R v Ross [2007] VSCA 213

Court of Appeal (Vic)|2007-09-27|Before: CHERNOV and VINCENT JJA and WHELAN AJA

Criminal law - Sentence - Recklessly causing serious injury - Unprovoked attack upon victim - Whether order made pursuant to s 85B of the Sentencing Act 1991 (Vic) constituted the imposition of 'additional punishment' - Appellant with limited financial means -Manifest excess - Appeal dismissed.

2 The appellant pleaded guilty in the County Court at Melbourne, on 10 November 2006, to one count of recklessly causing serious injury. He had no prior convictions.

3 After hearing a plea in mitigation of penalty, at which a substantial body of material was produced, the sentencing judge, on 24 November 2006, imposed a term of imprisonment of two years and six months, in respect of which a non-parole period of 15 months was fixed.

4 Later, on 13 December 2006, the judge made an order, pursuant to s 85B of the Sentencing Act 1991 (Vic), that the appellant pay compensation to the victim of his offending, fixed at $68,147.30. The Court has been informed that, subsequent to that order being made, civil proceedings were instituted by the victim, and they have been resolved on the basis that the compensation order would not be pursued, leaving the appellant with a liability of some $38,000. Arrangements have been made through members of his family to pay that amount.

5 Having been granted leave to do so, on 8 June 2007, the appellant seeks to overturn the sentences imposed upon him on the grounds that:**

The learned sentencing judge erred in the exercise of her discretion in that she failed to give any weight to the making of the compensation order pursuant to s 85B of the Sentencing Act 1991 (Vic), its consequences and effects which, at the time of the imposition of sentence, she proposed to make.
There has been a substantial miscarriage of justice (such that a different and lesser sentence should now be imposed) by reason of the consequences and effects of the making of the compensation order pursuant to s 85B of the Sentencing Act 1991 (Vic) .
The sentence imposed is, in all of the circumstances of the case, manifestly excessive.

**6 On Thursday 13 October 2005, the victim of the appellant's offending, Matthew Cassidy, attended the Keysborough Golf Course with a group of his work associates and participated in a fund-raising tournament. At approximately 6.00pm, the event finished and the group went to the club's function room for drinks and a meal.

7 Mr Cassidy stated that he could not recall the number of drinks that he had, but stated that he had consumed some beer and red wine over a five-hour period.

8 The appellant also had attended at the premises that evening. He was seated at a nearby table with a group of friends. The two men were not known to each other. It appears that some of the people at Cassidy's table were overly boisterous and irritated those at the vicinity. It may well be that this provided a background or partial explanation for what later transpired.

9 At approximately 11.00pm, the function ended and attendees began leaving. Cassidy was in the foyer of the golf club after leaving the function room, his arms full of prizes that he had won during the evening.

10 It is unclear on the material before the Court what precipitated the events which then occurred, but the sentencing judge, after hearing evidence from a number of persons who were present, made the finding that the appellant approached Cassidy and engaged in an unprovoked attack upon him, punching Cassidy to the head, causing him to fall backwards on to a table, and then on to the floor. A wrestle then ensued between some other persons and the appellant, as they endeavoured to force him away from the fallen man. However, he broke free and again attacked Cassidy, punching him at least two or three times to the face while he was still on the floor. The appellant also used his foot to stamp on Cassidy's face at least once. Witnesses described the punches and the stomp as being hard and forceful.

11 Other attendees again pulled the appellant away from Cassidy, and the appellant then left the golf club. An ambulance arrived a short time later and conveyed Cassidy to the Alfred Hospital.

12 As a result of the incident, Cassidy's cheekbone became detached from his skull on the right-hand side and the bone under his right eye was fractured, causing the eye to be displaced. He also sustained a closed head injury and post-traumatic amnesia, and tenderness to the front of the left chest wall. There was some loss of consciousness, but of uncertain duration. As a result of these injuries, surgery was required to repair the damage to Cassidy's face, which included fractures to the sinus bone, the cheekbone and the eye socket. After being discharged from hospital, he suffered from headaches, pain, dizziness and fatigue. He spent several weeks in hospital and undergoing rehabilitation, and was unable to drive for three months. However, and fortunately, he was expected to make a full recovery within two years of the date of the receipt of the injuries.

13 Cassidy recalled only that he was about to leave the premises with his prizes cradled in his arms, and then being on the ground, using his feet to get people off him; that he was picked up by one of his work associates and placed on a chair; that he was bleeding; and that he was placed in an ambulance.

