Singh v The Queen
[2021] VSCA 345
•13 December 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0110
| GURPREET SINGH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, EMERTON and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 November 2021 |
| DATE OF JUDGMENT: | 13 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 345 |
| JUDGMENT APPEALED FROM: | [2020] VCC 700 (Judge Hampel) |
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CRIMINAL LAW – Appeal – Conviction – Recklessly causing serious injury – Whether acquittal of co-accused inconsistent with applicant’s conviction – Rational explanation for different verdicts – Separate charges of causing serious injury ‘in circumstances of gross violence’ – Late amendment of particulars of gross violence – Whether unfair prejudice – Applicant acquitted on gross violence charges – No unfairness – Jury question – Timing of disclosure – Whether procedural unfairness – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Recklessly causing serious injury – Plea of not guilty – Applicant sentenced to 6 years and 6 months’ imprisonment with non-parole period of 3 years and 6 months – Whether manifestly excessive – Sentence within range – Leave to appeal granted – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C A Boston | Allan McMonnies Barristers and Solicitors |
| For the Respondent | Ms R L Harper | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
EMERTON JA
SIFRIS JA:
Introduction
The applicant and his co-accused, JR, were charged on indictment with intentionally causing serious injury in circumstances of gross violence[1] (charge 1) and, in the alternative, recklessly causing serious injury in circumstances of gross violence[2] (charge 2), intentionally causing serious injury[3] (charge 3) and recklessly causing serious injury[4] (charge 4). Both pleaded not guilty to each charge.
[1]Crimes Act 1958 s 15A.
[2]Ibid s 15B.
[3]Ibid s 16.
[4]Ibid s 17.
Following a trial in the County Court at Geelong, on 13 February 2020, the applicant was found guilty by a jury on charge 4. He was found not guilty on charges 1–3.
JR was found not guilty on each charge.
On 8 May 2020, the applicant was sentenced on charge 4 to six years and six months’ imprisonment with a non-parole period of three years and six months.[5]
[5]The maximum penalty for charge 4 is 15 years’ imprisonment.
The applicant seeks leave to appeal against both conviction and sentence. For the reasons that follow leave to appeal is refused in relation to conviction. In relation to sentence we would grant leave to appeal but dismiss the appeal.
Circumstances of the offending
Prior to the offending, the applicant and the complainant, LS, were well acquainted and had been friends. The pair attended college together in India and both came to Australia in 2007. The applicant and LS had lived together in the same house for many years.
LS had lent money to the applicant for the deposit on a house. The amount was contested, but it was common ground the applicant had only repaid a portion of the debt. In October 2016, LS allowed the applicant a further 12 months to pay the balance.
By the time that period expired, the applicant had still not repaid the balance and LS started chasing the applicant for payment. LS asked JR, a mutual friend, to contact the applicant about the repayment.
LS said that on the evening of 14 October 2017, he received a number of threatening phone calls from the applicant and JR.
After work that evening, LS went with work colleagues to Eastern Beach in Geelong.
At around 10:30 pm, the applicant and JR arrived at the beach, having been driven there by a third person, BS. BS remained in the car while the applicant and JR went to the beach. The applicant and JR spent a short time at the beach before returning to the car and being driven off.
LS gave evidence that the applicant and JR got out of the car, approached him and started hitting him with rods. LS clarified that one weapon was actually a wheel brace, which he later grabbed from the applicant.
LS said that the applicant came at him from the front and hit him hard on the head with the wheel brace. He said that he blocked a swing with his hand and then wrestled the weapon free and swung it at the applicant and hit him. LS said that the applicant then swung at him again, this time with a different weapon that LS described as a knife, causing a deep laceration to LS’s elbow.
LS said that, at the same time as the applicant was hitting him from the front, JR was hitting him from behind with a metal rod.
LS said that at the end of the altercation he was left holding the weapon he had grabbed from the applicant. He said he threw it out the window as his friend drove him to the hospital. It was later retrieved by police and found to be a wheel brace.
The applicant did not dispute that he had assaulted LS but said that he had acted in self-defence. He gave evidence at trial. The applicant contended that he had gone to the beach at LS’s invitation to resolve the question of the amount still owing, and to work out a repayment schedule. He said that when he arrived at the beach, he got out of the car, carrying bank statements, and approached LS. He asserted that LS was the initial aggressor and had struck the applicant first, with a wheel brace which had been concealed behind his back.
In evidence in chief, the applicant stated that he then ‘blanked out’ and came to with a wheel brace in his hand. He had no memory of hitting LS. However, in cross-examination, he initially acknowledged that he hit LS two or three times, before maintaining that he had blanked out and could only assume he had struck him. The applicant said that when he came to, LS was gone and so the applicant dropped the wheel brace and returned to the car and was driven off. The applicant contended that he did not have any other weapon at the time.
JR did not give evidence at trial.
LS suffered a life-threatening head injury, a broken elbow, broken hand and lacerations to the side of his skull and elbow. He required surgery to repair the skull fracture and relieve the pressure on his brain. The surgery also removed fragments of bone in the skull, and repaired the skull through a plate and pins. Further surgery was carried out on LS’s elbow.
