Raphel Jawahiri v The Queen
[2021] VSCA 75
•29 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0199
| RAPHEL JAWAHIRI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 March 2021 |
| DATE OF JUDGMENT: | 29 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 75 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1351 (Judge Tinney) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Application for leave to appeal against sentence – One charge of internationally causing serious injury – Joint attack – Unprovoked – No explanation for offending – Motive unclear – Use of meat cleaver as weapon – Life-threatening injuries sustained – Sentenced to 8 years and 6 months’ imprisonment with non-parole period of 5 years and 6 months – Whether sentence manifestly excessive – Early guilty plea – Young offender – Lack of prior convictions – Reasonable prospects for rehabilitation.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Marcevski Lawyers |
| For the Respondent | Ms R L Harper | Ms A Hogan, Solicitor for Public Prosecutions |
NIALL JA:
The applicant pleaded guilty in the County Court to one charge of intentionally causing serious injury.[1] On 28 August 2020, the applicant was sentenced by a judge of that Court to 8 years and 6 months’ imprisonment with a non-parole period of 5 years and 6 months. The maximum penalty for the offence is 20 years’ imprisonment.[2] The judge declared that but for the applicant’s guilty plea he would have sentenced the applicant to 11 years’ imprisonment with a non-parole period of 8 years.
[1]Crimes Act 1958 s 16.
[2]Ibid.
The applicant seeks leave to appeal on a single proposed ground that the sentence imposed by the judge was manifestly excessive.
Summary of the offending
The applicant was 20 years of age at the time of the offending and his co-accused was 19. On 25 October 2019, shortly before 11:00pm, while the victim was walking home from a friend’s house, he cut through the 7-Eleven service station on the corner of Racecourse and Boundary Roads in Flemington.
The applicant arrived at the service station at 10:51pm in a Subaru sedan. He exited the passenger side of the car and purchased food at the 7-Eleven. An unknown male exited the driver’s side of the car and also entered the store.
The applicant and the unknown male returned to the car, and the victim then walked through the petrol bowser area at 10:57pm. The victim made eye contact with the applicant who was by the passenger side of the car. The victim later stated that the applicant did not say anything to him, ‘but he was looking at me funny when I walked past’.
The victim continued to walk home, west along Racecourse Road. The applicant and the unknown male got into the car, drove out of the service station and headed west along Racecourse Road.
At 11:00pm the applicant, co-accused and an unknown male walked across Racecourse Road, near the public housing apartment buildings at 120 Racecourse Road. The applicant can be seen 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.
As the victim walked through the area to the rear of the apartments he saw the applicant, who he recognised from the service station, along with other males. One of the males, alleged to be the co-accused, called the victim over and spoke to him. The co-accused asked the victim what his name was and the victim responded with his first name. The co-accused then said, ‘Remember me ya fucking dog cunt?’
The victim put his hand out to shake the co-accused’s hand. The victim then saw that the co-accused was holding a knife with a blade about 15cm long. The co-accused then grabbed the victim and pulled him to the ground, and the three males, including the applicant, began to punch, kick and stab 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 the applicant 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 70 Racecourse Road. They were then captured on CCTV from an apartment building at 187 Boundary Road, North Melbourne, heading north. The offender wiped the meat cleaver and placed it in his bag.
Injuries
The victim was seriously injured in the attack. He was bleeding badly but managed to make his way home. He told his father that he had been stabbed and his father called an ambulance.
Police and paramedics attended the victim’s apartment. Police observed the victim in shock, blood on his shirt and head, and several wounds which appeared to be stab injuries, including a large gash on his back.
Paramedics examined the victim, who was conscious but not in a state to respond to questions. They observed multiple penetrating stab wounds to the victim’s torso (back and sides), one deep wound on his back with muscles or organs on view, a deep cut to the side of his head, and multiple lacerations to both hands, ranging from superficial to almost complete amputation of some fingers.
