White v The Queen [2010] VSCA 261

2 The appellant, Lee White, was presented in the Supreme Court on counts of causing serious injury intentionally and causing serious injury recklessly. The jury acquitted him on the first count and convicted him of causing serious injury recklessly. After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced the appellant to seven years' imprisonment with a non-parole period of four years.

3 The appellant applied for leave to appeal against sentence and was granted leave under s 582 of the Crimes Act 1958. His grounds of appeal were as follows:

The learned sentencing judge erred in failing to have any, or any adequate, regard to current sentencing practices.

The learned sentencing judge erred in sentencing the appellant for an offence different to that of which he had been convicted.

The learned sentencing judge imposed sentence for a 'serious injury' which was different to, and more extensive than, the 'serious injury' which the appellant was convicted of causing.

4 Ground three was abandoned at the hearing of the appeal.

5 The offence was committed in the early evening of Sunday, 14 January 2007. His Honour said that prior to the offence there was 'bad blood' between the

appellant and the victim, Alan Dunstan, who is the de facto partner of Sally Burnside, the appellant's half-sister. According to the report of the forensic psychologist, Mr Ian Joblin, the appellant said he did not like the way the victim treated Ms Burnside.

6 The appellant's partner and children, and the victim and his family, were attending a barbeque held at the home of Robert McCallum. The appellant was driven by an unidentified person to a side street near the residence and approached it on foot after taking an iron bar from the car.

7 The victim, who was drunk, heard that the appellant was arriving and went to the front of the driveway with a long-handled broom to defend himself. When he got to the driveway the appellant struck the victim to the head with the iron bar. The victim fell to the ground immediately. Ms Burnside confronted the appellant with two knives and he fled to the waiting vehicle, and was driven away.

8 When the appellant was arrested and interviewed on 24 January 2007, he admitted being present at the scene but denied having a weapon and striking the victim.

9 The judge described the injuries suffered by the victim as follows:

Your assault upon Mr Dunstan was a seriously harmful one. He sustained two fractures of the skull from the one blow with the bar or rod you wielded. There was an extensive linear fracture through the right frontal and parietal bones together with associated haemorrhages over the surface of the brain which caused damage to the brain. The fractures were not displaced or depressed. Mr Dunstan was removed to the Albury Base Hospital and then the Alfred Hospital, Melbourne. Ultimately he was discharged on 22 January 2007 to the Royal Talbot Hospital for rehabilitation but the next day he discharged himself from that hospital.[1]

10 A neuropsychological report prepared by Ms Louise Vernieux and dated 28 November 2008 was tendered at the plea. The report was prepared at the request of the sentencing judge, who was concerned about the lack of a medical report as to the condition of the victim. It was summarised by his Honour as follows:

That report establishes that Mr Dunstan continues to suffer sequaelae from the assault including headaches, severe impairment of sense of smell and impairment of sense of taste, and that he has 'a residual mild but permanent brain injury as a result of the assault on 14 January 2007'. Ms Vernieux states that 'Mr Dunstan's cognitive weaknesses of verbal memory, abstract reasoning and concentration are consistent with documented brain damage in the temporal and frontal areas of the brain'. The prognosis is now stable. Ms Vernieux states that 'Mr Dunstan's cognitive difficulties are unlikely to affect his ability to care for his children, but they are likely to impact upon his ability to work, specifically making it difficult to recall instructions and information unless it repeated a number of times'.[2]

11 The applicant was 34 at the date of offending and 36 at the date of sentencing. He had 49 prior convictions arising from 10 court appearances. The majority of the convictions were for drug and dishonesty offences, but he had also been convicted on two counts each of unlawful assault and assaulting a police officer. His only previous appearance in the County Court resulted in convictions on counts of aggravated burglary and criminal damage.

12 The report prepared by Mr Joblin was tendered at the plea hearing. Mr Joblin referred to the conflict which had existed between the appellant and victim as the reason for the offending.

13 Mr Joblin said that there was 'little to indicate ... any significant clinical diagnosis' and that the appellant is 'certainly not psychotic and is of reasonable intellect'. His opinion was that there was 'some evidence of symptoms of a personality disorder ... seen in his history of instability, drug use and offending' but that 'those symptoms do not preclude his having insight'.