Dr Charles Li, a neurosurgery registrar at the Alfred Hospital, gave evidence. LS was admitted to the hospital on 15 October 2017. Dr Li did not treat LS but was authorised to go through LS’s medical records and explain what was in them. Dr Li opined that LS’s head injury was caused by ‘high impact focalised trauma’. However, Dr Li was not able to give an opinion about the cause of the elbow or hand injuries because that was outside of his area of expertise. No other medical evidence was led about the cause of those injuries. There was no evidence of injury to LS’s back area.
The applicant suffered broken teeth and a significant injury to his mouth.
Eyewitness evidence
Three of the men who were at the beach with LS gave evidence. The first, HS, said that the applicant and JR got out of the car as soon as it stopped, went straight to LS, and immediately began hitting him. HS said that both men had weapons, one a rod-type object, and the other something that may have been a knife or machete because it reflected light. He said he saw LS put his arms up to defend himself. He said he did not see LS strike either the applicant or JR and did not see the wheel brace, but was aware LS had thrown something out of the window as he drove LS to the hospital.
The second man, PS, also said that two men went straight to LS and immediately began to hit LS. He said one of the two men, he did not know which, had a long rod in his hand and was striking LS with it. He also said that he did not see LS strike either of the men and did not see the wheel brace in LS’s hand at the conclusion of the assault. He agreed in cross-examination that he had not seen all of the incident.
The third man, GS, said that he saw both men get out of the car with weapons. He said he immediately called 000 and had his back to where the men and LS were, so did not see any striking. He said he heard yelling and screaming. He also said he did not see LS holding the wheel brace at any stage.
Another man, AK, unconnected to LS, the accused or the group at Eastern Beach, witnessed part of the incident. He saw the car pull into the car park and a man get out. He said the man was holding something shiny like a hammer and started chasing another man. He then called 000 as he walked quickly away. He did not see any fighting before he left.
The driver of the car that brought the applicant and JR to the beach, BS, gave evidence. He said that he drove from Werribee to Geelong with the applicant and JR. He said that, when they arrived at the beach, the applicant and JR got out of the car and he did not see or hear anything until they returned about a minute later. He said he was not aware of either the applicant or JR carrying weapons when they got out of the car. He said that the applicant was holding some papers in his hand which he believed may have been bank statements relating to the amount of the debt outstanding.
CONVICTION APPEAL
Proposed grounds of appeal
The applicant relies on the following three proposed grounds of appeal against conviction:
Ground 1: The guilty verdict returned on charge 4 in relation to the applicant was inconsistent with the not guilty verdict returned on that same charge in relation to [JR], resulting in a substantial miscarriage of justice.
Ground 2: The applicant was denied procedural fairness as a consequence of a question from the jury not being disclosed to the parties before a related ruling was handed down, giving rise to an irregularity in the trial and resulting in a substantial miscarriage of justice.
Ground 3: The learned trial judge erred in encouraging and permitting the prosecution to enlarge its case after all of the Crown witnesses had been called, contrary to the principle in King v The Queen (1986) 161 CLR 423.
Proposed ground 1 — inconsistent verdicts
Submissions
In his written case, the applicant submitted that the jury’s verdict that he was guilty on charge 4 was inconsistent with the jury’s verdict that JR was not guilty, given the following:
First, the way the prosecution case was put.
Second, to the extent that evidence led by the prosecution was inconsistent with the account given by the applicant that it was the victim who produced a wheel brace, the evidence — given by the victim, [HS] and [PD] — was that the applicant and [JR] both approached and hit the victim at the same time. The applicant and [JR] either both were the initial aggressors or neither was. They either both acted in self-defence (including defence of another) or neither did. In light of the evidence, the applicant either committed the offence with [JR]’s assistance or encouragement or he did not commit the offence at all.
Third, if the jury could not reasonably exclude the applicant’s account, then both he and [JR] were not guilty of each charge (including charge 4).
Fourth, if the jury did exclude the applicant’s account, that non-acceptance of his evidence obviously did not found a basis for the applicant but not [JR] to be convicted.
Fifth, [AK]’s evidence did not explain the verdicts. The man he described as having held something shiny like a hammer could not have been the applicant.
Sixth, if [JR] was not guilty on charge 4 then so too was the applicant. A conclusion that [JR] acted in self-defence but the applicant did not was not open.
In oral submissions, the applicant’s counsel emphasised that the Crown case was that both the applicant and JR were involved in the attack on LS, at the same time, and that all Crown witnesses who saw the attack said this was what had occurred. Counsel said:
The Crown put its case on different legal bases in respect of each accused but in the circumstances of this case, on the way the case was run, that does not provide a legitimate explanation for different verdicts. The Crown case in respect of the applicant was that he himself caused serious injury to the complainant or in the alternative, that he and the co-accused [JR] had caused or contributed to the to the serious injury. The Crown case in respect of the co-accused [JR] was that he had caused or contributed to the serious injury by his own conduct or in the alternative, and this is the difference, he had intentionally or encouraged or assisted the applicant to do so but all of those legal bases of criminal culpability were tied, in this case to the factual tenor of the Crown case, namely that both accused were involved in the attack on the complainant simultaneously and as I said, all of the Crown witnesses who saw the attack testified that the two accused had attacked the victim simultaneously.
