Brown v The Queen
[2018] VSCA 328
•6 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0091
| GAPO NAPOLEAN BROWN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KYROU and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 November 2018 |
| DATE OF JUDGMENT: | 6 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 328 |
| JUDGMENT APPEALED FROM: | DPP v Brown [2018] VCC 405 (Judge Hogan) |
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CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury – Affray – Sentenced to 7 years and 6 months’ imprisonment with non-parole period of 5 years – Whether denial of procedural fairness – Whether sentence manifestly excessive – Appeal allowed – Resentenced to 6 years and 6 months’ imprisonment with non-parole period of 4 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Gullaci | Stary Norton Halphen |
| For the Respondent | Ms D I Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
KYROU JA
NIALL JA:
On 14 February 2018, the applicant pleaded guilty to charges of intentionally causing serious injury and affray. On 23 March 2018, he was sentenced by a judge of the County Court alongside his two co-offenders, Matthew Cavalieri and Anthony Karas.
The applicant was sentenced to a total effective sentence of 7 years and 6 months’ imprisonment in the manner set out below:
Charge on Indictment Offence Maximum Sentence Cumulation
1
Intentionally causing serious injury [Crimes Act 1958 s 16]
20 years
7 years
Base
3
Affray
5 years[1]
18 months
6 months
Total Effective Sentence:
7 years and 6 months’ imprisonment
Non-Parole Period:
5 years’ imprisonment
Pre-sentence Detention Declared:
37 days
6AAA Statement:
9 years and 6 months’ imprisonment with a non-parole period of 7 years and 6 months
[1]Crimes Act 1958 s 320.
The applicant now seeks leave to appeal against his sentence on two proposed grounds. The first ground alleges that the judge made adverse findings against the applicant in circumstances that amounted to a denial of procedural fairness. The second ground is one of manifest excess.
For the reasons that follow, we would grant leave to appeal, allow the appeal on ground 1 and resentence the applicant as set out at [83] below.
The offending
The offences arose from an incident that took place at Bar Eight in Bundoora on the evening of 18 November 2016.
The victim, Ignjat Filipovic, was at Bar Eight that evening with his friend, Peter Dragisic. The applicant and his co-offenders were also at the bar as part of a group celebrating Cavalieri’s birthday.
While the victim and Mr Dragisic were playing pool, a member of the applicant’s group approached the victim and asked him what he was staring at and what his problem was. Another member of the applicant’s group intervened and the situation de-escalated. Some time later, there was a verbal exchange between the victim and several members of the applicant’s group in the area between the pool tables and the bar. Mr Dragisic pulled the victim away.
The victim then walked to the bar and ordered a drink. While he was standing at the bar, another member of the applicant’s group approached him and appeared to challenge him to step outside for a fight. The victim remained at the bar speaking to another patron.
A short time later, Cavalieri approached the bar and began speaking to the victim. Cavalieri walked away and the applicant approached the victim and said ‘Are you talking to my boys like that? You wanna fuck with my boys?’ The applicant then punched the victim in the face. The victim returned multiple punches and a kick. Karas, who had been standing in the background, punched the victim once to the face, knocking him backwards. An unknown person then punched the victim from behind which knocked him to the floor. At this point, Karas retreated and had no further involvement in the incident.
Once the victim was on the floor, he was surrounded by the applicant, Cavalieri and various unidentified co-offenders. The applicant and the unidentified co-offenders punched, kicked and stomped on the victim’s head and body. Mr Dragisic approached the victim and crouched over him in an attempt to shield him. Cavalieri unsuccessfully attempted to pull Mr Dragisic away from the victim. Cavalieri kicked Mr Dragisic before grabbing a bar stool and throwing it down onto Mr Dragisic. Cavalieri then walked away.
The applicant picked up the bar stool that had been thrown by Cavalieri, raised it high above his head, and used both hands to drive the stool down onto the victim’s head. By this point, the victim was unconscious on the floor and bleeding from the face.
The applicant was then restrained by others but made attempts to return to continue his attack on the victim. He grabbed a glass from the bar and threw it at the victim. The glass smashed on the floor close to the victim’s head.