14 The appellant was an only child. His parents separated while he was in primary school. His stepfather was violent and he experienced difficulties at school. He left school after completing Year 9 and worked in various labouring jobs. More recently he had done casual work such as plastering, but lost his job in January 2007 and had not worked since that time.

15 He had a long-term relationship with Ms Williams with whom he fathered two children, aged 13 and 14 at the date of sentencing. That relationship had ended by the time he was sentenced.

16 The appellant's history of heroin abuse was said to have contributed to his prior convictions, but he stopped using heroin after serving a period of imprisonment in 2001.

17 The judge found that he was not remorseful for having committed the offence.

18 The two grounds of appeal are inter-related and can be dealt with together.

19 In relation to ground 2, counsel for the appellant submitted that the judge's sentencing reasons did not indicate that he considered that the current range of sentences imposed for the offence of causing serious injury recklessly was too low.[3] That was obviously a reference to the then current range. Nevertheless he had imposed a sentence which was outside the range which could be imposed consistently with current sentencing practises.

20 Counsel for the appellant accepted that sentencing statistics have limited usefulness but referred to Sentencing Snapshots relevant to the offence.[4] He relied on those statistics to demonstrate that only a very small number of those sentenced for this offence between 2002-3 and 2006-7, and between 2004-5 and 2008-9, had received a sentence equal to or greater than seven years for the offence. In particular, he said that:

(i) only 5 people (of a total of 505) received a sentence equal to or greater than 7 years for the offence;[5]

(ii) the median sentence imposed was 2 years' imprisonment;[6] and

(iii) 88 per cent of cases where the principal offence was causing serious injury recklessly were dealt with in the Magistrates' Court (where the maximum penalty was 2 years);[7] and

(b) between 2004-5 and 2008-9, only 5 people (of a total of 560) received a sentence equal to or greater than 7 years for the offence.[8]

21 Counsel submitted that these statistics demonstrated that terms of seven years' imprisonment or more were only imposed in cases involving very serious examples of the offence and this was not such an example.

22 In reply, counsel for the Crown submitted that sentencing statistics could have only limited relevance in determining the appropriate sentencing range for a particular case because each sentence depends on the circumstances of the offence and the offender. Counsel for the Crown relied on the observation of Coghlan AJA in R v Tran[9] that:

The [Sentencing] Snapshots are used as a tool to partially reflect 'current sentencing practice'.[10]

The Snapshot is of necessity a somewhat blunt instrument and each case must be considered on its own facts. As this Court observed recently:

'By reference to both the statistics and to a number of what were said to be comparable cases it was submitted by counsel far the respondent that sentences of four years' imprisonment have been imposed for the offence of rape and that this indicates that the sentence imposed in the present case was within the range of sentencing options available to the sentencing judge.[11] In our view, however, such an argument demonstrates why care must be taken when making comparisons between individual cases and in using statistics. Statistics do no more than establish minimum and maximum sentences and the average and median sentences imposed over a particular, and necessarily arbitrary period. Indeed, there is a danger that undue reliance upon the average or median sentence imposed during a particular period will distract the sentencing judge from the particular circumstances of the case in hand and has the capacity to distort sentencing in particularly serious cases towards the average or median figure. The statistics cited provide guidance in only a limited way to the sentence that should have been imposed in this case. By themselves, statistics do not establish a sentencing practice.'[12]

23 Although counsel for the Crown conceded that a sentence of seven years' imprisonment or greater was at the higher end of sentences imposed, he submitted that it was not so plainly wrong or unreasonable as to warrant appellate intervention.

24 Counsel for the Crown disputed the appellant's submission that a sentence of seven years' imprisonment was reserved for the very gravest of cases and relied on a number of cases in which sentences of ten years or more had been imposed for this offence. Particular reliance was placed on Director of Public Prosecutions v Terrick,[13] where the sentence imposed was 11 years' imprisonment, and R v Ashe,[14] where a 10 year head sentence was found not to be manifestly excessive.

25 In relation to ground 1 (manifest excess), counsel for the appellant contended that the injury, though significant, was not comparable to the catastrophic injuries caused in the most serious examples of the offence.

