Hamid v The Queen
[2019] VSCA 5
•30 January 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0102
| SHAHID HAMID | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 January 2019 |
| DATE OF JUDGMENT: | 30 January 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 5 |
| JUDGMENT APPEALED FROM: | [2018] VCC 644 (Judge Hampel) |
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CRIMINAL LAW – Appeal – Sentence – Recklessly causing serious injury – Whether sentence of 10 years’ imprisonment with non-parole period of 7 years manifestly excessive – Applicant ambushed victim and struck him repeatedly to the head and neck with bladed knuckleduster causing life-threatening injuries and permanent scarring – Prior offences of intentionally causing serious injury using a knife and affray – Leave to appeal granted but appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis QC with Ms B Franjic | Balmer & Associates |
| For the Respondent | Ms D Piekusis SC | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA
KYROU JA:
Introduction and summary
On 3 May 2018, the applicant pleaded guilty to one charge of recklessly causing serious injury and was sentenced to 10 years’ imprisonment with a non-parole period of 7 years.[1] The maximum penalty for that offence is 15 years’ imprisonment.[2] The judge made a declaration under s 6AAA of the Sentencing Act 1991 that, if not for the applicant’s plea of guilty, she would have sentenced him to 12 years and 6 months’ imprisonment with a non-parole period of 10 years.
[1]DPP v Hamid [2018] VCC 644 (‘Sentencing remarks’).
[2]Crimes Act 1958 s 17.
The offending occurred when the applicant ambushed the victim, Rollin Shah, outside a house at which the victim, but not the applicant, was a guest at a private party and attacked him with a knuckleduster that had a blade attached to it. Shah suffered a deep, life-threatening laceration to his neck.
The applicant seeks leave to appeal against his sentence on the ground that the head sentence and the non-parole period are manifestly excessive.
For the reasons that follow, the application for leave to appeal against sentence will be granted but the appeal will be dismissed.
Circumstances of the offending
The applicant was born and educated in Malaysia. He and Shah attended the same school. In about 2006, Shah began a relationship with the applicant’s sister. The relationship was often a long distance one, as Shah had attended university in Australia, between 2005 and 2010. Shah ended the relationship in August 2016. In 2017, he was living in Indonesia.
On 28 January 2017, Shah flew to Melbourne and visited the home of his friend, Joey Ho. During that visit, he met Michael Pavlidis, who was a friend of the applicant. Shah briefly visited New Zealand before returning to Melbourne on 8 February 2017 and again stayed at Ho’s house. Pavlidis learned that Shah had returned to Melbourne.
Also on 8 February 2017, the applicant sent a message to his friend, Ahmed Said and told him that he had learned that Shah was in Melbourne. He sent the following messages to Said:
My ex brother in law is in Melb
I am gonna hunt him this wkend
Dishonoured my blood sister
I wanna wreck this dog
Im going to send him back with a dog scar
On the evening of 10 February 2017, Shah and Ho attended a private party in Brighton. Pavlidis constantly contacted Ho, asking where he was and invited him and Shah to join him at a karaoke bar. Pavlidis also asked if he could join Ho and Shah at the party in Brighton, but Ho told him that he could not, because he had not been invited. However, Ho told Pavlidis the address of the house at which the party was being held.
The applicant and Pavlidis drove to that house in the early hours of 11 February 2017. On the way, the applicant sent text messages to Said stating that he was in Brighton with Pavlidis ‘waiting for the skunk’ and that ‘if you want something done, you have to do it yourself’. The applicant remained outside the house while Pavlidis went inside. As Pavlidis had not been invited, Ho took him outside, at Shah’s request. A short time later, Shah joined Ho and Pavlidis outside on the footpath. The applicant then appeared from behind a tree, walked up to Shah, punched him in the neck and yelled at him to fight him. Shah told the applicant to relax but the applicant continued to chase him and punch him to the head and neck. Ho unsuccessfully attempted to stop the applicant and observed him adjusting his knuckleduster, which appeared to have a shiny blade attached to it. The applicant continued to punch Shah to the head and neck areas, before walking away with Pavlidis towards his car.
Shah realised that he was bleeding and had been stabbed in the neck. He screamed out to the applicant that he had been stabbed in the neck and was going to die. The applicant continued to walk away. Later that evening, the applicant sent Said text messages telling him that he had stabbed Shah in front of Pavlidis and that there was ‘red’ everywhere.
Ho put Shah in his car and drove towards the Monash Hospital. Fortuitously, the car was pulled over by police, who assisted Shah with first aid until an ambulance arrived. Shah was conveyed to the Alfred Hospital where he underwent emergency surgery. Upon arrival, he was noted to have a 10–15 centimetre deep laceration to the left side of his neck, extending from behind his ear to his jawline. The laceration extended deep into the muscle and caused significant blood loss. It was the opinion of a forensic medical officer, who assessed Shah on 15 February 2017, that if he had not received timely medical intervention he may have died as a result of catastrophic blood loss.
Shah also suffered a laceration to his left earlobe, with a piece of his ear being completely severed, a 20–25 centimetre stab wound to his middle back, and an 8–10 centimetre laceration above his left elbow. He also received a non-displaced fracture to his T6 vertebra.
