Ashdown v The Queen
[2011] VSCA 408
•7 December 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0649 | |
| BRADLEY ASHDOWN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, ASHLEY and REDLICH JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 18 May 2010 | |
| DATE OF ORDERS | 17 December 2010 | |
| DATE OF JUDGMENT | 7 December 2011 | |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 408 | 1st Revision 3 September 2012 [191] |
| JUDGMENT APPEALED FROM | R v Ashdown (Unreported, County Court of Victoria, Judge Pilgrim, 21 May 2009) | |
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CRIMINAL LAW – Appeal – Sentence – Recklessly causing serious injury – Punch to face – Multiple facial fractures – Offender on suspended sentence for assault – Guilty plea – Sentence of 5 years – Whether manifestly excessive – Sentence outside range reasonably available – Resentenced to 3 years and 6 months’ imprisonment.
CRIMINAL LAW – Sentencing – Current sentencing practices – Recklessly causing serious injury – Director contending current sentencing practices inadequate – Whether commensurate with objective gravity of offence – Consideration of circumstances in which appeal court may express view about adequacy of current sentencing practices – Whether gap between maximum penalty and current sentencing practice alone provides basis upon which to uplift sentencing practice – Whether opinion as to adequacy of current sentencing practice must be a live issue for resolution in the appeal – Sentencing Act 1991 (Vic) s 5(2)(a), (b).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R F Edney | Robert Stary & Associates |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
The appellant pleaded guilty to one count of recklessly causing serious injury (‘RCSI’), for which he was sentenced to five years’ imprisonment, and one count of assault, for which he was sentenced to six months’ imprisonment. The sentences were ordered to be served cumulatively upon each other.
On 17 December 2010, the Court allowed his appeal, quashed the sentences and resentenced the appellant. The details of the resentencing (which included the restoration of a suspended sentence) are set out in the reasons of Ashley JA, which I have had the advantage of reading. The most significant alteration was the reduction in the sentence for RCSI to three years and six months.
The maximum penalty for RCSI is 15 years’ imprisonment. As will appear, a sentence of five years’ imprisonment for an offender who pleads guilty to this offence is exceptionally high under current sentencing practices. For the reasons given by Ashley JA,[1] with which I respectfully agree, the circumstances of this case did not warrant a sentence at the highest end of current sentencing practice.
[1][115]–[124].
The appellant was resentenced in accordance with current practice. Unconstrained by current sentencing practices, however, I would have regarded the sentence as unimpeachable.[2] My reasons are as follows.
[2]Cf Hasanv The Queen [2010] VSCA 352, [42] (‘Hasan’): see [48]–[55] below.
Current sentencing practices and sentencing range
The applicable sentencing range for an offender who pleads guilty will to a substantial degree be determined by current sentencing practices.[3] This is so for three reasons. First, the sentencing judge is required by statute to have regard to current sentencing practices.[4] Secondly, the offender’s plea of guilty will have been entered on the reasonable assumption that his/her sentencing will be in line with current practice.[5] Thirdly, as this Court has repeatedly emphasised, consistency of sentencing is a fundamental objective of the criminal law. The rule of law requires that like cases be treated alike.[6]
[3]Winch v The Queen (2010) 27 VR 658, 663, [23]–[24] (‘Winch’); see also Wills v The Queen [2010] VSCA 235, [15]–[18].
[4]Sentencing Act 1991 (Vic) s 5(2)(b).
[5]DPP v C P D (2009) 22 VR 533, 549 [69]; DPP v D D J (2009) 22 VR 444, 460 [65].
[6]Winch (2010) 27 VR 658, [24]; White v The Queen [2010] VSCA 261, [42]; Hasan [2010] VSCA 352, [48]–[51].
This appeal was heard together with the appeal in Winch.[7]In each case, the primary ground of appeal was that the sentence imposed was manifestly excessive. That ground could only succeed if the sentence imposed was shown to be outside the range reasonably open to the judge in the circumstances. Conversely, in resisting the appeal, the Crown would be seeking to establish that the sentence was within range. Accordingly, in granting leave to appeal in each matter, I had directed the Crown to file a submission identifying what it said was the applicable sentencing range for the offender in question.[8]
[7]Winch (2010) 27 VR 658.
[8]R v MacNeil-Brown (2008) 20 VR 677.
The Crown was directed to support its submissions on sentencing range in both appeals by a compilation of all instances of sentencing in the County Court for the offence of RCSI in the three-year period 2007–09. In the event, some 276 individual RCSI sentencing decisions were tabulated in summary form. This was an enormous task, far greater in scale than might have been anticipated, but the work has been of great assistance.
It should be noted that no submission was sought from the Crown, and none was foreshadowed, as to the adequacy of current sentencing practices for RCSI. As will appear, that issue was raised for the first time in the Crown’s written submissions for the appeals.
What is current sentencing practice for RCSI?
Counsel for the appellant relied on statistical data produced by the Sentencing Advisory Council (‘SAC’) in its 2010 Sentencing Snapshot for RCSI.[9] During the five‑year period 2004–5 to 2008–9, 560 people were sentenced in the higher courts for RCSI. (As counsel pointed out, most offenders sentenced for this offence are dealt with in the Magistrates’ Court. This can occur where the defendant consents and the magistrate is of the view that it is appropriate for the case to be heard in that court.)
[9]Sentencing Advisory Council, Sentencing trends in the higher courts of Victoria 2004–5 to 2008–9: Causing serious injury recklessly, Sentencing Snapshot No 94 (March 2010).
| Imprisonment Partly suspended sentence Wholly suspended sentence Community-based order | 37 per cent 8 per cent 27 per cent 12 per cent |
For those 560, the breakdown of sentencing dispositions was as follows:
The SAC survey also showed that, over the five-year period, the median term of imprisonment for RCSI was two years. This means, as the SAC explained, that half of those sentenced received sentences above, and half below, two years’ imprisonment. Two years was also the most common sentence of imprisonment. The average was two years and three months.
Importantly for present purposes, only 11 of the 212 persons sentenced to immediate imprisonment received a longer imprisonment term on the RCSI count than the appellant did. Hence the appellant could justifiably submit that his sentence lay ‘at the statistical extreme’. For its part, the Crown acknowledged that only 19 of the 560 persons sentenced had received a sentence of five years’ imprisonment or more. This meant that ’96.6 per cent of offenders [sentenced in the higher courts] received a lesser sentence than that imposed on this appellant.’
The limitations of aggregate statistics are well recognised, but they make a very powerful point when used in this way. By identifying the outer limits of current practice, the statistics show that this sentence was exceptionally –unjustifiably – high when judged against current sentencing practice.
This conclusion is reinforced by a comparative examination of the sentencing decisions collated by the Crown and of appeal decisions in this Court over the period 2005–2010. The table at Appendix A summarises 27 sentencing decisions, in respect of 35 offenders, chosen at random from the Crown’s compilation, representing 10 per cent of the total. It can be seen from this sample that a sentence of more than three years is quite unusual, and a sentence of four years or more (even for a person with prior convictions for violent offending) is exceptional. Leaving aside the sentence of 11 years imposed by this Court in Director of Public Prosecutions v Terrick,[10] the highest sentence in the sample is five years’ imprisonment in the case of R v Henare.[11] In that case, unlike the present, there were horrific injuries, with permanent consequences, and they resulted from the use of a very dangerous weapon (a pool cue).
[10](2009) 24 VR 457 (‘Terrick’).
[11][2009] VCC 0862.
The table at Appendix B collects together, in summary form, all of the decisions of this Court for the period 2005–2010 in appeals (both by offenders and by the Director) against sentences imposed for RCSI. Fifty‑eight such appeals were decided in that period. It would be expected that appeals brought by offenders would include a higher proportion of heavier sentences than would be found amongst the first instance decisions. Appendix B bears this out, but only to a limited degree. Of the 37 offender appeals decided, only nine (or 24 per cent) involved sentences of five years and above. This would seem to confirm that sentences of five years and above are exceptional under current practice.
Importantly, most of the appeal cases involving a sentence for RCSI of five years and above were markedly different from the present. (Both Terrick[12] and Ashe v The Queen[13] are altogether different, as each was said to represent the worst category of this offence.) Recurrent features of the cases in this group are:
·a plea of not guilty, precluding any discount for guilty plea;
·the use of a dangerous weapon;
·life-threatening and usually permanent injury; and
·relevant, recent, prior convictions for violence, often including RCSI.
[12](2009) 24 VR 457, 477 [84].
[13][2010] VSCA 119, [32] (‘Ashe’).
The following table summarises those features:
CASE PLEA WEAPON OTHER Five years’ imprisonment
White v The Queen
[2010] VSCA 261NG Iron bar. Permanent brain injury. R v Lovett; DPP v Lovett
[2006] VSCA 5NG Piece of wood. Permanent disability. Many convictions for violence. R v Devries
[2005] VSCA 95G Knife. Life-threatening injuries. Very bad record of violence. Six years’ imprisonment
R v Tran
[2009] VSCA 252G Knife. Committed while on parole for, inter alia, RCSI. R v Davidson; R v Konestabo
[2008] VSCA 188NG Knife. Home invasion at night. R v Pota
[2007] VSCA 198NG Knock-out punch. Fractured skull. Significant priors for violence (including three for RCSI). Seven years’ imprisonment
R v Elliott
[2005] VSCA 3G Revolver. Resisting arrest; breach of bail. Use of a weapon
The offence of RCSI is only committed if the offender foresees the probability that his/her action will cause serious injury to the victim, and goes ahead regardless of that probability.[14] As noted in Winch,[15] this is not mere carelessness, where the offender fails to appreciate the risk of injury. This is conscious disregard of a risk of serious injury which the offender knows to exist.
[14]DPP v Castro [2006] VSCA 197, [13] (Coldrey AJA, with whom Callaway AP and Redlich JA agreed); DPP v Fevaleaki (2006) 165 A Crim R 524, [12] (Redlich JA); R v Pota [2007] VSCA 198, [19].
[15](2010) 27 VR 658, 665 [35].
As this Court pointed out in Ashe,[16] the assessment of the seriousness of a particular instance of RCSI will involve considering both the degree of probability that serious injury will result, and the degree of seriousness of the probable injury. Ordinarily, therefore, the use of a weapon will mean that the offence is more serious, since it heightens both the probability of serious injury and the degree of seriousness of the probable injury. The conclusion in Winch[17] was that glassing was a serious instance of RCSI because of ‘the obvious dangerousness of a glass or bottle (whether broken or not) when used to strike a blow to the face or head.’
[16][2010] VSCA 119, [27].
[17](2010) 27 VR 658, 665 [36].
The same is true, but much more so, of the use of a knife to inflict injury. While a bottle or glass applied to the face will cause lacerations, a knife is very likely to penetrate through the victim’s flesh. Use of a knife therefore carries with it a high – and obvious – risk of serious injury to the victim’s internal organs and/or blood supply. Injuries of this kind are often life-threatening.[18] This Court has repeatedly remarked upon the dangerousness of knives.[19] In R v Vance,[20] Coghlan J said:
The use of knives in the community is to be abhorred. It is in these circumstances that injuries more serious than those actually intended occur, particularly when alcohol is involved.
[18]See, for example, R v Johnston [2001] VSCA 232, [6]–[8]; R v Stuttard [2006] VSCA 112, [11].
[19]See, for example, DPP v Coley [2007] VSCA 91, [48] (Kellam AJA).
[20][2008] VSC 468, [12].
The table at Appendix C collects together the relevant decisions (both from this Court and from the County Court) on RCSI with a weapon. Once again, sentences of five years and above can be seen to be exceptional. There are numerous examples of offenders who caused serious injury by the reckless use of a knife and received sentences of two years and six months or less (often partly or wholly suspended). The following cases are illustrative:
| CASE | SENTENCE | PLEA | COMMENT | ||||
| R v Hendy | 2y 6m | NG | Multiple stab wounds, some life-threatening. | ||||
| R v Hood | 2y (wholly suspended) | G | Deep gashes to the head, requiring surgery and 100 stitches. | ||||
| Ashton v The Queen | 2y 6m | G | Offence committed on bail, in course of attempted armed robbery. | ||||
| Valayamkandathilv The Queen | 2y | G | Significant stab wounds requiring surgery; some permanent scarring. | ||||
| R v Said | 2y | NG | Victim stabbed in neck, requiring many stitches. | ||||
| DPP v Coley | 2y (wholly suspended) | NG | Prior conviction for violence; repeated stabbing with large knife, potentially life-threatening injury. | ||||
| DPP v Hooker | CBO (12m) | G | Pre-meditation. Offender returned to party armed with knife. |
The present appellant did not use a weapon. But the conclusion that his sentence was anomalously high is reinforced by this review of sentences imposed for RCSI in cases where a knife was used.
Of course, a clenched fist can be a lethal weapon when used to deliver a hard punch to a person’s head. And the combination of punching and kicking is more lethal again, as tragic cases such as Terrick[21] illustrate. But the present case was not of that type. As Ashley JA has described, the appellant struck a single blow to the side of the victim’s face, albeit with sufficient force to break her cheekbone and cause her to fall to the ground.
[21](2009) 24 VR 457.
One further comparison is necessary to complete this review. The table at Appendix D summarises the sentences for RCSI (at first instance and on appeal) where no weapon was used. It can be seen that in almost all of the cases the sentence imposed was three years or less. In the majority of these cases, the offender had relevant prior convictions. They also include a number of instances of unprovoked street violence against innocent victims, being cases where general deterrence is of particular importance.[22] The street violence cases were as set out below:
[22]See R v Wyley [2009] VSCA 17, [10] (Kellam JA), [21] (Maxwell P).
CASE
SENTENCE
COMMENTS
R v Cazemier & Reti
[2009] VCC 172012m; 15m (both wholly suspended)
Alcohol-fuelled street violence; innocent victims set upon by a group.
R v Noad
[2009] VCC 04471y 9m (wholly suspended)
Assault in company; street violence on innocent victim; kicking.
R v Sorrell
[2009] VCC 16972y 3m (wholly suspended)
Street violence on innocent victim.
