Jawahiri v The Queen
[2021] VSCA 287
•20 October 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0199
| RAPHEL JAWAHIRI | Appellant |
| v | |
| THE QUEEN | Respondent |
S EAPCR 2021 0117
| HAKAN ESER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 October 2021 |
| DATE OF JUDGMENT: | 20 October 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 287 |
| JUDGMENTS APPEALED FROM: | [2020] VCC 1351 (Judge Tinney); [2021] VCC 1182 (Judge Gucciardo) |
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CRIMINAL LAW — Appeal against sentence — Intentionally causing serious injury— Manifest excess — Appellant sentenced to eight years and six months’ imprisonment with non-parole period of five years and six months — Appellant 20 years old with no criminal history — Whether sufficient weight given to appellant’s youth — Mitigating weight of youth counterbalanced by objective gravity of offending — Sentence not inconsistent with current sentencing practices given comparable cases — Crimes Act 1958 s 16; Azzopardi v The Queen (2011) 35 VR 43, Director of Public Prosecutions v Lawrence (2004) 10 VR 125, Nash v The Queen [2013] VSCA 172 applied — Appeal dismissed.
CRIMINAL LAW — Appeal — Application for leave to appeal against sentence — Recklessly causing serious injury — Applicant sentenced to seven years’ imprisonment with non-parole period of five years — Whether judge was entitled to depart from agreed facts in sentencing — Impact of history of childhood deprivation on moral culpability — Whether judge erred in finding no sufficient causal connection between applicant’s deprived background and intellectual disability and offending — Crimes Act 1958 s 17; R v Storey [1998] 1 VR 359, R v Verdins (2007) 16 VR 269, Bugmy v The Queen (2013) 249 CLR 571 applied — Application for leave to appeal granted — Appeal allowed — Applicant resentenced to four years and six months’ imprisonment with non-parole period of two years and six months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant (Jawahiri) | Mr P J Smallwood with Mr C Grant | Marcevski Lawyers |
| For the Applicant (Eser) | Ms G F Connelly | Greg Thomas, Barrister & Solicitor |
| For the Respondent | Ms R L Harper | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA:
Introduction
Raphel Jawahiri pleaded guilty in the County Court on 7 August 2020 to one charge of intentionally causing serious injury. He was sentenced by Judge Tinney to eight years and six months’ imprisonment with a minimum term of five years and six months to be served before parole eligibility.
Hakan Eser pleaded guilty in the County Court on 23 April 2021 to one charge of recklessly causing serious injury. He was sentenced by Judge Gucciardo to seven years’ imprisonment with a minimum term of five years to be served before parole eligibility.
The tables below set out the full details of both sentencing exercises.
Jawahiri
Charge on Indictment K12832259 Offence Maximum Sentence 1. Intentionally cause serious injury (contrary to Crimes Act 1958 s 16) 20 years’ imprisonment 8 years 6 months’ imprisonment Total effective sentence: 8 years 6 months’ imprisonment Non-parole period: 5 years 6 months’ imprisonment Pre-sentence detention declaration pursuant to Sentencing Act 1991 s 18(1): 302 days 6AAA statement 11 years’ imprisonment with a non-parole period of 8 years’ imprisonment
Eser
Charge on Indictment K12832239 Offence Maximum Sentence 1. Recklessly cause serious injury (contrary to Crimes Act 1958 s 17) 15 years’ imprisonment 7 years’ imprisonment Total effective sentence: 7 years’ imprisonment Non-parole period: 5 years’ imprisonment Pre-sentence detention declaration pursuant to Sentencing Act 1991 s 18(1): 649 days 6AAA statement: 8 years’ imprisonment with a non-parole period of 5 years 8 months’ imprisonment Other relevant orders: Disposal of property pursuant to Confiscations Act 1997 s 78(1)
Jawahiri advances one ground of appeal:
Ground 1:The sentence imposed (8 years 6 months) was manifestly excessive.
Leave to appeal on this ground was granted by a judge of this Court on 29 March 2021.[1]
[1]Jawahiri v The Queen [2021] VSCA 75 (Niall JA).
Eser seeks leave to advance the following grounds of appeal:
Ground 1:The learned sentencing judge:
(a) erred in finding, as a matter of aggravation where it was not open on the evidence so to find, that the applicant was aware, prior to the commencement of the assault, that the knife would be used; and
(b) made errors of fact which were material to his conclusion that:
(i)beyond reasonable doubt the applicant was aware, prior to the commencement of the assault, that the knife would be used; and
(ii)that it was not open to act on the agreed summary of prosecution opening for plea,
those errors being:
(iii)that the CCTV footage shows Jawahiri sit[ting] on the timber bollard (when that person was in fact the third man);
(iv)that the CCTV footage shows the applicant drag[ging] [the victim] to the feet of Jawahiri (when it does not); and
(v)that the CCTV footage shows the feet of the applicant and Jawahiri to be facing each other while they ‘loitered’ (when it does not).
(c) Erred in effectively punishing the applicant for offending (namely intentionally causing serious injury and gross violence offences) when that offending was not the subject of any charge.
Ground 2:The learned sentencing judge erred in failing to give full weight to the applicant’s history of childhood disadvantage despite his criminal history.
Ground 3:The learned sentencing judge made errors of principle in his approach to evidence of the applicant’s intellectual disability in that his Honour erroneously:
(a) took the intellectual disability into account as part of the applicant’s personal circumstances rather than as a specific matter in mitigation;
(b) found that the applicant’s intellectual disability did not rise to the level that could ‘enliven Verdins principles’;
(c) imposed a requirement that the intellectual disability have a causal or realistic connection with the offending before moderating general or specific deterrence; [and]
(d) failed to moderate the sentence imposed on account of Verdins principles.
Both charges arose from a single incident involving one Jibril God (the victim).
On 25 October 2019, shortly before 11:00 pm, Jibril God was walking home from visiting a friend. He cut through the forecourt of the 7-Eleven service station on the corner of Racecourse and Boundary Roads, Flemington. Present at the service station was the appellant, Raphel Jawahiri, who was observed to be in company with at least one other male. The victim made eye contact with Jawahiri as he crossed the forecourt. The victim later stated that Jawahiri ‘[looked] at me funny when I walked past’.
The victim continued to walk home, west along Racecourse Road. The appellant together with at least one other male person drove west along Racecourse Road and stopped near the public housing buildings at 120 Racecourse Road.
At 11:00 pm Jawahiri, his co-accused, the applicant Eser, and an unknown male walked north across Racecourse Road from the southern kerb and then idled in a concreted area at the rear of the apartment buildings. The following activity was largely but not totally captured by CCTV.
Shortly thereafter, the victim walked to the rear of the apartments, where the three men were loitering. Eser beckoned to him. The victim approached him. The other men had walked to one side. The unknown male is partially captured sitting on a wooden bollard as Eser speaks to the victim. Jawahiri is out of frame.
The victim subsequently stated that Eser asked him his name and that he responded with his first name, ‘Jibril’. In the CCTV footage he appears at this stage to be putting out his hand as if to shake hands with Eser. The victim stated that Eser then said, ‘Remember me, ya fucking cunt dog?’ Eser then pushed the victim towards the raised edge of the concreted area and the victim fell backwards to the ground. All three men then set about the victim. It is clear from the CCTV footage that Jawahiri held a meat cleaver as he walked behind the other two men to the environs of the apartment building. Jawahiri used the meat cleaver in the conflict, striking the victim five times with it. The other two men appeared to kick and punch the victim. We note that in the agreed summary of facts before Judge Tinney (on Jawahiri’s plea) it was stated that Eser was observed ‘holding a black-handled folding knife, with a blade about 15 cm long’. This observation was said to have been made as the victim held out his right hand to shake hands with Eser. On Eser’s plea, however, the allegation that Eser was armed at any stage during the assault was not made, and indeed the prosecutor positively stated, ‘[Eser] did not possess a weapon at the time of offending’. This is consistent with the CCTV footage.
Controversial on Eser’s plea, and in his appeal, was when precisely he became aware that Jawahiri had the meat cleaver. On the Crown case at the plea and on the defence case in those proceedings, Eser did not become so aware until very shortly after the fight started. The sentencing judge disagreed with the agreed summary of facts and was satisfied beyond reasonable doubt that Eser knew that Jawahiri had the meat cleaver before the fight commenced, and was party to an agreement with the other two men to attack the victim knowing that Jawahiri had the meat cleaver and that it was to be used in the attack.[2]
[2]DPP v Eser [2021] VCC 1182, [64] (Judge Gucciardo) (‘Reasons (Eser)’).
