Webster v The Queen [2016] VSCA 329

1 On 4 May 2015, the appellant (now aged 38), pleaded guilty to intentionally causing serious injury, which carries a maximum penalty of 20 years' imprisonment. On 17 November 2015, the appellant was sentenced to seven years' imprisonment with a non-parole period of five years and six months. But for his plea of guilty, the sentencing judge indicated[1] that he would have imposed a sentence of nine years' imprisonment with a non-parole period of seven years. A declaration of 331 days of pre-sentence detention was also made.

2 On 20 June 2016, Weinberg AP granted leave to appeal on the following ground:[2]

The sentence imposed on the charge of intentionally cause serious injury:

1. was manifestly excessive; and
2. outside the range of the sentence reasonably open in the circumstances of this offence and this offender; and
3. resulted in a total effective sentence and non-parole period that was manifestly excessive.

3 On 21 September 2013 at around 11am, the appellant walked on to the Mooroopna Golf Course looking for his lost dog. The victim, Brian McGee (aged 70), was on the 16th fairway playing golf with his brother Lionel and another man. The appellant approached the victim's brother in an aggressive and confronting manner and accused him of staring at him.

4 The appellant and the victim began arguing. The victim told the appellant they were just there to play golf and to 'piss off'. The appellant told the victim he was going to get a lump of wood and knock his head off. The appellant grabbed a fallen branch approximately a metre long and swung it at the victim. The branch broke mid-swing and part of it struck the victim on his left shoulder.

5 The victim took a golf club and chased the appellant from the fairway, throwing the club and hitting the appellant on the legs. The appellant yelled that he was going to get his car and run the victim over. The victim called '000' and informed police what had happened before resuming his golf game.

6 The appellant went to his car which was parked nearby and armed himself with a golf club.[3] The appellant returned to the 16th hole about 10 minutes later and ran at the victim, brandishing the golf club and threatening to kill him. The victim prepared to defend himself with his putter when the appellant struck the victim to the left side of his head with the golf club, knocking him to the ground.

7 The appellant walked away towards the 8th hole, where he was chased by another golfer who had witnessed the appellant attack the victim. That golfer hit the appellant several times with a golf club, causing the appellant injuries and bleeding. The appellant ran away and was picked up by a passing car.

8 The victim was taken to hospital by ambulance where he was treated for head injuries, including a depressed fracture of the skull and injuries to his left shoulder and right side. The victim was later transferred to the Royal Melbourne Hospital where his head wound was re-opened and depressed skull fragments were surgically removed, the wound then cleaned and repaired. The victim spent five days at the Royal Melbourne Hospital as an inpatient. He required further surgery in February 2015 to insert a steel plate in his head. Complications with that surgery meant he spent a further week in hospital.

9 In his victim impact statement, the victim described the profound impact the offence has had on his life. To take just a few extracts:

Things that would have been small or irrelevant to me prior to the assault, I now find have a greater effect on me. The smallest things or events can trigger emotions in me that confuse me and greatly upset me .... . I can be watching my grandchildren play and just start sobbing. I am unsure why I'm doing this and it concerns my children greatly when it occurs in front of them.

...

Since the assault I have taken up residence in my daughter's house and both my daughter ... and my son ... have taken on what I see as caring roles. It upsets me that I have become dependent on them to assist me and feel that I am a burden on their already busy lives, when prior to the assault, I was an independent man.

...

My relationship with my grandchildren has changed since the assault. ....I have always been the poppy that the kids could jump on, play fight with and have a good laugh with. ... It angers and saddens me now to think, my grandchildren see me as a fragile old poppy and no longer see me as the active, healthy, fun-loving poppy I used to be.

...

I think most people would assume when heading out for a day on the golf course with your family/friends that you would be in a safe environment ... . This has taught me that I'm never safe ... . I am now hesitant to go play a game of golf. I look at the golf course and I see that it's open to anyone to enter and I'm vulnerable there at all times. ... I'm saddened greatly that I now feel this way [about golf which] brought me [great] pleasure [over] the years.

