R v Stuttard [2006] VSCA 112

2 The appellant, Mr Stuttard, aged 26, was convicted on 19 July 2005 on one count of recklessly causing serious injury. He was sentenced to three years' imprisonment with a non-parole period of two years. On 18 November 2005 Chernov, J.A. granted leave under s. 582 of the Crimes Act to bring an appeal against the sentence. Chernov J.A. granted leave to appeal against the sentence "insofar as it comprises the non parole period."

3 The offence followed a period of conflict between the appellant and the victim, Mr Scott Burgess. Burgess had previously shared a house with the appellant and was annoyed that he had been asked to leave. Burgess was also angry with the appellant for sleeping with Burgess' former girlfriend. Animosity between the appellant and the victim increased in the period before 30 January 2005, when the offences occurred. Stuttard claimed that Burgess had previously sent a false SMS message stating that Stuttard's house was on fire. This animosity culminated in the attack on Burgess which gave rise to the appellant's conviction.

4 The hostility came to a head on the night of 30 January, when there were a series of threats and minor assaults involving the appellant, friends of Burgess and Burgess himself. In their final encounter the appellant stabbed the victim, who suffered very serious injuries. The medical evidence was that there was one stab wound.

5 The events of the evening of 30 January unfolded as follows. The appellant attended Vault Night Club in Werribee in the early hours of the morning with his girlfriend, and a friend. By this time in the evening, he had already shared three

bottles of wine with his girlfriend, and had also drunk 'a few cans'[1]. When he first arrived, he encountered Lucas McLean leaving the club with Daniel Corp. He spoke briefly with McLean, who was a friend of Burgess's, accusing him of spreading slanderous rumours. Unsatisfied with McLean's response, Stuttard punched McLean, who ran back to the safety of the nightclub. After a few minutes, the appellant, his girlfriend and Corp went into the club. While there, the appellant was warned against his behaviour by several friends of McLean. After about half an hour, the appellant left Vault and returned home.

6 Following this altercation, McLean contacted Scott Burgess. The two men then drove to Stuttard's home. They arrived soon after the appellant and approached his car, armed with baseball bats and a metal pole. They approached Stuttard, holding the weapons down by their sides. The victim said he had tapped on the window of Stuttard's car and said to him

"Stop gang bashing people. We can find you just as easy by yourself when we are in a group. Leave us alone and live your life"[2]

He said that he did not threaten Stuttard with the bat.

7 In his police interview the appellant said he had forced his way out of the car, hitting Burgess with the car door twice. He then said he was going inside the house to get his gun. He did not have a gun but said this because he wanted to frighten Burgess. This caused Burgess and McLean to leave and go to the house of another friend, Ms O'Meara.

8 After Burgess and McLean left, the appellant rang Corp, told him about the events at his house and returned to Vault. When he got there he received a call from O'Meara and could hear Burgess in the background saying that he had "fixed up" Stuttard. This call was characterised during the plea as inexplicable and "only going to lead to the inevitable meeting of the two men"[3]. Stuttard, Corp and another friend agreed to go to O'Meara's house to "sort things out once and for all."[4]

9 When the appellant arrived at the house O'Meara came running out in her dressing gown and told the appellant that Burgess was hiding in the bushes at the right hand side of the house. In his police interview, Stuttard said he had been warned by O'Meara that Burgess had a baseball bat, although O'Meara did not mention that in her police interview. Stuttard retrieved a large fishing knife from his car and approached the bushes where O'Meara told him that the victim was hiding. In his police interview, he said that he had the knife with him to scare the victim.

10 The evidence was unclear about who struck the first blow, but the appellant and the victim began to fight. Stuttard said that Burgess had hit him with the baseball bat a number of times and that he had avoided other blows. When interviewed by the police, he had some minor injuries. He had kicked the victim in the stomach. Ultimately, the appellant stabbed the victim with the fishing knife, causing very serious injuries.

