Islam v The Queen - [2017] ACTCA 10

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Islam v The Queen
Citation:	[2017] ACTCA 10
Hearing Date:	9 November 2016
DecisionDate:	24 March 2017
Before:	Penfold, Elkaim, North JJ
Decision:	The appeal is dismissed.
Catchwords:	APPEAL – JURIDISICTION, PRACTICE AND PROCEDURE – Appeal against sentence – recklessly inflicting grievous bodily harm – whether sentence was manifestly excessive – whether sentencing judgment was affected by errors of fact – whether sentencing judge erred taking into account incomplete pre-sentence report – assistance to be provided to self-represented litigants – whether sentencing judge erred in calculating sentence – whether sentencing judge erred by taking into account irrelevant considerations – whether sentencing judge erred by failing to take into account relevant considerations
Legislation Cited:	Crimes Act 1900 (ACT), ss 19, 20 Crimes (Sentencing) Act 2005 (ACT) ss 35, 66, 72
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Dalton v The Queen [2015] ACTCA 48 Delaney v R; R v Delaney [2013] NSWCCA 150; 230 A Crim R 581 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Kenny v Ritter [2009] SASC 139; 52 MVR 360 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Islam v The Queen [2013] ACTCA 10 House v The King [1936] HCA 40; 55 CLR 499 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Abbott [2007] VSCA 32; 170 A Crim R 306 R v Davies (unreported, Supreme Court of the ACT, Burns J, 17 July 2013) R v Laipato (unreported, Supreme Court of the ACT, Nield AJ, 16 September 2010) R v Laipato (No 2) [2014] ACTSC 363 R v RC (unreported, Supreme Court of the ACT, Burns J, 19 October 2012) R v Yuen (unreported, Supreme Court of the ACT, Penfold J, 31 May 2013) Robinson v R [2006] NSWCCA 192; 162 A Crim R 88 Sampson v De Haan [2016] ACTSC 327 Schwalm v R [2012] ACTCA 43 The Queen v Williams [2014] ACTCA 30
Parties:	Isa Islam (Appellant) The Queen (Respondent)
Representation:	Counsel The Appellant appeared on his own behalf Mr J White (Respondent)
Solicitors ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 19 of 2015
Decision under appeal:	Court: Supreme Court of the ACT Before: Burns J Date of Decision: 14 April 2015 Case Title: The Queen v Islam Court File Number: SCC 282 of 2014

Penfold J:

Introduction

I have had the opportunity to read the judgment of Elkaim and North JJ in draft, and agree with their Honours’ conclusion that the appeal must be dismissed.

In relation to the appellant’s application to adduce further evidence on appeal, I agree with their Honours’ approach to that application, and with their subsequent treatment of the version of the facts put by the appellant.

I also agree with their Honours’ approach to, and conclusions about, appeal grounds (d), (e), (i), (j), (k), (m), (n), (p), (q), (r), (s), (t), and (u). There are some comments that I wish to add about the other appeal grounds.

Appeal ground (b)

The primary judge’s reference to the appellant having been incarcerated in the Alexander Maconochie Centre (AMC) since 2011 does appear to have been an error; it does not appear that the appellant has been held anywhere other than the AMC since he was remanded in custody shortly after the 2009 offending. However, as Elkaim and North JJ point out, the sentence imposed and the non-parole period set by the primary judge make it clear that his Honour was well aware that the appellant had been in custody since 2009; there is no substance to this appeal ground.

Appeal ground (c)

I have more sympathy than the primary judge had with the appellant’s submission that he was not willing to talk to Ms Akyol-Quinn for the purposes of the pre-sentence report (PSR), because his previous interactions with Ms Akyol-Quinn had left him with a perception that she was biased against him. While I appreciate that Corrective Services, like most other parts of the justice system, is not particularly well-resourced, I also consider that there must be some scope for addressing the occasional genuine clashes between corrections officers and the offenders or alleged offenders they deal with.

It is not unknown for this court to hear claims by prisoners which raise the clear possibility of a communications failure at some point in the PSR processes; it is much less common for the court to be able to discover where that communications failure took place. In this case, however, Ms Akyol-Quinn gave evidence in the sentencing hearing of the appellant’s claim that she was biased, and of the appellant’s request for someone else to interview him for the PSR, as follows:

12.03.15, P20, lines 28-36.
MR ISLAM: Yes, did I say to you that you were biased against me?---Yes, you did.
Thank you. Did I also say to you that I would be happy for someone else from the programs probation parole to come out and conduct that pre-sentence interview?---Yes, you did.
Do you know the reason why someone else didn’t come out and conduct the interview in the three or four weeks after that interview?---No.

Thus, it does not seem to have been in dispute that:

(a)the appellant refused to be interviewed by Ms Akyol-Quinn but said that he would take part in an interview conducted by another officer; and
(b)that no further interview was arranged.

It is not at all clear why no further interview with the appellant was arranged, but it is also not clear why, as his sentencing date approached, the appellant did not pursue Corrective Services about a further interview. This is particularly notable given that the PSR provided by Ms Akyol-Quinn was dated 16 December 2014, and seems to have been provided to the appellant well before the sentence hearing in fact began in March 2015. Even at that point, the appellant did not object to the court’s reception of that PSR, and nor did he ask the primary judge to adjourn the hearing and order a further PSR to be prepared by another corrections officer.

In the circumstances of this case, I would not necessarily treat a refusal to attend a PSR interview with a particular corrections officer as showing an “attitude of defiance”, but nor would I see finalising the sentencing without a full PSR as any kind of sentencing error.

For the purposes of the appeal, I am satisfied that:

(a)there was enough information before the primary judge to address the lack of a complete PSR; and
(b)there was enough information before the primary judge about the appellant’s disciplinary record while in custody, and about the limited rehabilitation progress made by the appellant since he had been in custody, to justify his Honour’s conclusion that the appellant had not achieved any significant rehabilitation in that time (which was the ultimate conclusion his Honour drew from the appellant’s refusal to speak to Ms Akyol-Quinn).

Accordingly, the appellant has not established error in the primary judge’s approach to the absence of a detailed PSR.

Appeal ground (l)

As explained by Elkaim and North JJ, this ground of appeal depends on a selective quoting by the appellant of the reasons of the plurality in Markarian v The Queen [2005] HCA 25; 228 CLR 357. As their Honours point out, the plurality in the High Court said that “careful attention to maximum penalties will almost always be required”. The appellant, however, extracted only their Honours’ comment in Markarian at [31] that:

it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it.

The significance of that comment is found in the facts of that case and the approach adopted by Hulme J in the NSW Court of Criminal Appeal, which was described by the plurality as follows:

23Hulme J, the appellant argued, then engaged in an impermissible arithmetical process after rejecting what has been called an approach by way of instinctive synthesis. His Honour proceeded by referring to a maximum penalty of fifteen years, reducing that period by a third because the appellant's role was of a lesser kind than that of Caccamo, making a further reduction of 25 per cent on account of the utilitarian value of the plea and contrition, increasing the sentence by eighteen months to two years because of the further offences, and taking into account various other factors pointing in different directions, the prospects of rehabilitation, deterrence, the security of the community, and the double jeopardy arising by reason of a Crown appeal.

What the High Court was criticising in the proposition extracted by the appellant was not Hulme J’s attention to maximum penalties, but his engaging in a process of starting with a maximum penalty and making various deductions from and additions to that period in order to arrive at the ultimate sentence.

Appeal grounds (a), (f), (g), (h) and (o): manifest excess and the weight given to sentencing factors

In Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy), the High Court made it clear at [24] that complaints about the weight attributed to particular factors by a sentencing judge do not invoke an error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499.