The co-offenders left the bar with the other members of their group. Onlookers called the police and an ambulance.
The applicant was arrested on 30 December 2016. In his record of interview, he admitted to attending Bar Eight on the night of the incident and identified himself in CCTV footage. He said he knew that he had been involved in a fight, but did not recall the details because he had been drinking heavily. When he was shown CCTV footage of the fight, he admitted to punching the victim and hitting him with a stool. He was asked how he felt after viewing the CCTV footage. He said he felt ‘[p]retty shit’ and said he ‘didn’t know it went that far’. The applicant was told about the victim’s injuries and his personal circumstances and responded ‘fuck, shit, bro. Fuckin’ hell’. He said ‘I feel bad but I can’t take it back, what’s happened’.
The judge’s reasons
The judge commenced her reasons by describing the offending.[2] She noted that the victim had suffered a period of unconsciousness, facial fractures and extensive swelling and bruising to the face as a result of the attack, as well as abrasions to the cornea, back of the head, left arm and chest. He was hospitalised for two days after the incident and was re-admitted in early December 2016 for surgery to repair the fractures to his left eye socket, nasal bones, left cheekbone, left maxillary sinus wall, left lateral orbital wall, and left orbital floor. The judge referred to an exhibit comprising two photographs of the victim showing extensive injuries, particularly to his left eye and the left side of his head.[3]
[2]DPP v Brown [2018] VCC 405 [2]–[10] (‘Reasons’).
[3]Reasons [11].
The victim impact statement tendered by the prosecution detailed the emotional stress suffered by the victim and his family as a result of the incident. The victim said he felt exhausted and stressed. He described having scarring around his left eye which was a constant bad reminder of the attack and for which he required revision surgery. He also referred to financial problems resulting from his inability to work for a time following the incident. The judge observed that the consequences described by the victim were ‘understandable and foreseeable consequences of your grossly violent and antisocial conduct’.[4]
[4]Reasons [12].
After describing the applicant’s interview with police on 30 December 2016,[5] the judge turned to the applicant’s personal circumstances. She noted that he was born on 8 October 1993 and was aged 24 at the time of sentencing.[6]
[5]Reasons [13]–[14].
[6]Reasons [15].
The applicant had a number of previous appearances in the Children’s Court at Heidelberg and the Melbourne Magistrates’ Court, some of which were for violence offences.[7] Relevantly, the applicant had come before the Children’s Court on 8 February 2012 for assault with a weapon. That charge related to an incident on 20 March 2011 when the applicant and his brother attended at the home of their victim, produced machetes and waved them around before leaving the scene.[8]
[7]Reasons [15].
[8]Reasons [18].
On 14 December 2012, the applicant was sentenced in the Magistrates’ Court in relation to two road rage incidents which had occurred on 4 October 2012. The applicant had been a passenger in a vehicle which was stopped at lights. The applicant got out of the vehicle, walked towards the driver of another vehicle and punched him. He then opened the door and punched the driver in the face four or five times. The driver of the other vehicle kept driving and attempted to pass the vehicle in which the applicant was travelling. The applicant leaned out of the window and threw a tyre iron at the other vehicle which caused the window to shatter.[9]
[9]Reasons [19].
The judge observed that the applicant had not offended between his last appearance at the Children’s Court in April 2013 and the incident at Bar Eight. Her Honour remarked that the applicant’s prior offending nevertheless demonstrated that he was ‘a person capable of uncontrolled outbursts of temper and serious violent behaviour’.[10]
[10]Reasons [17].
The judge then recorded various matters in mitigation which she had taken into account. First, the applicant had pleaded guilty to the offences at the committal hearing, prior to any witnesses being called, and had expressed some remorse in his record of interview. The applicant had written a letter of apology to the victim but the judge said this could be given little weight given that the letter was tendered at the plea hearing. The judge likewise ascribed little weight to an offer to pay compensation to the victim in light of the fact that the applicant had been fully employed between the commission of the offence and the plea hearing. Her Honour accepted, however, that a payment of $1500 made to the victim was ‘a gesture of good will’.[11]
[11]Reasons [20].
