R v McRae [2008] VSCA 74

2 He admitted two findings of guilt and 14 prior convictions arising from five court appearances in the Magistrates' Courts between 5 September 1996 and 9 January 2003. They related to offences of wilfully damaging property, intentionally or recklessly causing injury, being drunk in a public place, resisting a police officer in the lawful execution of duty, acting in a disruptive or abusive manner, the possession of a drug of dependence, namely, Cannabis L, hindering and assaulting a police officer in the lawful execution of duty and breaching the terms and conditions of an intervention order.

3 After hearing a plea in mitigation of penalty, the sentencing judge, on 13 December 2006, imposed a term of imprisonment of seven years, in respect of which a non-parole period of four years and six months was fixed.

4 The present application is based upon the grounds that:**

1. The sentence imposed is manifestly excessive.
2. The learned sentencing judge erred in giving insufficient weight to the matters put in mitigation.
3. The learned sentencing judge erred in failing to take into account as a matter of mitigation her finding that the complainant initiated the physical violence between the two when the complainant reacted to the expression of surprise and repugnance by the appellant at discovering the complainant's true gender, by kicking and/or punching the appellant.
4. The learned sentencing judge erred in rejecting the appellant's intoxication as a mitigating factor.
5. The learned sentencing judge erred in rejecting the complainant's deception on the appellant, as to the complainant's true gender, as being a mitigating factor.
6. The learned sentencing judge erred in rejecting the appellant's shock at discovery of the [complainant's] true gender as bring a mitigating factor.
7. The learned sentencing judge erred in her assessment of the appellant's prospects of rehabilitation.
8. The learned sentencing judge erred in her finding that the appellant showed, in the court proceedings before her, contempt for the complainant.
9. The learned sentencing judge erred in that she gave insufficient weight to the plea of guilty.
10. The learned sentencing judge erred in finding that the appellant had failed to demonstrate remorse.

5 I now turn to the circumstances relating to the commission of the appellant's offending.

**6 On 26 January 2006, at approximately 4.00am, the appellant was drinking at a venue within the Crown Casino complex, known as 'Barcode,' when he met the victim, Ms Isabella Labrador. Although born a male, Ms Labrador has lived as a female for many years and will be so referred to in this judgment. They engaged in a game of pool and, after socialising for a while, left the establishment and together walked a short distance to Ms Labrador's studio apartment in Flinders Street, Melbourne.

7 At the invitation of the victim, the appellant entered the apartment and, after a short time, she asked him whether he wanted to stay overnight, either sharing her bed or sleeping on a couch. At some point, the victim removed her clothes, save for her underpants, and lay on the bed. The appellant also removed his clothes and positioned himself beside her. Consensual foreplay was initiated and her breasts were touched. Ms Labrador had undergone breast implant surgery some years previously. At some stage during this activity, the appellant discovered that Ms Labrador had male genitalia and reacted angrily by threatening her. She responded by kicking him away and punching at him. He then punched her to the left eye and repeatedly to the face, head and body. He grabbed her by her hair and proceeded to drag her across her apartment, causing her to be knocked forcibly against the walls. In order to protect herself against injury, she tried to cover her face with her arms. Whilst continuing to drag her by the hair, the appellant picked up a vase and hit her over the head with it. Then using a broken portion of the vase, he stabbed her in the arm, breast and various other parts of her body. The appellant directed Ms Labrador to lie on her bed and, as he dressed and still holding the broken piece of the vase, ordered her to 'show me your penis.' She refused and he attempted to seize her hair again, but she was able to evade him, ran out of the apartment into the corridor and hid. She watched as the appellant left, exiting via a stairwell. Ms Labrador returned to her apartment where she telephoned for an ambulance and then went to a neighbour's apartment to await its arrival.

8 The appellant left one of his shoes in the apartment and threw the other into the Yarra River. He then went to the Crown Casino and falsely reported that he had been 'mugged.' Police were notified and he was taken to West Police Station. He admitted meeting Ms Labrador and said that, believing that she was a female, he willingly went to her apartment with the intention of having sexual intercourse with her. When he discovered that she had male genitalia, he became angry and assaulted her. He claimed that he used the piece of the ceramic vase in self defence because she was attacking him.

9 Ms Labrador suffered a closed head injury, facial bone fractures, lumbar spine fractures and five laceration wounds consisting of - a ten by two centimetre laceration to the left breast; a four by four centimetre laceration to the left supraclavicular area; a two by two centimetre laceration to the anterior aspect of the left arm; a two by two centimetre laceration to the left posterior thigh; and a two by two centimetre laceration to the left back. She was hospitalised for four to five days during which time, her wounds were sutured and there was an open reduction and internal fixation of the left orbital fracture.**

10 It is convenient to commence consideration of this appeal with the complaints of specific error contained in the grounds.

