Edit: The RCSI tables – which I previously said were missing from the JCV’s website – have now been added. I can’t link to them directly but they are at 25.9.2.1 of the Sentencing Manual.
The Court of Appeal decided Winch v The Queen [2010] VSCA 141 this week. At issue was the appropriate penalty for an offender who had recklessly hit someone in the head with a glass, causing them serious injury. The Court referred to current sentencing practices (as any court must do under s 5(2)(b) of the Sentencing Act 1991) but indicated that previous cases of recklessly causing serious injury (RCSI) should not constrain sentencing courts from awarding appropriate sentences.
A differently-composed Court of Appeal had flagged last week in DPP v Malikovski [2010] VSCA 130 (Nettle JA at 64] that the Court had a lot more to say about the offence Winch had committed. The Court found [at 31] that the ‘general run’ of sentences for offences under s 17 of the Crimes Act 1958 ‘does not sufficiently reflect the fact that such conduct is inherently dangerous’ and that hitting a person with a glass should not be considered a ‘less serious form of the offence of RCSI’.
The offence carries a maximum penalty of 15 years imprisonment and is the most serious charge in the assault hierarchy which can be dealt with summarily.
The Court didn’t give a guideline judgment, at least formally. (Neither party sought one, although that’s not required if the Court had wanted to hand one down.) Prior to Winch the most frequently cited case in relation to glassing incidents was R v Mills [1998] VSC 241. That case was also a glassing incident in a Mildura pub and has become a keystone of sentencing principle. It was discussed here a while ago.
The Crown conceded in the circumstances of Winch the head sentence of five years imprisonment for the offence was manifestly excessive. The Court of Appeal reduced the penalty to two years and nine months (with a non-parole period of fifteen months). The Court declined to suspend the sentence, even in light of what the prosecution conceded were very substantial matters in mitigation.
Maxwell P and Redlich JA [at 44],
44 In our view, the seriousness, and the prevalence, of glassing (RCSI) mean that general deterrence (and, where necessary, specific deterrence) must be given primacy in the sentencing synthesis. The approach which should be followed is, we think, that which was described by Batt JA (with whom Winneke P and Nettle JA agreed) in DPP v Lawrence [2004] VSCA 154 as follows:
… Youth and rehabilitation must be subjugated to other considerations. They must take a “back seat” to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved … This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that … the persons who commit the offence and wreak appalling injuries … are predominantly youths and young men acting under the influence of alcohol or drugs or both.
That was a case of intentionally causing serious injury but, for the reasons we have given, what was there said applies with equal force to ‘glassing’ as a serious instance of RCSI.
The majority decision concluded with a warning to lawyers advising their clients of the potential consequences of a guilty plea:
55 It follows, in our view, that sentencing judges should not regard themselves as constrained to follow the course disclosed by the glassing cases to which we have referred. Those advising clients in the future whether or not to plead guilty to RCSI in a glassing case should ensure that no assumption is made about the availability of a suspended sentence. For all the reasons we have given, a person who comes to be sentenced for RCSI, on a plea of guilty, for a ‘glassing’ offence – even with all the mitigating features to which we have referred – should proceed on the assumption that he or she will be required to spend a significant period of time in actual custody.
The judgment comes with a table of 15 glassing cases attached, taken from the Crown’s submissions to the Court. There’s currently no table for RCSI in the Judicial College’s Sentencing Manual. The Sentencing Advisory Council’s statistics are divided into the summary jurisdiction and the higher courts.
Ok. So the Court of Appeal reckons that if you smash somebody in the face in an unprovoked attack and leave them permenantly scarred you should not be leaving court through the front doors. Usually. But they don't want to seem harsh so they will leave it up to the sentencer to decide if each case is a “normal” case or one of those “special” cases that seems to be every single one the courts deal with.Break out the champers.The court said this was a serious case of RCSI. So that would make the starting point for an appropriate sentence in the County Court – say, half the maximum? That is what you would expect if the offence was of “average” seriousness. Remember this is a “serious” example. Knock off some time for the offender's “impressive” mitigation (he claims he doesn't drink anymore, he has a job, his family thinks he is the best thing since Jesus) but remember that the court have said that youth, rehabilitation etc is going to take a backseat to general deterrence here, so those things aren't going to count as much. So what is the result: about 5 years, yeah?No. The judge who imposed that sentence (with 3 actually to be served, of course) gets rapped over the knuckles for being too harsh and he gets resentenced to one-sixth of the maximum (with one-tenth actually to be served). So somebody guilty of a serious case of an offence gets one-tenth of the penalty allotted by Parliament. Yep, that will really send a message to drunk idiots.
