R v Lewis [2008] VSCA 202

2 Michael Morrissey left a Geelong hotel late at night after listening to a band playing and walked towards the centre of town with a friend and two women. The women were the girlfriends of the appellant and one Robert Melross. The appellant and Melross had also been at the hotel. They left, caught a taxi, and located Morrissey and his companions in Moorabool Street. They alighted from the taxi and approached the group. There was some conversation and then both the appellant and Melross began punching Morrissey to the head. Morrissey fell to the ground and was kicked in the head. Morrissey sustained serious injuries, including a broken neck, abrasions to his scalp and bruising. He was admitted to hospital but fortunately has made a good recovery.

3 The appellant and Melross were arraigned in the County Court and pleaded guilty to a presentment in which it was alleged that each of them recklessly caused serious injury to Morrissey. After a plea, the appellant was sentenced to be imprisoned for a term of 12 months and it was ordered that he serve a minimum term of six months before he was to become eligible for parole. Melross was sentenced to a term of 12 months' imprisonment and it was ordered that the sentence be wholly suspended for a period of two years.

4 The appellant has been granted leave to appeal against his sentence by a single judge of this Court. The grounds of appeal are as follows:

(1) The learned sentencing judge erred by failing to properly apply the principle of parity.

(2) The learned sentencing judge erred in having regard to the fact that the appellant had subsequently been charged with a further offence as being relevant to sentencing.

(3) The learned sentencing judge erred in the order made for pre-sentence

detention pursuant to s.18(4) of the Sentencing Act 1991.

5 The appellant is 24 years old. He was 21 years old when the offence was committed. His father and mother separated when the appellant was aged three years. Apparently the appellant's father was a violent alcoholic. The appellant's mother formed a relationship with another man when the appellant was five years old. The appellant had a sister who is autistic and a brother who was confined to a wheelchair. Despite receiving support from his mother and stepfather, the appellant had a troubled childhood. He left home at the age of 14 years and left school in Year 9. The appellant lived in community service homes in Geelong, although he remained in contact with his family.

6 The appellant began offending soon after he left home. In the end, he had some 60 previous convictions from 12 court appearances, including convictions for theft, criminal damage, and possession of a regulated weapon. The appellant had a daughter from a de facto relationship when he was 19 years old. That relationship has ended. The appellant worked in a supermarket and at a seafood factory.

7 The offence was committed on 17 June 2005. On 12 October 2006 the appellant was charged with murder and remanded in custody. Upon his trial it was held that the appellant had no case to answer on the charge of murder and on 9 April 2008 the appellant was acquitted of manslaughter. The appellant could rely upon mitigating factors of some significance. He pleaded guilty. The sentencing judge said the guilty plea was made 'at the last moment', but acknowledged that there were discussions which took place between the prosecution and the defence as to the circumstances of the assault. His Honour said:

In the circumstances, I accept that in each case your pleas indicate remorse for your actions.

His Honour also accepted that a telephone conversation between the appellant and his stepfather on the night of the assault displayed remorse.

8 There was considerable delay between the commission of the offence and the date upon which the appellant was sentenced, a delay which could not be attributed to the appellant.

9 The first ground of appeal depends upon a comparison of the roles of the appellant and Melross in the commission of the offence and in their personal circumstances. The sentencing judge accepted that Melross kicked the victim in the head. Both Melross and the appellant punched the victim a number of times. Melross was six years older than the appellant. He had fewer prior convictions: ten convictions from four court appearances. The difference between the offenders upon which the different punishments were based was expressed in these terms by the sentencing judge:

It seems to me that Mr Melross had, as is often said, though seldom as convincingly as it was in this case, turned his life around. There has been a considerable opportunity in the last two and a half years to demonstrate that in fact this has happened. In Mr Melross's case I find that he is now employed, in a stable relationship, and has demonstrated by the number of impressive character witnesses called on his behalf that he has in truth seized the opportunity of the last two and a half years to make good his life and, it seems to me on the evidence before me, revealed he is determined to continue to remain free of criminal law. I have every confidence in view of the evidence that this is so. Mr Lewis's circumstances do not reveal such an optimistic state of affairs with respect to rehabilitation. Certainly it appears that until his remand in custody on the murder charge he was doing what he could to move forward, and particularly, bearing in mind the difficulties he faced with respect to the custody of his child. However, since your remand in custody on a charge of murder, your rehabilitation in the general community has been curtailed. Within jail you have sought to continue with your rehabilitation in whatever way you can by the attendance at courses and such. It is with respect to the last two and a half years that I find that there is a very significant disparity between the two, and as a consequence the differences which I have found and set out to explain to different sentences which I am about to impose.