In his victim impact statement, Shah described having regular and intrusive flashbacks to the aftermath of the stabbing, including thinking that he would die, and emergency services officers working to stop him from losing more blood. He also experienced the hardship of being discharged early from hospital because one of the applicant’s associates had located him there, while also being unable to return home to Indonesia at that time due to his injuries.
Shah stated that he has lost much of his enjoyment in life and while he used to be positive and happy, his life is now ‘far more pessimistic, serious and intense’, and he is both physically and mentally scarred. He stated that people stare and whisper about him in public because of his visible scars and he suffers from depression, anxiety, nightmares and loss of sleep. He finds it difficult to trust people or develop new friendships because his attacker was somebody that he had known for a long time and treated like family.
On 14 February 2017, the applicant attended a police station and participated in a record of interview. He told police that he had attended the Brighton party by himself to offer Shah a ride and a place to stay and that he departed when Shah declined the offer. He said that he considered Shah to be part of his family and that he believed that his sister and Shah still loved each other and were having a break in their relationship, but it had nothing to do with him. He denied punching Shah.
Applicant’s personal circumstances
The applicant was 28 years of age at the time of the offending and 29 when he was sentenced. He has four siblings and half-siblings. In 1991, when he was 3 years old, he moved from Malaysia to Australia with his mother and older sister and obtained citizenship, before returning to Malaysia in 1994. He was not close to his parents, and was subjected to harsh physical discipline. He was regularly involved in fights with other students at school.
The applicant was sent to boarding school in Malaysia when he was 12 years old and completed Year 11 in Malaysia before relocating to Melbourne by himself. He completed his VCE and commenced a business degree at Latrobe University, but did not complete it, instead obtaining a business diploma at Monash College. He commenced a business degree at Swinburne University in 2008, which he completed in 2015. He has worked in a range of roles, including as a debt collector and actor.
The applicant has a history of substance abuse. He began using cannabis and ecstasy when he was about 13 years old, and continued to use them throughout his adolescence. He began to use other illicit substance, including methylamphetamine, when he was about 16 years old, and continued to use those drugs until his incarceration in 2011 for the offences discussed at [24]–[28] below. In 2013, after he was the victim of a violent attack by a group of assailants and suffered injuries including a dislocated shoulder and skull fractures, he relapsed into drug use by obtaining ‘black market’ codeine and morphine. He continued to abuse prescription opiates and benzodiazepines, and heroin, until his arrest for the current offending.
In 2015, the applicant experienced severe emotional turmoil as a result of the suicide of a close friend. In 2016, the applicant’s partner suffered a miscarriage, causing his drug use to escalate and, at the time of the current offending, he was using approximately half a gram of methylamphetamine most days, and experienced bouts of paranoia and drug-induced psychosis in 2016 and 2017. He told a psychologist, Patrick Newton, that on the night of the offending he had been drinking heavily and consumed an unknown amount of ecstasy, methylamphetamine, prescription opiates and an antidepressant and was therefore not thinking clearly.
Mr Newton assessed the applicant as having significantly elevated anxiety, being both reactive to his legal proceedings, and chronic, relating to the incident when he was attacked in 2013. He stated that the applicant’s anxiety represents a post-traumatic stress disorder in partial remission as he continues to experience residual symptoms and is at risk of relapsing into a full post-traumatic stress disorder if exposed to prolonged stress or further trauma in the future. Mr Newton also stated that the applicant meets the criteria for severe substance-use disorder, which is in remission in a controlled environment due to his incarceration. Mr Newton stated that he was guarded about the applicant’s prognosis due to the multiplicity of his issues.
A large number of character references were tendered on the applicant’s behalf on the plea. They described him as a generous, kind and compassionate friend and family member who volunteered his time to help others. Many of the references detailed how the applicant had organised an event to cook and distribute meals to the homeless community in Melbourne for Christmas in 2016, in memory of a friend’s parents, and that from 2014 he began to teach regular self-defence classes for women. A number of the references stated that the applicant had expressed remorse for his offending and was working to become a better person while in custody.
A letter from a senior social worker with the Mobile Forensic Mental Health Service was tendered, indicating that the applicant had sought assistance from that service and had three counselling sessions while on remand. Two certificates for vocational courses that the applicant has undertaken while in custody, and three negative drug screen test results dated 8 April 2017, 16 January 2018 and 28 March 2018, were also tendered.
Applicant’s criminal history
On 10 December 2008, the applicant was dealt with in the Melbourne Magistrates’ Court for theft from a shop, for which he was placed on a good behaviour bond without conviction.
On 21 July 2011, the applicant pleaded guilty in the County Court to seven charges on indictment, namely, intentionally causing serious injury, affray, theft, possession of an unregistered general category handgun and three drug offences, together with a related summary offence. Judge Douglas sentenced him to 4 years’ imprisonment for the intentionally causing serious injury charge and 18 months’ imprisonment for the affray charge, and ordered that 3 months of the sentence for the latter charge be served cumulatively on the former charge.[3] The total effective sentence imposed for all charges was 4 years and 6 months’ imprisonment with a non-parole period of 2 years and 6 months. The applicant completed that sentence on 1 February 2015, two years prior to the current offending.[4] He was on parole between 1 February 2013 and 1 February 2015.
[3]DPP v Hamid [2011] VCC 1027 (‘Judge Douglas reasons’).
