DPP v Hudgson

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0095

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
GRAHAM MILES HUDGSON	Respondent

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JUDGES:	WEINBERG, WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 October 2016
DATE OF JUDGMENT:	20 October 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 254
JUDGMENT APPEALED FROM:	DPP v Hudgson (Unreported, County Court of Victoria, Judge Wilmoth, 28 April 2016)

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CRIMINAL LAW – Sentence – Crown appeal – Respondent sentenced to 23 months’ imprisonment and two year Community Correction Order for intentionally causing serious injury in circumstances of gross violence – Common ground that trial judge erred in failing to declare 150 days’ pre-sentence detention – Whether trial judge erred in application of ss 10(1) and 10A of the Sentencing Act 1991 – Whether parity amounted to ‘a special reason’ for not fixing mandatory four year non-parole period – Whether sentence manifestly inadequate – Crown appeal allowed – Respondent sentenced to five years’ imprisonment with non-parole period of four years – Crimes Act 1958 s 15A – Sentencing Act 1991 ss 10, 10A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C B Boyce QC with Mr Doyle	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr T E Wraight QC with Mr J G Westmore	Michael Brugman, Barristers and Solicitors

WEINBERG JA
WHELAN JA
PRIEST JA:

The respondent, now aged 36, stood trial in the County Court at Melbourne on one charge of intentionally causing serious injury (‘ICSI’), in circumstances of gross violence. That offence, contrary to s 15A of the Crimes Act 1958, was introduced in 2013.[1] It carries a maximum sentence of 20 years’ imprisonment, with a mandatory minimum non-parole period of four years.
[1]Section 15A was inserted by s 4 of Act No 6 of 2013. Section 15B, which creates a cognate but lesser offence of recklessly causing serious injury in circumstances of gross violence was introduced by the same Act. That offence, oddly enough, creates a mandatory minimum non-parole period of the same four years as the s 15A offence.

On 28 April 2016, the respondent was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Cause serious injury intentionally in circumstances of gross violence [Crimes Act 1958 s 15A]	20 years’ imprisonment [Crimes Act 1958 s 15A(1)]	23 months and 2 year CCO	N/A
Total Effective Sentence:		23 months’ imprisonment and 2 year Community Correction Order
Non-Parole Period:		N/A
Pre-sentence Detention Declared:		Not declared (150 days)
6AAA Statement:		N/A
Other orders: Community Correction Order including 150 hours of Community Service, Supervision and Treatment and Rehabilitation conditions.

A co-offender, Sean Kennedy, who had earlier pleaded guilty to recklessly causing serious injury, contrary to s 17 of the Crimes Act, was sentenced in July 2015 to a four year Community Correction Order (‘CCO’). Unlike the offence under s 15A, this offence does not have a mandatory minimum non-parole period (but does carry a maximum sentence of 15 years’ imprisonment).

Section 15A relevantly provides:

(1)A person must not, without lawful excuse, intentionally cause serious injury to another person in circumstances of gross violence.

…
(2)For the purposes of subsection (1), any one of the following constitutes circumstances of gross violence—
(a)the offender planned in advance to engage in conduct and at the time of planning—
(i)the offender intended that the conduct would cause a serious injury; or
…

(d)the offender planned in advance to have with him or her and to use an offensive weapon … and in fact used the offensive weapon…to cause the serious injury;

…

The difficulty with this appeal is that an offence under s 15A carries with it an unusual feature. Pursuant to s 10(1) of the Sentencing Act 1991, a person convicted of that offence must, in the absence of ‘a special reason’, receive a non-parole period of not less than four years. It follows that the head sentence for an offence under s 15A may well have to be substantially greater than the four year non-parole period specified.

Moreover, the entire sentencing process becomes problematic, and unorthodox, because a sentencing judge may have to start with the non-parole period, and work upwards from there, rather than imposing an appropriate sentence and then deciding what proportion of that sentence should be served before being eligible for parole.

Section 10(1) of the Sentencing Act, which was introduced into that Act at the same time as the offence under s 15A was created, provides the key to the mandatory non-parole period. Section 10(1) is in the following terms:

In sentencing an offender for an offence against section 15A…of the Crimes Act 1958 (whether on appeal or otherwise), a court must impose a term of imprisonment and fix under section 11 a non-parole period of not less than 4 years unless the court finds under section 10A that a special reason exists.

Section 10A, which was also introduced into the Sentencing Act at that same time is headed ‘Special reasons relevant to imposing minimum non-parole periods’. Section 10A relevantly provides:

(1) In this section—
‘impaired mental functioning’ means—
(a) a mental illness within the meaning of the Mental Health Act 1986; or
(b) an intellectual disability within the meaning of the Disability Act 2006; or
(c)an acquired brain injury; or
(d)an autism spectrum disorder; or
(e)a neurological impairment, including but not limited to dementia.

(2) … [A] court may make a finding that a special reason exists if—…
(c) the offender proves on the balance of probabilities that—
(i)at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender's culpability; or
(ii)he or she has impaired mental functioning that would result in the offender being subject to significantly more than the ordinary burden or risks of imprisonment; or

…
(e)there are substantial and compelling circumstances that justify doing so.

…
(3)In determining whether there are substantial and compelling circumstances under subsection (2)(e), the court must have regard to—
…
(a)the Parliament’s intention that a sentence of imprisonment should ordinarily be imposed for an offence covered by section 10(1) or, subject to section 10AA(2), for an offence covered by section 10AA(1) and that a non-parole period of not less than the length specified in section 10(1) or 10AA(1) (as the case requires) should ordinarily be fixed in respect of that sentence; and

…
(b)whether the cumulative impact of the circumstances of the case would justify a departure from that sentence and, where relevant, minimum non-parole period.

(4)       If a court makes a finding under subsection (2), it must—
(a)       state in writing the special reason; and
(b)       cause that reason to be entered in the records of the court.
(5)The failure of a court to comply with subsection (4) does not invalidate any order made by it.

Section 10A defines ‘impaired mental functioning’ as meaning, inter alia, ‘a mental illness within the meaning of the Mental Health Act 1986.’ That Act, in turn, provides that the term ‘mental illness’ has the same meaning as it does in the Mental Health Act 2014.

Section 4 of the Mental Health Act2014 defines mental illness as ‘a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’.

It can be seen therefore that Parliament has enacted a complex legislative scheme which, when regard is had to all of the relevant provisions, governs the circumstances under which an offender can escape the reach of a mandatory four year non-parole period.

