R v Mills [1998] VSC 241; [1998] VICSC 7

CHARLES, J.A.: I agree. I publish my concurrence in the reasons of Batt, J.A.

PHILLIPS, C.J.: Brock Mills, the Court proposes to make an order suspending a sentence of imprisonment. The law requires that before we do that I explain to you the purpose and effect of the proposed suspension order and the consequences that may follow if you commit, in or outside Victoria, another offence punishable by imprisonment during the operational period of the sentence, which is three years from today. The purpose and effect of the proposed suspension order is to grant you conditional freedom from its commencement, the condition being that you avoid conviction for an offence punishable by imprisonment for the next three years. If you commit such an offence in that period you will be liable to again attend court, under arrest if necessary, and you may be required to serve the balance of the twelve-months sentence. Do you understand that?

The application for leave to appeal against sentence is granted, the appeal treated as instituted, heard instanter and allowed. The sentence imposed on the applicant in the court below is set aside and in lieu thereof he is sentenced to be imprisoned for twelve months. Eight months of that sentence is suspended. The Court fixes the period of three years from this day as the period during which the applicant must not commit another offence punishable by imprisonment if he is to avoid being dealt with under s.31 of the Sentencing Act.

The Court declares that the period of 105 days is the period of pre-sentence detention already served by the applicant as part of the said sentence and directs that the making of this declaration and its contents be entered in the records of the Court.

(To applicant): Your father and mother are here again today, are they?

PHILLIPS, C.J.: And they were here during your application?

PHILLIPS, C.J.: For your information, the offence of being found drunk and disorderly in a public place is an offence punishable by imprisonment, and the offence of common assault, which is a much less serious offence than the one you committed, is also an offence punishable by imprisonment. Your case has given the Court very great anxiety, and not least among the reasons for this is the statement made by your own counsel to the judge who sentenced you, and I will read it out to you:

"But the net result is, Your Honour, he [that is you] is a large consumer of alcohol."

This is after your offence, when you were being sentenced.

"Since that event he has not been able to give up alcohol entirely. He instructs, however, that it has been moderated. He only spends $20 when he goes out drinking now. He only takes the $20. Why does he go out drinking? His mates do it, he says, and he can't

sit home with the television on Saturday nights doing nothing."

Now if, as I think counsel was implying, you may be under some pressure from your mates to join in the drinking, you have got a perfect answer, haven't you, because if you are a first-grade footballer, as we are told you are, you have a ready answer: you want to keep your place in the team. Right?

PHILLIPS, C.J.: The Court has given you a chance. Don't let us down; don't let your father and mother down, who have supported you. All right? We don't want to see you again. You may go now.

CATCHWORDS: Criminal law - Sentencing - Recklessly causing serious injury - "Glassing" - Youthful first offender.

For the Applicant Mr. P.F. Tehan Q.C. Ryan, Maloney Anderson

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PHILLIPS, C.J.: I have had the benefit of reading the judgment of Batt, J.A. in draft form. I concur in the conclusions His Honour has reached and I would subscribe to his reasons therefor.

I certify that this is a true copy of the reasons for judgment of Phillips, C.J. of the Court of Appeal (Phillips, C.J., Charles, J.A. and Batt,.J.A.) of the Supreme Court of Victoria delivered on 26 February, 1998.

I certify that this is a true copy of the reasons for judgment of Charles, J.A. of the Court of Appeal (Phillips, C.J., Charles and Batt, JJ.A.) of the Supreme Court of Victoria delivered on 26 February 1998.

BATT, J.A.: The applicant for leave to appeal against sentence, Brock Mills, was born on 19 September 1976, so that at the date of the offence in question, 16 March 1997, he was aged approximately 20 and a half years, and was at the date of sentence mentioned below and is now aged 21 years. On 14 November 1997 the applicant pleaded guilty on arraignment in the County Court at Mildura to one count of recklessly causing serious injury contrary to s.17 of the Crimes Act 1958 . The maximum penalty applicable to that offence was 10 years' imprisonment. By virtue of s.5(2AA)(b) of the Sentencing Act 1991 , at the date of sentence mentioned below his Honour was required not to have regard to any sentencing practices arising out of s.10 of the latter Act as in force before its expiry.

