Elmaghraby v The Queen

[2016] VSCA 326

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0014

ADAM ELMAGHRABY	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	REDLICH and SANTAMARIA JJA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 October 2016
DATE OF JUDGMENT:	16 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 326
JUDGMENT APPEALED FROM:	[2015] VCC 1914 (Judge Ryan)

---

CRIMINAL LAW – Appeal – Conviction – One charge of kidnapping, one charge of false imprisonment and one charge of intentionally cause serious injury – Unreliable evidence direction – Jury Directions Act 2015 s 32 – Effect of smoking cannabis on memory and loss of consciousness during offending – Whether evidence was ‘evidence of a kind that may be unreliable’ – Allen (A pseudonym) v The Queen (2013) 39 VR 629, Young v The Queen [2015] VSCA 265, discussed – Unreliability arising from cannabis use fully exposed to jury through cross-examination and final address – Jury able to draw from own experiences – No warning required – Application for leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Guilty verdict unreasonable or cannot be supported having regard to the evidence – Circumstantial case – Evidence of victim in conjunction with strong circumstantial case – Open to jury to be satisfied of applicant’s guilt – Application for leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Current sentencing practice – Hills v The Queen [2011] VSCA 364; Cini v The Queen [2013] VSCA 115; Hanna v The Queen [2014] VSCA 187; Chol v The Queen [2016] VSCA 252, considered – Objective gravity of offending – Non-parole period – Kumova v The Queen (2012) 37 VR 538, considered – Sentence not outside available range – No mitigating circumstances requiring lower non-parole period – Application for leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Grace QC	-
For the Crown	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA

SANTAMARIA JA

BEALE AJA:

1. Following a 14-day trial by jury in the County Court the applicant was convicted of one charge of kidnapping, one charge of false imprisonment and one charge of intentionally causing serious injury.  He seeks leave to appeal against his conviction on the following grounds:

1.That a substantial miscarriage of justice resulted from the failure of the learned trial judge to give to the jury an unreliable evidence direction.

2.That the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence.

1. The applicant, having entered pleas of guilty to four summary charges of possess a prohibited weapon, and one summary charge of possess a sch 4 poison, was sentenced by the trial judge as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1.	Kidnapping [Common law]	25 years [Crimes Act 1958, s 320]	5 years	18 months
2.	False imprisonment [Common law]	10 years [Crimes Act 1958, s 320]	3 years	12 months
3.	Intentionally cause serious injury [Crimes Act1958, s 16]	20 years [Crimes Act1958, s 16]	5 years	Base
Summary Charge	Possess prohibited weapon [Control of Weapons Act 1990, s 5AA]	240 penalty units or 2 years’ imprisonment [Control of Weapons Act 1990, s 5AA]	$1000 fine (aggregate)	N/A
Summary Charge	Possess prohibited weapon [Control of Weapons Act 1990, s 5AA]	240 penalty units or 2 years’ imprisonment [Control of Weapons Act 1990, s 5AA]
Summary Charge	Possess prohibited weapon [Control of Weapons Act 1990, s 5AA]	240 penalty units or 2 years’ imprisonment [Control of Weapons Act 1990, s 5AA]
Summary Charge	Possess prohibited weapon [Control of Weapons Act 1990, s 5AA]	240 penalty units or 2 years’ imprisonment [Control of Weapons Act 1990, s 5AA]
Summary Charge	Possess a Schedule 4 Poison [Drugs, Poisons and Controlled Substances Act 1981, s 36B(c)]	10 penalty units [Drugs, Poisons and Controlled Substances Act 1981, s 36B(1)]
Total Effective Sentence:		7 years and 6 months’ imprisonment
Non-Parole Period:		5 years
Pre-sentence Detention Declared:		88 days
6AAA Statement:		N/A
Other orders: Nil. The applicant also received a $500.00 fine with respect to one charge of possession of a drug of dependence relating to Indictment D10952717.

1. The applicant also seeks leave to appeal against his sentence on the ground that each of the sentences imposed, the total effective sentence and the non-parole period are manifestly excessive.

Circumstances of the offending

1. DM, the victim, was 15 years old at the time of the offending, and was living in Melton in a unit run by McKillop Family Services.  He suffers from an intellectual disability.