This was explained in The Queen v Williams [2014] ACTCA 30, in which the Court of Appeal (Refshauge, Penfold and Gilmour JJ) made lengthy comments about the “manifest inadequacy” ground argued by the Crown in that appeal. After addressing (and rejecting) Crown submissions to the effect that manifest inadequacy or manifest excess may be established by pointing to errors made by the sentencing judge, the Court referred to the decision of the High Court in Bugmy, saying:

13. ... at [24], [the plurality] went on:
Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence. Plainly enough the Court of Criminal Appeal disagreed with the sentence imposed by Judge Lerve and favoured a more severe sentence. The difference between the Court of Criminal Appeal’s assessment of the appropriate sentence and Judge Lerve’s assessment may be explained by saying that Judge Lerve gave too little weight to some factors and too much weight to other factors. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for Judge Lerve. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by Judge Lerve was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant’s subjective case. The power could only be engaged if the Court was satisfied that Judge Lerve’s discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards. [citations omitted]

14. The plurality in fact made it clear that within a range of sentences for the offence, the weight to be given to evidence and to the various purposes of sentencing is a matter for the sentencing judge, and emphasised that the Court of Appeal was not empowered to impose a new sentence because it would have weighted different considerations differently. It was only empowered to do so if the Court of Appeal was satisfied that the discretion had miscarried because in the result, the sentencing judge imposed a sentence that was below the just range of sentences. The statements by the plurality in our view specifically disclaim that the other grounds of appeal were “particulars” of manifest inadequacy to the extent that they identified errors made by the sentencing judge, as distinct from identifying matters that were relevant in the sentencing decision and that pointed to the sentence actually imposed being below the just range of sentences.
15. Gageler J said at [53]:
The Director’s three “additional grounds of appeal” to the Court of Criminal Appeal were not clearly framed to invoke either category of appellate intervention. The first and second were framed in terms of a failure “properly” to determine or acknowledge relevant considerations. They would be capable of invoking the first category of appellate intervention only if the asserted impropriety rose to the level of a failure to take those considerations into account. As demonstrated in the joint reasons for judgment, they were not analysed by the Court of Criminal Appeal in those terms. The third was framed only in terms of “weight”. It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category.

16. His Honour noted that the appeal ground complaining about weight pointed at most to a circumstance which might be indicative of error in the second category referred to in House v The King (1936) 55 CLR 499 (House). His Honour did not suggest that the appeal ground concerned pointed to an error which might have caused the manifest inadequacy said to permit an inference of error.
17. The point made by the Court of Appeal in R v Ang was that, while particular aspects of the circumstances of the offence or the offender, or other applicable sentencing considerations, might be relevant to establish manifest inadequacy or manifest excess, they were not relevant as indications of the nature of the inferred error made by the sentencing judge, but as circumstances by reason of which the ultimate sentence might have been expected to be significantly higher or lower (see R v Ang at [22] to [25]).
18. In any event, it is not possible to assess, from a sentence which has been set following the instinctive synthesis that is required, what weight has been given to particular elements so as to determine that too little or too much weight has been given to any particular factor, unless the sentencing judge specifically says what weight has been given to it. This was not the case here, where the Crown did not identify any such remarks by the Chief Justice. As is made clear in House, any such errors can only be inferred, without being identified, by showing that the result is manifestly inadequate (or excessive).
19. Indeed, once it is conceded, as it was by the Crown at the hearing, that an error as to weight is not an error of the first kind described in House, which may permit re-sentencing even in the absence of manifest inadequacy or excess, then the sentencing judge’s alleged errors or considerations become irrelevant; what remains relevant is the matters that he or she was required to consider and the level of sentence that those matters could reasonably have been expected to produce.

As noted by the High Court, complaints about the weight attributed to a particular factor relevant in the sentencing process do no more than, possibly, identify particulars of the complaint of manifest excess (or inadequacy). The appellant, as an unrepresented litigant, may be forgiven for overlooking this aspect of a claim of manifest excess or inadequacy, but it is surprising that the respondent did not mention it.

Instead, in written submissions in relation to a different aspect of the appellant’s complaint of manifest excess, the respondent Crown cited the comments of the ACT Court of Appeal in Balthazar v The Queen [2012] ACTCA 26 at [61] as follows:

It is not enough on appeal that the members of the appeal court would have imposed a different sentence. As Maxwell P, with whom Eames JA and Habersberger AJA agreed, pointed out in R v Abbott (2007) 170 A Crim R 306 at 309; [14]:
[T]he ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances. That is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.

The Crown said, relying on Maxwell P’s remarks:

The power for this Court to substitute a sentence will only be enlivened if it can be shown that no reasonable sentencing judge would have imposed the sentence.

In Miles v The Queen [2016] ACTCA 54 at [2] to [5] I said:

2. Their Honours at [61] rely on the formulation of Maxwell P who, in R v Abbott [2007] VSCA 32; 170 A Crim R 306 at 309; [14], said that:
The ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances.

3. With great respect to Maxwell P, I am not convinced that this is the correct test for dealing with a claim of manifest excess (or, presumably, manifest inadequacy). First, since this test was propounded by his Honour in 2007, the High Court has had ample opportunity to adopt this formulation, which seems to originate in the administrative law area, but to my knowledge it has so far resisted the temptation. For instance, in Bugmy v The Queen [2013] HCA 37; 249 CLR 571, the High Court, in summary, confirmed the explanation of manifest excess or inadequacy as identifying a sentence that was outside the range of available sentences. At 588; [24], French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ referred to the sentencing discretion miscarrying because the sentencing judge imposed a sentence “that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards”, and at 597; [52], Gageler J said that to show that the sentence was manifestly inadequate, the appellant had to establish “that the sentence was outside the range of available sentences in all the circumstances of the case”.
4. I also note that Maxwell P’s formulation of the test, to the extent that it requires an appeal court to identify the sentencing officer as unreasonable rather than his or her decision as simply wrong, may have the possibly unintended effect of imposing an additional and unjustifiable inhibition on an appeal court examining a claim of manifest excess or inadequacy.
5. In my view, it is a formulation appropriately avoided in favour of the High Court’s explanations of how such claims should be dealt with. See also Celeska v Langlands [2014] ACTSC 211, at [10], and the comments of Refshauge J in Law v Ilievski [2016] ACTSC 291 at [23] to [26].

Since 2007, the Victorian Court of Appeal has revisited the approach taken by Maxwell P in R v Abbott [2007] VSCA 32; 170 A Crim R 306 (Abbott). In a paper presented to the ANU Public Law Weekend, 28 October 2016, by President Maxwell, his Honour referred to his comments in Abbott, quoted above, and to comments from a colleague:

that the phrase “no reasonable sentencing judge” was much more pejorative than we meant to be. So we reconsidered the formulation and concluded that the same point could be made, without in any way detracting from the stringency of the test, by expressing it as a conclusion that the sentencing decision was “not reasonably open in the circumstances of the case”.
That has now become the accepted criterion in our Court both for manifest excess [Greatorex v The Queen [2016] VSCA 136 [38]] and – on a Crown appeal – for manifest inadequacy [DPP V Karazisis (2010) 31 VR 634, 662-3 [127]; and see McPhee v The Queen [2014] VSCA 156 [10]-[11]]. ...
In their joint judgment in [R v Pham [2015] HCA 39; 90 ALJR 13 at 24 [56])], Bell and Gageler JJ accepted the Victorian formulation as a correct statement of the issue which the manifest excess ground raises.

See also Sampson v De Haan [2016] ACTSC 327 at [25] and [26].

Having regard to the material I have cited, I agree with the conclusions of Elkaim and North JJ that the appellant’s sentence was not manifestly excessive. I agree with that conclusion having considered, among other things, the factors to which, in the appellant’s opinion, the primary judge had given too little or too much weight, but not the weight given to those various factors by the primary judge; I also consider that there can be no doubt that the sentence imposed was reasonably open to the primary judge.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.

Associate: Nishadee Perera

Date: 24 March 2017

Elkaim and North JJ:

Introduction

On 18 December 2013, whilst serving a custodial sentence at the Alexander Maconochie Centre (AMC), the appellant, Isa Islam, was involved in an incident involving a fellow detainee.

On 2 December 2014, the appellant entered a plea of guilty in the Magistrates Court to a charge of recklessly inflicting grievous bodily harm on a fellow detainee: s 19 of the Crimes Act 1900 (ACT) (the Act). On 3 March 2015, the appellant maintained his guilty plea before the Supreme Court.

The sentence that the appellant was serving at the time of offending was as follows (the existing sentence):

Incident Date	Charge	Maximum Sentence	Sentence	Non-Parole Period
04.07.09	Intentionally inflict grievous bodily harm s 19 Crimes Act 1900	15 years imprisonment	9 years imprisonment: 04.07.09 – 03.07.18	4.5 years: 04.07.09 – 03.01.14

On 14 April 2015, the primary judge sentenced the appellant as follows (the primary sentence):

Incident Date	Charge	Maximum Sentence	Sentence	Non-Parole Period
18.12.13	Recklessly inflict grievous bodily harm s 20 Crimes Act 1900	13 years imprisonment	6 years imprisonment: 04.07.18 – 03.07.24	9.5 years: 04.07.09 – 03.01.2019

The primary judge reduced the sentence from 7 years to 6 years imprisonment on account of the plea of guilty, representing a reduction of just under 15%.

