Karam v The King
[2025] VSCA 194
•22 August 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0062 |
| JOE KARAM | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST and McLEISH JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 August 2025 |
| DATE OF JUDGMENT: | 22 August 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 194 |
| JUDGMENT APPEALED FROM: | [2024] VCC 127 (Judge Mullaly) |
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CRIMINAL LAW – Appeal – Sentence – Conduct endangering persons – Causing injury intentionally – Racist motivation – First victim of African appearance – Applicant shouted racist abuse at first victim – Endangered first victim by driving vehicle towards him – Second victim of Indian appearance – Applicant used vehicle to run over second victim – Judge found racist motivation underlying offending against both victims – Applicant submitting in respect of second victim finding not open – Whether finding open – Close temporal proximity between offences – Open to view offences as part of single larger transaction – No error in judge’s finding – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Remorse – Letter of applicant expressing sorrow and claiming racism produced by drug-induced psychosis – Letter of friends of applicant attesting to applicant’s good character – Judge not dealing in terms with remorse – Whether judge erred by not having regard to remorse – Psychiatrist’s report showing applicant downplayed responsibility for offending – Judge referred to friends’ letter – Judge addressed remorse – Mere failure to refer to sentencing consideration not establishing failure to take into account – No error in judge’s approach – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Manifest excess – Guilty plea – Evidence of rehabilitation in custody – Applicant having spent about two years in custody before plea – No discount available for pre-sentence detention – Applicant serving terms of imprisonment for two unrelated sentences – Whether total effective sentence 6 years 3 months’ imprisonment and non-parole period 4 years 9 months for conduct endangering persons and causing injury intentionally manifestly excessive – Very serious examples of offending – Limited mitigating factors – Moderate orders for cumulation – Judge had regard to totality – No error in judge’s approach – Leave to appeal refused.
Sentencing Act 1991, s 5(2)(daaa); Criminal Procedure Act 2009, s 209.
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| Counsel | |||
| Applicant: | Mr N Papas KC with Ms J Poole | ||
| Respondent: | Ms K Hamill | ||
Solicitors | |||
| Applicant: | Marshall Jovanovska Ralph Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
MCLEISH JA:
On 5 October 2023, the applicant pleaded guilty to one charge of theft of a motor vehicle, two charges of conduct endangering persons and one charge of intentionally causing injury. On 19 February 2024 he pleaded guilty to charges of failing to render assistance after a motor vehicle accident and possession of a drug of dependence. Later that day he was sentenced as follows:
| Charge on Indictment | Offence | Maximum penalty | Sentence | Cumulation |
| Indictment M12470833A | ||||
| 1 | Theft[1] | 10 years’ imprisonment | 1 year imprisonment | 1 month |
| 2 | Conduct endangering persons[2] | 5 years’ imprisonment | 1 year and 8 months’ imprisonment | 8 months |
| 3 | Conduct endangering persons[3] | 5 years’ imprisonment | 2 years’ imprisonment[4] | 8 months |
| 4 | Causing injury intentionally[5] | 10 years’ imprisonment | 4 years and 8 months’ imprisonment | Base |
| Related summary offence | ||||
| 5 | Failing to render assistance after motor vehicle accident[6] | 8 months’ imprisonment or 80 penalty units | 4 months’ imprisonment | 2 months |
| Total effective sentence on Indictment M12470833A: | 6 years and 3 months’ imprisonment | |||
| Indictment M12470833B | ||||
| 1 | Possession of drug of dependence[7] | 1 year’s imprisonment or 30 penalty units[8] | 2 months’ imprisonment | None |
| Global total effective sentence: | 6 years and 3 months’ imprisonment | |||
| Non-parole period: | 4 years and 9 months | |||
| Pre-sentence detention declared: | N/A | |||
| Section 6AAA Statement: | Total effective sentence 8 years and 9 months’ imprisonment Non-parole period 6 years and 6 months | |||
| Other relevant orders: 1. Driver licence cancellation and disqualification for period of 6 years commencing 19 February 2024 2. Forfeiture order in respect of drugs possessed by the applicant subject of charge 1 on Indictment M12470833B. | ||||
[1]Contrary to Crimes Act 1958, s 74(1).
