Hawre Sherwani v The Queen
[2017] VSCA 26
•23 February 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0162
| HAWRE SHERWANI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH and FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 February 2017 |
| DATE OF JUDGMENT: | 23 February 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 26 |
| JUDGMENT APPEALED FROM: | [2016] VCC 1000 (Judge Hampel) |
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CRIMINAL LAW – Appeal – Sentencing – Manifest excess – Recklessly causing serious injury – Sentence of six years’ imprisonment – Non-parole period four years – Membership of outlaw motorcycle gang relevant sentencing consideration – Premeditated attack – Attack in concert with co-offender – Attack continued while victim on ground – Broken arms and multiple facial injuries suffered – Applicant had significant history of violence – Current sentencing practice – Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237; Nam Son Nguyen v The Queen [2016] VSCA 332, cited – No inappropriate relativity between cases referred to and impugned sentence – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC with Mr J P O’Connor | Theo Magazis & Associates |
| For the Crown | Ms G Coghlan | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
FERGUSON JA:
The applicant pleaded guilty to one charge of recklessly causing serious injury. The applicant was sentenced to six years’ imprisonment, with a non-parole period of four years.[1] The applicant seeks leave to appeal against his sentence, on the ground that the sentence imposed is manifestly excessive.
[1]The 6AAA statement noted that, if not for the plea of guilty, the applicant would have been sentenced to a term of seven years’ imprisonment with a non-parole period of five years.
Circumstances of offending
The victim, DS, was the manager of a smash repairs business in Collingwood. On 21 July 2014, the applicant attended the premises and asked to speak to DS. Another employee informed the applicant that DS was not at the premises and the applicant stated that he would return later in the day.
At approximately 2:37 pm DS arrived at the premises and parked inside. The applicant approached DS and shook his hand. A male co-accused also entered the workshop area and began punching DS to the head. DS fell to the ground and attempted to cover his head in order to protect himself. The applicant and his co-accused continued to punch and kick him for approximately 45 seconds. DS lay motionless in the foetal position as he was kicked to the upper body, arms and head.
The applicant and co-accused left before police arrived. The victim was transported to hospital by ambulance. He sustained two broken arms requiring surgery and the insertion of pins and rods, as well as multiple facial injuries.[2] The victim did not cooperate with police and was subsequently unable to be located by police.
[2]DPP v Sherwani [2016] VCC 1000 [5] (‘Reasons’).
The offending was captured on CCTV. CCTV ‘stills’ were circulated and the offenders were recognised by a police officer who was a member of the Echo Task Force. As was noted by the sentencing judge, the Echo Task Force was formed in January 2011, with the objective of responding to outlaw motorcycle gang-related crime. Fingerprint analysis identified the applicant and his co-accused.
On 31 July 2014 a search warrant was executed at the applicant’s residence and a pair of black tracksuit pants with white stripes, a pair of ASIC runners and a grey hooded windcheater were located, matching the clothing worn by the offender on the CCTV footage. The applicant and co-accused were arrested and charged the same day. The applicant made no admissions. The applicant was released on bail on 18 September 2014. On 4 April 2016 bail was revoked.
The applicant was originally committed for trial on charges of intentionally cause serious injury in circumstances of gross violence, and intentionally cause serious injury and recklessly cause serious injury as alternative charges. One month before the trial was due to commence, the prosecution accepted a plea of guilty to recklessly cause serious injury. The sentencing judge did not treat that as a late plea of guilty, as the applicant had offered to plead guilty to recklessly cause serious injury from an early stage but that offer had been rejected by the prosecution.
The judge was told by the prosecutor on the plea that it had been agreed that the applicant should be sentenced on the basis that he was ‘aware of the fact that the assault was going to occur’ but ‘was not aware that the extent of the assault was going to eventuate as it did’. In conformity with that agreed fact, the judge said in her sentencing remarks that while the applicant accepted that he had participated in the assault, it was ‘without knowledge of or agreement as to the extent of violence which was ultimately exacted on the victim’.[3]
[3]Ibid [10].
As the applicant’s counsel acknowledged during oral argument, the applicant was sentenced for a premeditated assault but that there had been no agreement that the offenders would use the degree of violence that they did. On appeal the applicant submitted that it was to be inferred from the agreed facts that the applicant thought that ‘materially less severe injuries’[4] would be inflicted. No complaint is made that her Honour failed to approach the matter in the way now submitted, but no such submission had been made on the plea. On the plea counsel for the applicant, contrary to the agreed facts, had at one point submitted that the assault was spontaneous and unplanned.