The second mitigating factor was that the applicant had come from a background of disadvantage. His parents were violent towards each other and he had been physically abused by his father. In a forensic psychological assessment, Dr Mathew Barth opined that the applicant’s abusive history and emotional instability had affected his personality adjustment (although he narrowly failed to meet the criteria for a personality disorder). Dr Barth further opined that the applicant suffered from anger management issues and engaged in impulsive and reckless behaviour to mask his feelings of sadness, worthlessness and sense of emptiness. Dr Barth diagnosed the applicant with an adjustment disorder with mixed disturbance of emotions and conduct, partly attributable to the aftermath of his offending. The judge noted that the applicant’s counsel had not contended that any of the Verdins principles were enlivened.[12]
[12]Reasons [20], citing R v Verdins (2007) 16 VR 269.
Third, the judge observed that the applicant had gained some insight into the reasons for his offending. He had undertaken four sessions of an anger management course, had consulted with a psychiatric nurse on five occasions, and had taken steps to undertake an anger management program in custody. The judge accepted that this showed some steps towards rehabilitation but observed that the applicant’s trait of anger appeared to be well entrenched. Her Honour further noted that Dr Barth had described the applicant as suffering from an alcohol use disorder of a moderate to severe level, and that the applicant had made no attempt to address his substance abuse issues prior to the plea hearing.[13]
[13]Reasons [20].
Finally, the judge observed that the applicant had achieved relatively stable employment as a concreter despite his limited education and substance abuse problems. Her Honour referred to a reference from his employer and letters from his mother and partner confirming his work history.[14]
[14]Reasons [20].
The judge found that the applicant’s prospects for rehabilitation were guarded given his long-term anger management problems and the fact that he had not addressed his binge drinking problem. She stated that the protection of the community was a relevant sentencing principle.[15]
[15]Reasons [20].
The judge then turned to consider the seriousness of the offending and the applicant’s culpability. She stated that the violence perpetrated by the applicant and his co-offenders was ‘of a gross kind’ and that it was fortunate that his actions had not caused even more serious injury to the victim.[16]
[16]Reasons [21].
The judge said she regarded the offending ‘as a serious example of the offence of intentionally causing serious injury’.[17] She went on to say that:
The gratuitous ferocity with which you and others pursued the attack against your victim and your brutal smashing of the stool down onto his upturned face, while he was already immobilised, show an intent to cause really serious injury with great violence.[18]
Her Honour observed that the victim had required two separate episodes of surgery and was yet to undergo revision surgery for scarring near the left eye, as depicted in a self-portrait photograph of the victim marked Exhibit G.[19]
[17]Reasons [23].
[18]Reasons [23].
[19]Reasons [24].
The judge identified the sentencing objectives as denunciation, punishment, general deterrence, and also specific deterrence in light of the applicant’s prior involvement in violence offences. Her Honour found that, in the circumstances, the only appropriate sentence was an immediate custodial sentence of some magnitude.[20] Her Honour said some degree of cumulation was justified for the affray charge, although she would take into account the overlap between the two charges.[21]
[20]Reasons [25].
[21]Reasons [26].
The applicant was sentenced as set out in the table above. The judge then went on to sentence Cavalieri and Karas. As the applicant did not seek to advance a parity argument, it is unnecessary to consider the sentences imposed on those co-offenders.
The application for leave to appeal
The applicant seeks leave to appeal on two grounds which were formulated in his application for leave to appeal as follows:
Ground 1 — The learned Trial Judge failed to afford procedural fairness to the Applicant in making the following adverse findings.
Particulars:
a. That the victim had suffered permanent scarring to the skin around his left eye that requires revision surgery;
b. That the Applicant had intended to cause ‘really serious injury’ (as opposed to serious injury; and
c. That in terms of objective seriousness, this was a ‘serious example’ (as opposed to a mid-range example) of the offence of intentionally cause serious injury;
d. Or in the alternative, that it was not open to the trial judge to conclude that the victim had suffered permanent scarring to the skin around his left eye that requires revision surgery, which must have in turn informed the finding that this was a ‘serious example’ of the offence of intentionally cause serious injury.