[2]Contrary to Crimes Act 1958, s 23.
[3]Ibid.
[4]A sentence of 1 year and 8 months’ imprisonment is recorded in the judge’s sentencing remarks and in an order subsequently made by the Court. The order was later amended to impose a sentence of 2 years’ imprisonment pursuant to s 104A(1)(a) of the Sentencing Act 1991.
[5]Contrary to Crimes Act 1958, s 18.
[6]Contrary to Road Safety Act 1986, s 61(1)(b). The applicant was charged with the summary offence in sub-s (4).
[7]Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 73.
[8]Ibid s 73(1)(b). It was not alleged that the possession of the relevant drugs was for a purpose related to trafficking, which would have attracted a higher maximum penalty: s 73(1)(c).
The judge had earlier given a sentence indication in respect of substantially the same offending.[9] He had indicated that, were the applicant to plead guilty, he would impose a maximum total effective sentence of 6 years and 8 months’ imprisonment with a non-parole period of 5 years.
[9]The sentence indication was made in respect of the offending described in the table above, other than the possession charge, and inclusive of a charge of dealing with proceeds of crime that was withdrawn before the plea.
The applicant sought leave to appeal against sentence on the following four proposed grounds:
(1)The individual sentences imposed on charges 2, 3 and 4 on Indictment M12470833A were each manifestly excessive.
(2)The sentencing judge erred by failing to adequately reduce the maximum sentence indicated at the sentencing indication hearing despite the changes in mitigating factors accepted at the plea hearing, which were not present at the time of the sentencing indication hearing.[10]
(3)The sentencing judge erred in giving too much weight to the offending being motivated by hatred or prejudice against a group of people with common characteristics without a formal finding of this as an aggravating factor.
(4)The sentencing judge erred by not considering and not mitigating the applicant’s sentence by reference to remorse.
[10]At the hearing of the present application, counsel informed the Court that this ground was no longer pressed. The written submissions in support of this ground sought to raise, among other things, the difference between the non-parole period imposed by the sentencing judge and that which he had foreshadowed as part of the sentence indication. It is worth noting that nothing in s 209 of the Criminal Procedure Act 2009 limits the non-parole period which may be imposed after the giving of a sentence indication. Section 209(1) refers only to a sentence more severe than the ‘sentence type or maximum total effective sentence’ indicated. Indeed, the legislation does not expressly provide for a sentence indication to include a non-parole period at all, and it may well be that it does not authorise that course: R v McStay (2022) 100 MVR 126, 142 [114] (Croucher J); [2022] VSC 268. It is not necessary, however, for us to address that issue further.
The applicant’s application for leave to appeal was filed out of time. An application for extension of time was granted on 21 June 2024. His application for leave to appeal was refused by T Forrest JA on 19 July 2024.[11] On 24 July 2024 the applicant filed a notice electing to renew his application for determination by the Court of Appeal constituted by at least two judges of appeal.[12]
[11]Karam v The King [2024] VSCA 164.
[12]Criminal Procedure Act, s 315(2).
For the reasons that follow, leave to appeal is refused.
The offending
During November 2021 Colleen Thompson advertised her 2016 Holden Commodore for sale. The applicant attended Ms Thompson’s address on 29 November 2021 to take the vehicle for a test drive, after which he agreed to purchase it for $52,000. He said he would make an initial payment of $20,000 on 30 November 2021 and pay the balance in two further instalments on 1 and 2 December. He showed Ms Thompson screenshots of scheduled bank transactions to that effect, signed a ‘Receipt of Vehicle Sale’ and gave her a photograph of his expired driver’s licence. The applicant then left Ms Thompson’s address in the vehicle. At this time the balance of his bank accounts was $4.45. He never made any payments to Ms Thompson for the vehicle (charge 1 — theft).