1. On 30 January 2012 just at around midnight, DM and two friends (JA and BB) were on the streets of Melton South looking to steal small change from cars that had been left unlocked.  During their approach to a silver car in the vicinity of Acacia Crescent and Second Avenue, Melton South, either DM or one of his friends,[1] was interrupted by a man. DM heard the challenge ‘Why are you trying to break into my Mum’s car?’,[2] and ran away.

   [1]See DPP v Elmaghraby [2015] VCC 1914 [3] (‘Reasons’).

   [2]Ibid [4].

1. DM was chased and then captured by the applicant and one other man, following a pursuit in what was described by him as a ‘silver corolla’.  The pursuit involved DM jumping over fences and hiding in backyards.  He was then found by the applicant and one other man, where they threw him to the ground, choked him and threw him in their car and drove away (charge 1 kidnapping). 

1. The applicant then got into the driver’s seat of the car, and made a phone call saying that he had ‘got the bloke, we’re coming back’.  The co-accused was in the back seat with DM.  The co-accused had DM in a headlock and placed a shopping bag over his head.  The applicant drove the car to a residence and the co-accused dragged DM out of the car and around the back of the premises (charge 2 false imprisonment).  The trial judge found, on the balance of probabilities, that the residence was the applicant’s mother’s house at 52 Second Avenue. 

1. The men took DM into a shed at the residence.  The bag remained on his head and the men tied his feet and wrists with cable ties.  The co-offender held DM in a headlock and DM was struck with weapons, including a baseball bat.  DM was struck in the stomach with a sledge-hammer handle, had his throat slit and had a power tool used near his ankle.

1. The applicant then took DM to Melton-Gisborne Road around 12 kilometres from Melton South, and abandoned him, unconscious, on the side of the road.

1. DM was discovered about 5:00 am that morning by a motorist travelling on Melton-Gisborne Road.  He was assessed by a treating doctor as having injuries consistent with an assault (charge 3 intentionally cause serious injury).  These injuries included ‘tram-line bruises’ consistent with being struck with a baseball bat or similar;  red horizontal markings about the ankles and wrists, consistent with DM being bound;  a complex bruise on the lower left lateral back consistent with DM being kicked;  subconjunctival haemorrhages to the right eye, indicative of direct trauma;  lacerations to the right lower lip and left forehead indicating blunt trauma and a gaping injury to the left proximal anterior leg, a probable stab wound.

1. On 10 February 2012, DM went with police and identified 52 Second Avenue, Melton South as being the house where the incident had begun.  The applicant’s family owned the premises at 52 Second Avenue, and although he did not permanently reside there, he often worked on renovations that were being undertaken there.

1. DM compiled a ‘FaceFit’ image of each of the assailants on 12 February 2012.  On 12 October 2012, DM was shown a photo-board that included a photograph of the applicant, but did not identify the applicant.

1. The applicant was interviewed by investigators but denied any knowledge of, or involvement in, any kidnapping, detention or assault upon DM.  

Ground 1

1. The applicant submits that a substantial miscarriage of justice resulted from the failure of the trial judge to give the jury an unreliable evidence direction in relation to DM pursuant to s 32 of the Jury Directions Act 2015 (the ‘JDA’). He submits he should have had the benefit of a comprehensive unreliable evidence direction under s 32, which made reference to DM’s evidence as to the immediate and long term effects of smoking cannabis on his memory[3] and DM’s evidence that he had lost consciousness a number of times during the events of 29/30 January 2012.  Although he accepts that these individual particulars that made DM’s evidence unreliable would have been apparent to the jury, he submitted that it was the combination of these matters that warranted the direction.

   [3]DM had given evidence that he was smoking cannabis on the night of 29/30 January 2012. 

1. Section 32 of the JDA is in these terms:

(1)The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on evidence of a kind that may be unreliable.

(2)In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires) must specify—

(a) the significant matters that may make the evidence unreliable;  or

(b) if the request concerns evidence given by a child, the significant matters (other than solely the age of the child) that may make the evidence of the child unreliable.