Ground 2 — The individual sentence imposed on the offences of intentionally cause serious injury and affray, and the total effective sentence imposed and non-parole period fixed, are manifestly excessive.
The proposed grounds of appeal
Ground 1
There were three aspects to the applicant’s contention that there was a denial of procedural fairness. It was said that the judge had made three adverse findings without first giving the applicant an opportunity to address them in circumstances where the plea had proceeded on a basis that was contrary to those findings. The three findings were:
(a) that the victim had suffered permanent scarring to the skin around his left eye that required revision surgery (Reasons [12] and [24]);
(b) that the applicant had intended to cause ‘really serious injury’ (as opposed to serious injury) (Reasons [23]); and
(c) that in terms of objective seriousness, this was a ‘serious example’ of the offence (as opposed to a mid-range example) (Reasons [23]).
Whether any of those matters entailed a denial of procedural fairness depends largely on the context in which they arose on the plea and the extent to which they featured in the reasons for sentence.
We will deal first with the finding that the victim had sustained scarring near his left eye requiring revision surgery.
In his victim impact statement, the victim said:
Physically I had 3 fractures around my eye which required corrective surgery. These injuries have left physical scars which will require me to pay out of my own pocket, as I am thinking of getting them removed as they are a constant bad reminder.
On the plea, counsel for the applicant sought to put in issue the extent to which there had been scarring of the victim’s face requiring further medical intervention. That issue having been raised, it appears that the victim provided a self-portrait photograph of himself which the applicant’s counsel sought to tender on the plea. That photograph, which was marked Exhibit G, was tendered with the consent of the prosecutor.
After observing the photograph, the judge said that ‘as best I can judge it, it’s difficult to know, but there appears to be some sort of slight swelling or lump around the corner of the eye’. A little later, the judge raised the question whether a better quality photograph could be obtained. She went on to say:
I can’t tell whether there’s marks on his face that are somehow referable to this. I can see that there’s some indentation on the side of the face but I don’t know whether that’s supposed to be a sequel of this assault or not.
The judge raised the possibility of a plastic surgeon providing a report to try to clarify the situation. She observed that she found the photograph to be ‘of limited utility’. She went on to say ‘ I don’t know what’s what on it really, but I’ll certainly accept it for what it’s worth.‘ No further photographs were provided.
The judge referred to the victim’s scarring in two places in her reasons for sentence. In the first passage, the judge records the relevant contents of the victim impact statement, including that ‘[the victim] describes having scarring around his left eye which is a constant bad reminder of [the applicant’s] brutal attack. He states that he requires revision surgery for the scarring.‘ The judge described this, and the other consequences identified by the victim, as ‘understandable and foreseeable consequences of [the applicant’s] grossly violent and antisocial conduct’.[22]
[22]Reasons [12].
The second reference, which is more clearly expressed as a finding, occurs a little later in the reasons where the judge, directing herself to the applicant, says ‘[y]our victim required two separate episodes of surgery and is yet to undergo revision surgery for scarring near the left eye’.[23] Her Honour then refers to the photograph that had been tendered.[24]
[23]Reasons [24].
[24]Reasons [24].
The applicant submitted that he was denied an opportunity to put submissions on why the judge should not accept, to the relevant criminal standard, that there had been permanent scarring of the victim. In our view, there was no vitiating denial of procedural fairness.
The photograph which was tendered before the judge clearly showed an elongated scar to the side of the victim’s left eye. The question of scarring had been a matter raised with the parties and they were given opportunity to put submissions and further evidence on that question. It was open to the judge to make findings on the evidence before her, including the photograph, and there was no denial of procedural fairness in her doing so. The doubts that the judge expressed in argument as to what the photograph demonstrated did not preclude her from making a finding that there was some scarring to the victim which he wished to have surgically revised. Nor was the making of that finding unfair to the applicant.
