Director of Public Prosecutions v Betrayhani; Betrayhani v The Queen
[2019] VSCA 150
•26 June 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0277
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| LEONARD BETRAYHANI | Respondent |
S APCR 2018 0290
| LEONARD BETRAYHANI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL ACJ, BEACH and NIALL JJA |
| WHERE HELD: | WARRNAMBOOL |
| DATE OF HEARING: | 17 May 2019 |
| DATE OF JUDGMENT: | 26 June 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 150 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1964 (Judge Hogan) |
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CRIMINAL LAW – Appeal – Conviction – Recklessly causing serious injury – Hard punch to head – Victim hit head on footpath – Whether injuries caused by punch or when victim hit his head – Whether applicant foresaw probability of serious injury – Whether verdict unsafe – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Crown appeal – Recklessly causing serious injury – Sentence of 4 years’ imprisonment, non-parole period of 3 years – King hit – Single punch to the head – Attack without provocation – Catastrophic injuries to victim – Permanent brain injury – Foreseeability of serious injury – No remorse – Criminal record of similar offences – Random street violence – General deterrence – Specific deterrence – Denunciation – Sentence manifestly inadequate – Resentenced (7 years’ imprisonment, non-parole period of 5 years) – Al Wahame v The Queen [2018] VSCA 4 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B F Kissane QC with Mr P J Smallwood | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent/Applicant | Mr R Richter QC with Mr T Wallwork | Defteros Lawyers |
MAXWELL ACJ
BEACH JA
NIALL JA:
Summary
Leonard Betrayhani was convicted by a County Court jury of one charge of recklessly causing serious injury. The jury found him not guilty of the more serious charge of intentionally causing serious injury. He was sentenced to 4 years’ imprisonment, with a non-parole period of 3 years.
The offending occurred late on a Saturday evening, outside a hotel in Apollo Bay. Stephen Morrow was standing on the footpath when Betrayhani punched him to the head. The punch forced Mr Morrow to fall backwards, striking his head on the footpath. He suffered serious head injuries, which required emergency surgery, and he has been left with a permanent brain injury and associated, permanent cognitive changes. He requires assistance from his son with all of the activities of daily life.
Betrayhani seeks leave to appeal against conviction, principally on the ground that the jury could not have been satisfied beyond reasonable doubt that, when he struck Mr Morrow, he realised that the blow would probably cause serious injury. A related submission is that the judge erred in her directions to the jury by failing to distinguish between the punch itself — which, it was said, was not very forceful — and the catastrophic consequences of Mr Morrow’s fall to the footpath.
The Director of Public Prosecutions, on the other hand, has appealed against the sentence on the ground of manifest inadequacy. The Director submits that, given the objective gravity of the offending conduct and the very serious injury caused, the sentence imposed was ‘wholly outside the range’ reasonably open to the sentencing judge.
For reasons which follow, we would refuse leave to appeal against conviction. It was well open to the jury, in our view, to infer from the circumstances that, at the time he struck Mr Morrow, Betrayhani realised that serious injury would be the probable result. There was no misdirection.
We would, however, uphold the Director’s appeal against sentence. This was, in our view, a very serious instance of the offence of recklessly causing serious injury. The sentence imposed did not, in our view, reflect the gravity of the offence, or Betrayhani’s moral culpability, or the need for general deterrence. It was a significant sentencing consideration that Betrayhani had run a trial and was therefore not entitled to the discount which attaches to a plea of guilty.
The circumstances of the offending
On Saturday 6 August 2016, Betrayhani was in Apollo Bay, visiting his girlfriend (‘S’), who was employed as the interim manager for the Comfort Inn. The Inn is situated on the Great Ocean Road, next door to the Brewhouse Hotel. The hotel itself is on the corner of the Great Ocean Road and McLaren Parade.
After having dinner and drinking some alcohol, Betrayhani and S arrived at the hotel at approximately 10:30 pm. A considerable number of people were present at the hotel, listening to some local musicians who were performing. Mr Morrow was one of them. He was then aged 66. He was accompanied by several members of his family.
CCTV footage from inside the hotel showed that, at approximately 11:30 pm, there was an exchange between Betrayhani and an off-duty member of the hotel staff (‘J’). Footage shows Betrayhani thrusting both arms out to their full length and forcefully pushing J, who was facing him. J was pushed backwards for a couple of metres. As there were a number of patrons in the immediate vicinity, J appears to have grabbed hold of Mr Morrow to steady himself.