R v Wyley
[2009] VSCA 173y
Alcohol-fuelled street violence; innocent victim; breach of suspended sentence.
R v Tancredi & Pamvouxoglou
[2009] VCC 1083
[2010] VSCA 1573y; 2y
Unprovoked bashing of innocent victim in street at night; prior convictions for violence; serious brain injury.[23]
[23]See reference to general deterrence at [29].
The foregoing analysis of current sentencing practice reinforces the conclusion that the five year sentence imposed on the appellant was not reasonably open in the circumstances. Put another way, the sentence represented an unjustifiable departure from current sentencing practices, which the appellant having pleaded guilty was entitled to assume would apply. The majority in Winch[24] came to a similar conclusion.
[24](2010) 27 VR 658, 663 [24].
The adequacy of current sentencing practice for this offence is, however, a separate question, which was raised for the first time in the written submissions of the Crown, in this appeal and in Winch.
Examining current sentencing practices
The Crown submitted in each appeal that the Court could, and should, express a view about the (in)adequacy of current sentencing practices for RCSI. In Winch,[25] the majority acceded to that submission. Winch concerned ‘glassing’ as a particular sub-category of RCSI. Counsel for the Crown submitted that the compilation of first instance decisions placed the Court in ‘an excellent position’ to review sentencing practices. Counsel urged the Court to ‘make strong observations as to the need to alter sentencing practices’.
[25](2010) 27 VR 658.
The relevant parts of the joint judgment were in these terms:
The work undertaken on current sentencing pursuant to Maxwell P’s direction led the Crown to submit on this appeal that current sentencing for glassing (as an instance of RCSI) should be incrementally uplifted. For reasons which follow, we agree with the Crown’s submission that the general run of sentences imposed for glassing as an instance of RCSI does not sufficiently reflect the fact that such conduct is inherently dangerous, and should not be treated as a less serious form of the offence of RCSI.
‘Glassing’ cases have a number of recurrent features. The typical glassing – of which the present appeal is an illustration – occurs in or near licensed premises. It is usually an act of alcohol-fuelled aggression, in disproportionate response to an actual or perceived slight. The typical offender is young and of generally good character, and is full of remorse after the event.
The consequences of glassing are, almost invariably, very serious. Striking to the face or head with a bottle or glass carries a high – and obvious – risk of serious injury. The victim of a glassing almost always suffers severe lacerations; often has permanent facial scarring; and suffers physical and psychological damage which is typically long-term and often permanent.
It is important to recall that RCSI is a very serious offence. It carries a maximum penalty of 15 years. An examination of the elements of the offence reveals why this is so. First, the offence involves the causing of serious injury to the victim. Secondly, the mental element of the offence – recklessness – means that the offender has consciously disregarded a known risk.[26]
…
[I]n 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[27] – 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 my view, that sentencing judges should not regard themselves as constrained to follow the course disclosed by the glassing cases to which we have referred.[28]
[26]R v Towle [2009] VSCA 280, [31] and the decisions there cited.
[27]R v A B (No 2) (2008) 18 VR 391, 403–4 [40]–[41], 405–6 [48]–[51] (‘A B No 2’).
[28]Winch (2010) 27 VR 658, 664–5 [31]–[34], 669 [53]–[55].
As will appear, I do not regard it as appropriate to address the much broader question raised by the Crown in the present appeal, of the adequacy of sentencing across the whole range of RCSI offending. In view of what Ashley JA has written, however, it is important that I reaffirm my view that, in an appropriate case, this Court can and should express a view about the adequacy of current sentencing practices.
In a series of unanimous decisions to which I will refer, this Court has recognised the scope which exists for conflict between the guidance afforded to sentencing courts by the maximum penalty for an offence and the guidance afforded by current sentencing practice for that offence. A sentencing judge is, of course, obliged to take both considerations into account in determining an appropriate sentence.[29] The resolution of that conflict may require a sentencing judge to do as Nettle JA did in R v A B,[30] and decline to follow current sentencing practice ‘down to a level below the sentence which [the] maximum implies it is necessary to impose’.[31]
[29]Sentencing Act 1991 (Vic) s 5(2)(a), (b).
[30][2006] VSC 96 (‘A B’).
[31]Ibid [59]. See [34]–[35] below.
Self-evidently, this Court has a role to play in the resolution of such questions. This is well illustrated by the appeal decision in A B (No 2),[32] where the Court endorsed the view of Nettle JA that current sentencing practice for manslaughter did not adequately reflect the maximum penalty.
[32](2008) 18 VR 391.
Often enough, the disparity between current sentencing practice and the applicable maximum will become apparent in a case where, because the offender pleaded guilty, the appropriateness of the particular sentence falls to be judged by reference to current practice. If, however, the conclusion is arrived at that current practice does not adequately reflect the guidance provided by the maximum, then it is both appropriate and necessary for this Court to say so, for the guidance of sentencing courts. That is what occurred in Winch.
The course of decisions in this Court
The first decision in the series is DPP v O J A.[33] In that case, Nettle JA (with whom Ashley and Redlich JJA agreed) pointed out that, while current sentencing practices were a necessary and useful reference point, they were not to be regarded as fixed and immutable. His Honour said:
I start from the approach that there is no sentencing tariff as such. Apart from the maximum sentence prescribed by Parliament, the intuitive synthesis approach to sentencing implies an absence of necessary relationship between one case and another. Accordingly, as the law stands, any notion of a mathematical norm above or below which a case might be cast according to aggravating increments and mitigating decrements is precluded by a general prohibition on the use of two part sentencing processes. At the same time, it is of the nature of sexual offences that some instances of an offence are more serious than others. Since that is so, there is a need for at least some degree of comparison. The requirement to have regard to ‘current sentencing practices’ is properly to be understood in that context and the notions of manifest excessiveness and manifest inadequacy are similarly informed.
Secondly, the need to have regard to current sentencing practices does not mean that the measures of manifest excessiveness and manifest inadequacy are capped and collared by the highest and lowest sentences for similar offences hitherto imposed. In fact, as in theory, each case is different and so it is always possible that a sentence may properly rise above or fall below the greatest and lowest sentences previously imposed. At the same time, however, the nature of criminal conduct is such that there is not infrequently sufficient similarity between two cases to imply that sentences should be comparable and, if they are not, that something has gone awry.
Thirdly, and importantly, it should not be thought that the statutory requirement to have regard to current sentencing practices forecloses the possibility of an increase or decrease in the level of sentences for particular kinds of offences. Over time, views may change about the length of sentence which should be imposed in particular cases and, when that occurs, the notions of manifest excessiveness and manifest inadequacy will be affected. Accordingly, to say of an individual sentence of six years, or a total effective sentence of 15 years, that it is near as large as any before imposed for offending of this kind, is not necessarily an answer to the question of whether it is manifestly inadequate. One must allow for the possibility that sentences to this point have simply been too low.[34]
[33](2007) 172 A Crim R 181.
[34]Ibid 195–96 [29]–[31] (footnotes omitted; emphasis added).
In A B,[35] Nettle JA (sitting as a trial judge) concluded that sentencing practices for manslaughter had not changed to take account of the 1997 increase in the maximum penalty from 15 years to 20. In his reasons for sentence, his Honour said:
The last of the sentencing considerations to which I am bound to have regard is current sentencing practice, and it is a factor about which views are likely to differ. Before the maximum sentence for manslaughter was increased in 1997 from 15 years to 20 years’ imprisonment, sentences of imprisonment imposed in cases of manslaughter by reason of provocation tended not to exceed 10 years and were frequently less, although there were cases in which they ranged as high as 13 years.[36] Following the increase in the maximum to years to 20 years’ imprisonment, it was to be expected that there would be a corresponding increase in the sentences actually imposed. Yet sentencing statistics suggest that actual sentences have by and large remained the same.[37]
For my own part, the increase in the maximum does imply that there should be some increase in the sentence actually to be imposed and I propose to follow that course in your case. Despite the general utility of current sentencing trends, I am not prepared to follow them down to a level below the sentence which a maximum of 20 years implies it is necessary to impose. Since the maximum sentence is now 20 years’ imprisonment, and since in the case of manslaughter by provocation that maximum takes into account the ameliorating effect of provocation, I consider that the gravest offences of manslaughter are liable to attract sentences of 17 years or more.[38]
[35][2006] VSC 96.
[36]See, for example, R v Williscroft [1975] VR 292, 299; R v Marsland, (Unreported, Court of Criminal Appeal, 26 July 1976).
[37]See R v Bangard (2005) 13 VR 146, 148–9 [11] (Buchanan JA) and 151–2, [28] (Eames JA).
[38]A B [2006] VSC 96, [58]–[59] (emphasis added).
This Court (Warren CJ, Maxwell P and Redlich JA), dismissed an appeal against the sentence of 15 years’ imprisonment which his Honour imposed.[39] In a joint judgment, the Court said:
[39]A B (No 2) (2008) 18 VR 391.
The maximum sentence provides a guide as to the seriousness with which a particular offence should be viewed. It serves as a directive to the courts on how to weigh the gravity of such criminal conduct, the maximum penalty itself being prescribed for the worst class of the offence in question.[40] Recently, in R v Sibic, this court referred to the following passage from the decision of the High Court in Markarian v The Queen,[41] where the majority said:
[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.[42]
…
In some cases – and the present is an example – a tension may arise between ‘sentencing practices’ and other matters specified in s 5(2). Another example is where different charges could appropriately have been laid for the same offending conduct and, though the offender is charged with an offence carrying the higher maximum sentence, the statutory maximum of the lesser punitive regime has guided the sentencing court.[43]
As appears from the passages set out above, the trial judge paid close attention to current sentencing practices, including ‘the utility of current sentencing trends’. His Honour concluded that the sentences imposed for the worst category of this offence had not increased since the maximum penalty had been increased.[44] This conclusion was not challenged on the appeal. In other words, the guidance provided by the increased maximum conflicted with the guidance provided by existing sentence practice.
How was that conflict to be resolved? Because courts have hitherto not responded to the legislative command to increase sentences in manslaughter cases, his Honour was not fettered by the previous pattern of sentencing[45] but was obliged to give effect to Parliament’s decision to increase the maximum penalty.[46] As the maximum sentence is reserved for the worst sort of cases – and this was one – the increased maximum called for the imposition of a sentence higher than the general trend of those sentences relied upon by A B.[47]
[40]R v Sibic (2006) 168 A Crim R 305, [14]–[17] (Redlich JA); Ibbs v The Queen (1987) 163 CLR 447; R v Dumas [1998] VR 65, 71–2.
[41](2005) 228 CLR 357.
[42]Ibid [31].
[43]R v Liang and Li (1995) 82 A Crim R 39; DPP v Hussein (2003) 8 VR 92; R v McEachran [2006] VSCA 290, [49]–[56] (Redlich JA).
[44]This was a view that his Honour had previously expressed in R v Bangard (2005) 13 VR 146, 153 [39].
[45]DPP v Arney [2007] VSCA 126, [13]–[14] (Nettle JA); R v Kalanj (1997) 98 A Crim R 505, 510–11; R v Boaza [1999] VSCA 126, [17]–[18]; R v Sheppard (1995) 77 A Crim R 139, 140–1 (Fitzgerald P), 146 (Dowsett J).
[46]R v Musson [1997] 1 VR 656, 660.
[47](2008) 18 VR 391, 403-4, 405 (emphasis added) (citations included). See also DPP v McMaster (2008) 19 VR 191, 209–10 (Ashley JA).
The limiting effect of current sentencing practices, and the scope for conflict with the maximum penalty, was again highlighted in DPP v C P D.[48] In that case, the Director had appealed against sentences of 18 months (for representative counts of sexual penetration of two children under 10 years of age) and 15 months (for discrete counts of sexual penetration of the same children). As recorded in the joint judgment of the Court (Maxwell P, Redlich JA and Robson AJA), the Director contended that there was an unjustifiable discrepancy between the sentences imposed and the maximum penalty of 25 years for the offences in question. The sentences imposed on the offender were said to be ‘out of whack’ with the statutory maximum. But when the Court invited the Director to make submissions about the appropriate sentencing range for the offending in question, the range put forward still bore little apparent relationship to the maximum penalty of 25 years. When this was pointed out by the Court, senior counsel for the Crown did not demur, but said that the Crown regarded itself as constrained in its submissions on range by current sentencing practices for the offence.[49]
[48](2009) 22 VR 533 (‘C P D’).
[49]Ibid 546 [52], 548 [60].
The Court in that case concluded that, even by current sentencing standards, the sentences imposed on the offender were manifestly inadequate. On the question of resentencing, the Court observed:
[C]urrent sentencing practices for sexual penetration of a child under 10 appear difficult to reconcile with the high maximum set by Parliament. It may be that sentencing courts have not responded to the 1997 increase in the maximum from 20 to 25 years. If that were so, it would follow from the decision of this Court in A B (No 2)[50] that in resentencing I would not be constrained by current sentencing practices. If the matter were fully argued on proper material, this Court may conclude, having regard to the increased maximum and other relevant considerations, that a departure from current sentencing practices was required.[51]
In the event, however, the Court was constrained by the offender’s plea of guilty to resentence him in accordance with current sentencing practices.[52]
[50](2008) 18 VR 391. See [74] below.
[51]C P D (2009) 22 VR 533, 549 [68].
[52]Ibid 548 [69].
The next case was DPP v D D J.[53] Relevantly, the case concerned the offence of maintaining a sexual relationship with a child under 16 (the maximum penalty for which is 25 years’ imprisonment). As in C P D, the Court concluded that, judged by current sentencing standards, the sentence was manifestly inadequate. In its joint judgment, the Court (Maxwell P, Vincent and Neave JJA) said:
[T]he sentencing information provided by the Director indicates that current sentencing practices for this offence are inadequate. The range of sentences being imposed appears not to reflect the very high maximum which Parliament has fixed. But, however that may be, we are not at liberty in resentencing D D J to disregard current practices. The simple reason is that his plea of guilty was entered on the reasonable assumption that he would be sentenced according to current practices. It would be unfair, therefore, to resentence him on a basis which he could not reasonably have anticipated when deciding whether to plead guilty or contest the charges.[54]
[53](2009) 22 VR 444 (’D D J’).