10 In my view it has not been demonstrated that his Honour erred in making those findings. In fact, Melross was remarkably successful in, as his Honour said, turning around his life. The evidence of a number of witnesses told of a man who had completely cut himself off from those aspects of his previous life which had brought about his previous offending. He had stopped drinking, he had changed his friends, was a good parent and a hard worker. The sentencing judge, an experienced criminal lawyer, said he was satisfied that Melross would not re-offend. On the other hand, his Honour found that the appellant's prospects of rehabilitation were 'limited'. His Honour accepted that it was imprisonment as a result of the murder charge which limited the opportunities which the appellant had to demonstrate rehabilitation. Nevertheless, the differences remained. I do not think that the sentencing judge erred because he failed to fully equate the appellant's position with that of Melross on the basis that, if he had had Melross's opportunities, the appellant might have established more than limited prospects of rehabilitation.

11 As to the second ground of appeal, the sentencing judge did refer to the fact that the appellant had been charged with murder. In my opinion his Honour did so for the limited purpose of explaining the appellant's incarceration after October 2006 and consequently his inability after that date to demonstrate rehabilitation by participation in the life of the community. His Honour said that he was not going to sentence the appellant for a crime of which he knew nothing other than that it had led to the appellant being held in custody. The murder charge was irrelevant for the purposes of this sentencing exercise and in my view the sentencing judge treated it as irrelevant.

12 With respect to the last ground, the sentencing judge declared that the appellant's pre-sentence detention amounted to 432 days. This was an error. There was no pre-sentence detention. The appellant was immediately admitted to bail and was only imprisoned in October 2006 by reason of the charge of murder. There should have been no declaration of pre-sentence detention. That is not to say that his Honour could not have had regard to the time spent in custody by the appellant, but not pursuant to s.18(1) of the Sentencing Act 1991[1]. In a way, the declaration benefited the appellant. Immediately upon being acquitted of murder the appellant was released from custody on the basis that he had served the full term of 12 months' imprisonment instead of being required to apply for parole. At all events, I do not consider that the error in the circumstances should lead to the passing of a different sentence.

13 For the foregoing reasons I would dismiss the appeal.

14 I too would dismiss the appeal, for the reasons which his Honour has given. I wish to add only two brief comments of my own.

15 The question which, according to the authorities, has to be addressed when dealing with a parity ground is whether the appellant could be said to have a 'justifiable sense of grievance' about the relativity between the appellant's sentence and the sentence of a co-offender.[2] I do not understand the test thus formulated to require any departure from the conventional approach to appellate review of sentences. That is, the question whether the appellant's sense of grievance is justifiable is to be determined by asking whether there were reasonable grounds for the differentiation - or lack of differentiation, as the case may be - between the appellant and the co-offender. If it was reasonably open to the sentencing judge, on the material before the court, to differentiate - or fail to differentiate - between the co-offenders in the way he/she did, then there is no warrant for appellate intervention, and the appellant's grievance about the sentencing relativity cannot be said to be justifiable.

16 In my respectful view, the "sense of grievance" formulation has the disadvantage that it encourages appellants to urge a review on the merits. That is not, of course, the appellate court's function. Where rehabilitation is in issue, for example, it is not enough that the appellate court might have taken a more optimistic view of the appellant, or a more pessimistic view of the co-offender. The question, on appeal, is whether the sentencing relativity was outside the range reasonably open to the sentencing judge in the circumstances. That being so, an argument directed at persuading the appeal court to take a different view of one or other of the

relevant sentencing factors is almost certain to fail. What has to be demonstrated is that the sentencing judge has gone so badly wrong that the exercise of the sentencing discretion has been vitiated.

17 In the present case, the parity submission could only have succeeded if it had been demonstrated that it was not open to the judge to reach the findings which he did about the respective prospects of rehabilitation and about the relative risks of re-offending. For the reasons Buchanan JA has given, there was ample material to support the findings arrived at on those matters and, accordingly, to support the ground of differentiation which the judge identified, namely, the 'very significant disparity between the two' in relation to rehabilitation. There was also the very significant difference between them regarding the risk of re-offending, as set out in paragraph 48 of the sentencing judge's reasons.

18 The second general comment is this. Senior counsel for the appellant submitted that the real explanation for the disparity in sentencing lay in the weight attached by the judge to the significance of the charge of murder on which Mr Lewis was remanded in custody. Senior counsel was constrained to submit that the Court should view the murder charge as supplying the explanation for the disparity, not the matters upon which the judge expressly relied in differentiating between the two offenders. It would, in my view, be a very rare case where this Court would ignore what a judge said about the actual basis on which he/she sentenced - in this case, the actual basis on which he differentiated between the two offenders - and infer instead that some matter to which the judge made no such reference was in fact the true basis of the differentiation.

19 I agree that this appeal should be dismissed, for the reasons advanced by Buchanan JA and by the President.

[1] See R v. Renzella [1997] 2 VR 88.

[2] See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.