R v Hay [2007] VSCA 147

3 On 10 August 2005, when the appellant was aged 20 years, he attended at Zagame's Tabaret in Ballarat on the occasion of a farewell party to him and his partner, who had decided to live and work in Western Australia. The victim, a Detective Senior Constable of Police, was also at the Tabaret. As the evening went on, the appellant drank and became boisterous and offensive. He abused a crowd controller, who in vain requested the appellant to leave the premises. The victim, in an attempt to assist the crowd controller, spoke to the appellant and said that he had had a good night and it was time for him to go. One McHugh, a member of the appellant's group, said, "We know who you are, we'll take him and get him out of here." McHugh ushered the appellant out of the door.

4 Soon afterwards, the victim left the premises. As he walked towards his car, he heard someone say something like, "Fucking off-duty copper cunt." The victim's brother-in-law heard the appellant say, "I'll have you, you copper cunt." The victim turned his head towards the voice he had heard and saw the appellant walking quickly towards him. Before the victim had time to react, the appellant head-butted him and then punched him. The victim swung a pool cue which he was holding and felt another impact. He then felt blows from other people and grabbed hold of the front of the appellant's clothing. The appellant continued to punch the victim to the back of his head while he was being held by others in the appellant's group. The appellant grabbed the victim and gouged his left eye. The victim was punched in the kidney region twice by others and grabbed the appellant's belt to prevent himself**

being forced to the ground. He felt continual blows to his back and both sides of his body.

**5 The victim described his injuries as a collapsed lung, bruising to his face, back, neck, torso and an eye gouge. The gouging of the eye led to bleeding in the eye. The victim spent six days in hospital being treated for his collapsed lung.

6 The appellant was arrested and interviewed by the police. In the course of his record of interview, he said that he had been drinking whisky and beer. He claimed that the victim initiated the fight by hitting him with a pool cue. Nevertheless, he agreed that a video film showed the victim walking out the door and the appellant approaching him before head-butting him.

7 At the committal hearing, the appellant reserved his plea. The sentencing judge said that he accepted that the appellant was willing to plead guilty to the offence of recklessly causing serious injury, but only as long as it was dealt with summarily. That offer was not accepted, and only later did the appellant and the Crown agree that the appellant should plead guilty to the count of recklessly causing serious injury, while other charges were dropped.

8 The victim at the time of the assault was aged 51 years. In a victim impact statement he described his physical injuries and the psychological consequences of the attack upon him. He said that his personality was "shattered" and the assault had had "a profound effect on my family and me and all aspects of my life". He said: "I went from an outgoing, confident person to being remorseful, withdrawn, showing no confidence and being verbally aggressive to those near me and dear to me." He was treated by a psychologist and a psychiatrist. The sentencing judge said that there could be no doubt that the damage caused to the victim had been and remained profound.

9 The appellant is one of four children. The sentencing judge described him as part of a close and loving family. At the age of 16 years the appellant's relationship with his father became difficult. The appellant began to drink and by the age of 18 years was described as being a serious binge drinker. The sentencing judge said that he had, and continued to have, a serious alcohol problem. Alcohol played a part in prior convictions sustained by the appellant. The convictions included being drunk in a public place, resisting police, assaulting police, assault, and behaving in an offensive manner. At the age of 17 years the appellant left home and moved in with his childhood sweetheart, a relationship which has continued. The couple have a son, who is still young. The appellant left school in Year 11 and completed an apprenticeship as a boilermaker and welder. In Western Australia he obtained work designing, manufacturing and installing steel work and favourably impressed his employer.

10 In June 2005 the appellant sought assistance to deal with his drinking problem from a Ballarat doctor. In Western Australia the appellant sought the assistance of another doctor and underwent counselling sessions at a drug and alcohol centre in Perth. The sentencing judge was told that the appellant no longer drank in hotels and only drank at weekends. Evidence given during the course of the plea by relatives of the appellant confirmed the difficulties he had experienced with alcohol. The witnesses also said, and the sentencing judge accepted, that moving to Western Australia, assuming responsibility as a father and buying an apartment had led to a change in the appellant's personality and attitude. The sentencing judge also accepted that the appellant was remorseful for the offence and that was reflected in his plea of guilty.

11 The first ground of appeal is that the decision to impose a sentence of immediate imprisonment was clearly inappropriate. Counsel for the appellant submitted, as had counsel at the plea, that while a term of imprisonment was appropriate, that term should have been wholly suspended, in the light of the appellant's youth, the fact that he had offered to plead guilty at an early stage and had expressed remorse, that there had been 18 months' delay between the commission of the offence and sentencing, that since moving to Western Australia the appellant had reformed his way of life, demonstrating rehabilitation, and the fact that the appellant's immediate family, including his infant son, lived a considerable distance from the place where the appellant is imprisoned.

