DPP v Malikovski
[2010] VSCA 130
•12 May 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0794
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| Appellant | |
| v | |
| EDMOND MALIKOVSKI | Respondent |
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JUDGES: | MAXWELL P, NETTLE and NEAVE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 May 2010 | |
DATE OF JUDGMENT: | 12 May 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 130 | |
JUDGMENT APPEALED FROM: | R v Malikovski (Unreported, County Court of Victoria, Judge Patrick, 7 August 2007) | |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal against sentence – Suspended sentence – Whether individual sentences or orders for cumulation manifestly inadequate – Whether suspension of sentence rendered it manifestly inadequate – Respondent pleaded guilty to numerous counts of affray, robbery, recklessly causing injury and recklessly causing serious injury – Respondent sentenced to 16 months’ imprisonment wholly suspended for 18 months and community-based order of 12 months – Totality – Parity – Delay – Rehabilitation – Appeal dismissed.
CRIMINAL LAW – Appeal – Sentence – Crown appeal – Sentencing range – Crown submission on applicable range – Whether appeal raised question of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecution | Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr M J Croucher | Galbally & O’Bryan |
MAXWELL P:
I will invite Nettle JA to deliver the first judgment.
NETTLE JA:
This is a Crown appeal against a total effective sentence of 16 months' imprisonment, wholly suspended, which was imposed on the respondent on pleading guilty to three counts of affray (Counts 1, 2 and 7); four counts of robbery (Counts 3, 4, 13 and 14); five counts of intentionally causing injury (Counts 5, 6, 8, 9 and 10); and two counts of recklessly causing serious injury (Counts 1 and 12).
The circumstances of the offending appear from the judge's sentencing remarks. The offences were committed over what the judge described as a ‘two day period of mindless violence on 12 and 13 November 2005’. They involved the respondent, 11 co-offenders and a number of other youths. At the time of the offences, the respondent was only 18 years of age.
On the evening of Friday 11 November 2005, the respondent and several co-offenders drove together in a car driven by Armiljand Gjeloshi. The group was loosely known as the ‘Albanians’, although not all of them were of Albanian descent. As they proceeded they drank bottles of vodka cruiser and made plans to steal mobile phones from persons on the street. They went to a nearby milk bar where they met up with another carload of young men driven by Haris Alicic. That second group were known as the ‘Bosnians’, although not all of them were of Bosnian descent.
The respondent then got into Alicic's car and both cars drove to a party which had been underway for some time at Carrum. There they met up with a third carload of youths driven by Gordon Sellers. By that stage, most of the party goers had left, but among those remaining were Samuel Taylor and a small group of his friends, including James Dandoulis and Beau Smith.
The respondent and his co-accused walked onto the beach and approached a bin fire which Mr Taylor and his friends had started. Gjeloshi and his group then walked over to where Mr Taylor was sitting with two female companions and another male, before returning to the bin fire. As they walked back to the fire one of Gjeloshi's group asked James Dandoulis for his mobile telephone and Mr Dandoulis handed it over. He was scared and he told the group that they could keep his phone.
Another member of the group, Senad Ahmetovic, demanded that Mr Taylor hand over his mobile phone and he did so. Mr Taylor was next subjected to a pat down search and his wallet was removed from his pocket and its contents were strewn on the sand. Ahmetovic then punched Mr Taylor with a clenched fist to the head, and Mr Taylor dropped to the ground. Gjeloshi and Anel Omerovic set upon him on the ground, kicking him numerous times about the head and body, while the respondent and others of the group surrounded Mr Taylor to prevent anyone else assisting him, or him from leaving (Count 1 affray). Mr Taylor suffered, pain, bruising and cuts to his head and body. Ultimately he managed to flee and hid in the bushes.
The respondent and other members of the group ran from the beach and drove away in the vehicles driven by Gjeloshi, Alicic and Sellers. They headed north along the Nepean Highway, looking for a McDonald's restaurant. The respondent was in Gjeloshi's car and he and others of the group in that car continued to make plans to rob and to steal mobile telephones and wallets.
At approximately 3.15am on Saturday 12 November 2005, the three vehicles were travelling north along Chesterville Road, Cheltenham when the group sighted two young males, Nicholas Humphreys and Elliot Leed. The cars pulled into a side street ahead of the two men and the group got out and jogged back and surrounded them. Gjeloshi, Steven Grey, Ahmetovic and Omerovic approached the two men and demanded their mobile telephones.
