Dhal v The King
[2023] VSCA 289
•29 November 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0192 |
| AKOT DHAL | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | OSBORN and WHELAN JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 November 2023 |
| DATE OF JUDGMENT: | 29 November 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 289 |
| JUDGMENT APPEALED FROM: | [2022] VCC 2033 (Judge Tinney) |
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CRIMINAL LAW – Leave to appeal – Sentence – Intentionally causing serious injury – Whether judge erred by finding premeditation – Whether judge erred in finding intention to cause really serious injury – Whether judge gave insufficient weight to applicant’s childhood deprivation – Whether sentence manifestly excessive – Leave to appeal refused.
Crimes Act 1958 s 16.
Bugmy v The Queen (2013) 249 CLR 571; Carbis v The King [2023] VSCA 285; DPP v Herrmann [2021] VSCA 160; Lukudu v The Queen [2019] VSCA 248; Packard (a pseudonym) v The Queen [2021] VSCA 56; Sabbatucci v The Queen [2021] VSCA 340; Smith v The Queen [2020] VSCA 159.
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| Counsel | |||
| Applicant: | Ms K Farrell | ||
| Respondent: | Ms J Warren | ||
Solicitors | |||
| Applicant: | Nelson Brown Legal | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
OSBORN JA
WHELAN JA:
On 10 November 2022, the applicant pleaded guilty in the County Court to one charge of intentionally causing serious injury; one charge of recklessly causing injury; and two summary charges, namely, committing an indictable offence whilst on bail and possessing a controlled weapon.
The applicant was sentenced on 21 November 2022 as follows:
Charge Offence Maximum Sentence Cumulation 1 Intentionally causing serious injury[1] 20 years’ imprisonment 11 years Base 2 Recklessly causing injury[2] 5 years’ imprisonment 2 years and 6 months 12 months Summary Charge 11 Commit indictable offence whilst on bail[3] 30 penalty
units or 3
months’
imprisonment7 days Nil Summary Charge 6 Possess a controlled weapon without lawful excuse[4] 120 penalty
units or 12
months’
imprisonment3 days Nil Total Effective Sentence: 12 years’ imprisonment Non-Parole Period: 8 years and 6 months’ imprisonment Section 6AAA Statement: 14 years and 6 months’ imprisonment with a non-parole period of 11 years [1]Contrary to s 16 of the Crimes Act 1958.
[2]Contrary to s 18 of the Crimes Act 1958.
[3]Contrary to s 30B of the Bail Act 1977.
[4]Contrary to s 6(1) of the Control of Weapons Act 1990.
Grounds of appeal
The applicant seeks leave to appeal against sentence on the following proposed grounds:[5]
1.The Learned Sentencing Judge erred in finding that the offending was premeditated, and that the applicant intended to cause really serious injury.
2.The Learned Sentencing Judge did not give sufficient weight to the Applicant’s deprived upbringing and the application of the Bugmy principles.
3.The sentences imposed on charges 1 and 2, the total effective sentence of imprisonment and non-parole period are manifestly excessive and outside the range of sentences reasonably open in the circumstances.
[5]For ease of reference we will hereafter refer to the proposed grounds as grounds.
Circumstances of the offending
The victim of the intentionally causing serious injury offence was Nyakol Malith. She was aged 21 years at the time of the offending. Ms Malith had been in a relationship with the applicant which had ended days prior to the offending.
The victim of the recklessly causing injury offence was Abraham Kur. Mr Kur was aged 28 years at the time of the offending and was a friend of the applicant.
On Monday 7 March 2022, Ms Malith left her mother’s residence in St Albans to go out for the afternoon with two of her friends.
The applicant and Mr Kur were also out together. The applicant consumed a number of alcoholic drinks throughout the day.
The applicant attended Ms Malith’s residence and told her mother that he was looking for Ms Malith. That evening, Ms Malith attended the St Albans Hotel in St Albans.
At 11:11 pm, the applicant, Mr Kur and a third male arrived at the hotel. Once inside, the three males went to the bar, purchased drinks and sat in the lounge in the gaming room for a short time.
Minutes later, the applicant went to a smoking area of the hotel. Ms Malith was in the smoking area and speaking to other males.