Circumstances of the offending

The sentencing judge summarised the circumstances of the respondent’s offending in the following terms:

The house in Wendouree in which [the respondent was] living at the relevant time backed onto a house in which the victim, [MO], was living. [The respondent] would see [MO] every couple of days, and [the respondent] introduced [him] to an acquaintance of [his], Sean Kennedy, who was living in [the respondent’s] house. [The respondent] told [MO] that [he] wanted him to steal a security camera system for [the respondent], and [MO] agreed to, but procrastinated.
Over the next two months, [the respondent] repeated this demand each time [he] saw [MO], and eventually [the respondent] told him that if he did not comply, [the respondent] would have his girlfriend, [KW], bashed and raped. [MO] had made two attempts to steal security cameras from the Dick Smith shop in Ballarat on the 23rd and 25 June. Each time, he was accompanied by [RW], [KF], and Sean Kennedy. Kennedy was located in the nearby car park, watching to see if the attempt was successful.
On 25 June, after the second failed attempt, [MO] was walking along Primrose Street in Wendouree with [KW], and either [RW] or [KF]. [The respondent] pulled up in a car driven by [his] partner and threatened [KW]. [MO] told [KW] to leave, whereupon [the respondent] pushed him in the chest several times, throwing punches and kicking him, and continuing to make threats, because [MO] had not procured the cameras.
[KW] was driven away by two Department of Human Services workers who happened to be passing, and who called the police. [The respondent] told [MO] to ‘go and find her and tell her to keep her mouth shut’. Later that day at about 5 pm, [MO] was at his home with [RW], [KF], and two young women. Sean Kennedy came to [MO’s] house and told the five of them to keep their mouths shut about what had happened earlier. [MO] told Kennedy to go, and Kennedy left, only to return five minutes later, telling him to go to [the respondent’s] place, to talk about not getting the cameras.
[MO] went over the back fence into [the respondent’s] backyard, where he saw [the respondent] standing near [his] shed. Kennedy jumped into [the respondent’s] backyard and [MO] asked [the respondent] to put [his] dogs away, referring to two German shepherds. [The respondent] told Kennedy to do that, and he did. [The respondent] then approached [MO], yelling loudly and angrily, carrying a hammer, which [he] then used to hit him on the arm. [The respondent] told Kennedy to grab [MO] and hold him so [the respondent] could hit him in the back.
According to what [MO] told the jury, Kennedy was just standing there, and he then grabbed [MO] and held him down while [the respondent] hit him again with the hammer on the left leg. After a further struggle, [the respondent] got on top of him, put [his] arm over his throat, and spat at him, then as he got up, [the respondent] hit his right leg with the hammer, which was when his leg was broken. [The respondent] demanded [the victim] give [him] money and drugs, and [he] then threw the hammer away.
…
[The respondent] told [MO] to go, and he hobbled to the fence and got over it with Kennedy's help. [The respondent] also told Kennedy to go with [MO] to make sure he did not tell the police. Kennedy followed [MO] into his house, from where the ambulance was called, and Kennedy went, uninvited, with [MO] to hospital. He remained with [MO] until the evening, when visitors had to leave the hospital.
Earlier, when police and ambulance had come to [MO]’s house, he told them, in Kennedy’s presence, that he had been attacked at the front of his house by some unknown men. He gave the same false version when police attended the hospital, again in Kennedy’s presence. [MO] said in evidence that ‘he was still frightened about the threats [the respondent] made towards his girlfriend’.
The next morning the police came again to the hospital, in the absence of Kennedy, and this time [MO] told the true version of events, that [the respondent] had attacked him. Kennedy was charged with recklessly causing serious injury, and pleaded guilty before his Honour Judge Allen of this Court, on the basis that he, Kennedy, disagreed with the prosecution summary, in which [the respondent] was described as the attacker, the perpetrator of the physical violence. Kennedy said he had been the attacker, and had dealt the blows upon [MO] himself, denying that [the respondent was] there at all. On the plea, the prosecution put the same facts as were put at the opening of [the respondent’s] trial, which were largely consistent with the evidence given by [MO], and which the jury must have accepted.
Judge Allen sentenced Kennedy, not as the principal offender, but as having performed the lessor role, which [MO] described. His plea was to the charge of recklessly causing serious injury, but without the circumstances of gross violence.

The sentencing judge’s reasons for sentence

The sentencing judge referred to a report, dated 18 April 2016, prepared by Dr Aaron Cunningham, a forensic psychologist who had interviewed the respondent. That report concerned, inter alia, the respondent’s medical history and mental state, and included a psychometric assessment.

Her Honour noted the respondent’s age, and the fact that he had been raised by his mother. She was a sole parent, and had suffered from bipolar disorder. The sentencing judge further observed that, as a child, the respondent had been physically abused by an uncle. Dr Cunningham considered that this abuse might have brought about the post-traumatic stress disorder (‘PTSD’), with which the respondent had subsequently been diagnosed.

The sentencing judge adverted to the fact that the respondent was in a relationship with his current partner, with whom he had three young children. He had had limited schooling, and had worked in various jobs. He had used cannabis on a regular basis from the age of 16. He had also used other illicit drugs over the years, largely in the context of having been a member of the Finks Motorcycle Club. He had also, for many years, been a heavy drinker.

Her Honour observed:

You gave Dr Cunningham a history and prior diagnosis of post-traumatic stress disorder with ongoing symptoms. His opinion was that your mental state is consistent with that condition with a predisposition to its development from the emotional disconnection in your childhood, and precipitated by experiencing violence as a child. Later, this was perpetuated, and aggravated, by your experience of violence in prison, and in the antisocial circle in which you mixed from an early age.

The sentencing judge observed, in relation to Dr Cunningham’s report, that he:

…considers that you need treatment for post-traumatic stress disorder, and without it, any term of imprisonment will weigh more heavily upon you than for others. He considers that because of your past associations, you will be more vulnerable in prison than others, being subject to further trauma with the ongoing perception by you, of the threat of violence.

Her Honour then turned to the provisions of s 10 of the Sentencing Act. She observed that, as a result of that section, and the cognate section, s 10A, the sentencing task that she faced was ‘not straightforward’. The primary question was whether there existed ‘a special reason’ to depart from the requirement of a four year non-parole period.

The sentencing judge focused initially upon the onus that rested upon the respondent, pursuant to s 10A(2)(c)(ii), to establish that his ‘impaired mental functioning’ would result in him being ‘subject to significantly more than the ordinary burden or risks of imprisonment.’ In the alternative, she posed the question whether the respondent could establish within s 10A(2)(e) that there were ‘substantial and compelling circumstances’ to justify not fixing the mandatory minimum term specified by s 10(1).