Mr Humphreys went to hand over his phone as demanded, but Gjeloshi and Ahmetovic struck him in the head with clenched fists. Mr Humphreys ran away across Chesterville Road but the respondent and other members of the group chased him into a nearby driveway and tripped him up. The respondent again demanded that Mr Humphreys hand over his mobile telephone and he did so together with some $105 cash. But the respondent then hit Mr Humphreys with a clenched fist in the face, causing him to fall to the ground. Other members of the group attempted to kick him on the ground, but were unable to do so because he was between a car and a caravan. The respondent, however, dragged him to clear ground so that he could be further kicked about the body. Later, he managed to get to his feet and walk back out to the street but another member of the group then threatened him several times that, ‘If I see cops, you're dead’, before the group finally fled.
As a result of the attack, Mr Humphreys suffered bruising and pain to the left jaw and tenderness and soft tissue injury to his scalp, right ear, neck and shoulders (Count 2 affray; Count 3 robbery; and Count 5 intentionally causing injury).
Mr Leed submitted to having his pockets searched and his Nokia mobile telephone, which was valued at approximately $900, taken from him. Gjeloshi and Ahmetovic then forced him up against a fence and punched and kicked him about the head, body and legs. He was next told to get up and to hand over his wallet, which contained $45 cash, and further assaulted by Ahmetovic punching him in the stomach with a clenched fist. The group then chased him into the front yard of a nearby property before fleeing north along Chesterville Road back to their cars.
As a result of the attack on Mr Leed, he suffered injuries, including swelling and pain to the top and side of his head and tenderness and pain to both forearms (Count 4 robbery; and Count 6, intentionally causing injury).
In the evening of Saturday 12 November 2005, the group reconvened and after visiting a number of other places, drove south along Beach Road towards the Mentone Hotel. As they drove at about 2.15am on Sunday 13 November 2005, Ahmetovic observed a group of eight youths seated on the beach side of the road and signalled by walkie-talkie radio to the other cars, ‘Let's jump these guys’. That resulted in a plan for some of the group to approach the victims and demand their phones and for the rest of the group to follow.
Ahmetovic, Omerovic, Grey and the respondent went first with the intention of hitting and punching wherever they could, and they began fighting and yelling out, ‘Give us your phones.’ Ahmetovic attempted to ‘fly kick’ one of the victims, Mathew Clapperton, and Gjeloshi grabbed another, pulling him to the ground where other members of the group then punched and kicked him. Ahmetovic smashed a bottle over another victim’s, Kevin Etcell's, head and then waved the broken bottle in Mr Etcell's face, while stating that he, Ahmetovic, was Bosnian and would kill Mr Etcell. Mr Etcell and a further victim, Mathew Clapperton, were also kicked in the head. Grey and Gjeloshi then chased Mr Etcell a further 250 metres and threw a bottle at him (Count 7 affray; and Count 8, intentionally causing injury to Mr Etcell). A fourth victim, Rochelle Noble, ran to safety but she was followed by some of the group and one of them brought a bottle near to her face saying, ‘Oh you're a fucking slut. We're the Noble Park Bosnians, you'd better remember.’
Another victim, Leigh Adams, was knocked to the ground. His female companion, Emma Martin, lay over him screaming, ‘Get off him. Leave him alone.’ But the group continued to kick and stomp on Mr Adams, and Grey punched him. Ms Martin then used her handbag to try to stop the group hitting Mr Adams, but she could not stop them. They continued to hit Mr Adams with the bottle and punched him to the side of the head until he lost consciousness.
Mr Adams later regained consciousness, and Ms Martin dragged him to the safety of a nearby carport, but then two of the accused ran back to the carport and proceeded to kick Mr Adams and Ms Martin repeatedly in the head, (Count 9, intentionally causing injury to Mr Adams; and Count 10 intentionally causing injury to Ms Martin).