Pursuant to s 72 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), the sentence for the offence of recklessly inflicting grievous bodily harm, because that offence was committed in custody, must be served consecutively with the existing sentence of imprisonment in the absence of a direction under s 72(3). The aggregate head sentence imposed upon the appellant was therefore 15 years imprisonment (the aggregate sentence).

Pursuant to s 66 of the Sentencing Act, the non-parole period for the existing sentence was automatically cancelled by the imposition of the primary sentence. A new non-parole period was set of 9 years and 6 months. The non-parole period was therefore reset from 50% of the existing sentence to 63% of the aggregate sentence.

The Appeal

The appellant now appeals against the primary sentence imposed on him. The appellant is a self-represented litigant. The appellant relies on twenty grounds of appeal that are set out in Notices of Appeal dated 4 May 2015, 7 May 2015 and 12 June 2015.

The appellant’s grounds of appeal may be summarised as follows:

(a)That the sentence imposed was manifestly excessive;
(b)That the primary judge erred in stating that the appellant had been incarcerated since 2011;
(c)That the primary judge erred in accepting an incomplete pre-sentence report;
(d)That the primary judge erred in failing to make inquiries about the absence of case law presented by the self-represented appellant;
(e)That the primary judge erred with respect to discrepancies between the appellant’s version of events and the witness statement of Shaun Burke, a witness to the offence;
(f)That the primary judge erred in failing to give weight or give sufficient weight to the subjective circumstances and prospects of rehabilitation of the appellant;
(g)That the primary judge erred by giving undue weight to the victim’s injuries;
(h)That the primary judge erred in failing to give sufficient weight to the appellant’s expressions of remorse;
(i)That the primary judge erred by finding that the offending was unprovoked and from behind, and that the victim had not had the chance to defend himself;
(j)That the primary judge erred by finding the offending was in the upper middle range of objective seriousness in light of the decision in R v RC (unreported, Supreme Court of the ACT, Burns J, 19 October 2012);
(k)That the primary judge erred by applying a discount of 15% for the appellant’s guilty plea;
(l)That the primary judge erred by deriving a reduced sentence from the applicable maximum penalty;
(m)That the primary judge erred by misinterpreting the evidence and the facts of the case;
(n)That the primary judge erred by failing to comment on where the offending fell on the broad continuum of objective seriousness;
(o)That the primary judge erred by failing to take into account relevant considerations, or, by failing to give those relevant considerations sufficient weight;
(p)That the primary judge erred by taking into account irrelevant considerations;
(q)That the primary judge erred by failing to take into account the unreliability of the evidence of Shaun Burke, a witness to the offending;
(r)That the primary judge erred by failing to take into account R v Laipato (No 2) [2014] ACTSC 363 and R v Yuen (unreported, Supreme Court of the ACT, Penfold J, 31 May 2013);
(s)That the primary judge erred by failing to give weight or sufficient weight to the history between the appellant and the victim;
(t)That the primary judge erred by making mistakes of fact in his sentencing remarks; and
(u)That the primary judge erred by finding that the offending ceased due to the intervention of another detainee.

The Facts

The facts outlined below are largely based on the facts set out in the primary judge’s sentencing remarks. Save in respect of discrepancies in the evidence referred to in the grounds of appeal and discussed later in these reasons for judgment, that version of facts was not contested on the appeal.

The appellant has been a detainee at the AMC since 2011. The victim of the present offence was also a detainee at the AMC. The appellant and the victim had a long running dislike of each other, due at least in part to the appellant’s belief that the victim had attempted to defraud him of a significant sum of money.

On 18 December 2013, at about 9:05am, the appellant entered a yard at the AMC where the victim was sitting on a plastic chair. There was a verbal disagreement between the appellant and the victim.

The appellant was then walking away from the victim when the victim made a comment to the appellant about the latter’s failed bid for parole. The appellant then approached the victim and pulled him backwards off the chair, using his right fist to punch the victim three times in the face. The victim was rendered unconscious, lying flat on his back on the floor of the yard. While the victim was unconscious, the appellant raised his leg and stomped with force on the victim’s face. At this point, another detainee intervened and the appellant desisted from his attack.

The victim was admitted to hospital and remained there for a period of four weeks, where he spent five days in the intensive care unit. He was diagnosed with facial fractures to the eye socket, cheekbone and upper jaw and nose. These injuries required reconstructive surgery including the insertion of plates and screws. Although he has reported ongoing memory loss issues and personality changes following the attack, there is no clear evidence of brain damage.

The Sentencing Hearing

The sentencing hearing was conducted on 3 and 12 March 2015.

At the sentencing hearing, a statement of facts, pre-sentence report, the appellant’s criminal history, three photographs of the victim in hospital, a report of Dr Vanita Parekh regarding the victim’s injuries, a victim impact statement of Darren Lee Cassidy, a report of Dr Laine Hart regarding possible brain injuries suffered by the victim, the sentencing judgment of Mathews AJ regarding the appellant’s previous sentence, and the appellant’s disciplinary record whilst incarcerated were tendered.

The author of the pre-sentence report, correctional officer Vanessa Akyol-Quinn gave evidence on sentence. The appellant did not give evidence on sentence.

The Sentencing Judgment

The primary judge outlined the facts relating to the offending, which are set above.

The primary judge then set out his conclusion in respect of the offending. His Honour found that the appellant’s attack on the victim was vicious and without any real provocation. He noted that it was “particularly reprehensible that [the appellant] stomped on the face of the victim while he was unconscious and helpless on the ground.” His Honour also noted that the “victim was seated at the time [the appellant] commenced [his] attack making it impossible for him to defend himself.” His Honour found that the attack was not premeditated, but that it was also not completely spontaneous, as there was a brief period of time for the appellant to consider his actions between the victim’s remark about parole and the appellant turning around to the place where the victim was seated.

The primary judge then outlined the seriousness of the victim’s injuries. His Honour found that although the injuries were not the most serious injuries that would come within the description of grievous bodily harm, they were nevertheless very serious.

The primary judge next addressed the need for specific deterrence in relation to the appellant. His Honour stated:

This attack occurred while [the appellant was] already serving a lengthy term of imprisonment for an offence of significant violence which strongly suggests the need for any sentence I impose to be such as to deter [the appellant] from committing further offences of violence.

The primary judge also addressed the need for general deterrence, stating:

Violence in prison cannot be tolerated and sentences imposed by the court for serious offences of violence within prison must be such as will be likely to deter others from committing such offences.

In relation to the appellant’s history during the period of his incarceration, the primary judge noted that no complete pre-sentence report was available because the appellant had declined to participate in the preparation of the report. The appellant’s refusal was based on his belief that the corrections officer assigned to prepare the report was biased against him. His Honour found that that was not a justifiable reason for declining to participate, and that the appellant’s lack of cooperation “suggests an attitude of defiance inconsistent with any significant rehabilitation having been achieved during [the appellant’s] period of incarceration.”

The primary judge also noted the appellant’s behavioural issues during the period of his incarceration as follows:

On the available evidence I am also satisfied that [the appellant has] been the subject of a number of reportable incidence [sic] and episodes of discipline in the Alexander Maconochie Centre during [his] current sentence. I accept the evidence of the author of the short presentence report that [the appellant has] consistently refused to participate in assessments for the violent offender program and that [the appellant has] been subject to disciplinary action in the Alexander Maconochie Centre because of [his] behaviour. Because of this [the appellant has] been placed in the management unit at the Alexander Maconochie Centre.
While [the appellant has] completed a number of tertiary and other courses during [his] time in the AMC these do not directly address the core of [his] offending behaviour, being [his] propensity to violence. I am unable to say that [he is] presently a good candidate for rehabilitation.

The primary judge then considered the appellant’s plea of guilty, and concluded as follows:

I accept that [the appellant’s] plea of guilty had significant utilitarian value and it relieved the victim of having to give evidence. I note that [the appellant] very recently on 7 December last year wrote a letter of apology to [the] victim which I accept demonstrates a degree of remorse for [his] actions. [The appellant’s] plea of guilty may also be seen as reflecting a degree of remorse. Balanced against that is the fact that the prosecution case against [the appellant] is overwhelmingly strong such that [the appellant] had no real option but to plead guilty. Balancing all considerations I’ll reduce the sentence that would otherwise been [sic] appropriate by 15 per cent to reflect [the appellant’s] plea of guilty.

