R v Jones [2000] VSCA 204

5. The assaults which gave rise to the offences were separated only by a short period of time and the victim was the same man in each case. Although the appellant had no prior convictions, the sentencing judge formed a dim view of his role in the assaults and sentenced him to six months' detention in a youth training centre on the first count and 18 months' youth training on the second count. He ordered those sentences to be served cumulatively, and accordingly the total effective sentence was one of two years. By leave granted, the appellant appeals to this Court, primarily on the ground that the sentences imposed are manifestly excessive. There are a number of other grounds stated in the notice of appeal but they are in the main, as I see them, particulars of the ground that the sentence is manifestly excessive.

8. Before turning to those grounds it is necessary to refer briefly to the facts as found by his Honour. The victim of the assaults had attended a pre-Christmas dinner party in a Cowes restaurant on the night of 12 December. He and the company of which, as I understand it, he was the principal, provided radiography services to the Warley Hospital on Phillip Island, and the dinner was attended by members of the hospital staff. At about 11.15 p.m. and after the main meal, the victim had left the restaurant and had gone outside for a "smoke". Thereafter he remembers very little, because, as a consequence of the severe closed head injury which he received, he is unable to recall the events which preceded the injury which he sustained. Indeed, after the events, he was airlifted to the Alfred Hospital, where he remained for over a month before being released into the Grace McKellar rehabilitation unit, where he remained for a considerable time thereafter. The fact that he has made what appears to be a good recovery from the very serious head injury is the result, no doubt, of good management. From the appellant's point of view it is probably good luck that the offences which he faced were not more serious, notwithstanding that the sequelae of head injury were probably attributable to the victim's head hitting the ground and in, that sense, not intended by the appellant.

11. The events which led to the victim's injuries were pieced together by independent witnesses. All of them agreed that the appellant, apparently the worse for alcohol, was the aggressor and the victim a non-aggressive resister. The first incident apparently occurred when the appellant confronted the victim near the pier car park and started to yell at him. The victim sought to move away, but the appellant struck him in the face. The victim was bleeding from the mouth and nose. The appellant was apparently ushered away by others, but, after a short interval, he removed his shirt, gave it to a friend and then walked back to where the victim was standing. Without warning, the appellant started to rain punches upon the head of the victim until the latter fell backwards on to the asphalt, striking his head with a resounding crack.

14. His Honour found that the appellant, when interviewed by the police, was far from remorseful at that time, suggesting that he had been provoked, something which he repeated to Mr Joblin, whose psychological assessment was tendered to his Honour. The account was specifically rejected by the judge, who took the view that the appellant's consumption of alcohol was a substantial contributing factor to his aggression. In the event, his Honour regarded these as vicious assaults on a blameless citizen in a public place by an aggressive young man fuelled by the consumption of alcohol. In imposing the sentence he recognised the youth and previous good character of the appellant, the fact that he had embarked upon employment in the meat trade in Melbourne, and the fact that he was sorry for what he had done to his victim. His Honour also recognised his plea of guilty. However, as I have said, his Honour regarded the offences as vicious and needed to be met with just punishment in which principles of general deterrence would have a principal role to play. Such punishment, in his Honour's view, required actual detention in a youth training centre.

17. In the plea before his Honour it had been put to him that the imposition of a sentence which involved its service within the community would meet the circumstances of the case. His Honour rejected that view, indicating, as I have said, that in his opinion the circumstances of the offences required a period of confinement.

20. On this appeal, Mr Cantwell, who appeared for the appellant, did not suggest that the offences warranted other than detention. His submission is that the two years imposed by his Honour is manifestly excessive. As I have noted, it is contended that the sentences imposed are manifestly excessive. Mr Cantwell submits that his Honour gave too much weight to general deterrence and failed to give sufficient weight to factors of youth and otherwise good character. He referred the Court to the case of Mills[1], where it was said that, in cases of youth, general deterrence should normally give way to prospects of rehabilitation and youth itself. Mr Cantwell submitted to us that in this case his Honour had got these factors out of balance. He also contended that his Honour had insufficiently discounted the applicant's prior good record by noting that he had been previously spoken to by the police in respect of his drinking habits.