The second aspect of this ground concerns the judge’s observation that the ‘gratuitous ferocity’ of the applicant’s attack and the ‘brutal smashing’ of the stool onto the victim’s upturned face showed ‘an intent to cause really serious injury with great violence’.[25]
[25]Reasons [23].
The question of the applicant’s intent was a matter canvassed on the plea. By his plea of guilty, the applicant accepted that the elements of the offence had been established, including necessarily an intent to cause serious injury.
During the course of the plea, the prosecutor addressed various matters going to the objective seriousness of the offending. Those submissions were made by reference to the decision of this Court in Nash v The Queen.[26] It will be necessary to return to Nash, however, it is sufficient to note for present purposes that there this Court referred to a hierarchy of intent ranging from, at the lower end, an intent to cause serious injury, through to an intent to cause really serious injury, and culminating in an intent to cause the maximum possible injury at the top end of the scale.[27]
[26](2013) 40 VR 134.
[27](2013) 40 VR 134, 137 [10] (Maxwell P).
On the plea, the prosecutor said whether the applicant’s intent was to cause serious injury or really serious injury or the maximum possible injury might be a matter of ‘splitting hairs’. However, venturing into the field, the prosecutor submitted that the intent was not to cause maximum possible injury to the victim but nor was it at the lower end of intent.
Counsel for the applicant submitted that, by his plea, the applicant accepted that he was intending to cause serious injury at the time of his assault on the victim. However, she said that the prosecution had not sought to maintain that his intent fell into those ‘more aggravated categories of intention to cause really serious injuries or the maximum possible injury’. Invited to respond to that submission, the prosecutor observed that the debate involved a gloss on the statutory definition of serious injury and said that, although the offending was not at the very low end of the spectrum, the applicant’s intent was confined to causing serious injury rather than intending to cause really serious injury.
Before setting out how the judge approached the matter of intent, it is convenient to canvass the third aspect of the procedural fairness ground. It is said that the judge made a finding that the applicant’s offending was a ‘serious example of the offence of intentionally causing serious injury’ without giving the applicant a fair opportunity to address that matter.
On the plea, counsel for the applicant submitted that overall ‘whilst this is clearly a very serious criminal offence, it is at the low to mid-range at the absolute most as an example of intentionally causing serious injury’. In response to that submission, the judge said that she could not accept that it was a low-range offence and that she considered it to be mid-range. Her Honour drew attention to the fact that the offence was very violent, that the victim had sought to remove himself from the situation, and the attack had been ‘a most cowardly multiple-pronged attack’ by at least four persons while the victim was on the ground and defenceless. Counsel submitted that the level of injury was less serious than other examples of intentionally causing serious injury, which often involve profound injury such as brain injury, paralysis and internal injuries. Relying on that assessment of the injury sustained by the victim, it was submitted that the offence was in the low to mid-range.
Both of the impugned findings which were said to be unfair are contained in a single paragraph of the reasons for sentence. It is convenient to set it out in full:
I regard this as a serious example of the offence of intentionally causing serious injury. It was a very deliberate attack, as evidenced by you having walked behind your victim only a very short time before your totally unprovoked first punch. At various times, the CCTV footage shows discussions between members of your group. The gratuitous ferocity with which you and others pursued the attack against your victim and your brutal smashing of the stool down onto his upturned face, while he was already immobilised, show an intent to cause really serious injury with great violence. Your victim was on the floor, totally vulnerable, and you and your associates laid into him. He may well have been unconscious before you smashed his face using the metal stool as a weapon. Although the attack did not last long it was brutal, relentless and involved at least three people against the one victim.[28]
[28]Reasons [23] (emphasis added).
The gravamen of the second complaint is that, by finding an intent to cause really serious injury, the judge sentenced the applicant on a basis that was different to, and more serious than, the case presented by the parties.
Relatedly, the third complaint was that it was agreed on the plea that the offence fell within, or was not worse than, the ‘mid-range’ for the offence of intentionally causing serious injury but that the judge sentenced on a different, and adverse, basis (namely, that it was a serious example of the offence).
It is convenient to address these complaints in reverse order.
