R v Teichelman [2000] VSCA 224

Court of Appeal (Vic)|2000-11-23|Before: PHILLIPS, C.J., BATT and BUCHANAN, JJ.A.

The applicant initially sought leave to appeal against conviction as well as against sentence, but abandoned the former application. The grounds set out in the notice of application for leave to appeal against sentence are, first, that the

sentences were manifestly excessive and, secondly, that the judge failed to take into account the assessment and pre-sentence report of the Office of Corrections.

Before those grounds can be considered, it is necessary to set out in summary form the facts of the offences and the facts personal to the applicant. On the evening of 27 February 1999 a party was held at the home of the applicant's parents to celebrate the 50th birthday of his father. His parents lived in a semi-rural area in Wattle Glen, fronting Park Avenue, an unmade road flanked by trees. The celebration also fell on what would have been the 21st birthday of the applicant's older brother, Justin, who had been killed in a traffic accident on 19 June 1998. Estimates of the number of guests attending ranged up to 100 persons. The guests fell into two groups, those of the applicant's parents' age and a younger group comprising those who had known Justin and the applicant's friends.

The victims of the applicant's attacks were in a car with two young male friends in search of a party to which they had been invited. They mistakenly turned into the part of Park Avenue where the applicant's family party was being held and stopped near those premises. They asked a group of young persons assembled beside the road whether they were at the correct address. They received a hostile reception and without leaving their car drove on along Park Avenue. Unfortunately, Park Avenue is a dead-end street and they were forced to return the way they had come, driving slowly along the irregular dirt surface of the road.

As their car again approached the entrance to the applicant's parents' property the group of young persons appeared to have left. One person then emerged from behind a tree and several objects were thrown at the car and blows delivered to the bodywork. The applicant was acquitted of the count of damaging property, being the car, on the ground, it would seem, that the jury were not prepared to infer from his subsequent presence and actions that he took part in that act.

The victim of the second count (Emile Trigila) jumped out of the slowly moving vehicle and approached and remonstrated with a group of young men on the roadway near the entrance. The car was stopped a short distance along the road and the other victim (Brendan Lee) left the car and joined Trigila. As soon as the latter came within striking distance the applicant pulled out a weapon and struck him two savage blows to the head. The judge was satisfied to the requisite standard by the eye-witness accounts and the nature of the injuries inflicted that on that occasion and in the subsequent assault on the second victim the applicant struck with "either the blunt edge of an axe head or wood splitter". The first victim suffered a severe blow to the scalp and a broken jaw that caused his left jaw that evening to hang about an inch and a half below its natural position. He bled profusely and was in shock. His jaw was surgically repaired and a metal plate inserted, but at the time of sentencing he continued to have some discomfort (count 2).

The victim fell to the ground and there suffered what the judge described as a further brutal series of blows. One person was on his back and gouged his eyes. He had multiple abrasions and bruises following this attack. There was no evidence that the applicant took part in that series of assaults and the judge said that he made no such inference against him.

The victim walked away from the applicant and his associates, and returned shortly afterwards accompanied by Lee and another occupant of the car. The assailants disappeared. Later, the applicant reappeared and, running, attacked again with the same weapon. Lee warded off the blow with his left arm. The judge described this attack as "serious in the sense that having caused obvious and serious injuries to [the] first victim, after a short interlude [the applicant] struck a dangerous blow towards the upper body of [the] second victim". The blow had been deflected by Lee's left wrist and he suffered bruising and swelling, but was able to continue to work the next day, though he experienced pain and some minor disabilities for several weeks (count 4). A female from inside the house intervened and the three men were able to walk back down the road. There they met police and an ambulance was called for Trigila.

Police attended at the Park Avenue address at 11.55 p.m. and found approximately 15 males present. All, including the applicant, appeared to be affected by alcohol. The applicant was arrested. When interviewed, he offered "no comment" responses to substantive questions.

The judge concluded that the fact that the jury found the applicant guilty of affray, an element of which is that a notional member of the public of reasonable firmness would have been terrified by the actions of the applicant and associates, was a reflection of the overall findings of fact reached by the jury as to the terrifying nature of the conduct of the applicant and his associates that evening.

