Director of Public Prosecutions v Kuru
[2009] VSCA 206
•18 September 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 853 of 2008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADEM KURU |
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JUDGES: | ASHLEY and NEAVE JJA and KING AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 August 2009 | |
DATE OF ORDERS: | 27 August 2009 | |
DATE OF PUBLICATION OF REASONS: | 18 September 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 206 | |
JUDGMENT APPEALED FROM: | R v Kuru (Unreported, County Court of Victoria, Judge Cotterell, 8 September 2008) | |
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CRIMINAL LAW – Sentence – Director’s appeal – Respondent found guilty of causing injury intentionally and theft – Whether sentence manifestly inadequate – Whether insufficient weight given to the nature and gravity of the offences – Aggravating features of offending including use of a knife in a public place – Whether insufficient weight given to the aggravating features– Mitigating factors including personal history and impaired mental functioning – Whether excessive weight given to mitigating factors – Whether improper application of the principle of totality – Appeal dismissed.
PRACTICE AND PROCEDURE – Whether challenge to factual findings open in absence of specific ground of appeal.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr J P Dickinson SC with Mr J L Lavery | Mr Greg Thomas |
ASHLEY JA:
I joined in the order made on 27 August 2009 dismissing the appeal for the reasons given by Neave JA.
NEAVE JA:
Introduction
The respondent, Adem Kuru, was presented in the County Court on one count of theft of a mobile phone, one count of intentionally causing serious injury to Christopher Lees and an alternative count of recklessly causing serious injury to Mr Lees. He was found not guilty by a jury of both the injury counts on which he was presented, but guilty of the lesser alternative count of causing injury intentionally,[1] and theft. The maximum term of imprisonment for both those offences is ten years.
[1]See Crimes Act 1958, s 18.
After hearing a plea in mitigation of sentence, the learned judge sentenced the respondent to four months’ imprisonment on the count of theft, and ten months’ imprisonment on the count of causing injury intentionally, with both terms of imprisonment to be served concurrently.
Her Honour ordered that all except 103 days of the total effective sentence of ten months’ imprisonment be suspended for 12 months. She declared that the respondent had served 103 days’ pre-sentence detention.
The Director of Public Prosecutions now appeals against that sentence. On 27 August 2009 this Court made orders dismissing the Director’s appeal. My reasons for doing so follow.
Background to the offences and the offending
The offences were committed on 26 January 2006[2] in the vicinity of Preston Railway Station. The victim, Mr Lees, had been drinking alcohol in a park and on a nature strip close to the station. He knew the respondent, who had also been drinking nearby.
[2]Her Honour’s sentencing remarks refer to the incident as occurring on 22 January 2006. The error is immaterial.
Some time later, Mr Lees encountered the respondent near the entrance to the railway station. The respondent asked Mr Lees if he could borrow his phone to make a telephone call. Mr Lees initially offered the respondent money to use a public phone, but later lent him his mobile phone, allowing Mr Kuru to put his own SIM card into it. The respondent walked off with Mr Lees’ phone and refused to return it to him.
Mr Lees followed the respondent and demanded the return of the phone. The respondent then punched Mr Lees in the head and back, and he fell to the ground. The respondent produced a Stanley knife from his backpack and threatened to cut Mr Lees’ throat. There was a struggle between the respondent and Mr Lees, and the respondent slashed Mr Lees’ neck with the Stanley knife. Mr Lees, who fell to the ground after receiving the wound to his neck, was also stabbed in the front of his right shoulder.
Mr Lees was assisted by bystanders at the station and taken to hospital. He suffered a 13 to 15 centimetre gash to the left side of the neck, a three centimetre laceration to his right shoulder and a small cut on his leg. The doctor who attended to Mr Lees at the hospital said that the neck wound did not extend to deep structures, such as muscles or joints and that the laceration to the right shoulder did not affect the tendon or joint capsule. Based on his viewing of photos of the wound he said that it appeared that the neck wound required seven sutures and the shoulder wound five sutures. There was no evidence of blunt trauma to Mr Lees’ head.
The respondent was arrested by police at his home shortly after his attack on Mr Lees. He was aged 44 at the time he committed the offences. He has approximately 124 prior convictions, 11 of which were for violent offences[3] and six of which involved the use or possession of weapons. As I discuss below, the respondent has a history of drug and alcohol abuse and has some form of learning difficulty and possibly an acquired brain injury. Before committing the offences, the respondent had managed to remain out of custody for a period of approximately three years.
[3]The 11 prior convictions for violent offences were five counts of unlawful assault and one count each of assault, assault occasioning actual bodily harm, assaulting a member of the police force in the lawful execution of his duty, assault whilst in police gaol, assault with intent to rob and assault with a weapon.