[4]Judge Douglas declared pre-sentence detention of 353 days: Judge Douglas reasons [89].
The charge of intentionally causing serious injury arose from conduct at about 3:30 am on 18 October 2009 on Russell Street in Melbourne when, without provocation, the applicant and his group of friends attacked an unarmed, intoxicated passer-by, Matthew Landy. The applicant produced a knife and stabbed Landy to his lower back and chest. Landy was pushed to the ground and kicked by the applicant and another of his group. Landy ran away before collapsing due to his injuries. He was conveyed to hospital, where he was treated for two stab wounds. A deep stab wound to his abdomen caused life threatening injuries including a left chest haemorrhage requiring laparotomy and a thoracotomy. His spleen was removed and he also suffered blood loss, a perforated lung and bruising. After the attack, the applicant sent a text message in which he bragged about having stabbed Landy about four times.
The offence of affray was committed five days later, on 23 October 2009. At about 10:30 pm, in a bar in the Melbourne Central Shopping Centre, a dispute broke out between the applicant and a man named Sakakai, causing a crowd controller to intervene on a number of occasions. Sakakai left the shopping centre and stood outside on the street. The applicant and nine or 10 other young men from his group followed Sakakai and surrounded him. The applicant asked him ‘Do you wanna say something before you die?’ before an altercation broke out. One of the applicant’s co-offenders hit Sakakai twice over the head with an empty beer bottle. Sakakai also received a stab wound, however it was not clear from the CCTV footage who inflicted that wound and it was not the subject of any charge. Sakakai tried to escape by going up a nearby escalator, but the applicant pulled him back down. Sakakai was then able to escape. He was treated in hospital for a minor wound to the back of his head and minor bruising to his left forehead.
In sentencing the applicant, Judge Douglas noted that although he was a youthful offender,[5] the attack on Landy was vicious, violent and unprovoked. She stated that the attack on Sakakai was also a cowardly attack, and had regard to the fact that it was committed only five days after the attack on Landy, and that both offences were committed in company.
[5]Judge Douglas reasons [28]–[29]. The applicant was 21 years of age at the time of the offending and 23 at the time of sentencing.
Judge Douglas took into account by way of mitigation that the applicant: pleaded guilty at committal; apologised to Landy through a letter to the Court; had shown remorse; had no relevant prior convictions; had taken steps to rehabilitate himself by engaging in social services, attending university and ceasing to sell and use drugs and behave violently; and the delay in the matter being dealt with. She had regard to a psychological report from Dr Cunningham which set out the applicant’s history of drug use and association with gangs as providing context for his offending. Judge Douglas accepted that the applicant had taken steps to rehabilitate himself during his time in custody and on bail and had ‘successfully achieved a considerable amount’.[6] Regarding specific deterrence, she said the following:
I sentence you on the basis that I will give little weight to matters of special deterrence, that is deterring you, and a considerable amount of weight in the circumstances to rehabilitation as I consider it unlikely you will commit these offences again.
…
… I am persuaded that you are unlikely to commit these sorts of offences again.[7]
[6]Judge Douglas reasons [65].
[7]Judge Douglas reasons [66], [69].
Judge’s sentencing remarks for the current offending
The judge described the current offending as ‘one of the gravest examples of the offence of recklessly causing serious injury’ and ‘high in the level of seriousness for [that] offence’, and said that it ‘warrants stern punishment’.[8] She noted that despite evidence of premeditation, the applicant fell to be sentenced for recklessly causing serious injury, rather than intentionally causing serious injury, as a result of a plea resolution.
[8]Sentencing remarks [23], [31], [64].
The judge had regard to the applicant’s prior convictions and described the sentence imposed by Judge Douglas in 2011 as ‘lenient … having regard to [the applicant’s] age and what she found to be [his] good prospects for rehabilitation’.[9]
[9]Sentencing remarks [40].
The judge observed that, since 2009, the applicant’s offending had progressed from using a knife in an impulsive, spontaneous manner, to using a purpose-designed weapon against a person to whom he bore ill-will, in a planned and premediated attack. She stated that the sentence imposed must therefore reflect specific as well as general deterrence, as it was clear that the applicant’s previous sentence had not deterred him, and his violent behaviour had, in fact, escalated. She also noted that there was no evidence of a causal connection between the offending and the applicant’s drug use on the night of the offending.
The judge stated that she had serious concerns about relying on the psychological report of Mr Newton, which was based primarily on statements that the applicant made to him and some of which were demonstrably untrue or incomplete. In particular, she said that she was concerned by the lack of reference to the applicant’s prior offending, and the fact that no assessment was made by Mr Newton as to the applicant’s prospects of rehabilitation or potential dangerousness, having regard to the similarity of the two sets of offending in which the applicant had caused life-threatening injuries by stabbing. She found that the applicant’s prospects of rehabilitation were ‘guarded’.[10]
[10]Sentencing remarks [59].
The judge said that she gave the applicant the benefit of having pleaded guilty at the earliest possible opportunity and the utilitarian benefit of his plea. However, she found that the applicant was not remorseful.[11]
[11]Sentencing remarks [61].
The judge also had regard to relevant protective factors, including the applicant’s intelligence and capacity to apply himself to study and employment and engage in community affairs, and his supportive family and social network, including the large number of character references from people who spoke highly of him.
