Arthars v The Queen

[2013] VSCA 258

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0158
PAUL ANDREW ARTHARS	Applicant
v
THE QUEEN	Respondent

S APCR 2012 0198

COREY JOHN PLATER	Applicant
v
THE QUEEN	Respondent

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JUDGES	REDLICH and COGHLAN JJA and T FORREST AJA
WHERE HELD	BALLARAT
DATE OF HEARING	31 May 2013
DATE OF JUDGMENT	20 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 258
JUDGMENT APPEALED FROM	R v Arthars & Anor (Unreported, County Court of Victoria, Judge Gaynor, 20 June 2012)

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CRIMINAL LAW – Intentionally causing serious injury – Sentencing – Whether need for explicit reference to principle of totality – Verdins limb 1 – Need for real connection between mental impairment and offending for reduction of moral culpability – Reliance on Verdins limb 5 – Sentencing judge not obliged to consider other limbs of Verdins – Romero v R (2011) 32 VR 486 applied.

Delay – Plea of guilty immediately before trial after very long delay – Meaning of ‘delay however caused’ in R v Merrett (2007) 14 VR 392 considered – Whether delay productive of unfairness and mitigatory.

Manifest excess – Worst category case – Victim attacked by group of armed men – Catastrophic injuries – Premeditation – Absence of provocation – Head sentences of 10 years imposed.

VICTIM IMPACT STATEMENTS – Whether content inadmissible – Section 8L Sentencing Act 1991 – Acquiescence as to content – Use of content by judge – Procedural fairness – R v Swift (2007) 15 VR 497 applied.

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Appearances:	Counsel	Solicitors
For the Applicant Arthars	Ms C A Boston	Mike Wardell Barrister & Solicitor
For the Applicant Plater	Mr J Williams	Victoria Legal Aid
For the Crown	Mr B Kissane	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA

COGHLAN JA
T FORREST AJA:

1. The applicants, Arthars and Plater, each pleaded guilty in the County Court on 16 May 2012 to one charge of intentionally causing serious injury.[1]  Arthars also pleaded guilty to one charge of trafficking in a drug of dependence (cannibis)[2] and Plater to one charge of possession of a drug of dependence (cannibis).[3]  Arthars was sentenced to nine years and six months’ imprisonment on the charge of intentionally causing serious injury and to six months’ imprisonment for the trafficking offence with the sentences to be served consecutively, making a total effective sentence of 10 years’ imprisonment.  A non-parole period of seven years was fixed.  Plater was sentenced to 10 years’ imprisonment for the intentionally causing serious injury offence and was fined $100 for possession of cannabis.  The non-parole period fixed for Plater was also seven years.

   [1]Contrary to s 16 of the Crimes Act 1958.

   [2]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981.

   [3]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.

1. Arthars seeks leave to appeal against each sentence.  Plater seeks leave to appeal against the sentence of 10 years’ imprisonment.

Factual background

1. The circumstances of the offending were as follows.  On 5 October 2008, at around 12.30am the victim, Michael Green (‘Green’) was near Plater’s home shouting, among other things, the names of Plater and his wife, and banging an object on the ground.  He then returned home.  Arthars was telephoned either by Plater, or by Plater’s daughter on his behalf.  Plater and Arthars then went to the victim’s house in Arthars’ car, together with three other men.  Plater was armed with a wooden stick or pole and at least some of the others were also armed with sticks, bats or clubs.

1. They went into Green’s front yard and called out to him.  A neighbour who witnessed the incident described Green as ‘pretty unsteady and wobbly on his feet almost falling over’.  The men gathered around Green and began to push, shove and punch him.  Green fell to the ground and attempted to cover his face as his aggressors continued to punch and kick him.  At one point, Green got up on all fours, whereupon Arthars kicked him in the stomach, throwing him backwards.  While Green was lying on the ground, Plater and Arthars each struck him to the head with the weapons they carried, on each occasion sandwiching his head between the weapon and the concrete.  Green lay motionless and the group ran off.  Arthars and Plater got into Arthars’ car and left.

1. Green underwent a craniotomy to relieve pressure on his brain, plastic surgery to his earlobe, orthopaedic surgery to the femur, and oral and maxillofacial surgery for a fractured mandible.  He suffered fractures to the skull, jaw and femur.  His injuries were critical, and he has subsequently been diagnosed with an acquired brain injury.  The assault has left him permanently disabled: he now suffers from speech difficulties, right-sided weakness and post-traumatic epilepsy.  He has undergone multiple operations and attended many medical appointments, and has been close to death on a number of occasions.