Amen brother. And they wonder why their discretion gets taken away by mandatory sentencing. Use it or lose it.Tip of my hat, Crispy. Wag of my finger, Supreme Court
BRDman, you put the case for the prosecution passionately and persuasively.But if you are talking about general deterrence you would have to admit that increasing penalties will rarely change people's behaviour. I can see that it might make a difference to a mean drunk spoiling for a fight whether he thinks he will go to prison for his crime. (Not in all cases or even most, but possibly enough to justify the court's approach.) But I doubt that it makes much difference to him if the penalty is one year, or three, or five. If the prospect of one year of imprisonment is not going to stay his hand it is unlikely that any number plucked from the air is going to.There are also just desserts arguments but I have never seen them expressed as a coherent legal test. We do not live in an eye for an eye justice system. While there are many things I would like to see changed about our system that is not one of them.
Ok. So the Court of Appeal reckons that if you smash somebody in the face in an unprovoked attack and leave them permenantly scarred you should not be leaving court through the front doors. Usually. But they don't want to seem harsh so they will leave it up to the sentencer to decide if each case is a \”normal\” case or one of those \”special\” cases that seems to be every single one the courts deal with.Break out the champers.The court said this was a serious case of RCSI. So that would make the starting point for an appropriate sentence in the County Court – say, half the maximum? That is what you would expect if the offence was of \”average\” seriousness. Remember this is a \”serious\” example. Knock off some time for the offender's \”impressive\” mitigation (he claims he doesn't drink anymore, he has a job, his family thinks he is the best thing since Jesus) but remember that the court have said that youth, rehabilitation etc is going to take a backseat to general deterrence here, so those things aren't going to count as much. So what is the result: about 5 years, yeah?No. The judge who imposed that sentence (with 3 actually to be served, of course) gets rapped over the knuckles for being too harsh and he gets resentenced to one-sixth of the maximum (with one-tenth actually to be served). So somebody guilty of a serious case of an offence gets one-tenth of the penalty allotted by Parliament. Yep, that will really send a message to drunk idiots.
Amen brother. And they wonder why their discretion gets taken away by mandatory sentencing. Use it or lose it.Tip of my hat, Crispy. Wag of my finger, Supreme Court
BRDman, you put the case for the prosecution passionately and persuasively.But if you are talking about general deterrence you would have to admit that increasing penalties will rarely change people's behaviour. I can see that it might make a difference to a mean drunk spoiling for a fight whether he thinks he will go to prison for his crime. (Not in all cases or even most, but possibly enough to justify the court's approach.) But I doubt that it makes much difference to him if the penalty is one year, or three, or five. If the prospect of one year of imprisonment is not going to stay his hand it is unlikely that any number plucked from the air is going to.There are also just desserts arguments but I have never seen them expressed as a coherent legal test. We do not live in an eye for an eye justice system. While there are many things I would like to see changed about our system that is not one of them.
Ever seen a kid burn themselves on a hotplate? Even three year olds get the message. Don't touch the hotplate or you'll get burned. Seen a kid being warned about touching the hotplate? “C'mon now, Tommy! Don't touch it. Don't touch it. I SAID DON'T TOUCH … Oh, there there …”. (Guess what? He touched the hotplate.) I'm not saying we should let kids burn themselves. I'm saying that warning people that they are going to jail doesn't work. Sending them to jail does.
Ever seen a kid burn themselves on a hotplate? Even three year olds get the message. Don't touch the hotplate or you'll get burned. Seen a kid being warned about touching the hotplate? \”C'mon now, Tommy! Don't touch it. Don't touch it. I SAID DON'T TOUCH … Oh, there there …\”. (Guess what? He touched the hotplate.) I'm not saying we should let kids burn themselves. I'm saying that warning people that they are going to jail doesn't work. Sending them to jail does.
Poppycock.
Poppycock.