11 After the stabbing, the appellant left and returned home. The victim was found by his friends, in a neighbour's yard where he had collapsed. He was taken to the Mercy Hospital, Werribee and later transported to the Royal Melbourne Hospital, because of his critical condition due to blood loss. Doctors performed a laparotomy and repaired wounds to the liver, duodenum and the retroperitoneal region. The following day a further operation was conducted which identified and repaired damage to the victim's liver and colon. These injuries were considered to be life-threatening and described by the trial judge as being "five minutes off being a murder[5]".

12 In his careful and considered sentencing remarks the learned sentencing judge said that the case presented a difficult sentencing exercise. There were many positive things to be said about the appellant. Prior to these events he had been hard working and financially responsible. A number of people had given him good references, and he had never been in trouble with the police. He had pleaded guilty at the first opportunity and he had co-operated with the police in other ways and shown genuine remorse. Since the offence he had reduced his alcohol consumption, got a full-time job and moved house. He had a steady relationship with his girlfriend and strong family support. His Honour said that:

"You have got a lot going for you, and I am as confident as I can be in this position that once this is all behind you, you will not offend again, that you will live a useful life in the community.[6]"

For this reason the learned sentencing judge gave little weight to specific deterrence.

13 However, despite the unlikelihood that the appellant would offend again, his Honour said that it was important for the community understand the seriousness of violent alcohol-fuelled behaviour by young men, which results in people being seriously injured. It was necessary to sentence the appellant to a term of imprisonment for the purposes of denunciation and general deterrence. In his Honour's view, the offence was so serious that it would be inappropriate for the appellant to "walk away from this sort of offence without some term of imprisonment"[7].

14 The grounds of appeal were that both the total effective sentence and the non-parole period were manifestly excessive and that the learned sentencing judge erred in his characterisation of the circumstances of the offence. Mr Boyce did not pursue this latter ground in his submission. In this context, his Honour emphasised the fact that the victim was very seriously injured and could easily have died as a result of the stabbing.

15 The learned sentencing judge did not give separate reasons for fixing a non-parole period of 2 years.

16 The original grounds of appeal were that the total effective sentence and the non-parole period are manifestly excessive and that the learned sentencing judge erred in his characterisation of the circumstances of the offence. Counsel for the appellant, Mr Boyce, did not pursue the second ground of appeal. Consistently with the basis on which leave to appeal was granted by Chernov JA, his submission focussed on the proposition that the non-parole period imposed on the appellant was manifestly excessive.

17 It is, of course, a well-established principle that an appellate court should be cautious about setting aside a sentence on the ground that it is manifestly excessive, unless it is clear that the sentencing judge failed to take account of a relevant factor, or considered an irrelevant factor. As Callaway JA said in R v Bernath[8]

"Where the complaint is made in terms of weight, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error[9]."

18 Mr Boyce relied on the statement of Callaway, J.A. in R. v. VZ[10], that failure to give reasons for fixing a particular non-parole period invites scrutiny

"if the non-parole period is unusual either by comparison with other cases or having regard to the facts of the instant case or the course of the plea.[11]"

19 Mr Boyce contended that the unusual facts of this case meant that the learned sentencing judge should have given more detailed reasons for fixing a non-parole period of two years. His failure to do so gave rise to an inference that his Honour had failed to take account of or given insufficient weight to, factors which should have been considered in fixing the term of the non-parole period. Mr Boyce contended that the inference was open that the non-parole period was simply fixed by reference to the length of the head sentence. On this point, he referred to Callaway, J.A's statement in R. v. VZ[12] that the non-parole period cannot be fixed unthinkingly by some such method as taking two years or one third or one quarter off the head sentence.

20 Mr Boyce submitted that there were a number of unusual features of this case which should have resulted in the imposition of a shorter non-parole period. These factors included the appellant's relative youth, lack of prior convictions, his early plea of guilty, his profound remorse and otherwise good character and his excellent prospects of rehabilitation. Mr Boyce submitted that the learned sentencing judge should have given more weight to the fact that the appellant behaved uncharacteristically on the night of the offence, that his violence was not gratuitous, but arose out of the history of animosity between the appellant and the victim, and the previous provocative acts of the victim. In addition, it was suggested that his Honour should have given greater weight to the expert opinion of the consultant psychologist, Wendy Northey, that a term of imprisonment would delay the appellant's rehabilitation. Mr Boyce submitted that the sentencing goal of general deterrence could be sufficiently met by imposing a shorter period of imprisonment on the appellant.