Grounds of appeal
The Director contends that the individual sentences and the total effective sentence are manifestly inadequate. As particulars of that ground it is said, among other things, that her Honour gave insufficient weight to the nature and gravity of the offences, and to the principles of denunciation and general and specific deterrence. It is also alleged that the judge gave insufficient weight to aggravating features of the offending, including the possession and use of the knife, and the commission of the offences in a public place, and gave too much weight to mitigating factors and, in particular, the offender’s impaired mental functioning.
The Director also alleges that the sentencing judge did not properly apply the principle of totality, by failing to order any cumulation in respect of counts one and two.
Ground one
Counsel’s submissions
In relation to the count of intentionally causing injury, counsel for the Director submitted that this was a particularly serious example of the offence, because it involved an unprovoked knife attack at a railway station platform in daylight and because of the nature of the injuries inflicted. He submitted that the sentencing judge gave insufficient weight to matters aggravating the gravity of this offence, including the unprovoked nature of the attack, the contemporaneous threat made by the respondent to cut Mr Lees’ throat, and the use of the Stanley knife.
Counsel said that, although her Honour had recognised that this was a serious offence and that the injury inflicted was ‘at the highest end of injury’ (that is, by contrast with ‘serious injury’), the actual sentence which she had imposed did not reflect these findings. He relied on Judicial College of Victoria statistics covering the years 2003-2004 to 2007-2008, which showed that the median custodial sentence for the offence of intentionally causing injury was one year and sentences falling into the 90th percentile ranged from three years’ imprisonment in 2003-2004 to two years’ imprisonment in 2007-2008. Counsel submitted that the severity of the injury required her Honour to impose a sentence of that order on the respondent.
Counsel also relied on Sentencing Advisory Council statistics which indicated that in the period 2002-2003 to 2006-2007 imprisonment terms ranged from seven days to five years.[4] He submitted that this was an offence lying towards the top of that range.
[4]Sentencing Advisory Council, Sentencing Snapshot No 41: Sentencing trends for causing injury intentionally or recklessly in the higher courts of Victoria 2002-2003 to 2006-2007, February 2008, Figure 10, 6.
Counsel for the Director contended that her Honour had given too much weight to mitigating factors and, in particular, to the offender’s impaired mental functioning. The sentencing judge had before her a report from forensic psychologist Pamela Matthews which said that:
Cognitive testing, and history taking would suggest Mr [Kuru] has always suffered from limited pre-morbid cognitive functioning as a result of developmental impairment or learning disorder. His performance on the [Rey Auditory Verbal Learning Test] is also consistent with this view but in addition indicates an overlay of acquired brain injury. His mental status presentation is consistent with this view. Confounding the results would be Mr [Kuru]’s significant medication levels, particularly in regard to his performance on the RAVLT.
Ms Matthews said that further neurological and neuropsychological testing was required to ascertain the precise nature of the respondent’s cognitive impairment.
In his written submission, counsel submitted that Ms Matthews did not diagnose the respondent as suffering from organic brain dysfunction or an acquired brain injury, and in any event was not qualified to make such a diagnosis.
Counsel for the Director contended that the respondent’s impairment could not properly reduce the his moral culpability or significantly moderate the weight which should be given to general and specific deterrence. In addition, there was insufficient material before the sentencing judge to support a reduction of a sentence on the basis that imprisonment would be more burdensome to the respondent because of his mental condition. He also contended that there was no medical evidence to support her Honour’s finding that the respondent was suffering from severe liver damage and advanced liver disease, and no indication as to how such a condition was relevant to the respondent’s sentence.
Counsel for the Director submitted that the sentence imposed on the count of theft was manifestly inadequate, and that her Honour should not have ordered suspension of 103 days of the total effective sentence of ten months’ imprisonment for a period of 12 months.
In his written submission, counsel for the respondent submitted that the individual sentences and the total effective sentence fell well within the appropriate range of sentences, having regard to the circumstances of the offending and the mitigating circumstances relied upon by the offender. In particular he relied upon:
·the respondent’s severe intellectual disability, which reduced his culpability for the offending;[5]
·the delay of two years and seven months between the offending and the imposition of sentence;[6]
·the respondent’s health problems, including his liver disease;
·the respondent’s attempts to rehabilitate himself in the two years before the sentence and his prospects of rehabilitation; and
·the unpremeditated nature of the offending.
[5]R v Verdins (2007) 16 VR 269, 276.
[6]See for example R v Miceli [1998] 4 VR 588, where the delay between the applicant’s admission at interview and his charge was about a year and he was not sentenced for another 14 months after that.