The paramedics called for Mobile Intensive Care Ambulance backup and the victim was transported to the Royal Melbourne Hospital, arriving at 12:06am on 26 October 2019, where he was admitted for treatment. The victim was in a critical condition on arrival, requiring urgent life-saving intervention.
The victim sustained serious injuries and received treatment as follows:
(a) admission to Intensive Care Unit;
(b) ongoing bleeding with 1.5 litres of blood loss;
(c) penetrating chest trauma with punctured lung requiring chest decompression and chest drain insertion (removed 1/11/2019);
(d) multiple knife wounds to the head, torso and limbs, a number of which required emergency surgery; and
(e) multiple fractures to the cheek bone, skull, ribs, hand, fingers, thumb and shinbone.
Investigation, arrest and interview
Following his arrest, the applicant made various statements and admissions. Initially, the applicant denied going to Flemington on the night in question, said that he did not know the victim and denied getting into an altercation. However, after being shown still images of the CCTV from the service station on Racecourse Road, the applicant agreed that it was him in the footage. He declined to name the other people who were with him.
Initially, the applicant answered ‘no comment’ when shown the CCTV stills of the three males attending 120 Racecourse Road, assaulting the victim and fleeing the scene. The applicant then stated that he did see the victim at the 7-Eleven but nothing happened as he walked past. He stated that he bumped into the victim at the bridge, and that he ‘got into a fight’ with him. He admitted that he had a meat cleaver and said, ‘I did what I had to do’ and that he hit the victim twice with the meat cleaver. When asked how he felt about it now, he said ‘regret’, and when asked why he did it, the offender stated ‘personal reasons’. The applicant has not provided any further explanation for the offending.
Reasons for sentence
The judge summarised the offending and the extent of the applicant’s severe injuries based on the agreed prosecution summary, describing the CCTV footage of the attack as ‘startling’.[3]
[3]DPP v Jawahiri [2020] VCC 1351, [19] (‘Reasons’).
The judge briefly set out the applicant’s background.[4] The applicant is the eldest of four children born to a mother from Ethiopia and father from Iran. He grew up in public housing units and his parents separated when he was 16. He was living with his mother and siblings at the time of his remand. He completed Year 12 VCAL and had obtained some work in construction but had not been able to maintain work for some years.
[4]Ibid [31]–[33].
The judge observed that drugs, mainly cannabis, cocaine and ice, but also alcohol, had been an issue for the applicant. The applicant had no prior convictions and this was his first time in custody.
The judge took into account a number of matters in mitigation, although he ultimately concluded that there was ‘not much in mitigation in this case’.[5]
[5]Ibid [99].
First, the applicant’s guilty plea.[6] The judge noted that the applicant pleaded guilty at a second committal mention in February 2020 after some negotiations.[7] He described this as ‘a plea at the very earliest of stages’ and took into account its utilitarian value.[8]
[6]Ibid [37]–[39].
[7]Ibid [18].
[8]Ibid [37]–[39].
Second, the judge took into account ‘the existence of some limited remorse’.[9]
[9]Ibid [45].
Third, the applicant’s ‘reasonable prospects of rehabilitation’.[10] The judge noted that it was the applicant’s first offence and that he was very young and had strong support from his family and church.[11] The judge was not satisfied that the applicant had insight into the reasons for his offending and was troubled that no motivation for the offending had been forthcoming.[12]
[10]Ibid [48].
[11]Ibid [46]–[48].
[12]Ibid [47]–[48].
Fourth, the applicant’s youth.[13] The applicant was 20 years of age at the time of the offending and 21 at the time of sentencing. The judge noted that the fact that the applicant was a youthful first offender was ‘a matter of significance’ but noted that generally, the more serious the offence, the less weight which youth and rehabilitation receive in the sentencing synthesis.[14] In particular, in the case of ‘crimes of wanton and unprovoked viciousness’, specific and general deterrence are given more weight than youth and rehabilitation.[15] Notwithstanding this, the judge observed that this was not the kind of case ‘where the mitigatory effect of youth is all but extinguished’.[16]
[13]Ibid [49]–[56].
[14]Ibid [54].