At about 8.28 am on 30 November 2021 the applicant called police to request their attendance at the Grand Chancellor Hotel in Melbourne. He said ‘there’s a lot of black cunts around the area and they’ve got guns and they’re threatening people in the street … they fucking pulled a gun on me’. Police attended and spoke with the applicant. An officer found that the applicant seemed paranoid, but that he was not presenting a threat to anyone and was compliant with police. The officer allowed him to leave.
At about 9.20 am, the applicant was driving the vehicle he stole from Ms Thompson along Lonsdale Street in Melbourne. At the same time, Travers McLeod was walking down the street with his colleague Akwasi Ampofo, who is of African appearance. The applicant shouted racial abuse at Mr Ampofo, telling him to ‘get out of the country’ and calling him a ‘black nigger’. The applicant then pointed the car at Mr McLeod and Mr Ampofo and drove towards them (charges 2 and 3 respectively — conduct endangering persons). After the car mounted the curb, Mr McLeod pulled Mr Ampofo behind a pillar. The applicant continued to shout abuse and drive erratically, accelerating and braking in short succession as other cars in the area sounded their horns.
By about 9.25 am the applicant had travelled near to the intersection between Easey Street and the Hoddle Street service road in Collingwood. There was a building at that location that was being used for COVID-19 testing. About 30 people stood in a line running from the building’s entrance on Easey Street then down the Hoddle Street service road. Bhir Singh, a man of Indian appearance who was working as a security guard, was standing on the footpath at the corner of the two streets.
The applicant came to a stop outside the building and reversed back and forth. Witnesses said he was acting erratically in the driver’s seat. He then drove towards Mr Singh, mounted the footpath, and struck him. The car hit Mr Singh in his left leg, causing him to be thrown over the bonnet and into the windscreen with enough force to smash it. He remained on the bonnet for about 10 metres until he fell off. Onlookers were terrified and many fled. Mr Singh’s injuries included a spinal fracture, ligament damage to his knee, cuts and bruising on his legs and head, and concussion. His mobility was subsequently affected to the extent that he required a walking stick. He has ongoing difficulties with dizziness and blackouts, and trouble concentrating (charge 4 — causing injury intentionally). The applicant left the scene (summary charge 5 — failing to render assistance after motor vehicle accident).
Not long after the attack on Mr Singh, the applicant was seen in Fitzroy gesticulating wildly, and in Parkville where people were observed running away from him. He was arrested at about 10.00 am and found to be possessing 7 grams of 1-4-butanediol, 1.4 grams of methylamphetamine, 0.4 grams of heroin and one diazepam tablet. At 12.00 am he took an oral fluid test that returned a positive result for methylamphetamine (charge 1 on Indictment M12470833B — possession of drug of dependence).
Sentence indication
The applicant initially defended the charges, other than the theft and drug charges, on the basis that he was not the driver of the vehicle at the relevant times. He nonetheless made an application for a sentence indication under s 208 of the Criminal Procedure Act, which was granted. As noted earlier, on 28 September 2023, the judge indicated that, if the applicant were to plead guilty, he would be likely to impose a maximum total effective sentence of 6 years and 8 months’ imprisonment and a non-parole period of 5 years.
In giving the sentence indication, the judge said he had ‘no doubt whatsoever that the [applicant’s] offending with respect to [Mr Ampofo and Mr Singh] was motivated wholly by his hatred for or prejudice against people with dark skin’. Defence counsel at that hearing conceded that this ‘racist motivation’ was a factor aggravating the offending.
Section 5(2)(daaa) of the Sentencing Act requires the sentencing judge to have regard to whether the offence was motivated by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated. By implication, the presence of such a motivation may be treated as an aggravating factor in the sentencing process.