Mr Morrow appears to have remonstrated with Betrayhani, and, shortly after, to have motioned to Betrayhani to go outside. A number of males appeared to follow, some immediately and others more gradually as they got up from seated positions at the bar. S, together with another female and several other males, left the hotel a short time afterwards, heading towards the street. Mr Morrow came back into the hotel after only a minute, but then went outside again. The judge in her sentencing reasons concluded that, when Mr Morrow motioned to Betrayhani to go outside, he was ‘endeavouring to be a peacemaker and telling [him] to take any aggression outside the hotel’. There was no challenge to that characterisation on the appeal.
When Mr Morrow left the hotel the second time, he was carrying what appears to be a glass of beer in his right hand, and walking towards the McLaren Parade corner of the hotel. According to the evidence before the jury, there appeared to have been a number of confrontations taking place in McLaren Parade, outside the hotel, where there were no CCTV cameras.
Betrayhani crossed the road to where Mr Morrow was standing and struck him to the side of the face. The judge found that, at the time Mr Morrow was struck, he was ‘simply standing on the footpath observing what was going on’. Mr Morrow was not looking in the direction of Betrayhani when he was struck.
Eyewitnesses gave varying descriptions of the blow, as follows:
·Betrayhani ‘sprinted across the road almost. He was moving fast … [He hit Mr Morrow] [j]ust the once … It was an extremely hard hit … [Mr Morrow’s] whole body fell backwards like dead straight … he was knocked out’;
·Betrayhani ‘hit him with some force … He hit the deck straight away’;
·Betrayhani ‘came charging at [Mr Morrow] quite fast … He hit [him] in the face … It was quite a direct hit … and it seemed to have gotten [Mr Morrow] in the lip … [Mr Morrow] was facing the opposite way … He didn’t step back … he hadn’t put his hands up to block himself’;
·Mr Morrow ‘appeared to be unconscious as he fell … and then he landed on the concrete’. The person who hit him ‘came from the other side … [Mr Morrow] looked like he’d been knocked out from the blow’;
·Betrayhani ‘came up out of nowhere and smacked him, fair hit him square in the face … but out of [Mr Morrow’s] peripheral sight.’ Betrayhani hit him ‘kind of [near] the temple … it was more [to] one side of his face’. The punch caused Mr Morrow to fall ‘backwards’;
·Mr Morrow had not ‘done anything’ to Betrayhani before he was hit. He was stationary and Betrayhani punched him ‘to the head’ and it was ‘hard enough to make him unconscious’. Mr Morrow ‘went stiff immediately’ as he was ‘standing and fell backwards’ and ‘hit his head on the ground’.
The judge described Mr Morrow’s injuries as consisting of:
a left subdural haematoma with a midline shift, a left front intra-parenchymal haemorrhage, a left temporal pole haemorrhage, a small traumatic frontal subarachnoid haemorrhage and a non-displaced right occipital fracture at the back right part of his head, where his skull meets his neck.[1]
Mr Morrow was airlifted to the Royal Melbourne Hospital, where he underwent an emergency decompressive hemicraniotomy to relieve pressure on his brain.
[1]DPP v Betrayhani [2018] VCC 1964, [6] (‘Reasons’).
The long-term impact on Mr Morrow has been catastrophic. As the judge summarised it, the medical evidence established that:
he would have permanent cognitive changes to his thinking. He has very severely impaired attentional skills, is easily distracted, needs frequent prompting, difficulty with higher level attentional tasks, very severely reduced speed-processing problems with information and significantly impaired memory and new learning skills. [Mr Morrow] suffer[s] severe executive dysfunction with impaired ability to reason and difficulties with such things as planning, problem-solving, reasoning and judgment, and his high-level complex cognitive tasks were significantly impaired. He was also impulsive and disinhibited and required close supervision in personal activities such as showering and dressing. … Mr Morrow is dependent upon his son for all domestic tasks, such as cooking, cleaning, bed-making, washing his clothes and all community activities. He suffers a disorder of initiation in that he has a lack of enthusiasm for doing activities … His traumatic brain injury is a permanent condition.[2]
[2]Ibid [9].
