Court of Appeal (Vic)|2011-03-30|Before: Mr P, Neave JA, Bongiorno JA

Trowsdale v The Queen [2011] VSCA 81 (30 March 2011)

R v Trowsdale (Unreported, County Court of Victoria, Judge Murphy, 8 May 2009)

1 On 24 December 2006, Ryan Scott Trowsdale, then aged 24, threw a beer glass at the head of 19-year-old Michael James Shale in a bar at the Portsea Hotel. He threw the glass from a distance of two or three metres in a manner which witnesses described as 'hard'. It shattered and caused Shale serious injuries to his right eye and face. Trowsdale later told police that at the time he had had 'four or five' beers and was 'in the best mood ever'. He also told police that he had thrown the glass at the floor and its striking of Shale was, in effect, accidental. However, ultimately, he did not persist in this obvious lie.

2 There is no suggestion that Shale in any way provoked this attack. The only relevant contact between him and his assailant had been on 8 December 2006 when both had attended a club in Port Melbourne where Shale had danced with a girl named 'Nikki'. It later emerged that Trowsdale was Nikki's 'boyfriend' and that when he became aware of the contact between her and Shale he was annoyed. That they both attended the Portsea Hotel on Christmas Eve appears to have been a coincidence.

3 Shortly after the assault, Trowsdale was heard to say 'tell your friend I hope he gets a fucking glass eye'. Shortly afterwards he phoned a friend of the victim, one Derek Walter and said words to the effect 'if you tell the cops who I am I'm going to kill you'. He then repeated words to the same effect.

4 As a result of this assault, Shale suffered very serious injuries to his right eye and to the surrounding area of his face. He has required extensive surgical intervention and has been left with a severe diminution of vision in his right eye with a very uncertain prognosis.

5 Although he fled the scene, Trowsdale was ultimately arrested, along with an accomplice, one Pollard, and subsequently charged with a very large number of offences, including intentionally causing serious injury. There followed appearances in the Magistrates' Court on 23 January, 11 April, 14 June and 17 December 2007 ultimately resulting in Trowsdale (and Pollard) being committed for trial. There were then appearances in the County Court on 25 February, 28 March, 6 October, 14 October, 29 October and 27 November 2008. Eventually, Trowsdale pleaded guilty to a presentment alleging one count of recklessly causing serious injury and one count of making a threat to kill.

6 On 7 May 2009, a plea in mitigation was heard by his Honour Judge Murphy and, on the following day, Trowsdale and his co-accused were sentenced. Trowsdale was sentenced to three years and nine months' imprisonment on the count of recklessly causing serious injury to Shale and 12 months' imprisonment on the count of making a threat to kill Walter. His Honour cumulated three months of the sentence on the second count upon that on the first making a total effective sentence of four years' imprisonment. He fixed a non-parole period of two years and three months. He also made appropriate ancillary orders.

7 On 27 November 2009, Neave JA in this Court granted Trowsdale leave to appeal, considering that it was reasonably arguable that the sentence on the count of the threat to kill and the total effective sentence were manifestly excessive.

8 Before this Court, Trowsdale's counsel, Mr P F Tehan QC, said that his client had offered to plead guilty to recklessly causing serious injury as early as 17 December 2007 - at the time of his committal hearing. This was when he was facing a very large number of charges including the more serious charge already referred to. Some confusion surrounded the question of a plea of guilty to the charge of making a threat to kill although Mr Tehan asserted that that 'would not have stood in the way of a resolution of the matter'. In any event, what is clear is that when Trowsdale was arraigned, with his co-accused, before Judge Murphy on 7 May 2009 he pleaded guilty to a presentment which then contained two counts - those upon which he was sentenced. Judge Murphy adverted to Trowsdale's plea in his sentencing remarks and took it into account as an early plea of guilty with the usual consequences. He made the usual mandatory s 6AAA declaration.

9 Trowsdale appealed to this Court on two grounds: that the sentencing judge erred in finding that the delay in this case was not inordinate and that the individual sentences, the total effective sentence and the non-parole period were all manifestly excessive. In his argument on Trowsdale's behalf, Mr Tehan QC concentrated on the issue of delay and focused particularly on Judge Murphy's description of the delay as being not inordinate.