12 Where it is appropriate to impose a sentence of imprisonment, the decision whether or not to suspend the sentence in whole or in part will generally depend upon the effect of a range of considerations. The appellant must demonstrate that the sentencing judge's discretion miscarried, so that it could be seen that suspending the sentence in this case was the only reasonable course open to the sentencing judge. In the present case, the sentencing judge was aware of the mitigating factors available to the appellant. Nevertheless, he considered that the offence itself, and certain of the factors in the appellant's character and background, prevented him "being satisfied that it was desirable" to suspend the sentence, to use the terms of s 27(1) of the Sentencing Act 1991.

13 I am not prepared to say that, in so concluding, the sentencing judge stepped outside the bounds of a sound exercise of his discretion. His Honour carefully weighed the competing factors. I can detect no error in his reasoning, and I am unable to say that the result itself betokens error.

14 The second ground of appeal is that the sentencing judge erred in failing to find that the prospects for the appellant's rehabilitation were good. The sentencing judge found that the appellant's prospects of rehabilitation were reasonable. Assuming for the sake of argument that there is a significant difference between reasonable and good prospects of rehabilitation, I do not consider that the sentencing judge erred in characterising the appellant's prospects as he did. The appellant had made notable progress towards maturity. He still drank, however, and at the time of sentencing was only 18 months older than the man who became violent when under the influence of alcohol, which had occurred on many previous occasions. In my view, his Honour was not required to be satisfied on the balance of probabilities that the prospect of the appellant's rehabilitation was anything more than reasonable. The prospects for the appellant's rehabilitation were reflected in the non-parole period fixed by the sentencing judge.

(a) that the appellant knew that the victim was an off-duty police officer and that he was fair game for his [the appellant's] violence; and/or -

(b) that the appellant's knowledge that the victim was a police officer was an aggravating factor."

16 In his record of interview, the appellant denied that he was aware that the victim was an off-duty police officer. His Honour acknowledged that denial in his sentencing remarks. Nevertheless, the sentencing judge said:

"I am satisfied beyond reasonable doubt that you did know the victim was a police officer and that you thought he was, as one might say, fair game for your violence. This is an aggravating feature of your offending."

Counsel for the appellant pointed out that the sentencing judge relied upon McHugh's statement that, "We know who you are." That statement could not bind the appellant. On the other hand, his Honour was entitled to, and did, rely upon the evidence of the victim that he heard himself addressed as a "fucking off-duty copper cunt", and the evidence of another witness that the appellant said to the victim, "I'll have you, you fucking copper cunt" immediately before the assault. There was, in my opinion, ample evidence to justify the sentencing judge's finding. That evidence also supported the conclusion that the victim's status at least partly motivated the attack upon him, and that was properly treated as an aggravating factor.

**17 The next ground was that the sentencing judge erred in treating the appellant's intoxication as an aggravating factor. In the course of the plea, counsel for the appellant said that the appellant's prior convictions "almost all related to alcohol and, yes, aggressive behaviour towards others, alcohol fuelled". The prior convictions included assault, being drunk in a public place, resisting police and assaulting police. Counsel agreed with the sentencing judge's observation that, "This offence is simply an escalation of the nature of his offending since he was 18. It's yet another example of the unfortunate combination of alcohol and aggression." In other words, it was conceded by counsel for the appellant that he had a history of committing lawless, violent conduct under the influence of alcohol.

18 The question is whether the fact that an offender consumes alcohol, knowing that to do so will predispose him to violence, is an aggravating factor or simply one which prevents the offender claiming that his offending was involuntary. In my view, the appellant's consumption of alcohol was an aggravating circumstance in that consuming alcohol involved a degree of premeditation, which is often lacking in violent crimes where the violence is an impulsive reaction to events immediately preceding the commission of the offences.

19 The fifth ground is that the sentencing judge erred in finding that it was only by reason of the victim resisting the appellant that he avoided being beaten unconscious. In my view, the finding was open on the evidence. The appellant's onslaught was savage. The victim saved himself from being forced to the ground by grabbing the appellant. If he had not done so, he may well have been beaten unconscious.