The applicant had no previous convictions. (The reference by his counsel in making a plea before the County Court judge to speeding in South Australia seems not to be to a conviction but to an offence that was expiated by payment of a penalty. Certainly that matter has been disregarded both at first instance and on appeal.)

The prosecutor tendered a book of photographs depicting the injuries of the victim, Duane Gordon Sawyer, and a victim impact statement from Mr. Sawyer. His Honour was able to observe the then present state of the injuries at close quarters, for Mr. Sawyer, who was present in court, was asked to stand forward for that purpose. The prosecutor pointed out to the judge that the injuries were to Mr. Sawyer's left eye and that an injury to Mr. Sawyer's right eye that was depicted in the photographs was caused after the incident in question and not by the applicant.

Counsel for the applicant then made a plea in mitigation and tendered a report on the applicant by a clinical psychologist, Mr. Gerald Purchase, a report on the applicant by Ms Charlene Davis, Senior Counsellor, Alcohol & Drug Education & Resource Service of Sunraysia Community Health Services Inc., and a statement by the applicant's mother. Counsel also called an uncle of the applicant and one Victor Ivan Dolenic, a horticulturalist holding several senior appointments in the Sunraysia district who had known the applicant for some 15 years.

On 20 November 1997 his Honour sentenced the applicant to be imprisoned for 18 months and fixed a non-parole period of 9 months. He made a declaration as to 6 days' pre-sentence detention.

By notice dated 21 November 1997 the applicant seeks leave to appeal against sentence on the following grounds:

"1. That the sentence in all circumstances is manifestly excessive.

2. That the Learned Trial Judge failed to give appropriate weight to the prospects of rehabilitation.

3. That the Learned Trial Judge failed to give appropriate weight to the youthfulness of the prisoner.

4. The Learned Trial Judge failed to give appropriate weight to the lack of prior convictions of the prisoner."

By order made 17 February 1998 the Registrar gave leave to the applicant to amend the grounds by adding a fifth ground reading:

"5. The Learned Sentencing Judge erred in placing weight upon prevalence of assaults with glasses in the community of Mildura when:

(a) there was no evidence to the requisite standard of such prevalence; and

(b) Counsel for the Applicant was not afforded sufficient opportunity to address the issue.

As a result, the discretion of the Learned Sentencing Judge miscarried by placing undue and impermissible weight upon the element of general deterrence."

The facts relating to the offence are as follows. About 3 a.m. on Sunday 16 March 1997 Mr. Sawyer, then aged 33 years, and his girlfriend, Heather Allford, attended the nightclub at Maddenz Hotel in Mildura. The nightclub was busy and was being supervised by five crowd controllers. Sawyer and Allford had a few drinks and danced together over about an hour and a half. On two occasions they went to the toilets at the same time. On each occasion they had to walk down a narrow aisle which the applicant was obstructing. According to Ms Allford he seemed to be angry about something and was staring towards a window. On the second occasion, Sawyer, who was walking ahead of Allford, said to the applicant, "Do you think you own this section of the bar or something?". Allford said, "Oh, don't worry about it", and they tried to squeeze past the applicant. The applicant called Sawyer a name and then struck him across the left side of the face with a glass beer mug which he had in his right hand. The glass exploded and beer "went everywhere". According to a barmaid, the glass or mug was very short but heavy with a handle and with a pattern on the outside that curved inwards. Sawyer fell backwards to the ground, bleeding from the wounds to his face. When he got up he put his hand to his face and could feel "this warm stuff". The applicant was immediately restrained by another patron, who was calling him by name, and possibly by other patrons as well. The crowd controllers then converged upon the scene. They found the applicant trying to break free and attack Sawyer again. One of them grabbed hold of the applicant, moved him outside and handed him over to the police, who attended soon afterwards. He was at the time struggling and thrashing about. The incident had occurred about 4.30 a.m.