Counsel for the respondent submitted that the Director could not now allege that her Honour should not have relied on the respondent’s liver condition, or on Ms Matthew’s statement about Mr Kuru’s possible acquired brain injury, because these matters were not challenged at the plea hearing.
Counsel submitted that the four months’ term of imprisonment for theft was well within the range of appropriate sentences, given that the item stolen was a mobile phone valued at $39 when new.
In relation to the sentence imposed on the count of intentionally inflicting injury, and the total effective sentence, counsel contended that the observations of King CJ in Queen v Osenkowski[7] were apposite.
[7](1981) 30 SASR 212.
Counsel also submitted that the respondent had earlier offered to plead guilty to recklessly inflicting serious injury and had in fact been convicted of a less serious offence.
Conclusion on ground one
It is unnecessary to restate the principles which apply in considering a Director’s appeal against sentence.[8] It is sufficient to say that the Director can only succeed on this appeal if the individual sentences or the total effective sentence reveal such a manifest inadequacy, or inconsistency in sentencing standards, as to constitute error in principle, or if the sentence is so disproportionate to the seriousness of the crime as to shock the public conscience.[9]
[8]See, for example, Queen v Clarke [1996] 2 VR 520, 522-523 (Charles JA) and the cases cited therein; DPP v Josefski (2005) 13 VR 85; DPP v Bright (2006) 163 A Crim R 538, 542 (Redlich JA).
[9]DPP v Josefski (2005) 13 VR 85, 89 (Maxwell P).
I deal first with the four months term of imprisonment for theft. Sentencing statistics show that the sentences of imprisonment imposed for theft in 2001-2002 to 2005 -2006 ranged from a day to 6 years.[10] Having regard to the fact that the theft was of a mobile phone worth $39 as well as to the mitigating factors I discuss below, there is no basis for contending that this sentence was manifestly inadequate.
[10]Sentencing Advisory Council, Sentencing Snapshot No 17: Sentencing trends for theft in the higher courts in Victoria 2001-2002 to 2005-2006, January 2007, 4.
I would also accept the respondent’s counsel’s submission that the failure to challenge the material relied upon at the plea hearing relating to the respondent’s liver condition and his cognitive impairment prevents counsel for the Director from now attacking her Honour’s factual findings on these issues. Further , I note that there was no ground of appeal relating to those findings. In DPP v Arvanitidis,[11] Redlich JA said that ‘allegations of specific errors of fact … made by the sentencing judge … should generally be the subject of separate grounds’ of appeal.[12]
[11][2008] VSCA 189.
[12]Ibid [18].
I accept that at first glance the sentence of ten months’ imprisonment imposed on the count of intentionally causing injury was lenient. As the photographs of the wounds show, this was a serious example of the offence of intentionally causing injury. Although Mr Lees did not provide a victim impact statement, the attack on him was violent and unprovoked and the experience of being slashed and bleeding profusely must have been terrifying. The respondent was fortunate that the wounds he inflicted on Mr Lees were not life-threatening and did not injure him permanently.
On the other hand, her Honour was required to give considerable weight to the mitigating factors in this case. The respondent has had a tragic personal history. He was subjected to abuse by his stepmother and stepfather and was thrown out of his home, when he was only ten years old. He faced significant difficulties at school and has never learnt to read or write properly.
The respondent has had serious problems with alcohol and was addicted to heroin from 1979 until 2006. He has numerous other health issues resulting from involvement in motor vehicle accidents and assaults. Ms Matthews expressed the view that the respondent may have an acquired brain injury in addition to his limited cognitive functioning as the result of development impairment or a learning disorder. This view is reinforced by the CREDIT/Bail report to which I refer below.
In addition, there was evidence before her Honour that, despite the respondent’s problems, he was making some progress towards rehabilitation. The respondent stopped drinking in 2006 after the commission of these offences and has also given up the use of heroin.
During his participation in the CREDIT/Bail Support program he completed a residential drug withdrawal program and was stabilised on methadone program. In a report dated 21 December 2006, his counsellor at DASWEST, David Conti, was quoted as saying that:
Adem has made some significant cognitive and behavioural changes during his episode in counselling, remaining focused on reducing his methadone and finding stable accommodation. Client has continued to develop insight into the life choices he has made and the need to continue to remain motivated to action change in his life. Client seems genuine in his attempts to change and is booked in for further reductions of methadone via the residential treatment withdrawal unit.
A report prepared by the Court Integrated Services Program on 8 October 2007 noted that the respondent’s level of cognitive functioning would make it difficult for him to adequately engage in counselling but that he had an ongoing relationship with Mr Conti and that he would benefit from continuing that contact. He was referred back to Mr Conti and that time was continuing to see him. The report noted that he had met all requirements of the Program.