The applicant submitted that the finding that the offending was a serious example of the offence involved an unfair departure from the submissions of both parties, apparently accepted by the judge in argument, that this was ‘mid-range’ offending.
For the following reasons, we are not persuaded that the applicant was denied the opportunity, either by way of evidence or submissions, to address the gravity of the offending when compared to other examples of the offence. The judge’s conclusion that this was a serious example of the offence was not reached in a procedurally unfair way.
In our view, the conclusion of the judge that this was a serious example of the offence of intentionally causing serious injury was correct for the reasons she gave. Putting aside the applicant’s intent, this offence was clearly a serious example because it commenced with an unprovoked first punch, it was committed in company, it was persistent and violent, it continued when the victim was on the floor and defenceless, and it culminated in the violent use of a metal bar stool as a weapon. We have viewed the CCTV footage of the incident which incontrovertibly shows that the applicant raised the metal bar stool to full height and brought it down with full force into the victim’s face when he was supine and completely unable to use his limbs to defend his head from the blow. It was a brutal act of thuggery.
None of those matters were contentious and none of them could have come as a surprise to the applicant.
The applicant fastened upon the fact that the injury actually sustained by the victim was towards the lower end of serious injury. That submission is correct in the sense that serious injury encompasses injury just short of death and injury with lifelong catastrophic consequences for the victim. However, the injuries sustained by this victim fell clearly within the statutory definition of serious injury. They involved a loss of consciousness, extensive swelling and bruising to the face, abrasions to the cornea, back of the head, left arm and chest, and extensive facial fractures requiring surgical repair. There were fractures to the left eye socket, nasal bones, left cheekbone, left maxillary sinus wall, left lateral orbital wall, and left orbital floor. Beyond any doubt, the level of force could well have caused more significant injuries, including brain injury. That it did not do so does not mean that the description of the offending as a serious example of this offence is inapt.
Not only was the finding that this was a serious example of the offence open to the judge, it was a finding which naturally followed from the agreed facts presented in the prosecution opening and the CCTV footage which the judge viewed in open court during the plea. It was not inconsistent with the joint submission that the offence was ‘mid-range’. Any potential disconnect between the descriptors ‘mid-range’ and ‘serious example’ are explained by the fact that neither phrase has a precise or immutable content and they could be used simultaneously to describe the same offending without being in conflict.
In that regard, we would note that the use of words such as ‘mid-range’ may have a tendency to mask the complex of matters that come together in the formulation of an appropriate sentence. That is particularly so where the spectrum is divided into more and more subcategories.
In Director of Public Prosecutions v Weybury,[29] Maxwell P and Hargrave JA described the use of labels such as ‘mid-range and ‘bottom of the high-range’ as ‘not helpful’, going on to caution that their use ‘may lead to sentencing judges unconsciously limiting their instinctive synthesis of a particular case by sentences in other cases classified within a particular range, rather than considering the individual facts of comparable cases’.[30] That approach is not inconsistent with there being a ‘spectrum’ but where a matter fits on that spectrum is the outcome of the process of synthesis based on the facts of the particular offence and offender rather than a starting point.[31]
[29][2018] VSCA 120.
[30]Ibid [33].
[31]See R v Kilic (2016) 259 CLR 256, 266 [19].
In the circumstances of this case, the submission that the offending was mid-range clearly accommodated the judge’s finding that this was a serious example of the offence for the reasons given by her.
We are not persuaded that the applicant was denied a fair opportunity to address the gravity of the offending by reference to where the offending stood on the relevant spectrum having regard to the particular facts of the offending and offender. It was a topic that was directly addressed by counsel for the applicant and by the prosecutor. The judge’s finding did not depart from the case in an unfair way.
We turn then to the second aspect of the ground, being the finding that the applicant intended to cause ‘really serious injury’. In our view, that finding falls into a different category from the other two findings relied on by the applicant.
The question of the applicant’s intent at the time he assaulted the victim, including when he struck him with the bar stool, was an important matter going to the gravity of the offending. By his plea, the applicant accepted that he had an intent to cause serious injury.