10 Whether in describing the delay in this case as not inordinate, the judge meant that it was not excessive or merely that it was not unusual matters little. As Maxwell P pointed out in R v Merrett,[1] the relevance of delay as a sentencing factor is not determined by whether the delay is justifiable or unjustifiable or - as in this case - inordinate, but rather what the prisoner has done during the period of delay to demonstrate actual or prospective rehabilitation.[2]

11 The sentencing judge was well aware of the length of the delay and directed his attention to those aspects of it which were relevant to the sentencing process. He referred to the number of court appearances Trowsdale had undergone since being charged, the effect of the uncertainty created by those court appearances, the anxiety they generated, and the opportunity the delay provided for him, with the assistance of a psychologist, to gain some insight into his offending. He referred, particularly, to Trowsdale's change of position with respect to his involvement in the offences to which he pleaded guilty as evidencing some remorse. Most importantly, his Honour specifically referred to his having taken delay into account. He referred to Trowsdale as being 'on the way to rehabilitation'.

12 Although Judge Murphy did not refer to it in the context of delay, it must be acknowledged that in February 2008 - some 14 months after the assault in the Portsea Hotel - Trowsdale assaulted another male in a street in St Kilda. After having drunk a considerable amount of alcohol, he entered a motor car in which a young woman was seated and sat in the driver's seat. Upon the car owner's return, Trowsdale punched him in the face several times resulting in some injury - at least a black eye. In August 2008, he was sentenced by the Melbourne Magistrates' Court to a 60-hour community work order for this offence. To his credit, he completed that work order satisfactorily, even by attending on his days off so as to preserve his employment.

13 Having regard to the sentencing judge's remarks and Trowsdale's history between the date of the incident in the Portsea Hotel and his sentencing there is no basis for his complaint that the sentencing judge failed to take delay into account or to adequately take it into account. This ground of appeal should not be upheld.

14 In his written outline, counsel for Trowsdale referred to a number of decisions of this Court in support of his alternative ground that the sentence imposed on his client was manifestly excessive. Those cases, which covered a wide spectrum of conduct constituting recklessly causing serious injury, were said, by Mr Tehan QC, to demonstrate that current sentencing practices did not permit a sentence as severe as that imposed on his client. He submitted that a sentence of three years and nine months' imprisonment for this offence was outside the permitted range.

15 Mr Tehan QC, however, did not refer to Winch v The Queen,[3] in which this Court recently reviewed sentences for the offence of recklessly causing serious injury, particularly by 'glassing'. Winch was a glassing case bearing some similarity to the present case. A young man, aged 26, intoxicated at the time, struck another young man with a 'handled beer pot' in the face, causing severe injuries. The incident occurred in a bar. The apparent cause of the altercation was a belief by the prisoner that the victim had insulted his girlfriend. The injuries inflicted on the victim included severe facial lacerations and broken teeth requiring significant medical and surgical intervention and resulting in permanent scarring - both physical and psychological.

16 Winch was sentenced in the County Court to five years' imprisonment with a non-parole period of three years after pleading guilty to recklessly causing serious injury. On an appeal against that sentence, the Crown conceded that the sentence was manifestly excessive. In the course of re-sentencing Winch, this Court reviewed current sentencing practices with respect to that sub-group of cases of recklessly causing serious injury commonly referred to as 'glassing' cases.

17 The majority in Winch (Maxwell P and Redlich JA) reviewed 16 glassing cases which had been the subject of County Court sentences between May 2007 and December 2009, including the sentence imposed on Trowsdale. Their Honours analysed the curial dispositions in those cases and concluded, as the Crown had conceded, that the sentencing judge in Winch had imposed a sentence which was 'anomalously high' when compared to the cases reviewed. Their Honours considered that the disparity between it and the other sentences reviewed was not reasonably justifiable. They concluded that the sentencing judge had failed to give appropriate weight to current sentencing practices as he was required to do by s 5(2)(b) of the Sentencing Act 1991.