1. On 5 October 2008, police executed a search warrant at Plater’s house.  He was arrested and interviewed, variously making no comment and denying the offending.  He was released pending further enquiries.  Arthars was arrested on 17 October 2008, and also made no comment and denied the offending.  He was also released pending further enquiries.

1. Both Plater and Arthars were arrested and charged on 23 December 2008, as a result of telecommunications intercept warrants on their telephones.  The intercepted calls indicated a level of knowledge about the assault which was suggestive of their participation in it.  Both applicants were re-interviewed, and each again made variously no comment and denied the offending.  There was a contested committal, and the matter had been listed for trial before its ultimate resolution.  The guilty plea was entered at a very late stage, after a Basha enquiry had been conducted in relation to the only eyewitness to the assault.

The application of Arthars

1. Arthars’ grounds of appeal are as follows:

Ground 1:    The learned sentencing judge erred in failing to take into account the principle of totality;

Ground 2:    The learned sentencing judge erred in failing to take into account the effect of the applicant’s mental ill health on his moral culpability and to moderate/eliminate considerations of just punishment, denunciation and general and specific deterrence accordingly (Verdins limbs 1, 3 and 4);

Ground 3:    The learned sentencing judge erred in that the sentence imposed in respect of charge 1 and the non parole period gave rise to a justifiable sense of grievance when set against the sentence imposed on Plater;

Ground 4:    The learned sentencing judge erred in her treatment of delay;

Ground 5:    The learned sentencing judge erred in sentencing Arthars on the basis that he had been involved in retributive abuse of the complainant’s family;

Ground 6:    The sentences imposed on Arthars were manifestly excessive.

Ground 1 — Totality

1. The applicant submits that the learned sentencing judge failed to take into account the principle of totality, in that she ordered that the sentence for intentionally causing serious injury and the sentence for trafficking in a drug of dependence be served consecutively.  Citing R v Koumis & Ors,[4] the applicant submits that the fact that the judge did not explicitly refer to the totality principle in her sentencing remarks indicates a failure to take the factor into account at all.  This argument misconceives the proposition stated in Koumis that in circumstances where it can be said that a markedly difference sentence would have been imposed if the relevant factor had been taken into account, the failure to mention that factor in the sentencing remarks may be treated as indicative of a failure to consider that factor at all.  But as Ormiston JA observed in R v Nikodjevic,[5] one cannot expect sentencing judges to go through and deal in detail with every argument put on the plea.  The assumption ought ordinarily to be that the judge has taken into account those matters raised before the Court and has chosen to reflect them in the ultimate sentence, albeit without explicitly saying how or to what extent they have been taken into account.  Only if the factor is an obvious one which should have led to a significantly different disposition, may it sometimes be said that the failure to give reasons betokens an omission to take the factor into account at all.[6]

   [4](2008) 18 VR 434, 439-40 [63]-[64] (‘Koumis’).

   [5][2004] VSCA 222 (‘Nikodjevic’).

   [6]Ibid [19] (Ormiston JA) (emphasis added).

1. There is nothing in the sentences imposed or the order for full cumulation which betokens error.  Each sentence, along with the order for cumulation, reflects an appreciation of the gravity of the individual offence in accordance with the principles enunciated in DPP v Grabovac.[7]  As it cannot be said that markedly different sentences would have been imposed if totality had been explicitly referred to and considered, this ground is not reasonably arguable.

   [7][1998] 1 VR 664, 676-80.

1. Leave to appeal on this ground is refused.

Ground 2 — Verdins principles

1. In the applicant’s written case, it was said that the sentencing judge erred in failing to take into account the effect of the applicant’s ill health on his moral culpability and mental capacity, and in failing to consider Verdins principles 1, 3 and 4.[8]  In oral argument, counsel acknowledged defence counsel’s concessions on the plea that there was no causal link between the applicant’s mental illness and his

offending, and that Verdins principle 1 did not apply.  As such, counsel abandoned that part of the argument on this application.[9]

[8]See R v Verdins (2007) 16 VR 269, 276 [32] (‘Verdins’).  Principle 3 relates to the relevance of the offender’s impaired mental functioning to general deterrence for sentencing purposes, and principle 4 relates to its relevance to specific deterrence.  Principle 1 relates to the reduction in moral culpability that may result from the offender’s impaired mental functioning.

[9]See R v Romero (2011) 32 VR 486 (‘Romero’).