Consistently with this provision, in the course of giving the sentence indication, the judge held that the racist conduct of the applicant ‘considerably elevates the [applicant’s] moral culpability [and] diminishes any basis for mercy or compassion’.
After the sentence indication was given, a report dated 12 December 2023 was prepared by Dr Clare McInerney, a forensic psychiatrist, that addressed the relevance of mental illness to the applicant’s offending. Dr McInerney considered that it was likely that a combination of intoxication and drug-induced psychosis were present at the time of the offending on 30 November 2021.[13] In light of that new information, at the plea hearing defence counsel withdrew the concession that the applicant had a racist motivation that attracted s 5(2)(daaa) of the Sentencing Act. On the plea, counsel argued that the applicant’s conduct was a product of psychosis, and that, in those circumstances, there was no basis upon which a racist motivation for that conduct could be an aggravating factor under s 5(2)(daaa). The prosecutor conceded that it could not be established beyond reasonable doubt, in light of Dr McInerney’s report, that the applicant had driven at persons because of their skin colour.
[13]The report responded to instructions to consider the relevance of mental illness to the charge of causing injury intentionally, and did not address the events of 29 November 2021.
Sentencing remarks
In sentencing the applicant, the judge accepted that the applicant experienced a drug-induced psychosis during the events of 30 November 2021.[14] He stated that the offending ‘seemed motivated by racism or hatred of dark-skinned people’ (specifically in the context of the offending against Mr Singh),[15] that using the vehicle as a weapon to target dark-skinned people was ‘grave offending’, and that the applicant’s racism and hatred would bewilder the community.[16] The judge recorded that, at the sentence indication, he had had ‘no doubt’ that the offending with respect to Mr Ampofo and Mr Singh was ‘motivated wholly’ by his ‘hatred for, or prejudice against, people with dark skin’.[17]
[14]DPP v Karam [2024] VCC 127 [11], [17], [19] (‘Sentencing Remarks’).
[15]Ibid [17].
[16]Ibid [21].
[17]Ibid [26].
The judge also found, however, that Dr McInerney’s report called for reconsideration of the extent to which the applicant’s racist motivation aggravated the offending.[18] He held that the applicant’s psychosis did not reduce his moral culpability generally,[19] but that it gave ‘important context to [his] racist motivations’ that called for moderation ‘to a considerable extent’ of the findings in the sentence indication (referred to at [15] above).[20] The judge observed that the applicant, whose mental health problems were being treated in custody, had come to be shocked by his ‘racist motivations’, which the applicant attributed solely to his psychosis.[21] The judge stated that the applicant’s position was supported by Dr McInerney’s report, as well as by letters written by persons who knew the applicant.[22]
[18]Ibid [27].
[19]R v Martin (2007) 20 VR 14.
[20]Sentencing Remarks [29].
[21]Ibid [22].
[22]Ibid [22]–[23].
The judge considered that the offending required significant weight to be given to denunciation, protection of the community, general deterrence and specific deterrence. Only a term of imprisonment could fulfil these purposes.[23]
[23]Ibid [31].
The judge turned to the applicant’s personal circumstances. When sentence was passed, the applicant was 35 years old. He was born in Lebanon into trying conditions — he told Dr McInerney about civil war and life in a shelter, and the death of his father from suicide. He migrated to Australia around 2000 and struggled with schooling because of language difficulties. After school, he worked as a painter and in logistics, including in a self-employed capacity.[24]
[24]Ibid [33]–[35].
The applicant was married from 2010 until 2015. After his marriage ended, he began to use drugs, which precipitated struggles with homelessness, addiction and criminality. The applicant stopped working in 2016 and became reliant on Centrelink payments. In 2017, he moved back to Lebanon in an attempt to manage his addiction and mental health issues. In Lebanon he was admitted to hospital for three months and diagnosed with schizophrenia. He ultimately returned to Australia without having resolved his problems.[25]
[25]Ibid [36], [38]–[39], [44].