Notes

1        Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so.  Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

1. ‘Evidence of a kind that may be unreliable’ is defined by s 31 JDA as including

   (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) of the Evidence Act 2008 applies;  and

   (b) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;  and

   (c) evidence given by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the trial;  and

   (d)      evidence given by a witness who is a prison informer;  and

   (e) oral evidence of questioning by an investigating official (within the meaning of the Evidence Act 2008 ) of an accused where the questioning has not been acknowledged by the accused.

2. During the trial, counsel for the applicant requested an unreliability direction as to the evidence of DM. Counsel identified that DM had been a long-term smoker of cannabis, and that at the time of the offence he was smoking a significant amount of cannabis each day. He said in evidence that that had ‘caused blackouts or blanks in his memory.’ Similarly, trial counsel pointed to DM’s evidence where he had said that he had been ‘in and out of consciousness’ due to injuries sustained, and that he was unable to say whether such injuries had any effect on his memory of the evening. Counsel submitted that the terms ‘ill health (whether physical or mental’) in s 31(1)(b),[4] should be read broadly so as to encompass being affected by substances of abuse, particularly where there was direct evidence from the witness that the drug use affected his memory. 

   [4]See also Evidence Act 2008 s 165(1)(c).

1. The trial judge was not initially inclined to give such a direction.  His Honour said that there did not appear to be any evidence to suggest that the injuries received by DM might have made his evidence unreliable.  He reserved a final decision until closing addresses.  Following closing addresses, the trial judge refused a renewed application to give an unreliable evidence direction, and said:

In my view the matters which have been expressed by [defence counsel] in his final address are matters that juries well and truly understand in their experience of life.  The provisions that relate to unreliable evidence really deal with the sorts of evidence that juries would not have experience of dealing with in their daily lives, like informers and persons of those kinds or in certain circumstances, confessions to policemen that aren’t evidence in an appropriate way.

This not this sort of case and I will not be giving a direction in respect of unreliable evidence …

1. The Crown submits, that the judge rightly concluded that the evidence was not of a kind that made the witness unreliable.  As to the effect of the injuries received which caused DM to lose consciousness, the evidence was not such as to suggest that it affected the reliability of his evidence.  As to the effect of illicit substances on memory, the Crown submits that those effects are well understood by juries and DM had disclosed the extent to which it had affected him. 

Relevant principles

1. Most jurisprudence relating to unreliability directions relates to s 165 Evidence Act 2008 which was the relevant provision in criminal trials until s 165 was amended and confined to civil proceedings. It provided in like terms to ss 31 and 32 of the JDA that it applied to evidence of a kind that may be unreliable, including ‘evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like.’

1. The circumstances in which an obligation to give an unreliability direction would arise under s 165 was considered by this Court in Allen (A pseudonym) v The Queen.[5]The Court held that the fact that a witness may suffer from mental ill health was not decisive of the possibility of unreliability or the need to give a warning.  The Court said:

Section 165(1)(c) is concerned with age, physical or mental ill health or injury, characteristics of a witness which, unlike the other matters in subs (1), will in only limited circumstances affect the unreliability of the witness’s evidence. His Honour was thus correct in stating that the fact that a witness may suffer from mental ill-health was not decisive of the possibility of unreliability or the need to give a warning. He resolved that he was not satisfied, on balance, that the applicant had demonstrated that the complainant’s evidence might be unreliable as a result of that mental illness. Assuming without deciding that the more restrictive approach is correct and that his Honour was obliged to undertake such an assessment, then given the evidence of Dr Patange that the complainant’s memory was unaffected by her various mental health problems, and that there was no evidence to suggest that she was suffering from any delusion at any time material to the case, we consider that it was plainly open to his Honour to make this factual finding.[6]

[5](2013) 39 VR 629.

[6]Ibid 638–9 [35].

1. The Court then went on to consider whether there were good reasons for not giving the warning pursuant to s 165(3) of the Evidence Act 2008 (now set out in s 14(1) JDA).  The Court found no error in the trial judge’s reasoning, stating that the trial judge:

… considered that there was no hidden or lurking danger such as might exist with an accomplice or a prison informer and that the issue of the complainant’s mental ill-health and its potential impact on her reliability was completely exposed in evidence. We conclude that these reasons were ‘good reasons’ within the meaning of s 165(3) of the Act.[7]

[7]Ibid 639 [38].

