R v Stevenson [2000] VSCA 161

12. The plea was adjourned to 28 March 2000 to enable medical and psychiatric reports in relation to the victim to be provided to the court and the brothers were both remanded in custody.

15. On 3 April 2000 the learned judge sentenced both of the prisoners to 12 months' imprisonment on count 1 and three years' imprisonment on count 2. His Honour ordered that the sentences were to be served concurrently, and that each prisoner serve 12 months' imprisonment, with the balance of the three-year term being suspended for three years.

18. The applicant now seeks leave to appeal against sentence on the grounds that the sentence is manifestly excessive, secondly, that the judge gave insufficient weight to the plea of guilty and, thirdly, that the judge gave insufficient weight to the principle of parity.

21. The facts giving rise to these offences were set out by the judge in his reasons for sentence. An agreed statement of facts was in evidence before the court and, save in one respect which I will mention later, no challenge has been made to his Honour's recitation of the facts. I should mention that the prosecutor at one stage incorrectly informed the judge that the penalty for affray was at large, whereas the maximum penalty is now prescribed by s.320 of the Crimes Act. That mistake was, however, corrected on 28 March, the second day of the plea, when the prosecutor told his Honour that the maximum penalty was five years' imprisonment.

24. On Melbourne Cup Day, 3 November 1998, the applicant and his brother went to Flemington Racecourse for the day, and both consumed large quantities of alcohol during the day. At about 4 p.m. the brothers were in the main betting ring, which was crowded. The applicant had had a win on the races and he and his brother were in high spirits. Jason, mistaking one Jason Shackleton ("Shackleton") for the applicant, jumped on to Shackleton's back and, after a comment by Shackleton, slapped him on the face with an open hand. Shackleton, unsure who had struck him and in apparent retaliation, struck out with his fist, striking the applicant. Friends of both parties intervened and the parties separated. Shackleton and his friend, Terry Irvine ("Irvine") walked away and went to an area in the vicinity of other punters, where they stopped to await the arrival of friends. Shackleton and Irvine had with them two friends, Rebecca Pitt ("Pitt") and Tania Mathews.

27. The applicant told Jason that he had been hit in the face by Shackleton and this was apparently the spark which caused the two brothers then to go berserk. Without warning, Jason then punched Irvine's head a number of times and the applicant punched Shackleton's head. Jason knocked Irvine to the ground, and then picked him up and flung him headlong against the glass window of the professional punters' room, causing that window to break. The applicant continued to assault Shackleton, having driven him into a seated position, where he was trying to protect his head. Shackleton's friend Pitt attempted to assist and punched Jason on the chest, in response to which Jason flung Pitt out of the way in such a manner that she landed heavily on her left side. Pitt was temporarily stunned and was helped to her feet by a passer-by. As a result of Pitt's intervention, Shackleton managed to get to his feet, and he and Pitt both ran from the scene. In sentencing reasons the judge mistakenly attributed Jason's attack on Pitt to the applicant. But it had been made clear during the plea that the applicant had nothing to do with the attack on Pitt, a fact to which his Honour referred later in his reasons. The mistake was, I think, plainly inadvertent but, on any view, the incident was of much less consequence than the other acts of violence taking place. Even if the mistake was not one of inadvertence, it was not of such a nature as to produce error in the sentence imposed.

30. In the meantime, the assault upon Irvine continued. He attempted to get to his feet but Jason and the applicant stood on either side of him and Jason commenced to kick Irvine forcefully in the head and upper body rendering him unconscious. After he became unconscious, Jason kicked him again in the head.

33. A significant crowd had developed around this frightening scene of violence, becoming agitated and hostile towards the two brothers. At this time, one Esmail Niazmund was walking past the scene looking for a toilet. Without warning Jason punched him in the face, knocking him to the ground and injuring his face and nose. The assault was entirely unprovoked and Niazmund was an innocent member of the public not connected with any of the persons involved. A security guard, Rosslyn Turton, arrived and approached Jason, taking hold of him by his arm. He attempted to break free, swung around and forced Turton's arm up behind her back. The applicant then began shouting at Turton and forced himself between his brother and Turton.

