Moody v The Queen [2014] VSCA 349

1 On 23 April 2014, the applicant pleaded guilty in the Magistrates' Court to one charge of recklessly causing injury. After a plea hearing, the applicant was fined $1,500 without conviction. The maximum term of imprisonment for recklessly causing injury, in the circumstances of this case, is two years.[1] Pursuant to s 257 of the Criminal Procedure Act 2009, the Director of Public Prosecutions appealed to the County Court against the sentence imposed by the Magistrates' Court.

2 The Director's appeal was heard by a judge of the County Court on 1 and 2 December 2014. On 2 December, the judge set aside the Magistrates' Court order and sentenced the applicant to a term of imprisonment for three months. Additionally, the judge ordered the applicant to serve a 12 month community corrections order, with a condition that he perform 200 hours of unpaid community work over the course of that 12 months, and that the applicant undergo programmes or courses aimed at addressing factors relating to his offending. The judge ordered that the community corrections order commence upon completion of the term of imprisonment imposed.

3 Pursuant to s 283 of the Criminal Procedure Act, the applicant seeks leave to appeal to this Court against the sentence imposed by the judge in the County Court. The applicant's proposed grounds are as follows:

1. The sentence is manifestly excessive.

2. The sentence is not an appropriate sentence.

3. The learned sentencing judge erred in his assessment of the applicant's remorse.

4. The learned sentencing judge erred in treating the proceedings as a 'contested' hearing when in truth what was being sought to be established was a clarification of the events by an examination of the CCTV footage of the incident.

5. The learned sentencing judge erred in treating the applicant's account given to police as an aggravating factor.

6. The learned sentencing judge erred in failing to take into account sufficiently or at all the applicant's prospects of rehabilitation.

The offending and events subsequent to the offending

4 The offending occurred in a nightclub at about 12.50 am on 20 October 2013. The victim was 21 years of age. She was out with girlfriends celebrating her upcoming 22nd birthday. The applicant was a man of 27 years of age, previously of good character and without any prior convictions.

5 While the victim was standing at a bar of the nightclub with her friends, the applicant bumped one of the victim's friends. While the victim gave evidence that her friend was bumped more than once (which evidence was confirmed by the evidence of the victim's friend who had been the object of the applicant's bumping), the applicant (who did not give evidence on the appeal to the judge) only admitted to one bumping. That said, and in any event, the applicant's bumping of the victim's friend led the victim to remonstrate with the applicant. The applicant then made contact with the victim, pushing her away. The victim then slapped the applicant to the face/neck area. The applicant then punched the victim very hard to the mouth, causing the victim to fall over, and also causing two of her front teeth to be dislodged. The applicant's punching of the victim constituted the charge of recklessly causing injury.

6 On 28 October 2013, the applicant was interviewed by police. In the course of that interview, the applicant gave the following account of the incident:

I was talking to my friend ... for a short period of time when I suddenly felt someone strike me in the back. It was a hard hit so obviously I was shocked and I turned around and as I turned around to my right I was punched hard in the face. It was a totally unprovoked strike and it caught me by surprise. I was hit very hard in the chin and my lip was split on the inside and my jaw was very sore. I did not see who hit me because I was struck as I was turning around. Because I was struck twice, I apprehended a further attack and while my head was knocked back from the punch to my chin, I instinctively and defensively struck out with my right fist to prevent a further attack and to get that person away from me. It was not a full force punch but a defensive and instinctive reaction to get that attack away from me.

...

I went downstairs with security and told them. I made the report and I said that I'd been punched in the back and in the face. It was only afterwards that the security accused me of hitting a female. I couldn't believe that a female could punch that hard. It was just a shock. I've never hit a female in my life and I'm not a violent person. That's what happened.

7 We have viewed for ourselves the CCTV footage obtained from the nightclub. This footage demonstrates the falsity of the applicant's account to police. First, the applicant was not punched from behind by anyone. Secondly, the applicant was not punched by the victim. Thirdly, the applicant was facing the victim (who had been remonstrating with him) when he punched her. Fourthly, the CCTV footage shows a punch which appears to have been delivered with as much force as the applicant could muster.

8 Subsequently, the victim prepared a victim impact statement that describes the very serious consequences suffered by her as a result of the applicant's assault - including the victim's need to now undergo significant and prolonged restorative dental treatment.

9 On 24 May 2014, the applicant wrote a four paragraph letter addressed to the victim. In the letter the applicant said that he 'would like to take this opportunity to express [his] sincere apologies for retaliating the way [he] did on October 20th 2013'. In the letter, the applicant seeks to 'assure' the victim that the bump to her friend was 'utterly accidental'. The applicant also asserts that he 'cannot believe that [he] instantly reacted the way [he] did'. The letter finished with the sentence:

Given this, along with my sincere apology, I pledge never to react in such a way again.

The hearing of the appeal and the judge's reasons

10 At the commencement of the hearing before the judge, counsel for the applicant informed the judge that some of the facts in the prosecution summary which was to be read to the Court were disputed by the applicant. Specifically, there was a dispute as to whether the applicant bumped the victim's friend more than once. Additionally, there was a dispute as to some of the things alleged to have been said by the applicant before and after the offending. Further, there was a dispute about whether the applicant pushed the victim with one hand or two hands. Finally, the applicant contended that the victim did not slap him with her right hand, but instead punched him to the head/face.

