R v Whitlow [2009] VSCA 103

Court of Appeal (Vic)|2009-05-18|Before: REDLICH and DODDS-STREETON JJA

CRIMINAL LAW - Sentencing - Causing injury intentionally, causing serious injury intentionally and using a carriage service to menace, harass or cause offence - Youthful offender - No criminal history - Strong family support and employment history - Whether due weight given to guilty plea - Statement under s 6AAA Sentencing Act 1991 of sentence that would have been passed but for guilty plea - Whether reduction of such s 6AAA sentence must apply proportionately to the head sentence and non-parole period imposed - Manifest excess - Significant injuries inflicted - Offences committed in company - Premeditation - Appeal dismissed.

2 The appellant, Leigh Whitlow, pleaded guilty in the County Court at Melbourne to one count of causing injury intentionally (count 1), one count of causing serious injury intentionally (count 2) and one count of using a carriage service to menace, harass or cause offence (count 3). On 2 October 2008, he was sentenced as follows:

Count1 - six months' imprisonment;

Count 2 - two years and nine months' imprisonment; and

Count 3 - one month imprisonment.

3 Three months of the sentence imposed on count 1 were ordered to be served cumulatively on the sentence imposed in respect of count 2. The entire sentence imposed for count 3 was ordered to be served concurrently with the sentences imposed for counts 1 and 2, resulting in a total effective sentence of three years' imprisonment. A non-parole period of 15 months was fixed.

4 As required by s 6AAA of the Sentencing Act 1991, the sentencing judge stated that but for the appellant's plea of guilty, he would have imposed a sentence of four years' imprisonment with a non-parole period of two years and nine months.

5 On 13 March 2009, Buchanan JA granted the appellant leave to appeal.

(1) The learned sentencing judge erred in his treatment of the appellant's plea of guilty; and

(2) The individual sentences, head sentence and non-parole period are manifestly excessive.

intentionally causing injury, contrary to s 18 Crimes Act 1958 - ten years' imprisonment;
intentionally causing serious injury, contrary to s 16 Crimes Act 1958 - imprisonment for up to 20 years; and
using a carriage service to menace, harass or cause offence, contrary to s 474.17 Criminal Code Act 1995 (Cth) - imprisonment for up to three years and/or a fine up to $19,800.[1]

8 The appellant was born on 20 February 1986 and was aged 22 at the time of the offending. He had been in a relationship with a woman, Ms Sharni Watts, from about May 2007 to January 2008, when the relationship broke down. It was not a clean or decisive break, as Ms Watts and the appellant continued to see each other. Nevertheless, Ms Watts commenced a new relationship with another man, Warren Stemp, who had been a close friend of the appellant, but subsequently became the victim of his offending.

9 The offending comprised in count 1 occurred on 6 March 2008 at 6.30 pm. The victim was sitting in his car with Sharni Watts in the car park under Ms Watt's apartment at Malvern when the appellant arrived in a car driven by his brother. The brothers were accompanied by a friend, Gareth Roberts.[2] The appellant opened the door of the victim's car, punched him a number of times in the head and placed him in a headlock, choking him. When the victim was unable to breathe, the appellant stated 'having a bit of trouble breathing, are you?'. When his brother yelled: 'Get off him. That's enough. Leave him alone' the appellant released the victim and punched him a couple more times before leaving with his companions.

10 Mr Stemp suffered a black right eye, blood nose and multiple bumps and bruises to his head and face. He did not report the incident to the police.

11 The offending comprising count 2 occurred around 8.45 am on 21 March 2008, when after 'a night on the town', the appellant (who had been drinking but was not intoxicated) arrived at Ms Watt's apartment again with Mr Roberts. Although the appellant did not have a key to the apartment, he visited it regularly and was under the impression that he was permitted to enter.[3] In the car park the appellant, who was wearing his brother's shirt, took it off as 'a precaution' because he 'had an idea something would happen'. Both men then entered the apartment through the unlocked front door. The victim, who was sleeping with Ms Watts in the bedroom, awoke from a deep sleep to see the appellant's fist coming towards his face. It made severe contact with his left eye leaving him stunned, disorientated and terrified. He did not retaliate, but after the appellant threw another punch, he raised his arms to defend himself and rolled on his side with his back to the appellant. The appellant continued to throw punches towards the victim, hitting him in the neck and arms. Ms Watts awoke to the screaming and punching. Her sister and friend, who had been sleeping in other rooms, entered, urged the appellant to stop and tried to subdue him. Mr Roberts stood by and yelled to 'let him [the appellant] go'. The appellant and Mr Roberts then left the apartment. Ms Watts took the bleeding victim (who could not see from his throbbing eye) to hospital.