36. Daniel McDonnell, a friend of Irvine, seeing him unconscious and bleeding on the ground, then intervened in the affray. He threw Jason to the ground and commenced to exchange blows with the applicant. Jason returned and hit McDonnell from the side with a punch to the face and nose and McDonnell was knocked to the ground but continued to exchange blows with both brothers. A second security officer, Ida Barakat, arrived and attempted to take hold of Jason, who struck Barakat to the head and upper body. A third female security officer, Karen Lindsey, arrived and all three officers attempted to pacify Jason. At this time the applicant again approached Irvine, who was then in a seated position, and kicked him in the head, knocking him once more to the ground.

39. A further exchange of blows was taking place between Jason and McDonnell, and the three security officers then succeeded in restraining Jason. Police arrived soon afterwards and the brothers, both of whom had become abusive towards the police, were arrested for being drunk in a public place.

42. Injuries in the form of lacerations, swelling and bruising were suffered by a number people, including McDonnell, Niazmund, Shackleton, Pitt, Turton and Barakat, Irvine lost consciousness and suffered physical injuries, and has since developed a serious psychiatric disorder which has resulted in his hospitalisation on two occasions over the past 12 months. The judge said that the injuries to Irvine were clearly severe and those to the other six people hurt were relatively minor. As his Honour said, the whole episode must have been extremely frightening and had the potential to result in a complete riot with sections of the crowd surrounding the fighting, shouting "Kill, kill". Irvine's victim impact statement is eloquent in describing the trauma to which he was subjected and its lasting consequences.

45. At the plea the case for the applicant, like that made for his brother, was that he had had a difficult upbringing, with an alcoholic father, and that his parents had separated due to his father's behaviour. It was put that there were strong family ties between the brothers and that the applicant idolised Jason and went to his aid in support during the original altercation. The applicant's counsel submitted that he had been brought into the fray by Jason and was, in large measure, retaliating once he had been punched or assaulted himself. It was put that on the agreed statement of facts the applicant had played a lesser role in the incident. Emphasis was placed on the fact that the applicant did not have a male role model in his life from the age of 14 onwards, he had a good work history, and was currently self-employed running a business, working six days a week. Reliance was placed on his early plea of guilty and evidence which established that he was a very good sportsman, in particular an excellent golfer, that he was generally an honest and trustworthy person, not normally aggressive or violent, and that he was very remorseful and ashamed regarding this incident. There was evidence, in the course of a well-conducted plea, that he was very highly regarded in the Albury/Wodonga community.

48. In support of the second ground, Mr Holdenson, who appeared in this Court for the applicant, submitted that he had pleaded guilty, and that this should have led to a substantial discount. He submitted that it was clear that the applicant was remorseful and that the judge had failed to have sufficient regard to the pleas of guilty and the circumstances in which they were made. It was argued that there was no indication that the judge had given any weight to these matters in sentencing.

51. The fact that the applicant had made an early plea of guilty at the first opportunity was expressly mentioned by the judge during his reasons. The judge rejected a submission that the applicant must be given credit for pleading guilty to what was only a possibility, but the words used by his Honour show quite clearly that the judge accepted that the fact that an early plea of guilty had been made should be given weight in sentencing. There was nothing in his Honour's reasons to indicate that he did not give the timing of the plea full consideration. His Honour also expressly mentioned submissions that the applicant was very remorseful regarding this incident and was ashamed of his actions, and the high regard in which he was held in the local community. This ground fails, but insofar as this submission might be regarded as a particular of the ground of manifest excess, I shall return to it later.

54. Under the third ground, Mr Holdenson argued that the applicant played a lesser role in the commission of the offences than his brother and, in consequence, in circumstances where all else was equal between the applicant and the co-offender, the judge should have differentiated between the two sentences imposed. In imposing the same sentence, justice had not been done. The fact that both offenders had been given the same sentence resulted in manifest disparity engendering a justifiable sense of grievance on the part of the applicant, the disparity giving the appearance in the mind of an objective observer that justice has not been done; see R. v. Taudevin [1996] VICSC 7; [1996] 2 V.R. 402 at 404 per Callaway, J.A.