Betrayhani gave a ‘no comment’ record of interview. He did not give evidence at his trial. His counsel put to witnesses that he had been the subject of a brutal attack by multiple people, who had kicked and punched him on the roadway, and that this attack was continuing at the time when he punched Mr Morrow. (This version of events was the basis of a defence of self-defence.)
The judge made the following finding in her sentencing reasons:
With the exception of your girlfriend [S] (who was the subject of an unreliable witness direction due to having given some three differing versions of events), no witness supported such proposition.
She made the following finding about the circumstances of the blow:
I am satisfied beyond reasonable doubt, in accordance with the jury’s verdict, that you walked in the direction of Mr Morrow and king-hit him while he was not looking in your direction and was not presenting a threat to you or attacking you in any way. I am satisfied beyond reasonable doubt that this occurred very soon after Mr Morrow had gone outside the hotel for the second time.[3]
[3]Ibid [21].
A factual issue which was contested before the jury, and which is raised by two of the grounds of appeal, is whether Betrayhani had been injured in the period before he struck Mr Morrow. It is not in dispute that, in the course of the evening, Betrayhani suffered an orbital fracture of his left eye. The defence contention was that this injury occurred before the attack on Mr Morrow. In front of the jury, the prosecutor conceded that this was a possibility. The judge accepted that this was so but said:
I cannot be satisfied on the balance of probabilities as a mitigatory factor that you were incapacitated by injury at the time that you struck Mr Morrow. After you struck him, you were clearly capable of walking hand in hand with [S] from the corner of the Brewhouse Hotel down the Great Ocean Road towards the Comfort Inn …[4]
[4]Ibid [23].
Betrayhani was subsequently attacked by three men who had pursued him, apparently to avenge the assault on Mr Morrow. Her Honour said:
The CCTV footage of the attack upon you at the Comfort Inn looks ugly and more ferocious than anything described as happening to you on McLaren Parade outside the Brewhouse Hotel.[5]
[5]Ibid (citations omitted).
The conviction application
The application for leave to appeal against conviction contained eight proposed grounds. At the beginning of the oral hearing, senior counsel for the applicant indicated that three of those grounds were abandoned. It was also necessary, counsel indicated, to reframe the argument under ground 1.
As originally pleaded, ground 1 contended that the judge had erred in failing to direct the jury that they needed to be unanimous as to ‘which act caused the serious injury’. The written case submitted that, on the evidence, the injuries suffered by Mr Morrow could have been caused either by the punch to the head or by his fall to the footpath. At the hearing, however, senior counsel accepted that the charge against the applicant rested on one physical act, that of punching Mr Morrow to the head. No question of (lack of) unanimity arose.
The distinction between the punch and the fall was said, however, to be material in a different way. According to the submission, the evidence showed that it was the fall, and not the punch, which had caused the catastrophic injury to Mr Morrow. The fact that the only visible mark of the punch was a cut to Mr Morrow’s lip demonstrated, it was said, that the blow itself was not very hard. That being so, there was a danger of unfair reasoning, that is, that the jury would reason backwards from the consequences of the fall and draw an unwarranted inference as to Betrayhani’s state of mind at the time he punched Morrow.
This danger was exacerbated, it was said, by the form of the written direction which the judge gave the jury about the elements of the offence. The relevant part of that direction was in these terms:
Element 1:That the complainant, Stephen Morrow, suffered a serious injury
and
Element 2:That an act of the accused, Leonard Betrayhani, caused the complainant’s serious injury
(The act alleged is a punch to the head, knocking the complainant to the footpath)
and
Element 3:That at the time of performing the act, the accused was reckless, that is, the accused foresaw that serious injury was a probable result and took the risk that it would result by performing the act which caused it
and
Element 4:That the accused did not act with lawful justification or excuse, that is, the accused was not acting in self-defence.[6]
[6]Emphasis in original.
Attention was drawn to Element 2 and the description of the relevant act as ‘a punch to the head, knocking the complainant to the footpath’. According to the submission, the judge ought to have directed the jury that the issue for determination was Betrayhani’s state of mind at the time of the punch. Her Honour should have warned the jury about the danger of drawing inferences from the fall and its undoubtedly grave consequences.
