R v Barcham [2001] VSCA 215

5. The proceedings taken against the appellant and his companion Abdullah Israili, who pleaded guilty to one count of affray, are the subject of a written summary which is before us, accompanied by a written summary of evidence, and, nothing in these documents having been challenged by the appellant, I will treat them as relieving me of the need to deal in detail either with the proceedings or with the evidence. On the plea it was accepted by counsel for Israili, and not disputed by counsel for the appellant, that the Crown, in summarising the facts to the judge for sentencing purposes, had acted very fairly and conservatively, not asserting additional adverse facts which might have been attempted to be supported by reference to depositional material but instead extracting what might be regarded as the irreducible minimum of adverse facts as regards each offender.

8. The appellant, who was 26 at the time of the offences, had, by his own admission, arrived at the Metro Nightclub car park after spending time first at the Rainbow Hotel and then at Beach's Nightclub. He had had, he said, about 15 drinks of various kinds and then taken half a gram of "speed" in the car on the way to the Metro. He described himself as being not tipsy, but drunk, and said it was only the "speed" that enabled him to get out of the car and kept him on his feet. There had been an altercation between two groups near the Metro car park, one including Israili and the appellant, who had found their arrival impeded by Bradshaw and his companions, who had been walking along a lane towards the car park on the way to their car after leaving the nightclub. The bare bones of the Crown's allegations against the appellant, as outlined by the prosecutor on the plea by way of putting before the judge only the facts which were really indisputable, was that the appellant, seeing Israili in the altercation, got out of the car which had followed Israili's car towards the car park and, having been supplied by someone with a softball bat, struck Bradshaw a heavy blow to the head with it, felling him, and, while Bradshaw was lying on the ground, then struck him again on the head with the bat. The plea was conducted on the basis that, whatever the drunken state of mind of the appellant may have been, neither of the two blows was struck in self-defence and that the appellant had not given Bradshaw any warning before striking the first blow. His Honour seems to have sentenced on the basis that the Crown was relying only on the second blow struck against Bradshaw, but, if this is so, then, if I may say so without disrespect, that seems to me to be the result of a misunderstanding of the Crown's position as apparent on the plea.

11. After the second blow the appellant moved away from Bradshaw, swinging the bat at others in Bradshaw's group as he did so. One of these swings struck Simon Gorton on the chin, leaving him permanently scarred. This was the subject of the second count.

14. Having struck Bradshaw and Gorton with the bat, the appellant went to Israili's vehicle and put the bat in it and then made off on foot. Having rounded a corner and paused for refreshment in a café, as I recall, he later used a mobile telephone and arranged to be picked up by Israili and so made his escape from the vicinity of the attack. All this shows that drink had by no means taken away his wits, as I think his Honour at one stage observed.

17. On 14 July 1998, some seven or eight weeks after the attack on Bradshaw, the police, acting on information received, arrested the appellant at his home: apparently it was possible to identify him from a surveillance video at the first of the night clubs. The judge's reference to this formed the basis of one of the abandoned grounds of appeal - abandoned, that is to say, in the reconstitution of them. On the day of his arrest the appellant made a "no comment" record of interview. Two days later he made a further record of interview admitting that he had been in the Metro car park and struck a man with a bat twice but attempting to exculpate himself by saying that the victim had been coming to attack them and that after that incident, when he had swung the bat, that was because another guy had come to attack him. He said that he had warned the first man to keep away or he would be struck. He said that he had struck the first man because the man had tried to attack him. He accepted that the softball bat comprised a metal bar about a metre long with a foam cover - the estimate of length may be inaccurate - and that he had wielded it with both hands. He said that after he left the scene he thought he might have killed the man he had felled. Another statement which he made to the police might be said to be more candid.

20. The appellant had five previous convictions arising out of two court appearances in 1996 and 1997, all leading to fines. The first group of convictions included one for assaulting a member of the police force in the execution of duty and the second pair were for the possession and use of cannabis. These offences were certainly not serious, but they did prevent the appellant from being put forward as a person of unblemished character.

23. The principal victim, Bradshaw, aged 18, was admitted unconscious to the neurosurgery unit at St Vincent's Hospital in the small hours of 24 May 1998. From there he went to Royal Talbot Rehabilitation Centre, where he was an in-patient from 4 June to 3 July 1998. He was treated as an out-patient until September 1998. A CT brain scan at St Vincent's Hospital showed multiple intracerebral contusions. He suffered from post-traumatic amnesia for some three weeks. His brain injury was described by the consultant at Royal Talbot as serious. The report from that institution deals with the persisting cognitive difficulties, the short-term memory problems, the fatigue, the difficulty in communication, the anti-epileptic medication, the patient's difficulty in coping with information and his anticipated difficulty in returning to his TAFE course. The report mentions also the reference to the Commonwealth Rehabilitation Service for ongoing assistance after completion of the out-patient program at Royal Talbot. At that stage further speech therapy was recommended. The report concluded that persisting cognitive and speech language deficits could impact on the patient's return to work and study and that there was a possibility that some of those deficits could be permanent.