In relation to the appellant’s personal circumstances, the primary judge noted that the appellant was 42 years old and had been adopted from a very early age. The appellant joined the RAAF at the age of 16, and left in 2001 after a car accident in which he sustained serious head injuries. It was noted that after the accident, the appellant was told by friends that his personality had changed and that he had become more aggressive and angry. After leaving the military, the appellant spent some time in the Middle East where he converted to the Islamic faith. The primary judge also noted the sentencing judge’s remarks regarding the prior offence, in which Mathews J said that the appellant had been described as a model prisoner at the AMC and that he was a good prospect for rehabilitation at that time. The primary judge was satisfied, however, that that is no longer the case. Later in his sentencing remarks, the primary judge concluded that an increase in the proportion of the non-parole period to the aggregate head sentence was warranted.

Having addressed the subjective factors relevant to the appellant, the primary judge then considered previous cases in which sentences were imposed for similar offences. His Honour noted that while none of those cases were directly applicable, the closest was the case of R v RC, which his Honour summarised as follows:

In R v RC, the offender stomped on the head of the victim on a number of occasions causing a large extradural hematoma requiring surgery. This was a potentially life threatening injury. The offence was committed in company. The offending [sic] was 29 years old and had an extensive criminal history including numerous matters of violence. He had an extensive history of illicit substance abuse commencing when he was eight years old. The offender was found not to be remorseful for his actions. Sentence was reduced by approximately 15 per cent to reflect his plea of guilty. He was sentenced to 6 years’ imprisonment reduced from 7 years in order to reflect his plea of guilty. A non-parole period of 4 years and 3 months was set. I note that this sentence was upheld on appeal. I further note that the maximum penalty for the offence at that time was only 10 years’ imprisonment.

The primary judge then turned to s 72 of the Sentencing Act which provides that a sentence for an offence that occurs in custody is to be served consecutively with any other sentence unless the court orders otherwise. The primary judge concluded that there was no reason to make an order for the sentence to be served concurrently or part concurrently.

The appellant was then sentenced to 6 years’ imprisonment, creating an aggregate head sentence of 15 years’ imprisonment. The primary judge set a non-parole period of 9 years and 6 months.

Application to adduce further evidence on appeal

The appellant sought to adduce further evidence on appeal before this Court, namely, further evidence from Shaun Burke, a fellow detainee and a witness to the offending.

The appellant stated in oral submissions that the evidence he sought to adduce from Mr Burke was relevant to the primary judge’s conclusions on the objective seriousness of the offending. The appellant contended that there were two discrepancies between the account of the offending provided in the primary judge’s remarks and the account provided in the appellant’s statement of facts produced for the hearing below.

The primary judge’s remarks were based on a statement of facts provided by the respondent (the respondent’s statement). That statement had been provided to the appellant prior to the hearing below. However, no witnesses were called in relation to the nature of the offending on account of the appellant’s plea of guilty. The respondent’s statement relevantly said:

18. The offender subsequently left A-pod and SC1 and began walking away along a path. As he did so, the victim made an unknown comment towards the offender.
19. The offender immediately returned to SC1 A-pod and into the mesh enclosed smoking area. The victim was sitting on his chair at this time.
20. The offender approached the victim and pulled him backwards off the chair. The offender used his right fist to punch the victim three times to his face.

The appellant’s statement of facts relevantly stated:

We argued and swore at each other, as I turned to leave again he said ‘Hows [sic] your parole going?’
I lifted Mr Cassidy to his feet and punched him three times in the head, I also stomped down once on his face as I turned. One of the other inmates told me to leave and I did.

The primary judge summarised the offending as follows:

[The appellant] then commenced to walk away from the victim at which time he made a comment to you about your recent failed bid for parole. You approached the victim and pulled him backward off the chair and used your right fist to punch him three times to the face.

The first proposition contended for by the appellant was that the provocation to which he reacted took place immediately before the assault commenced, whereas the respondent’s statement suggested that the appellant had left the enclosure where the victim had been seated. The appellant submitted that on his version of the facts, the offending was objectively less serious, as the appellant did not have the time to consider his actions before the offending commenced.

The second proposition contended for by the appellant was that he lifted the victim to his feet prior to punching him, whereas the respondent’s statement of facts stated that the victim had been attacked from behind. The appellant submitted that on his version of the facts, the victim had the opportunity to defend himself.

The appellant stated in oral submissions that he believed that the evidence of Mr Burke would corroborate the appellant’s statement of facts. The appellant contended that on that version of the facts, the objective seriousness of the offending was lower because the victim had the opportunity to defend himself.

The respondent submitted that admitting Mr Burke’s evidence would have no utility, as that evidence could not impugn any of the primary judge’s findings. The gravamen of the offending, so it was argued, was not how the offending was initiated but the way in which it ended, with the appellant stomping on the face of the unconscious victim. The respondent also submitted that the appellant had had the opportunity to produce this evidence before the primary judge and did not do so. Further, the appellant’s statement of facts was before the primary judge, and although the appellant raised another discrepancy at the hearing below, he did not mention the discrepancies he now seeks to raise on appeal.

The respondent’s submission on the utility of admitting Mr Burke’s evidence should be accepted. The version of the facts that the appellant contends for are not materially different to the version of the facts stated by the primary judge. The key aggravating factors of the appellant’s offending were that the assault was unprovoked, that the victim had no opportunity to defend himself, and that the assault continued after the victim was rendered unconscious. We do not understand the appellant to challenge the existence of this last factor, by reference to Mr Burke’s evidence or otherwise.

Regarding provocation, the appellant’s statement of facts states that he had turned to leave before the victim made the comment about parole. It follows that the appellant must then have turned back to the victim before assaulting him. Even if this movement lasted for only a matter of seconds, it would still be consistent with the primary judge’s finding that there was a “short period of time” between the comment and the assault for the appellant to consider his actions. Further, the comment by the victim cannot be regarded as a provocation for an assault of this level of severity.

Regarding the victim’s opportunity to defend himself, the appellant submitted that on his version of the facts, that opportunity arose when the victim was pulled to his feet. But as was pointed out to the appellant at the hearing, the outcome of the assault demonstrated that any opportunity the victim had to defend himself was futile.

Regarding the second aggravating factor, the appellant’s statement of facts does not state the direction from which the appellant approached the victim. It merely states that the appellant lifted the victim to his feet. The respondent’s statement of facts expressly states that the victim was pulled backwards off his chair. When given the opportunity to raise any issues about the respondent’s statement of facts at the hearing before the primary judge, the appellant raised another issue, but did not refer to this issue. The primary judge was therefore entitled, on the evidence before him, to make the finding that the victim was attacked from behind.

Thus, each of those aggravating factors were present even on the appellant’s version of the facts.

For these reasons, the appellant’s application to adduce further evidence was therefore refused. However, in the course of these reasons for judgment, the Court will examine whether or not the sentence was manifestly excessive or in any other way inappropriate on the basis of the version of the facts put by the appellant in the last three sentences of his statement of facts, as set out above in [56].

Grounds of Appeal (e), (i) and (m)

Under ground of appeal (e), the appellant alleged that the primary judge erred by failing to resolve the discrepancies between the evidence of Mr Burke, upon which the respondent’s statement of facts appeared to be based, and the appellant’s own version of the offending. However, as explained above, the appellant’s version of the facts and the version of the facts stated by the primary judge are not materially different.

Under ground of appeal (i), the appellant alleged that the primary judge made an error of fact in finding that the assault was unprovoked, from behind, and that the victim could not defend himself. As stated above, it was open to the primary judge, on the evidence before him, to find that the victim was attacked from behind. Also as stated above, the appellant’s version of the facts do not establish that the assault was provoked, nor that the victim had the opportunity to defend himself.

Under ground of appeal (m), the appellant alleged that the primary judge erred in misinterpreting the evidence regarding the facts of the case. The appellant submitted that the appellant’s version of the facts was different from the statement of facts. As stated above, any differences between those versions of the facts were not material.

It follows that appeal grounds (e), (i) and (m) are not made out.

Grounds of Appeal (a), (f), (g) (h) and (o) – Manifest Excess

The appellant’s primary ground of appeal was that the sentence imposed was manifestly excessive (ground of appeal (a)). A number of the appellant’s other grounds of appeal are directed to the weight the primary judge gave to certain considerations. The Court has made observations about this sort of complaint in Islam v The Queen [2013] ACTCA 10 at [79]-[80]:

The complaint of insufficient weight in respect of each of these matters is, in essence a complaint that the sentence was manifestly excessive. It is not the function of an appellate court on a sentencing appeal to try to assess the weight given to individual factors. Such an approach is inconsistent with the approach to sentencing now mandated by the High Court, namely that sentencing is the process of arriving at a single result which takes due account of all the relevant factors, namely to arrive at an “instinctive synthesis” as set out in Wong v The Queen (2001) 207 CLR 584 at 611; [75].
As Button J, with whom Hoeben JA and Johnson J agreed, said in Hanania v The Queen [2012] NSWCCA 220 at [33]:
It seems to me that a ground asserting that a particular feature has not been given sufficient regard or sufficient weight by a sentencing judge is, in truth, a particular of a ground asserting that the sentence is manifestly excessive. That is because the ground accepts that some regard or weight was given to the factor, but asserts that it was insufficient. It seems to me that the only way that one can test whether a factor (to which regard or weight has indeed been given) was considered sufficiently, is by examining the sentence ultimately imposed. Such an approach leads to considerations of outcomes, not process.

