Mogoai v The Queen

[2014] VSCA 219

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0088

DANIEL MOGOAI	Appellant
v
THE QUEEN	Respondent

S APCR 2014 0089

JAMES ANGEL ALEXANDER	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2014
DATE OF JUDGMENT:	22 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 219
JUDGMENT APPEALED FROM:	DPP v Mogoai & Ors (Unreported, County Court of Victoria, Judge Cotterell, 15 April 2014)

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CRIMINAL LAW – Sentence – Appeal – Recklessly causing serious injury and affray – Unprovoked attack – Youthful offenders – Delay – Good prospects of rehabilitation – Total effective sentence of 2 years and 6 months’ imprisonment with non-parole period of 12 months not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Appellant Mogoai	Mr M R Page	Greg Thomas & Associates
For the Appellant Alexander	Mr D D Gurvich	Turnbull Lawyers
For the Crown	Mr J B B Lewis	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA
PRIEST JA:

Introduction

1. Daniel Mogoai is now aged 23 years, having been born on 5 December 1990.  James Alexander is also aged 23 years, having been born on 1 November 1990.  Both were 21 years of age when the instant offences were committed. 

1. On 15 April 2014 each was sentenced to be imprisoned for 29 months on a charge of recklessly causing serious injury (charge 1), and for nine (9) months on a charge of affray (charge 4).  One month of the sentence on charge 4 was ordered to be served cumulatively on the sentence on charge 1, resulting in a total effective sentence of 30 months’ imprisonment, upon which a non-parole period of 12 months’ imprisonment was fixed.

1. Pursuant to leave granted by a judge of this Court, each has appealed against  sentence on a ground which asserts that the sentences are manifestly excessive.  (A second common ground, that the sentencing judge erred in finding that the assault by the appellants was unprovoked, was abandoned during the hearing of the appeal.)

1. For the reasons that follow, we would dismiss each appeal.

Factual background

1. During the early hours of 25 April 2012, the appellants, together with the appellant Mogoai’s younger brother, Blake Mogoai, and two young females, Rhiannon Lee Hocking and Almaz Rios, were involved in an incident on Chapel Street, South Yarra, in which Djordje Dimitrijevic and Darko Jakovijevic were

attacked.  The principal victim, Djordje Dimitrijevic, suffered serious facial injuries as a result.

1. It seems that Mr Jakovijevic, who had been drinking nearby with friends, had gone into a convenience store on Chapel Street to buy cigarettes and a bottle of water.  While at the convenience store, there was an altercation between Mr Jakovijevic and Hocking and Rios, both Hocking and Rios claiming that he had hit them.

1. After the altercation, Mr Jakovijevic continued to his friend’s car, where the Mr Dimitrijevic was waiting.  Hocking and Rios began shouting abuse at both Mr Jakovijevic and Mr Dimitrijevic, and Hocking telephoned the appellant Alexander, as a result of which both appellants arrived on the scene.  It was then that Mr Jakovijevic and Mr Dimitrijevic were attacked.

1. The Court viewed a video of the attack, which had been recorded by a bystander on a mobile telephone.  The video graphically depicts the assault, which the sentencing judge — correctly, in our view — found to be unprovoked.  Plainly, the situation that confronted the victims was made extremely volatile by the shameful actions of the two females, who encouraged the appellants and Blake Mogoai to attack the victims.  The physical violence is seen to commence when Blake Mogoai begins throwing punches at Mr Jakovijevic, whom he then pursues around the back of the car as Mr Jakovijevic tries to escape.  Shortly afterward, Mr Dimitrijevic is seen to be attacked by the appellants.  What occurred is readily discernible on the footage.  Mr Dimitrijevic is shown to be backed against the parked car, when he suffers a savage volley of punches from the appellants.  He can be seen to be doing little to defend himself from the brutal attack being mounted, ineffectually waving his arms around and unable to escape the raining blows.  It was, to say the very least, a nasty assault, and the video is sickening to watch.  A particularly unpleasant aspect is the final vicious punch delivered by the appellant Mogoai.  The sound of the blow connecting with Mr Dimitrijevic’s face is nothing short of nauseating.  Although the Court must be careful not to succumb to an emotional response to the violence perpetrated, and must approach the circumstances of the offence (and those of the offenders) in a balanced and objective manner, nonetheless the video footage helps one to gauge the gravity of the offending.  Further, the footage assists in assessing the effect on the victim.

1. The punches delivered to Mr Dimitrijevic, who, to our observation, was barely capable of defending himself, resulted in him suffering serious facial injuries — including multiple facial fractures to bones around his eyes and nose — requiring hospitalisation, surgery and the insertion of metal plates around his eye sockets.  He has since undergone regular counselling.  His victim impact statement makes clear the profound psychological effect the assault has had upon him.

Manifestly excessive sentences?