In oral submissions counsel for the applicant accepted that it would defeat the primary legal basis of the case against JR if it could not be proved that he had caused any injury. However, counsel maintained that, even if the jury was not satisfied that JR had directly caused serious injury, he had — by his presence and conduct in hitting LS from behind — intentionally encouraged or assisted the applicant to do so by subduing LS.
The respondent contended that this proposed ground relied on the erroneous assertion that JR’s defence was self-defence, or more specifically, defence of another. In fact, the respondent said, JR’s defence was that he was not involved in any assault upon LS. Counsel pointed to the characterisation of JR’s defence in the trial judge’s charge to the jury:
[I]t is the case put by [JR’s counsel] on behalf of [JR] that you cannot be satisfied on the evidence that [JR] struck any blows at all to [LS]; that the evidence, [JR’s counsel] argues, supports that [JR] went to Eastern Beach without any weapon, that he got out of the car without any weapon, that he had no intention at the time of getting out of the car of causing serious injury to [LS] with a weapon; that he did not attack or join any attack on [LS], and did not intentionally encourage or assist [the applicant] to attack [LS]. And therefore, he should be found not guilty of all charges.
The respondent submitted that JR’s written defence response did not raise self-defence, nothing in his counsel’s cross-examination raised the issue of self-defence and his counsel’s address did not refer to self-defence at all. According to the respondent, JR’s counsel’s address consisted almost entirely of an attack on the prosecution witnesses, designed to show that the Crown could not prove its case that JR was involved in the assault.
The respondent submitted that defence of another was a ‘fall back’ defence for JR, in the event that his primary defence was not successful. The respondent said it was clearly left to the jury as a secondary defence, pointing to comments made by her Honour later in the charge:
Now, so far as [JR] is concerned, as I understand it the primary case that was put on behalf of [JR] is that the evidence cannot satisfy you beyond reasonable doubt that the attack on [LS] happened as [LS] and the eye witnesses at the beach said; that you cannot be satisfied beyond reasonable doubt that, and you certainly could not be satisfied beyond reasonable doubt on the evidence that [JR] struck [LS] or assisted [the applicant] or encouraged him.
So that is, if you like, the primary way, as I understand it, the case was put in respect of [JR]. But it seems to me there is a secondary argument that may be open on the evidence, depending on the fact findings that you make, that if there is evidence that [JR] was concerned that it would be open to you to find that he did not more than go in to break up the fight, and that anything that he did was done in defence of [the applicant] and himself.
Analysis
It was clearly open to the jury to distinguish between the conduct engaged in, and the roles played, by the applicant and JR respectively. There is a rational explanation as to why the applicant was convicted and JR was acquitted.[6]
[6]Avery (a pseudonym) v The Queen [2014] VSCA 86, [109]–[115] (Weinberg JA).
The applicant gave evidence and admitted striking LS but claimed it was in self-defence, a claim rejected by the jury. LS confirmed that it was the applicant who first struck him, from in front, on the head, causing serious injury. By contrast, JR did not give evidence, denied any involvement and required the Crown to prove the case against him. The availability on the evidence of the defence that JR was acting in defence of the applicant was only raised by the trial judge. It was JR’s position that he was not involved in the physical altercation at all.
Although the Crown case was that both the applicant and JR were involved in the attack on LS at the same time, the evidence of the altercation was far from clear. PS said that he did not see all of the incident. He said that one of the men had a long rod and was striking LS. The applicant admitted striking LS. JR did not. Neither GS nor AK saw any striking. HS said both men approached LS and started hitting him. Finally there was the evidence of LS. He said that the applicant hit him first and from the front. He said that JR struck him from behind, after the applicant had first struck him, but there was no evidence of any injury to the back of his head or body. The altercation happened very quickly. The jury had for its consideration all of the evidence and the defences of the applicant and JR.
The jury was given specific instructions to consider the evidence and case against each of the applicant and JR separately and told that it could deliver different verdicts. No exception was taken to this aspect of the charge.
The cases were different and the strength of the evidence against each of the applicant and JR was different. It was a matter for the jury which evidence it accepted and which evidence it rejected. Having regard to the state of the evidence and the way in which the applicant and JR presented their respective defences, there was a rational and proper basis for the jury to treat the applicant and JR differently.
In our opinion the proposed ground is not reasonably arguable and leave to appeal on this ground is refused.
Proposed ground 3 — enlargement of Crown case
Ground 3 concerns the alleged ‘enlargement’ of the prosecution case by the amendment to the particulars of charges 1 and 2 to refer to ‘a weapon or weapons’ rather than specifically to a knife.
In oral submissions, the applicant addressed proposed ground 3 before addressing proposed ground 2. We will follow that course. However, before doing so, it is necessary to set out the factual background which is relevant to both proposed grounds.