14 The appellant was arrested, on 14 October 2005, after attending Springvale police station. He participated in a tape-recorded interview, in which he told the police that a verbal altercation had occurred between the victim and himself, and that the victim had hit him over the head with an umbrella: a statement that was rejected by the sentencing judge. He said that he remembered the incident but that he could not recall any specific details, as he was intoxicated. He remembered throwing a punch, but was not sure where it landed, although he thought that it might have connected with the victim's head. He did not recall kicking Cassidy, and, when asked his reasons for the assault, he said that he could not really remember.

**15 In support of grounds 1 and 2, the argument was advanced that in the particular circumstances of the matter, where the appellant's financial means were very limited, the making of a compensation, order pursuant to s 85B of the Sentencing Act 1991 (Vic), could be seen to have imposed a most severe financial burden upon him, and thereby adversely affected his prospects of rehabilitation. The order constituted, it was said, the imposition of an additional punishment upon the appellant.

16 Although there is some uncertainty about the situation, as the judge imposed sentence prior to making the award of compensation, the appeal has proceeded on the basis that, at the time of sentencing, her Honour was possessed of sufficient information to be able to take the quantum of the anticipated award into account. This case could, on that basis, be distinguished from others in which, because the sentencing judge was not in a position to make any such assessment, no regard could be had to it. There is no need to explore this aspect, as I consider that the grounds are misconceived in any event.

17 It is clear enough, as Cummins J held in DPP v Esso Australia Pty Ltd,[1] that compensation awarded pursuant to s 85B does not constitute punishment. This view was later adopted in DPP v Energy Brix Australia Corporation Pty Ltd,[2] where the Court pointed out that:**

Section 85B was enacted as one of a number of measures designed to assist and support the victims of criminal activity, by the Victims of Crime Assistance (Amendment) Act 2000. It is clear, beyond any possibility of dispute, that it was perceived by the legislature to be in the public interest that such assistance and support should be available in the criminal process. In his second reading speech, when introducing the section, in the Legislative Assembly, the Attorney-General stated:

"Where an offender has been found guilty of a crime, important facts about the offender's actions and liability are already before the court. This provides the court with an opportunity to assess the victim's compensation claim soon after the offender has been sentenced. This procedural economy provides victims with a speedy and low-cost option for seeking recompense from offenders without having to resort to civil proceedings."

It must be borne in mind that an award for compensation is not made as a form of punishment, but in an endeavour to address through the payment of money, the injury and loss sustained by the applicant.

To my knowledge it has never been seriously contended that an award of damages in a civil case or an order for compensation made in a criminal proceeding, although manifestly inadequate must be permitted to stand because to correct the position could be perceived as the imposition of further or separate punishment.[3]

18 Nettle JA, with whom the other members of the Court agreed, said in Josefski v Donnelly[4] that an order for compensation made under s 85B -

... must be taken to be a judgment debt due by the offender to the person in whose favour the order is made and payment of any amount remaining unpaid under the order may be enforced in the court by which it is made.[5]

He then addressed the issue of whether a notice under the Bankruptcy Act 1966 (C'th) could be issued or the judgment regarded as a judgment debt within the Judgment Debt Recovery Act 1984, and he concluded:

In the circumstances, the fact that an offender may lack capacity to pay a compensation order no more renders the order penal than does the fact that a judgment debtor lacks the wherewithal to pay a judgment debt render the debt a penalty.[6]

However, his Honour agreed with the view earlier expressed by Cummins J in Gregory v Gregory[7] that, in fixing the amount of that order, and bearing in mind that the section requires the judge to have regard to the offender's financial circumstances, the extent to which the order may detrimentally affect his prospects of rehabilitation would have to be taken into account. That, I would add, is a very different thing from saying that the civil liability which the offender has incurred through his conduct is to be taken into account in the determination of the appropriate sentence to be handed down for his breach of the criminal law.

**19 It must be remembered that the objectives to be obtained through the sentencing process are really quite different to those encompassed by both the substantive and adjectival law relating to civil liability. Whilst the personal consequences of crime and its impact upon victims is the subject of serious attention in the criminal process, there are many other considerations to be taken into account essentially concerned with notions of culpability and the significance of the conduct viewed from the perspective of the wider society. On the other hand, the civil law is primarily concerned with the adjustment of the situation inter partes and an endeavour to ameliorate the impact of the wrongdoing. Ordinarily, the processes are kept quite separate, but, for good reason, the legislature has decided to provide what the Minister described as a 'speedy, low-cost option' for the recovery of civil recompense by victims. There is no reason in principle, or arising from the terms of the provisions, why the making of an order for compensation should operate as a mitigatory factor in the determination of penalty to be handed down by a sentencing judge. The error in the present case, if any, would relate to the quantum of the order for compensation and not to the appropriateness of the sentence.