The likely scenario in this case is that when you expressed your surprise, and no doubt repugnance, Ms Labrador reacted to defend herself either by kicking or punching you. This view is informed by particularly your answers to questions 123 and 124 of the record of interview as follows.

A: Well, once I got the undies off, I went 'What the fuck's going on here?' That's when the feet came up, tried to kick me off and then just started throwing punches. So it was the foot first, then the punches.

A: Real -, real -, realised I was pissed off and I wasn't happy with the whole situation, and I thought - or it must have thought, 'I'm going to defend myself here'. So it started throwing punches and kicks at me and ... ... grabbed it, and that's when I rolled over, hit the side table and the lamp smashed ..."

You agree that these answers are accurate. However, you say that because of the extent of her deception Ms Labrador must have known you would retaliate. You admit that at the time you had never been angrier, but nevertheless claim that, but for Ms Labrador's attack on you, you would have walked away from the situation.

Mr Cummins believes that you have developed sufficient insight into your behaviour to understand that this is what you should have done on that occasion. However on the evidence I heard, I think it unlikely that you ever contemplated walking away.

Again, I accept that being misled by the victim in the manner described places your offending conduct in a particular context and explains why you were shocked. However, I have not treated this circumstance as one which reduces your culpability for the violence to which you subjected Ms Labrador.

12 It is asserted on behalf of the appellant that it is apparent from statements made by the judge and the sentence imposed that no weight was given to the circumstance that it was the victim who first resorted to violence. In my view that is not a fair reading of her Honour's remarks. The judge was clearly mindful of the circumstances in which the offending occurred. She accepted that the appellant was repelled when he realised that Ms Labrador was a transsexual, that when confronted with his anger Ms Labrador must have thought, 'I'm going to defend myself here' and then punched and kicked at him. This interpretation of her actions was adopted by the appellant himself in his police interview. However, as her Honour correctly pointed out, his response was extraordinarily violent and could not be viewed as significantly mitigated by the relatively minor actions of the victim undertaken in acknowledged self defence.

**13 Under this ground, it is asserted that the judge fell into error in regarding the appellant's consumption of alcohol during the evening prior to the offending as having no mitigatory significance in the circumstances.

14 What her Honour said about this aspect in her sentencing remarks was -**

You have an established history of alcohol abuse and of offences involving violence after disinhibiting yourself with alcohol. In these circumstances your consumption of alcohol may have contributed to your offending and helps explain your conduct, but it is not mitigatory.

15 In making these findings, the judge was clearly applying the long-standing view of the Courts with respect to the extent to which, and circumstances in which, self-induced intoxication can be taken into account as reducing an offender's culpability. This approach was outlined recently by Nettle JA in R v Howell[2] -

Similarly, as a general rule, alcohol or drug induced conditions will also not be treated as mitigating. As it was put in R v Redenbach:

... Both on the plea and in this Court an attempt was made to show that at the time of the killing the applicant suffered from what was referred to as "amphetamine psychosis".

Nowadays it frequently occurs that those who attack and kill or seriously injure someone are affected to some extent by drink or drugs. Where this condition is self-induced, it is not generally to be regarded as mitigating the offence, for in most cases the offender may be regarded as morally responsible for his condition at the time of the offence. Where the perpetrator of a drunken assault set up his drunkenness in mitigation, the Court said:

"But the day is long past when somebody can come along and say 'I know I have committed these offences, but I was full of drink'. If the drink is induced by himself, then there is no answer at all. (Bradley ...)."

And an assailant who claimed to have been in a state of drug intoxication was told that his self-ingestion of drugs did not mitigate offences: DPP v Tucker and Lewis ... . Where, on the other hand, the court is satisfied that there is something which, whether wholly or partly, excuses the taking of drink or drugs, it will treat that circumstance as going in mitigation , as where a drunken man who had committed an armed robbery showed that his alcoholism was the result of the painful disease from which he suffered: Kevich ... . So it may be said that drug addiction which contributed to an offence but which itself resulted from the medicinal use of drugs goes in mitigation. But there is nothing of this kind in the present case, except the suggestion that the applicant's unfortunate family background had contributed to his drug addiction, and that was taken into account by his Honour in the applicant's favour. (Citations omitted)[3]

16 Save that the appellant had been drinking and was to some degree affected by alcohol, the sentencing judge came to no conclusion concerning the amount ingested or its impact upon him. She accepted the possibility that his consumption of alcohol may have contributed to his offending and help explain his conduct, but it was never suggested in the course of the proceeding that he was severely intoxicated or that his perception or reasoning powers were significantly impaired. Even had it been proper for her Honour to take this matter into account, it could only have assumed marginal significance in view of the uncertain state of the evidence and, as her Honour pointed out, against the background of the appellant's history of violent offending after disinhibiting himself with alcohol.