[54]Ibid 460 [65].
Addressing the tension between the current sentencing practices and the maximum penalty, the Court said:[55]
Sentencing judges are required by s 5(2)(b) of the Sentencing Act 1991 (Vic) to have regard to current sentencing practices. But they are also required – by s 5(2)(a) – to have regard to the maximum penalty for the offence. The discretion which a sentencing judge has in dealing with a particular offender is a vital part of the administration of criminal justice. But sentencing judges may not disregard the will of Parliament as expressed in the fixing of the maximum penalty. As this Court said in A B (No 2), the setting of the statutory maximum fixes the parameters within which the sentencing discretion is to be exercised. The analysis set out above indicates that the statutory maximum for this offence is not being given appropriate weight.
Sentencing judges are not to be criticised for paying careful attention to current sentencing practices. Not only are they bound by statute to do so but they are naturally concerned to ensure consistency of sentencing from one case to another. After all, the first of the stated purposes of the Sentencing Act1991 (Vic) is ‘to promote consistency of approach in the sentencing of offenders.’ Consistency in sentencing is a hallmark of the rule of law.
But the significance of this Court’s decision in A B (No 2) is that a judge who concludes – as the trial judge did in that case – that current sentencing practices are not consistent with the statutory maximum for the offence in question is not constrained by those practices. Rather, the judge, while paying due regard to current practices, is obliged to sentence consistently with the maximum (subject to considerations of fairness which may arise, as discussed above).
As noted earlier, senior counsel for the Director did not invite the Court on this appeal to express a view about the adequacy of current sentencing practices for this offence. We do not doubt that it would be competent for this Court to do so. Like the sentencing court, this Court must have regard both to the applicable maximum penalty and to current sentencing practices for the offence. Those considerations are relevant both in deciding whether (in the case of a Crown appeal) the sentence is manifestly inadequate and, if the discretion is reopened, in resentencing. Moreover, one of the functions of this Court on a Crown appeal is
to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons [and] to enable the courts to establish and maintain adequate standards of punishment for crime ...[56]
[55]Ibid 460–1 [68]–[71] (citations partially omitted).
[56]R v Clarke [1996] 2 VR 520, 522.
I would wish to draw particular attention to the last part of this extract, which is taken from the judgment of Charles JA (with whom Winneke P and Hayne JA agreed) in R v Clarke.[57] As this statement shows, it has been accepted since the earliest years of the Court of Appeal that this Court performs a necessary function in giving guidance to sentencing courts and enabling them to ‘establish and maintain adequate standards of punishment for crime’.
[57]Ibid.
The Parliament’s function is to set the parameters for sentencing, by fixing maximum penalties. This Court’s function is to ensure that, in the exercise of the sentencing discretion, sentencing judges are ‘maintaining adequate standards of punishment’ within those parameters. Unsurprisingly, what was said in Winch about current sentencing practices for ‘glassing’, and about its seriousness as an instance of RCSI, has been widely viewed as a helpful guide to sentencing for such offences.[58]
[58]See, for example, DPP v Aslan [2010] VSC 518, [21]; R v Anyang [2011] VSC 263, [22]−[23]; DPP v Ngor [2010] VCC 778, [52]; DPP v Kitchin [2010] VCC 820, [34]−[35]; DPP v Baker [2010] VCC 1240, [4]−[8]; DPP v Phillips-Vierke [2010] VCC 886, [45]; DPP v Dance [2010] VCC 1450, [24]−[29]; DPP v Sidhu [2010] VCC 1510, [50]–[54]; DPP v Bourke [2010] VCC 1663; DPP v Spence [2011] VCC 418, [76]–[85]; DPP v Smith [2011] VCC 555, [13]–[14]; DPP v Mineo [2011] VCC 622, [77]−[78], [103]−[108]; Ellis v The Queen [2011] VSCA 36, [31]; Trowsdale v The Queen [2011] VSCA 81, [17]−[21]; DPP v Gerrard [2011] VSCA 200, [34]–[36]; and DPP v Giannoukas [2011] VSCA 296, [27]–[41].
As I have said, these were all unanimous decisions of this Court. None of the decisions was appealed, and they have been regularly applied since.[59] As far as I am aware, there has been no suggestion subsequently that any of these decisions should be reconsidered.
[59]R v Casey [2008] VSCA 53, [34]; R v Smart [2008] VSC 155, [36]; R v Stratton (2008) 20 VR 539, 558 [103]; DPP (Cth) v D’Alessandro (2010) 26 VR 477, 488 [42]; for a recent example, see H P v The Queen [2011] VSCA 251, [87]–[89].
The present appeal
In the present appeal, senior counsel for the Crown submitted that the Court should
make observations … that the current sentencing practice in relation to recklessly causing serious injury is inadequate.
The collection of sentencing decisions was such, it was submitted, as to cause the Court ‘to make suitable observations so as to increase or encourage the increase of penalties for this offence’. Again:
We have got all the material. We say that if you look at that in a broad brush, something is going very wrong in a significant number of cases. … [T]here is something wrong, the sentences are too lenient.
Senior counsel did not contend that there had been any increase in the prevalence of the crime, but submitted that there was
considerable disquiet about public disorder at night in the city area, which is usually associated [with] nightclubs and similar places and almost inevitably associated with alcohol and quite possibly with amphetamines and things of that nature [which] send people violent.
At the request of the Court, counsel for the Crown subsequently provided a list identifying those of the cases in the Crown’s compilation which were said to illustrate the inadequacy of sentencing for RCSI. Twenty-nine cases were listed, representing approximately 10 per cent of the cases in the compilation. Unlike the list of sentences put forward in Winch, all of which concerned glassing as a particular instance of RCSI, the cases in this list covered a range of instances of RCSI, some involving weapons and some not, some involving offenders with relevant prior convictions and some not, some involving more serious injuries and some less so.
The difficulty confronting the Crown’s submission is readily apparent. First, in only three of these 27 cases did the Director of Public Prosecutions bring an appeal against the sentence, and each of those appeals was dismissed.[60] It would simply not be possible to assess the adequacy of the sentences in the other 24 cases without conducting the kind of review which would have taken place had the Director appealed. Second, even if I were persuaded that some or all of the sentences in question were inadequate, that would provide no proper basis for a generalised statement of the kind sought by the Crown, namely, that sentencing for RCSI is inadequate across the board.
[60]DPP v Toumngeun [2008] VSCA 91; DPP v Wilkins [2009] VSCA 275; DPP v Telford [2010] VSCA 118.
What made it both possible and necessary to express a view about current sentencing practices in Winch was that glassing could be identified as a distinct sub-category of RCSI, characterised by the recurrent features to which the majority judgment referred.[61] That made it possible both to identify the state of current sentencing, based on the cases which the Crown had identified, and to express a view about its adequacy.
[61](2010) 27 VR 658, 664 [32]–[33].
A similar exercise might well be possible with another sub-category, such as RSCI involving the use of a weapon. The cases collected in Appendix C might, subject to appropriate submissions, provide a foundation for conclusions about the adequacy of current sentencing practice for offences of that type. The present case does not, of course, fall into that category.
The sentence in the present case
I said earlier that, unconstrained by current sentencing practice, I would have regarded the sentence imposed on the present appellant as unimpeachable. It is important to explain why.
Although this case is not the worst of its kind, there were significant aspects of both the offending and the offender’s record which would have made a sentence of five years’ imprisonment entirely appropriate. First, this was a terrifying attack, as the sentencing judge found. According to counsel, the appellant had become angry, after a dispute with his new partner, and had ‘taken it out’ on his former partner. Such cowardly behaviour and lack of self-control calls for denunciation in the strongest terms.
Secondly, what made the offending all the more serious was that it occurred while the appellant was serving a suspended sentence imposed for a similar attack on the same victim. On the earlier occasion, the appellant had been convicted of burglary, destroying property and assault. As the sentencing judge noted, the second attack occurred only a matter of months after the appellant began the 14 month period of suspension of the sentences. His Honour was right to describe that as a ‘particularly distasteful and concerning’ aspect of the second attack.
When regard is had to the appellant’s extensive criminal history, which included a number of other convictions for violence, it is clear that there was a heightened need for specific deterrence. As the Crown pointed out in its submission, the appellant’s criminal record revealed a disposition to violence and underlined the need for caution in assessing his prospects of rehabilitation.[62]
[62]R v O’Brien & Gloster [1997] 2 VR 714, 718.
As the majority said in Winch,[63] it is important to recall that RCSI is a very serious offence. It carries a maximum penalty of 15 years. An examination of the elements of the offence reveals why this is so. First, the offence involves the causing of serious injury to the victim. Secondly, the mental element of the offence – recklessness – means that the offender has consciously disregarded a known risk.
[63](2010) 27 VR 658, 664–5 [34]–[35].
The offence of RCSI is only committed if the offender foresaw the probability that his/her action would cause serious injury to the victim, and went ahead regardless of that probability. This is not mere carelessness, where the offender fails to appreciate the risk of injury. This is conscious disregard of a risk of serious injury which the offender knows to exist.
In the present case, the offender already had his hands around the victim’s neck when he punched her to the face. By his plea, he acknowledged that he went ahead knowing that what he was doing would probably cause serious injury. And, of course, the punch did seriously injure the victim. The facial injuries she received required extensive medical treatment.
A sentence of five years’ imprisonment represents only a third of the maximum. For the reasons I have given, I consider that a sentence of that order would – current sentencing practice apart – have been entirely appropriate in the circumstances of this case.
ASHLEY JA:
On 17 December last, the Court allowed this appeal against sentence, and re-sentenced the appellant. The reasons following, though written in the future tense, explain why I joined in those orders.
Bradley Ashdown appeals by leave[64] against sentence passed on him in the County Court on 21 May 2009. On that day, having pleaded guilty, he was sentenced to five years’ imprisonment on a count of causing serious injury recklessly (count 1),[65] and to six months’ imprisonment, to be served cumulatively, on a count of assault.[66] In addition, the judge restored a suspended sentence of 14 months’ imprisonment, and ordered (in substance) that six months of that sentence be cumulated on the sentence on count 1. The total effective sentence was thus six years’ imprisonment. The judge fixed a non-parole period of four years’ imprisonment. He declared that 310 days stood as pre-sentence detention.
[64]Granted by Maxwell P on 5 February 2010.
[65]Contrary to s 17, Crimes Act 1958, maximum penalty 15 years’ imprisonment.
[66]Maximum penalty five years’ imprisonment, see s 320 Crimes Act1958.
The appellant appeals upon the following grounds:
1.The learned sentencing Judge erred in failing to give a sufficient discount for the appellant’s plea of guilty …
2.The learned sentencing Judge erred by ordering that the whole of the sentence imposed on Count 2 be served cumulatively on Count 1 …
3. The sentence imposed on Count 1 is manifestly excessive.
For the reasons which follow, I consider that the appeal should be allowed and that the appellant should be re-sentenced.
Circumstances of offending
The offending reflected in counts 1 and 2 took place on 14 July 2008. The victim of count 1 was HG, a woman aged 48 at the time of the offending, and a former girlfriend of the appellant. The victim of count 2 was JG, the son of the first victim. He was aged 14 in July 2008. The appellant, a man born 19 February 1971, was then aged 37.
The appellant went to the victims’ home in the early evening of 14 July. He seemed to be agitated. He complained to HG that he had broken his finger, that he was going to lose his flat, and that, in all, he was going through a ‘bad trot’.
HG let the appellant into her home. Once inside, he became verbally aggressive. HG began to panic. She called out to her son to help her. The appellant then barged into the son’s bedroom, where the boy and a friend were playing a video game.
The appellant accused the son of stealing his pushbikes, and being responsible for him going to gaol.
HG then said to the appellant that she would stab him if he kept yelling at her son. The appellant then turned on HG, and chased her into the lounge room of the home. For a period they yelled at each other, face to face.
HG went into the kitchen. The appellant followed her. He pushed HG to the floor, and head-butted a cupboard door. It fell off its hinges and onto HG’s legs.
By this time, JG was in the near vicinity. He told the appellant to stop yelling at his mother, and to leave the house. The appellant’s response was to grab JG around the throat and begin to choke him. But JG broke free. These were the circumstances of count 2.
JG said to the appellant that if the latter did not leave the house, then he would do so. The appellant did not leave. JG did.
The appellant returned to confront HG. He yelled at her, pushed her up against a refrigerator, put his hands around her throat and lifted her off the ground, then hit her to the right side of the face with sufficient force to cause her to fall to the ground. The blow was the reckless conduct the subject of count 1.
Then the appellant ran away.
HG suffered multiple facial fractures, particularly involving the right cheekbone and eye socket, a laceration over her right cheek, and extensive bruising. She underwent surgery to have her cheekbone plated and screwed, and to clean out her facial laceration. She was an inpatient for several days, and required post discharge follow-up.
HG made a victim impact statement. It contained an assertion that she had been unable to work for two years. But the prosecutor properly informed the judge that the position was that HG had lost her part time-employment as a kitchen hand during her period of recovery, and had been unable to obtain a new job.
The aftermath
The appellant was arrested the day after the incident. He stated, when interviewed, that he had no idea what had happened the previous day. He could not recall going to HG’s home. He had just been released from hospital, had gone home with his new partner and had consumed a good deal of alcohol, together with painkillers. He asserted that HG had something against him, because he had left her.
Notwithstanding this account of events, the appellant pleaded guilty at a committal hearing on 18 February 2009, without any need for witnesses to be called.
Plea hearing
At the plea hearing, the prosecutor directed the judge to a Sentencing Snapshot for the offence of causing serious injury recklessly. She pointed out that the total effective sentences imposed ranged between two months and 15 days and 15 years’ imprisonment, the median sentence being two years’ imprisonment. She also noted that the instant offences had been committed whilst the appellant was under suspended sentence of imprisonment, in consequence of which s 31(6) of the Sentencing Act 1991 applied.