Thus, grounds of appeal (f), (g), (h) and (o) are to be treated as particularisations of the complaint that the sentence was manifestly excessive. Under ground of appeal (f), the appellant alleged that the primary judge failed to give weight, or sufficient weight, to the appellant’s subjective circumstances and prospects of rehabilitation. Under ground of appeal (g), the appellant alleged that the primary judge erred by giving undue weight to the victim’s injuries. Under ground of appeal (h) the appellant alleged that the primary judge failed to give sufficient weight to the appellant’s expressions of remorse. Under ground of appeal (o) the appellant alleged that the primary judge failed to take into account relevant considerations, or failed to give those relevant considerations sufficient weight.

The principles applicable in an appeal alleging that a sentence imposed is manifestly excessive are well known.

In Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Gleeson CJ and Hayne J said at [6]:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non‑custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

The relevant principles have been conveniently summarised by this Court in Dalton v The Queen [2015] ACTCA 48 at [18]:

The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:
Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).
The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61].
In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].
It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].

The appellant contended that a number of matters supported the conclusion that the sentence imposed was manifestly excessive.

Subjective circumstances

The subjective circumstances that the appellant referred to in appeal ground (f) were that:

(a)he had completed a number of education programs whilst incarcerated, including
(i)the Cognitive Skills Course I and II, and Anger Management Course;
(ii)tertiary qualifications including a Bachelor of Arts majoring in English and Theology, a Masters in Business Administration, a Masters in Human Resource Management, and a Masters in Teaching English as a Second Language;
(iii)ongoing enrolment in a Phd program in Islamic studies;

(b)he was previously employed for 12 years in the RAAF; and
(c)he had been the subject of only one internal prison charge and one criminal charge whilst incarcerated.

The appellant submitted in relation to the subjective circumstances that the programs and tertiary qualifications he had completed whilst incarcerated addressed the primary cause of his offending, being his propensity towards violence. The appellant also submitted that the tertiary qualifications, and his 12 years’ service in the air force, would make him highly employable upon his release, thereby reducing the risk of recidivism. He submitted that his disciplinary record whilst incarcerated did not amount to a record of poor behaviour.

The primary judge had regard to each of the subjective circumstances referred to by the appellant. Regarding the courses and tertiary qualifications completed by the appellant, the primary judge said in his sentencing remarks: “Whilst [the appellant has] completed a number of tertiary and other courses during [his] time in the AMC these do not directly address the core of [his] offending behaviour, being [his] propensity to violence.” The primary judge further noted that the appellant had not participated in the violent offender program, a point that the appellant concedes.

The primary judge also referred to the appellant’s employment history, stating “[the appellant] joined the RAAF in 1989 at the age of 16 having completed year 10 of [his] schooling. [He] remained in the RAAF until 2001 completing [his] year 12 studies during that time.”

Regarding the appellant’s disciplinary record, the primary judge stated, “[the appellant has] been subject to disciplinary action in the Alexander Maconochie Centre because of [his] behaviour. Because of this [he was] placed in the management unit at the Alexander Maconochie Centre.” The primary judge concluded, “At the time [of his original sentence the appellant was] described as a model prisoner in the AMC. I am satisfied that is no longer the case.”

The weight to be given to individual factors is a matter for the sentencing judge. In the present case, the primary judge had regard to the subjective circumstances referred to by the appellant, and chose to give them less weight because of countervailing factors, including the irrelevance of the completed programs and tertiary qualifications to the offending, and the appellant’s less than model behaviour whilst incarcerated. The appellant has failed to show that the primary judge erred in adopting this course.

Remorse

Under ground of appeal (f), the appellant also referred to the fact that he had expressed remorse for the offending behaviour. The appellant referred to a letter of apology he had written to the appellant and his plea of guilty as expressions of his remorse.

Regarding the appellant’s remorse, the primary judge said, “I note [the appellant] very recently on 7 December last year wrote a letter of apology to [his] victim which I accept demonstrates a degree of remorse for [his] actions. Your pleas of guilty may also be seen as reflecting a degree of remorse.”

Thus, the primary judge had regard to the appellant’s expression of remorse. As with the subjective circumstances, the weight the primary judge chose to give to that expression of remorse was a matter for the sentencing judge.

Victim’s injuries

The appellant also challenged the weight given to the victim’s injuries (appeal ground (g)). The appellant submitted that there was no evidence of brain damage, no medical evidence of permanent physical injury and that the injury suffered by the victim was far from the worst regarding this type of offence. In support of the third contention, the appellant referred to R v Davies (unreported, Supreme Court of the ACT, Burns J, 17 July 2013) in which the victim lost an eye in an assault in a prison setting. He also referred to R v RC. However, his reference to R v RC appeared to be unrelated to the injury suffered by the victim. Accordingly, R v RC is considered below under ground of appeal (j).

The appellant’s submissions under this ground of appeal are not supported by the primary judge’s sentencing remarks.

The primary judge gave no weight to the possibility that the victim had suffered brain damage, stating:

[The victim] has reported ongoing memory loss issues and personality changes after this event although there is no clear evidence of brain damage.
[Emphasis added.]

Regarding the victim’s physical injuries, the primary judge stated:

[The victim] was diagnosed with facial fractures to the eye socket, cheekbone and upper jaw and nose. These injuries required surgical procedures by way of reconstructive surgery under general antiseptic including the insertion of plates and screws.

The primary judge then noted:

A victim impact statement was tendered which spoke of his ongoing severe jaw pain and fear caused by this attack.

Thus, the primary judge did not find that there was medical evidence of a permanent physical injury. Rather, he merely noted the victim’s reported ongoing pain.

Regarding where the victim’s injuries fell on the scale of possible injuries regarding this type of offence, the primary judge stated that:

Those injuries cannot be described as amongst the most serious injuries that would come within the description of grievous bodily harm but they are nevertheless very serious.

Thus, the primary judge did not find that the victim’s injuries were the most serious possible injuries for this offending.

Overall manifest excess

At a more general level, the ground of manifest excess requires that the appellant show that the sentence is plainly unjust having regard to all the relevant factors. In the present case, the respondent contended that a number of factors supported the sentence imposed by the primary judge. Firstly, the respondent submitted that the offending fell in the middle range of objective seriousness, having regard to the ultimate sentence of 6 years’ imprisonment (reduced from 7 years’ imprisonment due to the plea of guilty) where the maximum available sentence was 13 years’ imprisonment. The pertinent features of the offending included the appellant’s gratuitous stomp to the victim’s head when the victim was already unconscious, the fact that the offending occurred in the course of a custodial sentence and the extent of the injuries to the victim. Secondly, the respondent submitted that the appellant’s criminal history was not insignificant. Particular attention was drawn to the fact that the appellant had a previous conviction for intentionally inflicting grievous bodily harm, in addition to a previous conviction for assault occasioning actual bodily harm. Thirdly, the respondent submitted that the appellant had received a discount of 15% for his plea of guilty, which was appropriate in light of the strength of the prosecution case. Fourthly, the respondent submitted that the appellant’s prospects of rehabilitation were undermined by his violent tendencies and poor anger management, which had not been addressed by the prison’s violent offender program because of the appellant’s refusal to participate. Additionally, it was submitted, the appellant’s disciplinary record whilst incarcerated also had some bearing on his prospects of rehabilitation.

The primary judge properly had regard to those factors summarised by the respondent. On a fair reading of the sentencing remarks, it is clear that the primary judge engaged in a process of weighing the factors going both towards and against leniency. It is fundamental to the exercise of the sentencing discretion that it is for the primary judge to give weight to each factor as the judge sees fit. It cannot be said, having regard to all those factors, that the primary judge’s conclusion was either unreasonable or plainly unjust.

It follows that appeal grounds (a), (f), (g), (h) and (o) are not made out.

Grounds of Appeal (b) and (t) – Errors of fact

Under ground of appeal (b), the appellant alleged that the primary judge erred in fact by stating that the appellant had been incarcerated since 2011. As noted above, the appellant had in fact been incarcerated since 4 July 2009.

