Gar v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0017

JOK GAR	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P and BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April, 14 May 2024
DATE OF JUDGMENT:	17 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 96
JUDGMENT APPEALED FROM:	[2023] VCC 2400 (Judge Hogan)

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CRIMINAL LAW – Appeal – Sentence – Application for extension of time – Robbery – Causing injury recklessly – Where victim unknown to applicant – Where applicant had history of violent behaviour – Where sentencing judge assessed prospects of rehabilitation as ‘very poor’ – Where co-offender sentenced to time served – Where co-offender severely intellectually disabled – Aggregate sentence of 2 years – Non-parole period 16 months – Parity – Whether justified sense of grievance due to disparity in sentences – Whether sentence manifestly excessive – New evidence of cancellation of applicant’s visa – Whether any different sentence should now be imposed – No different sentence should now be imposed – Application for extension of time refused.

Crimes Act 1958, ss 18, 75.

Wong v The Queen (2001) 207 CLR 584; Lowndes v The Queen (1999) 195 CLR 665, applied.

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Counsel
Applicant:		Mr CK Wareham with Ms M McDonald (16 April 2024) Mr CK Wareham (14 May 2024)
Respondent:		Mr G Buchhorn
Solicitors
Applicant:	Geelong Lawyers, Barristers and Solicitors
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
BEACH JA:

Introduction

The applicant was charged with one count of robbery and one count of causing injury recklessly (indictment N12153257.B). He pleaded guilty to both charges. On 18 December 2023, he was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence
1	Robbery (contrary to s 75 of the Crimes Act 1958)	15 years	Aggregate sentence of 2 years
2	Causing injury recklessly (contrary to s 18 of the Crimes Act 1958)	5 years
Total Effective Sentence:		2 years
Non-Parole Period:		16 months
Pre-sentence Detention Declared:		290 days
Section 6AAA Statement:		Total Effective Sentence 3 years Non Parole-Period 2 years
Other Relevant Orders: 1. Forfeiture order 2. Disposal order

One day later, on 19 December 2023, the applicant’s co-offender, Tyler De Silva, was sentenced by a different judge as follows:[1]
[1]DPP v De Silva [2023] VCC 2406, [165]–[167] (‘De Silva’).

Charge on Indictment	Offence	Max Penalty	Sentence
1	Robbery	15 years	Aggregate sentence of 6 months
2	Causing injury recklessly	5 years
Related Summary Offences
7	Commit indictable offence whilst on bail (contrary to s 30B of the Bail Act 1977)	30 penalty units or 3 months	Convicted and discharged
Total Effective Sentence:		6 months
Non-Parole Period:		N/A
Pre-sentence Detention Declared:		208 days
Other Relevant Orders: 1. The pre-sentence detention be reckoned as having already been served.

The applicant seeks an extension of time within which to file a notice of application for leave to appeal against sentence.
In his original application, heard by us on 16 April 2024, the applicant raised the following proposed grounds of appeal:
1. In all the circumstances:
(a)the sentence imposed on the applicant for the offences the subject of indictment N12153257.B; and
(b)the sentence imposed on co-offender Tyler DE SILVA in proceeding CR-23-00484
gives rise to a justifiable sense of grievance.
2.In all the circumstances, and when regard is had to:
(a)the applicant’s youth and limited criminal history;
(b)the applicant’s plea of guilty, its timing, its utility and remorse;
(c)the applicant’s personal circumstances, including his background of instability and racial bullying; and
(d)the objective gravity of the offending
the total effective sentence and non-parole period imposed is manifestly excessive.
We reserved our decision on the application that was based on these proposed grounds. However, just before our judgment was to be delivered, the solicitors for the applicant advised the Court that the applicant had received correspondence from the Department of Home Affairs notifying him that a decision had been made to cancel his visa.
The Court has since been provided with a document dated 1 May 2024 addressed to the applicant headed ‘Notice of visa cancellation under section 501(3A) of the Migration Act 1958’ advising of the cancellation of his Class XB Subclass 200 Refugee visa granted on 22 June 2009 and inviting him to make representations about revoking the cancellation decision. The notice records that the Minister was required to cancel the visa as the applicant did not pass ‘the character test’ based on the orders of the County Court of Victoria and the judge’s sentencing remarks in the proceeding below.
The applicant submits that the visa cancellation — and the risk of deportation at the end of his sentence — is ‘fresh’ evidence and now seeks to raise the following further ground of appeal:
Proposed Ground 3
By reason of fresh evidence arising since the plea and sentence, namely the discovery that the applicant:
(a) is not an Australian citizen; and
(b) had received notification that his Refugee Visa has been cancelled
a different sentence should be imposed so as to avoid a miscarriage of justice.
In her affidavit sworn on 13 May 2024, the applicant’s solicitor, Stephanie Mawby, deposes that since October 2022, she has had numerous telephone and video calls with the applicant. She understood from instructions obtained from him that, while he was of Sudanese descent and he had been born in Egypt, he was an Australian citizen. Ms Mawby deposed that in preparation for the proceeding below, counsel who appeared on the plea asked her whether the applicant was an Australian citizen. As it was her understanding from the applicant’s earlier instructions that he was an Australian citizen, she communicated this to counsel. Ms Mawby now knows that this was incorrect. She also understands from discussions with counsel that counsel had separately asked the applicant whether he was an Australian citizen and was told that he was. As a consequence, the prospect of the applicant’s deportation and his potential loss of opportunity to remain in Australia was not raised at the plea hearing.
Ms Mawby further deposes that on 7 May 2024, she conferred with the applicant about his citizenship and immigration status. During this conference, it was apparent to her that the applicant did not understand or appreciate what being an Australian citizen meant and was surprised at being told his visa was being cancelled.
Ms Mawby deposes that the applicant has no family or other supports in Egypt and does not speak Arabic. His entire family is in Australia. As a result, it is submitted, the cancellation of his visa will make his time in prison more burdensome than it otherwise would have been.
The respondent accepts that the visa cancellation constitutes new evidence that was not before the sentencing judge. However, the respondent submits that no different sentence should be imposed. The offences for which the applicant was sentenced were serious examples of the offending and the applicant has poor prospects of rehabilitation.
For the reasons that follow, we would not disturb the sentence imposed by the sentencing judge on the basis of the existence of the new evidence. Furthermore, the parity and manifest excess grounds have no prospects of success.
The application to extend time must be refused.