The judge considered the applicant’s mental health history. A report of consultant psychologist Gina Cidoni found that he suffered from an adjustment disorder, anxiety and depression. Ms Cidoni considered that the applicant’s mental conditions would make prison more burdensome for him than for a person without those conditions.[26]
[26]The report of Dr McInerney, which was prepared after the applicant had spent time in prison, found that the applicant was not finding incarceration more burdensome than someone without mental health issues.
Between 2015 and 2019 the applicant had seven psychiatric admissions, some of which involved involuntary treatment. During that period, he attempted suicide; was diagnosed with antisocial personality disorder and, as mentioned, schizophrenia; experienced drug-induced psychosis; and exhibited paranoid beliefs about his family.[27]
[27]Sentencing Remarks [41]–[45].
Dr McInerney concluded that the applicant did not have schizophrenia, but it was her ‘impression’ that the applicant had a personality disorder with antisocial and borderline features. She said the applicant reported limited memory of the offending, which was consistent with intoxication, but that the observed reports of his paranoia were suggestive of drug-induced psychosis. Her opinion was that both intoxication and drug-induced psychosis were present, but that it was not possible to determine their relative contributions to the applicant’s state of mind, in particular his grossly deficient judgment, marked disinhibition and failure to consider the consequences of his actions.
Dr McInerney noted that the applicant had taken gamma hydroxybutyrate (‘GHB’) for the first time before the offending, and stated that GHB can have unpredictable effects. The judge construed her report as finding that GHB ‘had a significant effect’,[28] and because the applicant had not taken GHB before, the judge considered that he should not increase the applicant’s moral culpability on the basis that the applicant should have foreseen the prospect of a psychotic episode.[29]
[28]Ibid [47]–[50].
[29]Ibid [50].
Although the applicant was remanded in custody on 30 November 2021, he did not receive any credit for pre-sentence detention because any time spent on remand had already been credited to another sentence, the first of two for other offences that were imposed while the applicant was in custody awaiting sentence in the present matter. The applicant had been sentenced to two years’ imprisonment for an armed robbery that occurred on 30 July 2020, and to 22 months’ imprisonment for theft of a motor vehicle and an armed robbery on 23 and 24 November 2021. In both cases, a non-parole period of 12 months had been imposed. The judge took these sentences, and the applicant’s imprisonment since 30 November 2021, into account as matters relevant to the principle of totality.[30]
[30]Ibid [51]–[52].
The judge observed that the applicant had ‘many prior offences’ between 2015 and 2020, and that many of those that occurred towards the end of the period resulted in terms of imprisonment.[31]
[31]Ibid [53].
In custody, the applicant had completed a range of vocational programs as well as programs to deal with his addictions. The judge concluded that, once medicated and clear-headed, the applicant could determine what was in his best interests and apply himself accordingly. But he had been treated for addiction in the past and then resumed drug use and lapsed into criminality. The judge found that the applicant’s rehabilitation would be dependent on his commitment to staying drug-free.[32]
[32]Ibid [54]–[55].
The judge treated the applicant’s guilty plea as valuable and gave it extra weight because it occurred during the pandemic.[33]
[33]Ibid [56], citing Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175.
Ground 3—approach to racist motivation
It is convenient to start by considering the way in which the judge approached the issue of racist motivation for the offending in charges 2, 3 and 4.
Submissions
As mentioned earlier, in light of Dr McInerney’s report, the prosecutor conceded that it would not be possible for the judge to determine beyond reasonable doubt that the offending was motivated by a hatred or prejudice against dark-skinned persons. Because of that concession, and because the judge had accepted Dr McInerney’s findings, the applicant submitted that it was not open to find that the aggravating factor in s 5(2)(daaa) of the Sentencing Act was established. It was erroneous, then, for the judge to state that there was ‘a basis to moderate the findings with respect to [racist motivation] to a considerable extent’.[34] There was no finding open to the judge that could have been moderated, which meant the judge gave the matter too much weight.