26. So much for the medical opinion. It is, however, as the other material shows, inadequate to convey the seriousness of the consequences of the injury inflicted on Bradshaw. No one should attempt to assess those consequences without a careful reading of both his own victim impact statement and that of his mother. I do not propose to set out here anything which appears in either of those two important documents, but I emphasise that no one considering the propriety of the sentence passed in this case, and asking whether it is too great or too small, should do so without a careful reading of them both.

29. The judge was told by the appellant's counsel that he had married a few weeks before the hearing and that his wife was three months pregnant. A psychologist's report, by Ms Lefkoviz, was put in evidence. According to her report the appellant had no major psychological disability. She did, however, recommend that he receive treatment to enable him to control aggressive behaviour and provide him with anger management training. The judge said that he would take into account the fact that the appellant's wife and prospective child would suffer as innocent parties for his behaviour. To take this into account was contrary to principle and so an error in favour of the appellant, there being no exceptional circumstances warranting the taking of hardship to members of the offender's family into account.

32. On the plea the appellant's counsel put what I must say I regard as a very bold submission that, although a sentence of imprisonment should be passed, it should be wholly suspended.

35. Reference was made on the plea, as it is now, to the matter of delay, although this is not a matter, I think, which Mr Croucher for the appellant has emphasised in his oral argument. The appellant came before the court 2½ years after the commission of the offences. The matter of delay, and its causes, are dealt with in the summary of proceedings placed before us and in what was said by counsel on the plea. From what counsel said it appears that it was not until September 2000 that the appellant intimated a willingness to plead guilty on the basis on which it was said by the Crown on the plea he should be dealt with. While of course proper regard must be had to what has occurred during the period between offence and plea, I do not think that in the present case the appellant can, in all the circumstances, make anything of the matter of delay as such. I should add, however, that even if I were wrong in this view my opinion about the way in which we should dispose of this appeal would not be affected.

38. The judge found that there was no premeditation, and no doubt that was so. He referred to the plea of guilty. He accepted that the appellant had "indicated real prospects of rehabilitation". His Honour also said, "I'm satisfied that you are not a serial offender and the community is not at risk of your re-offending in this manner again". If his Honour meant to convey by this that it was only in the case of a "serial offender" that specific deterrence was an important or perhaps even a relevant consideration, then I would respectfully differ. As regards the statement that the community was not at risk of his re-offending in the same manner again, his Honour had referred to, and evidently accepted, the submission that the appellant acted as a binge drinker three or four times a year. The prior offences of 1996 had on the plea been sought to be explained as occasioned by a problem with drink. His Honour also referred to the psychologist's view that the appellant should receive treatment to enable him to control aggressive behaviour and to provide him with anger management training. In these circumstances, and having regard to the circumstances of the present offences, I must say that I view as very surprising his Honour's remark that the community was not at risk of his re-offending in the same manner again. I am, however, content to approach this case on the basis that the appellant is entitled to the benefit of that finding.

41. His Honour was evidently prepared to find that there was at all events a measure of remorse. But in considering the matter of remorse one cannot overlook the fact that the appellant got rid of the weapon not simply by dropping it to the ground but by putting it in the vehicle of his companion (whom he later telephoned to arrange his escape) and so may not unfairly be said to have sought to conceal the weapon. In addition, he quickly left the scene, notwithstanding that he thought that his principal victim had been very seriously injured and might die, and later made his way to a place from which he telephoned Israili and arranged to be picked up by him, as indeed he was. Moreover, he attempted to escape detection for weeks after the incident and then, after his arrest, initially made a "no comment" record of interview and then made one in which he attempted to exculpate himself. And so it must be said that any remorse which he may have felt did not translate itself into anything approaching apparently remorseful action for a considerable time.

44. Against this background I turn to the grounds of appeal. Having regard to the course of events on the s.582 application, we have already given leave for the following grounds to be substituted:

"1. The learned sentencing judge gave insufficient weight to the appellant's personal circumstances and in particular: (a) his age; (b) his lack of relevant prior convictions; (c) his strong prospects of rehabilitation; (d) the absence of a risk of recidivism; 2. The learned sentencing judge gave insufficient weight to: (a) delay; (b) the appellant's pleas of guilty; (c) his remorse; (d) his co-operation with police. 3. Events have occurred since plea and sentence which throw a different light on circumstances existing at the time of sentence, and in particular: (a) the appellant faces the risk of deportation; (b) his wife has suffered a miscarriage; (c) an order for compensation has been made, unopposed by the appellant, in favour of Mr Ross Bradshaw (the complainant in respect of count 2). 4. In all the circumstances, the sentence on count 2 and the non-parole period are manifestly excessive."