12 While waiting for treatment in the emergency department, the victim received two text messages from the appellant. The message received at 9.49 am read:

I'm fucking watching you, cunt, and every time I catch you there the beating will be worse.

I'm fucking watching you, cunt, I'm going to smash your face in every time I catch you there, and every time I catch you the beating is going to get worse.

14 After receiving emergency treatment, the victim attended the Royal Melbourne Eye and Ear Hospital on 23 and 26 March 2008 and 2 April 2008. Dr Bernstein of the Victorian Institute of Forensic Medium stated that his injuries included:

Fractures of the eye socket; bleeding in front of the eye; injury to the back of the eye and swelling of the eye. Reduced vision, double vision and pain on looking at extremes of gaze;
Possible eye muscle or nerve damage;
Possible injury to the infraorbital nerve; and
Damage to the skin around the eye.

Mr Stemp also had reduced sensation around the left side of his nose and cheek and bruising to his upper chest and right upper arm.

Double vision;
Pain on the extremes of (the) lateral and vertical gaze; and
Reduced sensation over the left side of the nose and left upper cheek and a dilated left pupil.

It was not possible to predict whether the symptoms would fully resolve.

16 Dr Greenrod, an ophthalmologist, who examined the victim on 11 June 2008, observed no structural damage to the angle of his eye, but expected 'some degree of microscopic damage to the trabecular meshwork, a structure involved in controlling the pressure of the eye'. Dr Greenrod further observed that the dilated pupil would probably be a 'permanent change' which will 'cause symptoms of light sensitivity in bright light'. The victim, was at 'some small risk' of developing 'elevated intraocular pressure' potentially resulting in glaucoma the long term. He would require yearly reviews by an eye specialist.

17 In his statement dated 23 July 2008, Mr Stemp stated that following the attack he was 'fearful' for his safety and in a 'state of shock'. He described his condition, distress, the excruciating pain of the treatment and medical investigations and his fear that he would lose his sight. The ordeal of awaiting the outcome of his injuries was 'probably the worst experience of the whole ordeal'.

18 His dilated pupil caused bright lights to irritate and hurt his eye. Mr Stemp was 'distressed and worried about [his] recovery,' 'afraid to leave the house' more 'paranoid' and always 'looking over his shoulder'. Although previously he was more outgoing and carefree, he was now more 'conservative and less confident'.

20 The appellant was 22 at the time of the offending and sentence. He had no prior criminal history. After leaving school in year 10, he worked for a caravan manufacturer and thereafter as a cabinetmaker. The appellant had completed a roof tiling apprenticeship and in the four months leading up to the offending had worked in a factory making electric hot water systems. A reference by his employer indicated that he was a reliable, honest and trustworthy employee. Counsel indicated that his employment with the company was still available. It was not disputed the appellant had never been unemployed. He had a stable, supportive family with whom he resided. References indicated that the appellant was of good character.

21 Since the offending, the appellant had also voluntarily completed an anger management course at the Positive Lifestyle Centre. A report from a counsellor at the Centre reported that he had expressed deep remorse for his actions.

22 The report of Mr Healey, a consultant clinical psychologist, dated 15 September 2008 stated that the appellant had been devastated when Ms Watts, his only serious girlfriend, had become involved 'with his best mate'. He had gained insight since the offending, was not likely to re-offend and was willing to participate in a rehabilitation program.

23 In his police interview, the appellant admitted that he hit the victim on 21 March 2008 and was largely cooperative.

24 The sentencing judge set out the circumstances of the offending.

25 He regarded the offending on count 1 as an unprovoked and cowardly attack on a vulnerable victim, 'in the lower range of seriousness' because the injuries did not require medical attention and the matter was not initially reported. He considered the offending comprising count 2 as a very serious example of a serious offence, aggravated because it was done in company, was on a vulnerable sleeping victim, was a second attack and resulted in serious injuries with an uncertain outcome. Further, the appellant's removal of his shirt prior to the attack bespoke a degree of premeditation. His Honour observed that the offending reflected the appellant's immaturity. It was fuelled by resentment over the victim's relationship with Ms Watts and his culpability was high.

26 While the text messages cast some doubt on the appellant's remorse, the sentencing judge accepted that he was genuinely remorseful. He recognised that the appellant had also addressed the anger which played a role in the offending by completing an anger management course.

27 His Honour considered DPP v Lawrence.[4] Batt JA (with whom Winneke P and Nettle JA agreed) there observed that an offender's youthfulness and rehabilitation must take a 'back seat' to specific and general deterrence of offences involving wanton and unprovoked viciousness, particularly when an offender had had previous chances to control aggression.