1. As we consider this concession to be correct, we should make reference to the several recent judgments of this Court in Tran v The Queen,[10] Latif v The Queen[11] and O’Donohue v The Queen,[12] which are said to have created  some uncertainty as to the requirement under the first principle stated in Verdins which we consider to be quite clear: namely, that there must be some real connection between the mental disorder and the offending behaviour the subject of the charge, before it can be suggested that any reduction in moral culpability, and consequent mitigation in sentence, ought to flow from that disorder.  In Tran, affirmed in Latif and O’Donohue,[13] Maxwell P and Neave JA referred to the observations of Maxwell P in Carroll v The Queen[14] that the impairment of mental functioning must contribute to the offending in such a way as to render the offender less blameworthy for the offending than he or she would otherwise have been.  He noted that though the question is often approached as one of causation, nothing in Verdins suggested that the only way to reduce moral culpability was to establish a ‘causal connection’.  He was there emphasising that the connection need not satisfy the legal requirements of causation.  Although only item (f) of the various ways listed in Verdins in which a mental disorder may operate to reduce moral culpability makes explicit reference to a ‘causal contribution’ to the offence,[15] each of the ways listed presupposes some nexus between the mental impairment and the offending behaviour.  Each contemplates that the disorder was operative at the time of the offence and that it contributed to, in some way is connected to or explains the offending.  

   [10][2012] VSCA 110 (‘Tran’).

   [11][2013] VSCA 51, [80]-[86] (Weinberg and Harper JJA).

   [12][2013] VSCA 196.

   [13]Ibid [25] (Nettle JA, with whom Coghlan JA agreed).

   [14][2011] VSCA 150.

   [15]Verdins (2007) 16 VR 269, 274 [26].

1. The relationship between the disorder and the offending conduct has been described as ‘a realistic connection,’[16] and as requiring ‘cogent evidence’ of that relationship,[17] and as ‘sufficiently contribute[ing] to the offending to warrant mitigation’.[18]  In Charles v The Queen,[19] Robson AJA said:

   [16]R v Vuadreu [2009] VSCA 262, [37].

   [17]R v Zander [2009] VSCA 10, [29].

   [18]Sikaloski v The Queen [2012] VSCA 130, [33].

   [19](2011) 34 VR 41 (Redlich and Harper JJA agreeing).

The following principles may be discerned from [the foregoing examination of the relevant authorities] when dealing with the establishment of a link between a mental condition and the offending conduct.

…

5        The offender must establish that the offender’s disability had the effect of impairing the offender’s ability to exercise appropriate judgment, or impairing the offender’s ability to make calm and rational choices or to think clearly at the time of the offence.

6        Verdins has no application in respect of a mental condition postulated to have existed at the time of the offending unless the condition relied upon can be seen to have some ‘realistic connection’ with the offending;  or ‘caused or contributed’ to the offending;  or is ‘causally linked’ to the offending.[20]

[20]Ibid 69-70 [162] (emphasis added).

1. The cases in this court which have approached the relationship between the disorder and the offending conduct in this way are too many to recite.  Whenever the offender’s mental impairment can be said to have contributed to or has a real connection to the offending behaviour, Verdins principle 1 is enlivened.  There can be no justification for a reduction in moral culpability unless the mental impairment at least has  that  degree of relationship  with the offending.  

1. Returning to the applicant’s argument, it was also acknowledged that only Verdins principle 5,[21] that prison would be more onerous due to the applicant’s mental impairment, was relied upon on the plea.  The applicant contended that as defence counsel had made an extensive submission on the plea regarding the mental ill health of the applicant and had made no concession that Verdins principles 3 and 4 were inapplicable, the learned sentencing judge’s failure to apply these principles amounted to specific error on her part.

   [21]The existence of a mental impairment at the date of sentence is relevant to the sentencing process because of the possibility that a prison sentence may weigh more heavily upon the offender than upon a healthy person.

1. That submission cannot be sustained.  It reflects a misunderstanding of the obligation which resides with counsel for the offender.  As the decision in Romero emphasised, the applicant is precluded from raising arguments on appeal which were not explicitly relied upon on the plea.  In Romero the offender suffered from a mental impairment.  He argued on appeal that the principles in Verdins ought to have been taken into account by the sentencing judge where they has not been raised on the plea.  Redlich JA stated as follows:

In sentencing appeals, this court is reviewing the exercise of a discretionary judgment.  It is not a rehearing of the plea in mitigation. It is not the occasion for the revision and reformulation of the case presented below.  Given the nature of its supervisory role, this court will not lightly entertain arguments that could have been, but were not advanced on the plea.  It will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of the submissions previously made.  The revivication of arguments abandoned or eschewed on the plea is highly undesirable and should not be countenanced, save where fresh evidence is adduced, or in the exceptional circumstance where it can be shown that there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence.[22]

[22](2011) 32 VR 486, 489-90 [11] (emphasis added).