Circumstances of the offending

On 6 September 2022, the victim was drinking with friends at a bar near the intersection of Russell and Lonsdale Streets in the Melbourne CBD. He left the bar at approximately 1 am on foot. He took a wrong turn and ended up at the corner of Spring Street and Victoria Parade.
The victim noticed the applicant and De Silva walking towards him. De Silva approached him and demanded that he hand over his phone and wallet. The victim refused. De Silva struck the victim, who fell to the ground. Both the applicant and De Silva then attacked the victim. The victim lost consciousness. He suffered abrasions to the head and swelling to the head and face (charge 2 — causing injury recklessly).
During the attack, the victim was slashed with a knife across his right cheek, causing his right ear lobe to be partly severed. However, the prosecution did not allege that the applicant used the knife, or that he was complicit in its use or knew that it was present.
The applicant and De Silva took the victim’s phone and left him on the footpath, still unconscious (charge 1 — robbery). CCTV footage showed them walking away from the scene with their masks up. They disappeared into a laneway and re-emerged minutes later, having apparently swapped clothes. At approximately 4:30 am, police located the applicant and De Silva in the bathrooms at Southern Cross police station. De Silva was detained but the applicant was released. He was arrested on 4 October 2022.
The applicant pleaded guilty to the charges following a contested committal and the withdrawal of a charge of armed robbery.

The applicant’s personal circumstances

At the plea hearing, it was submitted that the applicant had had a disrupted upbringing, but no evidence to this effect was led or tendered on the applicant’s behalf. However, counsel for the applicant informed the judge that the applicant was being held in solitary confinement. As a result, the judge adjourned the plea hearing in order to obtain from Forensicare a psychological assessment of the applicant, and a report from the Department of Justice and Community Safety (‘DJCS’) concerning any behavioural, mental health or other management issues which may have caused the applicant to be placed in solitary confinement.[2]

Criminal history

[2]DPP v Gar [2023] VCC 2400, [12] (‘Reasons’).

The applicant was 19 years old at the time of the offending.[3] He had previously appeared at the Shepparton Children’s Court on 11 January 2021 on charges of possessing cannabis and entering a private place without authorisation. He was released without conviction upon entering into an accountable undertaking for a period of 12 months, with conditions to be of good behaviour and to remain engaged with education.[4]
[3]Reasons, [8].
[4]Reasons, [9].
However, prior to the offending that is the subject of this appeal, the applicant had committed a number of offences for which he had not been convicted or sentenced as at the date of the present offending.
On 23 January 2023, the applicant pleaded guilty to one charge of aggravated assault and one charge of threatening to inflict serious injury.
That offending had occurred on 14 April 2022 at his mother’s house. The victims were the applicant’s sisters.[5] The applicant was angry with his elder sister for being in the bathroom. The applicant’s younger sister defended the elder sister. The applicant pushed the younger sister onto her bed, held her down forcefully and punched her once in the face. The elder sister came into the room to defend the younger sister and the matter seemed to be resolved. Moments later, however, the applicant returned with a kitchen knife and threatened to stab the sisters. Police arrested the applicant. The applicant told police his actions were reasonable, and that he had permission from himself to threaten his sisters with the knife. As a result of these events, the applicant was prohibited from living at his mother’s home by a Family Violence Intervention order.
[5]Reasons, [11].
On 24 April 2023, the applicant was sentenced in the Melbourne Magistrates’ Court to 150 days’ imprisonment reckoned as time served for recklessly causing injury and affray.[6]
[6]Reasons, [10].
That offending took place at 3:05 am on 1 January 2022. The first victim was walking across the road at the southern end of Elizabeth Street towards Flinders Street. The applicant approached the first victim from behind and punched him several times without provocation. He then became involved in a physical altercation with two unknown men at the corner of Flinders and Elizabeth Streets and assaulted one of them. The first victim suffered a swollen and bruised left eye with a small laceration to the face. A CT scan showed that he had multiple left hemi-facial fractures involving the medial wall and floor of his left orbit, left nasal bone, right nasal bone, and medial wall of the left maxilla.[7] The following exchanges took place in the police interview:
(a)When shown photographs of the victim and asked if he had anything to say, the applicant said:
Oh mate, that fucking bitch, that’s it. Fucking bleeding like that, I got jumped by 6, 10 people, I’m not bleeding, fuck. You got two hits, two fucking hits [laughter]. Right that’s dead.
(b)When asked if he was willing to say what had happened, the applicant said:
I got jumped and I went after the, whoever the fuck tried to jump me, and some cunt was there. Obviously I was, obviously I was mad so and I was kind of off my lick and stuff. I don’t know, he walked pass me [sic], and it was like wham I got jumped. Then I just got up you know, and I just started swinging. I swung two punches at him and then like he fucking he ran off. He ran off like a pussie [sic].
(c)When asked his reasons for hitting the victim, the applicant said:
Why the fuck would I have a reason if he walked pass me [sic] and he looked like one of the boys that jumped me. There is no reason, I’m just going to start swinging, what the fuck.
(d)When asked if he believed his actions were reckless, the applicant said:
Yeh, they were reckless, I don’t give a fuck.
[7]Reasons, [13].
The applicant was on bail for this offending at the time of the present offending.[8]