[4]The phrase used by counsel for the applicant in oral argument.
In accordance with the agreed facts and the charge that the serious injuries were caused recklessly, the judge did not sentence on the basis that the degree of violence actually employed or the severity of the injuries that resulted had been premeditated. Having regard to the facts that emerged during the plea, to which we shall refer, we doubt whether her Honour could have made a finding that the applicant had thought about the injuries that the victim would receive from the planned assault.
The judge had been referred to the report of Mr Cummins, a consulting clinical and forensic psychologist engaged by the applicant in which he said that the applicant had remained ‘tight lipped’ about the reasons for the planned assault. His counsel informed the judge that he also was unable to obtain any instructions from the applicant on that issue.
Her Honour noted that the applicant had a ‘significant history of violence for a person who was only 23 at the time of the commission of this offence.’[5] The applicant had a number of relevant prior convictions, including a conviction for two charges of unlawful assault for which he was fined an aggregate of $700; and a conviction for recklessly cause injury for which he was fined $1000. There were also a number of charges, including robbery, dealt with by the Children’s Court.
[5]Reasons [14].
Relevantly, the applicant was on bail at the time of this offending. He had been charged with unlawful assault and released on bail two months prior to the current offending. He was subsequently convicted in August 2014 and fined.
The sentencing judge considered that the real issue of concern was the applicant’s reasons for his involvement in the offending.[6] The prosecution position on the plea was that the applicant was a member of the Comancheros. The applicant had completely denied any involvement with the gang to Mr Cummins. Counsel for the applicant informed the judge that this passage from Mr Cummins’ report was consistent with the applicant’s instructions to him. The applicant’s denial on the plea of any association with the Comancheros took the prosecution ‘by surprise’.[7] Her Honour allowed an adjournment of the plea in order for the prosecution to have the opportunity to present evidence of his gang involvement to the Court. The prosecution indicated that the matter was of significance not only for the plea but because they proposed to call the applicant as a witness on the trial of the co-offender.
[6]Ibid [31].
[7]Ibid [38].
Her Honour considered that membership of an outlaw motorcycle gang and participation in gang-related activity would be a relevant sentencing consideration.[8] Her Honour said:
At one level it could be said to be of little moment: you were either involved in this assault as a member of outlaw motorcycle gang involved in a beating relating to outlaw motorcycle gang activity, or you were prepared to lend yourself to an assault in company against a man to whom you bore no grudge and at the behest of others. On the other hand membership of an outlaw motorcycle gang and participation in gang-related activity is a relevant sentencing consideration. In addition, consideration had to be given to the reliability of other matters recounted by you to Mr Cummins and relied upon by him for the purposes of forming the opinions that he did as a result of that becoming a contested issue.[9]
[8]Ibid [35].
[9]Ibid.
Upon resumption of the hearing, detailed evidence in the form of two police statements was tendered, which plainly established the applicant’s involvement with the Comancheros. The evidence included statements made by the applicant to various persons that he was a member of or associated with the gang. The evidence was summarised in her Honour’s sentencing remarks.[10] Counsel for the applicant did not seek to cross-examine either of the police officers. Thereafter the applicant’s association with the gang between 2012 and 2015 was not disputed but the applicant’s counsel maintained that her Honour should not act upon the evidence of his involvement after early 2015. As the sentencing remarks make clear however, her Honour informed the applicant’s counsel that she would not accept unsupported assertions from the Bar table that he was not associated with the gang after early 2015.
[10]Ibid [39]–[41].
Her Honour’s unchallenged findings and view as to the relevance of his association with the Comancheros was as follows:
Those who associate with gangs as you have, who participate in violence by reason of allegiance to a gang and in accordance with its dictates as you appear to have done, or who are prepared to lend their brute force to gang members to exact violence on another as is the alternative explanation open here, must know that they will be sternly punished. A civilised community cannot and does not condone the conduct of those who consider themselves to be above or outside the law. This sentence must show that you are not above the law. The sentence must act as a deterrent to you personally. In addition to your violent criminal history and the circumstances of this offending, the lies you told your lawyers and Mr Cummins about your association with the Comancheros and which on your instructions were put to this court have shown a contempt for the law. You demonstrate that you were even as late as May and July of this year prepared to say and do what you wanted without regard for the truth, the laws of this country or the rights of others. That reflects back on the findings I make in respect of the offending.[11]
[11]Ibid [58] (emphasis added).