1. As to DM having gone in and out of consciousness as a result of the beating that he suffered, nothing emerged in closing addresses that called for his Honour to alter his view, which appeared to be accepted by defence counsel at the time of the initial argument, that the evidence did not suggest that the injuries suffered by DM made his evidence of a kind that might be unreliable.  Had the judge concluded that the evidence was of a kind that may be unreliable, he would have been obliged to give the direction sought unless there was good reason not to do so.  It is evident that the judge concluded that any potential unreliability had been sufficiently exposed by the course of the evidence so as to be apparent and able to be understood by the jury.  That constituted ‘good reason’ why the warning was unnecessary.  

1. In Young v The Queen,[8] the evidence disclosed that a witness had a history of drug use and had been affected by drug use at the time of the offences. The Court held that the likely effects of the use of a given drug upon the witness did not fall within the categories of potential unreliability in s 165 so that the need for a warning was governed by whether the jury, relying upon its own knowledge and experience, would be able to evaluate the potential for the evidence to be unreliable. The Court considered that no warning was required under s 165, given that the jury was ‘in a position properly to evaluate the alleged deficiencies in the evidence.’[9]

   [8][2015] VSCA 265 (‘Young’).

   [9]Ibid [71].

1. The trial judge’s ruling that evidence of DM as to his use of cannabis and its effect did not require a warning was consistent with this line of authority.  The evidence relating to any memory loss from his cannabis consumption was that stated by DM.  There was no hidden danger lurking in the evidence to which the jury needed to be alerted.  Had the evidence been ‘of a kind that may be unreliable’, there were ‘good reasons’ for not giving the direction sought.  Any potential unreliability arising from his use of cannabis was fully exposed to the jury through cross-examination and in final address.  As the judge reasoned, the jury were able to draw upon their life experiences to fully understand and assess the argument.  No warning was required.

1. The issue at trial was the identity of the assailants.  The trial judge did give a warning in the form of a modified identification direction, which called attention to relevant factors that might have caused unreliability in DM’s construction of the ‘FaceFit’ image said to be a representation of the applicant.  But DM’s evidence of the various facts and circumstances establishing that he had been kidnapped, tied up and beaten were not in issue.  It was the Crown case that those circumstantial facts the subject of evidence by DM, together with the ‘FaceFit’ and facts testified to by other witnesses, taken together, tended to link the applicant to the offences.  It was not suggested at trial and was conceded on appeal that DM had no way of knowing whether the facts, as DM accounted them to investigating police, had any connection to the applicant.  Hence the Crown submits, with some force, that it is objectively unlikely that the sources of DM’s unreliability that were relied upon, that were said to affect his memory, were material to the issues in the case.  They could not have had any material effect on DM’s capacity to recount facts which, when taken together, could not by coincidence have linked the applicant to the offences.

1. Leave to appeal on ground 1 should be refused.

Ground 2

1. The applicant relies upon a variety of inconsistencies in the evidence of DM and other witnesses and other deficiencies in the Crown’s circumstantial case to contend that the jury verdicts of guilty are unreasonable or cannot be supported having regard to the evidence.

1. It was the Crown case that it was the applicant, who caught DM and his two friends JA and BB in the act of stealing from his mother’s car, who chased him in his mother’s silver car, caught him and took him to a shed where he was beaten and then transported to the place where DM was found.  The sole element of the offences which was in issue was the identity of the offenders.  The defence, however, contested that part of the Crown case where it was suggested that the incident commenced at 52 Second Avenue.

Evidence relating to identification of house and car

1. It was the Crown case that DM and his two friends were together within the intersection of Acacia Crescent and Second Avenue, Melton South, when the incident commenced.  The applicant emerged from 52 Second Avenue when DM or one of the other youths approached the applicant’s mother’s car in the carport of number 52.  DM was chased by the applicant who was driving his mother’s car.