Although the respondent has a very lengthy criminal history, her Honour noted that he had managed to stay out of prison between 2003 until the commission of these offences in 2006. At the date of his sentence the last offence of which he had been convicted occurred on 21 April 2007. That conviction was for possessing a controlled weapon, a knife. Her Honour said that these offences occurred in the early part of the year and that ‘it is a period of two years that you have been free of these habits of substance abuse and also of offending.’[13]
[13]R v Kuru (Unreported, County Court of Victoria, Judge Cotterell, 8 September 2008) (‘Reasons’), [13].
Her Honour held that the respondent’s impaired mental functioning reduced his moral culpability for the offences and also moderated the application of the principle of general deterrence. In my opinion her Honour’s views on those matters were entirely justified.
In Queen v Osenkowski, King CJ said:
[t]here must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge formed the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.[14]
It appears from her Honour’s sentencing remarks that she regarded this as a case in which such leniency should be extended. She said:
Having balanced all those matters, these are without doubt serious offences, in particular the afflicting of injury to Mr Lees and I have reached the conclusion that I have no alternative but to impose a custodial sentence. However, because of the mitigating factors put on your behalf, including your limited cognitive functioning combined with an indication of an acquired brain injury, the extensive delay in bringing this matter to trial, the efforts you have made in rehabilitation in the meantime including ceasing to abuse alcohol and heroin and the other medical difficulties that you now have in relation to your advanced liver disease, I have reached the conclusion that the sentence should be partly suspended.
The purpose of imposing a sentence of imprisonment is to indicate how serious these offences are and the purpose of suspending it is to allow you to demonstrate your commitment to your rehabilitation towards which you have made tentative steps in the years leading to your trial. [15]
[14](1981) 30 SASR 212, 212–213.
[15]Reasons, [15]-[16].
It was not inappropriate for her Honour to extend some mercy to the respondent consistently with the principle expressed by King CJ in R v Osenkowsi and to recognise Mr Kuru’s attempts to reform by imposing a relatively short term of imprisonment and suspending the total effective sentence. At the time of sentencing, the respondent had made efforts to rehabilitate himself, despite his sad childhood and his cognitive and health difficulties. It was in the interests of the community to encourage the respondent to continue with the process of rehabilitation in which he had already become engaged.
In DPP v Leach,[16] Eames JA commented that:
It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which redounds very much to the benefit of the community.[17]
[16][2003] VSCA 96.
[17]Ibid [48].
Her Honour faced the difficult task of balancing the undoubted seriousness of the offence against Mr Kuru’s mental and physical difficulties and his efforts to rehabilitate himself.
In considering the first ground of appeal I have had some regard to the sentencing statistics on which counsel for the Director relied. As counsel submitted, the sentence imposed on that count was lower than the median term of imprisonment imposed on offenders who received terms of imprisonment for that offence. However as my brother Ashley JA pointed out in discussion with counsel, only about 28 percent of people sentenced for that offence received a custodial sentence over the five year period covered by the statistics.[18]
[18]Sentencing Advisory Council, above n 3, 1.
I consider that there were powerful mitigating factors which justified her Honour imposing a sentence of ten months’ imprisonment on the count of intentionally causing injury, and fourth months’ imprisonment on the theft count, ordering that the sentences be served concurrently and suspending all but 103 days of the total effective sentence. It follows that in my opinion the sentence imposed on the count of intentionally inflicting injury was not manifestly inadequate.
It is implicit in that conclusion that ground two is not made out. I briefly explain my reasons for that view below.
Ground two
Counsel for the DPP submitted that her Honour had erred by failing to cumulate any part of the sentence imposed on count one with the sentence imposed on count two. He submitted that the criminality involved in the theft count ought to have been reflected in the total effective sentence by an order for partial cumulation.
Counsel for the respondent submitted that the theft and the assault were part of the same incident and that, in these circumstances, her Honour did not err by failing to order partial cumulation. Moreover, even if some cumulation might otherwise have been appropriate it was within the discretion of the sentencing judge to make the sentences totally concurrent, because the circumstances called for a merciful outcome.
Conclusion on ground two
Section 16(1) of the Sentencing Act 1991 creates a prima facie presumption in favour of concurrency in cases to which it applies. The sentencing judge has a broad
discretion as to whether that presumption should be displaced.[19] In this case the theft and the intentional infliction of injury occurred within a short time of each other. They involved a single victim and were part of the same event. It was well within her Honour’s sentencing discretion to order that the sentences for theft and intentionally causing injury be served concurrently. For the reasons I have already given, her Honour’s failure to order partial cumulation did not result in a manifestly inadequate total effective sentence.
[19]R v Mantini [1998] 3 VR 340, 347-348.
KING AJA:
I agree.
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