The basis upon which the plea proceeded was that the applicant’s intent was, in effect, reflected in the outcome, namely a serious injury but not one of a really serious or catastrophic kind. It was not put by the prosecutor that the applicant intended that the victim would suffer a much more serious injury than he in fact sustained.
That submission was grounded in the reasons for judgment of Maxwell P in Nash.[32] Nash was an appeal against sentence on a plea of guilty to a charge of intentionally causing serious injury. In the context of discussing the role of current sentencing practices, Maxwell P set out a number of matters that are routinely taken into account by sentencing judges in assessing the gravity of particular offending. They are:
[32](2013) 40 VR 134.
(d) the offender’s proven intent: was it to cause injury, or really serious injury, or the maximum possible injury?;
(e) the seriousness of the injury actually caused (both the immediate and the long-term consequences for the victim);
(f) how vulnerable the victim was;
(g) whether a weapon was used;
(h) how long the attack on the victim lasted; and
(i) whether the offender acted alone or in company.[33]
[33]Ibid 137 [10].
We note that Priest JA, with whose reasons Coghlan JA agreed, observed that the circumstances of the commission of the offence of intentionally causing serious injury are almost infinitely variable. His Honour noted variations in the duration of the attack, the use of weapons, and the extent of injury. In this last aspect, Priest JA observed that injuries widely vary, from gross and permanently disabling injuries to others that barely cross the threshold of ‘serious’.[34]
[34]Ibid 145–6 [55].
The authority cited by Maxwell P in relation to the offender’s intent was Director of Public Prosecutions v Terrick.[35] Terrick was a Crown appeal in a case where the victim had suffered catastrophic and permanent injury. The respondents submitted that, although they each intended to cause serious injury, they did not intend, and should not be sentenced, on the basis of intention to cause the full extent of the horrendous injuries actually sustained by the victim.[36]
[35](2009) 24 VR 457.
[36]Ibid 466 [39].
The Court concluded that the respondents fell to be sentenced on the basis that they intended to cause very serious injuries, if not the injuries they actually caused.[37] The facts established a ferocious attack that persisted after the victim had become unconscious and, in those circumstances, it was clear that the respondents had intended to cause ‘really serious injury’. The Court concluded that the fact that the offender did not foresee the precise nature, or extent, of the injuries actually inflicted will not ordinarily reduce the offender’s culpability.[38]
[37]Ibid 466–7 [40]–[41].
[38]Ibid 467 [41].
The precise calibration of the intent of the offender will usually assume significance where the accused contends that he or she did not intend the degree of injury actually sustained. The potential for that submission arises because of the wide range of injuries, from the threshold to the catastrophic, that fall within the offence.
The present case is unlike Terrick in the sense that the applicant sought to avoid a finding that he intended to cause an injury that was in fact more severe than was actually inflicted. In other words, it is the reverse of the Terrick situation.
In the context in which it is used in Nash, the concept of ‘really serious injury’ does not have any technical or specific meaning. It is designed to encapsulate the point that the intent of the offender may vary given the potential variation in consequence that the offence provision accommodates and that the scale of the offender’s intent is relevant to the level of culpability.
In the context where the parties specifically addressed the decision in Nash, we are persuaded that the judge sentenced the applicant on the basis of an intent that was more serious than that which the parties had jointly submitted existed. To put it another way, the judge sentenced the applicant on the basis that he intended to inflict a greater injury than that sustained by the victim. That basis departed, in a material way, from the way the plea had been argued by both defence and prosecution. That being so, the applicant was denied a reasonable opportunity to address the judge on what finding should be made in respect of the applicant’s intent.
We are not persuaded that the phrase ‘really serious injury’ was used in a generic sense and merely by way of emphasis. We consider that it constituted a specific finding by the judge on the applicant’s intent. That finding differed from the way the case was run. Although the judge was not foreclosed from making that finding (indeed, it was open on the material), the applicant was entitled to put submissions as to why she should not do so. Given the course of the hearing, there was no occasion for the applicant to make those submissions because both he and the prosecutor had made what was, in effect, a joint submission that the applicant did not intend to cause really serious injury.