Another friend of Mr Adams, Matthew Torcasio, ran over to assist him but Mr Torcasio was immediately surrounded by the group and had a bottle thrown at him which hit in the shoulder. He broke through the group and ran several metres along Beach Road, attempting to call the police on his mobile phone, but Gjeloshi, Grey, Bajram Deguti and the respondent ran back to a car and drove after Mr Torcasio into a vacant block and there forced him to the ground and proceeded to punch and kick him to the head and body. Omerovic then ran up to Mr Torcasio and kicked him in the head repeatedly, yelling out as he did so, ‘Don't fuck with my friends and [sic] Bosnians’ and Ahmetovic also yelled out, ‘Don't fuck with the Noble Park Bosnians.’
Mr Torcasio lost consciousness (Count 11, recklessly causing serious injury to Mr Torcasio). His wallet containing $140 and his Sony Ericsson mobile phone was stolen during the attack (Count 13 robbery).
A further victim, Shane Raison, tried to run from the attack but was hit in the back with a bottle and dragged to the ground. Members of the group then proceeded to kick and punch him to the head and body until he lost consciousness (Count 12, recklessly causing serious injury to Mr Raison). During the attack his mobile telephone and wallet containing $50 were stolen (Count 14, robbery).
The consequences for the victims were dire. Kevin Etcell suffered injuries which included a cut to the right side of his nose and cuts to the forehead and head. Shane Raison suffered loss of consciousness, a swollen right eye, bruised and swollen cheekbone, chipped front teeth, bruised and swollen left ear, grazing to the arms and legs, back pain, swelling to his head and ongoing headaches. Emma Martin suffered injuries which included bruising to her face, cheek, left eye and right shoulder, grazing to the shoulder, and general pain and discomfort. Leigh Adams lost consciousness, had several bumps on his head, and reported having a severe headache.
The sentence passed below
In passing sentence, the judge said that she took into account the seriousness of the offences and their consequences and also the sentences imposed on the respondent's co-offenders, Gjeloshi and Grey. As the judge observed, however, there had been considerable delay between the time of the offending and time of sentencing, for only part of which the respondent was responsible, and he had made significant steps towards rehabilitation in the meantime. The judge took the view that, given the respondent's remorse, plea of guilty, acceptance of responsibility, work-approach, family stability, increased maturity and psychological strength, he had good prospects of rehabilitation, which it was in the interests of the community to foster. Her Honour stated that she regarded those matters as operating in mitigation of sentence and also in favour of suspending such sentence of imprisonment as should be imposed. At the same time, the judge said, she considered that the imposition of a community-based order would enable the respondent to engage in community work as a form of punishment and as an opportunity to put back something into the community, as well as providing an opportunity for supervision and support for the respondent's continuing rehabilitation.
Her Honour thus sentenced the respondent on count 2 (affray) to a community based order of 12 months duration with special programme conditions that he perform 180 hours of unpaid community work over the following 12 months; be under the supervision of a Community Corrections officer for the duration of the order; undergo assessment for programmes to reduce re-offending and participate in such programmes as directed by the Community Corrections Officers; and undergo assessment and treatment for alcohol or drug addiction and submit to psychological or psychiatric assessment and treatment as directed.
On the remaining counts, her Honour sentenced the respondent as follows:
· on Count 1 (affray), to three months’ imprisonment;
· on Count 3 (robbery), to four months’ imprisonment;
· on Count 4 (robbery), to four months’ imprisonment;
· on Count 5 (causing injury intentionally), to three months’ imprisonment;
· on Count 6 (causing injury intentionally), to three months’ imprisonment);
· on Count 7 (affray), to three months’ imprisonment;
· on Count 8 (causing injury intentionally), to thee months’ imprisonment;
· on Count 9 (causing injury intentionally), to three months’ imprisonment;
· on Count 10 (causing injury intentionally), to three months’ imprisonment;
· on Count 11 (recklessly causing serious injury), to four months’ imprisonment;
· on Count 12 (recklessly causing serious injury), to four months’ imprisonment;
· on Count 13 (robbery), to three months’ imprisonment; and
· on Count 14 (robbery), to three month’s imprisonment.
The judge further ordered that one month of each of the sentences imposed on counts 1, 3, 4, 5, 6, 7, 8, 9, 10 , 12, 13 and 14 be served cumulatively on each other and on the sentence imposed on count 11. That made for a total effective sentence of imprisonment of 16 months which the judge then wholly suspended for a period of 18 months.
The judge declared, pursuant to s 6AAA of the Sentencing Act1991, that, but for the respondent's plea of guilty, she would not have imposed a community-based order but would have sentenced him to a term of imprisonment of 24 months of which 12 months would have been suspended for two years.