[15]Ibid [55], citing Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372 (‘Azzopardi’).
[16]Ibid.
Finally, the judge took into account the fact that COVID-19 had increased the custodial burden on the applicant.[17]
[17]Ibid [57]–[58].
The judge was required to take into account current sentencing practices, and noted that custodial sentences for this crime vary widely — from less than one year to more than 12 years — to reflect the range of offending, and that the most common sentence was 5 to 6 years.[18] He also noted that sentences have increased for this crime.[19]
[18]Ibid [65]–[66].
[19]Ibid [71], citing Lukudu [2019] VSCA 248, [46] (Niall and Ashley JJA) (‘Lukudu’).
In sentencing the applicant, the judge took into account the various purposes of sentencing — rehabilitation, punishment, denunciation, community protection and general and specific deterrence.[20]
[20]Ibid [75]–[83].
The judge also took into account the gravity of the offence.[21] He described the offence as ‘a deliberate, ruthless, joint armed attack’ and was satisfied beyond reasonable doubt that the applicant intended to cause really serious injuries.[22] He found that the offending was ‘a serious example’ of the crime[23] and the objective seriousness was ‘very high’.[24] He observed that the applicant had targeted an innocent man, the offence had involved some planning, the victim was unarmed, the attack was seemingly unprovoked and the applicant had used a meat cleaver to attack a defenceless victim, causing grave injuries.[25]
[21]Ibid [84].
[22]Ibid [92].
[23]Ibid [86], [96], [99].
[24]Ibid [101].
[25]Ibid [86]–[89].
The judge found that the applicant’s culpability was ‘very high’ and that the only reduction in that regard arose from his youth.[26] In sentencing the applicant, the judge took into account the ‘very sizeable’ impact of the applicant’s crime,[27] which he noted had ‘changed [the victim’s] life’[28] and caused injuries with ‘substantial and protracted’ effects.[29] He noted the applicant’s concession that both limbs of the definition of ‘serious injury’ were satisfied,[30] and observed that the applicant was lucky that the victim had survived otherwise he would likely have been facing a murder charge.[31]
[26]Ibid [101].
[27]Ibid [25].
[28]Ibid [24].
[29]Ibid [90].
[30]Ibid.
[31]Ibid [11], [90].
Submissions
Applicant
The applicant submits that the sentence imposed was manifestly excessive and it can be inferred that the judge erred in the exercise of the sentencing discretion when regard is had to the applicant’s early guilty plea, youth, lack of prior convictions and reasonable prospects for rehabilitation.
The applicant accepts that the offending was a serious example of a serious offence but submits that his youth remained an important consideration in arriving at an appropriate sentence.[32]
[32]Azzopardi (2011) 35 VR 43, 58 [53]; [2011] VSCA 372 (Redlich JA).
The applicant notes that there do not appear to be any other recently decided cases in which a youthful offender with no prior convictions and reasonable prospects for rehabilitation has been sentenced to 8 years and 6 months’ imprisonment (or more) for the offence of intentionally causing serious injury. Further, he notes that there are many other cases in which young offenders have been sentenced to 6 years or less for the same offence.[33] He submits that if this sentence stands, it would set a new high bench mark for a case with these features.
[33]McGuigan v The Queen [2012] VSCA 121; Guden v The Queen (2010) 28 VR 288; [2010] VSCA 196; Gosland v The Queen [2013] VSCA 269; Wallace v The Queen (2012) 35 VR 520; [2012] VSCA 114; Hart v The Queen [2020] VSCA 194.
The applicant submits that the sentence imposed was inconsistent with current sentencing practices and has drawn attention to a number of cases which are said to demonstrate this.[34]
Respondent
[34]Hudson v The Queen [2013] VSCA 218; Yang v The Queen [2011] VSCA 161; Taskiran v The Queen [2011] VSCA 358; Mann v The Queen [2011] VSCA 189; Hope v The Queen [2018] VSCA 230; Azzopardi (2011) 35 VR 43; [2011] VSCA 372; R v Chong [2008] VSCA 119; Lukudu [2019] VSCA 248.