18 Of the 16 cases reviewed in Winch (and excluding Winch itself) the sentence imposed on Trowsdale was 12 months longer than the next longest sentence, 23 months longer than the median of the 16 sentences (22 months) and 21 months longer than the most common sentence (24 months). Their Honours suggested that a possible explanation for the sentencing judge's error in Winch was that the Crown had not provided him with any submissions as to the appropriate sentencing range but had merely put that the offence demanded, in that case, the imposition of a custodial sentence which was not capable of being suspended - that is to say, a custodial sentence of longer than three years. In allowing Winch's appeal, the Court substituted a sentence of two years and nine months' imprisonment for the five years originally imposed. It fixed a non-parole period of 15 months.

19 In disposing of Winch's appeal, Maxwell P and Redlich JA made a number of observations on the subject of 'glassing' cases including that 'the general run of sentences imposed for glassing as an instance of recklessly causing serious injury did not sufficiently reflect the fact that such conduct is inherently dangerous, and should not be treated as a less serious form of the offence'. Their Honours referred to the importance of general deterrence and suggested that the seriousness and the prevalence of 'glassing' cases meant that general deterrence must be given primacy in the sentencing synthesis. They referred to Director of Public Prosecutions (Vic) v Lawrence,[4] where Batt JA acknowledged that there are cases in which the seriousness of the assault and of its consequences might override questions of the offender's youthfulness and rehabilitation, achieved or prospective.

20 Whilst these observations and others which the majority made in Winch are helpful in reminding sentencing judges of the considerations which must inform the instinctive synthesis in cases of 'glassing', it is not necessary, to dispose of this case, to do more than apply the general reasoning of Winch's case. Having done so, it should be concluded that Trowsdale's sentence is, like Winch's, outside the range of sentences available to a sentencing judge in the circumstances of this case. It suggests that there was a failure by the sentencing judge to have sufficient regard to current sentencing practices as he was bound by law to do. This is not to say that, as 'glassing' cases go, this case is an example of the least serious; far from it. The consequences to the victim, if nothing else, place it above the middle range of seriousness for this offence. However, having regard to current sentencing practices, there must be a reduction in his sentence.

21 In Winch, the Court concluded that current sentencing practices with respect to the form of recklessly causing serious injury with which this case was concerned, namely 'glassing', have resulted sometimes in inadequate sentences being imposed. This has been particularly so in cases where sentences have, in the past, been suspended rather than being required to be immediately served.

22 In this case, the appellant pleaded guilty in the County Court and was entitled to assume that he would be sentenced taking appropriate account of current sentencing practices at that time. As this Court recognised in Hudson v The Queen,[5] it would work a great injustice if a court were to impose a higher sentence than could reasonably have been anticipated when the offender decided to plead guilty. Fairness would require an adherence to existing sentencing practices for this case, even if in future higher sentences were considered appropriate.

23 Trowsdale's appeal on the ground of manifest excess should be upheld. The sentence imposed upon him for recklessly causing serious injury should be set aside and, in lieu of that sentence, a sentence of two years and nine months' imprisonment should be imposed. The order for cumulation made by the sentencing judge should not be disturbed, thus producing a new total effective sentence of three years' imprisonment. I would fix a new non-parole period of two years.

[2] See also R v Schwabegger [1998] 4 VR 649, 659 (Vincent AJA); R v Todd [1982] 2 NSWLR 517, 519-20 (Street CJ); R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444, 447 (Chernov JA); R v Tiburcy [2006] VSCA 244.

[3] [2010] VSCA 141 ("Winch").

[4] [2004] VSCA 154; (2004) 10 VR 125, 132 (Batt JA with whom Winneke P and Nettle JA agreed).

[5] [2010] VSCA 332. See also DPP (Vic) v CPD [2009] VSCA 114; (2009) 22 VR 533, 549 (Maxwell P, Redlich JA and Robson AJA); Winch [2010] VSCA 141, [27] (Maxwell P, Ashley and Redlich JJA).

Trowsdale v The Queen [2011] VSCA 81

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Trowsdale v The Queen [2011] VSCA 81 (30 March 2011)

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