[34]Sentencing Remarks [29].
At the hearing of the present application, junior counsel for the applicant submitted that it was not reasonably open to find that the offending against Mr Singh was racially motivated. It was pointed out that, whereas the applicant had delivered himself of a racist outburst before the offending in Lonsdale Street, he had not done so in the second incident, despite having had the opportunity to do so as the vehicle idled before he drove it at Mr Singh. It was submitted that there was no evidence as to the racial profile of the group outside the COVID-19 testing centre, and the possibility could not be excluded that Mr Singh was targeted because he was a security guard.
The respondent submitted that there was ample evidence to find that the offending against Mr Ampofo and Mr Singh was racially motivated. The basis for the finding was clear in the concession initially made by the applicant, and it was not to the point that the parties reversed their positions on the plea: the prosecutor’s concession did not bind the judge. The judge found that the applicant’s psychosis gave ‘important context to [his] racist motivations’.[35] But psychosis did not ‘reduce [his] moral culpability generally’,[36] including in respect of his decision to select his victims on the basis of race. The respondent submitted that there had been no suggestion at the plea hearing that the motivation for the two incidents the subject of charges 2, 3 and 4 was different. The events were closely connected in time and the applicant’s counsel had initially conceded that both were racially motivated.
Consideration
[35]Ibid.
[36]Ibid.
Section 5(2)(daaa) of the Sentencing Act requires regard to be had to the question whether the offence was motivated by hatred for or prejudice against a group of people with common characteristics, with which the victim was associated or with which the offender believed the victim to be associated. By implication, in cases where that question is answered in the affirmative, beyond reasonable doubt, that matter may be treated as an aggravating factor in sentencing.
As outlined above, defence counsel initially accepted that the motivation described in s 5(2)(daaa) was established in this case. It was only after receipt of Dr McInerney’s report that counsel’s position changed. Defence counsel withdrew the concession and the prosecutor accepted that the requisite motivation could not be established beyond reasonable doubt.
The judge was not bound by the prosecutor’s concession. In any event, s 5(2)(daaa) required the judge to have regard to the motivation for the offending and to form a view as to whether it was of the kind described in the provision.
It was open to the judge to find that the applicant was wholly motivated to commit the offences the subject of charges 3 and 4 by hatred for or prejudice against people of dark-skinned appearance. The applicant said as much himself in his vituperative outbursts in the 000 call and in the course of the offending against Mr Ampofo and Mr McLeod. Nothing in Dr McInerney’s report altered the position so that this matter could not be seen to be established beyond reasonable doubt. In particular, the fact that the applicant was acting under a combination of intoxication and a drug‑induced psychosis does not gainsay that, while so influenced, he was motivated to offend against Mr Ampofo and Mr Singh by a hatred for, or prejudice against, people of dark-skinned appearance. In short, the psychological explanation for his conduct does not deny his own expressed motivation for that conduct.
Rather, consistently with the way the judge approached the matter, the presence of intoxication and the drug-induced psychosis were important in understanding the context in which the matter fell to be evaluated, and served to reduce the force of the impugned motivation as an aggravating factor.
In our opinion, it was well open to the judge to be satisfied beyond reasonable doubt as to the applicant’s racial motivation for the offending against Mr Singh. That offending took place about five minutes after the earlier attack and can be seen as part of a single larger transaction. It is inescapable that, having failed to harm Mr Ampofo, in particular, after the first attack, the applicant continued on his criminal rampage until he injured Mr Singh in a virtual repeat of the same conduct, and that the whole episode was driven by a single racist motivation, as the judge found.[37]
[37]Counsel for the respondent pointed out that there was evidence in the depositions that Mr Singh was also described as being of ‘African’ appearance, dispelling the possibility that Mr Singh was not, in fact, of dark-skinned appearance.