The CCTV footage — while we shall examine it in more detail when separately considering each of the matters before us — depicts a brutal but short attack occupying perhaps 10–12 seconds from the time the victim went to ground. The victim sustained multiple serious injuries. They included:
·1.5 litres of blood loss.
·Penetrating chest trauma with a punctured lung requiring chest decompression.
·Multiple incised wounds to the head, torso and limbs. A number of these required emergency surgery and plastic reconstructive surgery. A slash wound was one of several in the right lower back area with muscle and possible organs exposed.
·Several partially amputated fingers. These required emergency plastic reconstructive surgery with tendon repair.
·Multiple fractures to the left cheekbone, skull, ribs 9–12 on the right side, hand and fingers, requiring fracture repair with the insertion of metal pins.
·A fractured upper shinbone, with parts of the bone torn off. The bone was exposed by a major contaminated wound requiring general anaesthesia, opening of the knee joint, release of the joint capsule, wound debridement and removal of bone fragments.
The injuries were life-threatening and the victim was admitted to the Intensive Care Unit at Royal Melbourne Hospital in a critical condition. Timely and expert intervention saved his life. The victim did not sign a victim impact statement (‘VIS’). An unsigned VIS was provided on Jawahiri’s plea and the judge was provided with ongoing hospital records. We shall return to this later in these reasons. As Jawahiri’s appeal and Eser’s application canvass some different factual and legal issues, it is convenient to consider them separately.
Jawahiri
We need touch only briefly on the facts discrete to Jawahiri. He was 20 years old when he attacked the victim with a meat cleaver. He was arrested on 31 October 2019 and interviewed. We shall summarise relevant portions of that police interview:
·He denied going to Flemington at all and stated that he had been to a concert in Footscray, left at about 11:00 pm and travelled straight to Collingwood.
·He denied having a bag that evening.
·He did not know Jibril God.
·Upon being shown a still image from the 7-Eleven service station CCTV he agreed it depicted him. He said the bag in the image was not his.
·He declined to name others in the image.
·When questioned about still images of three males attending at 120 Racecourse Road, assaulting the victim and running from the scene, he answered initially, ‘No comment.’
·He then admitted that he saw the victim at the 7-Eleven but said that nothing happened as the victim walked past.
·He stated that he encountered the victim at the bridge and ‘got into a fight’ with him.
·He then admitted that he had a meat cleaver and that he ‘did what [he] had to do’. He said he hit the victim twice with a meat cleaver.
·When asked why he did it he replied, ‘Personal reasons.’
In his reasons for sentence, the judge set out the circumstances of the offending and the effect on the victim. The victim had wished to come to court but had been taken to hospital on the morning of the plea with an apparent ‘serious deterioration in his mental state’. In view of defence counsel’s consent, the judge was prepared to act on the unsigned version of the victim’s VIS. The judge then concluded:
Even had there been no victim impact statement, it would have been abundantly clear that this was a very serious attack with very serious consequences. He describes in the victim impact statement, and it is a brief document, his depression and anxiety and difficulties in sleeping, having nightmares, reliving the event. His life has greatly changed and that is not owing purely to the very serious physical injuries. Overall the attack has caused him much pain and suffering. Again that is hardly surprising when one looks at the injuries. It has changed his life.
I take into account the impact of your crime. It has been very sizeable.[3]
[3]DPP v Jawahiri [2020] VCC 1351, [24]–[25] (Judge Tinney) (‘Reasons (Jawahiri)’).
We interpolate that these findings are impeccable and unchallenged on this appeal.
The judge set out Jawahiri’s personal circumstances. There was much family support for the 20-year-old. A large number of character references were tendered, which were said to demonstrate that this offending was out of character. Jawahiri was the eldest of four siblings from migrant parents. His parents separated when he was 16. At the time of offending Jawahiri lived with his mother and siblings in Clifton Hill. He completed year 12 but has not held down regular employment since. He has no criminal history, although there were pending driving and dishonesty matters alleged to have occurred in the months leading up to this offending. These were said to be contested and the judge properly put them to one side.
Jawahiri’s plea was made at the earliest of stages. The judge took into account the ‘obvious utilitarian value’, which facilitated the course of justice, avoided a committal hearing and trial, and obviated the need for witnesses, particularly the victim, to give evidence, thus avoiding further trauma. His Honour spent some time on the issue of remorse, concluding, correctly in our view, that there was evidence of some limited remorse arising from the early plea of guilty, but not from many other sources. This finding was also unchallenged on this appeal.[4]
[4]Ibid [38].
The judge noted Jawahiri’s ‘problematic’ drug use,[5] which included cannabis, cocaine and methamphetamine, although this seemed not to be related to the offending. The judge was rightly troubled by the complete lack of explanation for the offending, which could not be teased out on the plea. Questions such as why Jawahiri had the meat cleaver, why he lay in wait, and why he attacked the victim simply remained unanswered. This made the task of assessing remorse and risk of reoffending, as well as the associated assessment of rehabilitation prospects, much more difficult. Despite the glowing, if stylistically similar, character references, the judge remained troubled by the lack of explanation for the offending, the brutality of this first offence, Jawahiri’s drug use, and his inability to assess the risk of reoffending. Ultimately the judge concluded that Jawahiri had ‘reasonable prospects of rehabilitation’.[6] This conclusion was not challenged on this appeal and was, if we may respectfully comment, reasoned with transparency and sagacity.
[5]Ibid [45].
[6]Ibid [48] (emphasis added).
The judge then turned to Jawahiri’s youth. Its mitigatory effect as discussed in R v Mills,[7] Azzopardi v The Queen[8] and Director of Public Prosecutions v Lawrence[9] was summarised as follows:
The law ordinarily treats youth as a matter of real importance. Young people are more prone to make mistakes or to act without thinking through the consequences. They are more likely to be caught up in group settings where peer pressure may have a role to play. They are less mature. They are generally speaking, less culpable and the benchmark for sending a youthful first offender to prison is a very high one indeed.
It is handsomely attained in this case.
Generally speaking, more weight is devoted to rehabilitation and less weight is given to punishment and deterrence. The law also recognises the potential corruption of a youthful offender which may and does take place in a prison setting. The law recognises the fact that young and youthful offenders are more able and likely to be rehabilitated as they are less set in their ways. Whether it knows it or not, the community has a sizeable interest in the rehabilitation of any offender. So do the Courts. After all, no protection is needed from someone who is actually rehabilitated.[10]
[7][1998] 4 VR 235.
[8](2011) 35 VR 43 (‘Azzopardi’).
[9](2004) 10 VR 125 (‘Lawrence’).
[10]Reasons (Jawahiri) [50]–[52].
The judge went on to consider the impact of Jawahiri’s youth in this case. His Honour stated:
You are a youthful first offender and that is a matter of significance but what is also clear from this case is this: the weight to be given to youth and rehabilitation will vary from case to case. It is not just automatically applied the same way in every case. As Redlich JA stated in Azzopardi, generally speaking, the more serious an offence, the less weight will be given to youth and rehabilitation. That is because more weight is devoted to some of the other purposes of sentencing. The same sentiments are spelt out in countless other decisions including Lawrence where the Court of Appeal stated:
With an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender’s youthfulness and rehabilitation, achieved and prospective, while not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations.[11]
The Court of Appeal went on to refer to those matters taking a backseat to specific and general deterrence where crimes of wanton and unprovoked viciousness were involved. Especially in a setting where a perpetrator has been given chances. Well of course you have not been.
I will not lose sight of your youth. I am not in that dark zone referred to by Redlich JA in Azzopardi where the mitigatory effect of youth is all but extinguished.[12] That dire setting is reserved for the gravest of criminal offending where there [are] no realistic prospects of rehabilitation and that is not reached here. I have already commented on your having prospects of rehabilitation but this was a very serious crime. Your youth and rehabilitation must surrender some sizeable ground to the other purposes of sentencing here.[13]
[11]Lawrence (2004) 10 VR 125, 132 [22] (Batt JA).
[12]Azzopardi (2011) 35 VR 43, 57 [44].
[13]Reasons (Jawahiri) [54]–[56].