Her Honour stated:

I am satisfied to the requisite standard, the balance of probabilities, that a special reason exists under s 10A(1)(a). If I were not satisfied, I would conclude that there are, in any event, substantial and compelling reasons, as required by sub-paragraph (e) of s 10A(2). They would be comprised of a combination of circumstances. One of these is parity.

Her Honour described parity as a ‘fundamental sentencing principle’. It was for that reason that parity was a matter that could be taken into account as a ‘substantial and compelling’ reason for not fixing a four year non-parole period. She noted, however, that there was no authority as to whether, as a matter of law, parity could be invoked as a basis for avoiding the requirements of s 10.

The sentencing judge then referred to the delay of almost two years that had occurred between the time the respondent was charged and the plea hearing. During that period, he would have had hanging over his head the possibility of a very long sentence of imprisonment.

In referring to delay, her Honour said:

Of itself, the delay is not an inordinate one, and it is not the type of delay that is considered by the authorities as a significant sentencing factor. What is perhaps unusual is the existence of a mandatory minimum sentence in such a case as this. The effect of a two-year wait, knowing the possibility of a very long minimum sentence which could apply, takes the factor out of the category of mere delay, and it should be taken into account.

Finally, the sentencing judge referred to the respondent’s PTSD as a matter that would potentially have enlivened the fifth limb of Verdins.[2] She also referred to his anguish at leaving his partner and children largely unable to fend for themselves as a mitigating factor that could, presumably, be taken into account in determining whether s 10 could be avoided.
[2]R v Verdins (2007) 16 VR 269.

In dealing with the respondent’s prospects of rehabilitation, she referred to his prior convictions, including some for violence and a subsequent conviction for affray. She concluded that those prospects were guarded, but would be enhanced by treatment.

The grounds of appeal

The Director of Public Prosecutions appeals against the sentence of 23 months’ imprisonment combined with a two year CCO on the following, somewhat elaborate, grounds:

1.The learned sentencing judge erred by failing to declare pre-sentence detention (PSD) in accordance with section 18(1) of the Sentencing Act 1991 (Vic) in a manner inconsistent with the reasoning in DPP v Grech [2016] VSCA 98.
2.The learned sentencing judge erred in the application of sections 10(1) and 10A of the Sentencing Act and, in particular, erred by finding that a ‘special reason’ existed in accordance with those sections that would permit the sentencing court not to impose a term of imprisonment and fix a section 11 non-parole period of not less than 4 years.
Particulars
The learned sentencing judge erred by:
(a)Finding that the respondent had proved on the balance of probabilities that the respondent had impaired mental functioning that would result in the respondent being subject to significantly more than the ordinary burden or risks of imprisonment;
(b)Holding that there were substantial and compelling circumstances that justified making a finding that a special reason existed;
(c)Failing to have regard, in determining whether there were substantial and compelling circumstances, to the Parliament’s intention that a sentence of imprisonment should ordinarily be imposed for the instant offence and that a non-parole period of not less than 4 years should ordinarily be fixed in respect of that sentence; and
(d)Finding that the cumulative impact of the circumstances of the case justified a departure from the need to impose a term of imprisonment with a non-parole period of 4 years.

3.The learned sentencing judge erred by improperly taking into account delay, namely, by finding that ‘(t)he effect of a two-year wait, knowing the possibility of a very long minimum term sentence which could apply, takes the factor.. [of delay]… out of the character of mere delay, and it should be taken into account’: the Reasons for Sentence at [31].
4.The learned sentencing judge erred by failing to properly apply the sentencing principle of parity, namely, by using parity with the co-offender Kennedy as a justification for the finding of the existence of a ‘special reason’ for the purposes of sections 10(1) and 10A of the Sentencing Act, and, in the alternative, by reducing the respondent’s sentence excessively by reference to the sentence that was imposed on the respondent’s co-offender Kennedy on the basis that a ‘special reason’ had already been established: the Reasons for Sentence at [24]-[29].
5.The learned sentence judge erred by moderating both general and specific deterrence on account of the respondent’s mental condition: the Reasons for Sentence at [40].
6.The sentence of 23 months’ imprisonment to be followed by a 2 year Community Correction Order on conditions that include, inter alia, 150 hours of unpaid community work over 12 months, on a charge of intentionally causing serious injury, in the circumstances pertaining here, is manifestly inadequate.
Particulars
The learned sentencing judge failed to have sufficient regard to:
(a)       The applicable maximum penalty;
(b)       The fact that the respondent had pleaded not guilty;
(c)       The events that led to the commission of the offence;
(d)The fact that the offence was committed in circumstances of ‘gross violence’;
(e)The fact that the respondent could not call in aid prior good character in mitigation;
(f)The fact that the offence was committed in order to enforce an asserted illicit obligation on the part of the victim owed to the respondent; and
(g)The need for punishment, specific deterrence, general deterrence, denunciation, protection of the community, current sentencing practices for this offence, the nature and gravity of the offence, the respondent’s culpability and degree of responsibility for the offence and the impact of the offence upon the victim.

The learned sentencing judge placed too much weight on matters going in mitigation, including the following:
(h)The respondent’s mental state such as it was revealed in the report of Dr Aaron Cunningham dated 18 April 2016 and tendered as Exhibit 1 on the plea;
(i)Considerations of parity;
(j)Delay;
(k)The respondent’s background; and
(l)The respondent’s prospects of rehabilitation.

Submissions

Ground 1 – failure to declare pre-sentence detention (‘PSD’) – the parties’ submissions

The Director submitted that the sentencing judge had erred in law by failing to declare PSD in accordance with the requirements of s 18(1) of the Sentencing Act.

Section 18(1) relevantly provides:

(1)If an offender is in respect of an offence sentenced to a term of imprisonment … any period during which he or she was held in custody in relation to—
(a) for the offence; or
(b)proceedings arising from those proceedings including any period pending the determination of an appeal—

must be reckoned as a period of imprisonment or detention already served under the sentence unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders.

As previously indicated, the sentencing judge in this case did not declare 150 days of PSD that had actually been served. She did so, presumably, in order to enable her to order a CCO, notwithstanding the requirements of s 44(1) of the Sentencing Act. That section provides that such an order cannot be combined with a term of imprisonment unless that term is two years or less.

By not declaring the PSD in this case, the sentencing judge was able to combine a CCO with a term of imprisonment that actually exceeded two years by some four months. The Director, in his written submissions, argued that her Honour had ‘manipulated’ the sentencing process, and effectively circumvented the limitation contained within s 44(1).