Under ground of appeal (t), the appellant alleged that the primary judge made several other errors of fact. Firstly, the appellant submitted that the primary judge erred when he stated that the appellant had joined the RAAF in 1989 at the age of 16, when the appellant was in fact aged 15. Secondly, the appellant submitted that the primary judge erred when he stated that the appellant had converted to the Islamic faith in the Middle East, when the appellant had actually converted at a mosque in Queensland. Thirdly, the appellant submitted that the primary judge erred in fact when he stated that the appellant had been placed in the management unit at the AMC due to disciplinary issues, whereas the appellant was housed in that unit for accommodation reasons only.

Ground of appeal (b) mischaracterises the primary judge’s remarks. The primary judge states that the appellant has been a detainee at the AMC since 2011, before immediately noting that the appellant’s existing sentence commenced on 4 July 2009. Contrary to the appellant’s submission, the impugned reference to 2011 is clearly a reference to the commencement of the appellant’s incarceration in a particular centre, namely, the AMC. In any case, if there were any error of fact in this regard, it would not have had any consequence on the outcome.

The first two errors of fact contended for under ground of appeal (t), relating to the appellant’s service in the RAAF and his conversion to the Islamic faith, have no bearing on the offending on 18 December 2013 or on the sentencing for that offence.

At the hearing below, Ms Akyol-Quinn, a correctional officer, gave the following evidence:

What’s been the nature of the management plan of Mr Islam? --- So Mr Islam has been housed in the management unit since 18 December, which was the day after committing the offence which is currently before the court…
So the management unit itself is a separate section compared to the general population, is that right? --- Yes.
…
If Mr Islam was cooperating and on good behaviour, would he be moved out of the management unit? --- Yes, there would be a plan for inter-place [sic] to reintegrate him into the sentenced units.

The appellant had the opportunity to cross-examine Ms Akyol-Quinn on this issue, but did not do so. In oral submissions before the primary judge, the respondent directly raised concerns about the appellant’s behaviour by reference to the fact that he had been placed in the management unit. The appellant was given the opportunity to reply to that submission. He did not dispute the reason for his placement in the management unit. There was, therefore, unchallenged evidence that the appellant had been placed in the management unit due to disciplinary issues.

It follows that appeal grounds (b) and (t) are not made out.

Ground of Appeal (c) – Taking into account incomplete pre-sentence report

Under ground of appeal (c), the appellant alleged that the primary judge erred by taking into account an incomplete pre-sentence report which was based on an incomplete interview with the corrections officer assigned to prepare the report.

As noted above, the primary judge found that the report was not completed because the appellant declined to participate in the interview, and that the basis for that refusal was the appellant’s perception of bias on the part of the assigned corrections officer. The primary judge concluded that this was not a justifiable reason for declining to participate, and that the appellant’s lack of cooperation “suggests an attitude of defiance inconsistent with any significant rehabilitation having been achieved during [the appellant’s] period of incarceration.”

The appellant disputed the primary judge’s explanation for the incomplete report, submitting that he had not in fact declined to participate in the interview, but had only expressed his wish that a different corrections officer conduct the interview. The appellant further submitted that the appellant’s request for a different corrections officer was not unreasonable given the appellant’s perception of a level of bias against him.

The report was received into evidence after the following exchange:

His Honour: Have you had an opportunity to read the pre-sentence report?
Mr Islam: My understanding was that there was no pre-sentence report, your Honour, because Ms Akyoi-Quinn who came in to do the pre-sentence report, I mention [sic] to her that I would rather have someone else do it because she prepared my previous pre-release report for parole.
His Honour: Well, there's a report which simply sets out the fact that you weren't prepared to engage in the process with her.
Mr Islam: Partially correct, Your Honour. My assertion is that I said I was more than happy for anyone else to do it, apart from her. I was expecting someone else to come and do it.

The primary judge’s sentencing remarks are consistent with the appellant’s version of events. The appellant declined to participate in the pre-sentence interview with the assigned corrections officer. That was the only material fact set out in the incomplete report that was provided. In taking into account the incomplete report, the primary judge acknowledged the appellant’s stated reason for that refusal. It was open for the primary judge to find that that was not a valid reason, and consequently that that refusal suggested an attitude of defiance.

The appellant’s complaint under this ground of appeal can also be understood as a complaint that no complete pre-sentence report was provided to the primary judge. As noted above, the appellant stated to the primary judge that he, the appellant, expected that another correctional officer would interview the appellant and produce a report.

The appellant also made reference in his notices of appeal to Schwalm v R [2012] ACTCA 43 per Refshauge J as follows:

No Pre-Sentence Report was prepared in this case. Ordinarily, of course, it is appropriate that a Pre-Sentence Report be prepared when there is a real risk that an offender will be sentenced to imprisonment.

The respondent submitted that the ordering of a pre-sentence report is not a pre-condition to the imposition of a term of incarceration. The respondent further submitted that the lack of a pre-sentence report is of no consequence as all the relevant subjective material was already before the primary judge. The appellant’s background and history, so it was argued, was accurately summarised in the sentencing remarks of Mathews AJ. The appellant’s contrite attitude towards the offending was recorded in the appellant’s oral and written submissions, which also provided detail of his attempts at rehabilitation and ongoing education.

The Court accepts the respondent’s contention. In the present case, a complete pre-sentence report would not have changed the outcome below. There was sufficient material for the primary judge to reach the conclusion that his Honour did.

It follows that appeal ground (c) is not made out.

Ground of Appeal (d) – Failure to make inquiries about the absence of case law

Under ground of appeal (d), the appellant alleged that the primary judge erred by failing to inquire of the appellant, as a self-represented litigant, why he had not submitted any case law on relevant sentencing principles.

The appellant submitted that such an inquiry would have revealed the fact that the appellant had no or intermittent access to legal databases until 2 April 2015, being a short period of time before the appellant was sentenced on 14 April 2015. The appellant further submitted that such a short and intermittent period of access to legal materials seriously prejudiced his ability to present his own case.

The principles relating to the duty of judicial officers to provide assistance to self-represented litigants has been summarised by the Full Court of the Supreme Court of South Australia in Kenny v Ritter [2009] SASC 139; 52 MVR 360 per Gray and Layton JJ at [23]:

These authorities clearly demonstrate that when the self-represented litigant is before the court, the judge must ensure that a fair trial takes place. In order to achieve this, the judge is required to assist the self-represented litigant. However, the judge must equally ensure that despite any assistance to the litigant in person, the perception of impartiality is maintained. In our view, the following principles emerge from the authorities discussed.
·     A litigant has a fundamental right to appear in person. When faced with a litigant in person, the court is under a duty to give such assistance to that litigant as may be required to ensure that there is a fair trial. The purpose of the assistance is to ensure that as far as possible, the disadvantage that litigants may suffer as a result of lack of representation is adequately addressed.
·     Although the duties of the court in relation to self represented litigants are discussed by numerous authorities, it is difficult to ascertain a common approach as to the manner and form in which assistance is provided which can be applied in practice to all circumstances. This is unsurprising bearing in mind the myriad of circumstances in which litigants may appear in person. However, the authorities do provide general guidance as to principles which can be applied by the courts.
·     Judicial assistance would include ensuring that unrepresented litigants are aware of their substantive and procedural rights, which in turn would depend upon the nature and circumstance of the case.
·     The degree and form of the judicial assistance required depends upon several factors, including the overall knowledge and skills of the litigant and the particular circumstances of the case.
·     Judicial assistance is to be limited to that which is necessary to diminish so far as possible the disadvantage that the unrepresented litigant will suffer when another party or parties are represented by a lawyer. It is a matter of redressing imbalance so far as possible but at the same time ensuring that the party who is represented is not thereby disadvantaged and thereby obtains less entitlements.
·     In order to provide assistance to redress any imbalance or disadvantage which may arise by reason of lack of legal representation, the court should first assess the degree to which an unrepresented person may require assistance. This is not to be an automatic assumption.
·     It is not part of the role of a judge to become an advocate for the unrepresented person; or stand in the shoes of counsel acting for that litigant; or unduly interfere with the conduct of the trial on the litigant’s behalf. Instead, the court has the difficult task of striving to achieve a balance between these seemingly conflicting duties to ensure that there is a fair trial.
·     The court at all times is under an obligation to maintain the appearance of impartiality and neutrality and not be seen to apply preferential rules to the self represented litigant to the disadvantage of the represented litigant.

There is evidence from the formulation of the grounds of appeal and from the way the appellant conducted the argument that he is a competent and intelligent person capable of researching and articulating the arguments necessary to advance his interests.