1. Counsel for the applicant did not make an explicit concession that Verdins principles 3 and 4 did not apply, but he relied only on principle 5 and therefore, by implication, was not placing reliance on any other principles.  

1. The course followed at the plea precludes those principles being raised now.  It is neither the responsibility of the sentencing judge nor of this court to examine the evidence to ascertain whether it could have been used in a way other than that chosen by counsel at the hearing below.  That said, in any event the sentencing judge did not regard the level of mental disorder of the applicant to be such as would in our view enliven the application of those principles. Nor is this a case which  involves the introduction of fresh evidence, or the kind of exceptional circumstances referred  to in Romero. 

1. We would not grant leave on this ground.

Ground 3 — Parity

1. The applicant argues that the sentence imposed upon him in relation to Charge 1, and the non-parole period fixed, were such as to give rise to a justifiable sense of grievance when considered against the sentence and non-parole period imposed for the same offence on Plater.  The sentencing judge recognised there were material differences between the two offenders, being Plater’s criminal history, which includes some prior convictions for offences involving violence, and Arthars’ mental disorder.  The applicant also mentions the ‘respective criminality’ of the offenders.  Her Honour’s view, which is not challenged on appeal, that both applicants played equal roles in the violent offending provided the foundation for her approach to their sentences.[23]  It is evident that her Honour did not consider that the personal differences between Arthars and Plater warranted any more than the six month differential in the sentence imposed on each of them on the first charge.  Her Honour also noted that such disparity was made up for by the fact that Arthars fell to be sentenced for trafficking in cannabis.  Such an approach was entirely open to her Honour.

   [23]Reasons, [43].

1. We refuse leave to appeal on this ground.  

Ground 4 — Delay

1. The violent offending of which Arthars was convicted took place in October 2008, with the drug offence occurring over a period from October to December of the same year.  As such, there was a delay of almost four years between the laying of charges and the matter coming before the court.  The delay was caused in part by the fact that the trial was listed as a circuit matter and was therefore subject to the delays associated with being given lower priority than other matters, and also by the applicant’s extremely late plea and failure to co-operate with authorities.  The delay was explicitly considered by her Honour.  She noted that both applicants had reformed during the interim, and fell to be sentenced, ‘at a time in your lives when each of you is living under considerably changed circumstances and for the better.’[24]

   [24]DPP v Arthars and Anor (Unreported, County Court of Victoria, Judge Gaynor, 20 June 2012) (‘Reasons’), [37].

1. Notwithstanding that the applicants’ reform during the delay was taken into account, the applicant relies upon the unfairness of the strain and anxiety suffered by the applicant as a result of the delay as a discrete mitigating factor.  

1. The justification for taking delay into account as a mitigating factor rests upon the twin considerations of rehabilitation and fairness.  Chernov JA in R v Cockerell,[25] in a statement subsequently affirmed in R v Tiburcy,[26] expresses these principles thus:

First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation.  Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her.  Further, as Vincent AJA has pointed out in Schwabegger, there is an obvious inconsistency between the claim by the prosecution that the offence is a serious one on the one hand and the seemingly leisurely progress of the prosecution on the other, leading to a justified sense of unfairness in the offender.[27]

[25](2001) 126 A Crim R 444 (‘Cockerell’).

[26][2006] VSCA 244.

[27](2001) 126 A Crim R 444, 447 [10].

1. Counsel for the applicant, in oral submissions, relied upon Maxwell P’s remarks in R v Merrett, Piggot and Ferrari[28] that the effect of the lapse of time on the accused, ‘however caused,’ is a powerful mitigating factor.[29]  Thus it was contended that regardless of the fact that the delay may have been caused by the appellant’s unwillingness to plead guilty until a trial date was imminent and despite the overwhelming evidence against him, the unfairness associated with having the matter hanging over his head should have been taken into account as a factor in mitigation.  

   [28](2007) 14 VR 392 (‘Merrett’).

   [29]Ibid 400 [35].