Prison incidents

[8]Reasons, [10].

The DJCS report revealed the applicant to have been involved in the following incidents while in custody:
(a)On 19 November 2022, the applicant was verbally abusive to his unit supervisor at Ravenhall prison and separated from other prisoners. The Sentence Management Panel cleared him to return to mainstream, but noted that he would be reclassified to a maximum-security location if separated again.
(b)On 19 December 2022 and 22 December 2022, the applicant verbally abused staff and spat on the floor. The Sentence Management Panel determined that he would be reclassified to the Metropolitan Remand Centre as a maximum-security prisoner.
(c)On 3 February 2023, a prisoner contacted staff in a heightened state. CCTV footage revealed that the applicant had poured urine and milk underneath the prisoner’s cell door. The applicant was placed on an intermediate regime.[9]
(d)On 9 February 2023, staff noticed that the applicant had facial injuries consistent with an assault. The applicant stated that the injury was a result of him falling over in his cell. He refused to provide further information or confirm he had ongoing placement concerns. He was reclassified to Port Phillip Prison.
(e)On 30 May 2023, the applicant ‘toppled’ another prisoner and punched him. The Sentence Management Panel classified him to an intermediate regime. He was cleared back to mainstream on 28 July 2023.
(f)On 14 September 2023, the applicant stomped on another prisoner, causing injuries to the other prisoner’s left elbow, a skin tear, forehead swelling and a forehead graze. The Sentence Management Panel determined to classify him to an intermediate regime.
[9]Intermediate regimes provide suitable environments to manage the security, safety and placement needs of prisoners who require more intensive supervision than is provided in mainstream or protection units, but do not require the level of restriction and supervision provided by a high security or management unit placement.
The DJCS report also noted that while in prison the applicant had many opportunities to ‘run out’ — to join other prisoners in the exercise yard — but frequently refused to do so.