1. The applicant submits that there were a number of inconsistencies in the evidence given by DM, JA and BB.  First, there was conflict as to who it was that approached the car in the carport.  DM says that he was across the road at number 47, a house diagonally opposite 52 when the man came out of 52.  JA gave evidence that he and DM both walked up to the house at 52.  The car in the carport was described by JA as a silver Mercedes Benz.  DM described it as a silver Toyota Corolla.  The applicant’s mother did not own either type of vehicle.  She owned a silver Nissan Tiida.  The applicant also points to the fact that the description of the house given by DM is at odds with the appearance of the house on that day.  The applicant submits that the description of the house was ‘infected’ by the police taking the boys to the vicinity on a later date when they observed that the house was undergoing renovations.  DM described the house as having a concrete fence with metal bars.  Number 52 had no such fence.

1. The Crown sought to establish that relevant house was number 52, owned by the applicant’s mother, that there was a silver car in the carport and that the applicant drove it when chasing DM.    

1. DM described being in the vicinity of Second Avenue and Acacia Crescent when ‘it all started.’[10]  DM said JA went into a concreted house that looked like it was being renovated.  He said there was a silver Toyota Corolla in the driveway of the house.  He said he was across the road in the driveway of number 47 where there was a silver station wagon with a red cross on the side, and two old Hyundai cars. 

   [10]Presumably meaning the kidnapping incident. 

1. JA gave evidence that he saw a ‘silver Mercedes Benz’, like a ‘sportscar’, in the driveway that he and DM approached.  He described the car as sitting under a carport, facing out of the driveway, JA said that he saw a ‘tall, well-built man come out of the house.’  He initially said that he ‘assumed’ that the man came out of the house where the silver car was parked, but later confirmed that the man he saw did come out of the house where the silver car was parked in the driveway.  The person was armed with what appeared to be a piece of wood.  BB, the third boy that was with DM and JA, said that he saw DM go under a carport, and heard a ‘big scream and big yell’. 

1. A neighbour to number 52 made a statement in which she said that the applicant’s family were ‘currently renovating the house’, and that the applicant was the ‘main son doing the renovations’.  The neighbour also gave evidence that the applicant’s mother had a ‘silver car’ which the applicant usually drove.

1. JA and DM were taken separately by police to the area where they said the incident commenced.  Each identified the property at number 52 as being where the incident commenced.  No criticism was made of this significant identification on appeal.

1. There were obvious inconsistencies between the evidence given by the three boys which were fully explored on the hearing of the appeal.  Despite those differences in the evidence, the evidence compelled the conclusion that the house that DM or JA had approached was 52 and that the applicant’s mother’s car was in the carport.  All of the boys agreed that the incident commenced at a house on the intersection of Acacia Crescent and Second Avenue.  The map of the area, tendered at trial shows that the intersection is a curved area at the end of the crescent.  As was conceded on appeal, there were only four or five houses in that area.  Only two of them had a carport abutting the house, one of them being 52.  Only 52 was undergoing renovations at the material time.  The man emerging from the house referred to the car in the carport as his mother’s car.  DM and JA each identified the house at 52.

Identification evidence

1. The applicant points to the fact that in the course of the investigation DM gave the police a number of differing descriptions of the man said to be the applicant.  Although the ‘FaceFit’ image created bears a likeness to the applicant, there were a number of inconsistent features.  Further, the image created does not correspond with a number of the descriptions given at other times by DM.  The applicant raised as an explanation the possibility that DM had seen the applicant in the streets in the area, and that this had somehow infected his ‘FaceFit’ description, although during the trial the possibility of whether the sighting was before or after the incident was not explored. 

1. The descriptions of the offender’s physique, given by DM and JA, were broadly similar to the applicant.  DM had opportunities to observe the applicant while he was hiding from and being chased.  Such features of the ‘FaceFit’ as were different from the applicant’s appearance do not detract in any way from the fact that the ‘FaceFit’ has a startling resemblance to the applicant which led the defence to suggest a possible explanation for how such a resemblance might have come about.

Mobile telephone tower evidence

1. The Crown relied on mobile telephone records which established that the applicant’s mobile telephone was positioned in the general vicinity of the 52 Second Avenue property at or around the time of the commission of the offence.  They showed that he made some 25 phone calls between midnight and 3:20 am on the day of the incident, with a lull in calls between 3:20 am and 5:23 am, over the period during which it was alleged that the crimes took place.  Numerous calls resumed again after 5:23 am. 