Grounds of appeal
The Crown advanced three grounds of appeal:
· Ground 1: that the individual sentences imposed on each count and the total effective sentence are all manifestly inadequate in all the circumstances.
· Ground 2: that the direction wholly to suspend the sentence and the period of suspension resulted in a sentence that is manifestly inadequate in all the circumstances.
· Ground 3: the sentence imposed on each count and the orders for cumulation are contrary to law.
Ground1: Manifest inadequacy
The maximum penalty for affray is five years' imprisonment, the maximum for robbery is 15 years' imprisonment, the maximum for intentionally causing injury is ten years' imprisonment and the maximum for recklessly causing serious injury is 15 years' imprisonment.
In the Crown's submission, given the nature and gravity of the offending which was here involved, and the effects on the victims, the individual sentences of only a few months on each count and the total effective sentence of 16 months suspended for 18 months were seriously inadequate.
The Crown accepts that the respondent had in his favour the range of mitigatory considerations to which the judge referred, but contends nonetheless that the sentence was manifestly inadequate and that this Court should deal with the matter on the basis that it raises an important general issue as to the relevant sentencing range for a youthful offender who engages in a serious violent incident resulting in injuries to multiple victims, but who can prey on significant mitigatory features (such as delay and rehabilitation).
I accept the Crown's submission up to a point. In my view, some of the individual sentences were inadequate and the total effective sentence was very merciful. There is much to be said for the view, urged by the Crown, that the respondent's role in what was in effect a spate of unprovoked attacks on innocent people warranted an immediate custodial sentence. Despite the applicant's youth and other considerations urged in mitigation of penalty, the nature and gravity of this offending and respondent's moral culpability meant that general deterrence and denunciation should have been pre-eminent sentencing considerations.[1]
[1]R v PDJ (2002) 7 VR 612, 629 [82]; R v Thompson, (Unreported, Victorian Court of Appeal, 21 April 1998), BC 9801712, 7–8; DPP v Lawrence (2004) 10 VR 125, 132 [22]; R v Simpas [2009] VSCA 40 [13].
That said, however, there are at least two difficulties in the way of appellate intervention. The first is that the sentence imposed on the respondent accords closely with the sentences that were imposed on his co-offenders, Gjeloshi and Grey. Gjeloshi was sentenced to a total effective sentence of 14 months' imprisonment with a non-parole period of seven months and Grey was sentenced to ten months' imprisonment wholly suspended for 18 months and a community-based order of the same duration. And the Crown did not appeal against either of those other sentences. Consequently, I consider that any substantial alteration in the sentence imposed on the respondent may well result in a degree of disparity sufficient to engender a justifiable sense of grievance, or at least give the appearance that justice has not been done.[2]
[2]R v Taudevin [1996] 2 VR 402, 403; Postiglione v The Queen (1997) 189 CLR 295, 300–302; R v Djukic [2001] VSCA 226 [25]–[26]; R v Hildebrandt [2008] VSCA 142 [42]–[65].
Counsel for the Director argued to the contrary, that although the judge found the respondent's role in the offending fell somewhere between the roles played Gjeloshi and Grey, and, other things being equal, that would suggest a sentence somewhere between the two would be in order, Gjeloshi and Grey were both entitled to a significant discount for agreeing to give evidence on behalf of the Crown[3] and the respondent was not entitled to an informer's discount of that kind. It followed, so it was, that the sentence imposed on the respondent should have been significantly more than the sentences imposed on the other two offenders, and therefore, that there was room for appellate intervention without risk of disparity.
[3]R v Johnston (2008) 186 A Crim R 345, 349 [16]–[21].
I am not persuaded by that submission. Part of the answer to it, as counsel for the respondent point out, is that although the judge found the respondent's role fell somewhere between those of Gjeloshi and Grey, there were also other relevant considerations. At the time of Gjeloshi's sentencing, he was already serving a term of imprisonment for breach of an intensive correction order, and so was not eligible for a suspended sentence. Additionally, when compared with the individual sentences imposed on Gjeloshi and Grey, the individual sentences imposed on the respondent were in most cases greater and the total effective sentence imposed on the respondent was more than that imposed on either Gjeloshi or Grey.
The second difficulty is that it is now getting on towards five years since the offences were committed and almost a year since the respondent was sentenced. I shall say more of that later.