Forensicare report

The Forensicare report was prepared by Dr Amanda Nielsen, Senior Clinical Neuropsychologist and Forensic Psychologist at Forensicare, following her assessment of the applicant.
During the assessment, the applicant provided the following personal history to Dr Nielsen:
(a)He was born in Egypt to Sudanese parents. His parents separated when he was approximately two or three years old.
(b)If he misbehaved at home, he would be beaten. This occurred almost daily. This violence at the hands of his mother ended when he was 15 and started to retaliate by pushing her away.
(c)From around the age of four, he began fighting with other children. He was subject to racial slurs. He earned the reputation of having ‘anger issues’.
(d)He arrived in Australia at the age of six. He initially stayed in Sydney for several months with his father. He then moved to Shepparton to live with his mother and other siblings. He was bullied (including racially) and victimised others on occasion. He described himself as a violent kid. He was caught fighting at the start of Year 10 and given an ultimatum by his school concerning both his grades and his behaviour. By the end of the year, he had failed on both counts and was asked to leave. He transferred to a new school for Year 11 but was not interested and had his learning disrupted by COVID-19 related lockdowns. He soon ‘quit’.
(e)He unsuccessfully tried to find work from around the age of 16. He felt helpless and hopeless about his employment prospects. He said his future plans were ‘all down the drain’.
(f)After he left his mother’s house, he earned some money by selling drugs. He was not in contact with any family members.
As to the applicant’s description of his psychiatric history, Dr Nielsen recorded the following:
(a)He was diagnosed with ADHD while in prison. He had noticed symptoms of ADHD since childhood, but it was never diagnosed.
(b)He had a history of depression and anxiety which had never been formally diagnosed. He regarded the treatment of the symptoms of depression and anxiety through medication as being counterproductive. He had started on antidepressants and anti-anxiety medication at the start of his incarceration but felt ‘numbed’ instead of experiencing improved mental health. After four to five months, he refused to continue.
(c)He had a history of psychotic symptoms. He described visual and auditory hallucinations. However, Dr Nielsen noted that there was no evidence that this came to the attention of others and he did not see a doctor.
In relation to his history of violence, the applicant told Dr Nielsen that he can lose control of his intentions when engaging in violence. He stated he sometimes fantasises about enacting violence on others, especially as retribution for a particular issue. He told Dr Nielsen the following in respect of the present offending and other incidents:
(a)In relation to the present offending, he felt sorry for the victim afterwards.
(b)The 1 January 2022 offending occurred after a group of men ‘jumped’ him.
(c)The 14 April 2022 offending was ‘a normal situation’. His use of the knife helped his sisters understand how he felt. His sisters knew that if they pushed him and he used a knife, it was not his fault. They knew how he was — that he had ‘anger issues’.
(d)When he assaulted a prisoner on 14 September 2023, he ‘just wigged out’.
(e)The other prison assaults occurred for ‘politics, stupid-arse reasons’.
Dr Nielsen opined the applicant posed a high risk of engaging in future violence. The most likely risk scenario was that the applicant would continue to engage in largely unprovoked physical violence against people unknown or little known to him. He might also be violent towards family members in the context of disputes should he return to the family home. Dr Nielsen considered that incarceration did not significantly reduce such behaviour, as evidenced by the at least two assaults that had occurred while he was in custody.

Dr Nielsen said that there was some evidence that the applicant interprets the ambiguous behaviour of others as hostile, and assumes others have negative intentions towards him and intend to harm him. When this occurs, and in the context of ‘his underlying violence-supportive beliefs and attitudes’, he responds very quickly with proactive aggression. Dr Nielsen noted research demonstrating that behaviours frequently practised or rehearsed through fantasy can become ‘scripted’ or ‘automated’ so that the person does not consciously think about carrying out the behaviour when faced with a triggering situation. Activation of an aggressive script can lead to very rapid aggressive behaviour which may be disproportionate to the actual threat. The behaviour may appear entirely impulsive due to the rapid automated cognitive process that underpins it.
Dr Nielsen also observed that the applicant’s broader anti-social attitudes mean that criminal sanctions do not deter him from engaging in violence. His sense of aimlessness and lack of hope for the future also (adversely) affect his desire to make prosocial choices, as he has no prosocial goals. The other key factor perpetuating his use of violence is a combination of emotional dysregulation in the context of largely untreated mental health difficulties (depression and anxiety), and poorly controlled psychotic symptoms (potentially due to an incomplete formulation of his psychiatric presentation).