This Court has previously deprecated the practice of not declaring PSD in order to avoid the requirement, established by s 44(1), that a CCO not be combined with a sentence in excess of two years’ imprisonment.[3]
[3]DPP v Grech [2016] VSCA 98 (‘Grech’).

In addition to sidestepping that requirement, the net effect of not declaring PSD was to make it appear that a sentence of less than two years’ imprisonment had been imposed, when in truth, that was not so. That enabled her Honour to avoid fixing a non-parole period, which, pursuant to s 11(1) of the Sentencing Act, she would otherwise have had to do. It would have made little sense to order a CCO, and at the same time fix a non-parole period, and there is authority which suggests that such a course should not be adopted.[4]
[4]See Boulton v The Queen (2014) 46 VR 308.

The Director submitted that the failure to declare PSD amounted to a clear violation of proper sentencing practice. He submitted that, once specific error in that respect had been shown, it would follow that the entire sentencing exercise had miscarried. That in turn would require the respondent to be resentenced by this Court. In the course of that resentencing, the requirements of s 10(1) would have to be met.

The respondent acknowledged that the sentencing judge’s failure to declare PSD constituted specific error as the sentencing judge had contravened what this Court had said in Grech.[5] He noted, however, by way of explanation, that this sentence had been imposed before Grech had been decided.
[5]DPP v Grech [2016] VSCA 98.

The respondent submitted that, even though it was accepted that the sentencing judge had erred by not declaring PSD,[6] this Court should, when re-sentencing him, simply increase the term of imprisonment to be served from 23 months to one of 28 months, which would have the effect of restoring the 150 days of PSD not declared below. The Court would then fix a non-parole period of, perhaps, 22 months.
[6]Contrary to the requirements of s 18 of the Sentencing Act.

In oral argument, senior counsel for the respondent accepted that the net effect of that submission might be to reduce his client’s sentence, since there could be no CCO combined with any such term of imprisonment. He accepted that this would be a somewhat strange outcome, given that the Crown would have been successful in its appeal against the current sentence.

In any event, both the Director and the respondent were in agreement that, ground 1 having been made good, the respondent stood to be resentenced by this Court.

Ground 2 – the finding of a ‘special reason’ pursuant to ss 10(1) and 10A

The Director submitted that the sentencing judge had erred in finding that there existed a ‘special reason’, within the meaning of that term in s 10(1), to exempt the respondent from having to serve a minimum term of at least four years.

It was submitted that the evidence led on the plea on behalf of the respondent, had not established, on the balance of probabilities, that he had ‘impaired mental functioning’ within the meaning of s 10A(1). That was because:

(a) there was insufficient evidence to establish that the respondent suffered from ‘a mental illness’ within the meaning of that term in s 4 of the Mental Health Act 1986;

(b) there was insufficient evidence that the respondent suffered from a ‘medical condition’ that was ‘characterised by a significant disturbance of thought, mood, perception or memory’, within the meaning of that section; and

(c) there was insufficient evidence that any impaired mental functioning would result in the respondent being subject to significantly more than the ordinary burden or risks of imprisonment.[7]

[7]Section 10A(2)(c)(i)-(ii) of the Sentencing Act.

The Director submitted, in the alternative, that her Honour had erred in finding that there were ‘substantial and compelling circumstances’ within the meaning of s 10A(2)(e) that justified a conclusion that a ‘special reason’ existed for not fixing the mandatory four year minimum term. He submitted that the sentencing judge had failed to give proper effect to s 10A(3)(a), which required her Honour to have regard to Parliament’s intention that a non-parole period of not less than four years should ‘ordinarily be fixed’ in respect of any sentence for an offence under s 15A.

With regard to the ‘impaired mental functioning’ limb of her Honour’s reasons for sentence, the Director submitted that this depended entirely upon Dr Cunningham’s report. It was important to note that the report described the respondent as ‘appropriately oriented to time, person and place’. It added that ‘his thought processes appeared to be based in reality and not undermined by psychotic illness.’

Insofar as the report suggested that he may have presented with PTSD, Dr Cunningham opined that this could have stemmed from violence that he suffered during his childhood, his exposure to violence in prison, and as a member of the Finks Motorcycle Club. He was also said to have feelings of worthlessness and depressed mood, and to be subject to marked arousal in the form of irritability, and outbursts of anger. He engaged in reckless and self-destructive behaviour, suffered sleep disturbance and exhibited ‘hypervigilance’. However, from a cognitive perspective, he was assessed as being in the average range.

Dr Cunningham said that, if the respondent’s PTSD were left untreated, a term of imprisonment would weigh more heavily upon him than it would upon anyone not suffering from that condition.

The Director submitted that, based upon Dr Cunningham’s report, her Honour could not reasonably have been satisfied that the respondent suffered from a ‘mental illness’, as defined. More particularly, she could not reasonably have found that he was suffering from a ‘significant disturbance of…mood’.

The Director further submitted that, even if such a finding had been open, the sentencing judge could not reasonably have found that the respondent’s condition would render him subject to ‘significantly more than the ordinary burden or risks of imprisonment’.

The Director submitted that Dr Cunningham’s report was based upon what the Director described as a ‘self-reported’ diagnosis of PTSD. Dr Cunningham had qualified his opinion regarding the additional burden to which the respondent might be subject to, by reason of imprisonment, by prefacing that comment with the phrase ‘if left untreated’. There was no basis for any assumption that the respondent would be unable to receive appropriate treatment for his condition whilst incarcerated.

As regards the second limb of what could amount to a ‘special reason’, based upon the ‘cumulative impact of the circumstances of the case’,[8] the sentencing judge had identified various factors that she considered would amount to ‘substantial and compelling’ circumstances.
[8]Section 10A(3)(b) of the Sentencing Act.

Essentially, those circumstances were parity, delay, the respondent’s PTSD, his concern for his family and his personal circumstances. In addition, her Honour found that there were some features of the offending in this case that might be regarded as lessening its objective gravity. Despite the extremely violent nature of the attack, MO had made a full recovery from his injuries within a few months of sustaining them.

Some of the matters raised by the Director in support of this particular ground were also relied upon in support of later grounds.[9] For example, it was submitted, in conformity with ground 3, that her Honour placed more weight on delay, as a mitigating factor, than would ordinarily be justified.
[9]For example, the factor of delay was one of the matters that was said not to constitute a ‘special reason’ for departing from the mandatory minimum term, but was also the subject of ground 3, as a stand-alone ground.