Parties’ submissions
The applicant submitted that the manifest excess of his sentence is evidenced by the fact that he received the second highest sentence ever imposed in Victoria for recklessly causing serious injury, in circumstances where the same or a higher sentence had only been imposed in the ‘worst category’ cases in which permanent catastrophic injuries had been caused to the victims. He contended that the injuries to the victims in Ashe v The Queen[12] and Director of Public Prosecutions v Terrick[13] resulted in total or near-total incapacity, whereas Shah had all but recovered from his physical injuries, and therefore his offending did not fall within the ‘worst category’. While the applicant conceded that it was only good fortune that prevented Shah’s injuries from being worse, he argued that he was nevertheless entitled to have that good fortune reflected in the sentence imposed.
[12][2010] VSCA 119 (‘Ashe’). Ashe is discussed at [40], [64]–[67] below.
[13](2009) 24 VR 457 (‘Terrick’). Terrick is discussed at [40], [68]–[70], [72] below.
The applicant argued that, in her sentencing remarks, the judge ‘came dangerously close’ to describing the offending in terms of an offence of intentionally, rather than recklessly, causing serious injury, and that this materially and adversely informed her exercise of the sentencing discretion. He contended that the judge placed insufficient weight on matters in mitigation, or considerations that might have led to leniency — namely, his early plea of guilty, relative youth and potential to reform — and undue weight on matters against his interests. He argued that, consequently, he was sentenced to a period of imprisonment that is better aligned with serious examples of intentionally causing serious injury.
The applicant submitted that, despite his prior offending illuminating sentencing considerations such as protection of the community, in the light of his relative youth, the best way to protect the community is to impose a lower sentence in order to promote his rehabilitation.
The Crown conceded that, in the light of the fact that the applicant’s sentence is the second highest handed down in Victoria for recklessly causing serious injury, and the fact that the judge stated that she intended to impose a sentence maximising the applicant’s chances of release on parole, leave to appeal should be granted because it is reasonably arguable that the sentence is manifestly excessive. However, it submitted that the Court should conclude that the sentence is not manifestly excessive and dismiss the appeal.
The Crown submitted that, while the sentence imposed was ‘stern’, it was open to the judge for the following reasons:
(a)The judge found that the offending was ‘one of the gravest examples of the offence of recklessly causing serious injury’,[14] which finding is not challenged.
(b)The offending involved a bladed weapon, was premeditated and motivated by vengeance.
(c)The applicant admitted a relevant criminal history involving a previous stabbing of a victim.
(d)The injuries sustained by Shah were life-threatening and their effect on him was profound.
(e)The applicant did not cooperate with investigating police and did not provide a fully frank account of the offending when assessed by Mr Newton.
(f)The sentencing purposes of just punishment, denunciation and general and specific deterrence carried considerable weight.
(g)There was no reduction to the applicant’s moral culpability by reason of mental impairment or drug use.
(h)The judge was ‘guarded’ in her assessment of the applicant’s prospects of rehabilitation.[15]
(i)The judge found that the applicant has not showed genuine remorse for his offending.
[14]See [29] above.
[15]See [32] above.
The Crown accepted that cases of recklessly causing serious injury which fall within the ‘worst category’ ordinarily involve the infliction of permanent and catastrophic injuries, but submitted that, in this case, the judge had described the applicant’s offending as ‘grave’, not ‘worst category’. It contended that a comparison of the injuries suffered by the victims in Ashe and Terrick was not helpful. This was said to be so in relation to Terrick because that case involved a discount for double jeopardy. In relation to Ashe, the Crown stated that the fact that the case pre-dated the High Court’s decision in R vKilic[16] may cast some doubt on its correctness.
[16](2016) 259 CLR 256 (‘Kilic’). Kilic is discussed at [57]–[61] below.
Decision
In our opinion, while the sentence is stern, we are not satisfied that either the head sentence or the non-parole period is manifestly excessive. We have formed this view having regard to the egregious nature of the offending, the applicant’s very high moral culpability, the absence of strong mitigating factors (other than the applicant’s guilty plea) and the heightened need for condign punishment, general and specific deterrence and protection of the community in the circumstances of this case, including the applicant’s relevant criminal history.
The judge was right to describe the applicant’s attack on Shah as ‘cowardly, vicious and entirely unwarranted’[17] and his offending as ‘one of the gravest examples of the offence of recklessly causing serious injury’.[18] Those descriptions are appropriate having regard to the following features of the offending:
(a)The offence was premeditated. The applicant’s text messages to Said two days prior to the attack indicate that it was planned over a number of days. The applicant went to considerable lengths to locate Shah, and then ambushed him.
(b)The applicant was motivated by vengeance due to his perception that the applicant had dishonoured his sister. There was no evidence that the applicant’s sister had asked the applicant to harm Shah or that she even knew of his intention to do so. There was simply no justification for the applicant to violently interpose himself in the personal affairs of his sister and Shah.
(c)The applicant arrived at the house at which Shah was peacefully socialising with friends armed with a bladed knuckleduster. The blade rendered the knuckleduster an extremely dangerous weapon as it was capable of not only causing serious injury but also death.
(d)The manner in which Shah was ambushed left him completely exposed, with little opportunity to defend himself, as he was unarmed and unprepared for the violent onslaught.