Reasons for sentence — the applicant

The judge gave detailed and thoughtful reasons for sentence.
The judge described the applicant’s offending as ‘seriously brutal, cowardly and unprovoked’[10] and observed that the applicant must have seen the victim bleeding when he went to ground. The applicant and De Silva attacked the victim as he lay defenceless on the ground and lost consciousness. They then went through his pockets and left him, injured, without any assistance. They stole his phone with the consequence that, even when he regained consciousness, he had no means of telephoning for help.[11]
[10]Reasons, [38].
[11]Reasons, [38].
The judge assessed the applicant’s moral culpability as ‘high’.[12] She said that, in sentencing him, it was necessary for the court to ‘denounce [the applicant’s] appalling conduct and place emphasis upon general deterrence, so others will know that if they behave in such a thuggish, terrible manner they will be appropriately punished’.[13]
[12]Reasons, [38].
[13]Reasons, [38].
The judge characterised the offending as a serious example of both robbery and recklessly causing injury.[14] According to her Honour, the victim was outnumbered by two much younger men and therefore vulnerable. Both offenders ‘laid into him, when he had already been slashed across the face and gone to the ground’.[15] She stated the applicant clearly posed an ‘ongoing high risk of violence to members of the community’.[16]
[14]Reasons, [51].
[15]Reasons, [51].
[16]Reasons, [51].
The judge recognised that, ‘[g]enerally speaking in the case of a youthful offender, rehabilitation should be at the forefront of sentencing’.[17] Her Honour made it plain that, were it not for the fact that the applicant was only 19 years old at the time of the offending, she would have imposed a considerably longer sentence.[18] However, having regard to the applicant’s high risk of violent offending and the need to protect the community, in this case considerations of youth and the usual primary emphasis on rehabilitation ‘must be somewhat displaced’.[19]
[17]Reasons, [39].
[18]Reasons, [52].
[19]Reasons, [52].
Her Honour assessed the applicant’s prospects of rehabilitation as ‘very poor’.[20] In doing so, her Honour had regard to:
(a)the absence of relationships with his family;
(b)the lack of any history of engagement with mental health or other rehabilitative treatment in the community; and
(c)his attitude of entrenched violence and impulsiveness.[21]
[20]Reasons, [43].
[21]Reasons, [43].
When setting out the explanations he gave to Dr Nielsen for his history of violence, the judge said the applicant displayed ‘a remarkable lack of insight and accountability for … [his] volatile and irrational mindset’.[22]
[22]Reasons, [31].
The judge stated that it was necessary for her to impose a sentence which was ‘not only an appropriate punishment’ for the applicant’s offending but which was not crushing, and attempted to ensure the applicant would engage in some rehabilitative programs which might create some hope for his future.[23]
[23]Reasons, [43].
The judge took into account the applicant’s plea of guilty as attracting an additional utilitarian discount, as trial lists in the County Court were still congested at the time as a result of COVID-19 restrictions. The judge noted that the applicant had told Dr Nielsen he felt sorry for his victim, but said it would be ‘unrealistic to regard it as an expression of true remorse’.[24] However, she considered that the applicant was nonetheless ‘entitled to a tangible discount on the sentence which, otherwise, would have been imposed’ had the matter gone to trial.[25]
[24]Reasons, [45].
[25]Reasons, [45].
The judge observed that the applicant did not submit that his history of family instability and racial abuse enlivened the principles set out in Bugmy v The Queen.[26] Nor did counsel submit that the content of Dr Nielsen’s report enliven principles 1 to 4 of R v Verdins.[27] However, the judge took these matters into account in a general way, as mitigatory personal circumstances.[28] Her Honour also took into account the fact that mental health issues may make imprisonment more burdensome, and therefore considered principle 5 of Verdins to be enlivened in light of the applicant’s history of anxiety and depression.[29]
[26](2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
[27](2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
[28]Reasons, [47].
[29]Reasons, [48].
The judge had regard to the applicant’s onerous time in custody. She observed that it appeared to have been a result of his own aggressive and disrespectful behaviour but nonetheless took it into account as a matter of fairness, given the applicant’s youth, apparent immaturity and lack of insight into his own dysfunctional psychological state.[30]
[30]Reasons, [49].
The judge took into account, as a matter of totality, the 150 days’ imprisonment the applicant had already served in relation to another matter.[31]
[31]Reasons, [50]. See above [24].
The judge concluded that the only appropriate sentence was a term of imprisonment comprising a head sentence with a non-parole period.[32] The reports by Dr Nielsen and DJCS gave her Honour no confidence that the applicant would abide by the terms and conditions of a community correction order. Her Honour stated that it would be an abdication of her responsibilities to immediately release the applicant into the community when he had longstanding patterns of violent behaviour that had not been addressed, particularly where the applicant lacked insight into his psychological make-up and had, at best, minimal community support.[33]
[32]Reasons, [51].
[33]Reasons, [42].