1. In Merrett, the delay in question was caused in part by an inexplicable tardiness on the part of Victoria Police in bringing charges, combined with the applicants’ decision to contest those charges.  There was no last-minute decision to plead guilty in the face of a very strong prosecution case, as there was here.  Maxwell P’s remarks occurred in the context of discussion as to whether the fact that the prosecution delay was unexplained was of relevance when assessing the degree to which it ought to be taken into account for sentencing purposes.[30]  In such a  context, it is the effect of any delay on the accused which ought to be considered, rather than whether the delay is explicable.  Any delay caused merely by the exercise of the right to contest criminal charges and have the matter proceed to trial will never be regarded as the ‘fault’ of the accused for these purposes.

   [30]Ibid 400 [34]-[35].

1. When considering whether a delay requires  the element of fairness to be taken into account as a mitigating factor, the court must have regard to the degree to which the accused had control over the length of that delay.  The observation in Merrett is not to be understood as suggesting otherwise.  Delay which is caused by prosecutorial process or the administration of the courts will carry more weight as a mitigating factor than any delay which is attributable to the actions of the offender.  In R v Cockerell, Chernov JA (Winneke P and Buchanan JA agreeing) noted that delay which ‘cannot be attributed to the offender’ will constitute a powerful mitigating factor in sentencing;[31] in R v Tiburcy,[32] Maxwell P (Warren CJ and Buchanan JA concurring) referred to delay which was not ‘solely or even partly the fault of the accused’;  and in R v Whyte, Winneke P (Bongiorno and O’Bryan AJJA agreeing) refused to disturb the finding of the judge below that delay, where ‘self-inflicted’ by the applicant, will carry little weight as a mitigating factor.[33]

   [31](2001) 126 A Crim R 444, 447 [10].

   [32](2006) 166 A Crim R 291, 296 [25].

   [33](2004) 7 VR 397 (‘Whyte’), 404-5 [24]-[26].

1. Every case is different and the factors seen properly to affect the exercise of the sentencing discretion will vary according to circumstance.  As Ormiston JA remarked in Nikodjevic:  ‘one should therefore be cautious about asserting that there is a right to some automatic discount in every case of asserted delay’.[34]  As such, an accused who pleads guilty, co-operates fully with prosecutorial authorities, and is still subject to an inordinate delay between the laying of charges and sentence for reasons beyond their control, will be entitled to have that delay taken into account as a ‘powerful mitigating factor to be given due recognition in the sentencing disposition’.[35]  Where an accused absconds from bail or otherwise avoids being brought to justice,[36] or causes delay by refusing to provide any assistance to prosecutorial authorities, the significance of delay as a mitigating factor will be significantly reduced, despite having entered a plea of guilty,[37] even to the point of giving less credit for rehabilitation established during that period.[38]

   [34][2004] VSCA 222, [22].

   [35]Cockerell (2001) 126 A Crim R 444, 447 [10] (Chernov JA).

   [36]Whyte (2004) 7 VR 397, 404 [24].

   [37]See Day v The Queen [2011] VSCA 243 (Nettle JA).

   [38]Whyte (2004) 7 VR 397, 404 [24].

1. The conduct of the applicant falls into the latter category.  The anxiety and stress brought about entirely by the applicant’s own refusal to co-operate with the prosecution until he reached the very door of the court and pleaded guilty need not be taken into account in sentencing.  It was accepted at the hearing that the applicant had made no attempt to have his trial listed in Melbourne so as to avoid the long delay that would eventuate if it was to be heard in Ballarat.  As Nettle JA observed in Day v The Queen:

As a matter of principle […], given that one of the significant informing considerations in allowing a discount for delay is that the offender has had the prospect of punishment hanging over his head for an inordinate period, and has to that extent already been punished, it would be both illogical and contrary to ordinary notions of justice and fairness if a sentencing judge were precluded from taking into account the extent to which the offender has stood by declining to do whatever he or she could do to bring the matter to fruition.[39]

[39]Day v The Queen [2011] VSCA 243, [18].

1. Any consideration of the anxiety caused to an accused in such circumstances would ordinarily be minimal.  In Jackson v The Queen,[40] decided with reference to Merrett, this Court refused to find that the judge below had erred in failing to give significant consideration to delay as a mitigating factor, where that delay was caused by the accused only entering a plea on the first day of the trial.  In R v Mouhamed,[41] Hayne JA (Phillips CJ and Southwell AJA agreeing) refused to take into account delay for the purposes of mitigation where the applicant’s decision to withdraw his plea of guilty, and then reassert it, led to a nine-month delay.

   [40][2013] VSCA 14.

   [41](1995) 118 FLR 98.