Ground 2: Direction wholly to suspend the sentence
Under Ground 2, counsel for the Director argued that, even if the length of the individual sentences and total sentence of imprisonment imposed on the respondent were not manifestly inadequate, the order wholly to suspend the sentence rendered it manifestly inadequate.
I do not accept that submission. Although it is possible for a sentence of imprisonment imposed which is not otherwise exceptionable to be rendered manifestly inadequate by an order wholly to suspend it, such cases are likely to be rare[4] and I am not persuaded that this is such a case.
[4]R v Cottery [2002] VSCA 13, [9]; DPP v Oversby [2004] VSCA 208, [22].
Here there was a long delay between the time of offending and the date of sentence. It was that delay and its consequences which the judge considered to warrant the suspension of the sentence. As her Honour said, if she had been sentencing the respondent at the time of sentencing Gjeloshi and Grey, she would probably have sentenced him to an immediate term of imprisonment. But the delay, although in part the fault of the respondent, resulted in a positive improvement in his situation, a demonstration of rehabilitation and an increase in the stability of his life and self discipline. Her Honour took the view that those considerations and others which emerged during the period of delay operated in mitigation of sentence and in favour of a suspended sentence.
With respect, I see no error in that part of her Honour's reasoning. In principle, it accords precisely with the relevant authorities.[5]
[5]R v Nikodjevic [2004] VSCA 222, [18]–[27]; R v Tiburcy (2006) 166 A Crim R 291, 296 [24]–[28]; R v Merrett, Piggott & Ferrari (2007) 14 VR 392, 399 [33]–[38].
Ground 3: Individual sentences and orders for cumulation
There is I think more substance in the complaint made under Ground 3, that the judge erred in the manner in which she structured the sentence by failing to heed to the precepts essayed in DPP v Grabovac.[6] As was there explained, when the principle of totality is engaged, it is usually preferable to impose individual sentences commensurate with the nature and gravity of the offence and to regulate the total effective sentence by appropriate orders for cumulation, rather than to impose reduced individual sentences.[7]
[6][1998] 1 VR 664.
[7]Ibid 677–81.
In my view, the way in which the judge went about the exercise in this case resulted in some individual sentences that were inadequate. More precisely, I consider that the individual sentences of three and four months' imprisonment which her Honour imposed on the counts of affray, intentionally causing injury and recklessly causing serious injury plainly failed to reflect the objective seriousness of each of those offences and the need for denunciation and general deterrence of offending of that kind. Given the nature and gravity of the offences, I should have thought that the appropriate individual sentence to be imposed on each of the counts of affray would have been in the order of 12 months' imprisonment; the appropriate individual sentence to be imposed on the counts of intentionally causing injury would have been somewhere in the order of 12 to 18 months' imprisonment; and the appropriate individual sentence to be imposed on the count recklessly causing serious injury would have been in the order of two years' imprisonment.
I am, however, not persuaded that the inadequacy of the individual sentences imposed on those counts is sufficient to mandate appellate intervention. For even if the respondent were re-sentenced on those counts to what I consider would be appropriate individual sentences, the principles of totality and parity would so limit the cumulation of individual sentences as to yield a total effective sentence of something less than three years' imprisonment. And as I see it, particularly in light of the application of the principle of double jeopardy, the difference between that and the total effective sentence of 16 months which was imposed, when taken in conjunction with the community-based order of 12 months, is not enough to warrant appellate intervention in the circumstances of this case.
Finally, and not insignificantly, it is necessary to remember the delay of close to five years which I mentioned earlier in these reasons, and that because of the delay of almost 12 months since sentencing, the respondent is now close to completion of the community-based order which was made against him. As far as we know, he has thus far complied with its conditions. If so, and given his age, it would be a harsh thing indeed now to order him into custody.[8]
[8]DPP v Waack (2001) 3 VR 194, 209 [36].
Conclusion and orders
In the result, I would dismiss the appeal.
MAXWELL P:
I too would dismiss the appeal, for the reasons which his Honour has given. I would add several matters for myself.