...

The vision of me on the ground with blood pouring out of my head haunts [my brother Lionel]. ... As brothers, we regularly played a game of golf together and enjoyed spending the quality time together. It saddens me greatly that something we treasured turned into a nightmare for him.

...

I'm a changed man since that day, although it hasn't killed me, it has emotionally and mentally. It has taken my health and contributed to me aging quickly. I feel like the out-going, funny, loving man is gone. The active golfer, the fun poppy, the independent, reliable father no longer exists. I feel like my life is ending on an emotional, confusing roller coaster.

10 The appellant was arrested on 31 October 2013. He participated in a record of interview in which he made partial admissions. He denied striking the victim with the tree branch and said that the victim hit him first with a golf club. He admitted that he had taken a golf club from his car and returned with it to bash the victim and had hit him to the head with it but claimed the victim had swung at him with a golf club at the same time.

11 At the conclusion of the record of interview, the appellant was charged with intentionally causing serious injury and recklessly causing serious injury.

12 On 3 March 2015, at Shepparton Magistrates' Court, he was committed on both charges to stand trial based on the information in the hand-up brief. He pleaded not guilty to both charges before the committing magistrate.

13 On 31 March 2015, there was a directions hearing in the County Court. According to the court records, the appellant indicated he would plead guilty to recklessly causing serious injury but not intentionally causing serious injury. The prosecution did not accept the plea offer. Accordingly, the matter was set down for a seven day trial at Shepparton County Court, in the circuit commencing 13 April 2015.

14 On 4 May 2015, the applicant was arraigned and pleaded guilty to intentionally causing serious injury.

15 On 18 August 2015, there was a plea hearing. The matter was adjourned part heard for the preparation of a Forensicare Report. We note that the appellant told the author of the Forensicare report that he was 'off his face' on 'shard' (ice) at the time of the offending and that was why he didn't back down.

17 On 17 November 2015, the appellant was sentenced.

the victim ... has been devastated by this unprovoked attack. His entire lifestyle has changed. The injuries he received and has suffered have dramatically affected his way of life.[4]

This succinctly and accurately depicted the victim's plight.

19 His Honour stated that the appellant's behaviour in striking the victim was 'appalling' and that it represented 'a serious case of intentionally causing serious injury'.[5] Later in his sentencing reasons he said it was 'a particularly bad example of intentionally causing serious injury'.[6] This categorisation was not challenged on appeal.

20 His Honour outlined the appellant's long history of substance abuse, his lengthy criminal history including priors for violence and his anger management problems stemming, at least in part, from significant physical and sexual abuse which he suffered as a child. In light of these matters, His Honour said, understandably, that he was 'guarded' about the appellant's prospects of rehabilitation.[7]

21 As for the applicant's criminal history, His Honour wrongly stated that the applicant had '72 prior convictions from 13 court appearances'[8] and that there were '14 assault type convictions alone out of that 72'[9]. In fact, the appellant had 66 prior convictions from 11 court appearances between 1996 and 2010, eight of which were for assault type offending. The prior convictions for offences involving violence were recorded in three court appearances spread out over a 14 year period commencing in 1996 and included intentionally causing injury, threatening to inflict serious injury, assault with a weapon, assault police and four counts of unlawful assault. The appellant also had four prior convictions for possession of a controlled weapon without excuse.

22 His Honour, in what was a generous finding given the procedural history of the case, described the appellant's plea as an 'early plea'. He also regarded the plea as indicative of remorse.

23 As regards the objective gravity of his offending,[10] the appellant submitted in this Court that his intention was to cause serious injury rather than really serious injury or worse; the victim's injuries were not permanent or catastrophic; it was not a sustained attack, but a single blow with the golf club; and he acted alone.