Sawyer was taken outside and then to the Mildura Base Hospital, where examination showed lacerations above the eyebrow and to the left cheek. They required 22 stitches. An x-ray showed no fractures. Serology was also performed for possible viral infections and antibiotics were prescribed. In his victim impact statement declared on 14 August 1997 Mr. Sawyer said that he was subject to severe pain to his face, headaches, loss of sleep and nightmares and was self-conscious about his scarred face. He had to replace clothing and his watch.

The applicant himself was treated at the same hospital for lacerations to his right hand.

On Monday 17 March 1997 the applicant attended at the Mildura police station and took part in a tape-recorded interview. In the course of the interview he said that he had attended two other venues before arriving at Maddenz Hotel on the Sunday morning. At those venues he had had probably half a dozen beers and probably as many Bacardi and cokes. He was by himself at Maddenz. There he drank alternately beer and Bacardi and coke. He probably had about half a dozen drinks at Maddenz. He was drinking out of glasses and pots (in the case of beer). The latter had a handle on them and a couple of squares on the glass. He was drunk. He had no recollection of the scuffle between himself and Sawyer. He said that he could remember being grabbed by someone and seeing another person with blood all over him. If he had done what he in fact did he did not mean to do it. He said that he had been worrying about the incident and that he was sorry for what he had done. He had been to Maddenz Hotel often of late, usually on Saturday nights. He agreed that he had been asked to leave the hotel previously and mentioned a scuffle "out the front". He said that he drank a fair bit when he went out. "So, I'm a pretty fair sort of person when I am drunk. Unless somebody does something to me, and crosses me in any way." He said that he had had a few minor altercations previously when he had been drinking, but denied that he was an angry drunk.

As regards facts personal to the applicant, the material before the judge showed that he had lacked the benefit of the guidance of his natural father from the age of 4, when his parents separated. He had left school part-way through Year 11 when he found that he was not able to catch up after a bout of glandular fever. He commenced working at his uncle's business, Cash Tyre Service, and had worked there continuously until his imprisonment. He was a good worker. He left home at 17 and lived alone in a flat. He had a kidney problem which required surgical correction. (Mr. Tehan Q.C., who appeared with Mr. Wraight for the applicant, without objection described the surgery to this Court in more detail, stating that a stint was inserted in the tube between the urethra and the kidney and was not removed for six months and that the applicant suffered serious bladder infection. Mr. Tehan informed the court that the applicant was unable to consume liquor for a year up to October 1996, when he returned to "binge" drinking as mentioned below.) After his recovery from surgery, the applicant in 1997 resumed playing football for Mildura Football Club in the Sunraysia League, playing in the first XVIII. The applicant told Mr. Purchase that he seldom drank during the week and then only in moderation, but "binge drank" over weekends, particularly on Saturday night, usually with friends. It appears that the applicant completed six weeks of the behaviour modification/controlled drinking program of Sunraysia Health Services, but through a misunderstanding that that was the full program, did not complete the second six weeks and undertake a lapse/relapse prevention program. During the six weeks in which he participated in the program he did still engage in what Ms Davis considered to be binge drinking, although there was some moderation. Nevertheless, all five of the blood alcohol concentration tests she lists show a concentration of zero.

Mr. Purchase was of the view that the applicant was not suffering from any personality disorder, but that his intelligence was normal and that his insight and judgment were unimpaired. He did not consider from his assessment that aggression and violence played an appreciable part in the applicant's underlying approach to life. That accords with his mother's statement. He had been, according to his mother, very depressed since being charged with the offence.