Something should be said about the offences for which the suspended sentence had been imposed. The prosecutor informed the judge that they had involved the appellant and HG. It is enough to say that the appellant, whilst intoxicated, instigated a confrontation with HG. He verbally abused her and punched her once to the right cheek, causing her moderate pain. He also caused substantial damage to the premises where she was living, and to its contents, and did some damage to her motor vehicle.
Appellant’s counsel described his client’s background as one involving abuse of alcohol from age 12, and use of cannabis from age 13. A combination of learning difficulties and schoolyard fights had culminated in the appellant leaving school when quite young. He had gone out and found work.
Then, in the period between the ages of 17 and 25, he had begun to use amphetamines. He had been diagnosed with serious mental illness – ultimately, the diagnoses was drug-induced psychosis – and had spent time in mental institutions.
According to counsel’s submissions, at age 25 the appellant attempted to turn his life around. He obtained an apprenticeship and in due course qualified as a boilermaker. A new domestic relationship, however, had been soured by alcohol and jealousy.
In the latter part of 2006, counsel recounted, his client was diagnosed with hepatitis C. Treatment commenced. It had the side-effects of making him sweaty, agitated, and prone to mood swings.
It was at that time, according to counsel, that the appellant committed the offences for which the suspended sentence was imposed. They arose out of a dispute, the foundation of which was said to be that HG had taken and used cannabis at a wedding that the two of them had attended. The offences were also contributed to by his intoxication and rage in those circumstances.
According to counsel, the instant offences occurred when the appellant, having been treated in hospital for a hand injury, and having developed a golden staph infection, had been discharged, had consumed alcohol and a (prescription) drug, had argued with his new partner about the need for him to sever his earlier relationship with HG, and had been overwhelmed by this combination of events, becoming angry and taking it out on HG. Evidencing the extent of his confusion, it was submitted, the appellant had struck HG with his injured hand.
Counsel described aspects of his client’s period of custody whilst on remand. His father had died. The appellant had not been permitted to attend the funeral. He had spent much of the time in management units because of angry behaviour. More favourably, he had been put onto a mood stabilising drug with beneficial effect.
The appellant’s current partner, counsel told the judge, was supportive. She also had a substance abuse problem. But the appellant believed that the two of them, working together, might improve their situation.
The appellant’s ‘strong work ethic’, counsel submitted, was to his advantage.
Counsel adverted to his client’s history of past offending. He submitted that the custodial dispositions were ‘of limited assistance in terms of specific deterrence’. The challenge, in light of psychiatric reports placed before the judge, was for the appellant ‘to address the behavioural problems that caused the offending’. In that connection, recent psychiatric treatment and medication may have brought about ‘some progress’.
Counsel submitted that a lengthy potential parole period should be provided for. A structured parole could aid rehabilitation. Counsel mentioned, in that connection, the provision of housing and continuing medical support.
Counsel finally drew the judge’s attention to the appellant’s pleas of guilty. He stated that his client had expressed remorse.
The prosecutor, in reply, submitted that it was an aggravating factor that the instant offences were committed whilst the appellant was undergoing a suspended sentence. Further, she submitted that the appellant’s prospects of rehabilitation should be doubted in light of a psychological report which had been tendered. Weight needed to be placed on specific and general deterrence.
Finally, on instructions, the prosecutor advanced a range of five and a half years to six and a half years as being ‘within the range’, with a non-parole period range of between three and a half and four and a half years.
I have referred to psychological and psychiatric evidence adduced on the plea. A report of David Ball, forensic psychologist., dated 8 August 2007 was tendered. Written to another doctor, Mr Ball described ‘a long history of explosive violence and episodic dyscontrol dating back to [the appellant’s] early childhood’. The diagnostic criteria for ‘intermittent explosive disorder’ might be satisfied. EEG and brain CT scan were recommended, the latter being indicated by reason of repeated concussions sustained by the appellant over the years. Consideration of a particular form of medication was also advised.
No report was adduced from the doctor to whom Mr Ball’s report was addressed. So the judge did not know from that source whether the tests had been done (or, if they had, what they had shown). Nor did his Honour know whether the particular medication had been prescribed: and, if so, then with what resist.
But also before the judge was a report dated 4 April 2009 authored by Dr Danny Sullivan. That doctor had available to him, inter alia, a neurologist’s report dated 24 August 2007, and a report by Mr Ball, dated 29 November 2007.[67]
[67]The latter of which probably went into evidence. The judge seems to have referred to it in his sentencing remarks. It was not provided to this Court.
I need not repeat much of the history recorded by Dr Sullivan. I do note that the appellant reported that - (1) brain scans were unremarkable; (2) he had not been psychiatrically treated since age 25; (3) he had suffered angry outbursts since childhood, for which he had undergone anger management at one stage with some improvement; (4) he reacted to stressors with anger.
Dr Sullivan reported the appellant’s description of his incarceration before sentence for the instant offences this way:
[21]Mr Ashdown informed me that he ‘kept losing the plot’ in prison and had been maintained on fairly harsh regimes. He reported that after one day in the Melbourne Custody Centre he spent one week in a mainstream unit in Melbourne Assessment Prison, where he head butted and smashed a window, frustrated at the reluctance of staff to communicate with him. He then spent two weeks on a mainstream unit at MRC but after an escalating argument with a fellow prisoner he was transferred to Exford, the management unit at MRC. He described that there he ‘lost control … I felt like a caged animal’. After four weeks there he was able to control himself but around this time his father died. He was transferred to Bellbridge Unit.
[22]There, Mr Ashdown described an argument with correctional staff when he refused to get up for muster. He informed me that he repeatedly stated that he did not want to talk to staff and after a sarcastic and offensive comment from the correctional staff member, he indicated that they argued and then he was transferred back to Exford Unit for three months. From there he reported that he was located in a management unit at Port Phillip Prison but there was an altercation with correctional officers which had led to police involvement. Once more he was transferred back to the Exford Unit and after struggling and falling while in handcuffs he fractured his wrist. Consequently he was transferred to Banksia Unit at Barwon Prison but due to deteriorated mental state, he reported that he had been returned to the Acute Assessment Unit (AAU) in the week prior to my assessment. He informed me that he had been on the AAU but was now in a mainstream unit.
Dr Sullivan expressed the following opinions:
[28]Mr Ashdown’s background was marked by possible paternal alcohol abuse but a stable family life. He reported early use of instrumental violence, bullying his brother and using anger to get his own way. His schooling was relatively unremarkable and in adult life he has managed to gain and sustain employment and relationships despite significant criminal justice contact.
[29]Mr Ashdown describes a history of psychotic episodes when younger, necessitating involuntary hospital admission and treatment with antipsychotic medication. By his account there has been no recurrence in recent years. Files from Royal Park Psychiatric Hospital are archived, but by his account these episodes would have accorded with a diagnosis of drug-induced psychotic disorder.
[30]There is no indication of further psychotic illness, although at times in custody he has expressed grandiose beliefs, possibly delusional in nature. However there is no evidence of other psychotic symptoms and taken by themselves, these ideas, even if delusional, have not been sustained or accompanied by other symptoms sufficient to suggest a diagnosis of affective or psychotic illness. Mr Ashdown describes intermittent depression but has not required specialist or sustained treatment.
[31]There is a clear history of polysubstance abuse, involving alcohol and cannabis, and to a lesser extent benzodiazepines and amphetamines when younger.
[32]The report of Mr Ball suggests that Mr Ashdown has some personality difficulties, although these would not clearly map to a discrete personality disorder.
[33]The diagnosis of intermittent explosive disorder is in my opinion spurious. Its provenance is uncertain. The diagnostic criteria indicate that there is a likely neurological basis to this disorder.
[34]In Mr Ashdown’s case, his past aggression is not especially marked. His conduct in prison more likely relates to difficulty coping with a stressful environment, and impaired impulse control. He has acknowledged a propensity to decompensate in prison. This reflects disposition rather than disorder. Mr Ashdown certainly has significant problems with constraining aggression, especially when intoxicated: but this should not be construed as a ‘disorder’, but rather a focus for rehabilitative interventions.
[35]He would benefit from formal drug and alcohol counselling and, in the community, conditions of abstinence from alcohol and cannabis. In addition, Mr Ashdown may benefit from further anger management input, particularly the Corrections Victoria Violence Reduction Program. He demonstrates some insight into his problems and is intelligent, and therefore will potentially benefit from this program.
Dr Sullivan’s detailed report, self-evidently, challenged the reliability of Mr Ball’s provisional diagnosis. Further, although his report detailed an unsatisfactory repetition of anti-social behaviour by the appellant, Dr Sullivan did express some guarded optimism about the appellant’s prospects for rehabilitation.
Past offending
The further presentment, which the appellant admitted, showed that he had been before courts on 24 occasions between February 1989 and early December 2007, spanning the ages 17 to 36 years, and that 87 convictions had been recorded. They included convictions for - (1) assault and assault in company (January 1990); (2) assault police and resist arrest (March 1990); (3) causing injury intentionally (February 1991); assault police (October 1994); unlawful assault and resist police (January 2001); resist and hinder police (May 2001); and assault (December 2007). There were also a number of convictions for damaging property. With one exception, all matters had been dealt with in the Magistrates’ Court, although the appellant had at times appealed to the County Court. Including sentences passed for breach of non-custodial orders, terms of imprisonment had been imposed in March 1990 (two months), November 1990 (one month), September 1992 (four months wholly suspended), January 2001 (one month wholly suspended), July 2001 (three months wholly suspended), December 2002 (three years with a two year non-parole period, for aggravated burglary) and December 2007 (14 months and 42 days, 14 months suspended, for the earlier offences involving HG).
In all, despite the appellant’s history of past offences of violence, the fact that they were all dealt with in the Magistrates’ Court, and the sentences imposed, suggest that they were at the lower end of seriousness.
Sentencing remarks
The judge set out the circumstances of the matter generally as I have recounted them. He identified the assault on JG as having been constituted by grabbing the boy by the throat and starting to choke him. Implicitly, he identified the offence of recklessly causing serious injury as having been constituted by the blow to HG’s face.
The judge accepted as ‘entirely probable’ the appellant’s account to the police that he had no recollection of the offending events.
His Honour referred to the fact that the appellant was under suspended sentence in respect of offences involving HG when he committed the instant offences. It was ‘particularly distasteful and concerning’ that the appellant was only shortly into the period of suspension when he offended again.
Having noted the history of alcohol and drug abuse reported by the appellant to Dr Sullivan, the judge observed; ‘it is not surprising that you have an extensive forensic history.’
His Honour summarised Dr Sullivan’s opinion. Inferentially, he accepted it. But he also referred to a report from Mr Ball[68] which revealed that in late 2007 the appellant had been attempting to rehabilitate himself. His Honour concluded that what Mr Ball had apparently noted, in light of the instant offending, meant that -
Obviously, you have returned to the consumption of alcohol and yet again lost control and committed serious offences and in this instance committed those offences against the same victim as for the ones for which you receive the suspended goal sentence.
[68]Apparently, the 2007 document provided to Dr Sullivan.
The judge described the appellant as having gone to HG’s home ‘in [a] drug and alcohol-fuelled state’, and a ‘befuddled’ state. The rest, as the judge put it, ‘is history’.
His Honour referred to the appellant’s past criminal history. It included ’18 convictions for assault of or resisting arrest’. The judge continued:
Your forensic history is a disgrace and no doubt reflects your drug and alcohol related issues.
His Honour described the instant offences as ‘particularly distasteful’. Two people had been terrified in their own home. The injuries to HG were ‘indeed very serious’. Her victim impact statement revealed continuing mental upset.
The judge found that the appellant’s plea of guilty indicated remorse.
As to prospects of rehabilitation, the judge opined that they depended
very much on your capacity to attend to counselling and for counselling for medical assistance to monitor your health.
The road to rehabilitation would need ‘disciplined attention’. It would be a ‘long road’.
Then the judge sentenced the appellant on counts 1 and 2. Then he stated, pursuant to s 6AAA of the Sentencing Act, that had the appellant gone to trial and been found guilty he would have imposed a sentence of six years’ imprisonment on count 1, and nine months on count 2.
Thereafter, his Honour ordered, in substance, that six months of the suspended sentence be served cumulatively on the sentences for the instant offences; and he fixed a non-parole period of four years’ imprisonment.
Why the appeal should be allowed
It is only necessary to address grounds 2 and 3 in order to explain why this appeal should be allowed. It is convenient to begin with ground 3.
Counsel for the appellant submitted that this was not a serious example of the offence of recklessly causing serious injury. He emphasised that it was constituted by a single punch, struck with an injured hand, and that it was an unplanned act done in the course of a heated exchange. It was not an act done in company. No weapon was used. The offence was not committed as one of a number of offences which were related in time and victim. The injuries suffered by HG were not life-threatening, and could not be described as catastrophic. The appellant had no prior convictions for this offence. Prior offences against the person, with one exception, were simple assaults or resist/hinder police. Sentencing statistics showed that of 560 people sentenced in the higher courts between 2004-05 and 2008-09, only 37 per cent had received an immediate custodial sentence, that the median sentence for those imprisoned was two years, and that only 13 persons had received a longer term of imprisonment. So the appellant had received a sentence at the statistical extreme which the offence did not warrant. He relied also upon the appellant’s plea of guilty, remorse, demonstrated work ethic, and his problems with alcohol and drugs which he – that is, the appellant – now understood fuelled his behaviour problems, an understanding which would assist his tentative moves towards rehabilitation.
Counsel for the Crown emphasised the maximum penalty for the offence, the fact that the attack had been committed upon a vulnerable victim who had begged the appellant to desist, the fact that the appellant had initially denied the offending, the effects of the attack upon the victim, which were said to be profound, the appellant’s ‘unenviable criminal history’, and the fact that the offence was committed in breach of a suspended sentence. As to sentencing statistics, counsel submitted that they showed, inter alia, a highest sentence of ten years amongst those imprisoned, a median sentence of two years, a most common length of imprisonment of one year, and an average length of imprisonment of between two years and three months and two years and eight months. They also showed that 96.6 per cent of offenders had received a lesser sentence than that imposed on the appellant. Nonetheless, the sentence was not out of kilter with current sentencing practices having regard to the appellant’s conduct, his bad criminal record, the fact that the sentence was committed in breach of a suspended sentence, and the fact that this was the appellant’s second attack upon HG.