Similar arguments were advanced in support of ground 8, which contended that the guilty verdict was unsafe and unsatisfactory. It was submitted that it was not reasonably open to the jury, on the evidence, to be satisfied beyond reasonable doubt that when he struck Mr Morrow, Betrayhani foresaw the probability of serious injury. Emphasis was again laid on what was said to be the relatively minor visible impact of the punch.
In our view, there is no substance in either of these grounds. It is entirely orthodox in a case such as this for the issue of the accused’s state of mind at the relevant time to be determined as a matter of inference from all of the surrounding circumstances. Indeed, in the absence of any contemporaneous statement or subsequent admission by an accused person, that is the only way in which a jury can decide the issue of state of mind.
In this case, both the prosecutor’s closing address and the judge’s charge made perfectly clear to the jury the nature of that inferential task. For example, in his closing address the prosecutor submitted:
Recklessness involves the prosecution proving that the accused when he did that, when he punched him in the circumstances, in the whole of the circumstances, he realised that serious injury would probably result and here the Crown says it will depend on what you find are the facts, the force of the blow, the circumstances of the blow, whether the complainant saw it coming, the fact that it was delivered in a hotel situation where the man was on the footpath. It was obvious he was going down to the footpath, and that it was a king hit.
But the Crown says there can be no other conclusion in relation to charge 2 that the accused was acting recklessly. In other words, he realised that serious injury would probably result. It was a blow of some force. It cut the lip. Not a serious cut but there was blood on his lip afterwards and it was delivered, according to the witnesses, as a hard blow to the face, to the head.
Trial counsel for Betrayhani (who did not appear on this application) submitted to the jury that, in order to assess Betrayhani’s state of mind, they needed to ‘look at how hard the punch was’. He contrasted the eye injury sustained by Betrayhani with the ‘superficial laceration’ on Mr Morrow’s lip. Asserting that the serious injury was the result of the fall, counsel asked the jury:
But did my client intend it to happen? … [W]as he reckless? Did he do it in circumstances of throwing the [punch], of striking him in circumstances where he probably knew that [Mr Morrow would] fall over or he probably knew he’d do serious injury to him and went ahead regardless? That’s what reckless means.
Had the defence wished to draw the distinction now relied on — between the punch and the fall — and to contend that it would be unsafe to draw inferences as to intent from the effects of the fall, an evidentiary foundation for that submission would need to have been established. At a minimum, we would think, there would need to have been expert evidence led by the defence to support the proposition — advanced for the first time on this application — that the manner in which a person falls to the ground after being struck depends on whether, and to what extent, the person is intoxicated and whether the person was conscious or unconscious before hitting the ground.
For similar reasons, there was no error in the judge’s directions. No exceptions were taken to this part of her Honour’s charge and, in the circumstances, that is entirely understandable. Certainly there was no request for different or additional directions.[7] As is now well-established, forensic decisions of that kind constitute a formidable obstacle to any contention on appeal that the trial judge should have given a direction which defence counsel did not request at the trial.[8]
[7]See Jury Directions Act 2015 s 12.
[8]See, eg, Dunn v The Queen [2017] VSCA 371.
The blood on the footpath
Grounds 6 and 7 were argued together, the complaint being directed at her Honour’s direction to the jury that:
The only evidence that the accused was set upon by a group … kicked and punched on the ground in McLaren Parade comes from the accused’s then girlfriend.
It was submitted that the judge unfairly impeached the evidence given by S and that this, in turn, unfairly influenced the jury’s consideration of the issue (mentioned earlier) of whether Betrayhani was injured before he struck Mr Morrow. Reliance was placed in this Court, as it was at trial, on evidence of a blood trail going from McLaren Parade down to the Comfort Inn. After the trial concluded, the prosecution advised the defence that it would concede that the blood probably came from the applicant.
Asked to explain the relevance of the factual issue regarding the blood, senior counsel for Betrayhani submitted that it had been relevant both to the issue of self-defence and to the jury’s consideration of the applicant’s state of mind when he punched Mr Morrow. There being no challenge to the jury’s rejection of self-defence, its only relevance on this application was to state of mind.
Once again, in our view, there is no substance in this ground. Her Honour’s summary of the evidence with respect to the alleged attack on Betrayhani was accurate. There was certainly evidence that Betrayhani had blood on his face before he struck Mr Morrow but what injury had caused the bleeding, and how it had been sustained, was simply not established by the evidence. As we have mentioned, Betrayhani himself did not give evidence.