17 In her sentencing remarks, the judge accepted that the appellant, being misled by Ms Labrador's 'female attire, demeanor and actions,' went to her apartment 'probably expecting and hoping for a sexual encounter with a woman' and that her behaviour in stripping to her panties and lying on the bed encouraged him to join her. However, she continued -

I accept that being misled as to the gender of Ms Labrador places your offending conduct in a particular context, but it is not a circumstance which reduces your culpability for the offence.

**18 In this Court, the submission was made that, contrary to her Honour's view, these findings constitute an extremely powerful mitigatory background to the commission of the appellant's offence. There can be no doubt that the appellant, who, at least to his knowledge, had never previously encountered a transsexual, finding himself in an intimate setting with Ms Labrador, experienced a powerful surge of revulsion and anger. However, as the judge pointed out, the fact that he experienced these emotions could not be seen to reduce his level of responsibility for the extremely violent attack that he then made upon her. It is simply a truism that the resort to violence to resolve personal disputes, or as an expression of anger whether justified or not or as a means of releasing feelings of frustration, cannot be accepted in a civilised community. Whilst in their responses to specific situations the Courts recognise and allow for the human realities that can influence behaviour they have always emphasised the care with which this consideration must be approached.

19 In the present case there would seem to be no room for doubt that the appellant set out to punish Ms Labrador for her deception and as an expression of his own feelings of revulsion and anger. His decision to do so, of course, arose in the context of what had transpired but it was one for which the judge considered he had to be regarded as fully responsible. I agree.**

20 With respect to the appellant's prospects of rehabilitation, the judge stated -

... I have reservations about the progress of your rehabilitation and your current prospects of avoiding further offences of a similar nature because I am not satisfied that you have contained your substance abuse problem or that you fully accept that you have a propensity for violence, particularly when affected by alcohol, which is one reason for the predicament you are now in.

21 Contrary to his counsel's submissions in this Court, this assessment could certainly be properly reached on the material before her Honour.

**22 The obvious ignorance and deep seated prejudice which to a substantial extent appear to have triggered the appellant's violent reaction to Ms Labrador, together with his attribution of the whole incident to the deception perpetrated by her, were found by the sentencing judge to have prevented the development of any genuine sense of remorse. This view was clearly open to her in the particular circumstances.

23 More problematic however is the emphasis placed by the judge upon the use of the word 'it' by the appellant to describe Ms Labrador in his police interview, and, once, in the course of cross-examination during the plea hearing. There would seem to be little room for doubt that, at the time of the interview, the appellant simply did not know how to refer to a person who to him was neither male nor female. When cross-examined in the hearing, he lapsed into the use of the same term. The judge formed the view that, on each occasion it was employed, the word 'it' conveyed the contempt that the appellant felt towards his victim and her Honour was appalled that another human being could be stripped of humanity in this way. As I have earlier indicated, the sentencing judge was justified in concluding that the appellant could not call in aid any feelings of remorse in mitigation of penalty and I agree with her that it is regrettable that such a primitive response could still be so easily evoked and such ignorance exist concerning matters of gender differences in our community. It must be remembered however that the appellant fell to be sentenced for his offending and not for his lack of understanding or the possession of a reprehensible attitude or bias against a person with the characteristics of the victim. After careful consideration of the transcript of the plea proceeding and the judge's remarks I have formed the impression that this distinction may not have been properly made, that it probably contributed to the handing down of a sentence that, on any view of the matter, was very heavy indeed when comparison is made with the range of sentences and trends disclosed in the relevant 'Sentencing Snapshot'**

released by the Sentencing Advisory Council in September 2006.[4] Accordingly, I consider ground 8 is made out.

**24 The attack upon Ms Labrador was savage and sustained and it is fortunate that she was not even more seriously hurt. Also relevant in this context is the fact that the appellant had a relevant history of engagement in acts of violence. Both general and specific deterrence assumed importance as sentencing considerations in his case and giving full weight to the personal factors that militated in favour of mitigation, including the appellant's plea of guilty, it is obvious that a substantial term of imprisonment was required. However I am of the view that the sentence handed down was manifestly excessive

25 I would allow this appeal and re-sentence the appellant to imprisonment for five years with a non-parole period of two years and nine months.**

26 I agree with Vincent JA that grounds 1 and 8 have been made out,[5] and with the re-sentencing disposition which his Honour proposes.

**27 I have had the benefit of reading in draft the reasons prepared by Vincent JA. I agree with his Honour's proposed disposition for the reasons he states.

[1] The maximum penalty prescribed by s 16 of the Crimes Act 1958 is 20 years' imprisonment.

[2] (2006) 16 VR 349.

[4] Sentencing Advisory Council, Sentencing Snapshot No 12 - Sentencing trends for causing serious injury intentionally in the higher courts of Victoria, September 2006.

[5] There is a probable relationship between the manifestly excessive sentence and the error complained of by ground 8.