It will be recalled that this sentence was passed in August 2020. COVID-19 had been present in the community for about five months and its impact had been felt to varying degrees across the prison community. The judge noted that prison, as a consequence, was a stressful environment, with anxiety levels increased and the opportunity to use COVID-19-safe practices reduced. The judge (correctly, as events have turned out) predicted that prison life would not return to normal in the short term and would be more onerous for this first-time offender, with less time out of cells, fewer programs and courses, and no access to in-person visits for some time. The judge stated that he took this into account in Jawahiri’s favour.
The judge referred to current sentencing practices as a factor he must consider. His Honour stated that he had considered cases the prosecutor had referred to. These were Abdirahman v The Queen,[14] Sefo v The Queen,[15] Mansfield v The Queen[16] and Lukudu v The Queen.[17] He had also considered the relevant Sentencing Advisory Council Sentencing Snapshot.[18] The judge referred to the inherent limitations in statistics and the wide variety of conduct that can constitute the offence of intentionally causing serious injury.[19] His Honour concluded correctly that, while he must have regard to current sentencing practices, there is no such thing as ‘one correct sentence’, and there are always circumstantial distinctions between backgrounds and facts. He noted that sentences had recently increased for this offence.[20]
[14][2020] VSCA 87.
[15][2017] VSCA 336.
[16][2017] VSCA 220.
[17][2019] VSCA 248 (‘Lukudu’).
[18]Sentencing Advisory Council, ‘Sentencing Snapshot No 238: Causing Serious Injury Intentionally’ (April 2020).
[19]Reasons (Jawahiri) [67], citing Nash v The Queen [2013] VSCA 172, [55] (Priest JA) (‘Nash’).
[20]Reasons (Jawahiri) [71], citing Lukudu [2019] VSCA 248, [46] (Niall and Ashley JJA).
The judge considered the various purposes of sentencing and adverted to rehabilitation, punishment that must be just and appropriate, denunciation, community protection (which the judge considered was important in this case given the ‘startling’ circumstances[21]), specific deterrence (important for the same reason[22]), and general deterrence (also an important factor[23]).
[21]Reasons (Jawahiri) [79].
[22]Ibid [82].
[23]Ibid [83].
This was, the judge concluded, a serious example of a serious offence — a deliberate, ruthless, joint armed attack committed with an intent to cause really serious injuries.
Jawahiri’s culpability, the judge stated, was very high; his crime had altered the victim’s life forever, and there was, in truth, not much in mitigation. The judge stated that he was aware of the need to avoid a crushing sentence.[24]
[24]Ibid [101].
This appeal
As we have said, Jawahiri was granted leave to appeal by a judge of this Court on 29 March 2021 on the ground that the sentence imposed is manifestly excessive.
In written submissions the appellant contended that insufficient weight was given to his youth, his early plea of guilty accompanied by some remorse, his lack of prior convictions or his ‘reasonable’ prospects for rehabilitation. It was submitted that there were no recently decided cases in which a youthful offender with no previous convictions and reasonable prospects for rehabilitation had been sentenced to eight years and six months’ imprisonment or greater. This was said to demonstrate that manifestly insufficient weight had been given to the mitigatory factors. The written submissions then went on to refer in detail to seven cases said to demonstrate that the sentence imposed in this case was inconsistent with current sentencing practices.
Those cases were summarised accurately by Jawahiri in his written case and are set out below:
In Hudson v The Queen,[25] the offender was 20 when he committed the offence of intentionally causing serious injury (sentence: 10 years 6 months). The offending … ‘was grave indeed’. The offender and two co-offenders ‘launched a brutal, sustained attack upon a defenceless youth who had done nothing to occasion being beaten to the point of death’. That victim was repeatedly kicked and punched. He was stuck with a sharp weapon that caused stab wounds. A brick was brought down on his head with such force that the brick broke in half. He suffered multiple lacerations to his head, face and body, severe swelling of the brain, a comminuted left frontal skull fracture, other skull fractures, a fracture to the top of his spine, a torn cheek and lip requiring stitches, two stab wounds to his lower back requiring stitches, loss of several front teeth, severe swelling and facial haemetomas and bleeding to the face, head and body. The offender pleaded guilty. He was 21 when he was sentenced. He had some 32 prior convictions, which included convictions for eight previous assaults committed upon different victims. There was ‘a very high prospect’ that he would reoffend. The offending ‘was not an uncharacteristic aberration’ on the part of the offender, whose history demonstrated that ‘the offence was consistent with a disposition to inflict injury on others in flagrant disregard of the law’.
[25][2013] VSCA 218.
In Yang v The Queen; Director of Public Prosecutions v Yang,[26] the offender was 23 when he committed the offence of intentionally causing serious injury (sentence: 8 years 6 months). He attacked his victim with a meat cleaver for financial gain, having mistaken that victim for another man he had agreed to assault in a manner that would leave him scarred. That victim’s injuries were appalling. He found himself spitting teeth and blood. He sustained three fractures to his left cheekbone and a displaced fracture to his jaw. He suffered a laceration that ran from the area of his left ear to under his mouth. He had multiple stitches and suffered nerve damage as a result of the attack. He had blurred vision in his left eye and there was a possibility of permanent blindness or eyesight damage. The offender was 25 when he was sentenced. He had some 34 prior convictions, which included reckless conduct endangering life as well as a serious assault and assaulting a police officer. His prospects for rehabilitation were ‘guarded’.
[26][2011] VSCA 161.
In Taskiran v The Queen; Nabalarua v The Queen,[27] Taskiran was 18 when he committed the offence of intentionally causing serious injury (sentence: 8 years 6 months). He was 19 when he was sentenced. He had three relevant prior appearances in the Children’s Court, including for charges of intentionally/recklessly causing injury and recklessly causing serious injury. Nabalarua was 19 when he committed the offence of intentionally causing serious injury (sentence: 7 years). He was 20 when he was sentenced. He had no prior convictions. The offending involved ‘a sickening display of a relentless and savage beating … over a prolonged period’ and a ‘grave and … extreme example of serious violent offending. It ‘went beyond’ vigilante justice. Their victim, who had been seen breaking into Taskiran’s car, was punched and kicked. His head was stomped on multiple times. He was beaten with a tyre lever or wheel brace. He was struck with a bottle. The attack was perpetrated in three instalments. He was unconscious when he was dragged and left under some bushes. He sustained severe head injuries and an acquired brain injury. His sight was severely damaged. He required his mother or a carer to be with him at all times.
[27][2011] VSCA 358.
In Mann v The Queen,[28] the offender was 23 when he committed the offence of intentionally causing serious injury (sentence: 8 years). The offending ‘was a particularly serious example of what is always a serious offence’. The offender’s ‘attack upon his victim was vicious and sustained’, and ‘had catastrophic and ongoing consequences’. That victim was asleep when, in his own home, he was struck to the head with the handle of a pressure cooker. He was struck multiple times to the head with a rolling pin. The offender grabbed a knife and, standing over his victim, lifted his victim’s chin and cut his throat in multiple directions. That victim sustained multiple lacerations to the scalp, neck and face. He bled extensively. The digital nerve to the index and middle fingers of his left hand was severed. He suffered two puncture wounds, one to the abdomen and the other to the chest. He sustained a wound to the thigh that went down to the bone. He was kept in an induced coma for a week. The offender pleaded guilty. He was 24 when he was sentenced. He had no prior convictions.
[28][2011] VSCA 189.
In Hope v The Queen; Pua v The Queen,[29] Hope was 20 when he committed the offence of intentionally causing serious injury (sentence: 8 years). He pleaded guilty. He was 22 when he was sentenced. He had an ‘appalling’ criminal record, which included three prior convictions for intentionally causing serious injury ad one prior conviction for recklessly causing serious injury. He was sentenced as a serious violent offender. Pua was also 20 when he committed the offence of intentionally causing serious injury (sentence: 6 years). He pleaded not guilty. He was 22 when he was sentenced. He too had an ‘appalling’ criminal record, which included violent offending. Hope and Pua were prisoners at Barwon Prison. In the course of a series of offences, they attacked a prison officer. Their victim’s injuries included two fractured eye sockets, two fractured cheek bones, broken bones in the nose, a fractured right collar bone, extensive nerve damage to his face, a split palate
[29][2018] VSCA 230.
and a number of loose teeth. Further, a portion of the palate was fractured and detached from his skull.