Reasons for sentence — De Silva

The applicant’s co-offender, De Silva, was sentenced the day after the applicant by a different judge, Judge Gwynn. He was sentenced for the robbery and causing injury recklessly to the victim, as well as for an unrelated armed robbery.[34]
[34]De Silva [2023] VCC 2406.
In the unrelated incident, De Silva had entered a restaurant, produced a black-handled knife and demanded money. He then took the register, placing the knife on the counter.[35] Staff restrained and then released De Silva, who ran away. De Silva later returned to ask staff for his bicycle, which he had left behind, but ran away again without the bicycle when staff informed him police had been called.[36]
[35]Ibid [28]–[31].
[36]Ibid [31]–[35].
In sentencing De Silva, Judge Gwynn identified the following circumstances as relevant to the sentence that would be imposed:
(a)De Silva was 20 years old at the time of sentencing.[37]
(b)At around the age of four, De Silva was diagnosed with a moderate intellectual disability and Tubular Sclerosis Complex (‘TSC’). TSC is a ‘complex multisystem disorder that can be associated with neuropsychiatric disorders which include behavioural, psychiatric, intellectual, neuropsychological, psychological issues and sleep disorder’.[38]
(c)A neurologist confirmed that De Silva also had early childhood epilepsy.[39]
(d)De Silva was exposed to family violence (predominantly perpetrated by his father) from a young age. There were additional concerns about him being exposed to criminal activities and drug abuse by family members. Consequently, De Silva bounced between the care of his mother and out-of-home care.[40]
(e)In 2017, a ‘Protection Application’ was made in relation to De Silva. Reports indicated concerns about non-attendance at school, and dirty and unhygienic living conditions. De Silva was said to have been scapegoated by his mother, who struggled with severe neglect issues and depression, and with De Silva’s particular difficulties.[41]
(f)De Silva’s education was seriously disrupted. He did not learn to read or write.[42]
(g)De Silva’s employment history was limited. He had held only low-skilled jobs. His main source of income was the Disability Support Pension and he was supported by a National Disability Insurance Scheme (‘NDIS’) package. His finances were managed through State Trustees.[43]
[37]Ibid [59].
[38]Ibid [61]–[62].
[39]Ibid [62].
[40]Ibid [63].
[41]Ibid [65].
[42]Ibid [68]–[69].
[43]Ibid [70].
At the time of sentencing, De Silva already had an extensive criminal history. He had been sentenced on at least nine prior occasions, at least five of which were by adult courts. Judge Gwynn characterised much of this offending as ‘relatively low-level’.[44] It included armed robbery, theft, trafficking cannabis, criminal damage and trespass.[45]
[44]Ibid [93].
[45]Ibid [72]–[93].
Judge Gwynn noted that De Silva had had difficulty obeying court orders, but that some explanation for that had been given in the evidence before her Honour.[46]
[46]Ibid [94].
In sentencing De Silva, Judge Gwynn had regard to reports by Dr David Trainor, a consultant psychiatrist, and Dr Harriet Downing, a clinical neuropsychologist.
Dr Trainor explained that De Silva’s diagnosis of TSC involves noncancerous tumour growth in the brain and other organs. It is a degenerative condition. This commonly results in neuropsychiatric sequelae which include attention deficit hyperactive disorder (‘ADHD’), autism spectrum disorder (‘ASD’), mood disorders, intellectual impairment and behavioural difficulties. In De Silva’s case, it had resulted in behavioural difficulties and functional impairment. This had been exacerbated by what Dr Trainor described as ‘significant developmental adversity’, which can ‘predispose a person to later life difficulty with emotional dysregulation, impulsivity, antisocial conduct, interpersonal problems, and a reduced ability to empathise with others’.[47]
[47]Ibid [98].
Dr Trainor confirmed that De Silva had also been diagnosed with ASD, severe intellectual disability and ADHD. De Silva has a longstanding problem with impulsivity, emotional dysregulation, aggression, hyperactivity and self-harm. These had their foundation in De Silva’s background, intellectual disability and the way TSC presented in De Silva.[48] Dr Trainor described De Silva’s conditions as severe and interrelated, causing significant functional impairment.[49]
[48]Ibid [100].
[49]Ibid [102].
Dr Trainor expressed concern about De Silva’s ability to cope with imprisonment in comparison to a prisoner without his conditions. De Silva is vulnerable to bullying and less able to cope with the demands of a prison environment. He also requires high-level support which is difficult to access in custody.[50]
[50]Ibid [106].
Dr Downing assessed De Silva’s IQ as 48, in the ‘extremely low’ range. She opined that
due to his tuberous sclerosis and associated intellectual disability, and behavioural and emotional challenges (including mental health status) Mr De Silva is clearly unsuitable for mainstream prison and would likely experience prison as more onerous than those without his condition(s).[51]
[51]Ibid [111].
Dr Downing noted that De Silva was vulnerable to institutionalisation.[52]
[52]Ibid.
Judge Gwynn found that the principles enunciated in Bugmy, Verdins and Muldrock v The Queen[53] all applied to reduce De Silva’s moral culpability.[54] De Silva’s background of social deprivation was a basis for reducing his moral culpability along with the range of serious conditions from which he suffered. De Silva’s serious conditions also affected the weight to be attached to general and specific deterrence.[55] He was a poor vehicle for general and specific deterrence.[56]
[53](2011) 244 CLR 120; [2011] HCA 39 (‘Muldrock’).
[54]De Silva [2023] VCC 2406, [118].
[55]Ibid [99].
[56]Ibid [115].
Judge Gwynn accepted that all of the Verdins principles applied.[57] She formed the view that incarceration would be more difficult for De Silva, and that there would be substantial risks to his overall wellbeing in a prison environment.[58] Her Honour also noted that De Silva had ‘a range of existing therapeutic relationships which have merit in continuing’.[59]
[57]Ibid [114].
[58]Ibid [112].
[59]Ibid [129].
Judge Gwynn took note of the applicant’s sentence. She said:
A fundamental difference between the two of you is your [that is, De Silva’s] intellectual capacity in your IQ of 48 in combination with your degenerative condition of TSC and other associated conditions [is] such that it is appropriate that there be a different sentence imposed upon you for the offending where Mr Gar has been sentenced and you are to be sentenced.[60]
[60]Ibid [136].