The applicant was born on 28 August 1979 and thus was 19½ years old at the time of the offences (not 18½, as stated by his Honour) and 21 years old at the time of sentencing. Importantly, he had not been convicted of any previous or subsequent offence. At the time of sentencing the applicant had just completed his apprenticeship as a carpenter. His employer for the last 20 months, who had known him from his school days, gave impressive evidence that he was a responsible worker and was entrusted with duties usually assigned to older employees, which he carried out very well. The applicant formed a relationship with a young woman in November 1997 and they had a son aged seven months at the date of sentencing. The evidence was that he was a caring and responsible father. He was extending a garage at his parents' home and lived there with his de facto wife and son.

Besides his Honour's characterisation of the offences which I have set out earlier and the applicant's lack of any prior or subsequent convictions, the reasons which his Honour gave for sentencing are in summary as follows. There could be no allowance for any remorse, since the applicant, as he was entitled to do, maintained his innocence after the verdicts. In the absence of any suggestion of remorse the applicant's prospects of rehabilitation were, according to the judge, uncertain. (Towards the conclusion of the plea hearing his Honour had given as one of his reasons for making an order for the taking of an intimate body sample, the applicant's youth, which, in his Honour's view, posed a danger of further offending.) While his Honour accepted, as it seems to me, that the loss of his brother had had a considerable effect upon the applicant and caused him to be depressed, he was unable to accept the causal link suggested on the applicant's behalf between the loss and consequent depression on the one hand and, on the other, what his Honour described as the applicant's "violent and unprovoked attack on a stranger who was making a legitimate, if foolhardy, complaint about the conduct of [the applicant's] associates". The other explanation for the applicant's conduct advanced on his behalf was that he had been drinking. His Honour does not seem to have rejected that in his sentencing remarks, although he noted that the evidence as to how much was uncertain. Indeed, towards the conclusion of the plea hearing his Honour, as another reason for ordering the taking of an intimate body sample, had said that alcohol played a part in the offending. Bearing in mind what the police reported they had found when they attended at 11.55 p.m., I think it may be taken that his Honour accepted that alcohol played a part in the applicant's offending.

The Crown had submitted that an immediate sentence of imprisonment should be imposed. The applicant's age precluded detention in a Youth Training Centre. For good reason, his Honour said, the courts are reluctant to impose a sentence of immediate imprisonment on offenders, particularly on young offenders where they have not previously been in trouble. However, he considered the applicant's case to be an exception to that approach. His conduct qualified him for strong individual deterrence and it was necessary also to indicate to the community at large that an unprovoked attack of this nature is not to be tolerated. Given the injuries inflicted, it was appropriate to add an element of retribution. His Honour turned to the disposition sought by the applicant's counsel in the alternative to an intensive correction order for a period of 12 months, for which the judge had ordered a report without committing himself and which he later said was not, in his view, an appropriate disposition. Counsel's alternative was a wholly suspended sentence of imprisonment. His Honour noted that such a sentence was a sentence of imprisonment but expressed his doubt whether the victims and the wider community would so regard it in this case because of the gravity of the offending. Ultimately, as I have stated earlier, his Honour adopted partial suspension as the appropriate disposition.

In considering this application, it is convenient to take first the second ground, that the judge failed to take into account the assessment and pre-sentence report. In that report, which, being addressed to the judge, may be taken to have been received by him though he did not mention it, the community corrections officer stated that the applicant had been assessed to determine his suitability for an intensive correction order and that he was considered a suitable person for such an order. Core conditions were recommended. The applicant would have to attend an anger management course. The report recorded that the applicant denied committing "the more serious of the assaultive offences, but admits to the lesser. He is accepting of the Court's findings ..." It was submitted for the applicant that, whilst the sentencing judge was not bound by the report, the fact that the applicant had been assessed as suitable ought to have been taken into account in determining the sentence to be imposed upon the applicant. In my opinion, there is nothing to suggest that his Honour did not take the report and its assessment into account. His Honour's sole statement on the topic, that he had decided that an intensive correction order for 12 months was not an appropriate disposition, is entirely consistent with his having taken them into account. The presumption of regularity supports the view that he did, and to my mind it is most unlikely that a judge who on 4 September ordered a report and who announced his sentence on 7 September would not have considered in the short intervening period a report prepared in response and dated 4 September.