Leave to appeal must be refused under this ground.
Ground 4—judge’s treatment of remorse
Submissions
The applicant submitted that the judge failed to have regard to his remorse, which he had advanced as a factor in mitigation. Other than his guilty plea, he relied on a letter he wrote that was exhibited on the plea, in which he stated that he was ‘truly sorry’, that his actions were ‘horrendous’, that his offending was inexcusable but out of character, and that he was working to rehabilitate himself while aspiring to full time work. He also relied on a letter from two friends who had given him painting work over the years. They attested to his ‘very good character’ and recorded their intention to give him full-time work upon his release.
The applicant submitted that the judge appeared to have accepted during the plea that he was genuinely remorseful.[38] The judge had said:
[I]t does seem that through his friend and his own words … it fits the consideration and definition of remorse. He’s sorry for the people he hurt and wished he didn’t do it and wished he could turn it back - not so that he wouldn’t be in the trouble he’s in, but [so] they wouldn’t have the injuries and stresses that they did.
Despite this, there was no reference to remorse in the judge’s sentencing remarks. It was said to follow that he failed to have regard to a relevant consideration.
[38]Barbaro v The Queen (2012) 226 A Crim R 354, 365–6 [39]–[41] (Maxwell P, Harper JA and T Forrest AJA); [2012] VSCA 288.
The respondent submitted that there was ‘very limited’ evidence of remorse. The applicant had run a contested committal and only pleaded guilty after the sentence indication. In his interview with Dr McInerney he said that he had initially pleaded not guilty because he could not remember the relevant events, but that he changed his plea because he was worried about the possibility of a higher sentence if he was convicted after a trial. In the circumstances, it was open to the judge to find that the guilty plea was not evidence of remorse. Other aspects of the interview with Dr McInerney (which took place after the apology letter was written) tended to support that position: the applicant denied intentionally striking Mr Singh with the vehicle and ‘repeatedly’ told Dr McInerney that no aspect of the offending was intended.
The respondent submitted that the judge had regard to the letters said to demonstrate the applicant’s remorse.[39] It was significant that the applicant had not accepted complete responsibility for the offending, which made it understandable that the sentencing remarks only dealt with the letters in passing. The respondent submitted that the remorse expressed by the applicant was ultimately not deserving of any significant weight in the sentencing exercise.
Consideration
[39]Sentencing Remarks [22]–[23].
The applicant’s submission that the judge did not have regard to his expressions of remorse cannot be accepted. He referred to the letters third parties had provided to the court, and Dr McInerney’s report, which he found supported the applicant’s professed shock at his ‘racist motivations’.[40] Without using the specific word, it is plain that the judge addressed the issue of remorse. In any event, as the applicant accepted before us, mere failure by a sentencing judge to refer to a sentencing consideration does not establish that the judge has not taken that consideration into account.[41]
[40]Ibid.
[41]Koumis v The Queen (2008) 18 VR 434, 440 [64] (Redlich and Kellam JJA and Osborn AJA); Pihlgren v The King [2024] VSCA 47 [57] (Emerton P and McLeish JA); Carabott v The King [2025] VSCA 118 [41] (Niall CJ and T Forrest JA).
The judge was not obliged to attach significant weight to the applicant’s remorse, in circumstances where he had sought to downplay his responsibility for his actions, and even denied having intended to hit Mr Singh with the vehicle, when interviewed by Dr McInerney.
This ground also fails to attract a grant of leave.
Ground 1—manifest excess (charges 2, 3 and 4)
Submissions
The applicant submitted that the sentences imposed on charges 2, 3 and 4 were each manifestly excessive, especially having regard to the utilitarian value of the guilty pleas, the extent of his rehabilitation in custody and the principle of totality.[42]
[42]At the hearing, the applicant’s case on manifest excess also relied on the submission that the judge erred by finding that the offending against Mr Singh was aggravated by a racist motivation. For the reasons already given, we reject that submission.