21 In my view the learned sentencing judge carefully considered the balance which should be struck between the appellant's excellent prospects for rehabilitation, the other mitigating factors discussed above and the sentencing goals of denunciation and general deterrence. The appellant could have chosen to end the confrontation by going home, rather than going to Ms O'Meara's house, or by leaving when he was told that Burgess was hiding. Instead, he sought out the victim in his hiding place and stabbed him. He was fortunate that the victim did not die

from his very serious injuries.

22 As Mr McArdle pointed out in his submissions, in R. v. VZ[13], Callaway, J.A. referred to the fact that an inappropriately low non-parole period may undermine the effect of general deterrence[14]. In this case it was appropriate for his Honour to give considerable weight to the need to deter young men from getting drunk and becoming involved in violent confrontations. Contrary to Mr Boyce's submission, this is not a case which "cried out" for a lower non-parole period. There is no reason for thinking that the learned sentencing judge failed to take account of the factors enumerated by Mr Boyce, or that he gave them insufficient weight when fixing the non-parole period.

23 I would dismiss the appeal.

24 I agree that the appeal should be dismissed for the reasons which her Honour has given. I would add only the following additional remarks.

25 This was, clearly enough, a case which represented a very difficult task for a sentencing judge. His Honour said at paragraph [7] of his sentencing reasons:

"I have heard a lot of positive things said about you, and I have read the references and there is no doubting that the conflict between the good and the bad in this case leads to a very difficult exercise from my point of view, and one that courts have great difficulty with."

That passage, if I might say so with respect, captures the sentencing judge's clear appreciation of the conflicting considerations which he was called on to balance in arriving at an appropriate sentence. It is clear, in my opinion, from the careful reasons given, that his Honour gave anxious consideration to the correct synthesis of the general sentencing considerations and the particular circumstances of this offence and this offender.

26 When the sentencing task has obviously been performed carefully and cogently by the sentencing judge, to whom our law confides that function, it will always be difficult, in my view, for a submission of manifest excess to succeed. The appellant must persuade the appeal court that, despite the sentencing function apparently having been conscientiously discharged, nevertheless the judge went so badly wrong - in this case specifically in fixing the non-parole period - that this Court should be satisfied that the discretion was not properly exercised at law, such that it would fall to this Court to exercise the discretion afresh.

27 Notwithstanding the thoughtful submissions received by the Court from Mr Boyce on behalf of the appellant, I am not at all persuaded that this is a case which gets close to the point where the Court would regard the discretion as having miscarried.

28 Counsel for the appellant accepts that this was a serious case of stabbing. The sentencing judge plainly took into account in fixing the head sentence the many mitigating factors to which counsel for the appellant has referred. This was not a case in which the trial judge was requested to fix a lower than normal non-parole period. Furthermore, the circumstances did not call for the sentencing judge to give specific reasons for the imposition of the non-parole period that was fixed.

29 I agree, for the reasons given by Neave, J.A. and the presiding judge, that the appeal should be dismissed.

30 The order of the Court will be:

Appeal dismissed.

[1] Reported by Wendy Northey, p 8.

[2] Summary of prosecution opening, paragraph 4.

[3] Transcript 8.3 - 4.

[4] Transcript 3.15.

[5] Transcript 23.5 - 6.

[6] Sentencing remarks, paragraph 11.

[7] Sentencing remarks, paragraph 11.

[8] [1997] 1 VR 271.

[9] Ibid at 277.

[10] [1998] VSCA 32; (1998) 7 VR 693.

[11] Ibid, at 697.

[12] [1998] VSCA 32; (1998) 7 VR 693.

[13] [1998] VSCA 32; (1998) 7 VR 693.

[14] Ibid, at 698.