In Azzopardi v The Queen; [Baltatzis] v The Queen; Gabriel v The Queen,[30] Azzopardi was 19 when he committed four offences of intentionally causing serious injury (sentences: 7 years, 5 years, 5 years, 5 years). He pleaded guilty. He had prior convictions, and was subject to a community based order when the offending was committed. He had ‘limited’ prospects for rehabilitation. [Baltatzis] was also 19 when he committed four offences of intentionally causing serious injury (sentences: 5 years, 4 years 2 months, 4 years 2 months, 4 years 2 months). He pleaded guilty. He had no prior convictions. He had ‘some’ prospects for rehabilitation. Gabriel too was 19 when he committed three offences of intentionally causing serious injury (sentences: 4 years 4 months, 3 years 2 months, 3 years 2 months, 3 years 2 months). He pleaded guilty. He had no prior convictions. His prospects for rehabilitation were held to be better than those of his co-offenders. Those offences were committed during the course of multiple separate incidents committed over multiple different evenings involving multiple victims. The most serious offending (which attracted the base sentence for each offender) involved an attack of Dr Mukesh Haikerwal:
Baltatzis was armed with a knife and Cooke with a baseball bat. As the group approached Dr Haikerwal, Baltatzis pointed the knife at him and demanded his phone and wallet. Gabriel then tried to grab [Dr Haikerwal] and they fell to the ground. While Gabriel was holding [Dr Haikerwal], Cooke struck him six or seven times with the bat. Azzopardi said ‘pass the baseball bat’ and ‘you’re not doing it right’, and Azzopardi then struck Dr Haikerwal four or five times on the head with the bat. [Dr Haikerwal] managed during the attack to pass his wallet to the offenders. Azzopardi then took a step back from [Dr Haikerwal], who was still on the ground, took a full back swing and struck him to the head with the bat, which caused Dr Haikerwal’s skull to audibly crack. The offenders then ran towards their vehicle … As a result of this attack, Dr Haikerwal suffered a large open wound across his scalp, a fracture to the right side of his skull and a severe brain injury, bruising to the upper left chest wall, and a bruised and swollen right knee. A CT scan of his brain revealed two blood clots in the brain. He underwent emergency surgery after which he was placed in a medically induced coma for approximately 24 hours.[31]
In R v Chong,[32] the offender was 22 when he committed four offences of intentionally causing serious injury (sentences: 7 years, 6 years, 6 years, 3 years). He pleaded guilty. He was 23 when he was sentenced. He had no prior convictions. The most serious offending (which attracted the base sentence) involved an attack on a victim who was not known to the offender. The offender smashed a beer bottle into that victim’s head. He later attacked that victim with two co-offenders. He bashed that victim to the head and upper body with a metal club lock. That victim was struck, punched and kicked until he was rendered unconscious. He remained on life support for about 15 days. He suffered a severe closed head injury with subdural and subarachnoid haemorrhages, extensive facial fractures, a fractured skull, numerous lacerations to the hands and upper body and extensive bruising. He experienced post-traumatic amnesia that lasted about 21 days. He suffered from ongoing cognitive deficits. He was not able to drive a car. He was not able to return to his job as a courier. The lasting impact of the cognitive deficits that resulted from his brain injury impacted on his lifestyle and opportunities both vocationally and in terms of leisure.[33]
[30](2011) 35 VR 43.
[31]Ibid 48–9 [10].
[32][2008] VSCA 119.
[33]Citations omitted.
The respondent reminded the Court that the test to be applied to an argument of manifest excess was a stringent one, not easily satisfied. The judge was correct to conclude that, objectively viewed, this was a serious example of a very serious offence, which carried a 20-year maximum sentence.
The respondent contended the judge was correct to conclude that the appellant’s culpability was ‘very high’. The judge made unchallenged findings that:
·This was a deliberate, ruthless, joint armed attack on an innocent and unarmed victim, who was alone at night in a public place.
·The offending was neither spontaneous nor opportunistic.
·The victim was targeted and the three offenders lay in wait — Jawahiri with the meat cleaver.
·Jawahiri forcibly struck the vulnerable, prone victim five times with the meat cleaver, to the hands, face and body.
·Jawahiri intended to cause really serious injuries.
·The victim was left to his fate with life-threatening injuries. Those injuries were numerous and grave.
The respondent submitted that the judge carefully examined all relevant matters, including the purposes of sentencing, the circumstances of Jawahiri, and mitigatory matters including the appellant’s youth.
Insofar as the youth of the appellant was concerned, the respondent submitted that it is clear from his Honour’s reasons that he was acutely aware of the principles relevant to youthful offenders. The judge, however, also recognised that, generally, the more serious the offence, the less weight will be given to youth and rehabilitation.[34] Notwithstanding this, the judge still gave some weight to rehabilitation.
[34]It will be recalled that the judge cited Azzopardi (2011) 35 VR 43 and Lawrence (2004) 10 VR 125.
Current sentencing practices are but one factor in the sentencing equation and the respondent submitted that, as the judge observed, they have their limitations in this regard. In this context, the respondent referred to Lukudu.[35]
[35]Lukudu [2019] VSCA 248, [46] (Niall and Ashley JJA).
The respondent concluded by submitting that the sentence imposed did not lie beyond the permitted range of the sentencing discretion and the appeal should be rejected.
Consideration
We have determined that this appeal should be rejected. Manifest excess is a difficult ground to establish.[36] The appellant must demonstrate that the impugned sentence or sentences were wholly outside the range of sentences available to the sentencing judge in the proper exercise of his or her sentencing discretion.[37] It is insufficient to demonstrate that a sentence is heavy or stern.[38] The sentence must bespeak some error in the exercise of the sentencing discretion. Put another way, the appellant must demonstrate that the impugned sentence or sentences were not open to the judge in the reasonable exercise of his or her sentencing discretion.
[36]R v Boaza [1999] VSCA 126, [42] (Winneke P) (‘Boaza’); DPP v Karazisis (2010) 31 VR 634, 662 [127] (Ashley, Redlich and Weinberg JJA) (‘Karazisis’).
[37]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA), quoted in Lim v The Queen [2019] VSCA 182, [60] (T Forrest JA and Croucher AJA); Begg v The Queen [2020] VSCA 183, [53] (Priest, Tate and T Forrest JJA) (‘Begg’); Boaza [1999] VSCA 126, [42]; Karazisis (2010) 31 VR 634, 662–3 [127].
[38]See House v The King (1936) 55 CLR 499, 507 (Dixon, Evatt and McTiernan JJ); Begg [2020] VSCA 183, [55], [77], [93].
In our view, Jawahiri has not established this ground of appeal. The sentence imposed of eight years and six months is certainly stern for a 20-year-old man with no criminal history, however, the objective gravity of the offending was very grave indeed. This was no alcohol- or ice-fuelled moment of madness. We agree with the sentencing judge that this was a ruthless, planned attack, in which Jawahiri (at least) intended to and did use a vicious, murderous weapon. We further agree that, as he delivered the five meat cleaver strikes to the prone victim, including to his head and torso, Jawahiri must have intended to and did cause really serious injury. It was open to the judge to conclude this beyond reasonable doubt and we are also so satisfied.
Jawahiri’s youth must of course weigh in his favour as must his clean criminal record. There can be no doubt that the judge took these factors into account. At [50]–[56] of his reasons for sentence, this experienced judge took pains to evaluate all factors in mitigation and aggravation. He devoted six full paragraphs to Jawahiri’s youth. In that passage the judge correctly encapsulated the relevant principles to the sentencing of young offenders and applied them with clarity and balance. It was open to the judge to diminish the weight given to the appellant’s reasonable prospects of rehabilitation and to give primacy to punishment and deterrence. We agree with his Honour’s conclusions in this regard. Further, it is plain from the judge’s reasons that he did not lose sight of rehabilitation as a sentencing principle, but appropriately adjusted its weight given the gravity of this dreadful offending.
We do not accept that the sentence imposed was inconsistent with current sentencing practices. As Priest JA stated in Nash, experience shows that the circumstances surrounding the commission of this offence are almost infinitely variable.[39] Protracted savagery can contrast with a single punch; injuries can vary from gross and permanently disabling to injuries that barely cross the (admittedly high) serious injury threshold. These observations underscore the limitations of current sentencing practices as an aid in the sentencing exercise. We have considered the cases relied upon by the appellant on this issue,[40] and viewed them through the lens of those limitations. It is sufficient to state:
(a) Current sentencing practices are only one factor to be considered in the complicated sentencing calculus;[41] and
(b) There is nothing in these cases that assists us to conclude that the sentence imposed on Jawahiri was inconsistent with current sentencing practices or beyond the range reasonably open to the judge in the proper exercise of his sentencing discretion.