1. DM said that the driver of the car made a call using a Samsung Galaxy Smart phone.  When spoken to by police some time later, the applicant was found to be in possession of such a phone.

1. Defence counsel highlighted in his closing address that the fact that the applicant’s mobile phone was located in the general vicinity of the offence did not much assist the Crown’s case, as the phone tower in Melton would capture his telephone signal in the area in which the applicant resided.  The records highlighted that this sort of call activity in the middle of the night was not unusual for the applicant who was regularly on the phone at that time.  Further, the applicant submitted that the telephone evidence was at odds with the evidence of DM that the driver of the car made one telephone call while driving DM to the unknown location but the records show that the applicant made a number of telephone calls during that relevant time.

1. The evidence of the frequency of the phone calls made by the applicant demonstrated that he was awake and active and in the relevant area at the time of the offending and that the amount of usage in the two hours while DM was kidnapped was consistent with the Crown case.  

Lack of DNA evidence and lack of corroborative evidence at the scene

1. DM had given evidence that he was bleeding heavily as a result of the assault, and was still bleeding while being transported in the car.  The applicant submits that there was no forensic evidence from the applicant’s mother’s car or her premises that connected the applicant to DM nor was there any DNA that linked DM to the items seized during the investigation. 

1. The applicant also pointed to the description of the shed where the assault was said to have occurred which was inconsistent with the shed at 52 Second Avenue.  The applicant pointed to the fact that DM described hearing an older female who had an Australian accent speaking to the driver of the car at the location where he was assaulted.  The informant gave evidence that the applicant’s mother did not speak with an Australian accent.

1. Cable ties and a green milk crate were found in the shed of number 52.  In his description of the offending, DM said that items matching their description had been used in restraining and beating him.  They also found black cable ties in the shed similar to those used to handcuff DM.  The cable ties found in the shed were also similar to the cable ties found in the applicant’s bedroom at his own residence.

1. When DM was found by the roadside, his hands were tied behind his back by means of black cable tie.  In August, the police found a black cable tie of the same type in the applicant’s bedroom.  They also found a yellow T-shirt which the Crown contended was similar to that worn by the assailant who chased DM.

1. DM also said that he was beaten with a baseball bat and injured with other weapons such as the handle of a sledge-hammer, a knife and a power-tool.  A baseball bat was found in the shed at 52 Second Avenue.  The medical evidence established that the injuries suffered by DM were consistent with DM having been struck with a baseball bat.

DM’s credibility generally

1. The applicant also submits as did counsel at the trial that the evidence of DM was unworthy of credit.  He points to the fact that DM admitted to having lied to police in the course of the investigation into this offending;  DM admitted to having invented or created details of the offenders and the offending when describing them to police;  DM admitted having lied on oath during the committal hearing of these charges;  DM admitted to having previously made false reports to police.  These deficiencies were highlighted by defence counsel during his closing address.  Defence counsel submitted to the jury that the evidence of DM should ‘only be accepted with great caution and doubt.’

1. The deficiencies in the evidence of DM could have had little bearing upon almost all of the primary circumstantial facts upon which the Crown relied.  Those facts which came from DM’s account to police, were facts which he could not previously have known and tended to implicate the applicant. 

1. Where the grounds of appeal allege that the jury verdict was ‘unsafe and unsatisfactory’, in order for such grounds to succeed:

… the Court of Criminal appeal [i]s required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the offences with which he was charged.[11]

[11]SKA v The Queen (2011) 243 CLR 400, 408 [20] (French CJ, Gummow and Kiefel JJ).

1. The evidence of DM in conjunction with the circumstantial evidence from other sources, strongly linked the applicant with the crimes.  It was, in our view, well open to the jury to be satisfied of the applicant’s guilt.

1. We would refuse leave to appeal on ground 2.

Sentence appeal

1. The applicant submits that the individual sentences, the total effective sentence and the non-parole period are each manifestly excessive.  He submits that if proper allowance is made for the mitigating factors of no prior convictions;  the lengthy delays in the prosecution;  the onerous conditions experienced whilst on remand;  and the applicant’s good prospects for rehabilitation, the sentences imposed do not accord with current sentencing practice and were beyond the permissible range of sentences open to the sentencing judge.  As the sentencing judge referred to each of these matters, the applicant contends that they could not have been given sufficient weight.