20 The sixth ground is that the sentencing judge erred in his assessment of the evidence of the appellant's father by finding, "However, I have to tell you that my conclusion is that all your father was trying to do was to set boundaries for you, and that in reality you had problems with authority figures, rather than with just your father." As I have said, the appellant left home at the age of 17 years. His father said, in evidence which he gave in the course of the plea, that he may have been "too overpowering" and, "Maybe I was a bit too harsh, I think, in reality." When the sentencing judge suggested to the father that there was nothing wrong with maintaining boundaries with an adolescent son, the father again said that, "Maybe I might have been a bit too hard on him." That was not the only evidence upon which the sentencing judge could form an opinion about the appellant's attitude to authority figures. The appellant's prior convictions for assaulting police and resisting police, and his conduct on the night of this offence towards the crowd controller and the off-duty policeman, were eloquent of his attitude to authority.**

**21 The last ground is that the sentencing judge erred in reducing the credit to be given to the appellant's early offer to plead guilty to the offence of recklessly causing serious injury, on the basis that the offer was made conditional upon the matter being dealt with summarily. As his Honour said, the offer was made at the committal, at which the appellant's counsel cross-examined the victim and other witnesses to test their recollection. In all the circumstances, I do not think that his Honour did dilute the force of the early offer to plead guilty to the charge.

22 For the foregoing reasons, I am of the opinion that none of the grounds of appeal have been established, and accordingly the appeal should be dismissed.

23 I agree that the appeal should be dismissed, for the reasons which his Honour has given. I add the following remarks of my own.

24 First, the fact that we are delivering judgment so soon after the conclusion of argument is not to be taken as signifying that the submissions made this morning have been ignored. One of the advantages which this Court has is that we receive in advance very high quality, detailed, outlines of argument. Each member of the court had the opportunity before the hearing to read those outlines, together with the plea transcript and the judge's sentencing reasons, and to begin to form views, subject to hearing argument, about the issues to be advanced. The preparation which the written material enables us to undertake means that, far from ignoring the oral argument, we are able to derive maximum benefit from it.

25 Secondly, it is essential that the difference in function between the sentencing judge and the appeal court be clearly understood. Our criminal justice system gives the sentencing function to the judge, not to the appeal court. The sentencing judge is uniquely placed to draw together all of the arguments for and against, to evaluate all of the matters sought to be brought to bear on the discretion which he or she has to exercise. That is where the sentencing task should be carried out, subject always to**

**26 The appeal is not a second bite at the cherry. It is not an opportunity to re-run arguments in the hope that three different judges will be persuaded to take a different view from the sentencing judge. The question for the appeal court is not what we would have done had we been called on to sentence the offender but whether error has been demonstrated, such that we can be satisfied that the sentencing discretion miscarried. This Court will only interfere where it is demonstrated that something has gone clearly wrong.

27 It follows that an appellant will ordinarily be bound by concessions made on the plea. Buchanan JA has already referred to very significant concessions which were made on the plea, and in my opinion properly made. In particular, the concessions made about the link between alcohol and violence left little room for the submission in this Court that the appellant's drinking should not have been treated as an aggravating factor.

28 As counsel for the appellant properly conceded, all relevant matters were considered by the sentencing judge. It was not suggested that the judge considered any irrelevant matters, nor that any relevant sentencing principle was overlooked. The reasons provide a full and clear account of the sentencing judge's evaluation of the matters put before him. In a case like this - and most sentencing reasons from the County Court and the Supreme Court have these characteristics - appellate intervention is likely to be quite exceptional.

29 Of course, it is always open to an appellant to argue that the conclusion arrived at was not reasonably open to the judge. Counsel for the appellant embraced that task forcefully and courageously, acknowledging the difficulty which confronted him. What he needed to establish - but in my opinion failed to establish, though not for want of strenuous effort - was that the sentencing judge could not have done otherwise than to suspend the sentence. The decision whether or not to suspend typifies the sentencing discretion. It is a judgment committed to the sentencing judge, and in my opinion, for the reasons Buchanan JA has given, no error has been shown.

30 Thirdly, this Court does not examine sentencing reasons "minutely and finely with an eye keenly attuned to the perception of error".[1] Nor are we "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons.[2] The question is whether the judge has adequately stated what the reasons were and what matters were (or were not) taken into account. We focus on the substance, rather than the form.

31 In relation, for example, to the issue of what knowledge the appellant had about the victim's status as an off-duty police officer, counsel for the appellant spent some time dealing with what, in my opinion, were marginal aspects of the judge's analysis of this issue. The absolutely central aspects of the evidence on this issue were those which his Honour set out in his reasons, as follows:**

"Immediately before being head-butted, [the victim] said that you called him a 'fucking off-duty copper cunt.' This was again a statement made by you, which he says occurred before he was hit for the first time. Significantly, his brother-in-law supported this assertion. His account was as follows:

'I saw this bloke walk away from his group coming towards Pete. He stopped right up close to Peter, face to face. I heard this bloke say to Pete, 'I'll have you, you fucking copper cunt,' and head-butted Pete hitting him above his eyebrow'."