The finding by the judge that the applicant intended to cause an injury at the higher end of serious injury, in the face of the specific (joint) submission to the contrary, was, we consider, unfair. As the High Court has recently reiterated, a judge is not bound to accept such a submission but, if the judge is minded not to act on a concession made by the prosecution, the failure to put the offender on notice of that inclination and give him or her an opportunity to deal with the matter by evidence or submissions will ordinarily be a miscarriage of justice. In the absence of such an indication, it will be reasonable for the offender to conduct his or her case upon the understanding that the concession will be accepted and acted upon by the court.[39] In this case, it is not possible to say that the failure could not have possibly affected the result and, for that reason, it constitutes an appealable error.[40]
[39]DL v The Queen (2018) 92 ALJR 764, 772 [39].
[40]Ibid 772 [40].
Accordingly, we would uphold ground 1 in respect of the second aspect of that ground.
Ground 2
Given the applicant’s success on ground 1, the sentence must be set aside and the applicant re-sentenced by this Court. In deference to the arguments presented on ground 2, we will briefly state our conclusion and reasons in respect of that ground.
By this ground, the applicant contends that the sentence was manifestly excessive. It is not necessary to rehearse the principles which apply to this ground. It is sufficient to reiterate that the applicant must establish that the sentence was wholly outside the range of available sentences so as to demonstrate error.[41]
[41]Hanks v The Queen [2011] VSCA 7 [22] (Bongiorno JA, with whom Redlich JA agreed). See also Clarkson v The Queen (2011) 32 VR 361, 384 [89].
In the course of argument, the applicant relied heavily on the finding of the judge in relation to the applicant’s intent and the failure of the judge to adequately address the applicant’s relative youth.
In the course of submissions on the plea, counsel for the applicant argued that the applicant was a young offender and relied on the judgment of this Court in R v Mills.[42] It was submitted that the applicant had demonstrated a willingness to address the problems underlying his offending and that, notwithstanding his prior criminal history, he had good prospects for rehabilitation.
[42][1998] 4 VR 235.
The judge did not refer to the applicant’s youth in her reasons for sentence. The judge did, however, refer to the applicant’s work history,[43] the fact that he had the support of his employer, mother and partner of four years,[44] and the fact that there had been a number of years since his prior offending.[45] The judge said that she was guarded about the applicant’s prospects for rehabilitation, going on to say that if the applicant could rehabilitate himself from long-term alcohol abuse and learn to control his anger the better side of his character would be able to assert itself. She concluded that the applicant’s rehabilitation had ‘barely begun’ and that she viewed protection of the community as a relevant principle in sentencing.[46]
[43]Reasons [20].
[44]Reasons [20].
[45]Reasons [17], [25].
[46]Reasons [20].
The judge was entirely correct to refer to the attack as being brutal and relentless and involving ‘gratuitous ferocity’.[47] There is no doubt, given the applicant’s prior convictions and the circumstances of the offence, that a substantial period of imprisonment was required for the charge of intentionally causing serious injury. Significant cumulation was also required for the affray charge because, although there was some overlap between the charges, the affray was prolonged and affected a large number of innocent patrons at Bar Eight.
[47]Reasons [23].
Even giving due weight to the applicant’s age, we are not persuaded that the total effective sentence of 7 years and 6 months’ imprisonment was wholly outside the range of sentences reasonably available to the judge. It was certainly a stern sentence but, in all the circumstances, not manifestly excessive. We would reject ground 2.
Conclusion
We would re-sentence the applicant as follows:
Charge on indictment Offence Maximum Sentence Cumulation
1 Intentionally causing serious injury
20 years 6 years Base 3 Affray 5 years 1 year 6 months
That results in a total effective sentence of 6 years and 6 months’ imprisonment. We would set a non-parole period of 4 years.
Pursuant to s 6AAA of the Sentencing Act 1991, a declaration will be made that, but for the applicant’s plea of guilty, we would have sentenced him to a total effective sentence of 8 years and 6 months’ imprisonment with a non-parole period of 6 years and 6 months.
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