The nature of appellate review of sentencing
The question to be addressed on an appeal of this kind is – axiomatically – whether the sentence imposed fell outside the range reasonably available to this judge for sentencing this offender for these offences in these circumstances.[9] The ground of manifest inadequacy cannot succeed unless the appeal court is persuaded that no reasonable judge could have imposed this sentence on this offender for these offences in these circumstances.[10]
[9]R v MacNeil-Brown (2008) 20 VR 677, [9] (‘MacNeil-Brown’); DPP v DDJ (2009) 22 VR 444, [42].
[10]R v Abbott (2007) 170 A Crim R 306.
It needs to be repeated – and repeated clearly – that the Court of Appeal is not the sentencing court. The task of imposing sentence is committed by the Parliament to sentencing judges. As we have sought to make clear time and again, there is no scope for intervention either on a prisoner's appeal or on a Director's appeal unless the sentence can be demonstrated to be obviously wrong, that is, so clearly outside what could be regarded as the sentencing range applicable to the case that this Court must step in and exercise the discretion afresh. I am not persuaded that this case approaches the point at which such intervention is called for.
The dismissal of the appeal says nothing about the character of the conduct for which this respondent was sentenced. As Nettle JA has noted, the sentencing judge viewed the conduct very seriously and, in my respectful opinion, rightly so. This was despicable, cowardly, behaviour. Not only was it violent, but it illustrated the worst cowardice of group violence. I should think everyone in the Court felt uncomfortable on hearing the account of the brutality in which this respondent participated. I sincerely hope he felt uncomfortable, and ashamed, when it was read out in detail by Nettle JA. As sentencing judges are regrettably required to keep saying, this is the very kind of unprovoked violence about which members of this community are rightly concerned. The risk that members of this community will be set upon when engaged in peaceful activity brings fear into the minds of parents and children alike.
But the question is not what sentence we would have imposed. The question is whether it can be demonstrated that the exercise of this judge's discretion miscarried. Mr Sonnet, who presented his submissions with his customary clarity and candour, acknowledged that the real attack was not on the total effective sentence, but on the decision to suspend the sentence of imprisonment. As he rightly acknowledged, that is quintessentially a matter for the discretion of the sentencing judge, as is pointed out in the authorities to which Nettle JA has referred.
The public interest in rehabilitation of offenders
The sentencing reasons show clearly that one of the issues foremost in the judge's mind was the need for general deterrence. This case is yet another illustration of how vitally important it is that young men are made to realise that alcohol-fuelled violence is likely to result in terms of imprisonment. At the same time, it is equally clear that the judge was paying close attention to the rehabilitation of this offender, not because she was unmindful of the great harm which this offender had caused his victims, nor of the need for denunciation of this kind of behaviour, but because – as I read her Honour's reasons – she appreciated that there is a vital community interest in rehabilitation of young offenders. That is a point which this Court has also been at pains to emphasise.
In what continues to be a highly punitive debate about sentencing, it seems to me that this Court needs to promote public understanding of the fact that, quite apart from the interest of the individual whom it is sought to rehabilitate, there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime. The prospect of an offender being rehabilitated represents the best hope for the community that the person will never again engage in violent behaviour.
In my respectful view, the judge was entitled to give significant weight to the question of rehabilitation – first, because this was a relatively young offender; and secondly, because there was – as the prosecutor conceded before the judge – very significant delay between the offending and the date of sentence. Nettle JA has referred to those circumstances and they need not be repeated.
Defence counsel on the plea rightly called in aid the decision of this Court in R v Merrett.[11] Two principal sentencing considerations are enlivened where there is substantial delay of this kind. The first is the question of fairness to the person charged, who has had the matter hanging over his head for some time. That was true of this case, notwithstanding that the respondent had gone abroad before charges were laid. The second consideration is the rehabilitation of the offender which may have taken place in the period of the delay. As Nettle JA has said, there was strong evidence that such rehabilitation had occurred. In a case where the delay is not attributable to the offender, it is appropriate that that be taken into account in sentencing.
[11](2007) 14 VR 392.