The applicant told Ms Malith to go home with him. She refused.
At 11:19 pm, Ms Malith walked into the gaming room and approached Mr Kur and the third male. The applicant was following Ms Malith. CCTV footage from the hotel shows the applicant taking a knife from his pants as he enters the gaming room behind Ms Malith. Ms Malith has her back to the applicant. As he approaches her, she is greeting Mr Kur with a hug.
Whilst Ms Malith was hugging Mr Kur, the applicant swiped the knife across her buttock area. Mr Kur turned Ms Malith away from the applicant. The applicant swiped the knife at Ms Malith again. Mr Kur, holding Ms Malith and moving her away from the applicant, was stabbed in the left forearm. Mr Kur ran from the applicant. The applicant again swiped the knife at Ms Malith, stabbing her in the abdominal region. Ms Malith then also ran away from the applicant.
The applicant returned the knife to within his clothing before leaving the hotel and returning to his vehicle. Once at his vehicle, he paced around for a short period.
He then walked north along Ena Street, St Albans before throwing an item into the grounds of a church.
At 11:26 pm, the police arrived at the hotel. The police were directed to the suspected location of the applicant. They arrested him in Ena Street. A search of the grounds of the church located the knife he used in the attack. It was a boning knife. The applicant worked as a butcher.
The applicant was taken to Sunshine Police Station where he was interviewed. He admitted having attended the hotel. He said that he was drunk. He denied stabbing anyone or witnessing an assault. He denied that he knew Ms Malith or Mr Kur.
Ms Malith and Mr Kur were conveyed to the Royal Melbourne Hospital by ambulance.
Ms Malith was unconscious and in haemorrhagic shock due to blood loss upon arrival at hospital. Her injuries were life-threatening. She was placed in an induced coma and underwent emergency surgeries, blood transfusions and other medical procedures to prevent death. The injuries she sustained were a sharp force injury which pierced crucial organs including the liver, massive bleeding into the abdominal cavity, a buttock wound with rectal perforation, high-grade lacerations to the stomach and liver and multiple cuts to the small intestine, and a collapsed left lung.
The sentencing judge summarised the medical evidence as follows:
An emergency laparotomy was performed at the hospital and her various internal injuries were explored and repaired. Her gall bladder was removed. There was surgical exploration of her rectum owing to the intestinal injuries and the need to create a diverting stoma. A second stoma had to be created. There was injury to the right branch of the portal vein, which is the main vein between the bowels and the liver. She was in intensive care for six days and in hospital for over two weeks and was discharged on 21 March with a stoma bag in place, with a review scheduled in the colo-rectal unit in the following two to three months. The stoma was in place at the time of her VARE in April of this year. As I say, the review within the unit was to take place two to three months after her discharge from hospital. The report of Dr Shreiber speaks of the need for further surgeries. It speaks also of the future risks to her of abdominal and bowel complications, scars, spontaneous lung collapse [and], of course, psychological issues as well arising from this trauma. I know from the materials before me that she had an emergency laparotomy. The presence of scars is a given.[6]
[6]DPP v Dhal [2022] VCC 2033, [11] (‘Reasons’).
Updated medical or other evidence of Ms Malith’s condition and her subsequent treatment was not available to the sentencing judge on the plea, despite extensive efforts to obtain that information.
Mr Kur sustained a sharp force injury to the left forearm, with nerve and extensive muscle and tendon injuries that required specialist plastic surgery to repair.
Criminal and personal history
The applicant was 31 years of age at the time of the offending and at the time of sentence. He has prior convictions for recklessly causing injury, assaulting police, unlawful assault and common assault, and for contraventions of family violence intervention and safety orders. On 4 October 2017, he was sentenced in the Sunshine Magistrates’ Court to 3 months’ imprisonment for offences of contravening family violence final intervention order, contravening family violence safety order, and common assault.
At the time of the offending, the applicant was on bail in relation to charges arising out of an incident on 7 February 2020. A week after he was sentenced for the offences the subject of this application, he pleaded guilty and was sentenced in the Sunshine Magistrates’ Court for offences of assaulting an emergency worker on duty, unlawful assault, refusing a preliminary breath test, careless driving of a motor vehicle, and breach of alcohol interlock condition. He was sentenced to a total effective sentence of 6 months’ imprisonment and was fined.