Background
As noted earlier, charges 1 and 2 alleged that the applicant had caused serious injury intentionally, or recklessly, ‘in circumstances of gross violence’. The relevant circumstances were said to be that he ‘planned in advance to have with [him] and to use offensive weapons, namely a wheel brace and a knife, and in fact used those offensive weapons to cause the serious injury’.
The eye witnesses described having seen a variety of weapons including a rod, a machete and a hammer. Although the Crown ran its case on the basis that the injury to LS’s elbow was caused by a knife, the medical evidence was that it was more likely a blunt force injury.
Before the close of the Crown case, the trial judge sought clarification from the prosecutor about how the Crown put its case in relation to the weapon or weapons used.
During the course of that discussion, her Honour said:
I’ve been thinking in terms of, if the jury ask me questions for clarification, what I’d be saying to them in terms of what the evidence was, rather than looking at telling you how to run your case, but concern about the difference between what to me the evidence reveals, and that committing yourself either to a wheel brace and knife, or to wheel brace and two other weapons.
The Crown subsequently sought leave to amend the particulars of the gross violence charges (charges 1 and 2) on the basis that the offensive weapons alleged were a wheel brace and ‘a weapon or weapons’.
Before ruling on the proposed amendment the judge discussed the amendment with the applicant’s counsel. Her Honour asked counsel specifically if the amendment would cause the defence any forensic disadvantage. Counsel was invited to say what he would have done differently in the course of the trial had he been given earlier notice of the amended particulars.
Counsel agreed, on two occasions, that there was no forensic disadvantage to the defence and, indeed, that there may be a forensic advantage, in allowing the amendment. A little later and after discussion with counsel for JR, the judge again suggested to counsel for the applicant that the amendment was to the applicant’s advantage rather than disadvantage. At this point, counsel appeared to retreat from his earlier concession. When asked whether he would have done anything differently had charges 1 and 2 been particularised as proposed, he said that he would have been ‘more guarded’ in cross-examination. He said that he had had his ‘radar set’ for issues that may have substantiated some other way of putting the charge coming out in evidence, which it did not.
The judge then said that the prosecution would be permitted to make the amendment, and that if the defence persuaded her that there was a legitimate forensic disadvantage, then the remedy would be the discharge of the jury. The matter was stood down briefly for the defence to consider its position.
Upon resuming, counsel for the applicant submitted that the defence would suffer an unfair forensic disadvantage if the Crown was permitted to change the particulars. The basis for this submission was not explained. Counsel confirmed that although he opposed the amendment, no application for a discharge of the jury would be made.
The judge then delivered her ruling, and said:
I am satisfied that it is fair, in the interests of justice and in the interests of a fair trial, that the Crown be able to particularise its case in accordance with the evidence as it has been adduced in the trial, namely that the weapons that it relies on as the means for causing the serious injury to the victim are now to be particularised as ‘a wheel brace and other weapon or weapons’.
I am not satisfied that there is any legitimate forensic disadvantage to either accused as a result of that, for the reasons that were discussed in argument. In particular because it was clear from the depositional material that varying descriptions were given of the weapon, or of the weapons said to be held by both accused, and that it was always open on the evidence for there to be evidence from which a jury could be satisfied that the accused, wielding weapons, caused serious injury to the complainant. The particularisation of particular weapons is not a necessary element of the offence, and the description by the complainant of the weapons he said were used is nothing more than an evidentiary factor, but is not conclusive or decisive.
Therefore, I rule that it is properly open to the Prosecution to go to the jury on the basis that the weapons used were offensive weapons, a wheel brace and other weapons (weapon or weapons).
Her Honour then informed counsel that a question had been received from the jury:
Having now ruled, let me tell you of a question that was passed to me from the jury whilst they were waiting, while we were having this discussion.
And it’s this question: ‘charges 1 and 2 name a wheel brace and a knife. Do we need to find beyond reasonable doubt that these particular items were used, or just offensive weapons of some kind were used?’
So it’s good to see that the jury seems to be concentrating on the issues. That means that there’s no need for there to be any other evidence from the prosecution, and subject to my speaking to the jury about records of interview and statements, then the prosecution can close its case.
The trial judge provided this Court with a report dated 12 October 2021, detailing the relevant chronology concerning the receipt of the jury question. Her Honour reported that on the recording of the trial, it appeared that the question was passed to her associate while the matter was stood down to allow the applicant to consider whether he would make an application for discharge of the jury. Her Honour stated in her report that shortly after resuming, she informed the parties that a note had been received during the short break.
Submissions
The applicant submitted that a substantial miscarriage of justice had occurred as a result of the trial judge encouraging and ultimately permitting the Crown, after the evidence had concluded, to amend the particulars to replace the reference to a knife with a reference to ‘a weapon or weapons’. This was said to involve an impermissible enlarging of the Crown case and to suffer from the vice identified by the High Court of Australia in King v The Queen.[7]
[7](1986) 161 CLR 423; [1986] HCA 59 (‘King’).
