's you and me ... you don't know what you're in for'. The victim was scared and ran across the road and knocked on the door of a house, asking the residents to call the police. The appellant then approached and started punching the victim to the face. The appellant told the residents not to call the police. He continued to punch the victim to the face and body. The victim fell to the ground and the appellant continued punching and kicking him, and then dragged him to the driveway. The appellant knelt next to the victim, held his singlet and punched him repeatedly to the face while screaming at him. For good measure, he kicked the victim's head at least six times, described by witnesses as 'hard thudding kicks'. The victim was on the ground, helpless and moaning. Further witnesses arrived. One heard the victim's head hitting the concrete on the driveway. Another observed the appellant sitting on the victim's chest and punching him repeatedly to the face. The appellant picked up a paving brick and struck the victim's head with it. When a resident told the appellant to put the brick down, the appellant told him to 'fuck off', then put the brick down and confronted the resident. Resuming the onslaught, the appellant kicked the victim in the face five or six times, even though the victim was unconscious and Ms Holding's son and the residents were asking him to stop. The appellant threatened one of the residents, then picked up the victim, put him in a choke hold and punched him approximately 20 times to the face. The appellant then returned to his car with Ms Holding's son and left the scene. Witnesses stayed with the victim to wait for emergency services to arrive. The appellant then returned. He got out of his car, yelled at witnesses not to call the police and threatened them. But he was not finished, for, after washing his hands in a neighbour's garden, he recommenced his assault, grabbing the victim's throat and pushing him hard into the ground. Witnesses heard the victim's skull hitting the concrete. The appellant tried to drag the victim to his car. Ms Holding's son yelled at the appellant to stop, and he ultimately did, washing his hands again and leaving before the police arrived.

6 The victim was taken to the Royal Melbourne Hospital, where he was treated for minor abrasions, fractures to his right eye socket and nose, a black eye, and damage to three front teeth. He remained in hospital for three days. The judge recorded that the victim 'suffered significant brain damage, from which he has now apparently physically recovered'. That was a reference to a CT scan in February 2009, which had revealed a very small right frontal extradural blood clot, followed by scans in May and June 2009, which were found to be normal. Despite his physical recovery, the victim is now too scared to go out, cannot work, and takes anti-depressants. The judge found that he 'is significantly incapacitated and unable to have a meaningful quality of life as a result of physical, psychiatric and psychological damage' and is probably suffering from post traumatic stress disorder.

7 The appellant relied on the following mitigating factors:

(a) The appellant made full admissions to the police and pleaded guilty at the earliest opportunity;

(b) The appellant had no prior convictions for violence;

(c) The offending was an explosion of violence out of character for the appellant, fuelled by the consumption of alcohol, which reduced his inhibitions. In this regard, he was seeking to overcome his alcohol problem through ongoing counselling from Voyage;

(d) The appellant was genuinely remorseful and had expressed regret for his conduct and concern for the victim and his family;

(e) The appellant had good prospects for rehabilitation and a good work history; and

(f) The appellant's history of depression and anxiety would make his time in custody more onerous.

8 The judge accepted these matters. The appellant referred also to sentencing statistics, noting that between 2004-5 and 2008-9, the average length of imprisonment imposed for the offence of intentionally causing serious injury was between three and four years, the median period was three years and six months, and that sentences of six years or more were imposed in only 14.5% of cases. He submitted that, having regard to current sentencing practice and the various mitigating factors, the sentence imposed was manifestly excessive. He submitted further that the sentence did not adequately reflect the discount that ought to have flowed from the judge's finding that the appellant had acted out of character while under the influence of alcohol.[3] In particular, it was submitted that intoxication contributed to the sustained and uncontrolled nature of the attack.

9 The respondent submitted that the judge gave appropriate weight to all mitigating factors. As to the appellant's intoxication, the respondent submitted that the judge did not find this to be a mitigating factor. While intoxication may have explained the context of the offending, it could not have been a mitigating factor in circumstances where the appellant's prior history showed that he had a problem with alcohol. As to the objective gravity of the offending, the respondent pointed to several matters, including:

(a) the sustained nature of the attack, which continued even when the victim was unconscious;

(b) the use of a brick to hit the victim's head;

(c) the victim's ongoing psychological and emotional trauma;

(d) the presence of a 12-year-old child, who requested the appellant to desist;

(e) that general deterrence, just punishment and denunciation were highly relevant; and

(f) although the injuries 'may fall towards the lower end of seriousness', the nature and viciousness of the attack elevated the overall gravity of the offending.

10 In my view, the objective gravity of the offending was high. The appellant's counsel did not suggest otherwise. Indeed, he recognised that the victim could have been killed. In essence, the appellant used his fists, feet and a paving brick to bash senseless a man who had been running away from him. He continued the assault when the victim was unconscious and threatened bystanders to ensure that nobody came to the victim's aid. And even after the appellant had gotten in his car and driven away, leaving the victim in a bloody mess, he felt the need to return to inflict further injury and again threaten bystanders. While the appellant fell to be sentenced on the basis of the injuries he actually caused, as opposed to more severe injury that might easily have befallen the victim, the respondent's concession that the injuries fall towards the lower end of seriousness does not gainsay the judge's finding that the attack has left the victim significantly incapacitated and unable to have a meaningful quality of life.

11 A further matter to bear in mind is that counsel on the plea conceded that this was a 'fairly serious example' of the offence and that a sentence 'just below' the Crown range was appropriate. The Crown range was a head sentence between five and seven years, with a non-parole period between three and a half and four and a half years.