57. It is perfectly clear that the judge considered the question of parity. After referring to the submission of the applicant's counsel that he was the lesser assailant and ought to be treated more leniently, his Honour mentioned the Crown's submission that each prisoner was equally responsible for the whole incident, and that the Court should not distinguish between them in the sentencing process. His Honour also said that general deterrence was of paramount importance. In this Court, Mr Hicks, for the Crown, submitted that this was clearly a joint enterprise, where both the applicant and his brother, after matters had for the moment quietened down, deliberately decided to confront and attack their respective victims. The agreed statement of facts, upon which the judge acted, showed that the brothers decided to attack Shackleton and Irvine after the original altercation had concluded and the two groups had separated. The applicant attacked Shackleton while his brother attacked Irvine, the assault on Shackleton and his friend Pitt causing them to run terrified from the scene. Then, after the fight had stopped and Jason was being spoken to by security guards, the applicant for no apparent reason kicked Irvine in the head. Irvine had already received a savage beating and was sitting defenceless on the ground when the applicant kicked him.

60. I would for myself accept that Jason Stevenson played a different and, it may have appeared, more active role in the incident than did the applicant, but in my view the differing roles of the applicant and Jason were not such as to give rise to any justifiable sense of grievance on the part of the applicant, nor to an objective appearance that justice has not been done as a result of the same sentence being imposed on both. The Crown's submission was that the applicant was a party to the initial decision to assault Irvine and Shackleton, and continued to be actively involved in the affray thereafter. I would accept this submission. The agreed statement of facts in my view shows quite clearly that the applicant was involved in the initial decision to assault the others, and, once the assault had begun, was an enthusiastic participant throughout in what followed. Then, when the affray appeared to be dying down, and Irvine was simply seated on the ground, the applicant quite gratuitously went across and kicked him in the head, hard enough to knock him over once more. Consequently, I would see his involvement in the offence of intentionally causing serious injury as not differing significantly from that of Jason. The third ground should be rejected.

63. As to the claim of manifest excess, Mr Holdenson submitted that the evidence showed that the applicant conducted his own small business and was in a stable and permanent relationship. Upon incarceration, it was submitted, the applicant would plainly suffer harsh consequences. He had good prospects of rehabilitation. In those circumstances, the sentence was manifestly excessive, being out of proportion to his misconduct and outside the range of sentences appropriate to an offence of this nature.

66. The learned judge quite plainly took into account all matters argued on the applicant's behalf. His Honour was very much troubled by the question of sentencing, mentioning expressly his awareness of the fact that the decision would have devastating consequences for the applicant. During his reasons, the judge said -

"After anxious consideration, I have come to the conclusion that principles of specific and general deterrence are of paramount importance in cases of this nature. Members of the public are often intoxicated by alcohol at sporting events, be it football, cricket, racing, to name a few. Many such intoxicated persons get into arguments and disputes, particularly at events such as the football, very often arguments and disputes which are heated and abusive altercations, but very few react in the manner of these prisoners. The behaviour and actions of these prisoners was appalling, very frightening and very inflammatory in the presence of an aggressive, abusive crowd. Each prisoner effectively lost total control and went berserk, causing significant and apparently permanent injuries to Irvine and creating an affray. A further concern is the apparent premeditation in these assaults."

70. I agree with all these comments. General deterrence was obviously an important sentencing consideration. Furthermore, given the applicant's prior court appearances for assault, specific deterrence was also plainly relevant. The sentences were made concurrent and it would have been understandable and appropriate if his Honour had made an order for some degree of cumulation in the circumstances. The judge said that he would be failing in his duty if he were not to impose a term of imprisonment actually served. Again, I agree. Inflicting serious injury intentionally, the second count to which the applicant pleaded guilty, is a very serious offence and, in the circumstances that were before the judge, demanded the imposition of a sentence of imprisonment immediately to be served, notwithstanding the matters argued on behalf of the applicant. The sentence was plainly within range, and the leniency of it is to be explained by his Honour having given careful consideration to the matters urged on behalf of the applicant.

77. I agree that the application should be dismissed for the reasons given by Charles, J.A.

80. In my view, his Honour was entitled to take the view that that there was no relevant discrepancy in the role played by the applicant and his brother which would have created the just sense of grievance in an objective bystander fully informed of the facts. Furthermore, notwithstanding that the applicant is, at least when sober, a young man with many good qualities, I am far from persuaded that the sentence imposed by the judge was beyond the range available to him.

83. This Court has frequently said, and I say again, that those who, when disinhibited by liquor, engage in unbridled violence of the type referred to by Charles, J.A. in public places must expect condign punishment in which the principles of general and, on many occasions, specific deterrence will play major roles.

87. I agree, for the reasons stated by the other members of the Court.

91. The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.