DPP v Nagi

[2005] VSCA 14

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 295 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS

v.

ZIYAD NAGI

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JUDGES:	WINNEKE, P., CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2005
DATE OF JUDGMENT:	7 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 14

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Criminal law - D.P.P. appeal - Intentionally causing serious injury - Sentencing judge imposing sentence of 12 months' imprisonment to be served by way of I.C.O. - Sentence of 12 months too low for this type of offending - Nevertheless, and for reasons stated, Director's appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. with Mrs C.M. Quin	Ms K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr P.F. Tehan, Q.C. with Mr D. McGlone	Victoria Legal Aid

WINNEKE, P.:

1. Ziyad Nagi ("the respondent") pleaded guilty in the County Court at Melbourne on 8 October 2004 to one count of intentionally causing serious injury to Adrian Pospisil on 6 March 2003. That offence, which carries a maximum penalty of 20 years, is created by s.16 of the Crimes Act 1958 (Vic). At the time of the offending, the respondent was 27 years of age.

1. The victim, who effectively was "king-hit" in the head from behind by the respondent, suffered a fractured left cheek-bone, which was comminuted and required the insertion of three titanium plates to stabilise it.  A tooth had to be removed to accommodate the plates.

1. The offending occurred at about 7 o'clock in the evening in the Tabaret section of the Drums Hotel in Coburg.  Although the respondent and the victim were regular patrons of the hotel, they were not acquainted, save and except to the extent to which I will hereafter briefly refer.

1. As I say, the respondent pleaded guilty to the offence and admitted a number of previous convictions for offences of minor dishonesty and driving offences;  but no convictions for violence.  The sentencing judge imposed a sentence of 12 months' imprisonment, but ordered it to be served by way of an intensive correction order (ICO).

1. The Director of Public Prosecutions for Victoria has appealed against the sentence pursuant to s.567A of the Crimes Act on the ground that the sentence is manifestly inadequate.  As particulars of that ground the Director contends that the sentence:

fails to reflect the gravity of the offending;
fails adequately to reflect the principles of general and specific deterrence;
gives too much weight to mitigating factors and insufficient weight to the maximum penalty and to the consequences to the victim.

1. Before turning to the arguments advanced on the appeal, I should very briefly rehearse the circumstances of the offending. 

1. It would seem that, about a week before the date of the offending, the respondent and the victim had been present at the same hotel when there was a physical confrontation between two groups of patrons.  The respondent and the victim were apparently participants but on different sides of the argument.  A week later (that is, the day of this assault) the victim was again at the hotel, drinking in the public bar.  At about 3 p.m. the respondent and his brother entered the hotel.  It would seem that the victim was approached by the respondent's brother and invited to talk to the respondent.  It appears that the two talked but did not resolve whatever differences existed between them.  The victim then left the hotel and went home.  About an hour later he returned to the hotel, but had armed himself with a knife before doing so, apparently for fear of being assaulted.  However, his brother, who was drinking with him, sensibly took the knife away.  At about 7 p.m. the victim went to the Tabaret section of the hotel to speak to a friend.  He was looking up at the TV screen when the respondent entered the room from the street;  approached the victim and struck him hard to the left cheek with his fist.  He then walked away.  An ambulance was called to convey the injured victim to hospital. 

1. Police were called to the hotel.  They spoke to the respondent but made no arrest as they could not speak to the victim.  Indeed, no arrest was made until 29 June 2003 - that is, more than three months after these events.  His Honour was told that when police went to the respondent's parents' home they were told that the respondent did not live there any more and the parents declined to tell them where he did live.  When finally they located the respondent and interviewed him on 29 June 2003, he told them that he did not know the victim, had not been involved in an altercation with him on 6 March, and had not assaulted him.  Although the judge appears to have acquitted him of "dissembling", such a view, I think, was charitable.

1. On this appeal, the Director has submitted that the sentence of one year for this offence was so low as - in effect - to be derisory (it was, indeed, 5% of the maximum that could have been imposed).  The Director referred to the views recently expressed by this Court, which has been concerned about the growing number of episodes of gratuitous violence in public places, in the main perpetrated by men of youthful years, and the requirement of imposing penalties adequately to reflect the principle of general deterrence so as to send a message to like-minded members of the community.[1]  The Director recognised that the sentencing judge regarded the respondent as worthy of a non-custodial penalty but had chosen an option which grossly undervalued the gravity of the offending.  Indeed, the Director submitted that the minimum sentence which could have been imposed by the judge to meet the gravity of the offence was at least three years;  although, if that had been imposed, it would have been open to her to wholly suspend that sentence, thus achieving her objective of a non-custodial disposition.

   [1]Director of Public Prosecutions v. Lawrence [2004] VSCA 154.

1. In the peculiar circumstances of this appeal we did not call upon the respondent to answer the Director's submissions.  Although I am firmly of the view that the sentence of one year's imprisonment is far too low to meet the gravity of this offending, I am not prepared to conclude that this Court should interfere with it on a Crown appeal, where principles of double jeopardy apply.[2]  The Director does not submit, and no doubt for the reasons advanced by the trial judge, that a non-custodial sentence was beyond the range available to her in the circumstances of this case.  Rather, it was submitted that she had adopted the wrong option to achieve that end.  I agree with the Director's submission that the sentence of one year's imprisonment in the circumstances of this offending was too low;  and, indeed, such a sentence should rarely be imposed for an offence of this magnitude.  Nevertheless, I would not be prepared to interfere with it on a Director's appeal for the purpose simply of substituting some other form of non-custodial sentence.

[2]R. v. Clarke [1996] 2 V.R. 520, per Charles, J.A.

1. Accordingly, I would dismiss the appeal.

CHARLES, J.A.: 

1. I agree with all that the President has said.

BUCHANAN, J.A.: 

1. I too agree.

WINNEKE, P.: 

1. The formal order of the Court is that the appeal is dismissed.

A certificate will be granted to the respondent under the Appeal Costs Act.