20 Finally, I would add in this context, and without elaboration, that it is patently obvious that no comparison could be made between an order for compensation and a forfeiture order under the Confiscation Act 1997, which is made on a quite different basis and does not in any respect represent a form of damages or compensation for personal loss or suffering. The principles set out in the recent judgment of the Court in R v McLeod,[8] to which Mr Holdenson directed our attention, have to be understood against that background. The making of forfeiture orders has an extremely long history in our law. They have not, at least for the last one hundred years, been related to compensation and, as far as I am aware, have always been treated as a form of penalty.

21 Equally, this case is not an appropriate one for the application of the approach adopted by the Court in R v Eliasen.[9] There is no reason to suspect that her Honour was not mindful of the personal consequences to the appellant and his family that were likely to follow from the imposition of the sentence of imprisonment upon him, and, of course, she would have been well aware of his financial situation. All of those matters, in so far as they assumed significance for sentencing purposes, were well within her Honour's purview at the time. As it transpired, the ultimate financial liability of the appellant proved to be substantially less than that which presumably would have been anticipated at that time.

23 The complaint that the sentence imposed upon the appellant, for what can fairly be described as a vicious and unprovoked attack upon his victim, that involved punching and stomping on the head of a man lying virtually helpless on the floor, was manifestly excessive in the circumstances also lacks merit. That is so notwithstanding the presence of powerful factors operating in mitigation of penalty in this case. The actual consequences of his conduct were serious enough. The potential damage to which the victim was exposed was horrendous, and it is clear enough, from many, many authorities of this Court, that in cases of this kind the principle of general deterrence has great significance.**

**24 It is apparent from perusal of the transcript of the plea hearing, the various references and reports before her Honour, and her sentencing remarks, that the judge approached the task of the determination of an appropriate sentence in this case with considerable care.

25 Without setting out the detail, her Honour can be seen to have directed attention to all relevant factual circumstances and sentencing principles, and no argument has been advanced before us that she fell into any specific error in regard to any of them.

26 Reference was made by her Honour to each of the matters upon which reliance has been placed in the written submissions provided to the Court and which we have taken into account in assessing this matter. She adverted directly to the appellant's personal and family circumstances and background, the absence of any prior criminal history, and the isolated nature of the conduct in which he engaged, to which her Honour accepted the consumption of alcohol on the night had obviously contributed. Her Honour directed attention to the appellant's plea of guilty and what she accepted were his genuine expressions of remorse and insight into the seriousness and consequences of his conduct. The impressive body of material relating to the appellant's good character was taken into account, and a number of references from people who had known him over the years were directly mentioned in this context. The judge accepted that the appellant had excellent prospects for rehabilitation. However, as her Honour pointed out, referring to the decision of this Court in DPP v Ross:[10]**

The other matters which I must take into account in fixing a sentence in addition to the serious nature of the offence and the consequence to the victim is the need to emphasise general deterrence. That is, to send a message to the community such unprovoked assaults are not tolerated by the courts and stern punishment is called for. There is a need to deter you, so far as possible, from offending again and the need to express community denunciation of violence and unprovoked attacks. Such behaviour cannot be countenanced.

I can only endorse those comments, which seem to me to be entirely applicable in the circumstances.

**27 As I have indicated, I am far from persuaded that the sentencing discretion has miscarried in this case.

29 For the reasons given by Vincent JA, I too would dismiss the appeal. I only mention two matters.**

**30 A significant aspect of the appellant's case was based on the contention that the compensation order has an effect on the rehabilitation prospects of the offender and therefore its magnitude is relevant to that factor. It was said that in this case the award of compensation was so great as to bear on the appellant's prospects of rehabilitation. So much can be accepted for present purposes, but in my view this has no relevance to the impugned sentence. It goes to the question of the correctness or otherwise of the compensation order. The second is that the material sought to be filed disclosed that the compensation order was effectively subsumed by a settlement of civil proceedings brought by the victim against the appellant for damages. Those proceedings were, obviously enough, brought after the sentence and the making of the compensation order. Even on a most liberal interpretation of Eliasen, I consider that this material cannot be properly described as fresh evidence such as to re-open the sentencing discretion where no error of principle has been established in relation to it. I note that, in any event, the material demonstrates that the appellant's financial position in relevant respects is better than it was at the time of the making of the compensation order.

31 As I have said, for the reasons given by Vincent JA, I would dismiss the appeal.

32 For the reasons given by Vincent JA and Chernov JA, I agree the appeal should be dismissed and I have nothing to add.**

33 The order of the Court is that the appeal against sentence is dismissed.**

[8] [2007] VSCA 183, [18], [19].

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