At the conclusion of his plea before the judge the applicant's counsel sought, in descending order of preference, a Community Based Order, a wholly suspended sentence of imprisonment or an immediate custodial sentence with all but one month of the term suspended. When counsel had finished, the following exchange occurred:

"HIS HONOUR: ... general deterrence must play a big part in the sentencing component, mustn't it?

HIS HONOUR: Particularly in a country town like Mildura.

[COUNSEL]: Yes, your Honour, and that's been explained to him ..."

The prosecutor then submitted that general deterrence was very relevant "in this particular type of offence because assaults are very prevalent in this area." To that his Honour replied:

"Particularly ... assaults involving glasses, etcetera, seem to be becoming even more prevalent in the community."

Counsel replied, "Yes, very prevalent in the community, your Honour, yes."

The prosecutor's initial references to "this type of offence" and "this area" seem to be to the use of a glass to assault a person in the face (conveniently, if colloquially, called by counsel "glassing") and to the Mildura area. But the two following references to "the community" I take to be to the community at large.

His Honour began his sentencing remarks by recording the plea of guilty and the absence of any prior convictions. He then stated the facts of the offence in summary form and expressed the following assessment, with which I entirely agree:

"The circumstances of this offence are very serious indeed. Without provocation, you struck the victim a heavy blow, causing the beer mug to break. The injury to the victim is serious and, fortunately, there was no injury to the eye itself."

The judge then referred again to the absence of prior convictions, the plea of guilty, and the fact that the applicant was only 20 years of age at the time of the offence, and referred also to the fact that he had been completely frank and co-operative with the police, saying that it was obvious that the excess of alcohol the applicant had drunk not only contributed to his participation in the offence but also to his vague memory of it. His Honour accepted that the applicant was a binge drinker, saving his drinking for Saturday nights.

"This community obviously has a number of night spots where, through the night, young people can drink and get intoxicated. Such places are a recipe for disasters of this kind ...

Violent crime in the community is a matter of considerable concern. When it occurs without provocation or lawful excuse, and is of a serious kind, the community expects a court to deal sternly with offenders. Sentences of this type must be such as to not only deter you but also others who might be tempted to engage in violent crime. In imposing a substantial gaol sentence, it is essential that you be treated fairly in accordance with proper sentencing principles. I am conscious that you have good points which you have displayed in your life. You are now just 21 years of age and never been in trouble before and a hard-working young man, who will lose his job. I take into account all that your counsel has urged on me."

His Honour then proceeded to impose the sentence previously mentioned.

The expression "This community" at the commencement of the last passage I have quoted is, in my view, a reference to the Mildura or Sunraysia community, though, as is notorious, the statement made is true of the Victorian community as a whole. On the other hand, the expression "the community" where it twice appears in the paragraph of his Honour's remarks that commences with the words "Violent crime" is, in my opinion, clearly a reference to the community at large.

It was the primary submission of Mr. Tehan in his oral argument that the sentencing judge placed too much reliance or weight on general deterrence at the expense of the main sentencing consideration, which was said to be the status of the applicant as a young first offender. He sought to make good this submission in any one or more of three ways: first, as stated in added Ground 5; secondly, as stated in Grounds 2, 3 and 4; thirdly, as stated in Ground 1.