At the hearing before the primary judge, the respondent referred to four cases, including R v Davies. The appellant then stated:

Excuse me, your Honour, I agree with all that. The two cases I was going to bring up and I don’t know from (indistinct) gaol was the Davies case and Kai Nguyen [probably meant to be Yuen] which perhaps your Honour is familiar with, I’m not sure.

The appellant then explained the circumstances of the R v Yuen case as follows:

GBH assault in gaol where he I think there was a weapon involved, a vacuum cleaner pole.

The primary judge then stated:

My Associate will try and find it and perhaps the Crown can also try and find it and if possible provide me and also Mr Islam with a copy.

The case of R v Yuen, in which the offender, Kai Yuen, assaulted a fellow detainee using a metal vacuum cleaner pole, is discussed below under ground of appeal (r).

Following the hearing before the primary judge, two further cases were provided to the primary judge by the prosecution, after the appellant had sent a fax to the prosecution requesting that those cases be provided to the Court.

In those circumstances, there was no requirement for the primary judge to make inquiries about further cases that the appellant may have wished to provide to the Court. The appellant was clearly aware of his right to provide cases to the Court, and referred to two cases at the hearing. The primary judge expressly stated that the associate would attempt to provide the latter of those cases, which had not already been provided to the Court. The primary judge also asked the prosecution to find the case. Two further cases were forwarded to the Court by the prosecution upon the appellant’s request. The assistance provided to the appellant by the Court was appropriate, and it was not necessary for the primary judge to go further.

It follows that appeal ground (d) is not made out.

Ground of Appeal (l) – the Markarian issue

Under ground of appeal (l), the appellant alleged that the primary judge erred in the formulation of the sentence by looking first to a maximum penalty and then deriving a relevant sentence from it.

The appellant relied upon Markarian v The Queen [2005] HCA 25; 228 CLR 357 (Markarian), quoting partially from the reasons of Gleeson CJ, Gummow, Hayne and Callinan JJ at [31]. However, the full paragraph is set out below for completeness (the appellant’s quotation appears in italics):

It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case. That he used the maximum penalty impermissibly appears from his Honour's particular deference to it in this passage:
"Parliament cannot have intended that, other things being equal, the penalty for supplying more than 250 g should be less than for supplying that quantity."
[footnotes omitted]

The appellant’s reliance on the italicised portion of this passage from Markarian is misplaced. Reading the full passage, it is clear that the plurality considered that having regard to the maximum penalty is not only permissible, but will in most cases be required. A sentencing judge will only fall into error when sentencing is approached as a mathematical exercise. In the present case, the primary judge had regard to the maximum penalty. There is nothing in the sentencing remarks that suggests there was undue deference to the maximum penalty, or that his Honour used the maximum penalty in any way other than as a yardstick.

It follows that appeal ground (l) is not made out.

Grounds of Appeal (j) and (n) – Error in determining the objective seriousness of the offending

Under ground of appeal (j), the appellant alleged that the primary judge erred in regarding the offending as falling within the upper mid-range of objective seriousness.

Although the primary judge did not make an explicit finding on where the offending fell on the scale of objective seriousness, the appellant contended that the sentence imposed reflected a finding that the offending was in the upper middle range of objective seriousness. At the hearing, the appellant further explained that the basis for that submission was that the primary judge’s starting point was seven years’ imprisonment, where the maximum penalty for the relevant offence was 13 years’ imprisonment. That sentence, so it was argued, being greater than half of the maximum, was therefore in the upper mid-range.

The Court does not accept that submission. The sentence imposed fell squarely within the mid-range, which incorporates both the upper and lower mid-range. The sentencing scale is not so finely calibrated as the appellant suggests.

The appellant referred to the case of R v RC numerous times throughout his notice of appeal. As his submissions regarding R v RC related to the objective seriousness of the offending, that case can conveniently be dealt with here.

As noted by the primary judge in his sentencing remarks, the offender in R v RC was sentenced to 6 years’ imprisonment reduced from 7 years for stomping on the head of his victim. The appellant submitted that the offending in the present case was objectively less serious for a number of reasons, including that the offending in R v RC occurred in company. However, as the primary judge also noted, the applicable maximum penalty at the time of the offending in R v RC was only 10 years’ imprisonment, compared to the 13 year maximum in the present case. It follows that the primary judge did not consider that the appellant’s offending was of the same level of objective seriousness as the offending in R v RC.

Under ground of appeal (n), the appellant alleged that the primary judge erred by failing to comment on where the appellant’s offending fell within the broad continuum of objective seriousness.

In Delaney v R; R v Delaney [2013] NSWCCA 150, Hoeben CJ at CL said at [56]:

While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account.

In the present case, it is clear that the primary judge took account of the factors relevant to the objective seriousness of the offending. Those factors included whether or not the assault was premediated or provoked, the nature of the conduct and the extent of the victim’s injuries. Whilst the primary judge did not explicitly comment on where the offending fell on the spectrum of objective seriousness, it was not necessary for him to do so where he implicitly considered that matter.

It follows that appeal grounds (j) and (n) are not made out.

Grounds of Appeal (k) and (q) – Error in application of discount for plea of guilty and unreliability of evidence

Under ground of appeal (k), the appellant alleged that the primary judge erred in applying only a 15% discount to the head sentence in light of the appellant’s early plea of guilty because the primary judge relied upon a finding that the prosecution case against the appellant was overwhelmingly strong. Under ground of appeal (q), the appellant alleged that the primary judge erred by failing to take into account the unreliability of the evidence of Shaun Burke.

Section 35(3) and (4) of the Sentencing Act provide:

(3) The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence.
(4) However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong.

The appellant submitted that there were a number of factors that meant that the case against him was less than overwhelmingly strong. Firstly, the appellant referred to R v Yuen, in which the sentencing judge applied a 30% reduction to the head sentence for an early plea of guilty to a charge of intentionally inflicting grievous bodily harm, in circumstances where the offending was recorded on CCTV footage. Secondly, there was no CCTV footage of the offending. Thirdly, no correctional officers witnessed the offending. Fourthly, the only witnesses to the offending were fellow detainees. Regarding the third factor, the appellant referred to the common law principle that the evidence of prisoner informers is to be regarded as less reliable than other categories of witness. The appellant referred to Robinson v R [2006] NSWCCA 192; 162 A Crim R 88 at [2] per Spigelman CJ:

This ground of appeal was based on the proposition that the trial judge erred in failing to give a direction that in the absence of substantial confirmation by independent evidence, it would be “dangerous to convict” upon the evidence of prison informers. This was part of the form of direction approved by this Court in R v Clough (1992) 28 NSWLR 396 at 406.

The respondent submitted that the primary judge exercised the discretion in accordance with the intentions of the statute. The respondent referred to several factors that supported the conclusion that the case against the appellant was overwhelmingly strong. First, that fellow detainees were privy to the victim’s fear of the appellant prior to the incident. Second, that Mr Burke saw the appellant punch the victim in the face three times, and that the sounds of the punch were heard by another detainee, Mr Atkinson, and a correctional officer. Third, Mr Atkinson witnessed the appellant stomping on the victim’s face. Fourth, the appellant sustained injuries to the knuckles on his right hand, and blood was found on the appellant’s clothes that was identified as belonging to the victim.

The Court’s power under s 35(3) is discretionary. There is no requirement for the Court to impose a lesser sentence for a plea of guilty, but the Court is prevented from imposing a lesser sentence where the case against the offender is overwhelmingly strong. In applying the discount of 15%, the primary judge took into account the appellant’s expression of remorse and the utilitarian value of the guilty plea. Balanced against those considerations were the factors going to the strength of the prosecution case against the appellant. The fact that the primary witnesses, including Shaun Burke, were prison informants does not mean that their evidence should be entirely discounted. There was sufficient independent evidence to corroborate their accounts of the offending. It was open for the primary judge to conclude that those factors meant that the case was an overwhelmingly strong one. Consequently, it was proper for the primary judge to have regard to the strength of the prosecution case in applying a discount to the sentence.

It follows that appeal grounds (k) and (q) are not made out.

Ground of Appeal (p) – Taking into account irrelevant considerations

Under ground of appeal (p), the appellant alleged that the primary judge erred by taking into account irrelevant considerations.

The impugned consideration was expressed in the sentencing remarks as follows:

On the available evidence I am also satisfied that [the appellant] has been the subject of a number of reportable incidence [sic] and episodes of discipline in the Alexander Maconochie Centre during [his] current sentence.

The appellant submitted that the reference to reportable incidents and episodes of discipline was not permissible because such incidents are not subject to challenge or notice, and thus did not afford prisoners with procedural fairness.