(e)Although the injuries sustained by Shah, as described at [11]–[12] above, were not catastrophic, they were nevertheless very serious. Indeed, they were life-threatening: Shah may have died had it not been for his receipt of timely medical treatment . Apart from the permanent physical consequences of the injuries, including the loss of part of his ear and his prominent facial and back scarring, the summary of his victim impact statement at [13]–[14] above indicates that he continues to suffer ongoing and significant psychological trauma.
[17]Sentencing remarks [30].
[18]See [29] above.
The above matters mean that the applicant’s moral culpability was very high. In particular, his use of a bladed knuckleduster to repeatedly punch Shah in vulnerable parts of his body, particularly his head and neck, significantly elevated his moral culpability. In addition, the applicant’s callous attitude towards Shah’s plight is evidenced by the fact that, after he ferociously attacked Shah, he left the scene with Pavlidis without rendering any assistance to Shah, despite Shah calling out that he was going to die. Further, for the reasons discussed below, the applicant’s very high moral culpability is illuminated by his prior convictions for intentionally causing serious injury and affray.
In the light of the premeditated nature of the applicant’s offending, the weapon he used and the parts of Shah’s body to which repeated blows with that weapon were directed, the judge was right to express surprise that the prosecution had agreed to accept a plea to a charge of recklessly causing serious injury rather than intentionally causing serious injury. Despite that expression of surprise, the judge was careful to sentence the applicant for the offence to which he had pleaded guilty and in accordance with the maximum sentence that applied to that offence.[19] However, as noted by this Court in Ashe, where the facts of a case involving the offence of recklessly causing serious injury are very similar to cases involving the offence of intentionally causing serious injury, no meaningful differentiation in sentence between the two types of offence will be warranted.[20]
[19]As stated at [1] above, the maximum penalty for recklessly causing serious injury is 15 years’ imprisonment. The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment: Crimes Act s 16.
[20]Ashe [2010] VSCA 119 [31]. See [66] below. See also Terrick (2009) 24 VR 457, 477–9 [86]–[91].
After initially denying the offending, the applicant pleaded guilty at an early stage. He was entitled to, and received, a significant discount on his sentence for his plea. However, apart from his plea and family and community support, there was little else that the applicant was able to call in aid by way of mitigation. He had a relatively comfortable upbringing, which included attendance at a boarding school, and there was no causal link between the offending and his substance abuse or any mental illness he suffered. At 28 years of age at the time of the offending, he was not a youthful offender. There is no challenge to the judge’s findings that the applicant was not remorseful[21] and that his prospects of rehabilitation were ‘guarded’.[22]
[21]Sentencing remarks [61]. The judge found that the applicant gave a false account of the offending to Mr Newton. See Sentencing remarks [46]–[47], [49].
[22]Sentencing remarks [59].
The judge was right to give considerable weight to just punishment, denunciation and deterrence.[23]
[23]Sentencing remarks [26].
General deterrence is always an important sentencing consideration in offences of violence. It had heightened significance in the present case because there was an element of vigilantism in the applicant’s offending. The applicant’s text messages to Said set out at [7] above indicate that he attacked Shah because he perceived that Shah had dishonoured his sister, and wanted to punish Shah by permanently scarring him.
The courts have consistently condemned acts of vigilantism. They have repeatedly emphasised that members of the community must resolve their grievances by lawful means rather than taking the law into their own hands by physically harming perceived wrongdoers or members of their family, or damaging their property. The sentences that the courts impose on those who act contrary to the rule of law by taking personal vengeance need to be such as to deter not only the offenders from committing similar offences in the future but also to deter others from taking the law into their own hands.
We respectfully adopt the following statement of Brooking JA in Director of Public Prosecutions v Whiteside:
Vigilante enterprises must be suppressed, as appellate courts have made clear. Where four men, acting on ‘rumour and innuendo’, assaulted a fifth for ‘messing with kids’, the Court of Appeal endorsed the judge’s description of the ‘vigilante action’ and said that it called for serious reaction from any court anxious to preserve the rule of law: R v Sheekey. Similar offences committed by only one or two offenders have, as one would expect, drawn the same response: Re Attorney-General’s Reference (Nos 17 and 18 of 1994) (‘That is what this case was about, people taking the law into their own hands. It has to be stopped’); R v Kennedy (‘vigilante enterprises of this kind are simply not tolerated by the community’); R v Demittis (‘The idea that individual citizens may take the law into their hands in this way is quite mistaken. It frequently results in serious injuries, and very often they are inflicted on individuals who are quite innocent of any offence whatsoever. It is not the view adopted in this court in previous cases that the law may be taken into the hands of citizens or, indeed, that anything but the proper processes of the law should be gone through before a person is dealt with for criminal offences. Vigilante enterprises of this kind are simply not tolerated by the community.’); R v Brelsford (‘Vigilante action, from which Australia has happily been free so far, is notorious for the serious consequences that it often entails. Quite frequently, they are unintended and, on occasions, of course, the wrong person is selected as the target of this kind of rough justice.’).[24]
[24](2000) 1 VR 331, 339 [24] (citations omitted).