In respect of totality, the applicant observed that the conduct constituting charges 2 and 3 occurred at the same time and that the conduct in charge 4 occurred shortly afterwards. Further, when he was sentenced, the applicant was already in custody serving a different sentence. He had been in custody since his arrest, which meant his incarceration had lasted for more than two years at the date of sentence.
The respondent submitted that the judge was correct to regard these as ‘grave and outrageous crimes’.[43] Significant weight should be given to denunciation, protection of the community, and both general and specific deterrence. The applicant already had a significant prior criminal history when he offended, and was subsequently sentenced twice for armed robberies.
[43]Sentencing Remarks [8].
The respondent argued that there was little the applicant could call on by way of mitigation, aside from the guilty pleas and his efforts to rehabilitate himself. The judge gave significant weight to both matters.[44] The respondent contended that there was no error in the judge’s approach to the question of totality: while the offending occurred within a short time period, the judge needed to order that some portion of the sentences on charges 2 and 3 would be served cumulatively on the sentence for charge 4 in recognition of the fact that there were different victims.
Consideration
[44]Ibid [54]–[56].
The question under the ground of manifest excess is whether the sentence imposed was wholly outside the range of sentencing options available to the judge.[45] The applicant must show that something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[46] An allegation of manifest excess is a challenge to the exercise of a discretion which does not depend on specific error, as articulated in House v The King.[47]
[45]R v Abbott (2007) 170 A Crim R 306, 309–10 [13]–[15] (Maxwell P, Eames JA agreeing at 312 [22], Habersberger AJA agreeing at 312 [23]); [2007] VSCA 32.
[46]Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P), citing Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
[47](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ). See Markarian v The Queen (2005) 228 CLR 357, 370–1 [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Hili v The Queen (2010) 242 CLR 520, 538 [58] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
At first blush the sentence of 4 years and 8 months’ imprisonment imposed on the charge of intentionally causing injury is at least stern, being just under half the maximum sentence, after a plea of guilty. But this was a very serious example of the offence. To drive a motor vehicle directly at a randomly selected pedestrian on a crowded public footpath, mounting the curb, hitting the pedestrian and then driving 10 metres with the injured man on the bonnet, is abhorrent conduct that strikes at the entitlement of the public to feel secure from physical harm while going about their daily lives. Mr Singh was concussed and has significant ongoing effects from this wholly unprovoked attack. The seriousness of the conduct is exacerbated, albeit in a moderated way in the present case as the judge recognised, by the fact that the ‘random’ victim was chosen because of the colour of his skin. The judge rightly emphasised the need for the sentence to reflect significant weight to denunciation of this conduct, protection of the community and both general and specific deterrence.[48]
[48]Sentencing Remarks [31].
The applicant had a poor criminal history and little to call in aid by way of mitigation beyond his commendable efforts towards rehabilitation while in custody, which ultimately remains subject to his ability to remain free of drugs.
In all the circumstances, the sentence imposed on the charge of causing injury intentionally was amply deserved.
Much the same can be said about the sentences for conduct endangering persons. It should also be observed that the cumulation ordered for that conduct, totalling 16 months for the two offences, is very moderate. The difference between the offences lies in the fortunate circumstance that Mr McLeod and Mr Ampofo were able to avoid injury by sheltering behind a pillar.
The judge had regard to the intervening sentences imposed on the applicant for armed robbery and was cognisant of the need to apply principles of totality. It is not suggested that any specific feature of the armed robbery sentences suggests that the present sentences breached those principles.
The applicant has not established that something must have gone wrong in the sentencing for these charges. To the contrary, in our view the sentences were just and proportionate. Leave to appeal must be refused in respect of this ground.
Conclusion
Leave to appeal is refused.
We should record our gratitude to counsel for the applicant who appeared pro bono, greatly assisting the Court in the finest traditions of the Victorian Bar.
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