The following paragraphs of the sentencing reasons explain very clearly how the judge dealt with those matters:
It is my view that had I been sentencing you at the same time as those other persons were sentenced and in the circumstances, similar in circumstances to those persons insofar as the stage of the proceedings was concerned that it would have been most likely that you would have received an immediate term of imprisonment. It is, however, in my view, my obligation to consider your current circumstances and to take those matters into account in sentencing you, together with what has occurred to you between the time of this offending and the present time. In relation to the delay, given what you told Mr Joblin, I consider that you are responsible to a considerable degree for the delay although I note what was properly conceded by the prosecutor as to delays caused by various things that occurred during this process. The delay in my view has resulted in some positive improvement in your situation, given the matters that are stated in Mr Joblin’s report I consider that there has been a demonstration of rehabilitation and an increase in the stability in your life and in your self-discipline. I note in particular that you spent six months in the Macedonian army while you were absent from Australia. I also note that you have better relationships and greater stability within your family. I also note what Mr Joblin says about your various positive attitudes to your employment and that you are working two jobs currently in order to be able to save up to move into your own home with your current girlfriend. I note also that you have no current drug or alcohol issues although you admitted one relapse with alcohol.
…
I am also of the view that given the age you were at the time of this offending and your current age that considerable weight should be given to your rehabilitation. My view is that you have good prospects for rehabilitation, in particular I refer to matters that Mr Joblin said in his report. I note that he says that you are of ‘sufficient psychological strength to be able to reject any offerings that might be made to him by antisocial others and that in my opinion is important’. He is of the view that you display maturity beyond your age. He also says that you show quite obvious remorse. He says, ‘his remorse is more than simply sorrow for having committed an offence. Mr Malikovski acknowledged that the victims would have suffered’. He says that you have a painful self-evaluation with regard to the offending which he is of the view is appropriate and have indicated contrition and a strong willingness to avoid further attention from the police. He says you also expressed sympathy for your victims and berated yourself appropriately. He is of the view that there is a reasonably optimistic prognosis given your job and prospects for a successful future.
I accept that you are now genuinely remorseful for your actions although I doubt that you expressed or felt remorse at the time of the record of interview. Given your remorse, plea of guilty, acceptance of responsibility, your work approach, family stability, increased maturity and your psychological strength, I am of the view that you have good prospects for rehabilitation. Significant weight in sentencing should be given to your rehabilitation given your age. Your rehabilitation is in the interests of the future protection of the community. In my view, those matters also result in a decreased need to place weight on specific deterrence in the sentence. Those matters in my view operate in mitigation of sentence and also as to the desirability of suspending any sentence of imprisonment imposed.
I consider that the imposition of a community-based order would also enable you to engage in community work as some form of punishment for yourself but also an opportunity to put something back into the community. It would also provide an opportunity for supervision and support of your rehabilitation. I accept that having to do a community-based order may cause difficulties for you in terms of your current work but I consider that it is appropriate that you may have to reduce your paid work hours in order to put something back into the community to pay for the harm you caused others.[12]
[12]R v Malikovski (Unreported, County Court of Victoria, Judge Patrick, 7 August 2007), [41]–[46].
Once it is recognised that a sentencing exercise of this kind requires the balancing of conflicting considerations – general deterrence and denunciation on the one hand, and rehabilitation on the other – the debate about whether the balance was rightly struck is really a debate about whether it was the right sentence. But there is of course no right sentence; there is a range within which the sentencing discretion can lawfully be exercised.
When a sentencing judge has carefully and conscientiously addressed all the relevant matters and has undertaken the necessary task of weighing up the competing factors, this Court will be reluctant to intervene. A sentence appeal is not, and cannot be allowed to become, a rehearing on the merits. The risk with the ground of manifest inadequacy, as with the ground of manifest excess, is that it tends to lead in exactly that direction.
In Wyley,[13] the judge struck the balance more towards general deterrence. A considerably heavier sentence was there imposed – and upheld by this Court – for recklessly causing serious injury. In this case, as the reasons have made clear, her Honour was prepared to regard the respondent’s rehabilitation as warranting a merciful disposition.
[13][2009] VSCA 17.
It must be hoped that the respondent realises that he has been the beneficiary of a merciful sentence, and that the judge has expressed faith in his capacity to learn from this appalling event and to take the chance which she has given him. He will also understand, I have no doubt, that if he fails to take that chance and breaks the criminal law again, that breach will be viewed all the more seriously precisely because he will have failed to make the best of the merciful disposition in this case.
Crown submission on range
I want to say something about the submission on range advanced by counsel for the Crown. As Nettle JA mentioned, the written submission for the Director asserted that this appeal raised the following general issue:
What is the relevant sentencing range for a youthful offender who engages in a series of violent incidents (resulting in injuries to multiple victims) but who is able to pray in aid significant mitigatory features (such as delay and rehabilitation)?