The applicant’s 2011 convictions for intentionally causing serious injury and affray, the details of which are set out at [24]–[26] above, are highly significant. Although the applicant has served his sentences for those offences and cannot be punished for them again, they are relevant to the question whether the sentence of 10 years’ imprisonment for the current offending is manifestly excessive.
In Veen v The Queen [No 2],[25] Mason CJ, Brennan, Dawson and Toohey JJ stated that an offender’s antecedent criminal history may be taken into account in the sentencing synthesis because it may illuminate the moral culpability of the offender in the instant case and may inform the weight to be given to sentencing considerations such as specific deterrence and protection of the community.[26] However, the criminal history cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence because to do so would be to impose a fresh penalty for past offences.[27]
[25](1988) 164 CLR 465 (‘Veen’).
[26]Veen (1988) 164 CLR 465, 477. See also Dirbass v The Queen [2018] VSCA 272 [48] (‘Dirbass’).
[27]Veen (1988) 164 CLR 465, 477. See also Dirbass [2018] VSCA 272 [48].
The principles governing the manner in which an offender’s criminal history may or may not be taken into account in the sentencing synthesis were summarised as follows by Charles JA (with whom Winneke P and Southwell AJA agreed) in R v O’Brien:
It is of course clear that no principle of sentencing requires that more severe sanctions be administered to those who persist in their criminal behaviour. But an adverse criminal record may impact on the sentencing process in a number of ways; for example, as an indicator of the offender’s moral culpability, his prospects of rehabilitation, his dangerous propensity and the community’s need for protection, and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence.[28]
[28][1997] 2 VR 714, 718. See also Dirbass [2018] VSCA 272 [52].
The applicant’s previous offence of intentionally causing serious injury is highly relevant because it means that the current offence, which occurred seven years after the first offence was committed and two years after he completed his parole for that offence, was the second occasion in which he had inflicted life threatening injuries by stabbing someone. Both incidents took place at times when the applicant used illicit drugs, and involved cowardly and unprovoked attacks by him on two unarmed members of the community who were innocent of any wrongdoing. Five days after stabbing Landy, the applicant took part in an affray which involved him and nine or 10 associates surrounding and inflicting injuries on Sakakai, who did not pose any threat to them and was, in fact, seeking to escape from them.
In 2011, the applicant successfully persuaded Judge Douglas that he had rehabilitated himself and that there was little risk that he would reoffend.[29] Judge Douglas’s faith in the applicant proved to be misplaced.
[29]Judge Douglas reasons [65]–[66], [69]. See [28] above.
In these circumstances, it was necessary for the sentence for the current offence to be sufficiently high so as to deter the applicant from committing similar offences in the future. It was also necessary for that sentence to be of a magnitude to protect the community from the applicant, particularly having regard to the judge’s finding that his prospects of rehabilitation were ‘guarded’.[30] In the light of that finding, we do not accept the applicant’s submission that the best way to protect the community in his case is to impose a lower sentence in order to promote his rehabilitation.
[30]See [32] above.
We also do not accept the applicant’s submission that a comparison of the nature and gravity of the offending in the cases of Ashe and Terrick, with the nature and gravity of his offending, exposes a miscarriage of the sentencing discretion in the present case. This is because, and although the applicant disavowed that it was so, his submission in substance amounted to the proposition that his sentence was manifestly excessive because he received a sentence that was similar to the sentences in other cases that involved much more serious offending. Having regard to Kilic and Director of Public Prosecutions vDalgliesh,[31] such a proposition is unsound.
[31](2017) 349 ALR 37 (‘Dalgliesh’).
In Kilic, the offender, who was 22 years of age at the time of sentencing, was in a relationship with his victim. That relationship broke down and the victim, who was 12 weeks pregnant with the offender’s child, decided to leave him. The victim and some male companions attended the offender’s home and parked outside. They had a can containing half a litre of petrol on the back seat of the car, which was there because they had earlier run out of petrol. After attempting to attack one of the men with a samurai sword, and while that man was inside the offender’s house, the offender gained entry to the car and sat on the back seat next to the victim. He poured petrol from the fuel can all over her before exiting the car. When he returned a few minutes later, he said to her ‘You want to make my heart burn, now you can burn, bitch’. He then held a cigarette lighter to her chest, which ignited the petrol. Immediately, the victim’s hair, face and clothing were engulfed in flames.
The victim was taken to hospital in a critical condition. She was placed in an induced coma for five days and spent nine days on a ventilator in intensive care. Her injuries were life-threatening, with only a small area of her skin unharmed by her injuries or associated necessary medical procedures. She required complex surgery and skin grafts, and was left with permanent scarring and reduced functionality in her hands and limbs such that her quality of life was diminished. As a result of the seriousness of her injuries and her long-term prognosis, she terminated her pregnancy.
The offender pleaded guilty and was sentenced to 14 years’ imprisonment for the intentionally causing serious injury charge. This Court found that the sentence was manifestly excessive and resentenced the offender to 10 years and 6 months’ imprisonment for that charge. After reviewing other cases in the ‘worst category’ of intentionally causing serious injury, this Court said:
Notwithstanding the latitude that must … be extended to sentencing judges, particularly when sentencing for an offence falling within the worst category, there is such a disparity between the sentence imposed and current sentencing practice as illustrated by the authorities relied upon by the parties, that we are satisfied that there has been a breach of the underlying sentencing principle of equal justice. The sentence imposed is unjustifiably disparate from other sentences imposed for worst category offending by offenders in comparable circumstances.[32]
[32]Kilic v The Queen [2015] VSCA 331 [67] (citations omitted).