The burden of Ground 5 was that it was the placing of weight, impermissibly, upon the prevalence locally of assaults with glasses that caused his Honour to place impermissible weight on general deterrence. I may say immediately that I do not consider that the basis on which Ground 5 proceeds is made out. His Honour's sentencing remarks, in my view, do not betray any reliance upon prevalence, whether in the community at large or in the local area of Mildura, of the offence charged, let alone of the version of it actually committed, namely, "glassing". His Honour's only remark about the local community when sentencing, namely, that it had a number of nightspots of the kind he described, was a remark made in passing and did not form the basis of or an integral step in his selection of the appropriate penalty. His Honour's remarks about community concern and expectations are unexceptionable. But it was said that the sentencing remarks must be read by reference to the exchanges at the conclusion of the plea hearing. It is true that plea and sentence cannot be entirely divorced. But it must be remembered that six days intervened between those two steps in the proceeding, and I do not consider that a remark (such as that of his Honour with regard to assaults involving glasses), which, though apparently expressing a view held by a judge, does not assert that the judge will proceed upon a certain basis in sentencing, can be treated as imported into the sentencing remarks implicitly, indeed tacitly. In any event, as I have stated earlier, I do not read the particular remark of the judge as relating to the local community but to the community at large. (The non-intervention of defence counsel is at least consistent with that view.) It was the prosecutor who, as I read his remarks, asserted that "glassing" was very prevalent in the Mildura area. It is true that his Honour had a little earlier received the assent of defence counsel to his suggestion that general deterrence must play a big part in sentencing, particularly in a country town like Mildura. That suggestion does not necessarily reflect a view that either the offence or the particular version of it was prevalent in Mildura. Rather, as it seems to me, the natural meaning is that in a relatively small and isolated community a stern sentence would be effective as a general deterrent, for news of it would spread quickly throughout the local community. Even if that interpretation of his Honour's suggestion is incorrect, what would in that event be an oblique reference to local prevalence was not imported into the sentencing remarks, for reasons already given.

It is, therefore, unnecessary to consider whether defence counsel was denied procedural fairness or, on the other hand, should have risen to challenge the prosecutor's assertion and the judge's remark even though he had completed his plea on behalf of the applicant. It is likewise unnecessary to consider whether (subject to the question of procedural fairness) the judge was entitled to be satisfied beyond reasonable doubt of the local prevalence of the offence or the particular version of it in question, a matter considered in R. v. Downie & Dandy (unreported, Court of Appeal, 27 June 1997). Ground 1 accordingly fails.

That conclusion does not, however, mean that his Honour did not over-emphasise general deterrence at the expense of the applicant's status as a youthful first offender and did not thereby err. Indeed, in my view, notwithstanding the seriousness of the offence committed and of the injuries caused, the specific sentencing error asserted in Grounds 2, 3 and 4 in combination is made out, for the reasons I shall state. It is therefore unnecessary to express any view about Ground 1.

In support of his argument on Grounds 2, 3 and 4 Mr. Tehan submitted that in general terms the authorities established the following propositions:

i. Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.

ii. In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)

iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s.5(4) of the Sentencing Act.)

Mr. Ryan, who appeared for the respondent, informed the court that he did not cavil with those propositions as general propositions. In my view, that attitude was correct: R. v. Martin [1973] VicRp 86; [1973] V.R. 854 at 856; R. v. Seymour (1983) 5 Cr.App.R. (S) 85 at 87; R. v. Smith (1988) 33 A.Crim.R. 95 at 97; R. v. G.D.P. (1991) 53 A.Crim.R. 112 at 116; R. v. Edwards (1993) 67 A.Crim.R. 486 at 489 (a very strong case, albeit that it was a Crown appeal); and R. v. Misokka (unreported, Court of Appeal, 9 November 1995) at pp.6-7 per Callaway, J.A. and at pp.10-11 per Vincent, A.J.A.

Mr. Tehan accepted that, for the purpose of determining whether the applicant was "youthful" within the propositions, the relevant date was the date of sentencing. By that date the applicant was 21 years of age and therefore no longer a "young offender" within s.3(1) of the Sentencing Act. He was also of full age in law. But those factors do not mean that he was not "youthful" for the purpose of the propositions, and a case such as Edwards (where the applicant was 22 years old at the date of the hearing of the application and at least 21 at the date of sentence) shows that the applicant is to be treated as youthful in the application of the above propositions. No doubt, as the age in question increases the force of the propositions diminishes.