12 As against these factors, there were, of course, the many mitigating factors which the judge accepted. Among those matters was the appellant's intoxication which went some way to explaining why he had acted out of character. But that matter could only be taken so far, and I am not persuaded that the judge failed to give it proper weight. Indeed, the sentencing remarks indicate that the judge gave appropriate weight to all the mitigating factors.

13 More particularly in relation to the matter of intoxication, I do not accept the argument now made (for the first time) that the disinhibiting effect of the appellant's intoxication went to the extent that the appellant was unable to foresee what he was doing and the consequences of his actions. In this sense, counsel submitted, the appellant's intoxication went to his moral culpability. As to that, counsel referred us to R v Martin[4] which is readily to be seen, in my view, as a case dissimilar from the present. The present is not a case in which the appellant was in a state of a psychosis at the relevant time of offending; that is not merely how I would apprehend it, there is no evidentiary foundation on which to so conclude.

14 Before the judge, the matter of intoxication was relied upon as a mitigating factor, as distinct from going to moral culpability. The latter is now put to us, but in the end, counsel simply submitted that, regarded overall, the judge gave insufficient allowance for the matter of intoxication. I am not persuaded that that is so.

15 The sentencing statistics are of little assistance, given the myriad circumstances hidden by bare statistics that accompany this type of offending. As to sentencing range, I note that in Jacobs v The Queen,[5] although the Court reduced the appellant's sentence by six months on the ground of parity (given that inadequate sentences were later passed by a different judge on co-offenders), it was observed that a sentence of five years, with a non-parole period of three years, was 'entirely appropriate' for a 22 year old with no priors for violence who had punched, kicked and stomped on the victim's head in a relatively brief attack which, luckily, left no lasting physical damage. While that attack was savage, it may be said that the present case was significantly worse, particularly having regard to the sustained nature of the attack after the victim was unconscious. Of course, the present case attracted a sentence one year higher. But I do not refer to Jacobs as a case to be applied as a benchmark, but rather as an indication that the sentence in the present case cannot be seen as manifestly excessive.

16 The appellant contended that the order for cumulation was unnecessary, as both offences occurred as part of the same episode or transaction. Further, it was said that the order for cumulation resulted in a breach of the totality principle having regard to the very heavy sentence passed on count 1.

17 I reject this submission. While both offences arose out of one incident, viewed broadly, they were discrete pieces of criminality which warranted separate recognition in the sentences imposed and cumulation ordered. The appellant had priors for drink driving and specific deterrence was an important consideration. He was driving with a blood alcohol level of 0.135%, when required to have a zero blood alcohol level. Further, he took a 12 year old child with him. It matters little in the circumstances that the distance covered in the car was short. The cumulation ordered was plainly open and there is no basis to suggest that the total effective sentence infringed totality.

19 I agree. I would further add some remarks of my own.

20 I observe that in the course of the plea, counsel for the appellant conceded that the appellant acknowledged that the consumption of alcohol was a contributing factor to his offending. His Honour had the matter squarely before him.

21 Furthermore, his Honour had before him two psychological reports, one from Dr Danny Sullivan and, secondly, one by Mr Warren Simmons, both of whom acknowledged that the appellant was affected by alcohol at the time of the offending and that it would seem that alcohol had been a factor in the particular behaviour.

22 At the very end of the plea, his Honour candidly expressed to counsel that he

had a tentative view in mind. However, arising from submissions, he wished to reflect on the matter further. That was emphasised, in the course of argument before us, as an indication that his Honour had failed to take account of the additional matters that had been put before him during the course of the plea.

23 I would not accept that submission. The fact that a judge will make observations in the course of argument does not mean that the judge has made a pre-commitment to a particular view. His Honour, as I say, was being candid but indicated he wished time to reflect on the matters raised.

24 It is apparent from his Honour's reasons for sentence that he gave careful consideration to all matters before him and, in the end, was persuaded to sentence the appellant as he did.

25 In any event, it has been argued before us today in a different way to the submission put below. It was said that the behaviour of the appellant was out of character, supported by the lack of foresight he had because he was affected by alcohol. In due course, that argument led to a reliance placed upon R v Martin[6]. I expressly agree with the observations of Hansen JA. I would further observe that in that case, the court was concerned with a serious and high level of psychosis. The court observed that the sentencing judge was correct in concluding that the circumstances of the particular appellant's case did not lead to his moral culpability being reduced by reason of the relevant psychotic state.

26 I further observe that in Martin's case, the applicant had been the subject of assessment by a consultant forensic psychiatrist, who observed that the applicant there had been 'in the grip of an acute psychotic illness'. The psychiatrist further observed 'it is clear that at this time, [the applicant] was acutely psychotic, holding various delusional beliefs of a persecutory nature. ... the core of his delusional system appears to have been that the human race had been replaced by malevolent

aliens and this in some way related to the close transit of Mars.'[7]

27 As Hansen JA has stated, Martin's case bears no resemblance or assistance to the particular case before us. It was quite a different matter.

28 I further observe that the argument was raised for the first time before this Court. If it was to have been ventilated properly, it should have been argued before the sentencing judge.

29 In all the circumstances, I too would dismiss the appeal.

30 Accordingly, the Court orders that the appeal is dismissed.

[1] The maximum penalty was 20 years' imprisonment.

[2] The maximum penalty applicable to the appellant was 12 months' imprisonment.

[3] See for example R v Coleman (1990) 47 A Crim R 306; R v Martin [2007] VSCA 291; (2007) 20 VR 14 [22].

[4] [2007] VSCA 291; (2007) 20 VR 14.

[5] [2011] VSCA 238, [18].

[6] [2007] VSCA 291; (2007) 20 VR 14.