1. Counsel for the appellants were correct to abandon the second ground of appeal, which asserted that the judge erred in finding that the assault was unprovoked.  Quite plainly, it would have been untenable.  In her sentencing remarks, the judge said that the video footage taken by a bystander ‘depicts a frightening attack which appears unprovoked, particularly the attack on the taller victim, Mr [Dimitrijevic], who suffered a continuous series of blows from you, James Alexander and Daniel Mogoai’.  Her Honour’s description was apt (if, perhaps, understated).

1. On the hearing of the appeal, counsel for the appellant Mogoai — despite the abandonment of ground 2 — continued to urge that the events shown in the video ‘did not occur in a vacuum’.  He had, in the plea hearing before the sentencing judge, gone to some lengths to highlight that the appellants only attended the scene after being told that Hocking and Rios were ‘in trouble’.  It was claimed that Mr Dimitrijevic was only attacked after he raised a hand towards Rios, and that the ‘perception’ that Mr Dimitrijevic was attempting to strike Rios was what precipitated Mogoai’s actions, although counsel accepted that his client’s response was ‘disproportionate’.  Similar submissions were made on the appeal.  These submissions are without substance.  The matters relied upon provided no justification or excuse for the appellants’ brutal attack on a man who, quite clearly, was unable to offer any adequate defence. 

1. In each case, the appellants provided ‘particulars’ with the ground of manifest excess, claiming that the judge erred in not giving sufficient weight to the appellants’ plea of guilty and remorse; to the ‘principle of parsimony’;  and to the appellants’ personal circumstances.

1. Both appellants called in aid their youth, and the ‘principle of parsimony’,[1] urging the particular importance of the principle in light of their youth.  Counsel reminded the Court of the principles that apply to the sentencing of youthful offenders, recently set out by Redlich JA in Azzopardi.[2]  It was submitted that a youthful offender should not be sent to an adult prison if such a disposition could be avoided.[3]  So much may be accepted.  But the charge of recklessly causing serious injury in the present case was a serious example of a serious offence, which had significant physical and psychological ramifications for the victim.  Thus the appellants’ youth, and their prospects of rehabilitation, must to some extent be subjugated to other sentencing considerations, such as general deterrence.  As Winneke ACJ said in Wright,[4] youth and rehabilitation must take a ‘back seat’ to specific and general deterrence ‘where crimes of wanton and unprovoked viciousness are involved’, particularly where the perpetrator has been given previous chances.  The kind of offending that the appellant’s engaged in is, sadly, so prevalent, that general deterrence, specific deterrence and denunciation must be given prominence.

   [1]Sentencing Act 1991, ss 5(3) and 5(4).

   [2]Azzopardi v The Queen (2011) 35 VR 43, 53–6 [34]–[40].

   [3]R v Mills [1998] 4 VR 235, 241.

   [4]R v Wright [1998] VSCA 84, [6].

1. Significantly, each appellant has previously been sentenced for recklessly causing serious injury, albeit in the Children’s Court.  On 23 September 2008, the appellant Mogoai was released on a bond for that offence; and on 11 November 2008, on charges of robbery and recklessly causing serious injury, the appellant Alexander was released on probation.  Although, of course, the appellants are not to be again punished for their previous offences, and that, given their youth when dealt with by the Children’s Court, the relevance of the prior findings of guilt should not be given disproportionate weight, they remain relevant to the issue of the leniency that might otherwise be afforded to a first offender, and cast some light on the appellants’ moral culpability, their prospects of rehabilitation and their criminal propensities, and thus the need for community protection.[5] 

   [5]R v O’Brien & Gloster [1997] 2 VR 714, 718.

1. When pressed during the hearing of the appeal, counsel for the appellants did not contend that sentences of two and a half years’ imprisonment, with non-parole periods of 12 months’ imprisonment, are out of step with current sentencing practices.  They were right not to advance such a submission.  To illustrate, however, that the sentences imposed are within the range of those open, counsel for the respondent provided a table of comparative sentencing cases.  Some of the cases referred to, which involved youthful offenders causing serious injuries akin to those in this case, resulted in sentences not far removed from those imposed on the appellants.[6]  Counsel’s industry is commendable, but we do not find resort to so-called comparative cases and statistics particularly helpful in making a judgment as to whether the sentences imposed in this case are within the range of those open for this particular manifestation of the offence of recklessly causing serious injury.  As was observed in Nash:[7]

Experience shows that the circumstances of the commission of the offence of intentionally causing serious injury are almost infinitely variable, and thus the sentences commonly imposed widely vary.  There are cases which involve protracted savagery, while others are constituted by one punch.  Some involve the use of a variety of weapons.  Moreover, the injuries caused widely vary, from gross and permanently disabling injuries to others that barely cross the threshold of ‘serious’.  Accordingly, sentences widely vary, from suspended sentences of imprisonment at the low end of the spectrum, to head sentences of imprisonment in double figures at the high end.

[6]For example, Barlow v The Queen [2012] VSCA 37; Noa v The Queen [2013] VSCA 4.