48. The first two grounds allege that insufficient weight was given to a number of matters, of which eight are specified. His Honour's reasons do not suggest to me that insufficient weight was given to any of the matters relied on under these grounds. If this is so, then the grounds are really to be considered as giving particulars of the allegation of manifest excess, the subject of ground 4. Leaving aside for the moment ground 3, I must say that I have the clearest possible view that this sentence is not manifestly excessive, whether one considers the individual sentences or the total effective sentence or the non-parole period. This is a matter of impression and little can be said about it. I hope it will not be suggested that this Court is not at liberty to have some regard to its impression about the prevalence of offences of violence committed by those who have been drinking in circumstances which, in a very broad sense, resemble those of the present case. The attack on Bradshaw, with which the grounds of appeal are really concerned, was a vicious attack by a man who, evidently given at least on occasions to binge drinking, had put himself into a drunken and potentially most dangerous condition. The injury inflicted was a grievous one. Far from being satisfied that the sentence was manifestly excessive, I regard it as inadequate.

51. Ground 3 can be disposed of shortly and, I think, without reference to authority. The authorities are frequently cited in this Court, especially of late, where I detect an increasing tendency to attempt to introduce further evidence in cases which otherwise have little to commend them. In my opinion the affidavit of the appellant's solicitor sworn 12 November 2001 which is relied on for this purpose ought not to be received. Its reception would be contrary to the principles on which this Court acts in matters of this sort. The appellant wishes to prove that, contrary to his previous assertions to the authorities, he is not an Australian citizen but merely the holder of a permanent resident visa. (Both he and Israili are, as has always been known, of Lebanese background.) It is desired to prove that on or about 4 January 2001 the appellant received a notice from the Department of Immigration and Multicultural Affairs informing him that his visa might be liable to cancellation under s.501 of the Migration Act 1958 and referring to the convictions sustained in December 2000 and his criminal history in Australia. He was informed that he had an opportunity to comment before the Minister considered whether to cancel his visa. In each of his two records of interview the appellant asserted that he was an Australian citizen. And of course the picture painted of him by his counsel on the plea was that of a man who, after these offences, had settled down to raise a family in this country. There is nothing in the material to suggest that the appellant himself never adverted to his status as a non-citizen until after he had been sentenced and I should have thought he would have been conscious of it. In any event, we should not receive the affidavit. It is enough to refer to the unreported decision of this Court in R. v. Griffiths[1], although a good deal more might be said about this matter.

54. 18 The judge was aware that the appellant's wife was pregnant. It is now desired to prove that she suffered a miscarriage on 25 March 2001. This evidence cannot possibly be brought within the principles upon which this Court acts in deciding whether to receive evidence of events occurring after sentence.

57. The judge was told by the prosecutor on the plea that at least one victim would be seeking a compensation order. The judge said that he would not hear any such application at the time of sentence. It is now desired to prove that on 2 July 2001 a compensation order was made against the appellant in favour of Mr Bradshaw in the sum of $25,000 and that the appellant did not oppose the application. It is accepted by the appellant that an order for compensation is not to be regarded as part of the punishment imposed. But it is said that the decision not to oppose the application is further evidence of remorse. There is no direct evidence that this was the motivation and I do not think that any such inference should be drawn. The appellant may well have thought that he had no prospect of successfully resisting the application. He may also have thought that in view of his financial position there was no point in resisting it, since the order would not be satisfied. Such material as there was concerning the appellant's work history would not suggest that he was a man of property. In any event, even if the suggested inference about motivation ought to be drawn, the evidence ought not, consistently with the principles on which this Court acts, to be received.

60. I might add that even if all the evidence sought to be led were to be received, it would not alter my view that the only criticism that may be made of this sentence is that it is remarkably, indeed, I would say, most unfortunately, lenient.

70. I agree that this appeal should be dismissed and specifically endorse the remarks of the presiding judge. I would add only two comments.

73. First, it must be borne in mind that as a consequence of the commission of a very serious assault upon the victim, injury of a life-changing character has been sustained by him. Second, places of resort for the young people of this community must not also be places of danger in which they are liable to be exposed to uncontrolled drunken violence. The principle of general deterrence is in my opinion an important sentencing consideration in cases such as this.