At the hearing below, the appellant cross-examined Ms Akyol-Quinn regarding the appellant’s disciplinary record at the AMC. During cross-examination, Ms Akyol-Quinn referred to three incidents involving the appellant, on 14 February 2014, 17 June 2014 and 7 August 2014.

In relation to the 7 August 2014 incident, the appellant raised the following concern:

Your Honour, I mean my concern is this second incident on 7 August which the witness has brought up. I contend quite strongly that there was no charge or disciplinary breach, if there had been there would have been a hearing and I would have had restriction of privileges not (indistinct). It is possible for me to try and ask a witness to come out from the AMC correction staff and sort of can we dig down and see if my position is the correct one or the witness or would be your assertion that I wouldn’t necessarily gain or there’s too much either way in regard to sentence for this?

The primary judge replied:

It’s a matter for you ultimately. Is it potentially a point of some significance that you, according to this material, have continued or have, I should say, behaved in such a way as said in custody. That there are doubts about whether you have moved very much towards rehabilitation during the period that you have spent in custody.

The appellant’s objection regarding the 7 August 2014 incident was ultimately resolved by the primary judge in the appellant’s favour.

The 17 June 2014 incident, relating to a fight with another detainee resulting in the loss of privileges for 14 days, was unchallenged by the appellant.

The 14 February 2014 incident, relating to a physical altercation resulting in the imposition of a non-association order, was challenged by the appellant only on the basis of whether or not the incident led to a disciplinary charge in accordance with the AMC disciplinary policy and procedure.

The exchange between the appellant and the primary judge quoted above shows that the appellant was well aware that his disciplinary record might be taken into account when assessing his prospects of rehabilitation. The appellant did not raise any objection to that use of the material during the hearing below, nor did he challenge the substance of the 17 June 2014 and 14 February 2014 incidents. It was therefore open for the primary judge to have regard to the appellant’s disciplinary record, and his characterisation of that record as comprising reportable incidents and episodes of discipline was an accurate one.

It follows that appeal ground (p) is not made out.

Ground of Appeal (r) – Failure to take into account R v Laipato (No 2) [2014] ACTSC 363 and R v Yuen (unreported, Supreme Court of the ACT, Penfold J, 31 May 2013)

The appellant alleged in his notices of appeal that the primary judge erred by failing to take into account two cases which are relevant to the offence in question due to the circumstances and aggravating factors in those cases.

In Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:

53. Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases…
54. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303] – [305], Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned".
55. As the plurality said in Wong v The Queen (2001) 207 CLR 548 at [59]:
"[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were."

The appellant’s notices of appeal referred to R v Laipato (No 2) and R v Yuen. The respondent submitted that the former reference should be understood as a reference to R v Laipato (unreported, Supreme Court of the ACT, Nield AJ, 16 September 2010) as R v Laipato (No 2) is a judgment on a bail application. The Court accepts that submission and will proceed on that basis.

In R v Laipato, the offender was sentenced to four years’ imprisonment, reduced to three years for an early guilty plea, for recklessly causing grievous bodily harm. The sentencing judge relevantly set out the facts of the offending at [29] as follows:

… Mr Denis Casey and his partner, Ms Kim Peisley, went to the home and, after entering the home, Mr Denis Casey said to the offender and his friends, “Come on, digger, it’s time to leave. Get your shit and get out”. At this, the offender approached Mr Denis Casey and said to him, “What did you call me, nigger?”, to which Mr Dennis Casey replied, “No, I said digger. Now, get the fuck out of my house”. Then the offender set upon Mr Denis Casey, punching him three times to his head, rendering him unconscious and knocking him to the ground…

The sentencing judge then relevantly characterised the offending at [30] as follows:

The offender’s attack upon Mr Denis Casey was not planned. It was an explosive reaction to what the offender perceived to be a racial slur…

It appears that the appellant sought to rely on R v Laipato because it raised the issue of provocation. However, the sentencing judge in R v Laipato did not find that any provocation lowered the objective seriousness of the offending. Rather, the reference to the offender’s reaction to a perceived racial slur merely established that the assault was not premeditated. Thus, there is no general principle regarding provocation to be drawn from this case.

In R v Yuen, the offender was sentenced for two offences, being one count of murder, and one count of intentionally inflicting grievous bodily harm. The offence of intentionally inflicting grievous bodily harm was committed whilst the offender was remanded in custody in respect of the first offence. For the second offence, the offender was sentenced to six and a half years’ imprisonment.

The sentencing judge set out the facts of the grievous bodily harm offence as follows:

The grievous bodily harm offence was committed in June 2012, after Mr Yuen had been in remand custody for nearly two years. The victim, Amir Sarbandi, another inmate, was playing cards at a table in the common area of Remand Block B. Mr Yuen came out of his cell, took off his shirt, stretched, then picked up a metal vacuum cleaner pipe. He approached Mr Sarbandi from behind and hit him on the head with enough force to render him semi-conscious. Mr Yuen then hit Mr Sarbandi two or three times more in the head, and then hit him hard in the face. Mr Sarbandi did not respond or seek to guard himself from the blows.

The sentencing judge then relevantly characterised the offending as follows:

Both offences were objectively very serious, as well as deserving the description “cowardly”, in that each one involved an attack on an unsuspecting victim by Mr Yuen armed with a dangerous weapon. I can see no particular mitigating features in relation to either of them…

The sentencing judge then concluded as follows:

I assess the grievous bodily harm offence as being of at least mid-range seriousness.

R v Yuen does not offer a general statement of principle regarding sentencing. At its highest, the appellant’s reference to that case may be regarded as a submission that the primary judge should have had regard to it when considering cases where sentences have been imposed for similar offences. The primary judge is not required to refer to every such case relating to similar offences, though he did in fact refer to a number of like cases. Further, even if the primary judge had had regard to R v Yuen, it would not have made any material difference to the outcome. As the primary judge said in his sentencing remarks “[w]hilst these prior sentences provide some guidance as to sentences which have been imposed in the past none of them are directly applicable or directly equate to the current offence.” Similarly, the offending in R v Yuen does not directly equate to the present case, and therefore could offer no more than guidance to the primary judge.

It follows that appeal ground (r) is not made out.

Ground of Appeal (s) – failure to take into account history between the appellant and the victim

Under ground of appeal (s), the appellant alleged that the primary judge erred by failing to take into account the history between the appellant and the victim.

In the appellant’s written submissions to the primary judge, the appellant alleged that the victim had attempted to defraud him of significant amounts of money. Before this Court, the appellant submitted that the alleged fraud attempt was relevant to the consideration of provocation.

On the appellant’s own account, the offending occurred in response to a statement by the victim about the appellant’s failed bid for parole. The alleged fraud attempt was therefore irrelevant to the consideration of provocation.

It follows that appeal ground (s) is not made out.

Ground of appeal (u) – Mistaken finding as to why the offending ceased

Under ground of appeal (u), the appellant alleged that the primary judge erred by finding that the offending ceased due to the verbal intervention of another detainee, Wade Atkinson.

The appellant submitted that he was a much larger man than Mr Atkinson, and therefore it was not credible that the appellant would have ceased his assault due to the verbal intervention of a much smaller man. It was far more likely, so it was argued, that the appellant ceased to assault the victim due to his own volition. The latter account, so it was submitted, was directly relevant to the consideration of the objective seriousness of the offending.

The primary judge described the end of the assault as follows:

Another detainee then intervened and [the appellant] desisted and left the area before going to kitchen area and washing [his] hands.

The appellant himself described the end of the assault in the appellant’s statement of facts as follows:

I lifted Mr Cassidy to his feet and punched him three times in the head, I also stomped down once on his face as I turned. One of the other inmates told me to leave and I did.

In the appellant’s notice of appeal, he described the end of the assault as follows:

The attack itself last [sic] an extremely short time (less than five seconds), and as soon as another inmate (Mr Atkinson) asked the defendant to leave – he complied.

The sentencing judge’s remarks are consistent with the two versions contended for by the appellant. The primary judge ascribed a degree of agency to the appellant, evidenced by the verb “desisted”. However, the critical factor was that another detainee arrived on the scene, and spoke to the appellant, before the assault ceased. The primary judge, therefore, did not make an error of fact.

It follows that appeal ground (u) is not made out.

Orders

For the above reasons, the appeal is dismissed.

I certify that the preceding one hundred and fifty two [152] paragraphs numbered [24]-[175] are a true copy of the Reasons for Judgment of their Honours Elkaim and North JJ.

Associate: Hannah Bowcock

Date: 24 March 2017