[39]Nash [2013] VSCA 172, [55].
[40]See above [31].
[41]DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 450 [68] (Kiefel CJ, Bell and Keane JJ).
For these reasons Jawahiri’s appeal against sentence must be refused.
Eser
Background
We have observed at [13] of these reasons that it was controversial on Eser’s plea as to when precisely Eser became aware that Jawahiri possessed the meat cleaver. In a document entitled ‘Prosecution Opening on Plea’,[42] the plea prosecutor set out the following facts:
Shortly before 11:00 pm on Friday 25 October 2019, the victim Jibril GOD was walking home from a friend’s house in North Melbourne. On the way home, he cut through the 7-Eleven service station in Flemington on the corner of Racecourse and Boundary Roads.
The offender ESER and co-offender JAWAHIRI had arrived at that 7-Eleven service station at 10:51 pm, in a dark grey Subaru Impreza sedan. JAWAHIRI exited the passenger side of the vehicle, entered the 7-Eleven store and purchased food. An unknown male exited the driver’s side of the car and also entered the store.
JAWAHIRI and the unknown male returned to the car, and the victim then walked through the petrol bowser area at 10:57 pm. The victim made eye contact with JAWAHIRI who was by the passenger side of the Subaru Impreza sedan. The victim later stated that JAWAHIRI didn’t say anything to him, ‘but he was looking at me funny when I walked past’.
GOD continued to walk home, west along Racecourse Road. JAWAHIRI and the unknown male got into the Subaru, drove out of the service station and headed west along Racecourse Road.
At 11:00 pm the offender ESER, co-offender JAWAHIRI and an unknown male walked across Racecourse Road, near the public housing apartment buildings at 120 Racecourse Road. JAWAHIRI was holding a bladed weapon in his left hand, which he later admitted was a meat cleaver. The three males loitered at the rear of the apartment buildings.[43]
[42]Exhibit A on the plea.
[43]Citations omitted.
We interpolate that the CCTV footage (Exhibit E on the plea) shows Jawahiri about two to three metres behind Eser and the unknown male as the men entered the environs of 120 Racecourse Road. Eser appears to be looking straight ahead. The prosecution summary then continues:
The victim walked across Racecourse Road to the west of the Citylink bridge, and started to walk through the area to the rear of the apartments at 120 Racecourse Road. He then saw JAWAHIRI who he recognised from the service station, along with ESER and the third male. The offender ESER called the victim over and spoke to him:
ESER said: ‘What’s your name?’
GOD said: ‘Jibril’
ESER said: ‘Remember me ya fucking dog cunt?’
The victim put his hand out to shake ESER’s hand. The victim was then grabbed and pulled to the ground by ESER, and the three males began to punch and kick the victim. JAWAHIRI was in possession of the meat cleaver and used it to strike the victim.
The victim put his hands up to protect his face, and the three attackers continued the assault. The victim felt his hands get cut first, then his head. He felt the three males hitting and kicking him, and he felt hits in the back. The victim was in shock and was scared they were going to kill him.
The CCTV footage depicts ESER kicking the victim to the body and legs, and the co-offender JAWAHIRI striking the victim approximately five times with the meat cleaver, to the hands, face and body.
One of the offenders then said ‘He’s done, leg it, let’s go.’
The three offenders fled east along Racecourse Road and were observed on CCTV footage from an apartment building at 187 Boundary Road, North Melbourne, heading north.
These paragraphs constituted agreed facts between the defence and the prosecution. After discussions between prosecution and defence the matter resolved into a plea of guilty to one charge of recklessly causing serious injury. It will be recalled that Jawahiri had pleaded guilty to the more serious charge of intentionally causing serious injury. In a document entitled, ‘Outline of Prosecution Submissions on Sentence’,[44] the prosecutor explained the basis upon which the matter had resolved:
This matter has resolved on the basis that:
(a) The Offender did not possess a weapon at the time of the offending;
(b)The co-offender, Jawahiri, was armed with a meat [cleaver] and inflicted injuries to the victim using that weapon; and
(c)The Offender was not aware of the meat [cleaver] prior to the attack, but became aware of the meat [cleaver] when it was produced during the course of the physical assault.
[44]Exhibit D on the plea.
In terms of the Offender’s role, the Offender along with the co-offender pursued the victim. The Offender called the victim over to their group and was openly hostile to the victim without provocation (calling him ‘ya fucking dog cunt’). The Offender instigated the physical assault on the victim, by pulling him to the ground when the victim offered to shake his hand. The Offender along with his co-offender then kicked and punched the victim numerous times, before fleeing and leaving the injured victim on the ground.
Culpability
As noted by the court in Ashe v R [2010] VSCA 119 at [31]:
The culpability of a reckless offender will increase as the degree to which the Offender has adverted to the actual consequences of his conduct increases.
In this case, the Offender knew that serious injury was a probable consequence of his conduct, however[,] the prosecution concedes that prior to the assault the Offender had not foreseen the probability of the degree of injury actually suffered by the victim, as he was not aware that the co-offender was in possession of a meat [cleaver].
It is relevant to an assessment of the Offender’s culpability that once the meat [cleaver] was produced, the CCTV footage confirms that the Offender continued kicking and punching the victim at the same time his co-offender struck blows to the victim’s hands, face and body with the meat [cleaver].[45]
[45]Emphasis in original.
Despite pressure from the bench throughout the plea hearing, the prosecutor did not move from this considered position.
On 23 April 2021 Judge Gucciardo and the prosecutor had the following exchange, very shortly after Eser was arraigned:
HIS HONOUR: … Before we proceed, can I just ask you, Madam Prosecutor, about the indictment and about the opening. I’m troubled by it. I’m troubled by the indictment and I’m troubled by the opening.
PROSECUTOR: Yes, Your Honour.
HIS HONOUR: You would be familiar, as indeed I am, with the sentence of Mr Jawahiri which took place on 7 August 2020.
PROSECUTOR: Yes, Your Honour.
HIS HONOUR: I’ve read Judge Tinney’s decision and I am familiar with the fact that [Niall JA] in March of this year granted leave to appeal and that the matter hasn’t come before the Court of Appeal and it’s not listed, at least not for the next two terms as I understand it. In any event, that particular second matter is perhaps irrelevant to what I’m raising with you and that is that it would appear from your submission document as to sentence, which I received this morning and it’s an outline admittedly, but it’s plainly stated that the matter was resolved on the basis that (c), this is at paragraph 9 of that document, ‘The offender was not aware of the meat cleaver prior to the attack but became aware of the meat cleaver when it was produced during the course of the physical assault.’
PROSECUTOR: Yes, Your Honour.
HIS HONOUR: Now having read the sentence of His Honour on that basis, having seen the material — I haven’t seen the actual footage but I’m sure that the photographs adequately reflect the footage that’s available — I would have thought that that’s contrary to the evidence in the case and I can only conclude that this is a — well, I won’t call it a bad deal but this is — I think I find it troubling, because that’s just simply not the case, it can’t possibly be the case. His Honour Judge Tinney referred to this matter as a planned attack. He uses a number of expressions. He uses ‘planned, joint attack’, he uses the term ‘joint attack’, he uses the word ‘group attack’. In fact, I’m surprised there isn’t a charge that follows with ‘in circumstances of gross violence’.
How can it possibly be that I am now to consider issues of parity, for example, in a situation where these men were acting clearly together as accomplices, right from the word go, and not just as they crossed the road with one of them waving a meat cleaver about, but from before. They were at a petrol station when they first saw the victim and they proceeded from there. How could it possibly be that it can be said with any confidence and in the way in which this matter was apparently resolved that he became aware of the meat cleaver when it was produced? It flies in the face of what is the evidence available. What am I to do with that evidence? Am I to ignore it?