Ground 1: parity

Submissions

The applicant submitted that the difference in the 2 year sentence he received and the 6 month sentence imposed on De Silva was manifestly too large and gave rise to a justifiable sense of grievance. The applicant did not submit that the judge should have imposed the same sentence on the applicant as De Silva. Nor did he submit that a non-custodial disposition would be appropriate. However, he submitted that a reduction in his sentence was necessary to appropriately reflect the principle of parity.
The applicant argued that his and De Silva’s roles in the offending were relevantly identical. The prosecution elected to proceed against each of them on the basis that neither was involved in the use of the knife. However, De Silva fell to be sentenced as the offender who struck the victim first and on the basis of an additional charge of committing an indictable offence while on bail.
The applicant emphasised that De Silva had a significantly worse criminal history and that he was to be sentenced in respect of further unrelated offending of a similar kind.
The applicant accepted that community protection was a relevant sentencing consideration given his high risk of violent re-offending. However, he contended that community protection was also relevant in De Silva’s case, as De Silva’s cognitive impairment elevated the need to protect the community from him.
The respondent submitted that, notwithstanding the identical factual basis for assessing the objective gravity of the offending, the disparity between the sentences imposed was justified by the different personal circumstances of each offender. Judge Gwynn was correct to find that De Silva’s moral culpability was reduced by his intellectual disability. The principles in Bugmy and Muldrock, and all of the Verdins principles, were enlivened. De Silva’s more extensive criminal history than the applicant’s was explicable by reference to De Silva’s particular background, which meant that he had difficulty obeying court orders. Given De Silva’s vulnerability in the prison system, community protection was best served in his case by a disposition which ensured that he received high level support and supervision.
The respondent submitted that the applicant had more limited matters to call upon in mitigation: his youth, his unstable background and his limited criminal history. Furthermore, the Forensicare report revealed that the applicant had fantasies of enacting violence upon others; Dr Nielsen assessed the applicant’s risk of violent re-offending to be ‘high’; the applicant had a history of violence and displayed poor insight into his offending.
The respondent argued that the gravity of the offending combined with the significant escalation in the applicant’s violent behaviour over a short period of time underscored the importance of community protection, denunciation and general and specific deterrence, and moderated the weight to be attributed to youth and rehabilitation. The respondent emphasised in this regard the judge’s finding that the applicant’s prospects of rehabilitation were ‘very poor’.

Consideration

The purpose of parity in sentencing is to ensure consistency in punishment.[61] The parity principle is ‘based on the broad principle of equal justice’.[62] For an appellate court to intervene on the basis of disparity, the disparity must be ‘“marked” or “manifest” and such as to produce a legitimate and justifiable sense of grievance in the objective observer’.[63] Whether there is such a sense of grievance depends on whether there were reasonable grounds for differentiation (or lack thereof) between the co-offenders.[64] As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: ‘Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect’.[65]
[61]Abdou v The Queen [2015] VSCA 359, [62] (Redlich and Beach JJA, Beale AJA) (‘Abdou’). See also Green v The Queen (2011) 244 CLR 462, 473 [28] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49; Nipoe v The Queen [2020] VSCA 137, [38] (Maxwell P, Niall and Emerton JJA).
[62]Dawid v DPP [2013] VSCA 64, [43].
[63]R v Mercieca [2004] VSCA 170, [17] (Winneke P).
[64]Abdou [2015] VSCA 359, [62] (Redlich and Beach JJA, Beale AJA).
[65](2001) 207 CLR 584, 608 [65] (emphasis in original); [2001] HCA 64.
Although both the applicant and De Silva carried out the same crime — arguably initiated by De Silva — there is a yawning chasm between their personal circumstances and, as a consequence, their subjective culpability for the offending and their suitability as vehicles for general deterrence and denunciation.
De Silva’s personal circumstances are unique and extreme. He has a very severe intellectual disability; the applicant has none. Unlike De Silva, the applicant does not suffer from a range of physical, psychological and neurological conditions that leave him severely functionally impaired. He does not need to rely on others to manage the most basic aspects of life. He retains the ability to reason and engage in consequential thinking; he is able to make good choices rather than poor ones. He is neither illiterate nor the victim of a very severely disrupted education. He has not been assessed as unsuitable for mainstream prison and is not vulnerable to institutionalisation in the same way as De Silva.
We accept that the applicant has experienced significant difficulties in his life, including family breakdown and abuse inflicted by his mother. He has apparently lacked appropriate family support and has, no doubt, been the victim of racial slurs and bullying. The key factor perpetuating his use of violence is a combination of emotional dysregulation in the context of largely untreated mental health difficulties (depression and anxiety). Those factors have been taken into account in sentencing him, but they do not significantly diminish his culpability for the offending. They are not comparable with the disadvantage and impairment suffered by De Silva.

De Silva is a most unfortunate young man. Life has dealt him a particularly poor hand, which in large part explains his anti-social behaviour and relatively long criminal record for someone so young. Fortunately, however, De Silva is able to rely on a range of social supports and appears to be willing to live within the constraints associated with the provision of those supports. That makes him less of a threat to the safety of the community. The applicant, on the other hand, seems unwilling to accept help or guidance. He has made life difficult for himself and others in prison. His resorting to violence appears to be escalating. His prospects of rehabilitation are correspondingly poor. He has been assessed as being at a high risk of engaging in future violence and of having anti-social attitudes that mean that criminal sanctions do not deter him from engaging in violence.
It is unsurprising that he was sentenced to a significantly longer period of imprisonment than De Silva.
This proposed ground of appeal entirely misses the mark. It has no prospects of success.