In the circumstances, the fact that he was bleeding beforehand was a matter of relatively minor importance in the jury’s evaluation of the circumstances, in order to determine what the prosecution had proved about Betrayhani’s state of mind. In short, even if there had been any error, it was immaterial.
Ground 5
Complaint is made about the following statement in the charge to the jury:
[The prosecutor] put to you that the accused man, up at the Comfort Inn, was fighting like a tiger, and you do know that there’s evidence that even once he got inside the manager’s unit, the police had to spray him with capsicum spray.[9]
Exception was taken by defence counsel, who submitted that there was no evidence that the spraying had been a matter of necessity. The judge told defence counsel that she would read the relevant evidence to the jury, which she did. There was no further complaint.
[9]Emphasis in applicant’s written case.
Given that this matter was resolved to the satisfaction of defence counsel at trial, we need say nothing further on this ground.
Director’s appeal against sentence
In her sentencing reasons, the judge said:
There has been absolutely no explanation for your thuggish conduct in delivering such a hard, forceful punch causing devastating injury. Parliament has assigned a maximum penalty of 15 years’ imprisonment for this offence, which is an indicator of its gravity. I regard your behaviour in having committed this offence, even though you did not intend the actual injuries and deficits ultimately sustained by Mr Morrow, to be a serious example of the charge of recklessly causing serious injury. You were a fit young man in his thirties. You attacked, without any provocation, a man aged 60, some three decades your senior, who was simply standing on the footpath observing what was going on.
…
I am satisfied beyond reasonable doubt that you struck Mr Morrow as he was looking away from your direction. It was a cowardly king hit, which gave him no time to protect himself.
You have shown no remorse for your conduct. … It is plain that the long-term effect of the injury that you recklessly caused to Mr Morrow has been devastating.[10]
[10]Reasons [27]–[30].
The Director’s principal submission was that the sentence of 4 years’ imprisonment simply did not reflect these conclusions. Nor, it was said, had sufficient weight been given to general deterrence, specific deterrence or denunciation.
Attention was drawn to this Court’s decision in Al Wahame v The Queen (‘Al Wahame’),[11] dismissing an appeal against a sentence of 6 years’ imprisonment with a non-parole period of 4 years and 6 months, imposed on an offender who had pleaded guilty to recklessly causing serious injury in comparable circumstances. There, the Court said:
The offence of recklessly causing serious injury is a serious one. It carries a maximum penalty of 15 years’ imprisonment. The particular offence in question here was a very serious example of that offence. The applicant carried out an unprovoked attack on a complete stranger in a public street. At the time the applicant hit the victim, the victim was walking backwards with both his arms raised in a gesture of submission. The applicant punched him to the head causing an immediate loss of consciousness. The victim suffered a traumatic brain injury from which he has not fully recovered. The effect on the victim and his family has been very significant.
Violence of this kind by young offenders in public is a matter of significant public concern.[12]
[11][2018] VSCA 4.
[12]Ibid [81]–[82].
The Chief Crown Prosecutor drew attention to the judge’s finding that it was a ‘hard, forceful punch’.[13] The finding that the punch was hard was clearly open to the judge to the criminal standard and there is no reason to overturn that finding. Referring to what was said in Winch v The Queen (‘Winch’),[14] counsel emphasised that, on the basis of the jury’s verdict, Betrayhani had foreseen the probability that punching Mr Morrow would cause him serious injury and had proceeded to punch him regardless of that probability. That amounted to
conscious disregard of a risk of serious injury which the offender knows to exist.[15]
[13]Reasons [27].
[14](2010) 27 VR 658.
[15]Ibid 665 [35] (Maxwell P and Redlich JA).
Specific deterrence also fell to be given substantial weight, it was said, given Betrayhani’s history of committing assault-related offences. Particular reference was made to his 2007 conviction for recklessly causing injury and assault in company, for which Betrayhani was given a prison sentence (wholly suspended).