26 Counsel for the appellant submitted that his Honour should have imposed a sentence at the top of the mid-range of sentences imposed by superior courts for causing serious injury recklessly.

27 Counsel submitted that his Honour did not find that the assault was premeditated and relied on the jury's rejection of the appellant having intended to cause serious injury. Counsel for the appellant submitted that although there was no express finding as to the appellant's reason for offending, the circumstances indicated that the appellant had acted in response to the victim coming to meet him whilst both armed and intoxicated, knowing that the victim had a propensity to use weapons and previous convictions for offences of violence.

28 In support of the proposition that the offence was not premeditated, counsel for the appellant relied on the evidence of the appellant's partner that he had gone to the house to pick her up.

29 Counsel for the appellant submitted that the attack had ceased after a single blow. The jury had rejected the existence of any intent to cause serious injury, and the appellant had asked his half-sister to call an ambulance after the assault. Counsel conceded that the judge found that the appellant approached the house with a weapon and was the aggressor,[15] but said that such findings were not inconsistent with a lack of premeditation. The appellant did not have any prior convictions for causing injury offences and this was not a random attack on a stranger, did not involve multiple assaults and was an attack of relatively short duration.

30 Counsel for the Crown relied on Maxwell P's statement in R v Abbott,[16] that:

the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender in these circumstances. That is a stringent requirement, difficult to satisfy.[17]

31 He submitted that on the basis of current sentencing practises, the sentence imposed was well within range, having regard to the significant and lasting consequences of the offending on the victim, the absence of any guilty plea, the absence of any remorse for the offending and the fact that the appellant had prior convictions for unlawful assault and assaulting a police officer in the execution of his duty. The appellant had gone to the house armed with an iron bar and had attacked the victim who was not involved in an attack on him.

32 So far as the severity of injury was concerned, counsel for the Crown relied on the neuropsychological assessment ordered by the judge, which indicated that the offence would have a continuing effect on the victim.[18]

33 Counsel for the Crown submitted that the judge had given the appellant the benefit of mitigating factors by fixing a short non-parole period that amounted to only 57 per cent of the total effective sentence and said that this was another factor that was to be taken into account in considering whether the sentence was manifestly excessive.

34 In my opinion the appeal should be allowed and the appellant re-sentenced. His Honour gave insufficient weight to the sentencing practices which existed at the date of sentence and as a consequence imposed a manifestly excessive sentence.

35 Although care must be taken in relying on general sentencing statistics to determine the sentence to be imposed on a particular offender for a particular example of an offence, they do provide an indication of sentencing trends and standards.[19]

36 In reaching the conclusion that the sentence imposed was manifestly excessive, I have considered the summaries of cases prepared by the Judicial College of Victoria showing the sentences imposed for the offence of recklessly causing injury between 2006 and 2010. There were two cases involving stabbings causing serious injuries in which the offender received a sentence of imprisonment which was less than the sentence imposed in this case. In R v Tran,[20] the victim was a stranger to the offender and the attack was unprovoked. The offender slashed the victim's right arm and then pursued him and stabbed him in the chest two or three times, causing life threatening injuries. The offender had prior convictions for offences involving violence. This Court, differently constituted, dismissed his appeal against a sentence of six years' imprisonment, commenting that this was an offence at the upper level of gravity and that the sentence was merciful and fell at the lower end of the range.

37 In R v Davidson[21] the offenders were each sentenced to six years' imprisonment for stabbings which occurred in the course of a home invasion to collect a debt. As in this case, the offenders pleaded not guilty and were not remorseful. Again those sentences were upheld by this Court.

38 As I have said, counsel for the Crown relied on Ashe[22] and Terrick,[23] both sentences which were imposed subsequently to the sentence in this case. In Ashe, the offender was re-sentenced by the Court of Appeal to ten years' imprisonment. The accused punched the victim who fell backwards, hitting his head on the road, and then returned and assaulted him while he was bleeding and unconscious. The victim suffered catastrophic brain injuries. The appellant pleaded guilty.