The Director also submitted that her Honour was wrong to have moderated both specific and general deterrence in this case. It was common ground that the respondent’s mental state could not justify a ‘Verdins’[10] finding, at least in relation to moral culpability. There was nothing to suggest that any PTSD, or associated condition, had contributed in any way to the attack upon MO.
[10]R v Verdins (2007) 16 VR 269.

Finally, it was submitted that her Honour’s approach to parity, insofar as it contributed to her finding that there existed a ‘special reason’ for not fixing the mandatory minimum non-parole period, was wholly erroneous. It was submitted that parity could not, as a matter of law, operate to save the respondent from the reach of s 10.

Alternatively, it was submitted that any parity considerations had to be put to one side because the co-offender, Kennedy, was not charged with the same offence as the respondent, and his situation was in no way comparable. The offence to which he pleaded guilty carried a lesser maximum sentence, and, of course, did not require the fixing of a minimum non-parole period.

The respondent, on the other hand, submitted that the sentencing judge had been entitled to find that there existed ‘a special reason’ not to impose a four year non-parole period.

In particular, the respondent submitted that the term ‘impaired mental functioning’ should be construed in its ordinary and natural sense, as encompassing a wide range of mental conditions. It was submitted that this was a term largely drawn from common law principles, and should not be read down. It certainly encompassed PTSD.

It was further submitted that Dr Cunningham’s report, when read fairly, provided an adequate evidentiary basis for her Honour’s finding that the respondent suffered from a ‘medical condition’ characterised by a ‘significant disturbance of thought, mood, perception or memory’.

The respondent challenged the Director’s description of the PTSD diagnosis as ‘self-referred’. He submitted that, although Dr Cunningham had, indeed, adverted to a previous diagnosis of PTSD by Barwon Health, his actual opinion was, at least implicitly, based on a fresh diagnosis of that condition.

It was submitted that merely because Dr Cunningham had not, in terms, addressed the legislative definition of ‘impaired mental functioning’, and had not used the term ‘medical condition’, it did not follow that the respondent did not meet that requirement. It was the substance, and not the form of the diagnosis that was critical.

It was submitted that Dr Cunningham’s diagnosis of ‘hypervigilance’ was of particular significance. It was that ‘hypervigilance’ that Dr Cunningham considered to be at serious risk of deterioration in a prison environment.

Next, it was submitted that, even if the requirements of s 10A(2)(c)(ii) were not met there existed ‘substantial and compelling circumstances’ for not fixing the mandatory minimum term. These were the very factors that her Honour had identified, namely parity, delay, PTSD, personal anguish, prospects of rehabilitation, and other personal circumstances. Although viewed individually, there might be nothing particularly unusual about any of them. They took on a different complexion when viewed cumulatively.

Ground 3 – delay

The Director submitted that the sentencing judge had given the factor of delay more weight than was appropriate. She had done so merely because the legislation required her to impose a mandatory minimum term significantly greater than that which she considered appropriate.

The Director submitted that such delay as had occurred in this case would, ordinarily, have counted for very little. It should not have been accorded the significance attributed to it merely because the legislature had mandated a particular penalty with which her Honour may have felt uncomfortable.[11]
[11]Her Honour’s view that the four year non-parole period was excessive in the circumstances of this case is manifested by the sentence that she actually imposed.

The respondent, on the other hand, submitted that it was apparent that the sentencing judge had given only very limited weight to the factor of delay, both in finding that there existed ‘a special reason’ to avoid fixing the four year non-parole period, and in ultimately arriving at the sentence that she did.

Her Honour had been entitled to take into account the fact that the respondent had had hanging over his head for some 673 days between arrest and sentencing the prospect of a four year mandatory minimum term. A delay of that order was, in itself, oppressive He had not re-offended during that period, and had complied with strict bail conditions throughout. This was relevant to his prospects of rehabilitation.

Ground 4 – parity

The Director submitted that parity ought not, as a matter of law, to have entered into her Honour’s sentencing deliberations in this case. That was because parity was impliedly excluded from the range of factors that could give rise to ‘a special reason’ for avoiding s 10(1).

In any event, Kennedy’s position could not be equated, in any way, with that of the respondent. Kennedy had pleaded guilty to a different, and less serious, offence. It may have been his good fortune that recklessly causing serious injury, without the aggravating circumstance of gross violence, did not attract a minimum non-parole period, as did s 15A. However, that piece of good fortune did not entitle the respondent to feel a legitimate sense of grievance.

The Director further noted that, whereas the respondent had a number of prior convictions, Kennedy had none. Plainly, he had better prospects of rehabilitation. In addition, Kennedy was able to call in a range of Verdins considerations that were not applicable to the respondent. Moreover, and importantly, Kennedy had been sentenced on the basis that he had played a less culpable role in the offending than had the respondent.

The respondent replied to this particular variant of the Director’s argument by submitting, somewhat baldly, that it was ‘plainly wrong’. Aside from the matters to which a sentencing court must have regard, as set out in s 10A(3), the legislation was silent as to what matters might be taken into account in determining whether there existed ‘substantial and compelling circumstances’. A sentencing judge should have considerable latitude in considering that question.

The respondent submitted that it was well recognised that parity is a ‘fundamental sentencing principle’, premised upon the notion of equal justice. Had the legislature intended to exclude parity from what might be relevant considerations when sentencing an offender charged under s 15A, it could have been expected to have said so, expressly and in terms.

On the contrary, the Second Reading Speech, associated with the enactment of the section, made it clear that the ‘statutory sentence’, as it was described, would operate ‘together with the usual principles of sentencing as set out in the Sentencing Act and at common law’.[12]
[12]Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 5552 (Robert Clark, Attorney-General).

The respondent accepted that her Honour had treated parity as a relevant factor in concluding that there existed ‘substantial and compelling circumstances’, which justified a departure from the mandatory sentencing regime. However, it was submitted that she had been justified in approaching the matter that way.

While Kennedy had been dealt with for what was, technically, a different offence, his conduct was nonetheless closely connected to that of the respondent. Moreover, it involved substantial culpability on his part. He had, after all, held the victim down whilst the respondent struck him a number of times with the hammer. On any view, Kennedy was either party to a joint criminal enterprise, or was aiding and abetting. In that sense, there would not be much to choose between them in terms of their actual involvement in the commission of this offence.

Finally, it was submitted that to fix a non-parole period of at least four years, so far as the respondent was concerned, would necessarily entail the imposition of a total effective sentence that might approach six years. It would be wrong to think that the respondent could receive such a long term of imprisonment, while his co-offender would escape with a non-custodial sentence.

Ground 5

The Director submitted that, if the respondent’s mental condition was not sufficiently grave to constitute mitigation under the first two limbs of Verdins, it could not serve to justify excluding him from the reach of the presumptive minimum term sentencing regime.