The High Court allowed a Crown appeal against this Court’s decision, finding that it had erred in its consideration of current sentencing practices because it had:
in effect impermissibly treated the sentences imposed in the few cases mentioned as defining the sentencing range and, on that basis, concluded that, because the sentence imposed in this case exceeded the sentences imposed in all but one of the cases referred to, the sentence imposed in this case was beyond the range of available sentences.[33]
[33]Kilic (2016) 259 CLR 256, 268 [24].
The High Court dealt with the circumstances in which offending can be classified as falling within the ‘worst category’ of a particular offence. The Court said that what is meant by that phrase is that the offending in the instant case is ‘so grave that it warrants the imposition of the maximum prescribed penalty for that offence’.[34] The Court then referred to a ‘spectrum’ of seriousness for offences, as follows:
Where … an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty … a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category, properly so called. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being ‘within the worst category’. It is a practice which should be avoided.[35]
[34]Kilic (2016) 259 CLR 256, 265 [18] (citations omitted).
[35]Kilic (2016) 259 CLR 256, 266 [19] (citations omitted).
In Dalgliesh, the High Court rejected a principle that had been applied by this Court, namely that, when an offender pleads guilty to an offence, he or she may reasonably assume that he or she will be sentenced in accordance with current sentencing practices and therefore a sentencing court is not at liberty to disregard those current sentencing practices. The High Court stated that a sentencing court will fall into error if it treats current sentencing practices as an obstacle to imposing a sentence that is appropriate in all the circumstances of the case.[36] It also held that current sentencing practices is one of a number of relevant sentencing considerations but it is not a controlling consideration.[37] The duty of a sentencing court is to impose a just sentence according to law, even where an offender has pleaded guilty in light of current sentencing practices.[38]
[36]Dalgliesh (2017) 349 ALR 37, 55 [84], n 89, [85], n 91. See also Sutic v The Queen [2018] VSCA 246 [58] (‘Sutic’).
[37]Dalgliesh (2017) 349 ALR 37, 40 [9], 51 [68]. See also Sutic [2018] VSCA 246 [58].
[38]Carter v The Queen [2018] VSCA 88 [80]. See also Sutic [2018] VSCA 246 [59].
In any event, a comparison between the circumstances of the offending and sentences imposed in Ashe and Terrick, with the circumstances of the offending and the sentence imposed on the applicant does not indicate that the latter sentence is manifestly excessive.
In Ashe, the offender appealed against his sentence of 10 years’ imprisonment with a non-parole period of 8 years for one charge of recklessly causing serious injury. That offending involved the offender punching his victim’s head outside a hotel, causing the victim to fall backwards and strike his head on the road, before punching the victim’s face three times. The offender then dragged the victim to the side of the road and threw him down, causing his head to hit the road again. The offender then walked into the hotel and stated that someone should call an ambulance for the man that he thought he had ‘just killed’. While another man attempted to provide aid to the then unconscious victim on the roadside, the offender emerged from the hotel and again punched the victim to the head. The victim suffered haemorrhaging to his brain and was reduced to a vegetative state with permanent incapacitating brain damage.
The offender turned himself in to police but sought to minimise his offending. He later pleaded guilty to the facts as outlined by the prosecution. The offender, who was 32 years of age at the time of sentencing, had prior convictions, including for 11 offences involving violence or the threat of violence, but had not previously been imprisoned. He had an intellectual disability.
This Court found that the head sentence was not manifestly excessive. It stated that the applicant must be taken to have foreseen the probability of maximum harm being caused to the victim and acted with recklessness as to that consequence. The Court also found that there was little to distinguish the offending from an offence of intentionally causing serious injury.[39] It stated that the offence of recklessly causing serious injury may arise in many circumstances and that the sentencing judge had been correct to find that the offending was in the ‘worst category’.[40] That was so despite the presence of mitigating factors called in aid by the offender. The Court reduced the non-parole period to 7 years’ imprisonment as a consequence of the offender’s intellectual disability, family support and lack of relevant prior convictions.
[39]Ashe [2010] VSCA 119 [27], [31].
[40]Ashe [2010] VSCA 119 [32].
This Court’s statement in Ashe that the offending in that case fell within the ‘worst category’ must be treated with caution in the light of the clarification of that phrase in Kilic. With the benefit of that clarification, a court that is called upon to impose a sentence for an offence that has the features of the offence in Ashe may well be justified in imposing a sentence greater than 10 years’ imprisonment. In any event, while the injuries sustained by the victim in Ashe were more serious than those of Shah in the present case, the offending in Ashe was not premeditated and did not involve the use of a bladed weapon to take of vengeance on a victim known to the offender. Moreover, this Court held that the offender in Ashe had an intellectual disability and did not have relevant prior convictions.