In the course of argument in this Court, counsel for the applicant (who did not appear at the trial) was repeatedly asked how defence counsel would have conducted the case differently had the particulars of charges 1 and 2 been in the amended form from the outset. It was submitted in response that defence counsel’s assertion that he would have cross-examined differently should be accepted at face value. The expert witness and LS were cross-examined on the basis that a knife caused the elbow injury. It was submitted that defence counsel might have adopted a different strategy — for example , by ‘not talking up the various weapons used’ or by deliberately pursuing the ‘strategy of confusion’ which JR’s counsel was said to have pursued.
The respondent submitted that the trial judge’s ruling did not impermissibly enlarge the Crown case, as the planned use of an offensive weapon was the element in question and the precise implement was only a particular. The second weapon was variously described as a ‘rod’, ‘hammer’, ‘bar’ and ‘knife’. The change from knife to ‘weapon/weapons’ related only to the elbow injury and did not make for a different case in circumstances where the evidence as to the cause of that injury was uncertain. It was submitted that it was not necessary for the jury to decide which weapons caused which injuries.
The respondent further submitted that the applicant did not seek the remedy of a discharge as raised by the trial judge, nor did he seek a reconsideration of the ruling.
Analysis
We do not accept that there has been any miscarriage of justice as a result of the amendment of the particulars to charges 1 and 2.
The amendment was only relevant to the ‘gross violence’ charges comprising charges 1 and 2. The applicant was acquitted on these charges.
The amendment did not enlarge the case so far as charge 4 was concerned. The kind of weapon used was not an element of the offence of recklessly causing serious injury. Rather, it was the infliction of injury that was important and the critical element of the offence. Indeed, it is unnecessary for the offence of recklessly cause serious injury that any weapon be used.
In fact, the Crown did not change the way in which it presented its case to the jury. Despite the amendment, the Crown maintained its position that a knife was used to cause injury to LS’s elbow. The Crown addressed the jury in opening and in closing on that basis. The applicant persisted with the submission that the wheel brace was used in self-defence and caused injury to LS’s elbow, which was consistent with the manner in which cross-examination of LS was conducted. The judge also referred to the knife in her charge to the jury. The amendment was therefore of no consequence to the way in which the parties presented their cases to the jury and did not cause any prejudice to the defence.
The applicant’s reliance on King v The Queen[8] is misplaced.In that case, the applicant, King, was charged on indictment, together with a man named Matthews, with the murder of King’s wife. The main Crown witness was a man named Siemsen, who gave evidence that he was asked by King if he knew anyone who would be willing to kill King’s wife. Siemsen gave evidence that, amongst other things, he told King that Matthews might do it and he subsequently gave Matthews money from King and a sawn-off rifle. It was not in doubt that Mrs King had been murdered by someone. At the trial, the Crown case was presented upon the basis that Matthews killed Mrs King.
[8]Ibid.
On the first day of the summing up, the judge directed the jury that it was not open to them to bring in different verdicts in relation to King and Matthews. Despite the way in which the Crown case had been presented, the Crown prosecutor objected to this direction and submitted that it was open to the jury to be satisfied there was an agreement between Siemsen and King to find someone to kill Mrs King, and that Siemsen did find someone who carried out the killing, but it was also open to the jury to fail to be satisfied that it was Matthews. The judge accepted this submission and amended his direction to the jury. The jury delivered a verdict of guilty against King but acquitted Matthews.
King appealed successfully on the basis that the trial miscarried when, at the insistence of the Crown, the judge introduced for this first time in his summing up the possibility that some person other than Matthews had killed the deceased. The element of surprise was held to have resulted in possible prejudice to King’s case because his counsel had cross-examined Siemsen and addressed the jury in reliance upon the presentation of the Crown’s case that Matthews was the person who killed Mrs King. The Court of Criminal Appeal quashed the conviction and ordered King be re-tried. King appealed to the High Court on the ground that a new trial should not have been ordered and instead a verdict of acquittal should have been ordered.
This case is clearly distinguishable from the one before us. The change made to the Crown case in King was far more significant. Here, the offensive weapon particular in charges 1 and 2 was amended in circumstances where there was evidence before the jury giving rise to uncertainty as to the precise type of weapon used to inflict one or more of the injuries. The central issue in the trial of the applicant was not whether or how the injuries were inflicted, but whether they were inflicted in self-defence. Moreover, the Crown opened and closed its case to the jury on the same basis, namely, that the weapons involved were a wheel brace and a knife.
Further, in King, the change was not raised until the evidence had been completed, addresses had been made and the summing-up was in progress. The amendment in this case was made before the close of the Crown case and before the applicant’s counsel addressed the jury. The applicant had the opportunity to make submissions about the proposed amendment and to seek a discharge of the jury or for her Honour to reconsider her ruling.
As counsel for the applicant properly accepted, the principle on which the decision in King rests is a principle of fairness. That principle would only apply to this case, counsel accepted, if it could be shown that that late amendment of the particulars to charges 1 and 2 had unfairly prejudiced the applicant’s conduct of his defence to charge 4. For the reasons we have given, there was no such unfairness. In our opinion, the proposed ground is not reasonably arguable and leave to appeal on this ground is refused.