1. The applicant in his written case and on the plea referred to the following decisions as demonstrating that the impugned sentences were manifestly excessive. The first two cases of Hills v The Queen[12] and Cini v The Queen[13] have catchwords that record that those cases contained ‘no point of principle.’  They should not have been cited without leave of this Court.  As the applicant places particular reliance upon them we have referred to them.  In Hills, following a trial, the offender was sentenced to 6 years’ imprisonment for kidnapping, 2 years and 6 months for aggravated burglary, 3 years for intentionally causing serious injury (with 3 months’ cumulation), 6 months for making a threat to kill, and 4 years for reckless conduct endangering life (with 18 months’ cumulation), making a total effective sentence of 8 years’ imprisonment, with a non-parole period of 5 years.  The offender in Hills had 20 prior convictions, though none for violence.  In refusing the application for leave to renew an application for leave to appeal against the sentences, Warren CJ, Nettle JA and Beach AJA said the serious offences were of a violent and degrading nature which demanded condign punishment.

   [12][2011] VSCA 364 (‘Hills’).

   [13][2013] VSCA 115 (‘Cini’).

1. In Cini v The Queen,[14] following a plea of guilty, the offender was sentenced to 3 years’ imprisonment for kidnapping and 2 years’ imprisonment for recklessly causing serious injury (with 1 year cumulation), making a total effective sentence of 4 years’ imprisonment, with a non-parole period of 2 years and 6 months imposed.  On appeal the Court considered there may have been a specific error made by the sentencing judge but found the sentences to be appropriate.  

   [14]Ibid.

1. In Hanna v The Queen,[15] following a trial, the applicant was sentenced to 7 years’ imprisonment for kidnapping, 3 years for false imprisonment (with 1 year cumulation), and 4 years for intentionally causing injury (18 months cumulation), making a total effective sentence of 9 years’, 6 months’ imprisonment; and a non-parole period of 7 years was imposed.  The offender in Hanna had prior convictions for violence, was on bail at the time of the offending, and had prospects of rehabilitation that were to be viewed as ‘guarded’.[16]  Priest JA, with whom Maxwell P and Neave JA agreed, made the following observations about current sentencing practices for offending in the nature of the offending committed in the present case:

Total effective sentences of eight years or nine years’ imprisonment are not unusual for ‘payback’ offences.  Indeed, sentences of imprisonment exceeding seven years to a shade under 10 years, are not uncommon generally for kidnapping and associated offending.  The individual sentence of seven years’ imprisonment imposed for the charge of kidnapping is well within the range open in the proper exercise of discretion … I would also regard the individual sentence of three years’ imprisonment for false imprisonment as within range;  so too the sentence of four years’ imprisonment for intentionally causing injury.[17]

[15][2014] VSCA 187 (‘Hanna’).

[16]Ibid [73].

[17]Ibid [88]–[89].

1. The applicant submits that there were features of those cases that were not present in his case.  Hanna and Hills both had previous convictions and had served terms of imprisonment whereas he was a first time offender.  The findings in those cases as to the prospects of rehabilitation were more guarded than those of the applicant.  The applicant thus submits that the sentences imposed in those cases demonstrate that insufficient weight was given to matters personal to him and that his sentence is manifestly excessive.

1. We agree with the Crown contention that these decisions do not demonstrate that the sentences imposed were manifestly excessive.  Current sentencing practice as informed by comparable cases provides a ‘yardstick’ against which to measure the impugned sentences.  As Redlich JA said with the agreement of Tate and Whelan JJA in Nam Son Nguyen v The Queen:

Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators.  Manifest inadequacy or excess is usually demonstrated when an appropriate relativity is absent between the nature of the offending and matters personal to the offender, and sentences imposed in the most closely comparable cases.[18]

[18][2016] VSCA 198 [72].