1. We reject the submission that the judge below failed to adequately consider the unfairness arising from delay as a mitigating factor in formulating the sentence.  Her Honour, as we have said, gave proper consideration to the delay to the extent that it bore upon rehabilitation.[42]  Her Honour correctly placed no weight on the delay, inasmuch as it was caused by the applicant’s own intransigence.  This court should not encourage a state of affairs in which a defendant delays sentence by asserting an intention to stand trial in the face of an overwhelming prosecution case, and then at the door of the court pleads guilty and relies upon considerations of unfairness arising from the delay as relevant to mitigation of their sentence.

   [42]Reasons, [37].

1. We would refuse leave to appeal on this ground.

Ground 5 — Victim Impact Statements

1. The applicant submits that the sentencing judge erred in sentencing him on the basis that both he and his co-offender, Plater, had been involved in retributive abuse of the Green family.  In her sentencing remarks, her Honour said:

I am not satisfied, however, that your pleas of guilty amount to any great expression of remorse by either of you.  They were made very late in the piece in the face of what was in my view a strong prosecution case.  You were both involved in nasty retributive abuse of the Green family.[43]

[43]Reasons, [41] (emphasis added).

1. It is submitted that the Victim Impact Statement of Christopher Campbell, which made reference to threats and harassment by ‘the perpetrators’ after the assault occurred, and that of Dannii-Maree Green, which contained references to harassment by the Platers, were impermissibly relied upon by her Honour in making the above remarks. The prosecutor read out both statements at the plea hearing for Plater, deliberately omitting the portions mentioning the harassment. Both statements were then tendered on the understanding that any inadmissible sections would not be taken into account. The inadmissible content was not explicitly identified. The applicant’s submissions on this point refer, firstly, to the ambiguous content of the statements, and their consequent unsuitability as a basis for an inference about the occurrence of any such harassment; secondly, to the inadmissibility of the relevant parts of the statements, due to their failure to comply with the terms of s 8L(1) of the Sentencing Act 1991 (Vic);[44] and thirdly, to the denial of procedural fairness implied in the sentencing judge’s reliance on them.

   [44]Section 8L(1) states that a victim impact statement contains particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence.

1. Section 8L(3) of the Sentencing Act states that the courts may rule as inadmissible all or part of any Victim Impact Statement.  The criteria for admissibility are not addressed in the statute, and are therefore largely left to the common law.[45] The content of victim impact statements may be taken into account by a sentencing judge despite being inadmissible. The judge must however make plain to counsel that he or she intends to make full use of relevant material, including material that goes beyond the ambit of s 8L.[46]  It may then be used where there is express or tacit acquiescence by counsel for either side.[47]

   [45]See R v Swift (2007) 15 VR 497 (‘Swift’), 498 [4]. The predecessor to s 8L discussed in Swift does not differ materially from the present legislation.

   [46]Ibid 499 [8].

   [47]R v R (1999) 106 A Crim R 288, 292 [18] (‘R’).

1. The applicant argues that such acquiescence must be fully informed and that in this case, the judge had not made plain to his counsel that she intended to rely upon the content of the statements.  We do not agree.  The applicants’ pleas in mitigation were heard together.  After the Victim Impact Statements had been read out by the prosecution in Plater’s plea, her Honour said:

That there [sic] appalling statements made [to the victim’s family] by your client it would appear and I’ll hear obviously from Mr Arthars’ counsel as well but the aftermath was just appalling.

1. The reference to Arthars’ counsel makes it clear that her Honour intended to take the content of the statements into account in relation to both applicants.  The contention that counsel for Arthars was unaware of this intention is untenable, as is the claim that the applicant was denied procedural fairness in this respect.  Arthars’ counsel did not object at the plea to what is said to be inadmissible parts of the Victim Impact Statements in order to prevent the sentencing judge’s reliance upon them.  There is no basis for the argument that the content of the statements should not have been relied upon.

1. Furthermore, were it the case that the sentencing judge had improperly relied upon inadmissible material in sentencing Arthars, we would not regard this as constituting a material error, as the material in question was treated as evidence of remorse.  Her Honour’s findings about the applicant’s lack of remorse had as their foundation the extreme lateness of his plea, which occurred in the face of a strong prosecution case;  his attempts to discover what was being said about the incident on the police scanner in its immediate aftermath;  and his denial of involvement in two police interviews, despite having previously admitted involvement to Ms Grieve via phone call and text message.  The Victim Impact Statements could only have reinforced a conclusion that the sentencing judge had already reached, and which was open to her on the evidence.