Proposed ground 2 — procedural fairness
Submissions
The applicant submitted that he was denied procedural fairness as a consequence of the question from the jury (referred to above) not being disclosed to the parties before the trial judge ruled on the amendment. It was submitted that the trial judge was obliged to disclose the question before delivering her ruling and that the applicant should have been given the opportunity to consider the jury question and address it in making submissions about the issues and applications that were in the course of being canvassed, including whether a discharge application would be made. The applicant contended that this involved a denial of procedural fairness resulting in a substantial miscarriage of justice. According to the applicant, it does not matter that the jury question related to charges 1 and 2.
In oral submissions, the applicant’s counsel submitted that there was no opportunity for defence counsel to consider the question from the jury or its implications. After ruling on the amendment the judge immediately moved on and asked defence counsel whether he would be calling any evidence. Defence counsel was not an experienced criminal trial counsel and — it was said — may not have appreciated that he could apply for a discharge of the jury or may not have felt that would be a well-received course given the particular context.
The respondent submitted that the applicant was not denied procedural fairness because the communication from the jury was disclosed to counsel. Further, the respondent argued that that it would not have made any difference if the jury question had been disclosed sooner (even assuming it could have been), as the applicant did not demonstrate what might have been said or done differently. The respondent also contended that the applicant had an opportunity to make an application after disclosure, either that the jury be discharged or that her Honour revisit her ruling, and he did not do so.
Analysis
We do not accept that the applicant was denied procedural fairness by being informed of the jury question after deciding not to seek a discharge of the jury based on the amendment of the weapons particulars.
First, the note from the jury was disclosed to the parties before the jury question was answered.
Secondly, we are not persuaded that earlier disclosure would have made any difference to the way in which defence counsel conducted the applicant’s defence. After the disclosure, counsel for the applicant did not make any further submission or request an adjournment to consider the matter further. The trial proceeded without objection. Counsel clearly had an opportunity to consider the matter and, if thought necessary, to make further submissions. No submissions were made as to precisely what counsel would have done differently had the jury question been disclosed before the ruling on the amendment. No submission was made to us as to what would have been done differently. The applicant and JR had different interests and, if there was a strategy of confusion available, it was available to the applicant’s defence counsel as much as it was available to JR’s defence counsel. The applicant’s defence counsel chose not to take that approach and directly challenged LS on the basis of his instructions that LS was the instigator.
Finally, in all of the circumstances, it cannot be said that the applicant lost the opportunity to apply for the discharge of the jury, or make any other application in response to disclosure of the jury question. It is no answer to submit that counsel was inexperienced, even if he was, or that an application would not have been well received.
In our opinion, the proposed ground is not reasonably arguable and leave to appeal on this ground is refused.
SENTENCE APPEAL
Proposed ground of appeal — manifest excess
The applicant relies on the sole proposed ground of appeal that the sentence imposed (six years and six months’ imprisonment) was manifestly excessive.
Reasons for sentence
The judge began by describing the circumstances of the offending. The judge explained that she was proceeding for sentencing purposes on the basis that the jury must have been satisfied that the applicant struck LS with one or more weapons, causing or contributing to the serious injury sustained by him and that, at the time the applicant struck LS, the applicant was aware that he would probably cause or contribute to the serious injury.
The judge rejected the applicant’s submission on the plea that he should be sentenced on the basis that he was acting in ‘excessive self-defence’ and stated that the jury must have also been satisfied beyond reasonable doubt that, at the time, the applicant was not acting in self-defence.
The judge also noted that she proceeded on the basis of the uncontested evidence that the applicant had run away, leaving LS still holding the wheel brace, bleeding profusely, and at no stage that night or later did he make any inquiries about LS or express any concern for his welfare.
The judge then turned to the seriousness of LS’s injuries. She noted they were life threatening and that, fortunately for LS, the dire prognosis did not materialise. The judge referred to LS’s victim impact statement, which made clear the effect that the injuries had on him. LS stated that he felt betrayed by the attack because he and the applicant were close friends. LS also stated that he had flashbacks and difficulty sleeping, for which he attend counselling twice a week. LS said that he takes medication for headaches and pain, and has returned to work, although does not have full mobility.
The judge described the offending as serious, carrying as it does a maximum penalty of 15 years.[9] She said that the fact that the applicant was acquitted of some more serious charges did not detract from the objective seriousness of the offending.[10] The features that made this offending serious were the use of the wheel brace as a weapon against an unarmed person, who was taken by surprise. Further, the attack itself and the injuries that resulted made the offending serious. The judge found that the attack was premeditated in the sense that the applicant attended Eastern Beach armed, immediately attacking the complainant and then driving off.[11] The judge described the offending as a ‘brazen’ and ‘ferocious and terrifying attack’.[12] Accordingly, the judge found the applicant to have a high level of moral culpability,[13] and considered that the principles of denunciation, deterrence and just punishment should carry ‘considerable weight’.[14]
[9]DPP v Singh [2020] VCC 700 (‘Reasons’) [18].
[10]Ibid.
[11]Ibid [19]–[20].
[12]Ibid [22].
[13]Ibid [21].
[14]Ibid [23].
The judge then detailed the applicant’s personal circumstances, which can be summarised as follows:[15]
[15]Ibid [25]–[29].