Terrick involved three offenders: Terrick, Stewart and Marks. While Marks was using an ATM on the street of a rural town, Terrick and Stewart confronted the victim, a tourist who was passing by, and cornered him against a store window. Marks joined Terrick and Stewart and they demanded money from the victim. The three offenders, who were heavily intoxicated, punched the victim until he fell to the ground, and then took turns to kick him to the head and upper body. Stewart delivered a violent kick that caused the victim’s head to fly back and hit the shop wall. The offenders continued to kick the victim’s head even though he was obviously unconscious. The attack continued despite unsuccessful attempts by other passers-by to stop it. The offenders were later heard to boast about the injuries they had caused to the victim. The victim suffered life-threatening injuries including acute subdural haematoma to the left frontal parietal area of his brain, a small right side contusion, a collapsed right lung, and fractures to his orbital wall and skull. These injuries caused the victim life-long physical and mental disabilities, to require permanent care, and left him unable to walk unaided or speak, read, write or count.
The offenders were Aboriginal and had deprived and dysfunctional backgrounds marked by chronic alcohol abuse. They were in their mid-twenties and had extensive criminal records, including offences of violence. At the time of the offending, Terrick and Stewart were on bonds and Marks was on bail.
Terrick and Marks pleaded guilty to intentionally causing serious injury. Stewart was found guilty of recklessly causing serious injury at trial. The offenders were sentenced on the basis that they had acted in concert. Terrick and Marks were sentenced to 9 years’ imprisonment and Stewart was sentenced to 8 years’ imprisonment.[41] The Crown successfully appealed against those sentences on the basis that they were manifestly inadequate. Taking into account double jeopardy, this Court resentenced Terrick and Marks to 11 years and 6 months’ imprisonment, and Stewart to 11 years’ imprisonment.[42] In doing so, this Court said the following:
The highest sentences previously imposed for an offence should not be regarded as creating a ceiling or a sentencing practice which constrains the imposition of higher sentences in ‘worst category’ cases. The need to have regard to current sentencing practices does not mean that the measure of manifest inadequacy is ‘capped’ or ‘collared’ by the highest sentences previously handed down. The possibility is not foreclosed that a sentence near the largest previously imposed may be manifestly inadequate.[43]
[41]Stewart was also sentenced to 1 year’s imprisonment for the offence of affray to be served concurrently with the sentence of recklessly causing serious injury.
[42]Stewart’s sentence of 1 year’s imprisonment for affray was affirmed, however an order was made that 6 months of that sentence was to be served cumulatively.
[43]Terrick (2009) 24 VR 457, 477 [81] (citations omitted).
The offence of recklessly causing serious injury is a serious offence. This is reflected in the maximum penalty of 15 years’ imprisonment which Parliament has prescribed for it. As stated in Kilic, that maximum penalty is reserved for cases in the ‘worst category’. However, it also serves as a yardstick in all cases for determining an appropriate penalty. It does so by enabling courts to determine where on the ‘spectrum’ of seriousness, which extends from the least serious instances of an offence to the worst category, a particular case falls.
We accept that the offending in Terrick was more serious than in the present case, as it involved three offenders acting in company attacking an innocent bystander and causing permanent catastrophic injuries. As this Court described the offending as falling within the ‘worst category’, if it had had the benefit of the guidance provided by Kilic, and had not been constrained by the then operative principle of double jeopardy, it may have resentenced Stewart to more than 11 years’ imprisonment for his conviction by jury verdict for the offence of recklessly causing serious injury. In any event, as Kilic and Dalgliesh make clear, any disparity between the sentence imposed in the present case and the sentences imposed in Terrick cannot in itself be a proper basis for a finding that the former sentence is manifestly excessive.
Although the severity of the injuries inflicted on a victim is a significant factor in assessing the seriousness of a particular offence of recklessly causing serious injury, it is not the sole factor. As this Court said in Dirbass v The Queen:
In our opinion, the observations of the High Court in Kilic emphasised that all the sentencing considerations that are relevant to the offence and the offender must be taken into account in determining the overall seriousness of the offending for the purposes of exercising the sentencing discretion. The considerations that are relevant to the offence include the nature and gravity of the offence, the impact on any victim, and any injury, loss or damage resulting directly from the offence. The considerations that are relevant to the offender include the offender’s culpability and degree of responsibility for the offence, the offender’s criminal history and the mitigating circumstances upon which the offender relies.[44]
[44][2018] VSCA 272 [55] (citations omitted).
When, as required by Kilic, one has regard to the facts of the applicant’s offending and of the applicant, which we have discussed at length above, the inescapable conclusion is that the offending is at the upper end of the spectrum of seriousness.[45] In particular: the offence was premeditated and motivated by vengeance; Shah suffered life-threatening injuries and has been left with permanent scars and ongoing psychological trauma; the applicant ambushed Shah and struck him repeatedly in the head and neck with a bladed knuckleduster; the applicant showed no remorse and had ‘guarded’ prospects of rehabilitation; and the applicant’s relevant criminal history illuminated his very high moral culpability and heightened the importance of specific deterrence and the protection of the community as sentencing considerations. As we have already stated, there was little that the applicant could rely upon in mitigation of sentence apart from his guilty plea. Viewed in this light, the sentence of 10 years’ imprisonment and the non-parole period of 7 years are stern, but not manifestly excessive.
[45]As stated at [29] above, the judge assessed the offending as ‘high in the level of seriousness’.
Conclusion
As the ground of appeal was reasonably arguable, we will grant leave to appeal against sentence. However, as that ground has not been made out, the appeal will be dismissed.
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