28 The sentencing judge noted that the appellant's offending was not as vicious as that considered in DPP v Lawrence. Further, he observed that the appellant was a first offender, was not under the influence of drugs and alcohol and had made efforts towards rehabilitation.

29 His Honour accepted that the appellant had pleaded guilty at an early stage, was relatively youthful (effectively a youthful offender) and of prior good character, with a good work history and references. The references indicated that the offending was out of character. His Honour noted that the appellant 'was a good candidate for rehabilitation and reform'. Further, Mr Healey's report indicated that the appellant was unlikely to reoffend.

30 His Honour took account of the appellant's good family support and noted that he was currently employed in a factory.

31 His Honour nevertheless concluded that just punishment of the offending demanded the custodial sentence set out in paragraph [3] above.

32 The appellant did not contend that the head sentence imposed on count 2 was manifestly excessive. He submitted, however, that the sentencing judge erred because (when compared with the 'notional' sentence which the judge indicated under s 6AAA of the Sentencing Act 1991 ('the Act') that he would have passed but for the guilty plea) the reduction of the head sentence due to the early guilty plea was significantly less than the reduction of the non-parole period.

33 The judge stated that the head sentence would otherwise have been four years' imprisonment but reduced that notional sentence by about 25 per cent, to two years and nine months. In contrast, he reduced the notional non-parole period by 55 per cent, to 15 months.

34 The appellant contended that the disproportion in the reductions was so great as to bespeak error. Further, he submitted that the disparity was unexplained. Counsel acknowledged that the authorities recognised the legitimacy of weighting factors differently in relation to the head sentence and the non-parole period.[5] In written submissions, the appellant acknowledged that certain factors, such as the prospects of rehabilitation, might properly be given more weight at the non-parole stage.[6] The appellant contended, however, that there was no justification for attributing different weight to a guilty plea at either stage. The head sentence in the present case therefore should be significantly reduced due to the early guilty plea and the benefits it entailed, particularly as it was supported by remorse and efforts at rehabilitation.

35 The appellant relied on R v Duncan[7], in which an offender pleaded guilty to six counts of corporate fraud instigated by others, at a time when he was in financial difficulties. The offender was of previous good character, remorseful and highly co-operative with the authorities. He was sentenced to a total effective sentence of 12 months imprisonment on the first three counts and a total effective sentence of 12 months imprisonment on the remaining three counts. Four months of the second total effective sentence were ordered to be served cumulatively with that imposed on the first total effective sentence, resulting in a total effective sentence of 16 months imprisonment. A non-parole period of eight months was set.

36 The appellant's appeal against sentence (which was based both on the cumulation and the length of the non-parole period) was allowed.

37 Although the individual head sentences were not challenged, Batt JA (with whom Phillips CJ and Callaway JA agreed) considered that (given the amounts of money involved) some of them were probably manifestly excessive. Batt JA considered that the sentencing judge had failed to accord sufficient weight to the applicant's guilty plea and extensive co-operation with the prosecuting authorities.

38 Batt JA concluded that 'the sentencing disposition with the direction for cumulation and the fixing of a non-parole period of half the consequential total effective sentence is inappropriate so as to warrant appellate intervention when regard is had to the applicant's early plea of guilty, the degree of his co-operation, his remorse, his previously good character, and, as a consequence of these things, his good prospects of rehabilitation, as well as his manipulation by '[co-offenders]'.[8]

39 Batt JA considered that the applicant should be given a total effective sentence of 12 months, about half of which was suspended for 24 months to permit a regime of supervision.

40 In R v Duncan, Callaway JA pointed out that the 'discount' for a guilty plea and assistance with the authorities (save in the case of suspended sentences) applied in the first instance to the head sentence (which was imposed on the hypothesis that every day may have to be served). That discount would 'inevitably affect the non-parole period'.[9] His Honour stated that 'the plea or the assistance may even be entitled to additional weight at that stage, for example, if it evidenced enhanced prospects of rehabilitation'.[10]

41 In R v Duncan, in contrast to the present case, the proportionality of the non-parole period was relative to a total effective sentence found to result from erroneous cumulation, which is not a feature of the present case.

42 The sentence and circumstances in R v Duncan are not directly comparable with those of the present case. Further, Callaway JA's statement of principle is, in my view, inconsistent with the appellant's principal submission. His Honour expressly recognised that it may be appropriate to afford a greater discount to a guilty plea at the stage of setting the non-parole period if it evidenced, as in the present case, enhanced prospects of rehabilitation. Callaway JA drew no dichotomy between a guilty plea and rehabilitation in that context, but clearly contemplated that they could be related factors justifying an additional discount at the stage of fixing a non-parole period.