On the plea, a report from Mr Simon Candlish, consultant psychologist, was tendered. That report, amongst other things, set out the applicant’s personal background, the results of some psychological testing, and Mr Candlish’s opinion of the risk of subsequent violent offending.
Mr Candlish’s report indicated that there were grounds for concern as to the reliability of some of the matters the applicant told Mr Candlish and as to the results of some of the psychological tests.
In relation to the applicant’s personal history, the judge summarised the position as follows:
I do not doubt that you were born in Sudan in January 1991. You are 31 years of age. Like many born in Sudan in that timeframe, I am satisfied that you would have had a difficult life, to some extent exposed to violence and dysfunction. I am satisfied you have never met your father and had only limited time with your stepfather, who had other family commitments. I am prepared to accept that there was some domestic violence in that relationship with your mother. Maybe you were exposed to physical violence and sexual misconduct yourself, though the extent of that is really quite impossible for me to determine. However, when growing up in Sudan, I do not doubt that you witnessed and experienced many things that no child should. I have dealt with enough people from that region to understand some of the realities of life in that region in that timeframe.
Your family were poor. You were an only child but had five half siblings. You had no schooling to speak of until you emigrated to this country and prior to that as a 12 year old, you stayed in a refugee camp in Kenya for 12 months. It is all unenviable.
You came to Australia with your uncle in 2004 and settled in Melbourne as a 13 year old. Family members joined you in due course. You were illiterate even in your own language and could speak very little English, so again it requires no imagination at all to accept that it was a very tough start in this country as well. There was some racial abuse but you completed Year 12, which is to your credit. You have worked reasonably consistently in the meat industry, often as a boner.
As I have said, you are an Australian Citizen.
You met your long-term ex-partner in 2012 and you had six children together. You purchased a home in 2015 or 2016. I was informed that you had abused alcohol and engaged in family violence in the course of that relationship. I was told that you attempted suicide in 2019. That relationship ended in 2021, though you kept seeing each other and your partner has subsequently moved interstate, so you have no contact with her or any of the children.
You had only a very short-term relationship with Ms Malith.[7]
[7]Ibid [37]–[42].
The judge observed that the applicant’s previous acts of violence had ‘all targeted women’.[8]
[8]Ibid [44].
In his report which was tendered on the plea, Mr Candlish expressed the opinion that Mr Dhal had a personality impairment at the time of the offending, as well as a substance use disorder and a depressive disorder. He expressed the opinion that Mr Dhal’s personality impairment was of mild severity, but that his substance use disorder was severe, and that his depressive disorder was likely to have been at least of mild severity. He stated that Mr Dhal had been exposed to ‘significant childhood adversity’ and had also encountered disruption and the need to adjust to a completely different culture upon arriving in Australia. Mr Candlish said that Mr Dhal struggled with ‘self-direction’ and had an underlying sense of distrust. He perceived hostility from others, was emotionally detached, and had ‘chronic anger’ related to his insecurity and trust issues. He expressed the view that these issues appear to relate to the impact of his childhood adversity.
Mr Candlish gave oral evidence on the plea. Aspects of that evidence to which we were referred by the applicant’s counsel, will be referred to subsequently.
In relation to risk, in his report Mr Candlish expressed the view that the nature of the risks to be addressed concerned assault on an intimate partner or ex-partner, and assault of police or a stranger. He expressed the opinion in this context that the applicant ‘again could use a knife’. Mr Candlish’s assessment of the extent of the risk was as follows:
Taking into account the actuarial risk outcome and structured professional judgment approaches, Mr Dhal is considered to fall into the Moderate–High risk category for violence of the nature outlined in the risks scenarios section. He displays a high number of risk-relevant factors and a low level of protection. Mr Dhal has revealed some potential past extended periods of desistance from aggression based on his offending history. This risk category is provided based on the assumption that he is not subject to further intervention such as monitoring, supervision and treatment.