PROSECUTOR: Your Honour, the matter has resolved on the basis that this offender was not aware of the possession of the meat cleaver until it was produced during the attack. The evidence that Your Honour has before you is footage taken from a CCTV camera which I have to be played in court and also stills from that footage. In the footage where the offenders are crossing the road together the co-offender who is armed with the meat cleaver is standing behind this accused and so the prosecution is unable to prove beyond reasonable doubt that this offender was aware of the meat cleaver before the assault, and so for that reason - - -
HIS HONOUR: That might have been the case when they walked across the road. Are you telling me that the prosecution would hold that as these three men walked across the road and positioned themselves to wait for the victim as he was coming up to where he was then assaulted and as Mr Eser, who was the first assaulter, drags him to the ground, at that point I’m supposed to believe or hold in some way that he’s still unaware that Mr Jawahiri is holding a meat cleaver in his hand?
PROSECUTOR: Yes, Your Honour, that’s the basis upon which it has resolved, that when the meat cleaver is produced in the physical assault when Mr Eser is joined by his co-accused, from that point forward he is aware that a meat cleaver is being used and not before then.
HIS HONOUR: And I’m to work on the basis that when he brings the victim down and immediately thereafter Mr Jawahiri delivers at least five blows with the meat cleaver and then this accused follows up with kicks and punches, he’s still merely reckless about the serious injury that’s going to be occasioned to the victim? That’s the way it’s going to work in this case?
PROSECUTOR: Yes, Your Honour. My friend may have submissions to make on this topic.
HIS HONOUR: I’m sure he does, but I think this is a matter that lies with the prosecution not with the defence. The defence is taking this with both hands, thank you very much.
PROSECUTOR: Yes, Your Honour.
HIS HONOUR: I think this is a terrible deal.
This application
Ground 1
A large part of Eser’s submissions in this application, both in writing and orally, concerned ground 1. The substance of Eser’s complaint under this ground is:
(c) it was not open to the sentencing judge to conclude beyond reasonable doubt that Eser knew that Jawahiri possessed and intended to use the meat cleaver before the commencement of the attack on the victim; and
(d) this was not the rare case in which the sentencing judge was entitled to reject the agreed factual basis for the plea.[46]
[46]Citing Ristevski v The Queen (2011) 31 VR 193 (‘Ristevski’); DPP v Perry (2016) 50 VR 686 (‘Perry’); R v Lowe [2009] VSCA 268 (‘Lowe’); R v Mielicki (1994) 73 A Crim R 72 (‘Mielicki’).
On the first of these contentions, counsel for Eser on this application contended that the totality of the evidence did not permit the judge to conclude that Eser ‘act[ed] together pursuant to a joint plan in which [he was] aware fully that a weapon was to be used’.[47] This was a circumstance of aggravation and needed to be proved beyond reasonable doubt.[48]
[47]See Reasons (Eser) [64].
[48]R v Storey [1998] 1 VR 359, 369 (Winneke P, Brooking and Hayne JJA and Southwell AJA).
The CCTV footage shows clearly Jawahiri carrying a bladed weapon before the attack, however, it never shows Eser in a position to see it before the attack commenced. The CCTV footage does not show any offender’s upper body while they are loitering before the attack and it is not possible to know whether the weapon was still ‘out’ or in a position where Eser could see it. At no point does the CCTV show the feet of Jawahiri facing Eser’s feet, contrary to the judge’s finding and, at any event, positioning of the feet is a poor basis for an inference as to what Eser could or could not see. Further, counsel for Eser submitted that the judge made another error in his Honour’s summary of the CCTV footage by confusing Jawahiri with the third male at a time immediately before the attack commenced.
Counsel for Eser accepted that it was open to the judge to have concluded on the evidence that Jawahiri was using the weapon from very shortly after the attack commenced.
Despite the consistent prosecution position at the plea hearing, counsel for the respondent contended that:
(e) it was open to the judge to conclude that this was a planned attack;
(f) whilst the judge made several factual errors when stating his conclusions from the CCTV footage, none were material to his essential conclusion about Eser’s state of knowledge about the weapon; and
(g) it was open to the judge to conclude that the trio of offenders lay in wait for nearly a minute at the area where the attack took place.
On this basis it was open to the judge to conclude that this offending was pre-planned, not spontaneous, and that the planning involved use of Jawahiri’s weapon.
Consideration
The following facts were agreed facts on the plea and were not disputed before this Court:
·Jawahiri, Eser and the unknown male arrived in a grey Subaru sedan at the 7-Eleven service station on the corner of Racecourse and Boundary Roads, Flemington.
·Jawahiri alighted from the left side of the car and purchased food from the 7-Eleven store. The unknown male also entered the store.
·They returned to the car. At 10:57 pm the victim walked through the forecourt apron of the service station, passing within one to two metres of Jawahiri, who was standing by the left side of the Subaru. The men made eye contact.[49] The victim continued to walk home west along Racecourse Road.
·At 11:00 pm Eser, Jawahiri and the unknown male walked across Racecourse Road near the public housing apartment buildings at 120 Racecourse Road.
·Eser did not possess a weapon at the time of the offending.
[49]Shown in ‘CCTV 7-Eleven Still #11’ as reproduced in Prosecution Opening on Plea.
We have viewed the CCTV footage of the events at 120 Racecourse Road. The footage, which appears to be captured by different cameras, demonstrates:
(h) From 11:00:57 Eser and the unknown male cross the northern side of Racecourse Road and enter the apron area of (what we are told is) 120 Racecourse Road. Approximately two to three metres behind them is Jawahiri. He is carrying a bladed weapon in his left hand and is holding it adjacent to his left thigh as he walks into that area. The apron appears to be of a concrete surface with a raised lip, behind which appears to be a grassed area.
(i) At 11:01:00 the three men face east towards the grassy area. The weapon is not visible. Only the lower legs of the men are captured in the CCTV footage. The men walk towards the grassy area and Eser and the unknown male disappear quickly from view. Jawahiri remains in view for a little longer and walks onto the grassy area, perhaps two or three metres north of the position at which Eser and the unknown male are last visible.
(j) At no stage during this part of the footage (as described above) are Eser’s feet and Jawahiri’s feet facing each other.
(k) At 11:01:10 all three men are out of view.
(l) At 11:01:34 the unknown male takes up a position sitting on a bollard near the edge of the apron area, perhaps eight to ten metres from the entrance of 120 Racecourse Road. This is not Jawahiri, who wore highly distinctive shoes on the evening.
(m) It is unclear where Jawahiri and Eser are at this stage, and thus whether they are together or not, or whether the bladed weapon was concealed or in full view of Eser.
(n) At 11:01:41 Eser enters the CCTV footage from the left (north) side of the frame. He is alone. It is unknown whereabouts Jawahiri is at this stage. At 11:01:43 Eser appears to beckon with his left hand. His right hand is in his pocket.
(o) At 11:01:44 the victim walks through the entrance and towards Eser. Eser moves back to marginally out of the range of the cameras.[50] The victim extends his right hand towards Eser — this appears to be an attempt at a handshake.
(p) At 11:01:57 Eser forcibly pushes the victim towards the unknown male, who had stood up from his position on the bollard. At this stage Jawahiri was not within camera range. As Eser pushes the victim towards the raised concrete edge of the apron, Jawahiri is captured running from the left side of the frame (the north) and attacks the victim, who at this stage is still standing (11:01:58). The victim goes very quickly to ground.
(q) Jawahiri then strikes the victim five times with the weapon, using his right hand, whilst holding him down with this left hand. At this stage Eser is initially standing at the victim’s feet. He moves to the prone victim’s side and kicks him three times: once to the thigh/hip, once to the stomach and once to the upper chest or head. At 11:02:08 all three men run away. The attack, from Eser’s first push to its conclusion, takes approximately 12 seconds.
[50]His shadow remains visible.
CCTV footage from 187 Boundary Road, taken at 11:03:46, appears to show Jawahiri, at first, with no weapon visible and then to be retrieving it from a concealed place within his upper clothing before wiping it on that clothing.
There is no other relevant evidence.
In our view the evidence that we have received is sufficient to establish beyond reasonable doubt that the attack was a planned attack, hatched either at the 7-Eleven service station (where the victim was first sighted), or very shortly thereafter. The CCTV footage from 120 Racecourse Road discloses Eser beckoning the victim into the apron area, while his two co-offenders lurk in the shadows. From the moment Eser pushes the victim towards the unknown male, the other co-offenders spring into action. There is no error in the judge’s concluding that Eser and his two co-offenders ‘planned to assault the victim and [formulated] that plan soon after he came across Jawahiri at the 7-Eleven store’.[51] Further, there is no error in his Honour’s concluding that the men ‘drove up to anticipate [the victim’s] arrival at the Racecourse Road apartments’.[52]
[51]Reasons (Eser) [57].