Ground 2: manifest excess

Submissions

The applicant submitted that, giving proper weight to all the relevant sentencing factors, it was not reasonably open to the judge to impose the sentence that she did.
The applicant contended that, while the judge was entitled to moderate the mitigatory effects of his youth, his youth was still a significant matter in the sentencing exercise. He was 19 years old at the time of the offending and 20 years old at the time of sentencing.
The applicant argued that the judge did not reduce the sentence to appropriately account for the amelioration of sentence required by his plea of guilty and remorse. He pleaded guilty at the first reasonable opportunity, once the armed robbery charge was withdrawn. His plea obviated the need for cross-examination of the victim at trial and saved the courts and community the time and expense of a trial. He pleaded guilty during the COVID-19 pandemic. His guilty plea, in combination with his expressions of contrition to Dr Nielsen (which demonstrated insight into his offending), were demonstrative of his remorse.
According to the applicant, while his background did not enliven the Bugmy principles, his history of instability and racial bullying were relevant to the sentencing exercise. Those personal circumstances were not adequately reflected in the sentence.
The applicant further submitted that the sentence did not adequately reflect the nature and gravity of the offending. The offending lacked sophistication or pre-planning. The applicant was not armed and he did not disguise himself. His role was more limited than that of De Silva, who initiated the offending. He did not slash the victim’s ear, nor did he know about the knife. He did not make any demands of the victim. The injuries for which he fell to be sentenced were not at the higher end.

Consideration

It is trite to observe that an appellate court can only conclude that a sentence is manifestly excessive if it is wholly outside the range of sentences open to the sentencing judge.[66] Manifest excess is a difficult ground to make out.
[66]See, eg, Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15] (the Court); [1999] HCA 29.
In this case, the appellant was sentenced to an aggregate sentence of 2 years for the offences of robbery and recklessly causing injury. The former carries a maximum sentence of 15 years’ imprisonment; the latter carries a maximum sentence of 5 years’ imprisonment. Having regard to these guideposts, a sentence of 2 years is a lenient sentence.
The applicant’s youth was a significant consideration in the sentencing exercise, as was his plea of guilty. His history of instability and racial bullying were also relevant, giving rise to some reduction in his moral culpability. However, the offending involved serious examples of robbery and recklessly causing injury. While the offending lacked sophistication or pre-planning, and the applicant was not armed and he did not disguise himself, it was unprovoked and occurred late at night in a public area. The victim was unarmed, alone and unknown to either offender. He was rendered unconscious and robbed while on the ground. He was left lying, bleeding and alone, on the footpath. Both offenders left the scene with their masks up, disappeared into a laneway and re-emerged minutes later having swapped items of clothing.
Furthermore, the applicant has a relevant history of violent behaviour, including another instance of unprovoked violence towards strangers on the streets of Melbourne. The psychological material tendered on the plea discloses that the applicant lacks insight into his behaviour, and poses a high risk of engaging in future unprovoked physical violence. He has no prosocial supports or activities and does not see a need for them. He presents a risk to the community.
In light of the foregoing, the sentence of 2 years’ imprisonment was well within range.
The proposed ground of manifest excess is not made out.

Ground 3: fresh evidence

The applicant submits that in light of the cancellation of his refugee visa, there will be a miscarriage of justice if a different sentence is not imposed. This is because the sentence imposed must reflect the fact that the cancellation of his visa will make his time in prison more burdensome. He will be worried about what is going to happen to him upon release.
We accept that the visa cancellation is new evidence and that it would have been a relevant consideration for the sentencing judge. The cancellation of his visa introduces significant uncertainty into the applicant’s life. He has lived most of his life in Australia and has no remaining connections with or in Egypt. It may be inferred that this uncertainty, and the possibility of deportation, will add to the burden of imprisonment.
However, we reject the submission that a different sentence must now be imposed.
The prospect of the visa cancellation adding to the burden of imprisonment must be considered in the light of the other mitigating factors identified and weighed against the seriousness of the offending in question. As discussed, the offending was serious. It was both dangerous and callous, and it was not the applicant’s only act of random violence against a stranger on the streets of Melbourne. The applicant has also assaulted family members and appears to believe that he was within his rights to do so. He has given no reason to believe that his prospects of rehabilitation are other than very poor.
In those circumstances, we consider the sentence imposed by the sentencing judge to be lenient. We see no good reason to reduce it on the ground that the visa cancellation will make the applicant’s imprisonment more burdensome.
It is apparent from the DJCS report that even without the visa cancellation, the applicant has had a problematic history as a prisoner. He has conducted himself in a manner that has made his life in prison significantly more difficult than it would otherwise have been. The DJCS report contains the following paragraph concerning the management regimes to which he has been subjected as a result of his conduct:
On four separate occasions, Mr Gar was subject to separation regimes. Mr Gar was initially classified as a medium-security prisoner but was reclassified as a maximum-security prisoner following incidents on 19 December 2022 and 23 December 2022. Mr Gar was also subject to various levels of a handcuff regimes [sic] in response to Mr Gar’s significant risk of violence to staff and/or other persons.
Furthermore, it is entirely unclear what the consequence of the visa cancellation will be. The applicant has been invited to apply to have the cancellation decision revoked. There are a number of steps available to the applicant before he faces any immediate threat of deportation.
In the circumstances, we are not persuaded that the visa cancellation adds to the burden of imprisonment such that a different sentence should be imposed.

Conclusion

As the proposed grounds lack merit, the application for an extension of time in which to bring an application for leave to appeal will be refused.
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[2024] VSCA 96

17 May 2024