In her sentencing remarks her Honour stated that she found the credibility of the applicant’s account was ‘impaired’ and approached the opinions of the psychologist, Mr Cummins, with ‘real caution’.[12] Her Honour rejected Mr Cummins’ findings that the applicant suffered from chronic adjustment disorder with mixed disturbance of emotion and conduct. She did not accept that the applicant presented as being relatively immature and as having a dependent personality style or as being relatively easily led.[13] Her Honour rejected the finding that the applicant had an anger management problem,[14] noting that even if the applicant did suffer from an anger management problem, that ‘on any analysis this was calculated cold-blooded violence.’[15] Finally her Honour did not accept Mr Cummins’ findings that the applicant did not present as having an antisocial personality disorder or style, noting that Mr Cummins did not conduct any tests using any of the generally accepted and scientifically validated assessment tools often used for such purposes.[16]
[12]Ibid [47].
[13]Ibid [49]–[50].
[14]Ibid [51].
[15]Ibid [52].
[16]Ibid [48].
None of these findings is challenged.
Her Honour accepted that the applicant had endured a difficult and unsettled childhood,[17] and that the applicant was entitled to give regard to the delay in disposing of the matter taken into account.[18] Her Honour however rejected a submission that a combined custodial sentence with a Community Corrections Order could be within range. No submission was advanced on appeal that such a disposition was open.
[17]Ibid [28].
[18]Ibid [18].
During the course of his oral submissions, as well as in the written submissions, senior counsel for the applicant enumerated the mitigating and aggravating features said to have been referred to in her Honour’s reasons. They were that the applicant had entered his plea of guilty at an early stage;[19] the delay in having the case disposed of;[20] the fact that the applicant was on bail at the time of the commission of the offending;[21] his relevant prior convictions, noting that the applicant had not previously been sentenced to any term of imprisonment;[22] the fact that both specific and general deterrence were important sentencing considerations;[23] and that her Honour had ‘guarded prospects for [his] rehabilitation’.[24] As we have noted, no issue was taken with any of these findings. The written case however made no explicit reference to the aggravating circumstance of the applicant’s role on behalf of the Comancheros and it was not mentioned during the course of the applicant’s oral submissions.
[19]Ibid [9] and [11].
[20]Ibid [18].
[21]Ibid [13].
[22]Ibid [12]–[14].
[23]Ibid [15], [30] and [58].
[24]Ibid [57].
The Crown and applicant each provided a table of 12 cases (annexed to this judgment), which were said to be comparable for the purposes of sentencing in the current matter. We note that a number of the decisions in both tables were not appellate decisions, and have necessarily been given less weight.[25] Both the applicant and the Crown were content to rely on each other’s appendix, and drew the Court’s attention to a number of cases from each schedule.
[25]R v Pham (2015) 325 ALR 400 [29].
The applicant submitted that when consideration is given to ‘current sentencing practices’ as revealed by the comparable cases, it cannot be said that a sentence of six years was within the range of appropriate sentences. Senior counsel for the applicant referred to the observations of Redlich JA in Ashdownv The Queen,[26] that ‘cases are likely to be comparable where the objective seriousness of the offender’s conduct is similar to that of the subject offence’.[27] The similar features of the ‘like’ cases which the applicant drew upon were that the offending could be seen as a ‘continuing’ and ‘premeditated’ attack, the victim became unable to defend him
or herself; the attack did not include any weapons, and the injuries were not life threatening, and did not result in permanent residual injuries.
[26](2011) 37 VR 341.
[27]Ibid 400 [174].
The applicant’s schedule of cases was said to reflect offending of this nature and attracted sentences of between three to seven years, the higher sentences being for more serious offending or for offenders who had significant prior criminal history. The schedule also included cases where combined terms of imprisonment with an onerous CCO attached were imposed.
The applicant also sought to distinguish his offending from the offending in the Crown’s schedule of cases. Senior counsel for the applicant submitted that the Crown’s schedule reflected sentences of a similar nature to that of the applicant’s, rather than offending of a similar nature. The sentences in the Crown’s case all involved similar periods of imprisonment, sitting around the five to six year mark, with some cases involving more serious types of offending (ie with a weapon), more serious injuries, or offenders with significantly different prior criminal histories.
