The other day I mentioned in passing an attempt by the DPP to persuade the Court of Appeal to prioritise general deterrence above current sentencing practices for the offence of recklessly causing serious injury under s 17 of the Crimes Act. The case was Winch v The Queen [2010] VSCA 141, and we discussed it here last year.

The only really clear message that emerged from Winch was that striking someone with a glass cup or bottle (with all the potential for injury that involves) should not be considered less serious than assaults with other kinds of weapons. What the circumstances lack in preparation, the Court said, they make up for by how commonly it occurs. There was an acknowledgment that the majority of sentences handed out amount to only a small proportion of the maximum penalty provided by parliament, but despite some tough language the judgment didn’t go further than saying an immediate prison term will ordinarily be appropriate.

Maxwell P and Redlich JA [at 53]:

[I]in a glassing case (where the offender is being sentenced for RCSI) the full suspension of a custodial sentence will not ordinarily be an available sentencing option. The objective gravity of the offence will usually require a term of immediate imprisonment. This approach is necessary, in our view, if the courts are to give appropriate effect to the maximum penalty — which marks out the sentencing parameters — and to general deterrence, and to recognise the objective seriousness of ‘glassing’ as an instance of RCSI.

Glassing cases should, in our view, be treated as being in the same category as other RSCI offences which involve the use of a dangerous weapon likely to produce serious injury. There is no warrant for placing these cases in a lower category of seriousness where an immediate custodial sentence is not ordinarily required.

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.

White v The Queen [2010] VSCA 261 confirmed that the Court of Appeal didn’t intend to increase the usual tariff for RCSI offences. Buchanan and Neave JJA considered a case where the appellant had struck his brother-in-law a blow to the head with an iron bar after a domestic dispute. The appellant admitted being present but denied striking the blow, and took the matter to trial in the Supreme Court, where he was found guilty by jury of the RCSI charge. He was sentenced to seven years imprisonment, with a minimum of four to be served.

The appeal asserted that the sentence was outside the range of current sentencing practices; only 5 of 505 sentences for that offence had, in recent years, exceeded 7 years. It was acknowledged that 88% of such charges are dealt with in the Magistrates’ Court, where the sentence available is statutorily limited to 2 years. The Court quoted Ashley, Redlich and Kellam JJA in DPP v Maynard [2009] VSCA 129 when they said [at 35] that statistics, by themselves, do not establish a sentencing practice.

It’s notable Winch was quoted in that case [at 42] in support of the penalty being reduced, not affirmed.

The facts in Giannoukis occurred in the typical context of a fight between young men in a club. The evidence disclosed the respondent was less culpable than might usually be expected, but he did flee the scene and the injury was significant. The sentencing judge awarded a suspended sentence, which the DPP appealed. Certain factual findings of the sentencing judge about the circumstances of the offence were unsuccessfully challenged. The term of imprisonment was increased on the appeal, but was suspended.

Neave JA reviewed the cases of Trowsdale v The Queen [2011] VSCA 81, Ellis v The Queen [2011] VSCA 296, DPP v Gerrard [2011] VSCA 200 and DPP v Aslan [2010] VSC 518. Her Honour’s analysis [33 – 41] conveniently summarises recent developments regarding the offence.

The potted history ends with a quote from Whelan J in Aslan where it was said [at 21],

The Court of Appeal has recently made it very clear that the seriousness and prevalence of this type of offence mean that general deterrence and, where necessary, specific deterrence must be given primacy in the sentencing synthesis. General deterrence is very important here. At the risk of oversimplification, the courts must strive to send this message: glassing means jail.

Neave JA added [at 24],

There is no doubt that the imposition of a suspended sentence requires two distinct steps. As Kirby J said in Dinsdale v The Queen (2000) 202 CLR 321:

The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a ‘soft option’ when the court with the responsibility of sentencing is ‘not quite certain what to do’.

Neave JA found Giannoukas had strong mitigating factors that warranted the suspension of his sentence. Courts may need to send the message that glassing will mean jail, as Whelan J said, but that doesn’t mean imprisonment will always be the appropriate penalty.