43 In R v Ly[11], on which the appellant also relied, two offenders aged in their twenties each pleaded guilty to one count of affray and two counts of intentionally causing serious injury. A third offender pleaded guilty to one count of intentionally causing serious injury. The three offenders were sentenced, respectively, to:

a total effective sentence of eight years' imprisonment with a six year non-parole period;
a total effective sentence of nine years' imprisonment with a seven year non-parole period; and
a total effective sentence of five years' imprisonment with a three year and six months non-parole period.

44 The appellant appealed against sentence on grounds which included a failure sufficiently to weigh their early guilty pleas.

45 Coldrey AJA (with whom Vincent JA and Smith AJA agreed) stated:

The extent or significance of a sentencing discount is not always easy to discern. It is not usually quantified by sentencing judges and cannot be approached simply by asserting a quantum figure (for example one third or one quarter) and extrapolating that to the notional sentence which would have been imposed in the absence of the guilty plea. Indeed, such a mechanistic method runs counter to the intuitive synthesis espoused by appellate courts. However, it is an important policy consideration in the administration of justice that defendants not only receive appropriate credit for pleas of guilty but that they appear to receive credit for such pleas. Pragmatically barristers have to be able to assure those they represent that the benefit pronounced by a sentencing judge is not illusory but is reflected in the actual sentence imposed.[12]

46 In my opinion, although the appellant placed reliance on the above paragraph in R v Ly, it did nothing to support a submission that the reduction of sentence due to a guilty plea should apply in rateable proportion to both the head sentence and the non-parole period or to preclude a significantly greater reduction of the non-parole period in appropriate circumstances. To the contrary, Coldrey AJA's statement rejected a mechanistic approach.

47 In my opinion, a significantly greater or arithmetically disproportionate reduction of the non-parole period (compared with the head sentence) due to a guilty plea, particularly where it promotes or bespeaks rehabilitation, is consistent with, rather than precluded by, the principles expressed in applicable authorities. In the present case, as the sentencing judge's remarks made clear, the early guilty plea evidenced the appellant's good prospects for rehabilitation and explained the reduction of the non-parole period. It was unnecessary for his Honour expressly to explain the arithmetical disparity in the reductions of the head sentence and the non-parole period compared with those he would otherwise have imposed but for the guilty plea

49 The appellant did not challenge the head sentence on count 2 (intentionally causing serious injury) but submitted that the sentence on count 1 (intentionally causing injury) was manifestly excessive in all the circumstances, including 'the very powerful matters in mitigation'. In particular, he submitted that the sentencing judge allowed the gravity of the offending comprised in count 2 to dominate his approach to sentencing on count 1. He therefore failed to consider a disposition other than immediate imprisonment for count 1, although acknowledging that the offending was at the lower end of the range.

50 The appellant's submission depends, however, on focussing on the less serious count in isolation. When sentencing an offender on multiple counts, a judge is not required to adopt a hermetically sealed view of each count, wholly disregarding the sentences contemplated for the other counts.

51 An excessive sentence on a particular count could not, of course, justifiably be imposed because the offender was, at the same time, being sentenced on additional, more serious counts. Nevertheless, where there is a range of appropriate sentences, the necessity to impose a term of imprisonment on other counts may legitimately dispose a judge to impose a custodial sentence (which was otherwise open) on a less serious count, even if the relevant conduct (had it occurred in isolation) may well have attracted a non-custodial disposition.

52 In the present case, the gravity of the offence represented by count 1 is recognised by the ten year maximum term of imprisonment prescribed by the legislature. The appellant caused a blood nose, black eye and facial injuries by repeatedly punching the victim's head and choking him while he was seated in a car. The victim had not provoked the attack. Given those circumstances, although there were strong mitigating factors, the sentence imposed on count 1 was open, albeit a more lenient disposition may have been imposed had the appellant been sentenced on that count alone. There is nothing to suggest that the sentence was outside the range.

[1] See ss 4AA(1) and 4B(2) Crimes Act 1914 (Cth).

[2] Mr Roberts was only charged in relation to the incident constituting count 2. He pleaded guilty on 1 August 2008 in the Magistrates' Court at Melbourne to one charge of intentionally causing injury. He was placed on a community based order for 12 months and ordered to perform 150 hours of unpaid community work over 12 months. A conviction was recorded.

[3] In a statement dated 8 September 2008 Ms Watts described having telephone contact with the appellant and that he had come to the apartment 'at least once' after the 6 March incident because his grandmother had died and she wanted to comfort him.

[5] See, for example, R v Mulvale (Unreported, Supreme Court of Victoria, Court of Appeal, Winneke P, Callaway JA and Hampel AJA, 20 February 1996).

[6] See, for example, DPP v Bulfin [1998] 4 VR 114.

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