23. The real issue here, as I see it, is a simple one. Can it be said, having regard to the facts as his Honour found them to be, that the sentence which he imposed was outside the range available to him, where the appellant is a first offender, is a man of a young age, is a man who is well motivated to working and is a man who is unlikely to re-offend? All of these matters are clearly matters of weight in the sentencing process. His Honour was, in my view, entitled to regard these crimes, however, as vicious, cowardly and senseless. He was entitled to regard the appellant's conduct in returning to the fray after being initially restrained as indicative of an unwarranted act of aggression upon a blameless person in a public place. In short, his Honour was, in my view, entitled to regard the nature of these crimes as warranting, by way of just punishment, detention rather than a penalty involving service within the community. Furthermore, in my view, he was entitled to regard anything less than detention as failing to properly recognise the gravity of the offence and the need for the court to deter others from embarking upon that conduct.

26. Without disrespect to counsel, whose arguments were well presented, I am not persuaded that his Honour failed to pay proper regard to the appellant's youth, or indeed to other principles of sentencing upon which stress has been laid during the course of this appeal. In particular, I cannot accept that his Honour has failed to give sufficient weight to the appellant's previous good conduct by noting that he had come to police attention for drinking in public places on prior occasions. This, in my view, was a background matter which his Honour was entitled to have regard to in imposing sentence, it having been raised during the course of the plea and conceded by the appellant's counsel. Mr Cantwell submits that the remarks tend to suggest that his Honour had "taken his eye off the ball", which in this case, so he submitted, was predominantly the appellant's youth and inexperience. But I am not persuaded that his Honour's remarks indicate any such thing. It seems to me that his Honour has given adequate weight to all the matters in mitigation to which Mr Cantwell has referred, and, as Mr Cantwell has conceded, the judge was entitled to impose a sentence of detention; it is just a question whether the amount of detention ordered is manifestly excessive. As I have indicated during the course of the appeal, that is a question which does not admit of much argument. Although in my view the sentence imposed by his Honour might be regarded by some as a severe one, I am not persuaded, having regard to the circumstances to which I have referred, that it was out of the range of penalties available to his Honour.

29. Therefore, in my opinion, the appeal should be dismissed.

33. As the learned President has said, all the grounds of appeal assert, in one way or another, that the sentence was manifestly excessive. I think it was severe but not beyond the range available to the judge. The only comment I would make, without imputing appellable error, is that the factor competing with rehabilitation was punishment more than general deterrence[2], for, in agreeing as I do that the appeal should be dismissed, I should not like to be thought to resile from what I said, with the concurrence of the other members of the Court, in R. v. Misokka[3], which was picked up by Batt, J.A. and confirmed in R. v. Mills[4].

36. The principle is that, in the case of youthful offenders, rehabilitation is usually far more important than general deterrence. General deterrence is an ulterior purpose of sentencing. In the cases to which the principle applies with full force it necessarily yields to the more immediate public interest in the rehabilitation of the offender before the court. But its application depends on the facts, including the age of the offender, his or her potential for rehabilitation and the prevalence or other relevant characteristics of the offence. "Prevalence" here means prevalence among such youthful offenders. It is also to be borne in mind, as Mr Coghlan pointed out, that rehabilitation is commonly a major end in view when a sentence of detention in a youth training centre is imposed[5].

40. Despite the youth of the appellant, the absence of prior convictions and the strong support of his family, I have concluded that the sentence that was imposed upon him was not outside the range which was appropriate for a vicious attack on an unresisting victim. Accordingly I agree that the appeal should be dismissed.

44. The formal order of the Court will be that the appeal is dismissed.

[1] [1998] 4 V.R. 235

[2] Those words are chosen carefully. I do not say that general deterrence was excluded.

[3] Unreported, Court of Appeal, 9th November 1995 at 6.

[4] [1998] 4 V.R. 235 at 241, lines 15-17 and 30-32, and 242, lines 3-4.

[5] Sentencing Act 1991, s.32(1)(a).