Some brief consideration of the important function which the High Court has said comparable cases play in the task of sentencing was undertaken by this Court in Director of Public Prosecutions (Cth)v Thomas,[28] in the following passage:
French CJ, Keane and Nettle JJ stated in R v Pham that comparable cases served a twofold purpose: the first, that such decisions ‘provide guidance as to the identification and application of relevant sentencing principles’; the second, to decide whether they yield ‘discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence’. Bell and Gageler JJ were to further observe in Pham that the ‘reasonable consistency’ to which the joint reasons in Hili refer is consistency with respect to sentencing outcomes.
These observations were summarised in the recent decision of this Court in Nam Son Nguyen v The Queen, where Redlich JA (with whom Tate and Whelan JJA relevantly agreed), referring to the two purposes stated in Pham, said:
These purposes advance the requirement of reasonable consistency. They advance the underlying value of equality under the law and the search for unifying principles. By the requirement that a discretionary decision must be made in conformity with well settled principles, the law promotes consistency in decision making and diminishes the risk of arbitrary and capricious adjudication.[29]
[28][2016] VSCA 237.
[29]Ibid [173]–[175].
Redlich JA in Nam Son Nguyen v The Queen further said:[30]
Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators. Manifest inadequacy or excess is usually demonstrated when an appropriate relativity is absent between the nature of the offending and matters personal to the offender, and sentences imposed in the most closely comparable cases. Thus for example, in Dao v R Nettle JA (as he then was) emphasised that the consistency stated in Wong required that the impugned sentence be in step with ‘relevant comparators’.[31]
[30][2016] VSCA 332.
[31]Ibid [72].
There were a significant combination of features of the applicant’s offending which informed the applicant’s degree of criminality. He, in company with his co-offender, planned to assault the victim. He did so either as a member of, or at the behest of, the Comancheros motorcycle gang with which the applicant had an association. He acted in concert with his co-offender in actively inflicting the serious injuries which the victim sustained. His attack continued while the victim lay motionless on the ground. It resulted in the victim having both of his arms broken, requiring pins and rods, as well as multiple facial injuries. He was not remorseful for his conduct. He committed the offence whilst he was on bail on a charge involving violence. Despite his age, he had a considerable history of violence. His prospects of rehabilitation were ‘guarded’. These factors meant that the principles of general and specific deterrence and denunciation assumed particular importance.
We are unpersuaded that there is an inappropriate relativity between the cases to which we have been referred and the impugned sentence. When one has regard to the unchallenged facts found by the judge which inform the objective gravity of the offence, and the personal circumstances of the applicant mentioned in the preceding paragraph, the submission is unsustainable that the cases cited by the applicant are relevant comparators which compel the conclusion that the sentence is excessive let alone manifestly so.
As has been consistently reiterated by this Court, in order for the ground of manifest excess to succeed, it must be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. It is only if the sentence is found to be ‘unreasonable or plainly unjust’ that the challenge of manifest excess succeeds. The sentence must be more than ‘very heavy’ for the ground of manifest excess to be made out, as the High Court observed in R v Pham.[32]
[32](2015) 325 ALR 400.
In our view, it has not been demonstrated that the sentence imposed fell beyond a sound exercise of the sentencing discretion.
Leave to appeal must be refused.
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Annexure – Schedule of cases provided by the applicant
| Case | Charges | Description of RCSI offence | Plea | Key Mitigating/Aggravating circumstances | Sentence | |
| 1 | West and Beyer v The Queen [2014] VSCA 36 | 1 x RCSI | Both offenders punched victim repeatedly to face and head and continued to kick victim to back and ribs while he was on the ground. Victim suffered four fractured ribs, fractured vertebra, broken nose, internal bleeding and collapsed lung. | G | Early guilty pleas. Level of planning — one offender lured the victim out of his house to where other offender was waiting. Sustained attack continued after victim fell to the ground. Brazen wholly unprovoked attack carried out in broad daylight. One offender (West) had significant prior convictions, including for violence. Other co-offender had fewer prior convictions and remorse. | West TES: 6y NPP: 4y Beyer TES: 5y NPP: 3y Offenders’ sentence appeal dismissed |