Sentencing reasons
In relation to the seriousness of the intentionally causing serious injury offence, the judge said:
As to the intentionally causing serious injury, one can almost always hypothesise a more extreme or serious example of any crime but that is certainly not the best way to assess the gravity of the offence before the Court, especially where the matter before the Court has so many features of aggravation as this instance of intentionally causing serious injury plainly does.
…
As I said a moment ago, when dealing with the wide variation of offences captured by the crime of intentionally causing serious injury, some can be caused by a single punch. Some might have injuries which barely cross the threshold of the definition of serious injury. That is not what I am dealing with. I am dealing with two knife wounds, including one to a vital area, committed upon your unarmed ex-intimate partner, at night, in a crowded public place with not the slightest hint of any warning.[9]
[9]Reasons, [116], [120].
The passage in the Reasons which is the basis of the complaint in ground 1 concerning premeditation is the following:
I have no doubt at all that this was a premeditated act to some extent. I am not saying I can find to the required degree that everything was mapped out in advance and that you had some crystal clear plan of action. I am certainly not satisfied beyond reasonable doubt that you have entered that club intending to stab her in the way that you did or in any way for that matter, but I have no doubt that you entered with some confrontation in mind. No doubt at all. You wanted to speak to her about the relationship. I cannot find to the required degree that you have actually taken the knife with you for that purpose. I have no doubt at all, though, that you were seeking her out to confront her. You then determined to use the knife that you had with you to exact revenge. I am satisfied of that beyond reasonable doubt. So within the club there was obviously some premeditation. As I say, the footage is very clear as to when that knife was produced from your clothes.[10]
[10]Ibid [104] (emphasis in original).
The reference to the ‘footage’ was a reference to the CCTV footage previously referred to.
The passage in the Reasons which is the basis of the complaint in ground 1 concerning intention is the following:
Yours was a deliberate armed attack committed out of the blue and without warning, and I am satisfied beyond reasonable doubt that you intended to cause really serious injuries.[11]
[11]Ibid [122].
Before the sentencing judge, reliance was placed upon the principles in Bugmy v The Queen (‘Bugmy’).[12] In that regard, the judge relevantly said:
An offender’s individual circumstances will always be of importance to a court. Your background was, as I have said, one of significant enough disadvantage. The effects of childhood deprivation and trauma are not just matters of historical significance that can be shrugged off or ignored. Taking lifelong damage that is the result of childhood exposure to violence or sexual or physical abuse or neglect into account when sentencing is just the mark of a humane society, and it is no answer at all to say that those events occurred when you were a child. The effects of these things do not just diminish with the passage of time. They do actually leave their mark. I am satisfied that you had an unenviable early life and then had to adjust to an entirely different world upon migrating to this country. None of that has been easy.
…
Regrettably, enough men have difficulty coping when a relationship ends. Enough people, both with or without significant disadvantage in their early lives, experience anger or possessiveness or jealousy or rage in such a setting and erupt or act violently. Enough of them, who so act in that way, are disinhibited by alcohol or drugs. Your own letter spells out your thoughts about the contribution of alcohol. I cannot find to the required degree that there is any true causal link or nexus between your background and these crimes. By the way, had that nexus been established on balance, though no doubt leading to greater moderation of your culpability, as well as some of the other sentencing purposes on the one hand, on the other, it is the sort of thing which would likely elevate the need for community protection. Anyway, as I say, I am not satisfied that there is any direct causal link demonstrated here. I am, however, satisfied of the existence of the disadvantage such as to apply the principles from Bugmy to my task, and I do.
There cannot be substantial allowances here, and that is owing to the startling nature of the violence here and the need to protect the community from you and to deter you and others from future offending. They are very important purposes in this case. Further, you have chosen to drink alcohol and to disinhibit yourself in that respect. That is not in any way mitigatory.
I give then full weight to your background, as that phrase is used in cases such as Bugmy … .[13]
[12](2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
[13]Reasons, [48], [55]–[57].