What is striking about this question is the general terms in which it is expressed. After the written submission was filed, the Court pointed out to counsel that the question on this appeal was not ‘What is the relevant sentencing range for a youthful offender?’, but rather ‘What was the relevant sentencing range for this offender for these offences, with his mitigating circumstances?’
With his customary industry, Mr Sonnet provided a further written submission setting out what the Crown submitted was the applicable range in the case at hand. He did so in conformity with what this Court said in MacNeil-Brown,[14] about the Crown’s obligation to assist a sentencing court on the appropriate range for the case at hand. It is earnestly to be hoped that, as the decision in MacNeil-Brown[15] comes to be more widely understood and applied, this kind of assistance will be given to judges at first instance. The purpose of the provision of such assistance is, of course, to promote consistency and to reduce the number of appeals.
[14](2008) 20 VR 677.
[15]Ibid.
The Crown's submission set out what was said to be the indicative range for these offences, and for the total effective sentence. The lower end of the range for the total sentence was 22 months. The gap between that and the sentence actually imposed was on its face not very great. In my respectful view, the Crown is to be commended for having provided its frank assessment of what the range was, the operative constraint in this case being the need to maintain parity with the co-offenders who have been sentenced. In my view, the respondent was right to submit that the relatively small gap between the lower end of the Crown’s range and the sentence actually imposed would militate against appellate intervention on a Crown appeal.
No issue of principle
It must be remembered that Crown appeals against sentence are meant to be exceptional and are meant to be brought only where there is a question of principle to be advanced.[16] With respect to the Director, this appeal raises no issue of principle at all.
[16]DPP v Bright (2006) 163 A Crim R 538.
Sentencing for recklessly causing serious injury does raise, however, an important issue of principle. Next Tuesday in this Court we will have the opportunity to examine the general question of sentencing for recklessly causing serious injury. As a result of directions given in two prisoner appeals, the Court has been provided with extensive sentencing information in relation to this offence. For the first time we will be able to consider whether it is possible to inject some coherence into sentencing practice for this offence.
That is the issue of principle: what are the criteria to be taken into account in sentencing for an offence (recklessly causing serious injury) which – so the maximum penalty reveals – is viewed very seriously by the Parliament and the community?
For the Director to bring an appeal like this, dealing with only one of several co-offenders, all convicted of the same offence, is not the way to raise a general issue about sentencing for the offence. That is so because, whatever views we might as a Court have about sentencing for that offence, we are constrained – as the judge was – by the (unappealed) sentences imposed on the co-offenders. Parity of treatment is a basic tenet of the rule of law. As Mason J said in Lowe v The Queen:[17]
Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.[18]
[17](1984) 154 CLR 606.
[18]Ibid 610–11.
Finally, the bringing of this appeal seems to me to be all the more inappropriate by reason of the fact that this offender is at liberty and has been at liberty since he was sentenced. The respondent having been given his liberty and having made positive steps towards rehabilitation, it is difficult to see how it could have been thought – in the absence of some serious subsequent offending – that this Court would conclude that the public interest would be served by now committing him to an adult gaol. As Nettle JA said, that would be a very drastic thing to do and it would, in my opinion, have required a far more compelling case than could ever have been advanced on this appeal.
I add in closing that Mr Sonnet for the Director said everything that could have been said about the inadequacy of this sentence. If sentences of three, four, six or eight months for recklessly causing serious injury (as imposed on the various co-offenders) are any reflection of current sentencing practices for that offence, then there is a very serious question about whether those practices can be justified when regard is had to the maximum penalty of 15 years. But that is not an issue which can be decided on this appeal.
NEAVE JA:
I agree with Maxwell P and with Nettle JA that the appeal should be dismissed.
I also want to state my agreement with the views expressed by their Honours about the cowardly and vicious nature of these offences. The offences involved a number of victims, took place over a number of days and involved premeditated violence. I agree with Nettle JA that it would have been appropriate in the circumstances of this case for her Honour to have placed greater weight on general deterrence and denunciation of the offences. However, in the circumstances of this case, where the double jeopardy principle applies and the respondent has almost completed service of his community-based order, the appeal must be dismissed.
MAXWELL P:
The order of the Court is:
1. Appeal dismissed.
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