In support of the first ground, that the sentences were manifestly excessive, it was said by way of oral summary that there were no exceptional circumstances warranting a departure from the two principles mentioned below which strongly favour rehabilitation of young offenders. It was submitted in writing for the applicant that in sentencing him to an immediate custodial sentence of nine months' imprisonment the judge failed to take into account or give sufficient weight to the following considerations:

(i) that the applicant was a youthful offender, being aged 19 at the time of offending and having turned 21 only shortly before being sentenced;

(ii) that the applicant had no prior offences nor any matters pending, with the result that the court was entitled to consider repetition unlikely;

(iii) that the applicant was at the time of sentencing a young father with the responsibility of supporting his de facto wife and young son;

(iv) that the applicant had enormous rehabilitation potential with the support of his parents, friends and de facto wife;

(v) that the applicant was employed and had been since he left school in 1997, reference being made to his employment history and to the evidence of his employer at the time of sentence, which I have already described as impressive;

(vi) that he was clearly affected at the time of the death of his brother, which had led him to consume a large quantity of alcohol on the night he committed the offences.

In support of the first consideration reference was made to the following statement

of the Court of Criminal Appeal in R. v. McCormack[1]:

"It is a grave step to decide to impose upon young men previously of good character, the potentially devastating and corrupting experience of a prison term."

Reference was also made to R. v. Rosemeier[2] and R. v. Smith[3]. To those cases may be added R. v. Smith[4], R. v. Misokka[5], R. v. Mills[6] and R. v. Jones[7], all to the effect that in the case of youthful offenders rehabilitation is usually more important than general deterrence and, secondly, that such an offender is not, if it can be avoided, to be sent to adult prison for a first offence. See also s.5(4) of the Sentencing Act.

It was secondly submitted that imposition of a sentence of imprisonment that was wholly suspended would have met the requirements for specific and general deterrence. As to the doubts that the judge said the victims and the wider community would have about a suspended sentence being one of imprisonment, it was submitted, by reference to D.P.P.(Cth.) v. Carter[8], that the authorities make it clear that it is wrong to assume that a sentence of imprisonment, albeit wholly suspended, does not play a role in deterring others. Further, given the applicant's youth, lack of prior convictions and good prospects of rehabilitation, it was appropriate and desirable wholly to suspend the sentence. Thirdly, submissions were made as to rehabilitation. It was submitted that his Honour's imposition of an element of retribution failed to give any or sufficient weight to the applicant's age, lack of prior convictions and rehabilitation prospects. The applicant had shown a change in lifestyle since the offending. His consumption of alcohol had been reduced, he had returned to his trade as a carpenter and completed his apprenticeship, and he had taken on the responsibilities of a father with a young family. His Honour's statement that in the absence of any suggestion of remorse the applicant's prospects of rehabilitation were uncertain was challenged on the basis of the pre-sentence report. I interpolate at this point that, although specific error in this regard is not alleged, in considering whether the sentences are manifestly excessive I have, unlike the judge, in the circumstances disclosed by the evidence, not treated the absence of remorse, and particularly the youth of the applicant, as posing any real danger of re-offending, an approach for which I draw some comfort from Mr Coghlan's frank inability fully to understand what his Honour had said as to the absence of remorse in relation to rehabilitation. Finally, it was submitted that the offences arose out of the same set of facts, the individual assaults being part and parcel of the affray, and that accordingly there should have been no direction for cumulation. Unlike the other submissions, however, that submission simply goes to the length of the total effective sentence.

In oral submissions an attempt was made to argue that the applicant's attacks were not unprovoked, as his Honour had more than once described them, and to suggest that in some way the victims were to blame for their injuries; but, in the absence of a ground alleging specific factual error, this was not open to the applicant. I do not mean to suggest that the argument, if open, would have succeeded. I note, for example, that counsel appearing on the plea did not challenge his Honour's use of the word "unprovoked" in the course of argument in that hearing. It was also argued orally that there was no sustained attack, but I think Mr Coghlan's answer to that is correct. There was such an attack because a second victim was involved.