**32 As Whelan AJA pointed out during argument, the Crown submitted to the judge that he could be satisfied beyond reasonable doubt that the appellant knew that the victim was a police officer. Counsel for the appellant on the plea was specifically asked for submissions on the point, but made none.[3] It was always open to the defendant to give evidence to deny knowledge, but he did not. He had no obligation to do so, but he had the opportunity to do so.

33 Fourthly, I agree with Buchanan JA that the judge was entitled to conclude that the alcohol was an aggravating factor. This was a case of reckless intoxication, in the sense that the appellant well knew from past experience that when he was intoxicated he was likely to be violent. Drinking eight pre-mixed bottles of Jim Bean does not happen inadvertently. There was the added issue of his mixing alcohol and medication, as acknowledged by his counsel on the plea. Reference should be made to what was said by Smith AJA in R v Walker about the circumstances in which intoxication can aggravate the offence;**

"In R v Coleman[4] Hunt J (as he then was), also made the point that '[t]he degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication would therefore be relevant in determining the degree of deliberation involved in the offender's breach of the law.'

At the same time intoxication can aggravate the offence. Hunt CJ, in R v Gordon,[5] also said: 'In other circumstances it may aggravate the offence because of the recklessness with which the offender became intoxicated; Sewell and Walsh.[6] Thus intoxication may be an aggravating consideration where, for example, a man became recklessly drunk in the sense that he became drunk well aware that he was likely to become violent if drunk.

Intoxication may also be a circumstance that will be relevant to the issue of general deterrence. As is stated in Fox & Freiberg, where an offence is very grave and deterrence becomes the predominant factor, the mitigating aspects of the offence may be overridden."[7]

**34 Finally, I turn to the matter of hardship. Counsel for the appellant submitted that there was very real hardship for the appellant's partner and their young child by virtue of his imprisonment. I accept that unreservedly. As I said in argument, it seems to me to be lamentable that the progress of their new start in Western Australia has had to be interrupted. The reports of the appellant's work efforts in Western Australia are most impressive. The fact that he still has a job open to him there after this time serves only to reinforce how good his work must have been and that there are a number of people who have faith in him and his future, his family amongst them. Likewise, it is lamentable, in my opinion, that his partner and child do not have his company and support. Doubtless it was right for his counsel to say on the plea that the separation was devastating for him as well.

35 But it is equally lamentable, in my opinion, that having been given appropriate direction, both by his family and by the court on the last occasion, the appellant behaved as he did on this occasion. It is lamentable that the victim's family have, according to the victim impact statement, lost the person they knew. His personality has been "shattered". It is lamentable that his confidence and ability to do further policing work have been "completely shattered". In short, there are very many lamentable features of this case, of which the appellant's separation from his family is but one.

36 There are, as his Honour said, important issues of general deterrence and specific deterrence in a case such as this, precisely because this kind of assault has such profound implications for everybody affected. Somehow this Court needs to communicate better to those in the high risk age groups, who may find themselves in a situation of drinking too much and becoming violent, that if they have a chance to avoid that course, they should, because tragedy may result if they do not.

37 The sentencing judge wrestled with the difficult task which confronted him. His Honour gave "very anxious consideration" to whether or not to suspend the sentence. I would have done the same. Having read the reasons, I am satisfied that the sentencing discretion was conscientiously, thoughtfully and carefully exercised, in exactly the way that the appellant was entitled to expect that it would be. As I have indicated, there is nothing in the reasons which constitutes the kind of error which would warrant appellate intervention.**

**38 We were told by counsel that the appellant is not being given access to the young offenders' program within the correctional system. That seems to me to be a very grave matter of concern. If time spent in custody is to produce maximum benefit and minimum detriment for those imprisoned, individuals of the age of this appellant should be in a program such as that. They should not be at large in the adult system. If - as we have been told - there are not enough beds to accommodate young offenders in the program, it is time there were.

39 I also agree that the appeal should be dismissed for the reasons given by Buchanan JA, and I have nothing to add.**

[1] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

[4] (1990) 47 A Crim R 306.

[5] (1994) 71 A Crim R 459.

[6] (1981) 29 SASR 12, 14-15; R v Coleman (1990) 47 A Crim R 306, 327.

[7] R v Walker (Unreported, Supreme Court of Victoria, Court of Appeal, Hayne JA, Southwell and Smith AJJA, 31 May 1996), 11 (emphasis added).