The respondent notes that the judge assessed the objective seriousness of the offence as very high, the culpability of the applicant as very high and the offending as ‘very comfortably above mid-level’ based on the horrific nature of the attack and the life threatening injuries caused to the victim.
The respondent says that the judge took into account the matters which the applicant raised in mitigation. The judge recognised that the more serious the offending, the less weight the factors of youth and rehabilitation carry in mitigation. However, the judge took them into account and the sentence was mitigated to an appropriate extent by the applicant’s youth, first offender status and prospects for rehabilitation.
The respondent notes that the judge was aware of the limitations of current sentencing practices and comparative cases because circumstances vary from case to case. The respondent submits that the cases upon which the applicant relies demonstrate that a variety of circumstances can give rise to a range of sentencing outcomes. In oral submissions, the respondent said that the offending in Lukudu was comparable to the applicant’s offending.
Consideration
A sentence of 8 years and 6 months’ imprisonment on a plea of guilty by a young man with no relevant prior convictions requires close attention. Given the importance that must be placed on rehabilitation for young offenders, who lack maturity and may be prone to impulsive and dangerous conduct, a court often extends leniency and imposes imprisonment terms that would be inadequate for an older offender.[35] A young person, who is in a stage of maturation and development ‘may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour’.[36] Paradoxically, ‘the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation’.[37]
[35]R v Mills [1998] 4 VR 235; Azzopardi (2011) 35 VR 43; [2011] VSCA 372.
[36]Azzopardi (2011) 35 VR 43, 54 [35]; [2011] VSCA 372 (Redlich JA).
[37]Ibid 54 [36].
However, it remains necessary for the Court to impose a sentence that adequately accommodates all sentencing principles, including protection of the community, denunciation and punishment. These matters, including the need for deterrence, may push against a lenient disposition. As Batt JA explained in Director of Public Prosecutions v Lawrence:[38]
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, whilst 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.[39]
[38](2004) 10 VR 125; [2004] VSCA 154.
[39]Ibid 132 [22].
This was a brutal, unprovoked attack that resulted in extremely serious injuries to the victim. Although the entire attack was over in less than a minute, the victim was almost immediately pushed to the ground and was set upon by the applicant and his two co-offenders. The attack in company on the solitary victim resulted in a number of terrible wounds and was, as the judge described, a serious example of a serious offence.
The applicant provided no explanation or motive for the offending. The assault did not arise in a context where tempers were flaring as a result of an earlier altercation or incident. The applicant and his co-offenders had seen the victim a very short time before at the service station and then got in front of the victim who walked towards his assailants. The victim’s attempt to extend his hand as a gesture of goodwill was met with a ferocious attack. The applicant’s failure to provide an explanation did not aggravate the offending. However, the lack of any explanation was relevant to the judge’s assessment of the applicant’s remorse, rehabilitation prospects and risk of future offending.
In his written argument, the applicant relied heavily on a comparison with other cases in which young offenders have been sentenced for intentionally causing serious injury.[40] The point sought to be made was that the sentence imposed on the applicant was not consistent with current sentencing practices when his youth, absence of prior convictions and prospects for rehabilitation are factored into the analysis.
[40]Hudson v The Queen [2013] VSCA 218; Yang v The Queen [2011] VSCA 161; Taskiran v The Queen [2011] VSCA 358; Mann v The Queen [2011] VSCA 189; Hope v The Queen [2018] VSCA 230; Azzopardi (2011) 35 VR 43; [2011] VSCA 372; R v Chong [2008] VSCA 119.
(f) In Hudson v The Queen,[41] the offender was 20 when he committed the offence of intentionally causing serious injury (sentence: 10 years and 6 months). The offending ‘was grave indeed’. The injuries included severe swelling of the brain, skull fractures, a fracture to the spine and stab wounds to the arm and back. The offender had 32 prior convictions.
[41][2013] VSCA 218.