Counsel submitted that the sentencing range for the offence, in all the circumstances, was four to six years’ imprisonment.
There was varying force in all the submissions which I have noted. That said, in my opinion the appellant has met the difficult obligation of demonstrating that the sentence on count 1 was impermissibly high. Granted that the offence was committed against a person who was somewhat vulnerable, it was a spur of the moment act by an agitated man, carried out in the heat of argument – albeit one that he had instigated. It was constituted by a single blow – struck, indeed, using the appellant’s injured hand. Contrary to the submission for the Crown, the effect of the assault was not profound. In all, the attack, and its physical and emotional consequences for the victim, did not put the offending at all in the upper reaches of seriousness.
But the circumstances of the offence and its consequences for the victim are only a part, not to be severed out, of the necessary investigation. So there must be brought to account, inter alia, the appellant’s past criminal history, including his previous assault upon HG, and the fact that the offence was committed whilst the appellant was under suspended sentence of imprisonment.
As to the former, whilst the appellant’s criminal history was a long one, and whilst it included offences against the person, the offences of violence – to judge from the court in which they were dealt with, and the sentences imposed – were not very serious. Certainly, the appellant had not previously been dealt with for an offence against the person of the present magnitude.
Next, the fact that the offence was committed whilst the appellant was under a suspended sentence was certainly an aggravating factor. It had its own consequence – that is, the default position established by ss 31(5) and (6) of the Sentencing Act. But that did not mean that it was not a circumstance aggravating the present offence.
The fact that one of the offences for which the suspended sentence had been imposed was an assault committed upon HG was adverse to the appellant. The prosecutor described that assault, for which the appellant had been sentenced to three months’ imprisonment, as ‘punching the victim once to the right cheek causing moderate pain’. That assault was significant, not only because the victim was HG, but because it told against the appellant learning from his previous misconduct, also committed when he was enraged.
It must next be said that the appellant’s criminal history, particularly with respect to offences against the person, had other significance. First, it underlined the relevance of specific deterrence as a consideration in the sentence imposed on this occasion. Second, it disclosed, because of the likely association between alcohol and/or drug use and angry outbursts, both the difficulties and the opportunities for the appellant to rehabilitate himself. The difficulties lay in the long pattern of drug and alcohol abuse. The opportunities lay in the appellant’s insight into his problems, as detected by Dr Sullivan.
I should mention one aspect of the appellant’s personal history. It did stand to his credit that, despite his abuse of alcohol and drugs, he had managed to gain a trade qualification and that, at least from age 25 onwards, he had been in work except when he was incarcerated. His employer in the period 2004-2007[69] spoke well of his technical abilities and trustworthiness; and stated that he would have ‘no hesitation’ in again offering the appellant employment.
[69]Who thereafter employed him on a casual basis.
Mention was made, in the submissions for the appellant and for the Crown, to the relevant sentencing snapshot. Unequivocally, the statistics set out in the snapshot[70] show that the sentence imposed on the appellant was very much at the upper end of sentences imposed. To the extent that such statistics reveal current sentencing practices, they show, in my opinion, that the sentence passed, in the circumstances of this offender and this offence, was inconsistent with such practices.
[70]Which only related to dispositions for the offence in the higher courts, and thus did not include reference to the large number of cases involving this offence which are – so we were told – disposed of in the Magistrates’ Court.
I should say something also about the appellant’s plea of guilty. The judge accepted, as I have said, that it was ‘entirely probable’ that, by reason of his consumption of alcohol and painkillers, the appellant did not recall his offending. On that assumption, the plea of guilty was dependent upon the appellant’s acceptance of statements made by HG and her son. I should say that the plea merited a considerable discount on sentence in those circumstances.
I consider, in the event, that a sentence of three years and six months’ imprisonment on count 1 would well accommodate all the competing considerations.
I turn to ground 2. The sentence of six months’ imprisonment for the assault on JG was, in my view, a heavy one. But no complaint is made of manifest excess.
Complaint is made, however, of the cumulation of the entire sentence on count 2, the count of assault, upon the sentence on count 1. Appellant’s counsel submitted that the two offences amounted to a course of conduct. They were closely related in time. Total concurrency would have been appropriate. Some cumulation would have been permissible. But total cumulation was erroneous. For his part, counsel for the Crown submitted that cumulation was warranted because there were two victims; and that the ground fell to be assessed ‘as an incident of manifest excess’. Presumably, the latter submission was directed to totality.
In my opinion, it was erroneous for the judge to totally cumulate the sentence on count 2 on the sentence on count 1. Albeit that there were two victims, total cumulation of sentences for offences committed within a short period, and in a course of conduct, was unusual. Maybe, the order for cumulation was intended to address totality. But if that was the judge’s intention, he did not disclose it. The cumulation ordered was particularly unsatisfactory when the sentence on count 2 was itself a heavy one. It exaggerated the effect of a manifestly excessive sentence on count 1.
Re-sentencing the appellant
I would re-sentence the appellant to three years and six months’ imprisonment on count 1. There being no appeal against the sentence on count 2, I would confirm that sentence. I would cumulate two months of the sentence on count 2 on the sentence on count 1. I would order that the suspended sentence of 14 months’ imprisonment be restored, and that eight months of that sentence be served concurrently with the sentence imposed on count 1. I intend that there be a total effective sentence of four years and two months’ imprisonment. I would fix a non-parole period of three years’ imprisonment.
Section 6AAA statement and declaration
Had the appellant gone to trial and been convicted, then, as required by statute, and despite my serious reservations about the required exercise, I state that I would have imposed a ‘total effective period of imprisonment’ of five years, and that I would have fixed a non-parole period of three years and nine months’ imprisonment. I would declare that in arriving at that total effective period of imprisonment, I would have imposed a period of four years and two months’ imprisonment on count 1 and six months’ imprisonment on count 2.[71]
[71]On the footing that, as I have already opined, the sentence which the judge imposed on count 2 was excessive.
An invitation by the Crown
What I have said ought be enough to dispose of the appeal. But it is necessary to say something with respect to the way in which the matter proceeded.
The course of this matter
I need to advert to the circumstances in which the appeal came before the Court; and to the way in which it proceeded.
As I earlier noted, the appellant pleaded guilty to the two counts on which he was presented. He was not put on notice, before pleading guilty, that the Crown would contend that current sentencing practices for the offence of causing serious injury recklessly were inadequate. According to authorities in this Court,[72] in those particular circumstances, in sentencing the appellant, the judge was not free to depart, so far as it was a relevant consideration, from current sentencing practices; which I take to mean that he should not be sentenced to a term of imprisonment which was outside the range disclosed by ‘comparable cases’.
[72]See, for instance, DPP v McInnes [2009] VSCA 144, [21], Winch v The Queen [2010] VSCA 141, [27].
In granting the applicant leave to appeal against sentence, the President said this:
1Although there was no Crown concession, I concluded on the papers that, subject to any further submissions from the Crown, I would grant leave, for the following reason. In the matter of Winch, in which I granted leave on 29 October last year, I drew attention to the frequency of sentence appeals in relation to the offence of recklessly causing serious injury. It seemed to me there was an important question of sentencing range for that offence and I gave directions for the filing by the Director of a detailed submission on sentencing range as applicable to that case. I expect that what the Director has to say about that will involve some identification of the kinds of criteria which a sentencing judge might take into account in deciding the range applicable to a particular offence.
2It seems to me that it will be both convenient and illustrative to have this appeal – leave being granted – heard with the appeal in Winch. In granting leave I make the same direction as I gave in Winch on 29 October 2009, as follows.
3In support of his submission on the appeal, which I assume will be that this sentence was not manifestly excessive, the Director is to file and serve, in the form conventionally adopted now where issues of sentencing range arise, a submission on what the applicable sentencing range was for this offender for this offence in these circumstances. That submission is to be supported by relevant statistics and by a compilation of all sentencing decisions in the County Court in the last three years (that is, since the beginning of 2007) for the offence of recklessly causing serious injury.
Given the complexity of the question and the likely knowledge this court will have acquired in continually supervising the sentencing discretion for the offence, the preferable course is that the Director bring such questions to this Court. This Court can review its prior decisions from the perspective of ensuring consistency in the guidance it gives sentencing judges. On the plea the Director can give notice of his intention to pursue the question of the adequacy of the CSP on appeal but advance no argument in support of his contention on the plea. This is analogous to the course that would be followed if a party wished to submit that an authority binding on the sentencing judge was wrong and should not be followed. The Crown would refrain from seeking to persuade the sentencing judge to depart from CSP so that the sentence would be fixed having regard to CSP. That is not to say that it is not open to the Director to seek to persuade the sentencing judge to impose an uplifted sentencing practice. But if he seeks to do so it must be done on proper material which establishes circumstances of the type earlier discussed which permit appellate intervention.[283] It would then be a matter for the sentencing judge whether he or she was prepared to act upon such material.
The court may express an opinion though it not be a live issue or determinative of the appeal.
[283]See [180] above.
Of immediate relevance is the fact that, whether or not the Director has followed such a course at first instance, the Crown is not precluded on appeal from raising for the first time on a prisoner’s appeal or a Crown appeal that CSP is inadequate. Where the Director establishes error by bringing himself within circumstances permitting a reconsideration of CSP[284] the adequacy of CSP may be considered by this court notwithstanding that the prosecution did not raise such an issue before the sentencing judge. The giving of a warning is not a binding requirement. The Court’s determination not to visit the prisoner with the consequences of any decision that CSP is too low does not preclude consideration of the question. In the present case the Director failed to establish such error. It was for that reason that the right of this Court to express an opinion as to the adequacy of the CSP was not enlivened.
[284]Ibid.
When an appellate court declines to intervene because of fairness to the prisoner, the Court’s opinion as to the inadequacies of CSP will not have been determinative of the dispute between the parties as to whether the appeal should be allowed and the sentence altered. This is not the occasion to examine whether in such circumstances its consideration of the adequacy of CSP formed part of its process of reasoning and was not obiter dicta. With great respect to those who have suggested otherwise, no principle, authority or practice dictates that the Court should decline to express such an opinion because it will not affect the sentence the subject of appeal. On the contrary, it would fetter the appellate functions to limit the occasions when the court may comment upon sentencing standards to those where it will directly bear upon the outcome of the appeal.
The circumstances in which this Court has questioned the adequacy of CSP sentencing practice has varied and it has from time to time, with different degrees of certitude expressed the need to reconsider CSP.[285] The cases which I have footnoted are more recent examples of circumstances in which this Court has sought to discharge one of its appellate functions. In some instances the expression of an opinion about the adequacy of CSP has been offered in circumstances which did not meet the requirements of House v The King that error must first be established with respect to the sentencing discretion and that there be a sufficient nexus between such an opinion and the sentence the subject of appeal. Subject to those important limitations, the expression of such an opinion is part of the Court’s overarching responsibility to ensure that sentencing standards are maintained and to provide guidance as to the correct approach to sentencing for a particular offence or category of that offence.
[285]R v Nguyen & Phan [1997] 1 VR 386 (Winneke P, Brooking and Callaway JJA); R v Bellerby [2009] VSCA 59, [38] (Kellam JA); Le v The Queen [2010] VSCA 199; DPP v El Hajje [2009] VSCA 160; Saltalamacchia v R [2010] VSCA 83; Le v The Queen [2010] VSCA 199; Kane v R [2010] VSCA 213 (Nettle JA with whom Harper and Hansen JJA agreed); Spiteri v The Queen [2011] VSCA 33, [71]–[72] (Kyrou AJA with whom Nettle and Neave JA agreed); Scerri v The Queen [2010] VSCA 287; DPP v C P D [2009] VSCA 114; Nguyen v The Queen [2010] VSCA 127; Minh Duc Nguyen v R [2010] VSCA 180, [19] (Maxwell P, Weinberg JA); Leeder v R [2010] VSCA 98; DPP v Rapid Roller Co Pty Ltd [2011] VSCA 17, [15] (Nettle JA with whom Kyrou AJA agreed); Hasan v The Queen [2010] VSCA 352, [60]; DPP v Gregory [2011] VSCA 145, [54]; DPP v Maynard [2009] VSCA 129; DPP v O J A [2007] VSCA 129; DPP v D D J [2009] 22 VR 444; Winch v The Queen [2010] VSCA 141.