11 There was a discussion between counsel and the judge about the CCTV footage. Ultimately, the prosecution called the victim and the three friends who were with the victim on the night in question (including the victim's friend who was the subject of the applicant's bumping). Each of these witnesses was cross-examined by counsel for the applicant. However, the applicant neither gave evidence nor called any witnesses before the judge.

12 Following the conclusion of the plea submissions on 1 December 2014, the judge determined that he would have the applicant 'assessed forthwith'. An assessment was performed, and a copy of the assessment was available to the parties at the start of the hearing on 2 December. Submissions were made about the report of the assessment of the applicant, before the judge then commenced to sentence the applicant.

13 The judge commenced his reasons for sentence[2] with a description of the relevant facts as follows:

I am satisfied beyond reasonable doubt from the evidence called in this case that on the early hours of 20 October, Mr Moody, for some reason unknown to the court, decided to annoy or bump or touch one or more of a group of girls standing near the bar at the club.

When the complainant spoke to Mr Moody, or "got in his face" if that is the way it is put, about what he was doing and told him to desist, he pushed her back with one arm at least. She, and virtually shortly thereafter, slapped him to the area of the face or neck with her right hand. She should not have done that, and she herself acknowledges that she should not have that in her victim impact statement.

Immediately thereafter Mr Moody punched her in the mouth with great force, causing her to fall backwards and lose her two front teeth, and the nature and extent of the injures is demonstrated by the photographs. He, during the course of the incident, said to the complainant something to the effect of "That will teach you to touch me," or "You'll never slap me again," or words to that effect, before he left her lying on the ground and went off with his friends, or friend.

He was interviewed by the police ten days later and very simply told the police a complete nonsense story where he tried to pass off what had been a punch in the mouth deliberately inflicted as an accident, effectively, in self-defence when a group of males attacked him. There was no attack by one or more males, he was not struck or punched in the way he said, and he made up a story to try and get himself out of the issue.[3]

So against that background I come to sentence a man who is 27 years of age with no prior convictions and comes from a good family and has had a good work history. There is a psychological report tendered that would say that there is no underlying issue with him, and it would appear from the character references tendered and the lack of prior convictions, or subsequent matters, that this is out of character for Mr Moody.

A victim impact statement was tendered from Ms Carr, she read it to the court. It is an extensive document which is, to some extent, a treaties on crime and punishment and the rights of victims. It is extensive and it goes into a number of issues that often arise in cases of this sort. She clearly is physically and psychologically damaged severely by what occurred on that night and I am obliged to take the victim impact statement into account.

There are a number of factors that I have to take into account in arriving at an appropriate sentence for this offending. General deterrence is a significant factor. Violence against women is a topical subject at the moment, it is the subject of headlines in the paper on a daily basis and we are about to get a Royal Commission apparently in relation to it. It is something the community is concerned about and it is simply inexcusable.[4]

15 The judge then went on to analyse the judgment of this Court in DPP v Russell,[5] delivered earlier on the day of the applicant's sentencing. In the course of this analysis, the judge referred to the mitigating factors identified by the court in Russell, including the 'reasonable prospects for rehabilitation' of the respondent in Russell, which factors the judge stated he accepted as having relevance to the applicant in the present case. The judge then said:

Before I heard the submissions heard on behalf of the respondent yesterday, my initial reaction was that this offending was of the sufficient seriousness to warrant a substantial term of imprisonment. But there are a number of factors that I take into account in his favour. He has pleaded guilty, although the value of that plea is somewhat diminished by the contested plea that took place in this court yesterday. He cannot say that he has not put the complainant through the trauma of giving evidence and being cross-examined, nor her witnesses.

I accept that his offending was reactive and stupid, as it was described yesterday, and out of character for him. Some significance is that he has had this matter hanging over his head now for 13 months. In a sense, it is not his fault that the Magistrates' Court gave what I regard as an inadequate sentence. He has no prior convictions and falls to be sentenced as a man of good character. Although he has done an anger management course, it is apparent from the interaction with his counsel today that I am of the view he still has issues that need to be addressed. His version of events in what occurred on that night does not bear scrutiny. It is no more than an orchestrated attempt to escape liability for what he did, and rather mitigates from the remorse he professes to express now in the letter he wrote.

There is no excuse for knocking out the teeth of a woman with a punch. It is cowardly. I propose to impose a cocktail of sentence which will both punish you, reflect the community's denunciation of your conduct and deter others from behaving as you did. I have dramatically reduced the sentence I would have otherwise imposed to reflect the matters that were urged upon me by [the applicant's counsel].[6]

16 The applicant makes four specific complaints about the judge's sentence, namely:

(a) the judge erred in his assessment of the applicant's remorse;

(b) the judge erred in treating the proceeding before him as a 'contested' hearing, when all that was sought to be done was to clarify the facts by an examination of the CCTV footage;

(c) the judge erred in treating the applicant's account given to police as an aggravating factor; and

(d) the judge erred in failing to take into account the applicant's prospects of rehabilitation.