Although his Honour referred at least three times in his sentencing remarks to the youthfulness or age in years of the applicant and although he referred to all the mitigatory factors put to him by counsel and particularly those the subject of Grounds 2, 3 and 4 (though only indirectly to rehabilitation), I cannot see that in arriving at the head sentence his Honour had regard to the propositions set out above. In particular, his Honour did not, as it appears me, have regard to the principles that in the case of a youthful first offender rehabilitation is usually far more important than general deterrence and that such an offender is not to be sent to an adult prison if that can be avoided. The cases which I have cited, some of which concerned violent crimes, show that to say of a violent crime that it requires a sentence effecting the purpose of general and specific deterrence is not to show that the case is other than "usual" for the purpose of the above propositions. It is true that the applicant seems to have been involved in at least one previous fight when drunk and to have been arrested for drunkenness but released without being charged on a couple of occasions. It is true also that he has not been able to cease from "binge" drinking even after the offence. But those facts do not, in my view, make the case other than "usual" or otherwise take him outside the propositions under discussion.

It may well be that the fixing of a non-parole period of one-half of the head sentence shows that his Honour did in that have regard to the applicant's rehabilitation. That cannot, however, save a head sentence imposed otherwise than in accordance with the propositions under discussion.

For the foregoing reasons, notwithstanding the serious nature of this offence and of its consequences, which I have already mentioned and shall refer to again later, I consider that this application should be allowed. In saying that I wish to make it clear that, had the offence been committed by a person who was not youthful, the sentencing purposes of general and specific deterrence and denunciation would have rendered the sentence imposed immune from attack.

In re-exercising the sentencing discretion in the circumstances of the particular offence committed by this applicant I must have regard to the propositions discussed above. I am of course very conscious that the assault upon Mr. Sawyer was unprovoked, unjustified and (as the applicant's counsel acknowledged) serious; that it must have been frightening for its unsuspecting victim; and that a blow of mighty force must have been necessary for the glass mug to break. The seriousness is in no way diminished by the applicant's drunken state. I am very conscious too of the degree and disfiguring nature of the injuries to Mr. Sawyer. It is only by chance and good fortune that the applicant did not blind his victim or, unrestrained, proceed to do him worse harm; but he is to be sentenced only for what he did, and fortunately no bones were fractured or eyes blinded. The mental element in the offence to which he pleaded guilty being recklessness, the offence is one involving foresight or appreciation of the risk (i.e., probability) of serious injury (Heath, Indictable Offences in Victoria, 3rd ed., 218-223), but not intention to cause it.

As the Chief Justice suggested in the course of argument, this was a classic case for a sentence of detention in a Youth Training Centre had that option been available. Such a sentence might have been imposed if the charge had been heard summarily in the Magistrates' Court before the applicant's 21st birthday. But, for whatever reason it may be, that did not occur.

The option of detention in a Youth Training Centre not being open to this Court, I consider that the appropriate disposition is by way of partly suspended sentence of imprisonment. Mr. Tehan sought a term of 12 months' imprisonment with 9 months suspended. Whilst I agree that a term of 12 months is appropriate in all the circumstances, I consider that the seriousness of the offence is such that the period of immediate confinement should be longer than three months. I would propose that the applicant be sentenced to be imprisoned for a term of 12 months and that it be ordered that 8 months of the sentence be suspended for a period of three years. It is implicit in this that I am of the view that, notwithstanding the above propositions, some actual confinement is necessary and, the Youth Training Centre option not being open, some imprisonment in an adult prison is not properly avoidable.

The applicant should realise that he must keep out of trouble during the period of suspension; that, if he is to do that, he must stop his damaging and anti-social drinking to excess; and that, if he is brought before the County Court for breach of the order suspending part of the sentence, he should not expect leniency. It is to be hoped that he will seize the opportunity for amendment of life now afforded to him as a youthful first offender.

I certify that this and the 11 preceding pages are a true copy of the reasons for judgment of Batt, J.A. of the Court of Appeal (Phillips, C.J., Charles and Batt, JJ.A.) of the Supreme Court of Victoria delivered on 26 February 1998.