24 In submitting that the sentence was manifestly excessive, the appellant relied on the following additional matters: the appellant was under the influence of ice at the time of the offence; the appellant suffered extra-curial punishment when another golfer struck him several blows with a golf club;[11] the appellant pleaded guilty; there was some evidence of remorse; the appellant's developmental history was grossly-dysfunctional, characterised by physical and sexual abuse; the appellant had a significant history of alcohol and poly-substance abuse; there were significant breaks in the appellant's history of offending behaviour; the appellant had a poor educational history and inconsistent employment history; the appellant had a supportive partner and had made attempts to rehabilitate himself.

25 As regards current sentencing practices, the appellant referred to the cases mentioned in the annexure to Nash v The Queen[12], cases where sentences of imprisonment ranging from 11 years to two years have been imposed for intentionally causing serious injury. The appellant submitted that the higher sentences of seven to 11 years imprisonment were imposed for offences where the offending had a substantial and permanent effect on the victim, and often involved aggravating features or multiple acts of violence.[13] The appellant submitted that the facts of his offending did not fit within this category of offending but within the category of cases where sentences of three to six years imprisonment were typically imposed.[14] Consequently, it was submitted, the sentence he received was manifestly excessive.

26 The respondent submitted that the sentencing judge had been correct in finding that the appellant's offending was a serious example of the offence of intentionally causing serious injury. The injuries inflicted on the victim, while not catastrophic, were in the mid-upper range of seriousness. The fact that the appellant was affected by methamphetamine at the time of the offence was not a mitigating factor. The appellant's personal circumstances and long history of criminal offending, which included prior convictions for violent offending, did not militate in favour of leniency. The sentencing judge took into account the mitigating factors relied upon by the appellant and the sentence imposed properly reflected those matters as well as the gravity of the offending, and the need for specific and general deterrence, punishment and denunciation.

27 In relation to current sentencing practices, the respondent drew our attention to three cases, namely Robbins v The Queen,[15] Chong v The Queen[16] and Tasevski v The Queen[17].

28 In Kumar v The Queen,[18] Maxwell ACJ stated:

[T]he ground of manifest excess is very difficult to establish. It involves demonstrating to the satisfaction of this Court that it was not reasonably open to the sentencing judge, taking all relevant matters into account, to impose the sentence in question on the particular offender for the particular offending. That is a stringent test, founded on the basic principle that sentencing is for judges and magistrates at first instance and not for the Court of Appeal. We intervene only where something is shown to have gone clearly or badly wrong.[19]

29 No challenge was made to the sentencing judge's finding that this was a serious example of the offence of intentionally causing serious injury. Having regard to the circumstances in which this offence occurred, the use of a potentially lethal weapon to strike an elderly man forcefully to the head, the seriousness of the physical injuries suffered by the victim, and the profound impact it has had on his life, it was an upper range example of the offence of intentionally causing serious injury.

30 The absence of some aggravating features referred to in Nash means this offence is appropriately viewed at the low end of the upper range, but the point should be made that it is not necessary for the injuries inflicted to be catastrophic or for the assault to be prolonged or for the offence to occur 'in company' in order for such an offence to fall into the upper range of seriousness.

31 At first blush, a head sentence of seven years for an upper range example of the offence, committed by an offender in his late 30's with priors for violence, and 'guarded' prospects of rehabilitation, does not suggest manifest excess, even if one accepts, as the sentencing judge did, that the appellant entered an early plea of guilty. The head sentence is not much more than a third of the maximum sentence of 20 years' imprisonment.

32 One then turns to current sentencing practices for intentionally causing serious injury, and a consideration of comparable cases.

33 The law in relation to current sentencing practices was recently reviewed by the High Court in R v Kilic.[20] That was a case where the offender doused his pregnant partner in petrol and set her alight, causing her horrible injuries. The High Court, in finding that the Court of Appeal had erred in reducing the original total effective sentence[21] of 15 years with a non-parole period of 11 years, said:

Section 5(2)(b) of the Sentencing Act 1991 (Vic) require[s] [courts] to have regard to 'current sentencing practices'. The evident purpose of that requirement is to promote consistency of approach in the sentencing of offenders. Consideration of 'current sentencing practices' will include, where appropriate, the proper use of information about sentencing patterns for an offence. The requirement of currency recognises that sentencing practices for a particular offence or type of offence may change over time reflecting changes in community attitudes to some forms of offending .........