·the applicant was 36 at the time of sentencing, and had no prior criminal history;
·the applicant is married and has two children;
·he arrived in Australia in 2007 initially to study and then commenced working. The applicant had continuously been in work until his remand;
·the applicant’s prior character, support from family and friends and work history were all indicators for the judge to conclude that he had good prospects for rehabilitation;
·the applicant has no history of substance abuse, psychological or psychiatric disorders that would be connected to his offending. Further, the judge considered that this meant that the applicant would not likely reoffend;
·as it was the applicant’s first time in custody, the judge accepted that prison would cause hardship; and
·the judge did not accept that the injuries sustained by the applicant should be taken into account as extra-curial punishment.
It was submitted on behalf of the applicant that he was remorseful for his conduct. However, the judge described this remorse as the applicant ‘feeling sorry for [himself]’ in the face of being convicted and imprisoned.[16] A psychological report prepared by Mr Jeffrey Cummins diagnosed the applicant with an adjustment disorder, which the judge found was attributable to the consequences of his conviction.[17] The judge found that the applicant’s expressions of remorse in his interview with Mr Cummins should be given no weight, as in that interview the applicant had maintained the version of events that he relied on at trial.[18] Further, the judge did not accept the opinions contained in the character references that the applicant was remorseful, as this was inconsistent with the applicant’s conduct and with the manner in which the trial was conducted. The judge found that there was no evidence of a genuine expression of remorse towards the complainant.[19]
[16]Ibid [30].
[17]Ibid.
[18]Ibid [31].
[19]Ibid [32].
The applicant is not an Australian citizen, but obtained permanent residency in 2014 with his wife, and his two children were born in Australia. The applicant faces deportation at the conclusion of his sentence, and the judge accepted that this would be distressing and represent a real burden for the applicant. Further, it was accepted that this would represent a greater burden to the applicant in the custodial setting.[20] However, the judge did not accept that this hardship could be considered so exceptional so as to lead to the imposition of a sentence that would not trigger automatic deportation.[21]
[20]Ibid [35]–[39].
[21]Ibid [42]–[43].
Submissions
The applicant submitted that the sentence was wholly outside the available sentencing range because of a combination of the following considerations:
·the applicant’s lack of prior convictions, lack of history of engaging of acts of physical violence and that he does not suffer from an intermittent explosive disorder or antisocial personality disorder;
·the embarrassment, hurt, shame and guilt that the applicant felt as a result of his conduct;
·the delay from 14 October 2017 (when the offending was committed) to 8 May 2020 (when the applicant was sentenced);
·the possibility that the applicant was experiencing acute symptoms of shock and stress when he was assessed by Mr Cummins, and Mr Cummins’ opinion that his symptoms were consistent with Adjustment Disorder which developed in response to the offending and Mixed Disturbance of Emotions and Conduct;
·the applicant’s family support and good work history;
·the prospect that the applicant will be deported and his fear of being deported, which will give rise to additional hardship in custody;
·Mr Cummins’ opinion that the offending was situationally motivated and that the risk that the applicant would commit a further offence of violence was low;
·the issues put in dispute at trial were confined; and
·the prohibition in s 5(3) of the Sentencing Act 1991 against imposing a sentence more severe than that necessary to achieve the applicable sentencing purposes.
The respondent submitted that the test of manifest excess cannot be satisfied in this case and the sentence was not outside the range of sentences available. While the sentence imposed was relatively high compared to other sentences for this offence, this was a very serious example of the offence. Further, the respondent submitted the applicant was not remorseful, was not entitled to a discount for a guilty plea, no Verdins principles were engaged and the applicant’s moral culpability was high.
The respondent contended that the judge gave full weight to the matters in mitigation. The respondent noted that some of the matters sought to be relied on by the applicant were considered and specifically rejected because the judge did not find the necessary factual basis. The respondent said, in particular, that the assertion that the matters put in issue at the trial were confined, even if accepted, did not have any relevance because the trial was not shortened in any meaningful way and no remorse or acceptance of responsibility could be distilled from the way the trial was run. The respondent also submitted that the delay was not atypical and nothing was advanced on the plea or on appeal as to any specific feature of the delay which was said to be relevant.
Analysis
In order for the applicant to succeed on this proposed ground, it is necessary to show that the sentence imposed is wholly outside the range available to the sentencing judge. That is, it must be shown that it was not reasonably open to the judge to come to the conclusion which the judge did, if proper weight had been given to all the relevant circumstances of the offending and the offender. This is a stringent requirement, which is difficult to satisfy.[22]
[22]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
The clear and comprehensive reasons for sentence do not disclose any error. It was open to the judge to impose the sentence that she did and the sentence was within range.
The judge correctly emphasised the gravity of the offending, as described in paragraphs [80] and [81] above. This was, as the judge recognised, a ‘brazen’ and ‘ferocious and terrifying’ attack. The applicant used weapons against an unarmed victim who was taken by surprise. The victim was known to the applicant; they had been friends for many years. The purpose of the attack was apparently to intimidate LS into not pursuing the applicant for repayment of moneys. There was a level of premeditation or planning. The injuries suffered by LS were severe and life-threatening. In these circumstances, the applicant’s moral culpability is high. The maximum penalty for the offence is 15 years’ imprisonment. Unsurprisingly, the applicant did not challenge the judge’s assessment of the severity of the offending nor his moral culpability. In the circumstances, it is clear that, subject to the applicant’s personal circumstances, denunciation, deterrence and just punishment must carry considerable weight.[23]
[23]Reasons [23].