[7]Nash v The Queen [2013] VSCA 172, [55] (Priest JA) (footnotes omitted). See also Jackson v The Queen [2013] VSCA 14, [34] (Priest JA); Tasevski v The Queen [2014] VSCA 135, [54] (Tate JA).

1. In the present case, weapons were not used, but it was an offence committed in company, and involved two young men viciously beating a man who was unable to offer much in the way of resistance.  Moreover, although the physical injuries were not of the gross or permanently disabling kind, neither were they at the lowest end of the spectrum.  Mr Dimitrijevic’s facial bones were fractured, and metal plates had to be surgically inserted in order to try and repair the damage that the appellants had inflicted.  He also carries psychological scars.  Thus although this was not an offence at the high end of the spectrum, it was far from being at the lowest.

1. Apart from their youth and prospects of rehabilitation, both appellants relied on delay as a significant mitigating feature.  Mogoai was arrested on 11 June 2012, and Alexander on 12 June 2012.  Both made ‘no comment’ interviews.  Offers to plead to the current charges made at committal mention in 2012 were rejected by the prosecution.  At a committal conducted on the papers on 14 January 2013, both appellants once again offered to plead to the current charges, but those offers were rejected.  It was only in March 2014, following the conclusion of a Basha[8] hearing — concerned with the victim, Darko Jakovijevic (rather than Mr Dimitrijevic) — that pleas to the current charges were accepted.

   [8]R v Basha (1989) 39 A Crim R 337.

1. Both appellants relied on the stress and uncertainty occasioned to them by having the threat of sentence hanging over their head for 21 months or thereabouts, and the fact that their rehabilitation had continued apace during that period.  Neither of them had been involved in any subsequent offending.  Undoubtedly the punitive effects of the delay, and the incipient rehabilitation during the delay, were mitigating features relevant to the imposition of sentence.[9]  The sentencing judge took both aspects of delay into account.

   [9]R v Merrett, Piggott & Ferrari (2007) 14 VR 392, 400–1 [34]–[38].

1. A further aspect of the delay sought to be relied upon was that the appellants were denied the possibility of summary jurisdiction by the prosecution’s failure to earlier accept the pleas to recklessly causing serious injury (the Magistrates’ Court having no jurisdiction to try intentionally causing serious injury — with which the appellants were also charged — summarily). The maximum sentence of imprisonment that the Magistrates’ Court exercising summary jurisdiction may impose for a single offence is two years,[10] and the maximum cumulative sentence is five years.[11] Moreover, the Magistrates’ Court at the relevant time had power to impose a suspended sentence, a power that the County Court did not possess.  We find these submissions unpersuasive.  They proceed on the premise that a magistrate would have imposed a lesser sentence of imprisonment than was imposed by the County Court, or may have suspended any sentence of imprisonment imposed.  In our view it is impossible to predict what a magistrate might have done in the circumstances, and thus whether the appellants have suffered any prejudice.  Other than saying that, in our view a magistrate would have been obliged to impose a substantial term of imprisonment, and would have been in error to suspend all of it, it is unproductive to focus on what may or may not have occurred had the appellants’ pleas been accepted earlier.  In any event, the submissions are apt to distract from the sole ground of appeal, which asserts that the sentences are manifestly excessive.

   [10]Sentencing Act 1991, s 113.

   [11]Sentencing Act 1991, s 113B.

1. Another submission that was something of a distraction was the appellants’ attempted recourse to the judge’s declaration pursuant to s 6AAA of the Sentencing Act 1991. Her Honour declared that, but for the pleas of guilty, she would have imposed a total effective sentence of three years’ imprisonment. Any appeal, however, must be against the sentence actually imposed, not against the s 6AAA declaration.[12] The s 6AAA declaration shed no light on whether the sentences passed were manifestly excessive.

   [12]R v Burke (2009) 21 VR 471, 477 [30]-[31].

1. Each appellant also relied on their pleas of guilty, which were offered early, had utilitarian benefit and demonstrated remorse.  It was accepted by the prosecution that they should be regarded as early pleas.  The sentencing judge took these matters into account.

1. Moreover, both appellants were able to demonstrate good work records, supportive families and positive efforts towards becoming productive members of the community.  The appellant Alexander additionally relied on a health scare, which required heart surgery and an extended stay in hospital.  The judge took all of these matters into account.

1. Notwithstanding the powerful mitigating features urged by each appellant, we are not persuaded that the sentences are manifestly excessive.  We might not ourselves have imposed a sentence of the same order, and, having regard to the appellants’ youth and prospects of rehabilitation, regard the sentences as stern.  But that is not to the point.  To succeed in this Court, the appellants needed to show that the sentences were altogether outside the range of those open to a judge in the sound exercise of discretion.  In our view, the judge imposed individual sentences that were within range, as is the total effective sentence.  Further, the judge again reflected the mitigating features in a lenient non-parole period, representing a term which is forty per cent of the total effective sentence.

1. In our opinion the ground of appeal common to each appellant cannot be upheld.

1. The appeals should be dismissed.

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