As to other mitigating factors, the sentencing judge accepted that the applicant’s plea of guilty was at the earliest opportunity, and that the plea had additional utilitarian value as it was entered during the COVID-19 pandemic in accordance with the principles in Worboyes v The Queen.[14] In relation to remorse, the judge referred to the absence of any remorse when interviewed by police; the absence of any expression of remorse in the discussions with Mr Candlish; and aspects of a letter of apology which the applicant had written which, in the judge’s view, contained aspects of ‘deflection’, particularly in attributing his conduct to the effects of alcohol.[15] In the end, the judge was not satisfied that there was ‘much remorse in this case at all’.[16] In relation to rehabilitation, the judge concluded that there were ‘some prospects’, but they were ‘quite guarded’.[17] The judge accepted that the circumstances of the pandemic, in some respects, increased the burden of imprisonment.[18] The judge made a ‘modest allowance’ based upon the application of the fifth limb of R v Verdins (‘Verdins’)[19] (increased burden of imprisonment by reason of impaired mental functioning).[20]
[14]Ibid [60]–[64], citing [2021] VSCA 169.
[15]Reasons, [65]–[67].
[16]Ibid [68].
[17]Ibid [74].
[18]Ibid [75]–[79].
[19](2007) 16 VR 269; [2007] VSCA 102.
[20]Reasons, [86].
Ground 1 — premeditation and intention — submissions
It was submitted on behalf of the applicant that the judge’s finding of premeditation, which he treated as an aggravating feature, was not open. It was submitted that the sentencing judge could not have been satisfied of that fact beyond reasonable doubt. It was submitted that the applicant’s offending was an ‘immediate response’ to his interaction with Ms Malith in the smoking area.
In relation to the finding that the applicant had intended to cause really serious injury, it was submitted that this was another adverse finding which had to be established beyond reasonable doubt as it was a finding concerning ‘really’ serious injury as opposed to serious injury. It was submitted that there had not been a ‘sustained or persistent attack’. The applicant sought to draw a contrast with the sustained and persistent attack in DPP v Terrick (‘Terrick’).[21] The applicant also submitted in relation to this conclusion that there had been an absence of procedural fairness as the finding had not been foreshadowed during the course of the plea and counsel for the applicant had not had the opportunity to address it.
[21](2009) 24 VR 457; [2009] VSCA 220.
In relation to the finding concerning premeditation, it was submitted on behalf of the respondent that a viewing of the CCTV footage reveals that the sentencing judge’s findings ‘cannot realistically be impugned’. It was submitted that the sentencing judge had carefully analysed the matters of which he could and could not be satisfied. What he found was that the applicant had gone to the hotel with ‘some confrontation in mind’. He specifically did not find that the applicant went intending to attack Ms Malith with the knife. It was submitted that the judge’s finding concerning premeditation was that the CCTV footage showed that the applicant had determined to use the knife to ‘exact revenge’ when he entered the gaming room, because the CCTV footage shows him taking the knife from his clothes at that point.
In relation to the judge’s finding concerning intention, the respondent submitted that there could be no issue that the injuries in fact caused were very serious. It was submitted that the use of the knife means that Terrick is not a relevantly similar case. The applicant had demonstrated his intention by his actions.
In relation to the issue raised as to procedural fairness, the respondent submitted that the prosecution written submissions on the plea had expressly stated that ‘Mr Dhal must have intended to cause the victim … really serious injury when he stabbed her’.
Ground 1 — premeditation and intention — consideration
Having viewed the CCTV footage, and carefully considered what the sentencing judge actually said, in our opinion, what the sentencing judge said about ‘premeditation’ was correct. The judge was saying no more than that the CCTV footage made it clear that the applicant had determined to attack Ms Malith with the knife as he entered the gaming room. The CCTV footage shows him taking out the knife as he enters while her back is turned to him. There was no relevant error in the judge’s conclusion.
In relation to the judge’s statement that the applicant had intended to cause really serious injury, we also consider that there was no relevant error. The CCTV footage of the attack, the nature of the weapon used, the applicant’s familiarity with that weapon, and the nature of the injuries in fact inflicted mean that, in our opinion, his Honour’s conclusion was not only open, but was correct.[22]
[22]See Carbis v The King [2023] VSCA 285.
We do not consider that there was any lack of procedural fairness. The issue was expressly raised in the prosecution submissions on the plea.
In those circumstances, leave to appeal will be refused on ground 1.