Their Honours in the Court of Appeal observed, correctly, that examination of cases of causing serious injury by fire may provide a relevant "yardstick" by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles but that the requirement to have regard to the sentences imposed in those cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather the range of sentences imposed in the past may inform a 'broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle'.[22]

34 We have read carefully all of the cases relied upon by the appellant. Our conclusion is that while the sentence imposed on the applicant was a stern one, it was not outside the range of sentences open to the sentencing judge for what was a serious example of the offence of intentionally causing serious injury.

35 The remarks of Nettle JA in Tasevski v The Queen,[23] with whom Beach JA agreed, are apposite, notwithstanding factual differences between Tasevski and the present case:

.....[J]udged by reference to some of the other cases ...., the sentence of seven and a half years' imprisonment imposed on the charge of intentionally causing serious injury (charge 2) is stern and, statistically speaking, remarkable. Ultimately, however, I am not persuaded that it is manifestly excessive.

The maximum penalty for intentionally causing serious injury is 20 years' imprisonment and, as has been observed on other occasions, it may thus be expected that the worst instances of the offence will attract sentences of 15 years' imprisonment and upwards. The offence of causing serious injury in this case was not among the worst instances of the offence but, as the sentencing judge rightly found, it was serious. Hence, the sentence which his Honour imposed was only half of 15 years.

Certainly .... there are other cases in which similar attacks have netted lesser sentences. High authority dictates that we must regard them as relevant comparators. But the complexities of sentencing are not susceptible to precise mathematical comparisons. They necessitate consideration not only of the nature and gravity of an offence and the injury which it may have inflicted but also of the nature and circumstances of the offender, his prospects of rehabilitation and the needs of community protection. Potentially, therefore, the variables are unlimited and, to a large extent, of a nature incapable of any more precise measurement than informed subjective assessment.

Therein lies the essence of the sentencing discretion and why it is that there is no one necessarily correct sentence for a given offence or offender; only a range of sentences above or below which it is error of law to go.

No doubt, some other judges might have assessed things differently and indeed it may be that the majority are likely to have resolved upon a sentence less than was imposed. But to say so is not to conclude that the sentence was manifestly excessive. It is merely to recognise that, within the permitted range of sentencing discretion, views may reasonably differ. I do not accept that a sentence of seven and a half years for a knife attack of the kind in issue lies beyond that range.

More precisely, given that this was an unprovoked knife attack on an innocent stranger, lawfully going about his business in a public place, which caused him life threatening physical injuries and thus far unresolved traumatic psychological sequelae, committed by the applicant while released on bail pending trial for another albeit less serious knife attack on another victim only seven months before, I am unable to conceive of a sentence of seven and half years' imprisonment as manifestly beyond the bounds of just punishment.[24]

36 Nothing much turns on the fact that a knife was the weapon of choice in Tasevski whereas here, the weapon was a golf club. Smashing the head of a golf club into someone's head is no less serious, or fraught, than stabbing someone in the stomach with a knife. Indeed, a victim given the unhappy choice, might well choose the latter. Of course, there are factual differences between Tasevski and the present case. For example, an aggravating feature in Tasevski was that the offence was committed when the offender was on bail for intentionally causing injury in another knife attack. But, then again, the victim in Tasevski was 28, not 70.

37 The appellant placed particular reliance on Wallace v The Queen.[25] Wallace, who was 21 at the time of the offence, struck his 55 year old victim repeatedly with a golf club, or clubs.[26] Wallace pleaded guilty to intentionally causing serious injury.[27] The sentencing judge imposed a sentence of six years and six months with a non-parole period of four years and six months. The sole focus of Wallace's appeal was the non-parole period which Wallace submitted was manifestly excessive. This Court found that the non- parole period was 'well open'[28] to the sentencing judge, a comment that indicates that a higher non-parole period would not have been considered outside the range.