39 In Terrick, one of the offenders, Stewart, was an Aboriginal man who, in concert with two other men, viciously attacked a tourist visiting Shepparton, leaving him with catastrophic brain injuries. Stewart came from a severely disadvantaged background in that he was exposed to alcohol, drugs and domestic violent. He had many previous convictions including convictions for recklessly causing injury and other offences involving violence. He pleaded not guilty to the offence. The Court of Appeal held that the sentence of nine years' imprisonment imposed on him by the County Court judge was manifestly inadequate and re-sentenced him to 11 years' imprisonment.

40 In this case the victim's injuries were caused by a single blow to his head, and not by multiple assaults as occurred in the case of Ashe and Terrick. The injury has had some lasting consequences for the victim but he was not catastrophically injured.

The highest sentences previously imposed for an offence should not be regarded as creating a ceiling or a sentencing practice which constrains the imposition of higher sentences in 'worst category 'cases. The need to have regard to current sentencing practices[24] does not mean that the measure of manifest inadequacy is 'capped' or 'collared' by the highest sentences previously handed down.[25]

42 Although the victim in this case does suffer lasting effects and this was a serious attack, I do not consider this case to be a worst category case. Further, as Maxwell P and Redlich JA acknowledged in Winch v The Queen:[26]

Consistency of sentencing is a fundamental objective of the criminal law. The rule of law requires that like cases be treated alike.[27]

43 In my opinion the sentencing statistics and the cases to which I have referred show that the sentence imposed on the offender in the circumstances of this case was manifestly excessive and I would therefore re-sentence the applicant to a term of five years' imprisonment. The judge imposed a non parole period of 57 per cent of the

total effective sentence. I would impose a non parole period of 34 months which also amounts to approximately 57 per cent of the total effective sentence.

2. The sentence passed below is set aside. In lieu thereof the appellant is sentenced to be imprisoned for a term of five years and it is ordered that the appellant serve a term of 34 months' imprisonment before he is to be eligible for parole.

3. The order for taking a forensic sample is confirmed.

4. It is declared that a period of 839 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the court.

[1] [2008] VSC 565 ('Reasons'), [9].

[3] Cf the approach of the trial judge discussed in R v AB (No 2) [2008] VSCA 39; (2008) 18 VR 391, 405 (Warren CJ, Maxwell P and Redlich JA).

[4] Sentencing Advisory Council, Sentencing Snapshot 40: Sentencing trends for causing serious injury recklessly in the higher courts of Victoria, 2002-03 to 2006-07 (February 2008) ('Sentencing Snapshot 40'); Sentencing Advisory Council, _Sentencing Snapshot 94: Causing serious injury recklessly - sentencing trends in the higher courts of Victoria, 2004-05 to 2008-0_9 (March 2010) ('Sentencing Snapshot 94').

[5] Sentencing Snapshot 40, 5. Counsel for the applicant referred to four people in his oral submissions, which, according to the Sentencing Snapshot relied upon, is incorrect.

[8] Sentencing Snapshot 94, 5. Three offenders were sentenced to 7 years' imprisonment, one was sentenced to 8 years' imprisonment and one to 10 years' imprisonment.

[9] [2009] VSCA 252, [24], [25].

[10] Section 5(2)(b) Sentencing Act 1991 and R v MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677.

[11] Referring to R v GJ [2008] VSCA 222, R v Alexander [2007] VSCA 178; (2007) 174 A Crim R 297; R v Cardamone [2007] VSCA 77; (2007) 171 A Crim R 207.

[12] DPP v Maynard [2009] VSCA 129, [35] (Ashley, Redlich and Kellam JJA).

[13] [2009] VSCA 220 ('Terrick').

[14] [2010] VSCA 119 ('Ashe').

[16] [2007] VSCA 32; (2007) 170 A Crim R 306.

[19] R v Bloomfield (1998) 44 NSWLR 734, 738, 739 (Spigelman CJ).

[20] [2009] VSCA 252.

[21] [2008] VSCA 188.

[22] [2010] VSCA 119.

[23] [2009] VSCA 220.

[24] Sentencing Act 1991, s 5(1)(b); see DPP v CPD [2009] VSCA 114, [77]-[81].

[25] [2009] VSCA 220, [81] (Maxwell P, Redlich JA and Robson AJA).

[26] [2010] VSCA 141.