- - -
APPENDIX A
SELECTION OF 27 RCSI CASES FROM CROWN COMPILATION 2007 – 2009
| Case | Priors | Plea | Sentence for RCSI | Details of suspended sentence | Injury | Weapon | Age | Were alcohol or drugs involved? | Impaired mental functioning | Rehabilitation prospects | Mitigating factors | Aggravating factors |
| R v Phillips [2007] VCC 767 | Yes, including for violence when aged 17-22 | G | 8m | No long-term consequences | No weapon (punching) | 52 | Alcohol | Cerebral function damaged by alcohol abuse | Parity; Ill health – so prison harder | Breach of parole | ||
| R v Reed [2007] VCC 1072 | None | G | 2y 9m (YJC) | Catastrophic head injury | No weapon (punching) | Not stated | Alcohol | Conduct an aberration; Suitable for YJC; Principal offender (Harrell) did not intend the terrible consequences | ||||
| R v Cooper [2007] VCC 1149 | Yes (none for violence) | G | 12m | Wholly suspended for a period of 2y | Overnight hospital; severe bruising; swelling; cuts (2 victims) | No weapon (punching & kicking) | 26 | Alcohol | Out of character | Kicking victim in the head whilst unconscious | ||
| R v Pickens [2007] VCC 1149 | Yes (none for violence) | G | 12m | Wholly suspended for a period of 2y | Overnight hospital; severe bruising; swelling; cuts (2 victims) | No weapon (punching & kicking) | 22 | Alcohol | Out of character | Kicking victim in the head whilst unconscious | ||
| R v Mai [2007] VCC 1763 | Long history, including RCSI | G | 4y | Broken nose; teeth loosened; nerve damage | Claw hammer | 41 | Marijuana | ‘Some depressive symptoms’ | ‘Not confident’ – high risk of reoffending | |||
| R v Stewart [2008] VCC 368; DPP v Stewart [2009] VSCA 220 (sentence increased on Crown appeal) | Long history, including for violence | NG | 11y | Life threatening; severely & permanently mentally & physically disabled | No (punching & kicking) | 28 | Alcohol | Symptoms of personality disorder | Disadvantaged background; Long history of drug & alcohol abuse; Relevance of upbringing in Aboriginal community | Group attack on an individual.; Continued kicking after victim unconscious – ‘sustained’; On suspended sentence & bond at time of offending | ||
| R v C Jonkers [2008] VCC 385 | Large number, including for offences of violence | G | 6m | Wholly suspended for a period of 18m | Multiple facial fractures of a very serious nature, (no VIS) | Wooden slats | 20s | Alcohol | ‘Apparent cooperation with police’; Defending himself (‘albeit excessively so’) | In company; "Fight of great severity" | ||
| R v A Jonkers [2008] VCC 385 | One of ‘limited relevance’ | G | $2000 fine | Multiple facial fractures, (no VIS) | Shovel | 19 | Alcohol | Young offender | ||||
| R v Searles [2008] VCC 1824 | None | G | 2y CBO | 2cm long wound under the chin (suffered significantly physically, emotionally & financially) | Knife | Not stated | Alcohol | Major depressive disorder (now in remission, which would be jeopardised by prison) | Reasonably good | Remorse | ||
| R v Mei [2008] VCC | Yes, for ICI, assault | G | 2y 6m | - | Serious head injuries (brain haemorrhage, brain damage, employment affected | No (punches & kicks, as part of a group) | 23 | Alcohol & drugs (ice) | Immature & impulsive | No assessment | Remorse & victim empathy; Victim of family violence as a child; Delay ; Family support; Employment; Abstinence; Counselling | |
| R v Meade [2008] VCC 937 | None | G | 12m | Wholly suspended for a period of 12m | Nothing permanent except a scar; continuing emotional consequences | Unclear | 37 | Alcohol | Has already achieved full rehabilitation | ‘Otherwise of excellent character’; ‘Remorseful in the extreme’; Delay | ||
| R v Carlin [2008] VCC 1097 | Yes, for offences of violence | G | 12m | Wholly suspended for a period of 12m | Left unconscious; required overnight medical treatment. | Bottle (and punches) | 21 | Yes | No | Reasonable | History of drug/alcohol abuse | Racist attack; offence in company |
| R v Butler [2008] VCC 1097 | None | G | 12m CBO | Left unconscious; required overnight medical treatment. | Bottle (and punches) | 19 | Yes | No | Good | History of drug/alcohol abuse; Remorseful; Out of character | Racist attack; offence in company | |
| R v Hoskins [2008] VCC 1097 | Yes, drug offences | G | 12m CBO | Left unconscious; required overnight medical treatment. | Bottle (and punches) | Yes | No | Good | Remorseful | On a CBO when offence committed; racist attack; offence in company | ||
| R v Psaila [2008] VCC 1097 | None | G | 12m CBO | Left unconscious; required overnight medical treatment. | Bottle (and punches) | 19 | Yes | Learning disorder | Good | Some remorse | Racist attack; offence in company | |
| R v Laulu [2008] VCC 1085 | None | G | 9m | Wholly suspended for a period of 2y | No long-term consequences | No weapon (punches & kicking) | 38 | No | No | Out of character | ||
| R v Reti [2009] VCC 1720 | Yes, including for resist police | G | 15m | Wholly suspended for a period of 2y | Serious, but not at the higher end of ‘serious injury’ | No (punches) | 34 | Alcohol | No | Good | Progress in rehabilitation should not be interrupted | Threw first punches; alcohol fuelled street violence |
| R v Cazemier [2009] VCC 1720 | Minor | G | 12m | Wholly suspended for a period of 2y | Not at the high end of ‘serious injury’ | No (punches) | 25 | Alcohol | No | Good | Alcohol fuelled street violence | |
| R v Vance [2008] VSC 468 | None | G | 2y 6m | Wholly suspended for a period of 2y 6m | Very serious, including collapsed lung. 3 months to recover. | Knife | 39 | Yes | Depression | Good; has taken it seriously | Regret & remorse; Combination of Zoloft & alcohol treated as a matter in mitigation; Drug & alcohol addiction | |
| R v White [2009] VCC [2009] VSCA 177 (appeal dismissed) | Yes, including for offences of violence | G | 2y | Lower end of serious range (no VIS; victim has recovered) | Punching to head & face (had a knife, but did not use it) | 37 | Yes (both) | No | Reasonable (Has become drug-free & reduced alcohol) | Will be in protection | "violent, nasty, frightening assault" | |
| R v Kelson [2009] VCC 1879 | Yes, including RCSI & ICSI | G | 18m | Lower end of serious range (inc fractured ribs) | No weapon (punches) | 32 | Drugs (Xanax) | No | ‘At best guarded’ | |||
| R v Bottomley [2009] VCC 224 | Similar offending a few weeks prior | G | 2y | Wholly suspended for a period of 2y | May include permanent cognitive effects. Required intensive care. | Garden stake | 24 | Alcohol | No | ‘Only very reasonable’, (Drug & alcohol problem being treated & has employment) | Remorse; Delay | |
| R v Taskiran [2009] VCC 368 | Yes, including for offences of violence | G | 2y | Wholly suspended for a period of 2y | Stab wounds; not permanent. | Scissors | Not stated | Unclear (but history of abuse) | Psychotic episode (Verdins applied) | |||
| R v Trowsdale [2009] VCC 455 | Yes, but ‘low level offending’; Subsequent RCSI offence | G | 3y 9m | Damage to victim’s eye, including some permanent vision loss | Glass | ‘youngish’ | Yes - ‘alcohol fuelled violence’ | Clinical depression (Verdins applied) | Good | Some delay | High degree of moral culpability; Victim trying to avoid confrontation | |
| R v Nelson [2009] VCC 1922 | None | G | 12m | Wholly suspended for a period of 2y | Loss of consciousness, lacerations, head injuries | Piece of wood, in course of struggle | 49 | No | No impairment | Good behaviour since offence | Delay | Threats to kill made |
| R v Rutherford [2009] VCC 0950 | None | G (late) | 3y | Broken leg | No weapon (victim held roughly) | 21 | No | Learning disorder, anger problems, borderline PD | Reasonably good (guarded) | Troubled upbringing | Victim a 9m old infant in care | |
| R v Henare [2009] VCC 0862 | Yes, for ICI, drink driving, offensive behaviour | G | 5y | Serious (fractures, brain damage, memory problems, psychological damage) | Pool cue | 40 | Drunk, no memory of assault | Anxiety & interpersonal problems (leading to alcohol) – no Verdins | Good –counselling for alcohol problem | Delay; Remorse; Alcohol problems; Abused as a child; Renzella time | Apparently unprovoked | |
| R v Tancredi [2009] VCC 1083; [2010] VSCA 157 (sentence reduced on appeal) | Yes, for RCI (twice), assault police | G (very late) | 3y | ‘Horrendous’ (serious brain injury, coma, rehabilitation required, pain, depression, time off work) | No weapon (punching & kicking) | 26 | Some alcohol – not intoxicated. | Poor (due to priors) | No offending since charged ; Good work history & character refs; Some remorse, (gave himself up) | Unprovoked street violence; vulnerable victim; left scene without assisting, vulnerable victim; attempted to mislead police with false account of self-defence; offence in company | ||
| R v Pamvouxoglou [2009] VCC 1083; [2010] VSCA 157 (sentence reduced on appeal) | None | G | 2y | ‘Horrendous’ (serious brain injury, coma, rehabilitation required, pain, lethargy, time off work) | No weapon (punching & kicking) | 26 | Good | No offending since charged ; Good work history & character refs; Out of character; Remorse | Unprovoked street violence; vulnerable victim; left scene without assisting, vulnerable victim; gave false statement; offence in company | |||
| R v Wills [2009] VCC 1133 [2010] VSCA 235 (sentence reduced on appeal) | Yes, for RCI, ICI, weapon possession | G | 3y 6m | 3 stab wounds – surgery needed (part of bowel removed), loss of employment, psychological damage | Knife | 26 | Yes (both) | PTSD | Genuine efforts being made | Several personal tragedies; PTSD because of sexual abuse; Hardship of jail (young child, PTSD) | Random attack; offence in company; victim (60) feared for his life | |
| R v Ellis [2009] VCC 1281 | Yes, for manslaughter, assault with a weapon, weapon possession | G | 2y 9m | Facial lacerations, scarring, swelling, emotional trauma | Glass beer jug to head | 50 | Some alcohol (not drunk) | Reasonable – family support, abstinence since offence | Several health problems; Business difficulties | Disproportionate response to argument | ||
| R v Cooray [2009] VCC 1400 | None | G | 15m CBO | Laceration, bruising (as aider & abetter) | Bottle, wood, steel trolley (as aider & abetter) | 24 | Alcohol | Clinical depression | Good – attending counselling | Remorse | ||
| R v Dinsdale [2009] VCC 1408 | None | G | 15m | 10m | Unconscious, fractured jaw, bruising | No weapon (punching & kicking) | 22 | Alcohol | Some depression & anxiety | Good (w/ concerns) – employment, counselling, family support, medication | Some remorse, insight; Low risk of reoffending | Tried to downplay offending with police |
| R v Godino [2009] VCC 1408 | None | G | 15m | 10m | Unconscious, fractured jaw, bruising | No weapon (punching & kicking) | 21 | Alcohol | Good – employment, relationship | Remorse; Some insight | ||
| R v Wallace [2009] VCC 1666 | None for violence | G | 2y (YJC) | Stabbed in the neck – lacerations needing surgery, anxiety | Broken bottle | 20 | Alcohol (intoxicated) | ADD, anger problems, alcohol dependence, anxiety, PTSD | Reasonable – poor conduct in custody to date | ‘Some aspects’ of self-defence but response excessive; Limited remorse |
APPENDIX B
RCSI SENTENCE APPEALS 2005 to 2010
(Ascending order of sentence)
| Case[286] | Citation | Date | Plea | Relevant Priors[287] | Weapon | RCSI sentence[288] | Comment | |
| Y | M | |||||||
| DPP v Hooker | [2006] VSCA 95 | 24-Apr-06 | G | N | Knife | - | - | CBO (12m) imposed. Director's appeal allowed in relation to ICSI count |
| DPP v Malikovski | [2010] VSCA 130 | 12-May-10 | G | N | - | 0 | 4 | Two counts, sentenced to 4m on each; Director's appeal unsuccessful; very merciful but not manifestly inadequate |
| DPP v Dowie | [2009] VSCA 154 | 26-Jun-09 | G | N | Glass | 0 | 6 | Director's appeal; RCI |