[52]Ibid.
We do not, however, consider that it was open to the judge to conclude that Eser knew of Jawahiri’s weapon before the attack commenced. There is no direct evidence about the details of the planning that went into the attack. The CCTV footage is, we consider, far from conclusive on this aspect. Before the attack, the weapon is only visible in the footage for a short time, held in Jawahiri’s left hand beside his thigh as he walked towards and into the entrance to the Racecourse Road apartments. It appeared to be carried discreetly. Significantly, Eser and the unknown male were walking two to three metres ahead of him at this time, did not turn around or look backwards, and Eser and Jawahiri then quite rapidly disappear out of camera range for about 25 seconds, while the unknown male positions himself on the bollard. As we have observed, it is unclear where Eser or Jawahiri were at this stage, and thus whether they were together or apart. It appears that the lighting in the grassy area was poor, and it is unknown whether Jawahiri had the weapon exposed at this point or concealed (as it appeared to be shortly after the attack). Assuming it was exposed, it is not known in what manner Jawahiri was holding it.
It is undisputed that the judge made certain factual errors in describing what the footage depicted, specifically concluding that Jawahiri is the person sitting on the bollard, that Eser is shown dragging the victim to the ground at the feet of Jawahiri, and that the feet of the applicant and Jawahiri are shown facing each other while they ‘loitered’. We are unable to say whether, absent these factual errors, his Honour would have reached the same state of satisfaction as to Eser’s knowledge of the weapon and when it was gained.
It was open to the judge to conclude, as we conclude, that very shortly after the attack commenced, Eser must have been aware of the presence and use of the weapon, and yet he continued in the assault until its conclusion. This is serious offending.
The applicant has established ground 1. As it concerns a critical sentencing fact, the applicant falls to be resentenced by this Court in accordance with our conclusions as to that sentencing fact.
It is thus unnecessary to dwell on part (b) of ground 1. The applicant contended that this was not that rare case in which the sentencing judge was entitled to reject the agreed factual basis for the plea.[53] Our determination that it was not open to the judge to reach the factual conclusion that he did in practical terms answers this question. We agree that this was not a case where the sentencing judge should have intervened in the agreed factual basis for the plea.
[53]See Perry (2016) 50 VR 686, 711 [92]–[93] (Maxwell ACJ, Redlich and Whelan JJA); Lowe [2009] VSCA 268; Mielicki (1994) 73 A Crim R 72, 78–9 (Southwell, Ormiston and Coldrey JJ); Ristevski (2011) 35 VR 193, 195 [10] (Maxwell P).
Grounds 2 and 3
Grounds 2 and 3 allege that the judge failed to correctly give effect to the applicant’s disadvantaged childhood and intellectual disability in his sentencing exercise.
Eser was abused physically as a child and witnessed significant family violence perpetrated by his schizophrenic, at times psychotic father upon his mother. His parents separated when he was approximately 11 and he was referred to the Department of Health and Human Services (‘DHHS’) as a 14-year-old. By that time his mother had commenced living with Jawahiri’s father. She relinquished care of Eser to the State because of his uncontrolled behaviour and her inappropriate parental discipline.
The source material for this litany of misfortune was to be found in various reports and assessments prepared in early 2015 by DHHS or commissioned by that body.[54] These reports appear not to have been formally tendered on the plea but were filed with the Court, referred to in the plea and seemingly accepted by all parties.
[54]Berry Street, ‘Take Two: Brief Intervention Report: Secure Welfare Service’, dated 6 March 2015; Department of Health and Human Services, ‘Target Group Assessment’, dated 23 June 2015 (‘DHHS Report’).
Intertwined with the applicant’s childhood disadvantage (ground 2) is his intellectual disability (ground 3). In January 2015 he was placed in out-of-home care at the Berry Street Residential Care Unit. The ‘Brief Intervention Report’ commissioned by DHHS was prepared in March 2015 and placed before the Court below. Eser’s cognitive functioning was assessed by Dr Tiffany Lewis. His overall cognitive performance was assessed to be in the ‘Extremely Low’ category. His composite score on the Wechsler Intelligence Scale for Children IV was 52. This placed him in the bottom 0.2 percentile for his age level. In 2015 Eser was declared to have an intellectual disability within the meaning of the Disability Act 2006. In 2015 a DHHS employee noted that Eser had ‘very little insight into his behaviours of concern and is unable to understand why he is a risk to others’.[55]
[55]DHHS Report.
The judge dealt with Eser’s disadvantage and disability in the following passages of his reasons for sentence:
I take your personal circumstances into account. You are 20 years of age, 21 on 14 September next. You were born in Melbourne. You have a 24-year-old sister and a 16-year-old brother. Your parents separated when you were 11 and your father has lived in supported accommodation due to his mental health issues.
Your mother repartnered. Her new partner is the father of your co-offender, Mr Jawahiri, who is 23 years old. You and your younger brother were placed in care when you were aged 14 to 17 years old. However, when this offence took place you were living at home with your family.
Your school education finished at Year 7, though you later attended the Pavilion School in Preston. At age 14 an intellectual disability was diagnosed as ADHD with Ritalin being prescribed to you. You have for a man of your age already accumulated a significant criminal history which starts when you were 14 in the Children’s Court primarily, and then aged 19 in the Magistrates’ Court.[56]
[56]Reasons (Eser) [73]–[75].
…
[Defence counsel] relied upon some reports in his plea on your behalf. The first was dated February 2015 upon your entry into the secure welfare service and was prepared by a clinical worker, Dr Tiffany Lewis, a psychologist from Take Two, an agency of Berry Street Services.
It is a report which addresses your situation aged 14 and an interim accommodation order. The report gives as reasons for referral … physical abuse, witnessing family violence and parental mental illness. You had been absconding and engaging in extreme risk-taking behaviour, using illicit substances.
The report summarised your family background and noted incidents of conflict in the home. The file was cleared in 2014 as there was not a significant risk of harm, but in January 2105 you were placed in out of home care in a Berry Street residential care unit.
There you displayed aggressive behaviour and [created] weapons while in the unit. Your accommodation order was extended to a secure welfare order. At interview your reported having asked your brother to beat up a young kid for you, that you [had] tried almost every drug available but were not addicted. You then discontinued the testing, and you became dysregulated and listed several ways you could hurt Ms Lewis in some detail.
You had little insight into your behaviour, you blamed others for your conduct. Cognitive tests were administered and reported cognitive functioning as measured in the extremely low range, although the writer expressed caution and reservation in the context of a single session assessment.
It was at least clear that you were seeking attachment relationships with inappropriate peers. The report made a number of recommendations. A second report was from June 2015 by the disability intake worker, Simone Fillies, who relied also on four reports, including that of Dr Lewis, two from Child Protection of February and March 2015, as well as a teacher’s report from St Joseph’s Flexible Learning College of June 2015.
This brief report notes a diagnosis of intellectual disability and echoes much of the Lewis report. Your school attendance had become sporadic following absconding from residential placement.
The writer concluded you met the criteria stipulated in the Disability Act 2006 and declared within the target group under that Act. A statement of intellectual disability was issued in June 2016 by reference to sub-average general intellectual functioning and significant deficits in adaptive behaviour each manifest before the age of 18.
Two other reports from Disability Justice both of 2019 concluded the material before the court, both dated 2 May 2019. These reports were for purposes of the Magistrates’ Court at Heidelberg in June 2019 which imposed a community correction order with a justice plan with specific programs.
These reports essentially repeat much of the material mentioned above and [note] your intention to move back home once you turn 19. Within a few months of the magistrate disposition, you were before the court again on serious violent offences, including assault and recklessly causing injury.
Within a month from that sentence, you committed [this offence]. [Defence counsel] highlighted that the reports surmised that you can be easily led by others. He submitted that your history and background meant that it should decrease your culpability, and that a community correction order was an appropriate vehicle.
Later in the plea he took up an argument which appeared to propose a youth justice centre order, ‘In the light of your youth, your vulnerabilities, limited role, and reduced liability due to your conditions’. He has [submitted] there was a high degree of remorse [shown] by offering to plead and accepting the unsigned victim impact statement.