The respondent, in reply, submitted that it was clear that the sentencing judge had given his PTSD only very limited weight. She had ‘slightly moderated’ the need for general and specific deterrence on account of that condition. She had been entitled to do so.

Ground 6 – manifest inadequacy

The Director submitted that, even if there did exist a ‘special reason’ for not fixing a non-parole period of at least four years, the actual sentence of 23 months’ imprisonment, with a two year CCO, was manifestly inadequate.

The Director noted that the respondent had stood his trial and had not, at any stage exhibited any remorse. Moreover, he had a number of prior convictions. These included some for violence, and particularly, an attempted robbery and an attempted armed robbery for which he had been imprisoned for a term of three years, with a non-parole period of 15 months. He had also been convicted of various drug offences and offences involving dishonesty. In addition, he had sustained a subsequent conviction for affray.

The Director submitted that the context within which this offending occurred warranted severe punishment. The respondent had recruited Kennedy to assist him, and had personally obtained the hammer. It was the respondent who had engaged in demanding and threatening behaviour towards the victim leading up to the attack, which as the sentencing judge described it, amounted to the use of ‘standover tactics’.

It was said to be an aggravating feature of this offending that the respondent threatened MO that if he did not comply with the respondent’s demands he would have MO’s girlfriend, KW, ‘bashed and raped’.

The attack upon the victim was obviously planned in advance, and the respondent clearly intended his conduct to cause a serious injury. For that reason alone, it was committed in circumstances of ‘gross violence’.[13]
[13]Section 15A(2)(a)(i) of the Crimes Act.

The offence was also committed with the use of an offensive weapon.[14] Either of these factors would have been sufficient to bring the respondent’s conduct within the element of ‘circumstances of gross violence’.
[14]Section 15A(2)(d) of the Crimes Act.

The victim’s injuries were serious. They included a broken fibula, from which he had eventually recovered, but also lasting psychological harm. The respondent must certainly have intended an injury of at least the gravity of that which was inflicted when he struck the victim on the leg with the hammer.

Moreover, the Director submitted that the few mitigating factors that may have been present did not warrant any significant degree of leniency.

As regards current sentencing practice, at least for the related offence of ICSI (though not in circumstances of gross violence), the Director referred to Nash v The Queen[15] and the various cases cited therein.
[15](2013) 40 VR 134 at 145-6 [55] per Priest JA.

The Director noted that in Nash, a sentence of seven years’ imprisonment for ICSI had been held to be unexceptionable. In addition, other cases cited by Maxwell P in Nash included Jackson v The Queen,[16] (where a sentence of four years and six months for ICSI was held, by majority, to be within range), and Cedic v The Queen,[17] where a sentence of seven years and six months for that offence withstood challenge on appeal.
[16][2013] VSCA 14.
[17][2011] VSCA 258.

If anything, the enactment of s 15A, with its additional element of gross violence,[18] makes it clear that the offence of ICSI in circumstances of gross violence must be viewed by the courts as being extraordinarily serious.
[18]As well as the redefinition of ‘serious injury’ that was introduced in 2013 by an amendment to the definition of that term in s 15 of the Crimes Act.

The Director, in his written submissions, referred to four cases which he submitted were broadly comparable in terms of their facts to the present matter. He argued that the sentences imposed in these four cases could fairly be regarded as reflecting current sentencing practice for ICSI. It would follow that they could also be regarded as relevant to the even more aggravated form of ICSI under s 15A.

The first of the four cases upon which the Director relied was DPP v Save.[19] This was a Crown appeal. The respondent (who was on parole at the time) had hit the victim with a piece of wood, fracturing his kneecap. He had some prior convictions for violence, including one for ICSI. He pleaded guilty to the charge of ICSI and some other offences. That meant that the principle of totality applied, as did, at that time, double jeopardy on a Crown appeal. This Court resentenced the respondent to a term of five years’ imprisonment on the ICSI charge.
[19][2008] VSCA 163.

The second of the four cases was R v Aquilina.[20] There, the applicant struck the victim with an iron bar, causing lacerations to the back of the head, a fractured cheek bone and fibula. He was convicted on one charge of ICSI. He had no prior convictions. He was originally sentenced on that charge to a term of six years and six months’ imprisonment with a non-parole period of four years and six months. By reason of specific error regarding Renzella time,[21] this Court resentenced him to six years’ imprisonment with a non-parole period of four years.
[20][2010] VSCA 6.
[21]R v Renzella [1997] 2 VR 88.

The third case was Smith v The Queen.[22] The victim in that case suffered a fractured fibula and injuries to the ankle joint and wrist. The applicant (who was on a community based order at the time of the offence) was convicted after a trial on one count of ICSI. He received a sentence of four years and six months for the ICSI, and an extra three months for other offences. A non-parole period of two years and nine months was imposed. The appeal against sentence was dismissed.
[22](2013) 39 VR 336.

Finally, the Director relied upon Pasinis v The Queen.[23] The victim in that case had been kicked and received two broken arms. The applicant, who had prior convictions for violence, pleaded guilty to two charges of ICSI. The plea was entered at any early stage. A total effective sentence of eight years’ imprisonment with a non-parole period of six years, five years on each of the two charges of ICSI, stood.
[23][2014] VSCA 97.

The respondent, in his written submissions, challenged the Director’s contention that current sentencing practice required a lengthy term of imprisonment for offending of this nature. He argued that, even if the sentence that he received could be viewed as being somewhat lenient, the term of 23 months’ imprisonment (in effect, 28 months when one factored in the 150 days PSD not declared) plus a CCO, was not ‘so disproportionate to the seriousness of the crime as to undermine public confidence in the ability of the courts to play their part in deterring criminal activity’.[24]
[24]DPP v Dalgliesh [2016] VSCA 148, [23] citing DPP v Bright (2006) 163 A Crim R 538.

The respondent submitted that, properly understood, this offence fell towards the ‘lower end’ of ICSI, and certainly towards the lower end for ICSI ‘in circumstances of gross violence’. That was because the injuries inflicted upon the victim, serious as they were, were not life threatening. In the end they amounted to nothing more than an ‘undisplaced tibial fracture’, no doubt together with some bruising, and a degree of pain and suffering. The evidence was that the victim had made a full recovery from the physical injuries, and had done so within about six months.

In addition, the respondent submitted that whatever planning might have taken place would have been quite limited. It was even submitted, somewhat boldly perhaps, that this case was ‘on the cusp’ so far as the offence under s 15A was concerned.