| DPP v Martin | [2009] VSCA 316 | 21-Dec-09 | G | Y | - | 0 | 9 | Wholly suspended for 2y; Director's appeal dismissed, not manifestly inadequate. |
| DPP v Castro | [2006] VSCA 197 | 27-Sep-06 | G | Y | - | 0 | 10 | Director's appeal allowed; Wholly suspended for 2y |
| DPP v Tokava | [2006] VSCA 156 | 27-Jul-06 | G | Y | - | 1 | 0 | Director's appeal allowed |
| DPP v Ross | [2006] VSCA 223 | 10-Oct-06 | G | N | Metal torch | 1 | 0 | Director's appeal allowed |
| R v Lewis | [2008] VSCA 202 | 15-Sep-08 | G | Y | - | 1 | 0 | |
| DPP v Nikolic | [2008] VSCA 226 | 10-Nov-08 | G | N | - | 1 | 0 | Director's appeal allowed; sentence moderated by double jeopardy |
| DPP v Maynard | [2009] VSCA 129 | 11-Jun-09 | G | N | Knife | 1 | 0 | Director's appeal allowed |
| R v Eastham | [2008] VSCA 67 | 29-Apr-08 | G | N | - | 1 | 2 | All but 159 days of the sentence suspended for 2y |
| R v Earl | [2008] VSCA 162 | 25-Aug-08 | G | Y | - | 1 | 2 | 10m suspended for a period of 12m |
| DPP v Toumngeun | [2008] VSCA 91 | 29-May-08 | G | N | Glass | 1 | 3 | Director's appeal dismissed; wholly suspended for 18m. Two counts, non-custodial sentence for first count |
| R v Ziday | [2006] VSCA 163 | 9-Aug-06 | G | N | Various | 1 | 6 | Sentence on second count of RCSI (similar facts): 6m |
| R v Hay | [2007] VSCA 147 | 24-Jul-07 | G | N | - | 1 | 6 | |
| R v Riem | [2007] VSCA 283 | 29-Nov-07 | G | Y | Knife | 1 | 6 | |
| DPP v Wilkins | [2009] VSCA 275 | 26-Nov-09 | G | N | - | 1 | 6 | Director's appeal dismissed |
| DPP v Anderson | [2005] VSCA 68 | 6-Apr-05 | G | Y | Hammer | 1 | 10 | Director's appeal allowed; Sentence wholly suspended for 24m; offended while serving suspended sentence. |
| R v Wise | [2007] VSCA 266 | 22-Nov-07 | G | Y | - | 2 | 0 | Two counts, sentenced to 24m on each. |
| R v Cropley | [2009] VSCA 32 | 2-Mar-09 | G | Y | Car | 2 | 0 | Two counts, sentenced to 24m on each. |
| R v Lam | [2009] VSCA 37 | 5-Mar-09 | G | Y | Knife | 2 | 0 | |
| R v White | [2009] VSCA 177 | 6-Aug-09 | G | Y | - | 2 | 0 | |
| R v Said | [2009] VSCA 244 | 20-Oct-09 | NG | N | Knife | 2 | 0 | |
| Pamvouxoglou v The Queen | [2010] VSCA 157 | 24-Jun-10 | G | N | - | 2 | 0 | |
| B B A v The Queen | [2010] VSCA 174 | 24-Jun-10 | G | N | Fire | 2 | 0 | |
| O'Loughlan v The Queen | [2010] VSCA 175 | 5-Jul-10 | G | N | Steering lock | 2 | 0 | Sentence qualified by parity issue: ‘should not be regarded as any useful precedent for future matters’ |
| DPP v Pham | [2010] VSCA 181 | 19-Jul-10 | G | N | Baton | 2 | 0 | Director's appeal dismissed |
| Valayamkandathil v The Queen | [2010] VSCA 260 | 4-Oct-10 | G | N | Knife | 2 | 0 | |
| R v Kumar | [2006] VSCA 182 | 8-Sep-06 | NG | N | Knife | 2 | 6 | Reduced on appeal from 4y |
| R v Ross | [2007] VSCA 213 | 27-Sep-07 | G | N | - | 2 | 6 | |
| R v Hendy | [2008] VSCA 231 | 24-Nov-08 | NG | N | Knife | 2 | 6 | |
| DPP v Telford | [2010] VSCA 118 | 28-May-10 | NG | N | Firearm | 2 | 6 | Director's appeal dismissed; ordinarily inadequate but discretion not exercised in the particular circumstances |
| Hussein v The Queen | [2010] VSCA 257 | 4-Oct-10 | G | Y | Wooden post | 2 | 6 | |
| Ashton v The Queen | [2010] VSCA 329 | 7-Dec-10 | G | N | Knife | 2 | 6 | |
| Winch v The Queen | [2010] VSCA 141 | 17-Jun-10 | G | N | Glass | 2 | 9 | |
| DPP v McCloy | [2006] VSCA 99 | 3-May-06 | NG | N | - | 3 | 0 | Director's appeal allowed |
| R v Stuttard | [2006] VSCA 112 | 12-May-06 | G | N | Knife | 3 | 0 | |
| R v Wyley | [2009] VSCA 17 | 19-Feb-09 | G | N | - | 3 | 0 | |
| Tancredi v The Queen | [2010] VSCA 157 | 24-Jun-10 | G | Y | - | 3 | 0 | |
| DPP v Karazisis | [2010] VSCA 350 | 17-Dec-10 | G | N | - | 3 | 4 | Director's appeal allowed |
| R v Phuoc Van Bui | [2006] VSCA 96 | 26-Apr-06 | G | Y | Firearm | 3 | 6 | Sentence on second count of RCSI (similar facts): 27m |
| DPP v Massey | [2008] VSCA 254 | 9-Dec-08 | G | Y | Car | 3 | 6 | Director's appeal allowed |
| R v Vandenberg | [2009] VSCA 9 | 5-Feb-09 | G | N | - | 3 | 6 | |
| R v Danh | [2009] VSCA 251 | 12-Oct-09 | G | Y | Knife | 3 | 6 | |
| Wills v The Queen | [2010] VSCA 235 | 14-Sep-10 | G | N | Knife | 3 | 6 | |
| DPP v Coley | [2007] VSCA 91 | 14-May-07 | NG | Y | Knife | 4 | 0 | Director's appeal dismissed; wholly suspended for 3y |
| DPP v Arney | [2007] VSCA 126 | 12-Jun-07 | G | N | - | 4 | 0 | Director's appeal allowed; no weapon - head came into contact with furniture |
| DPP v Ripper | [2006] VSCA 282 | 14-Dec-06 | G | Y | - | 4 | 6 | Director's appeal allowed; double jeopardy means sentence not as severe as the Court would otherwise impose |
| R v Devries | [2005] VSCA 95 | 21-Apr-05 | G | Y | Knife | 5 | 0 | |
| R v Lovett; DPP v Lovett | [2006] VSCA 5 | 7-Feb-06 | NG | Y | Wooden post | 5 | 0 | Director's appeal dismissed. |
| White v The Queen | [2010] VSCA 261 | 4-Oct-10 | NG | Y | Iron bar | 5 | 0 | |
| R v Pota | [2007] VSCA 198 | 17-Sep-07 | NG | Y | - | 6 | 0 | |
| R v Davidson | [2008] VSCA 188 | 23-Sep-08 | NG | N | Knife | 6 | 0 | |
| R v Konestabo | [2008] VSCA 188 | 23-Sep-08 | NG | N | Knife | 6 | 0 | |
| R v Tran | [2009] VSCA 252 | 12-Oct-09 | G | Y | Knife | 6 | 0 | On parole for, inter alia, RCSI |
| R v Elliott | [2005] VSCA 3 | 3-Feb-05 | G | Y | Firearm | 7 | 0 | |
| Ashe v R | [2010] VSCA 119 | 28-May-10 | G | Y | - | 10 | 0 | |
| DPP v Stewart | [2009] VSCA 220 | 2-Oct-09 | NG | Y | - | 11 | 0 | Director's appeal allowed; on a bond and suspended sentence at time of offending |
[286]Co-offenders are listed separately, even where their appeals were heard together.
[287]Priors involving violence, aggression, threats generally considered 'relevant'.
[288]The sentence recorded is the sentence following the appeal; where there are multiple RCSI counts, only the sentence for the most serious is recorded (with the other sentences referred to in comments); suspended sentences are included, with the suspension noted in comments; a non-custodial sentence is recorded as '-' and details noted in the comments column.
APPENDIX C
RCSI KNIFE CASES[289]
(Ascending order of sentence)
[289]The cases in this table have been extracted from the compilation of County Court prepared by the Crown and referred to in paragraph 7 above, together with relevant appeal decisions taken from the table at Appendix B.
| Case[290] | Citation | Date | Plea | Relevant Priors[291] | RCSI sentence[292] | Comment | |
| Y | M | ||||||
| DPP v Hooker | [2006] VSCA 95 | 24-Apr-06 | G | N | - | - | CBO (12m) imposed. Director's appeal allowed in relation to ICSI count |
| R v Munro | VCC | 10-Oct-07 | G | - | - | $1500 fine | |
| R v A Maroun | VCC | 15-May-08 | G | N | - | - | CBO (6m) imposed |
| R v Searles | [2008] VCC 1824 | 03-Jun-08 | G | N | - | - | CBO (24m) imposed |
| R v Kyriacopolous | VCC | 29-Sep-09 | G | - | - | CBO (12m) imposed). As part of a group, role unclear | |
| R v Norden | VCC | 18-Mar-09 | G | - | - | CCTO - 12m | |
| R v Williams | VCC | 03-Sep-08 | 0 | 3 | CBO (18m) also imposed | ||
| R v Abdi | VCC | 05-Nov-08 | G | 0 | 3 | CBO also imposed | |
| R v Black | SCV | 23-Feb-07 | G | N | 0 | 6 | |
| R v Yin | VCC | 11-Jun-09 | G | 0 | 9 | Wholly suspended for 2y | |
| R v J Maroun | VCC | 15-May-08 | G | N | 0 | 10 | Wholly suspended for 2y |
| R v Karupovic | VCC | 29-Sep-09 | G | 1 | 0 | Wholly suspended for 2y. As part of a group, role unclear | |
| R v Pham | VCC | 29-Aug-08 | G | N | 1 | 0 | 9m partially suspended for 18m |
| DPP v Maynard | [2009] VSCA 129 | 11-Jun-09 | G | N | 1 | 0 | |
| R v Chetcuti | VCC | 20-Nov-08 | G | 1 | 2 | Wholly suspended for 1y 6m | |
| R v Bloomfield | VCC | 05-Sep-08 | 1 | 3 | Wholly suspended for 3y | ||
| R v Jackson | VCC | 07-Apr-09 | G | 1 | 3 | To be served in YJC. Sentenced for acting in concert | |
| R v Shohany | VCC | 14-Jul-09 | 1 | 3 | To be served in YJC. | ||
| R v Moyle | VCC | 18-Sep-09 | G | 1 | 3 | ||
| R v Stankovic | VCC | 16-Dec-09 | NG | 1 | 3 | ||
| R v Ngo | VCC | 24-Oct-08 | G | 1 | 4 | ||
| R v S Maroun | VCC | 15-May-08 | G | N | 1 | 6 | Wholly suspended for 2y |
| R v Pearson | VCC | 25-Jun-08 | G | N | 1 | 6 | Wholly suspended for 2y |
| R v Carlon | VCC | 15-Aug-08 | 1 | 6 | Wholly suspended for 3y | ||
| R v French | VCC | 13-Nov-09 | G | 1 | 6 | Wholly suspended for 2y 6m | |
| R v Tapia | VCC | 13-Nov-09 | G | 1 | 6 | 17m partially suspended for 2y | |
| R v Nawar | VCC | 14-Jul-09 | 1 | 6 | To be served in YJC. | ||
| R v Riem | [2007] VSCA 283 | 29-Nov-07 | G | Y | 1 | 6 | |
| R v Pinder | VCC | 19-Jun-09 | NG | 1 | 6 | ||
| R v A Neven | VCC | 01-Aug-07 | NG | Y | 2 | 0 | Wholly suspended for 2y |
| R v Rahim | VCC | 27-Mar-09 | G | 2 | 0 | Wholly suspended for 2y | |
| R v Taskiran | VCC | 07-Apr-09 | G | 2 | 0 | Wholly suspended for 2y | |
| R v Duggan | VCC | 11-May-09 | G | 2 | 0 | Wholly suspended for 2y | |
| R v Hood | VCC | 15-Sep-09 | 2 | 0 | Wholly suspended for 2y | ||
| R v Coen | VCC | 23-Nov-09 | G | 2 | 0 | Wholly suspended for 2y 6m | |
| R v Flynn | VCC | 2008/09 | G | 2 | 0 | Wholly suspended for 2y | |
| DPP v Coley | [2007] VSCA 91 | 14-May-07 | NG | Y | 2 | 0 | Wholly suspended for 3y; Director's appeal dismissed |
| R v Wandin | VCC | 20-Jun-08 | G | Y | 2 | 0 | Twice breached bail by failing to appear |
| R v Beks | VCC | 15-Aug-08 | 2 | 0 | |||
| R v Duggan | VCC | 18-Dec-08 | NG | 2 | 0 | ||
| R v Lam | [2009] VSCA 37 | 05-Mar-09 | G | Y | 2 | 0 | |
| R v Said | [2009] VSCA 244 | 20-Oct-09 | NG | N | 2 | 0 | |
| Valayamkandathil v The Queen | [2010] VSCA 260 | 04-Oct-10 | G | N | 2 | 0 | |
| R v Vance | [2008] VSC 468 | 07-Nov-08 | G | N | 2 | 6 | Wholly suspended for 2y 6m |
| R v Kumar | [2006] VSCA 182 | 08-Sep-06 | NG | N | 2 | 6 | Reduced on appeal from 4y |
| R v Greg Hammond | VCC | 16-Dec-09 | G | 2 | 6 | 2y for further RCSI (non-knife) | |
| R v Lawson | SCV | 22-Feb-08 | G | 2 | 6 | ||
| R v Acreman | VCC | 14-May-08 | G | 2 | 6 | ||
| R v Hendy | (2008) 191 A Crim R 81 | 24-Nov-08 | NG | N | 2 | 6 | |
| R v Crowe | VCC | 19-Feb-09 | G | 2 | 6 | ||
| R v Kerr | VCC | 24-Apr-09 | G | 2 | 6 | ||
| R v Donovan | VCC | 15-May-09 | G | Y | 2 | 6 | |
| R v Vu | VCC | 29-Sep-09 | 2 | 6 | |||
| R v Homsi | VCC | 20-Oct-09 | G | 2 | 6 | ||
| Ashton v The Queen | [2010] VSCA 329 | 07-Dec-10 | G | N | 2 | 6 | |
| R v Gooch | [2009] VCC 0841 | 26-Jun-09 | G | Y | 2 | 6 | |
| R v Wise | VCC | 03-Dec-09 | G | 2 | 6 | ||
| R v Vungal | VCC | 03-Jul-08 | 3 | 0 | Wholly suspended for 3y | ||
| R v Glen Hammond | VCC | 16-Dec-09 | G | 3 | 0 | 2y 6m for further RCSI (non-knife) | |
| R v Stuttard | [2006] VSCA 112 | 12-May-06 | G | N | 3 | 0 | |
| R v Charles | VCC | 18-Apr-08 | G | Y | 3 | 0 | |
| R v Le | VCC | 27-Aug-08 | 3 | 0 | |||
| R v Nguyen | VCC | 10-Mar-09 | G | 3 | 0 | ||
| R v West | [2009] VCC 0131 | 28-Jan-09 | G | Y | 3 | 0 | Application for leave to appeal refused, 24-Apr-09. |
| R v Byrne | VCC | 18-Jun-09 | G | 3 | 0 | ||
| R v Nguyen | VCC | 19-Jun-09 | G | 3 | 0 | ||
| R v Woods | VCC | 13-Feb-07 | G | 3 | 6 | ||
| R v Danh | [2009] VSCA 251 | 12-Oct-09 | G | Y | 3 | 6 | |
| Wills v The Queen | [2010] VSCA 235 | 14-Sep-10 | G | N | 3 | 6 | |
| R v Cordwell | VCC | 21-Jul-09 | G | 4 | 0 | ||
| R v Pierce | VCC | 13-Aug-09 | 4 | 0 | |||
| R v Aggelidis | VCC | 20-Oct-08 | 4 | 6 | |||
| R v Devries | [2005] VSCA 95 | 21-Apr-05 | G | Y | 5 | 0 | |
| R v Davidson | [2008] VSCA 188 | 23-Sep-08 | NG | N | 6 | 0 | |
| R v Konestabo | [2008] VSCA 188 | 23-Sep-08 | NG | N | 6 | 0 | |
| R v Derich | [2009] VSC 160 | 08-Apr-09 | NG | 6 | 0 | ||
| R v Harwood | [2008] VCC 0549 | 30-May-09 | G | Y | 6 | 0 | Application for leave to appeal refused, 17-Jul-09. |
| R v Tran | [2009] VSCA 252 | 12-Oct-09 | G | Y | 6 | 0 | On parole for, inter alia, RCSI |
[290]Co-offenders are listed separately, even where their appeals were heard together.