| 2 | DPP v Wac [2016] VCC 594 | 1 x RCSI | During a fight, offender stabbed victim with screwdriver penetrating brain and causing brain injury. | G | Relative youth (25). Disadvantaged background Serious prior violent offending Profound and enduring effect on victim. | TES: 5y NPP: 3y6m |
| 3 | DPP v Ater [2015] VCC 1367 | 1 x RCSI | Offender took several swings at victim with a knife, and hit victim to side of the head, where knife became lodged. Victim suffered fractured skull, subdural haemorrhage. Offender then attacked by victim’s associate and suffered fractured skull. | G | Grave injuries inflicted. Offender armed himself with a knife that had been in victim’s possession. Extensive relevant priors for violent offences. Early guilty plea. | TES: 5y NPP: 3y |
| 4 | Stewart v The Queen [2015] VSCA 368 | 1 x RCSI 1 x Robbery 1 x Affray | In an unprovoked and sustained attack, offender and accomplices kicked and punched victim to the head, upper body and leg, continuing to do so after victim was knocked to the ground. Victim suffered broken leg and broken left ankle. | G | Deprived and traumatic upbringing. Cognitive and psychological difficulties (but moral culpability not reduced, prison time not more burdensome). Prior convictions for violent offending. | TES: 7y (4y on RCSI charge) NPP: 4y6m Offender’s appeal against sentence dismissed. |
| 5 | The Queen v Hastings [2015] VSC 444 | 1 x RCSI | Offender proposed, arranged and executed a plan whereby victim would be lured to an isolated location by offender and assaulted by co-offender. Victim beaten by co-offender with baseball bat while on the ground and suffered skull fractures, bruising and swelling to brain, bone fragments embedded in brain. Injuries life threatening and caused ongoing significant neurological problems. | G | ‘Protracted savagery’ of co-offender’s actions not part of offender’s agreement with co-offender. Early plea. Sentencing judge unable to infer any remorse. No prior convictions. Mental health condition likely to increased burden of imprisonment. | TES: 4y NPP: 2y3m |
| 6 | Raveche v The Queen [2015] VSCA 99 | 1 x RCSI 1 x Affray | Offender kicked victim in torso, and stomped on his head while victim was on the ground, causing fractured skull and intracranial injuries. | G | Relatively young offender (aged 23). Early plea. Very serious injuries, including brain damage. Prior for intentionally cause serious injury. Victim lying defenceless on ground when kicked in head. | TES: 3y 8m NPP: 1y 9m (aggregate sentence) Offender’s appeal against sentence dismissed. |
| 7 | Mogoai and Alexander v The Queen [2014] VSCA 219 | 1 x RCSI 1 x Affray | Both appellants repeatedly punched victim causing multiple facial fractures. | G | Unprovoked attack. Relative youth (both aged 21) Early pleas. Significant physical and psychological ramifications for victim, but effects not permanently disabling. Both appellants had a prior conviction for RCSI in Children’s Court. | Both offenders received: TES: 30 months (29 months attributable to RCSI offence) NPP: 12 months Offenders’ appeal dismissed. |
| 8 | DPP v Russell (2014) 44 VR 471 | 1 x RCSI 1 x Affray 1 x Recklessly cause injury | Offender punched victim in jaw, causing fracture of jaw, pain and emotional trauma. | G | Young offender (aged 21). Offender trained martial arts fighter aware of strength of punch and probable effect. Prior for recklessly causing injury. Injury fell within mid-range. Reasonable prospects of rehabilitation. | Resentenced after successful Crown appeal to: TES: 3y (2y6m on RCSI charge) NPP: 1y9m |
| 9 | Baldwin v The Queen [2015] VSCA 299 | 1 x RCSI | In response to being punched by victim, offender stomped on victim’s face and kicked him in lower back and face several times, causing rib fractures, bilateral pneumothorax, and haematoma. Injuries potentially fatal but no lasting effects. | G | Attack on already incapacitated victim. History of violence and non-compliance with non-custodial orders. No planning involved and acted in response to aggression from victim. | Resentenced by Court of Appeal to 21 months’ imprisonment with CCO of 2 years. |
| 10 | Anthony v The Queen [2016] VSCA 22 | 1 x Aggravated burglary 1 x RCSI | Offender and three accomplices entered victim’s home, victim punched more than 20 times, sharp instrument used to slice into his right calf. | G | Long and relevant criminal history. Exceptional family hardship. | TES: 5y (18 months on RCSI charge) NPP: 2y 8m Application for leave to appeal against sentence refused. |
| 11 | DPP v Cameron [2016] VCC 878 | 1 x RCSI 1 x Aggravated burglary 1 x criminal damage | Offender struck victim to face with metal baseball bat, continued to hit victim with bat as victim fled, and after victim fell to the ground. Victim suffered fractured elbow and nasal bone. | G | Offender had disruptive childhood and issues with drug abuse. Priors for recklessly cause injury and assault. Offending breached a CCO. Plea at earliest opportunity. Unprovoked and relentless attack over approximately five minutes. | 23 months’ imprisonment (12 months on RCSI charge) followed by two and a half year CCO. |