17 The applicant then makes the general complaint that the sentence imposed was manifestly excessive and/or inappropriate (inappropriate presumably because it is contended by the applicant that the sentence is manifestly excessive). We will deal with the applicant's four complaints of specific error, before turning to the applicant's complaint of manifest excess.

18 As to the applicant's first complaint, in our view the judge's assessment of the applicant's remorse was without error, if not plainly correct. The applicant's May 2014 letter could hardly be described as a model expression of remorse. If anything, it appears to be no more than a continued attempt by the applicant to justify the unjustifiable - namely his view of the relevant facts.

19 Further, in a history given, in January 2014 (some three months after the incident), to the psychologist, Mr Jeffrey Cummins, for the purposes of assessing the applicant for this proceeding, the applicant stated:

I'm a perfectionist type of person. I like to have everything right. I would never intentionally hit anyone unless I felt threatened and even then I wouldn't want to hit anyone.

20 Additionally, the applicant told Mr Cummins that he understood his matter was going to be the subject of a contested hearing because 'he was convinced he acted in self-defence'. Later, Mr Cummins recorded the applicant's account of matters in the following terms:

He then said the event of 20/10/2013 and being charged in relation to assaulting the complainant was "absolutely the worst thing" that has happened to him in his life to date. He said - "I thought a bloke had hit me and I just instinctively retaliated and punched out in self-defence".

21 The applicant's account of thinking that he had been hit by a male, and that he had 'punched out in self-defence', was plainly false. Further, the history given by the applicant to Mr Cummins is not demonstrative of remorse. In our view, having regard to the applicant's continual denial of critical facts, and the applicant's attempts to minimise his culpability, the judge was correct to be sceptical about the true extent of the applicant's actual remorse.

22 Turning now to the applicant's second complaint (the 'contested hearing' point), we see no error in the judge saying that the value of the applicant's plea of guilty was somewhat diminished by the fact that the victim and her three friends were required to give evidence and be cross-examined about events. While that cross-examination may have gone a little way to successfully putting in issue some of the peripheral facts about the circumstances surrounding the applicant's assault of the complainant, the cross-examination was ultimately of no great materiality. We do not think that the applicant enjoyed any great success in cross-examination in mitigating the material facts that were alleged against him in the prosecution summary.

23 As to the applicant's third complaint that the judge erred in treating the applicant's account given to police as an aggravating factor, the short answer to this point is that the judge did not do what the applicant contends. The judge noted the applicant's version to police and said that this version 'does not bear scrutiny'. Additionally, the judge (correctly in our view) said that the applicant's version to police 'mitigates from the remorse he professes to express [in the May 2014 letter]. We see no error in that conclusion. However, that conclusion does not demonstrate that the judge treated the applicant's account to police as an aggravating factor. That said, treating the applicant's lies to police as an aggravating factor would not in any event have constituted error on the part of the judge.[7]

24 Finally, so far as complaints of specific error are concerned, there is nothing in the applicant's fourth complaint that the judge failed to take into account his prospects of rehabilitation. The judge expressly accepted that the applicant had reasonable prospects for rehabilitation. The judge was not required to do more. The applicant's submission that the prosecution accepted before the judge that the applicant had 'excellent prospects of rehabilitation' is not borne out by the transcript of the hearing before the judge. On the issue of rehabilitation, the prosecution submitted that, while the applicant had no prior convictions, there still appeared to be a 'lacking of acceptance of his conduct on this particular evening'. In any event, when one considers all of the evidence, we see no error in his Honour's treatment of the issue of rehabilitation, nor in his Honour's conclusion that the applicant has reasonable prospects for rehabilitation.

25 Finally, we turn to the applicant's complaints that the sentence imposed by the judge was manifestly excessive and/or inappropriate. As has been said repeatedly by this Court, 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] This was a serious example of a gratuitous and brutal attack on a young woman who wished to do nothing other than enjoy a night out with friends. As this Court has said repeatedly, violence by men against women is to be condemned in stern terms.[9] The suggestion that in all of the circumstances of this case the sentence imposed by the judge was not reasonably open is without merit. Notwithstanding the applicant's prior good character, work history, good references, lack of prior convictions, and prospects of rehabilitation, the contention is unsustainable that the term of imprisonment and community corrections order imposed by the judge was manifestly excessive.

26 The application for leave to appeal must be refused.

[1] See s 18 of the Crimes Act 1958, s 113 of the Sentencing Act 1991 and s 259(2)(b) of the Criminal Procedure Act 2009.

[2] DPP v Moody, Unreported County Court of Victoria, Judge Chettle, 2 December 2014 ('Reasons').

[5] [2014] VSCA 308 ('Russell').

[7] DPP (Vic) v Ross [2006] VSCA 223; (2006) 166 A Crim R 97, 105 [31] (Maxwell P, with whom Warren CJ and Buchanan JA agreed).

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

[9] See for example DPP (Vic) v Ross [2006] VSCA 223; (2006) 166 A Crim R 97, 105 [31] (Maxwell P, with whom Warren CJ and Buchanan JA agreed).