[291]Priors involving violence, aggression, threats generally considered 'relevant'.
[292]The sentence recorded is the sentence following the appeal; where there are multiple RCSI counts, only the sentence for the most serious is recorded (with the other sentences referred to in comments); suspended sentences are included, with the suspension noted in comments; a non-custodial sentence is recorded as '-' and details noted in the comments column.
APPENDIX D
RCSI NON-WEAPON CASES[293]
(Ascending order of sentence)
[293]The cases in this table have been extracted from the compilation of County Court prepared by the Crown and referred to in paragraph 7 above, together with relevant appeal decisions taken from the table at Appendix B.
| Case[294] | Citation | Date | Plea | Relevant Priors[295] | RCSI sentence[296] | Comment | |
| Y | M | ||||||
| R v Hayes | [2008] VCC | 19-Sep-08 | - | - | 12m ICO | ||
| R v Martin | [2008] VCC | 27-Oct-08 | - | - | 12m ICO | ||
| R v Weimer | [2008] VCC | 04-Sep-08 | G | - | - | 15m CBO | |
| R v Latif | [2008] VCC | 06-Jun-08 | G | N | - | - | 18m CBO |
| R v Ritchie | [2008] VCC | 19-Sep-08 | - | - | 24m CBO | ||
| R v Tabone | [2009] VCC | 15-Apr-09 | G | - | - | 24m CBO | |
| R v Thom | [2009] VCC | 23-Apr-09 | G | 0 | 2 | Wholly suspended for 1y. Push down stairs. | |
| DPP v Malikovski | [2010] VSCA 130 | 12-May-10 | G | N | 0 | 4 | Director's appeal unsuccessful; two counts, sentenced to 4m on each; very merciful but not manifestly inadequate |
| R v Kotvas | [2008] VCC | 11-Jul-08 | NG | 0 | 6 | Wholly suspended for 18m | |
| R v Allison | [2008] VCC | 31-Oct-08 | G | 0 | 6 | Wholly suspended for 2y | |
| R v Ulker | [2008] VCC | 14-Nov-08 | 0 | 6 | Wholly suspended for 12m and CBO | ||
| R v Woodhouse | [2008] VCC | 18-Dec-08 | G | 0 | 6 | In possession of axe but did not use | |
| R v Phillips | [2007] VCC 767 | 15-Jun-07 | G | Y | 0 | 8 | |
| R v Lee | [2009] VCC | 17-Jul-09 | G | 0 | 8 | Wholly suspended for 1y | |
| R v Boyd | [2007] VCC | 13-Jul-07 | G | 0 | 9 | Wholly suspended for 2y | |
| R v Findley | [2008] VCC | 04-Aug-08 | G | 0 | 9 | Wholly suspended for 18m | |
| R v Brown | [2009] VCC | 21-Jan-09 | G | 0 | 9 | Wholly suspended for 2y | |
| R v Heskett | [2009] VCC | 18-Aug-09 | G | 0 | 9 | Wholly suspended for 15m | |
| DPP v Martin | [2009] VSCA 316 | 21-Dec-09 | G | Y | 0 | 9 | Director's appeal refused, not manifestly inadequate; Wholly suspended for 2y |
| R v Laulu | [2008] VCC 1085 | 5-Sep-08 | G | N | 0 | 9 | Wholly suspended for 2y |
| R v Briggs | [2008] VCC | 01-Dec-08 | G | 0 | 9 | 2 counts, sentenced to 9m on each | |
| DPP v Castro | [2006] VSCA 197 | 27-Sep-06 | G | Y | 0 | 10 | Wholly suspended for 2y |
| R v Robert | [2008] VCC | 26-Mar-08 | G | 1 | 0 | 12m CCTO | |
| R v Patterson | [2009] VCC | 13-May-09 | G | 1 | 0 | 15m of TES partially suspended for 2y | |
| R v Kyriacopoulos | [2009] VCC | 29-Sep-09 | G | 1 | 0 | Wholly suspended for 2y | |
| R v Chow | [2008] VCC | 23-May-08 | G | N | 1 | 0 | Wholly suspended for 3y |
| R v Cazemier | [2009] VCC 1720 | 22-Oct-08 | G | N | 1 | 0 | Wholly suspended for 2y |
| R v Akkus | [2008] VCC | 14-Nov-08 | 1 | 0 | Wholly suspended for 12m and CBO | ||
| R v McCraken | [2009] VCC | 31-Mar-09 | 1 | 0 | Wholly suspended for 2y | ||
| R v Heard | [2009] VCC | 23-Jun-09 | G | 1 | 0 | Wholly suspended for 3y | |
| R v Cooper | [2007] VCC 1149 | 20-Sep-07 | G | Y | 1 | 0 | Wholly suspended for 2y |
| R v Pickens | [2007] VCC 1149 | 20-Sep-07 | G | Y | 1 | 0 | Wholly suspended for 2y |
| DPP v Tokava | [2006] VSCA 156 | 27-Jul-06 | G | Y | 1 | 0 | Director's appeal allowed |
| R v Lewis | [2008] VSCA 202 | 15-Sep-08 | G | Y | 1 | 0 | |
| DPP v Nikolic | [2008] VSCA 226 | 10-Nov-08 | G | N | 1 | 0 | Director's appeal allowed; sentence moderated by double jeopardy. |
| R v Baczynski | [2008] VCC | 15-Dec-08 | G | 1 | 0 | ||
| R v Eastham | [2008] VSCA 67 | 29-Apr-08 | G | N | 1 | 2 | All but 159 days of the sentence suspended for 2y |
| R v Earl | [2008] VSCA 162 | 25-Aug-08 | G | Y | 1 | 2 | 10m suspended for a period of 12m; appeal dismissed |
| R v Soveny | [2008] VCC | 02-May-08 | G | N | 1 | 3 | Wholly suspended for 3y |
| R v Reti | [2009] VCC 1720 | 22-Oct-08 | G | Y | 1 | 3 | Wholly suspended for 2y |
| R v Dinsdale | [2009] VCC 1408 | 04-Nov-09 | G | N | 1 | 3 | 10m partially suspended for 2y |
| R v Godino | [2009] VCC 1408 | 04-Nov-09 | G | N | 1 | 3 | 10m partially suspended for 2y |
| R v Sleeth | [2008] VCC | 02-May-08 | G | Y | 1 | 6 | Wholly suspended for 3y |
| R v Gleeson | [2008] VCC | 19-Dec-08 | G | 1 | 6 | Wholly suspended for 18m. CBO also imposed. Shaking, head struck surface. | |
| R v Koltonov | [2007] VCC | 04-Apr-07 | NG | 1 | 6 | Leave to appeal refused | |
| R v Hay | [2007] VSCA 147 | 24-Jul-07 | G | N | 1 | 6 | |
| R v Tripitiris | [2008] VCC | 29-Oct-08 | 1 | 6 | |||
| R v Ashman | [2009] VCC | 23-Jun-09 | G | 1 | 6 | ||
| R v Zenner | [2009] VCC | 23-Jul-09 | G | 1 | 6 | ||
| DPP v Wilkins | [2009] VSCA 275 | 26-Nov-09 | G | N | 1 | 6 | Director's appeal dismissed |
| R v Kelson | [2009] VCC 1879 | 28-Jan-09 | G | Y | 1 | 6 | |
| R v Dancer | [2008] VCC | 25-Jun-08 | G | Y | 1 | 8 | |
| R v Noad | [2009] VCC | 24-Apr-09 | G | 1 | 9 | Wholly suspended for 21m | |
| R v Collins | [2009] VCC | 17-Apr-09 | G | 1 | 9 | Partially suspended (15m) for 2y | |
| R v David | [2009] VCC | 17-Apr-09 | G | 1 | 9 | Partially suspended (15m) for 2y | |
| R v Humphry | [2008] VCC | 19-Nov-08 | 1 | 9 | |||
| R v Taylor | [2008] VCC | 23-Jun-08 | G | N | 2 | 0 | Wholly suspended for 2y |
| R v Barnes | [2008] VCC | 15-Oct-08 | 2 | 0 | Wholly suspended for 2y | ||
| R v Whitford | [2009] VCC | 11-Aug-09 | NG | 2 | 0 | Partially suspended (18m) for 2y | |
| R v Davy | [2009] VCC | 03-Dec-09 | G | 2 | 0 | All but 87 days partially suspended for 22m | |
| R v Wise | [2007] VSCA 266 | 22-Nov-07 | G | Y | 2 | 0 | Two counts, sentenced to 24m on each. |
| DPP v Faulkner | [2007] VSC 512 | 10-Dec-07 | G | 2 | 0 | ||
| R v Muir | [2007] VCC | 18-Dec-07 | G | N | 2 | 0 | |
| R v Parrish | [2008] VCC | 10-Jul-08 | G | Y | 2 | 0 | |
| R v Kennedy | [2008] VCC | 30-Sep-08 | 2 | 0 | Served in Youth Training Centre | ||
| R v Shewan | [2008] VCC | 17-Dec-08 | G | 2 | 0 | ||
| R v White | [2009] VSCA 177 | 06-Aug-09 | G | Y | 2 | 0 | Knife used but not to cause injury |
| R v Jay | [2009] VCC | 11-Nov-09 | G | 2 | 0 | ||
| Pamvouxoglou v The Queen | [2010] VSCA 157 | 24-Jun-10 | G | N | 2 | 0 | |
| R v Sorrell | [2009] VCC | 16-Dec-09 | NG | 2 | 3 | Wholly suspended for 2y 3m | |
| R v Pickalla | [2007] VCC | 02-Aug-07 | G | 2 | 6 | Kicking with steel capped boots | |
| R v Kennedy | [2007] VCC | 24-Aug-07 | G | 2 | 6 | ||
| R v Reed | [2007] VCC 1072 | 30-Aug-07 | G | N | 2 | 6 | To be served in YJC |
| R v Ross | [2007] VSCA 213 | 27-Sep-07 | G | N | 2 | 6 | |
| R v McDonald | [2008] VCC | 25-Feb-08 | G | Y | 2 | 6 | |
| R v Mei | [2008] VCC | 01-Jul-08 | G | Y | 2 | 6 | |
| R v Keskinen | [2008] VCC | 29-Oct-08 | 2 | 6 | |||
| R v Unwin | [2009] VCC | 01-May-09 | NG | 2 | 6 | ||
| R v Chaplin | [2009] VCC | 01-May-09 | NG | 2 | 6 | ||
| R v Sanjiv | [2009] VCC | 23-Jun-09 | G | 2 | 9 | Wholly suspended for 3y | |
| R v Xuereb | [2008] VCC | 19-Aug-08 | NG | 2 | 9 | ||
| R v Thomas | [2008] VCC | 13-Oct-08 | 2 | 9 | |||
| R v Contin | [2009] VCC | 21-May-09 | G | 2 | 9 | Push into cabinet | |
| DPP v McCloy | [2006] VSCA 99 | 03-May-06 | NG | N | 3 | 0 | Director's appeal allowed |
| R v Green | [2007] VCC | 18-Dec-07 | G | Y | 3 | 0 | |
| R v Wyley | [2009] VSCA 17 | 19-Feb-09 | G | N | 3 | 0 | Appeal dismissed |
| R v Boys | [2009] VCC | 24-Jul-09 | G | 3 | 0 | ||
| R v Humphries | [2009] VCC | 16-Nov-09 | G | 3 | 0 | Choking | |
| R v Smith | [2009] VCC | 08-Dec-09 | G | 3 | 0 | ||
| R v Vasilevski | [2009] VCC | 16-Dec-09 | G | 3 | 0 | Biting | |
| Tancredi v The Queen | [2010] VSCA 157 | 24-Jun-10 | G | Y | 3 | 0 | |
| R v Rutherford | [2009] VCC 0950 | 10-Jul-09 | G | N | 3 | 0 | 9m old victim held roughly. Late plea of guilty. |
| DPP v Karazisis | [2010] VSCA 350 | 17-Dec-10 | G | N | 3 | 4 | Director's appeal |
| R v Vandenberg | [2009] VSCA 9 | 05-Feb-09 | G | N | 3 | 6 | |
| DPP v Arney | [2007] VSCA 126 | 12-Jun-07 | G | N | 4 | 0 | Director's appeal allowed; no weapon - head came into contact with furniture |
| R v Bugmy | [2008] VCC | 25-Nov-08 | G | 4 | 0 | Unclear to which event the sentence relates | |
| R v Gemmell | [2009] VCC | 19-Jun-09 | G | 4 | 0 | ||
| R v Destratis | [2009] VCC | 13-Aug-09 | 4 | 0 | Bashed head on bed | ||
| DPP v Ripper | [2006] VSCA 282 | 14-Dec-06 | G | Y | 4 | 6 | Director's appeal allowed; sentence moderated by double jeopardy |
| R v Wu | [2009] VCC | 22-May-09 | G | 4 | 6 | ||
| R v Kerr | [2008] VCC | 18-Feb-08 | G | Y | 5 | 0 | Application for leave to appeal refused, 13-Feb-09 |
| R v Ashdown | [2009] VCC | 21-May-09 | G | Y | 5 | 0 | |
| R v Pota | [2007] VSCA 198 | 17-Sep-07 | NG | Y | 6 | 0 | |
| Ashe v R | [2010] VSCA 119 | 28-May-10 | G | Y | 10 | 0 | |
| DPP v Stewart | [2009] VSCA 220 | 02-Oct-09 | NG | Y | 11 | 0 | Director's appeal allowed; on a bond and suspended sentence at time of offending |
[294]Co-offenders are listed separately, even where their appeals were heard together.
[295]Priors involving violence, aggression, threats generally considered 'relevant'.
[296]The sentence recorded is the sentence following the appeal; where there are multiple RCSI counts, only the sentence for the most serious is recorded (with the other sentences referred to in comments); suspended sentences are included, with the suspension noted in comments; a non-custodial sentence recorded as '-' and noted in comments.
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