38 The fact that the appellant in Wallace received a head sentence that was six months less and a non-parole period that was one year less than what the appellant received does not justify a conclusion that the head sentence or non-parole period imposed here were manifestly excessive. Wallace does not set the outer limits of what was open to the sentencing judge in the present case. And sentences are not precedents, which must be distinguished to justify a sentence of greater or lesser severity in a comparable case.

39 As for the fact that His Honour imposed a lengthy non-parole period - one that was 78 percent of the head sentence - that was no doubt influenced by the seriousness of the offence and His Honour's view about the appellant's prospects of rehabilitation. Again, the non-parole period may be remarkable but that does not justify the conclusion that it was manifestly excessive.

[1] Pursuant to s 6AAA of the Sentencing Act 1991.

[2] On the leave application, this was proposed Ground 3. The appellant was refused leave in relation to proposed Grounds 1 and 2. Initially the appellant filed a Notice of Election in relation to these grounds. On 29 August 2016, the appellant filed a Notice of Abandonment in relation to proposed Grounds 1 and 2. Consequently, nothing more need be said about them.

[4] DPP v Webster (Unreported, County Court of Victoria, Judge Pilgrim, 17 November 2015) [40] ('Reasons').

[10] See the relevant considerations mentioned in Nash v The Queen (2013) 40 VR 134, 137 [10].

[11] He received lacerations and was hospitalised overnight.

[12] (2013) 40 VR 134 ('Nash').

[13] The cases relied upon by the appellant as illustrating the more serious category of intentionally causing serious injury were Tasevski v The Queen [2014] VSCA 135; Robbins v The Queen [2012] VSCA 34; Taskiran v The Queen [2011] VSCA 358; DPP v Yang [2011] VSCA 161; Mann v The Queen [2011] VSCA 189; Spanos v The Queen [2012] VSCA 253; Cedic v The Queen [2011] VSCA 258; Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43; Smith v The Queen [2012] VSCA 133; Barfoot v The Queen [2011] VSCA 282; El Tahir v The Queen [2011] VSCA 46.

[14] The cases relied upon by the appellant as illustrating the less serious category of intentionally causing serious injury were Picone v The Queen [2015] VSCA 5; Kennedy (a pseudonym) v The Queen [2015] VSCA 49; Xiberras v The Queen [2014] VSCA 170; Kumar v The Queen [2013] VSCA 191; Wallace v The Queen [2012] VSCA 114; (2012) 35 VR 520 ; Frost v The Queen [2012] VSCA 282; Abdifar v The Queen [2012] VSCA 66; Emery v The Queen [2011] VSCA 212; Kavanagh v The Queen [2011] VSCA 234; DPP v Gerrard [2011] VSCA 200; (2011) 211 A Crim R 171.

[15] [2012] VSCA 34.

[16] [2008] VSCA 119.

[17] [2014] VSCA 135.

[18] [2013] VSCA 191.

[20] R v Kilic [2016] HCA 48. See also DPP (Cth) v Thomas [2016] VSCA 237 at [173]-[176] for a recent and comprehensive summary of the jurisprudence regarding current sentencing practices.

[21] Apart from the sentence of 14 years for intentionally causing serious injury, there were sentences for two summary offences (using a prohibited weapon and dealing with suspected proceeds of crime) which, after orders for cumulation, added 12 months to the time to be served.

[22] R v Kilic [2016] HCA 48 [21]-[22].

[23] Tasevski v The Queen [2014] VSCA 135 ('Taveski').

[25] [2012] VSCA 114; (2012) 35 VR 520 ('Wallace').

[26] Several broken shafts were found by police in the victim's flat, which was the scene of the crime.

[28] Wallace [2012] VSCA 114; (2012) 35 VR 520, 525 [27].