The applicant’s personal circumstances were carefully and properly considered by the judge. The judge took into account the applicant’s prior good character and prospects of rehabilitation, including his family support and work history.[24] Her Honour also gave adequate consideration to the hardship the applicant may suffer in custody, particularly in respect of the COVID-19 pandemic and the risk of deportation and hardship on his family.[25]
[24]Ibid [26]–[27], [34].
[25]Ibid [28], [35]–[43].
Although deportation is a risk, there is no certainty that the applicant will be deported upon release. The cancellation of his visa was mandatory because of the length of his sentence of imprisonment, but the relevant minister has a discretion under the Migration Act 1958 (Cth) to revoke the cancellation. In the prosecution’s Submission for Sentence, counsel referred to the success rate for such revocation as between 34 and 41 per cent.
Furthermore, in Guden v The Queen, this Court said:
Of course, as this Court made clear in Griffiths,[26] the sentencing court cannot be asked to speculate. If defence counsel on a plea in mitigation can say no more than that a term of imprisonment of more than 12 months will, upon its expiry, enliven the power of the Minister for Immigration either to revoke an existing visa or to decline to renew one, then deportation may properly be viewed — as in Griffiths — as ‘a completely speculative possibility’.[27]
[26]R v Griffiths (unreported, Court of Appeal, 29 April 1998).
[27](2010) 28 VR 288, 295 [28]; [2010] VSCA 196 (Maxwell P, Bongiorno JA and Beach AJA) (citation in original).
We accept, however, that the applicant’s time in custody will be more onerous as a result of concerns he will have regarding his possible deportation at the end of his sentence.
Mr Cummins, a psychologist, diagnosed the applicant with an adjustment disorder.[28] However, the judge found that it was clear from Mr Cummins’ report that this was a direct result of being confronted with the consequences of conviction.[29] We do not regard this diagnosis or the circumstances of the applicant’s assessment by Mr Cummins as a relevant factor in mitigation.
[28]Reasons [30].
[29]Ibid.
Further, as noted earlier, the judge did not find the applicant to be remorseful. Her Honour found, instead, that the applicant was sorry for himself, the plight he found himself in and for the impact on his family.[30] The judge made clear, however, that the applicant was not to be punished for his lack of remorse.[31]
[30]Ibid [30]–[31].
[31]Ibid [33].
The submission that there should have been mitigation because the issues raised at trial were confined does not have any force. In some cases, running a trial on confined issues could be taken to show some degree of acceptance of responsibility, or even remorse. Also, it might significantly shorten the trial. However, that consideration does not apply to this case. The applicant did concede that LS suffered a serious injury and implicitly accepted he had caused it. However, the applicant advanced a completely different version of events and the defence run at trial involved a wholesale attack on the credit of LS and other witnesses. The trial was not shortened in any meaningful way by any factual concessions that were made, and no remorse or acceptance of responsibility could be distilled from the way the trial was run. In respect of delay, a delay of approximately two and a half years between offence and sentence is not atypical of matters that proceed to trial. Some delay resulted from the charges being initiated in the summary stream and some further delay resulted from an interpreter at the first listing of the committal. However, nothing was advanced on the plea or on this application as to any specific feature of the delay which was said to be relevant.
The judge noted that the applicant could not call in aid youthful impulsivity, the benefit of a guilty plea reduction or a condition which reduced his moral culpability.[32] The report and the opinion of Mr Cummins does not assist the applicant to advance any of the factors raised in mitigation.
[32]Ibid [45].
Reference to comparable cases assists in the consideration of the applicable sentencing range. In Director of Public Prosecutions v Marino,[33] the offender was sentenced to five years’ imprisonment following a guilty plea to a charge of recklessly causing serious injury. The offender had been arguing with the victim over a drug debt and had ‘king hit’ the victim causing severe head injuries. The offender was young, showed remorse and had good prospects of rehabilitation.
[33][2011] VSCA 133.
In Hamid v The Queen,[34] the offender and a co-offender attended a party with intent to attack the victim. The co-offender lured the victim outside, and the offender then punched the victim in the neck with a knuckle duster with blade attached and continued to punch the victim as he tried to leave. The victim suffered deep lacerations, blood loss, a rib fracture and part of his ear was severed. The offender was found to have high moral culpability. There was an absence of mitigating factors other than an early plea of guilty. A sentence of 10 years’ imprisonment with a non-parole period of seven years was imposed on a charge of recklessly causing serious injury.
[34][2019] VSCA 5.
For the foregoing reasons, we are not persuaded that the sentence imposed on the applicant was outside the range reasonably open to the judge in the circumstances of this case. The sentence imposed can be seen to have struck an appropriate balance between the competing considerations. We would grant leave on this ground but dismiss the appeal against sentence.
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