As regards the comparative cases to which the Director referred, the respondent noted that these were all decided before this Court’s decision in Boulton v The Queen,[25] (the Guideline Judgment regarding CCOs). Indeed, they were all decided before the Sentencing Act was amended to permit a CCO to be combined with a term of imprisonment of up to two years. It was said that this had altered the sentencing landscape for relatively serious offences in this State.
[25](2014) 46 VR 308.

The respondent relied, in particular, upon the sentence imposed by this Court, in response to a successful Crown appeal, in Grech which, he submitted, was a relevant comparator. In Grech, the offender used a wooden stake as a weapon, the victim was vulnerable, and the assault continued after he had been rendered unconscious. In addition, the victim suffered life-threatening injuries, which raised the possibility of long-term complications.

Nonetheless, the respondent in Grech had been sentenced to 12 months’ imprisonment with a three year CCO. This Court held that that sentence, for ICSI, was manifestly inadequate. However, it only increased the three year CCO to one of five years.

At first glance, Grech might well be thought to provide some support for the respondent’s submission that the 28 month sentence (in effect) imposed in the present case, combined with a two year CCO, was within range.

Upon closer analysis, however, as will be seen shortly, we regard the circumstances in Grech as somewhat special. In that sense, the case is not a true comparator, and the sentence imposed by this Court should not be regarded as any guide to current sentencing practice for ICSI, still less for an offence under s 15A.

The residual discretion

The respondent initially submitted that, even if this Court found the sentence imposed below to be manifestly inadequate, it should invoke its residual discretion not to intervene, and dismiss the appeal. The sole basis for that submission seems to have been parity. By the time this appeal came to be heard, the respondent had sensibly abandoned any such contention.

It was submitted, in the alternative, that if the Director’s appeal were to be allowed, on the basis of ground 6 alone, it should still not result in the fixing of a mandatory four year non-parole period.

One possibility canvassed on behalf of the respondent was simply to increase the period of the CCO from two years to one of substantially greater length, as had been done in Grech.[26]
[26]Of course, that would have the effect of both condoning and perpetuating the error made by the sentencing judge when she declined to declare PSD solely in order to circumvent the requirements of s 44 of the Sentencing Act. In order to avoid doing so, this Court would have to reduce the 23 month term of imprisonment to something like 19 months, and declare PSD. There could be no conceivable justification for reducing an already inadequate term of imprisonment still further.

A further alternative, it was submitted, would be to resentence the respondent to 28 months’ imprisonment, in combination with a CCO.[27]
[27]Once again, that submission invited this Court to do precisely what it has said, on a number of occasions, sentencing judges should not do, namely impose a term of imprisonment exceeding two years and combine it with a CCO, rather than fixing a non-parole period.

Yet another alternative put forward on behalf of the respondent was to increase the term of imprisonment to 28 months, but set a non-parole period of something like 22 months.[28]
[28]This could have the effect of reducing the respondent’s actual time in custody, assuming he were granted parole, as well as doing away with his CCO. As indicated, that would be a strange result, after a finding that the current sentence was manifestly inadequate.

None of these submissions put forward on behalf of the respondent were at all persuasive. Perhaps more sensibly, he submitted that if the Court were to find that the sentence below was manifestly inadequate, it should still not go the whole way and impose a four year non-parole period. Rather, it should simply increase the term of imprisonment to be served and fix a non-parole period of something less than four years. Self-evidently, that could only be done if this Court were of the view that s 10 was not engaged.

Conclusion

It was clear from the outset that the Director’s appeal must succeed. Both sides agreed that ground 1 had been made out, and that the sentence imposed was vitiated by specific error. Both sides also agreed that the respondent would have to be resentenced. Beyond that, however, there was no consensus as to how this Court should approach that task.

Ground 2, in particular, was the subject of extensive debate. Section 15A, and the requirement that a non-parole period of at least four years be fixed, has not thus far, so far as we are aware, presented itself for consideration by this Court.

Ground 2 gives rise to a number of difficult questions of construction, and of basic principle. The sentencing judge found that there existed a ‘special reason’ not to impose a minimum non-parole period of four years. Ground 2, of course, challenges that finding.

Among the matters raised in argument were the meaning of the term ‘a special reason’, as set out in section 10A(2). The Director submitted that, when read in context, ‘a special reason’ meant a reason that was even more powerful than would be the case if Parliament had chosen to require ‘exceptional circumstances’ as the condition for escaping the operation of s 10(1).

The Director further submitted that at least in relation to the term ‘substantial and compelling’ circumstances, as set out in s 10A(2)(e), this was not simply a broad catch-all provision. He relied upon the Second Reading Speech by the Attorney-General when he introduced the Crimes Amendment (Gross Violence Offences) Bill 2012. In that Second Reading Speech, the Attorney-General said that the Bill ‘recognises that there may be rare unforeseen circumstances where it would be clearly outside the intention of Parliament for the offender to be sentenced to a non-parole period of four years or more.’[29] It was submitted that the very terms ‘substantial’ and ‘compelling’, both of which had to be given appropriate meaning, made it plain that the onus resting upon an offender to establish such circumstances was extremely onerous, and certainly not to be discharged by routine or commonplace matters. Indeed, it was submitted that the word ‘compelling’ suggested something almost akin to irresistible.
[29]Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 5553 (Robert Clark, Attorney-General) (emphasis added).

The respondent challenged the Director’s submission regarding the meaning of ‘a special reason’. First, senior counsel submitted that that term meant nothing different than ‘out of the ordinary’. Secondly, he challenged the Director’s submission regarding the expression ‘substantial and compelling’. In that regard he drew attention the Explanatory Memorandum accompanying the Bill, where the drafter, when dealing that term explained:

The final special reason in new section 10A(2)(e) of the Sentencing Act 1991 provides that a court may depart from the statutory minimum sentence if there are substantial and compelling circumstances that justify doing so.
When considering whether the circumstances are substantial and compelling enough to justify departing from the statutory minimum sentence, the court must have regard to two specific matters.
First, the court must consider Parliament’s intention that the sentence imposed for the gross violence offence should ordinarily be a prison sentence with a minimum non-parole period of four years.
Secondly, the court must consider the cumulative impact of the circumstances of the case. The cumulative impact of the circumstances must be balanced against the presumption that the statutory minimum sentence should ordinarily apply.
For example, the court may consider factors such as —
·the nature and gravity of the offence;
·the aggravating and mitigating circumstances of the
·offending;
·the personal circumstances of the offender;
·the impact on the victim;
·the maximum penalty for the gross violence offence;
·the purposes of the statutory minimum sentence; and
·the overall purposes of sentencing in section 5 of the Sentencing Act 1991.