1. Those cases and others such as Young v The Queen,[19] do not suggest that there was an inappropriate relativity between the sentences imposed on the applicant and current sentencing practice in comparable cases.  Furthermore, while the cases cited possessed a number of similar features, the assistance to be derived from them was limited.  The objective gravity of the offending in each case and the mitigating features were different.  In Hanna, the offender had previous convictions, which justified the imposition of a 7 year sentence for kidnapping.  Hills, who had previous convictions, received a term of imprisonment of 6 years for kidnapping.  The sentence in Cini is not instructive, as the offending was of a lesser scale.

   [19][2015] VSCA 265.

1. As to the sentencing practice for intentionally cause serious injury, it was recently discussed by this Court in Chol v The Queen.[20]  The Court endorsed the list of factors identified by Maxwell P in Nash v The Queen that were ‘routinely taken into account by sentencing judges in assessing the gravity of particular instances of ICSI.’[21]The Court found those factors, while being ‘descriptive, rather than prescriptive’,[22] provide a useful framework for assessing the objective gravity in a case of intentionally cause serious injury.  The factors identified by Maxwell P in Nash being the offender’s proven intent;  the seriousness of the injury actually caused;  how vulnerable the victim was;  whether a weapon was used;  how long the attack on the victim lasted;  and whether the offender acted alone or in company,[23] all served to emphasise the objective gravity of the present offending.

   [20][2016] VSCA 252 (‘Chol’).

   [21](2013) 40 VR 134, 137 [10] (‘Nash’).

   [22]Chol [2016] VSCA 252 [6].

   [23]Nash (2013) 40 VR 134, 137 [10] (citations omitted).

1. The Court in Chol reviewed a number of sentences imposed in cases involving intentionally cause serious injury, including Jackson v The Queen,[24] Cedic v The Queen,[25] and Fletcher v The Queen.[26]  In Chol the Court considered that the decisions of Nash and Cedic could be seen as relative comparators, and refused leave to appeal against sentence of four years and nine months’ imprisonment following a guilty plea.  The sentence of five years’ imprisonment for intentionally cause serious injury was plainly within the range open to the judge. 

   [24][2013] VSCA 14 (‘Jackson’). 

   [25][2011] VSCA 258 (‘Cedic’).

   [26][2011] VSCA 4 (‘Fletcher’).

1. The sentencing judge described the objective gravity of the offending here as being high.[27]  It was calculated, cruel and sadistic, involving a victim who was only 15 years old.  The injuries sustained by DM were serious and were inflicted in a frightening manner with the victim bound and his head covered.  The degree of criminality was further aggravated by the dumping of the victim on the side of a semi-rural road.  The ordeal was clearly physically and mentally enduring.  The terror and beating suffered by DM left him scarred both physically and mentally.[28]  The medical evidence and photos taken of DM shortly after the attack amplified the nature of those injuries and their likely consequences.  The applicant pleaded not guilty, and could not rely on any suggestion of remorse.[29]  The sentencing judge correctly identified that the principles of public denunciation, just punishment and general deterrence required prominence in the sentencing exercise.[30]

   [27]Reasons [3]–[5].

   [28]Ibid [10].

   [29]Ibid [29].

   [30]Ibid.

1. For these reasons we do not think that any of the individual sentences or the total effective sentences, fell outside the available range.  

1. The applicant submitted in oral argument that even if the Court were not persuaded that the total effective sentence were manifestly excessive, we should consider that the non-parole period was manifestly excessive. 

1. In Kumova v The Queen,[31] Redlich and Osborn JJA held that the concept of ‘usual’ non-parole periods was an element of sentencing practice which provide a general guide to the sentencing judge, as promoting consistency in sentencing and in the application of sentencing principles.  However, their Honours noted that the ‘usual’ range of non-parole periods could not be used as a ‘starting point’ which would be adjusted to allow for special circumstances of the offence.[32]  Their Honours noted that the ‘usual’ non-parole period in the sense of a range between 60 to 75 per cent of the head sentence was no more than an empirical observation.[33] 

   [31](2012) 37 VR 538 (Kumova).

   [32]Ibid 546 [30].

   [33]Ibid 542 [12]–[13].

1. There is nothing unusual about a non-parole period of 5 years on a head sentence of 7 years and 6 months’ imprisonment.  It represents approximately 66 per cent of the head sentence.  There were no mitigating circumstances that required a lower non-parole period.

1. For those reasons, we would refuse leave to appeal against sentence.

- - -