He also emphasised in the plea … the current impact of the pandemic. There was no specific cogent argument directed to any limbs of Verdins in the defence submissions, but I took the material to be presented in order to argue that your moral culpability should be reduced.
Although the cognitive disabilities generally described in these reports must be taken into account as part of your personal circumstances and some intellectual disabilities clearly can enliven Verdins principles, in my view they do not amount to matters which bring into engagement the Verdins principles per se in this case.
Your moral culpability in my view is high. Your cognitive dysfunction plays a small function in this offending either causatively or more generally. Some realistic connection between your disability and the offending is required in order to eliminate or moderate general and specific deterrence, the impairment must have contributed to or be connected to or explain the offending.[57]
[57]Ibid [87]–[101].
Counsel for Eser contended that childhood disadvantage of this quality leaves a mark, and has been recognised by the courts as relevant and mitigatory even in the absence of a specific nexus to the offending. Further, the effects of such deprivation endure and must be given full weight in every sentencing decision.
Insofar as intellectual disability impacts the sentencing discretion, counsel for Eser submitted that the disability was clearly substantial and it should have been given individual attention in the sentencing exercise rather than merely treated as part of the applicant’s personal circumstances. Further, counsel submitted that the judge was in error in concluding that the applicant’s disability did not rise to the level that could ‘enliven Verdins principles’, and erred in requiring that the disability have a causal connection with the offending before operating to moderate either general or specific deterrence.
Counsel for the respondent submitted that the judge gave full weight to the applicant’s history of childhood disadvantage, which fell short of circumstances such as to enliven the Bugmy principles.[58] Even if such principles were enlivened they would need to be balanced against the principle of community protection.
[58]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
On ground 3 the respondent submitted that the judge took into account the applicant’s intellectual disability as a mitigating personal circumstance and thus ‘gave it due consideration and weight in the sentencing synthesis’. It was appropriate for the judge not to apply the Verdins principles in the absence of cogent evidence of ‘the relationship between the mental disorder and the offending’.[59]
[59]Quoting R v Zander [2009] VSCA 10, [29] (Dodds-Streeton JA).
Consideration
Our findings under ground 1 will require us to resentence Eser and it is therefore not strictly necessary to determine grounds 2 and 3. We make the following observations, however:
(r) In Bugmy the High Court said:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[60]
[60]Bugmy (2013) 249 CLR 571, 594–5 [43]–[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (citations omitted).
In Director of Public Prosecutions v Drake,[61] this Court said:
[61][2019] VSCA 293 (‘Drake’).
[T]he profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent’s personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent’s sentence.[62]
[62]Ibid [32] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
(s) It is not always possible to establish a causal connection or nexus between the childhood deprivation and the charged offending. As this Court said in Director of Public Prosecutions v Herrmann:[63]
[63][2021] VSCA 160, [45]–[46] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA) (citations in original).
The significance of the ‘general’ approach enunciated in Bugmy is that the relevance of deprivation to sentencing does not depend on proof of such a nexus. As Victoria Legal Aid pointed out in its helpful submission as amicus curiae, ‘the impact of disadvantage is complex, multilayered, non-linear and not easily “diagnosed” or measured’. The High Court’s recognition that serious childhood deprivation is likely to make an offender less morally culpable than ‘an offender whose formative years were not marred in that way’ reflects the principle of equal justice. As Dawson and Gaudron JJ said in Postiglione v The Queen:[64]
[64](1997) 189 CLR 295.
Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.[65]
[65]Ibid 301.
It is the mark of a humane society that the moral judgement expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender’s formative years. As the present case graphically illustrates, childhood trauma can permanently damage — and seriously distort — a person’s view of the world around them and their understanding of social norms. Thus, in Freeburn v The Queen [No 2],[66] it was accepted that the offender’s ‘background, of deprivation and abuse, played a material role in shaping his responses, and thus in his offending’.[67] In [Director of Public Prosecutions v] Snow [(a pseudonym)],[68] the Court drew attention to ‘the impact on the decision-making of individuals of growing up, and living, in circumstances of prolonged and widespread social disadvantage’.[69]
[66][2020] VSCA 176.
[67]Ibid [51] (Kyrou, Kaye and Emerton JJA).
[68][2020] VSCA 173.
[69]Ibid [79] (Maxwell P, Beach JA and Croucher AJA).
(t) The effects of profound childhood disadvantage and deprivation endure and must be given full weight in the sentencing exercise.
(u) If, in repeating the prosecutor’s submission that ‘circumstances of relative disadvantage in … formative years, while remaining relevant, decrease in significance in cases involving serious violent offending by repeat offenders where specific deterrence and community protection loom large’,[70] his Honour can be taken to have accepted this submission, then he was in error to do so. The effects of profound childhood disadvantage endure and must be given their full weight in every sentencing exercise. That weight does not diminish over time. Of course, depending on the circumstances of the case, factors such as general and specific deterrence and community protection may demand more competing weight in the sentencing mix and may thus alter the eventual outcome, but the weight given to profound childhood disadvantage is not diminished.
[70]Reasons (Eser) [107].
(v) As we have stated, counsel for the respondent in this appeal submitted that the disadvantage apparent in this case was ‘some such disadvantage’ but ‘[falling] short of circumstances that would enliven the principles in Bugmy’. This rather ungenerous submission ignores the evidence in the case.
(w) Turning to Eser’s intellectual disability, it will be recalled that the judge stated that it did not enliven Verdins principles (as there was no nexus between the disability and the offending), but he nevertheless took it into account as part of the applicant’s personal circumstances. The applicant’s intellectual disability deserved a good deal more attention than that. In Muldrock v The Queen,[71] the High Court observed that questions often arise about the causal relationship between an offender’s mental state and the commission of the offence. The Court noted:
[71](2011) 244 CLR 120 (‘Muldrock’).
Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[72]
(x) Nothing that was said in Muldrock altered the principles summarised in Verdins.[73]
(y) In this case the sentencing judge was required to consider the applicant’s childhood disadvantage as more than a mere matter of ‘historical significance to the administration of justice’.[74] It was relevant to an appropriate evaluation of his moral culpability.[75] Further, the sentencing judge was obliged to give the applicant’s very significant intellectual disability individual attention.
[72]Ibid 139 [54] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[73]Tran v The Queen (2012) 35 VR 484, 492–3 [28] (Maxwell P and Neave JA).
[74]Marrah v The Queen [2014] VSCA 119, [16] (Redlich and Tate JJA).
[75]Drake [2019] VSCA 293, [32] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
Grounds 4 and 5
As the sentencing discretion has been reopened it is unnecessary to consider either the parity ground (ground 4) or the manifest excess ground (ground 5). In the resentencing exercise we will be mindful of the matters of distinction between Jawahiri and Eser, including their respective roles in the offending, the offences to which each pleaded guilty (and the differing maximum penalties) and their disparate personal circumstances.
Resentence
We shall resentence the applicant Eser as party to a joint plan that involved Jawahiri, Eser and the unknown male punching and kicking the victim. The applicant’s awareness that Jawahiri possessed a weapon commenced very shortly after the 10 to 12-second attack commenced. Thereafter, he delivered at least two of the three kicks he aimed at the victim in total. That he did not desist when Jawahiri produced the weapon is a circumstance of aggravation. At the time that Eser participated in the attack he knew that it would probably cause serious injury.[76]
[76]See R v Crabbe (1985) 156 CLR 464 (in the context of common law murder); Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26, [3] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ).
Notwithstanding Eser’s success on ground 1, this remains very serious offending. Eser was party to an agreement to assault the victim in the knowledge that that vicious, three-on-one assault would probably cause serious injury. In resentencing Eser we take into account:
·the circumstances of the offending;
·the maximum penalty for this offence (15 years’ imprisonment);
·the need, albeit moderated, for general and specific deterrence, denunciation and punishment;
·his youth;
·his prospects for rehabilitation, which are only fair;
·the need for community protection from the applicant;
·his intellectual disability;
·his significantly disadvantaged childhood; and
·the principle of parity.
We will quash the sentence imposed and substitute a sentence of four years and six months’ imprisonment with a minimum term before parole eligibility of two years and six months. Pre-sentence detention of 720 days will be declared. Pursuant to s 6AAA of the Sentencing Act 1991 we state that but for Eser’s plea of guilty we would have sentenced him to six years’ imprisonment with a non-parole period of four years.
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