(g) In Yang v The Queen,[42] the offender was 23 when he committed the offence of intentionally causing serious injury (sentence: 8 years and 6 months). He attacked his victim with a meat cleaver for financial gain. The victim suffered facial fractures, a facial laceration and the possibility of permanent blindness or eyesight damage in one eye. The offender had 34 prior findings of guilt from 11 court appearances, 10 of which had resulted in convictions, as well as a further conviction from Queensland.
[42][2011] VSCA 161.
(h) In Taskiran v The Queen,[43] Taskiran was 18 when he committed the offence of intentionally causing serious injury (sentence: 8 years and 6 months). He had three relevant prior appearances in the Children’s Court and no prior convictions. Nabalarua was 19 when he committed the offence of intentionally causing serious injury (sentence: 7 years). He had no prior convictions. The victim 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.
(i) In Mann v The Queen,[44] the offender was 23 and had no prior convictions when he committed the offence of intentionally causing serious injury (sentence: 8 years). The victim was struck to the head with a handle of a pressure cooker, and a rolling pin. His throat was slashed with a knife and he 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.
(j) In R v Chong,[45] the offender was 22 when he committed four offences of intentionally causing serious injury (sentences: 3 years, 6 years, 6 years, 7 years). He pleaded guilty. He had no prior convictions. The victim of the offence for which the offender was sentenced to 7 years’ imprisonment 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. As a result of the brain injury he experienced post-traumatic amnesia that lasted about 21 days. He suffered from significant ongoing cognitive deficits.
[43][2011] VSCA 358.
[44][2011] VSCA 189.
[45][2008] VSCA 119.
The applicant also referred to a long list of cases of youthful offenders sentenced for 6 years or less for intentionally causing serious injury.[46]
[46]See fn 33 above.
Consistency in sentencing outcomes is an important objective. For that reason, the sentences in other cases may help inform an assessment of whether a sentence in a given case is outside the range available. However, there are limitations in the utility of a comparative exercise.
As Gageler and Gordon JJ observed in Director of Public Prosecutions v Dalgliesh (a pseudonym):[47]
Sentences are not binding precedents, but are merely ‘historical statements of what has happened in the past’. As was said in Hili v The Queen, ‘[t]hat history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits’ (emphasis added). Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.[48]
[47](2017) 262 CLR 428; [2017] HCA 41.
[48]Ibid 454 [83] (citations omitted) (emphasis in original).
The respondent referred to Lukudu.[49]In that case, this Court upheld a head sentence of 9 years for intentionally causing serious injury. After a short review of some cases in this Court, it was said:
A consideration of cases in this Court for intentionally causing serious injury reveals that there is a wide range of circumstances covered by this offence; that sentences for the offence have, in recent times, increased; and that it is relevant to have regard to the use of a weapon, the context in which the offence occurred and the severity of the injuries sustained by the victim. Moreover, general deterrence remains an important aspect of a just sentence in relation to offences of this kind. Sentences in the high single figures, and into the double figures, have been imposed.[50]
[49][2019] VSCA 248.
[50]Ibid [46] (Niall and Ashley JJA).
Certainly, the review of cases shows a range of outcomes. Sentences in the high single figures are by no means unheard of. In my view, the sentence imposed does not obviously stand out from the sentences imposed in the cases to which the applicant refers. However, by reference to those cases, the sentence was a stern one. Given the gravity of the injuries and the circumstances in which the offence occurred, a lengthy term of imprisonment was required.
However, the concern I have is that the applicant is young with no prior convictions and has completed Year 12 VCAL. In these circumstances, the potential for rehabilitation must be considered both real and extremely important. The interplay between rehabilitation for a young offender and the need to respond to a very serious offence is a difficult one for a sentencing judge. I am persuaded that it is at least arguable that the sentence reveals that the judge gave inadequate weight to those factors so as to render the sentence manifestly excessive. The applicant has made out a case for the grant of leave to appeal.
Conclusion
In my opinion, the applicant has an arguable case that the sentence is wholly outside the range of sentences that were open to the judge. That being so, leave to appeal will be granted.
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