The submission for Betrayhani accepted that the judge had correctly characterised this as a serious case of recklessly causing serious injury. The sentence imposed was, nevertheless, to be viewed as within the range reasonably open to the judge, having regard to the mitigating factors on which Betrayhani was able to rely. Reliance was placed on the delay of approximately two years between the date of the offending and the date of the trial and what was said to be extra-curial punishment suffered by Betrayhani. Counsel referred to eye injuries sustained by Betrayhani on the night of the offending, and the post-traumatic stress disorder and depression which resulted from the attack on him that night. Attention was drawn to the judge’s finding that:
These factors are likely to make serving a term of imprisonment more burdensome than for someone who does not suffer such factors.[16]
[16]Reasons [42].
In our view, the sentence imposed was wholly outside the range reasonably open to the judge, full weight being given to these mitigating factors.[17] We begin with objective gravity. As the Court said in Winch:
The court’s assessment of the seriousness of a particular instance of [recklessly causing serious injury] will involve considering both the degree of probability that serious injury will result, and the degree of seriousness of the injury thus foreseen.[18]
The Chief Crown Prosecutor submitted, and we accept, that a forceful punch to the head is highly dangerous and a person delivering such a punch is taken to have foreseen a high probability of serious injury. That conclusion is reinforced by the fact that, at the time he was struck, Mr Morrow was not looking at Betrayhani and was wholly unable to defend himself.
[17]DPP vKarazisis (2010) 31 VR 634.
[18](2010) 27 VR 658, 665 [36].
The impact on the victim is also a key consideration in sentencing for this offence. The injuries sustained by Mr Morrow are properly described as catastrophic. When Betrayhani’s foresight and the seriousness of the consequences are taken together, this must be adjudged a very serious instance of recklessly causing serious injury.
As to specific deterrence, we regard it as a matter of real significance that Betrayhani received a prison sentence for an earlier instance of recklessly causing injury. Notwithstanding that the sentence was wholly suspended, that encounter with the criminal justice system should have left Betrayhani in no doubt that conduct of this kind would be viewed very seriously. That being so, it is difficult to comprehend Betrayhani’s conduct on the night in question. As has been pointed out, there was no continuing altercation between him and Mr Morrow. This was a wholly unprovoked attack.
As to general deterrence, the Court in Winch cited the following statement by Chernov JA in Director of Public Prosecutions v Cook:
even absent clear motive for the offence … the principle [of general deterrence] would, nevertheless, continue to be of considerable importance in this case given that its primary rationale is to deter others from engaging in like offending conduct. Violence in the context of physical fights and assaults at or near places like hotels, bars and clubs seems to have become more prevalent in the community in recent times and I consider that it is important that those who propose to engage in such conduct … should be made aware through the sentencing process that courts will not treat such conduct lightly, but will, in the appropriate case, impose condign punishment on the offender. The enjoyment and relaxation of those attending such venues should not be marred by such incidents.[19]
In the same case, Eames JA said:
Unexplained, unprovoked, violence of this character occurring in a hotel towards an innocent and unsuspecting member of the public is conduct which demands considerable weight be given to general deterrence.[20]
[19](2004) 141 A Crim R 579, 585 [14] (Chernov and Eames JJA and Smith AJA).
[20]Ibid 588 [26].
Reference should also be made to the more recent decision of Director of Public Prosecutions v Russell, where the Court said:
Random street violence is a scourge on our society. Typically, the violence is brief and unpremeditated, but it has profound and enduring consequences. Innocent people are killed or seriously injured; their families are devastated; their communities disrupted. And the outburst of violence is ruinous for the offender, too. Imprisonment with all its destructive consequences is virtually inevitable, as is the shame and embarrassment felt by the offender’s family.[21]
[21](2014) 44 VR 471, 473 [1] (Maxwell P, Weinberg and Santamaria JJA).
The Director was right to highlight the contrast between the sentence imposed here and that upheld by the Court in Al Wahame. Given the comparable circumstances of the offending, the sentence of 4 years’ imprisonment imposed here, on a person who pleaded not guilty, cannot be reconciled with a sentence of 6 years imposed on a person who pleaded guilty. Nothing in the circumstances of the two cases could explain that disparity. At the same time, we accept that weight must be given to the mitigating factors on which Betrayhani was able to rely.
For all these reasons, we would allow the appeal and resentence Betrayhani to 7 years’ imprisonment, with a non-parole period of 5 years. The Director has persuaded us that this is not an appropriate case for the exercise of the residual discretion.
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