It must be said that it is difficult, in some ways, to reconcile some of the statements made in the Second Reading Speech, as well as in the Explanatory Memorandum, with the structure and text of the various legislative provisions presently under consideration. However, in our view one thing is clear. It was plainly the intention of Parliament that the burden imposed upon an offender who sought to escape the operation of s 10 should be a heavy one, and not capable of being lightly discharged.

More specifically, we accept the Director’s submission that the word ‘compelling’ connotes powerful circumstances of a kind wholly outside what might be described as ‘run of the mill’ factors, typically present in offending of this kind.

As regards the first limb of her Honour’s analysis regarding a ‘special reason’, namely impaired mental functioning, it is sufficient for us to observe that Dr Cunningham’s report fell well short, in our view, of establishing that there existed such a condition on the part of the respondent. The report cannot properly be read as demonstrating the existence, at the time of the commission of this offence, of a ‘medical condition’ of the type described in s 4 of the Mental Health Act.

The respondent bore the onus of proof regarding that issue. It was incumbent upon him to establish affirmatively, on the basis of adequate evidence, that such impaired functioning existed, not merely at some indeterminate stage in the past, but at the time of the commission of this offence. It is not sufficient to require a sentencing judge to search for implications of that kind in a report. The evidence must be clear and convincing. Having read the report carefully, we are not persuaded that the respondent suffered from a condition of the kind that would justify the finding, under this particular limb of s 10A, of ‘a special reason’.

In addition, the various matters upon which the respondent relied as giving rise to ‘substantial and compelling circumstances’, and which her Honour found to meet that description, fall well short, in our view, of doing so. There is nothing ‘compelling’ about them in the sense required. Nor can it be said that they are ‘rare’, or ‘unforeseen’ in cases of this type.

It follows that no ‘special reason’ of the kind required to avoid the consequences of s 10 has been demonstrated. It also follows that any sentence that this Court now imposes, as a result of allowing this appeal, must involve a non-parole period of at least four years.

It is necessary, however, to consider whether, irrespective of that obligation, the sentence to be imposed should reflect a finding that there was, as ground 6 asserts, manifest inadequacy.

There is, even now, some uncertainty as to whether a Director’s appeal, based solely upon specific error (and not manifest inadequacy), should ever result in an increase in a sentence imposed below. There are, within this Court, authorities both ways.[30] Having regard to our finding that this sentence was manifestly inadequate, it is unnecessary to say anything further regarding that particular point.
[30]See R v Clarke [1996] 2 VR 520; R v Johnston (2004) 10 VR 85; Director of Public Prosecutions v Bright (2006) 163 A Crim R 538; Hudson v The Queen (2010) 30 VR 610; Director of Public Prosecutions v Chatterton [2014] VSCA 1 cf Director of Public Prosecutions v Ghazi (2015) 45 VR 852.

On any view, the sentence imposed below was seriously out of kilter with current sentencing practice for ICSI. Although there is, as yet, no established sentencing practice through appellate judgments for the aggravated form of that offence under s 15A, the sentence under appeal is even more plainly likely to be out of kilter with what might reasonably be expected to be the sentence imposed for ICSI in circumstances of gross violence.

In addition to the cases upon which the Director relied as comparators, there are several other examples of ICSI that make this abundantly clear. Some of these were cited in Grech, and are as follows.

In Barfoot v The Queen,[31] one of the offences dealt with concerned an assault by a drug and alcohol affected man upon an innocent bystander. The offender had removed a large piece of timber from the front yard of a nearby house, walked up to the victim and hit him on the head a number of times. The offender then kicked the victim while he was on the ground and stomped on his head repeatedly while he lay unconscious in the gutter. The offender was sentenced to seven years’ imprisonment upon the charge of ICSI.
[31][2011] VSCA 282.

In Bennett v The Queen,[32] the offender punched the victim in the stomach and rib areas, wrestled with him, used a ceramic pot in a failed attempt to hit the victim on the head, put his hands around the victim’s throat, bashed the victim’s head into the concrete floor, and hit the victim to the head with the broken-off head of a statue. He was originally sentenced to six years’ imprisonment on the charge of ICSI with a non-parole period of four years. That sentence was reduced on appeal to one of five years’ imprisonment with a non-parole period of three years.
[32][2011] VSCA 253.

In Wallace v The Queen,[33] the offender struck the victim with a golf club about 10 times across the back of the head, back, arms, ribs and legs. He was sentenced to six years’ imprisonment for ICSI.
[33][2012] VSCA 114.

In addition, some guidance as to current sentencing practice for offending of this general nature may be gleaned from two other recent decisions from this Court.

In Kalepo v The Queen,[34] the offender punched the victim in the face twice, in an unprovoked attack. The victim suffered permanent injuries and ongoing psychological effects as a result. The offender was sentenced to four years’ imprisonment on a charge of recklessly causing serious injury. An appeal against that sentence was dismissed.
[34][2016] VSCA 220.

In Chol v The Queen,[35] the offender punched the victim a number of times to the head. Once the victim had fallen to the ground, the offender continued to punch him, as well as kick him, to the head. The offender pleaded guilty, and was sentenced to four years and nine month’s imprisonment on charges of ICSI. An appeal against that sentence was dismissed. The Court described the sentence as ‘lenient’.
[35][2016] VSCA 252.

Having given this matter careful consideration, we are of the view that the Director’s appeal must succeed not merely on grounds 1 and 2, which allege specific error, but also on ground 6.[36]
[36]It is unnecessary to deal with grounds 3, 4 and 5 save to say, in relation to the parity point, that we would not accept the Director’s submission that parity can never give rise to a special reason for departing from the mandatory minimum term requirement. In the present case, no genuine parity issue arises.

As indicated, we are of opinion that Dr Cunningham’s report fell well short of establishing the existence of ‘impaired mental functioning’ within the meaning of s 10A, and that none of the other factors upon which her Honour relied in concluding that there were ‘substantial and compelling circumstances’ for departing from the requirements of s 10, whether viewed independently or collectively, succeeded in discharging the burden that the respondent bore.

We are also of opinion that regardless of s 10, the sentence imposed was manifestly inadequate. It fell wholly outside the range of sentences reasonably available in the circumstances.

We would allow the appeal, set aside the sentence imposed below, and resentence the respondent to a term of five years’ imprisonment, with a non-parole period of four years.[37]
[37]PSD as to the entire period of pre-sentence detention, including the 150 days not previously declared, will now be declared.

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Du Randt v R [2008] NSWCCA 121

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20 October 2016