| 12 | Graeske v The Queen [2015] VSCA 229 | 1 x RCSI | During a football match, offender punched the victim, whom he had pinned down, repeatedly to the face and kneed him to the face two or three times. Victim suffered nasal fractures, fracture of right orbit, medial wall fractures. | G | Young offender (21). Prior convictions for violent offending. Genuine remorse. Offender required effective psychological treatment to address causes of offending. | 12 months’ imprisonment followed by CCO of 3 years, imposed on resentence after successful offender’s appeal. |
Annexure – Schedule of cases provided by the Crown
Case Charges Description of RCSI offence Plea Key mitigating/aggravating
circumstancesSentence for RCSI 1 Konamala v R [2016] VSCA 48 RCSI x 2 and armed robbery Accused was one of four men who robbed a jewellery store. Taser and hammer used. Children present. G Accused was a 31 year old male at the time of the offending. He had no priors. 5 years and 4 years 2 DPP v Preston [2015] VSC 402 RCSI (and defensive homicide on two separate indictments) A shooting which related to a drug debt. Shots fired into the legs of the victim. The offending was carried out purely for money. G Accused was a 42 year old male with relevant priors. There was no victim impact statement. It was accepted that there were some prospects for rehabilitation. 5 years 3 Ball v R [2014] VSCA 226 RCSI and 2 x defensive homicide Stabbings which occurred in the context of a neighbourhood dispute. G Accused was a 33 year old male at the time of the offending. Significant Verdins issues. The accused was mentally ill when he committed the offences. Some remorse. Only one relevant prior. 5 years 4 DPP v Koch [2014] VCC 30/4/14 RCSI Altercation between friends who were drinking. Victim beaten. Accused did not start the fight. Axe handle used. NG Accused aged 55 years. Prior relevant convictions. Guarded prospects for rehabilitation. Delay. Difficult life. 5 years and 3 months 5 Marrah v R [2014] VSCA 119 RCSI, rape and threat to kill Violence by male partner towards female partner. Punching, kicking, choking and banging head on floor. G Accused was a 48 year old male at the time of the offending. Prolonged assault. Intervention order in place. 6 years 6 DPP v Shelby [2014] VCC 16/6/14 RCSI Unprovoked attack on the street. Victim was punched and fell, hitting his head. G Accused was 37 years old at the time of the offending. Extensive relevant priors. Dislocated childhood. Prospects of rehabilitation “only fair at best”. 5 years 7 Pollard vDPP [2015] VSCA 5/3/15 RCSI Unprovoked attack on the street by the accused and an unknown male involving punching and kicking. G Accused was a 22 year old male at the time of the offence. Relevant priors. Finding of remorse. Finding that the accused’s prospects for rehabilitation were reasonable. Slow recovery of victim. 6 years 8 DPP v Nuttall [2014] VCC 2151 RCSI and ICI Argument in a pub resulting in the accused smashing a full bottle of wine on the victim’s head. In a later fight between the two the accused produced a knife and cut an artery in the victim’s neck resulting in a stroke. G Accused was a 37 year old male at the time of the offending. Relevant priors. Some moderation of sentence as a result of impairment of mental function. Serious violent offender. 5 years 9 R v Alioglu [2013] VSC 179 RCSI and ICSI Attack on partner. Child injured defending her mother (RCSI). Child victim cut with a knife from elbow to wrist. G Accused was a 56 year old male. He had three relevant priors. The court concluded that he had poor rehabilitation prospects. 5 years 10 DPP v Dunne [2013] VCC 17/9/13 RCSI After an earlier assault the accused attacked the female victim and set her on fire using an accelerant. The victim suffered burns to 5% of her body. G Accused was a 31 year old male at the time of the offending. Remorse accepted. Relevant priors. 5 years 11 DPP v Charif [2013] VCC 27/9/13 RCSI Unprovoked attack on a tram with a knife. Injury to thumb and neck of victim. G Accused was aged 33 years at the time of sentence. Culpability reduced due to personal background. Verdins principles engaged. Some relevant priors. Finding of remorse. Some prospects of rehabilitation. 5 years 12 DPP v Sabljic [2012] VCC 27/3/12 RCSI Unprovoked attack in the beer garden of a hotel. Accused pushed victim backwards and punched and kicked him as he lay on the ground. G
Accused was aged 35 years at the time of the offending. Some remorse. Relevant priors (including manslaughter in similar circumstances at the same pub). Concerns regarding rehabilitation. 6 years
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