I have given these submissions made for the applicant in writing and spoken to orally anxious consideration, both because I regard the applicant's relative youthfulness, lack of prior convictions, steady employment and rehabilitation, achieved and prospective, as very powerful mitigatory factors, especially in combination, and because I am acutely conscious of the devastating consequence that incarceration in an adult prison may well have upon a first offender such as the applicant and, it may be, upon the community in the long run. But it must be remembered that amongst the offences of which the applicant was convicted was that of intentionally causing serious injury and that the applicable maximum penalty for it was imprisonment for 20 years. Both McCormack[9] and Misokka[10] recognised that the principles for which reference was earlier made to them may, in the face of powerful considerations, have to be subjugated to other sentencing principles or purposes. R. v. Hill[11], a rape case, provides an example of that. Moreover, whilst it may be that R. v.Thompson[12] (where there were two counts), R. v. David John Wright[13] and R. v. Stevenson[14] furnish worse examples of the offence of intentionally causing serious injury than does this case, those cases do show that the offence is a very serious one in the sentencing for which general deterrence, sometimes coupled with just punishment or denunciation, will normally outweigh youth and prospects of rehabilitation and - where it exists - lack of prior convictions and require a prison sentence to be served. It is true that in the latter two of those three cases the applicant had relevant prior convictions, a factor which was considered in Wright to give additional weight, but the applicants in all three of those cases, unlike the present applicant, could call in aid by way of mitigation a plea of guilty. In the end, I am not persuaded that it was not open to the sentencing judge to impose on the applicant a sentence of imprisonment part of which was to be actually and immediately served. Or, to put the matter another way, I am not persuaded that the sentencing judge was bound to be satisfied either that it was desirable to impose sentences of imprisonment aggregating not more than one year and to order that the aggregate be served by way of intensive correction in the community or that it was desirable to suspend the whole term of imprisonment imposed in the aggregate. In short, as Mr Coghlan submitted, these offences, and especially that the subject of count 2, were just too serious for there to be any other form of disposition than imprisonment actual and immediate, notwithstanding the applicant's age, prior unblemished character and strong rehabilitation prospects.

The partial suspension takes account of his youth and provides an incentive to reformation. Further, each individual term of imprisonment imposed was, in my view, well within range and his Honour was entitled to direct the cumulation which he did, as the lesser offences betokened additional criminality.

21 For these reasons, I conclude that the first ground is not made out. Accordingly, I would dismiss the application.

In this matter, Mr Simon for the applicant has properly and indeed forcefully laid store on the applicant's youth, his lack of any prior convictions, his position as a family man and young father, his supportive family and friends and his good employment record. So too his efforts since his offending, including a change of lifestyle and the completion of his apprenticeship, were stressed by counsel, who also advanced moderately expressed criticisms of the sentencing judge's reasons for sentence. These matters personal to the applicant, however, represent only part of the material this Court is required to consider.

As I said in the case of R. v. Thompson, which was mentioned in argument and which was decided by this Court two-and-a-half years ago, it is indeed a grave step for any court to order the immediate imprisonment of a first offender, particularly one with a good record; but there are some first offences which are so serious that, even after giving full weight to matters favourable to the offender, a prison sentence is necessary in order that justice be done. Sadly, the case of the applicant, with its element of a conviction for intentionally inflicting serious injury, is one of those cases. I say "sadly" because of the consequences of his conduct which have fallen on one of his victims in particular, and indeed on the applicant himself.

24 I agree with the conclusions of Batt, J.A. and I would subscribe to his Honour's reasons for reaching them.

The order of the Court is that the application for leave to appeal against sentence stands dismissed.

[2] Unreported, Court of Criminal Appeal, 6 May 1977.

[5] Unreported, Court of Appeal, 9 November 1995, at pp.6-7 and 10-11.

[7] [2000] VSCA 204 esp. at paras. 11 and 12.

[12] (Unreported, Court of Appeal, 21 April 1998), especially at pp.6 and 9.

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