Ground 2 — Bugmy — submissions
The applicant relied upon the written report, and the oral evidence, of Mr Candlish in support of the contention that the sentencing judge did not give sufficient weight to the applicant’s deprived upbringing and the application of the Bugmy principles.
In addition to the contents of the written report, the applicant relied upon passages in the transcript of Mr Candlish’s oral evidence, in particular a passage where he expressed the view that Ms Malith’s refusal to go home with him was a ‘trigger’ for the applicant, as was seeing Ms Malith ‘out socially and interacting in a friendly manner with … peers’; and a passage where Mr Candlish said that as a consequence of his personality disorder, the applicant lacked the capacity to ‘self-regulate’. In that context, Mr Candlish stated that the applicant’s ‘aggression seems to be particularly related to relationships’, which he considered provided evidence of his problems with ‘interpersonal functioning’.
In relation to the proposition that the applicant’s psychological condition might increase the need for community protection, counsel for the applicant accepted that possibility, but submitted that it did not ‘cancel out’ the mitigating effect of the deprived background.
The respondent submitted that the sentencing judge had carefully considered and applied the principles in Bugmy. It was submitted that the sentencing judge had accepted the existence of disadvantage, but had appropriately also referred to the relevant contribution of alcohol and to the need for community protection.
Ground 2 — Bugmy — consideration
In DPP v Herrmann, this Court said that the High Court in Bugmy ‘expressed in two different ways the potential relevance of childhood deprivation to the assessment of moral culpability’.[23]
[23][2021] VSCA 160, [36] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA) (‘Herrmann’).
The first, more general, expression was as follows:
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[24]
[24]Bugmy (2013) 249 CLR 571, 594 [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37, quoted in Herrmann [2021] VSCA 160, [36].
The second, more specific, expression was in these terms:
An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[25]
[25]Bugmy (2013) 249 CLR 571, 595 [44]; [2013] HCA 37, quoted in Herrmann [2021] VSCA 160, [37].
Childhood deprivation may be taken into account as a background circumstance when imposing sentence.[26] But it may also reduce the moral culpability of the offender.[27] There is no requirement that the disadvantage or deprivation be ‘profound’ in order for such a reduction to apply.[28]
[26]Kruger v The King [2023] VSCA 149, [41]–[42] (Beach and Taylor JJA).
[27]Bugmy (2013) 249 CLR 571, 594 [40], 595 [44]; [2013] HCA 37.
[28]Sabbatucci v The Queen [2021] VSCA 340, [21]–[25] (Maxwell P and Emerton JA); Newton (a pseudonym) v The King [2023] VSCA 22, [37], [42]–[43], [45] (Beach and Macaulay JJA) (‘Newton’).
Deprivation will not, however, always result in an amelioration of sentence. The sentencing judge must evaluate the extent to which past disadvantage has featured in the offender’s upbringing and impacted the course of their life.[29] As this Court said in Sabbatucci v The Queen:
Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[30]
[29]Magee v The King [2023] VSCA 80, [40] (Beach and Niall JJA).
[30][2021] VSCA 340, [6], quoted in Newton [2023] VSCA 22, [37].
Most importantly in this case, whilst deprivation may result in a reduction in moral culpability, it may at the same time bear upon the weight of other sentencing principles, such as by increasing the importance of protecting the community from the offender.[31]
[31]Bugmy (2013) 249 CLR 571, 595 [44]; [2013] HCA 37. See also Munda v Western Australia (2013) 249 CLR 600, 621 [58] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ); [2013] HCA 38, quoting R v Engert (1995) 84 A Crim R 67, 68 (Gleeson CJ, Allen J agreeing at 72, Sully J agreeing at 72).
In our opinion, no error has been demonstrated in the manner in which the judge applied the principles in Bugmy to this case. He expressly said that he accepted that the principles in Bugmy applied. He appropriately referred to factors which lessened their mitigatory effect in this case.
In our opinion, this is a case where consideration of the applicant’s deprived background, and the effects of that background on his psychological make-up, particularly insofar as current and former intimate partners are concerned, significantly increases the need for community protection.
Leave to appeal will be refused on this ground.