1. We refuse leave to appeal on this ground.

Ground 6 — Manifest excess

1. Finally, the applicant submits that the individual sentences, the degree of cumulation and the non-parole period are each manifestly excessive, having regard to the applicant’s plea of guilty, good prospects of rehabilitation, limited criminal history, mental ill health and intoxication at the time of the offending, in combination with the delay in court proceedings, short duration of the offence, lack of premeditation, degree of provocation, current sentencing practices, maximum penalty and the principles of totality.

1. Upon examination a number of these factors are not matters that can be characterised as mitigatory, even though they were referred to in the sentencing remarks.  The fact that the assault was of a relatively short duration is not a matter in mitigation.  Save as to the applicant’s prospects for rehabilitation the delay was, for the reasons we have set out, not a mitigatory factor.  The argument relating to totality, as already stated, is without substance.  Although her Honour acknowledged that the offending occurred whilst the applicant was influenced by alcohol, which had a disinhibiting effect and caused him to make decisions he may not have otherwise,[48] this would only constitute a mitigating factor in the rarest of circumstances.[49]

   [48]Reasons, [38].

   [49]See Hasan v R (2010) 31 VR 28, 37 [33]; R v Phillips [2000] VSCA 225, [10]; R v Angus (Unreported, Court of Appeal, 1 February 1996), 9.

1. The submissions as to provocation and lack of premeditation which were pressed in oral argument are without any merit.  The sentencing judge described the offending as ‘rash’ and ‘impulsive’[50] but it is plain from the uncontroversial circumstantial evidence that the offence was premeditated.  The applicant was one of a group of five men who met and drove in a car to the victim’s house, armed and with the intention of committing an assault upon him.  The victim was lured out of the house before being set upon by the entire group.  There was a degree of planning in the assault’s execution which precludes any argument that it was not premeditated.

   [50]Reasons, [38].

1. The attendance of the victim at Plater’s house some time earlier, his yelling and striking the ground with an object before leaving, cannot constitute provocation which could mitigate the violent offending which followed.  The argument misconceives the role that provocation can play in determining criminal responsibility.  The case of R v Okutgen,[51] cited by the applicant, is not analogous.  It involved a violent altercation which suddenly broke out between two men, over an incident in which the vehicle of one had blocked the passage of the other’s vehicle through traffic.  The effluxion of time, the premeditated plan by the applicants and others and the lack of proportionality in their response does not allow for any notion that the victim’s conduct constituted mitigatory provocation.

   [51](1982) 8 A Crim R 262.

1. The sentencing judge in her careful reasons took account of the plea of guilty,[52] the applicant’s limited criminal history,[53] his good prospects of rehabilitation[54] and his mental ill health,[55] in a manner which was entirely appropriate.

   [52]Reasons, [37], [41].

   [53]Ibid [27].

   [54]Ibid [38].

   [55]Ibid [26], [28], [31], [43].

1. Finally, the circumstances of this case place it in the worst category of offending.  As this Court made clear in Hudson v The Queen,[56]

   [56](2010) 30 VR 610.

the sentence under challenge will not fall outside the range because there are other types of ‘worst’ cases arguably more serious which have attracted the same penalty or cases no less serious which have attracted lesser penalties.[57]

Each case must turn upon its own unique circumstances.  The circumstances of this offending were particularly heinous.  We are inclined to adopt the view of Harper JA as expressed in Robbins v The Queen, that ‘it is invidious, when examining current sentencing practices, to attempt to compare one example of extreme violence, and one set of horrific consequences, with another.’[58]  Some guidance can however be drawn from the cases of DPP v Terrick[59] and Ali Ali v The Queen,[60] both of which represent extremely serious examples of this offence, and both of which ultimately involved substantially higher sentences than that which is here appealed.  In Terrick, three co-offenders had, without any provocation whatsoever, launched a violent and sustained attack upon a complete stranger which left him profoundly disabled.  Two of the co-offenders were sentenced to nine years’ imprisonment with a non-parole period of seven years, and the third received an eight year sentence with a non-parole period of six years.  On an appeal by the Director of Public Prosecutions, all three were re-sentenced to a total effective sentence of 11 years and six months, with a non-parole period of nine years.  Several of the aggravating factors involved in their offending were identical to those present here: namely, that the attack on the victim was unprovoked;  that the attack continued after the victim had fallen to the ground and was unable to defend himself;  and that the victim sustained very severe injuries.[61]  Further, and relevantly, it was noted by the Court in that case that the fact that all three co-offenders had acted together made the assault more serious:

[t]hese offences arose out of a vicious and sustained attack by three men acting together.  An assault in company is more frightening and – almost always – more lethal than an assault by one, not least because the action of each tends to encourage the others.  It is also more cowardly, because of the overwhelming physical superiority of the attackers.  Here, the victim was an innocent passer-by walking in a public place.He offered neither provocation nor retaliation.[62]

[57]Ibid 616 [26].

[58][2012] VSCA 34, [46].

[59](2009) 24 VR 457 (‘Terrick’).

[60][2010] VSCA 182 (‘Ali’).

[61]Terrick (2009) 24 VR 457, 476 [77].

[62]Ibid 477 [82] (emphasis added).

1. In Ali, the appellant had launched an unprovoked attack upon another man with whom he shared a prison cell, beating him to unconsciousness and causing severe physical injuries, including a brain injury.  He was sentenced to 15 years’ imprisonment with a 12 year non-parole period, a sentence which this Court refused to overturn on appeal.  Again, there were several features present which are repeated in this case, in that the attack was unprovoked and continued when the victim was on the floor and unable to defend himself;  that the victim offered no resistance;  and that the victim was ultimately left brain damaged.

1. In the present case the victim was lured out of his home in the middle of the night and ambushed by a group of armed men.  The attack upon him continued when he was lying on the ground, unable to defend himself.  The injuries he suffered, and the impact upon his partner and children, have been catastrophic.  We are not persuaded that the sentence in this case was beyond that reasonably open to the sentencing judge.  Nor has it been shown that the sentence on the charge of drug trafficking or the order for cumulation were beyond a reasonable exercise of the sentencing discretion.

1. Finally, we should state that if any of the grounds of appeal had been made out we would not have imposed a different sentence.  The offence for which the applicant was sentenced was an extremely serious one, involving a sudden and brutal attack, by a number of aggressors, on a victim who was ultimately lying prone on the ground and was unable to defend himself.  The injuries caused to the victim were catastrophic and could easily have been fatal.  He has been left permanently disabled.  The sentence imposed was well within the range of sentences available for a case that fell within the worst category.

1. The application for leave to appeal against sentence  must be dismissed.

Plater’s application

1. Plater seeks leave to appeal on the ground that his sentence was manifestly excessive.

1. In support of the proposed ground, the applicant argued that insufficient weight was given to the plea of guilty, to the question of delay (coupled with efforts to reform himself), and to  his relatively limited criminal history.  It was further submitted that the offending conduct was impulsive and rash and that the sentence imposed was particularly high having regard to current sentencing practices.

1. We note that the applicant conceded on the appeal that  he had been involved in  the retributive conduct  the subject of the victim impact statements the subject of ground 5 of Arthar’s appeal. It was not suggested that the sentencing judge erred in taking that into account as bearing upon his level of remorse, notwithstanding his plea of guilty.

1. Many of the arguments advanced on behalf of Plater as to why this offence should not be placed in the worst category were also advanced on behalf of Arthars’ manifest excess ground and may be dealt with in the same way.  The applicant relied upon provocation, that the attack was of short duration and that the consequences were unintended. We  have dealt with some of those contentions at  paragraphs [42] to [49]. He also contended that he was considerably affected by alcohol.  That is not a mitigatory  circumstance.

1. The applicant also relied upon the delay in the matter coming before the court.  The applicant was entitled to little by way of  mitigation  for the unfairness  of having the matter hanging over his head. We have addressed the same contention in the case of Arthars  at  paragraphs [23] to [32] above.  However he had taken advantage of the delay  to advance his rehabilitation.

1. The sentencing judge made a significant finding in favour of the applicant concerning his prospects for rehabilitation.  Although the applicant had been involved in a further violent incident while on bail for this offending, he had, as a result of the further offending, moved to Geelong.  In fact it had been a condition of bail for that  further offending that he leave Ballarat.  Her Honour was impressed with the evidence  placed before her, including evidence from the applicant’s father, and ultimately concluded that his prospects of rehabilitation were good and had particular regard to it.[63]  Her Honour did accept that the applicant had used the time which had passed since the offending to better himself. 

   [63]Reasons, [38].

1. As  we have already said, this offending was of an extremely serious nature. Although both applicants disputed that this should be placed in the worst category of offending for this offence, those submissions cannot be sustained. Allowing that  the punitive sentencing principles of deterrence and the extreme injuries suffered by the victim should not swamp all other relevant considerations, we are not persuaded that the sentence imposed fell outside a sound exercise of the sentencing discretion.

1. The application for leave to appeal against sentenced is dismissed.

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