Ground 3 — manifest excess — submissions
The applicant submitted that the sentences imposed were manifestly excessive, given his early guilty plea, application of the Bugmy principles, application of limb five of Verdins, the impact of COVID-19 on his custodial experience, the support which he still has from his family, his remorse, and his prospects of rehabilitation. Particular reference was made to what were said to be two comparable cases, being Packard (a pseudonym) v The Queen (‘Packard’),[32] and Lukudu v The Queen (‘Lukudu’).[33]
[32][2021] VSCA 56.
[33][2019] VSCA 248.
The respondent submitted that the applicant’s attack had visited horrific injuries on a 21 year old young woman. It was submitted that the ‘intimate partner setting’ was significant and that the applicant had been motivated by jealousy and revenge. The applicant was said to constitute a significant risk of reoffending, particularly in relation to intimate partners.
Ground 3 — manifest excess — consideration
It is trite to observe that manifest excess is a difficult ground to establish. It is necessary to establish that the sentence, or sentences, imposed was, or were, wholly outside the range of sentencing options available to the judge.
The two cases relied upon by the applicant as being comparable do not, in our opinion, support the conclusion that the sentences imposed here, or the total effective sentence and the non-parole period, are manifestly excessive.
In Packard, a sentence of 7 years’ imprisonment with a non-parole period of 4 years and 6 months was imposed upon the offender for intentionally causing serious injury. The offender stabbed his wife four times in the abdomen and once in the buttock. The injuries were less severe than those in the present case. The victim was hospitalised for 8 days and made a full recovery. The judge accepted that the offending was not premeditated and that when the offender came upon the knife, he used it ‘opportunistically’; the offender was previously of good character and did not have a relevant criminal history; and that he expressed ‘deep and genuine remorse’, and had ‘excellent’ prospects of rehabilitation.[34]
[34][2021] VSCA 56, [11], [15], [24], [30] (Kaye JA).
In Lukudu, a sentence of 9 years’ imprisonment with a non-parole period of 6 years and 9 months was imposed upon the offender. The offender stabbed the victim 11 times. Although the injuries were extensive, the victim was able to return to work after some months. The offender had displayed some remorse but it was ‘nuanced’. He had ‘moderate but guarded’ prospects of rehabilitation. His criminal history was much less extensive than the applicant’s. The offender also put his time in remand to ‘good use’, completing courses to address his substance use and enhance his employment prospects.[35]
[35][2019] VSCA 248, [12]–[14], [17], [26]–[29] (Niall and Ashley JJA). See also DPP v Lukudu [2018] VCC 1191, [56]–[57], [104], [132] (Judge Gamble).
Unlike the offender in Packard, and perhaps also Lukudu, the applicant’s prospects of rehabilitation are ‘quite guarded’.[36] The evidence reveals he represents a significant risk of violence to intimate partners and former partners in the future. The applicant’s criminal history is more concerning than that in either Packard or Lukudu, particularly in relation to intimate partners and former partners, and he has repeatedly disobeyed intervention orders.[37] He was on bail at the time of offending.[38] The remorse which existed in the case of Packard is absent here.[39]
[36]Reasons, [74].
[37]Ibid [44], [113].
[38]Ibid [44].
[39]Ibid [65]–[69].
The fact that the victim was the former partner of the applicant, and the fact that the applicant has prior convictions for assaults on a partner or former partner, were significant. As this Court said in Smith v The Queen, male violence against women is a ‘scourge of our society’, and those who engage in it ‘should be in no doubt that offending of this kind will attract very heavy sentences’.[40]
[40][2020] VSCA 159, [7] (Maxwell P, Kyrou and Weinberg JJA).
The offending in this case visited horrific injuries on a 21 year old former partner. The applicant was motivated by jealousy and revenge. He used a boning knife. As a result of his work as a butcher, he was familiar with the effect of the use of such a knife. He made three attempts to strike the victim, injuring his friend, who was attempting to protect her in the course of one of those attempts. He has relevant prior convictions. There is a significant risk of reoffending. Both specific and general deterrence are very important. There is little evidence of significant genuine remorse. His prospects of rehabilitation are guarded.
In these circumstance, there is no basis for a conclusion that the sentences are manifestly excessive.
Leave to appeal on this ground will be refused.
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