Srikantharajah v R

[2012] NSWCCA 209

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Srikantharajah v R [2012] NSWCCA 209

Hearing dates:

9 August 2012

Decision date:

20 September 2012

Before:

McClellan CJ at CL at [1]
R A Hulme J at [2]
Schmidt J at [61]

Decision:

Leave to appeal allowed.

Appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal and new trial - appeal against sentence - mental condition of offender and general deterrence - whether accumulation of sentence resulted in a total term that was unreasonable

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Mental Health Act 2007

Cases Cited:

Beldon v R [2012] NSWCCA 194
BT v R [2012] NSWCCA 128
Cahyadi v R [2007] NSWCCA 1
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Benitez [2006] NSWCCA 21; (2006) 160 A Crim R 166
R v Engert (1995) 84 A Crim R 67
R v Fahda [1999] NSWCCA 267
R v Hammond [2000] NSWCCA 540; (2000) 118 A Crim R 66
R v Hemsley [2004] NSWCCA 228
R v Hilton [2005] NSWCCA 317; (2005) 157 A Crim R 504
R v Krempin [2003] NSWCCA 263; (2003) 142 A Crim R 56
R v Lawrence [2005] NSWCCA 91
Stewart v R [2012] NSWCCA 183
Zreika v R [2012] NSWCCA 44

Category:

Principal judgment

Parties:

Amalatheepan Srikantharajah (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr T Gartelmann (Applicant)
Ms H Wilson (Respondent)
Solicitors:
Otto Stichter & Associates
Solicitor for Public Prosecutions

File Number(s):

2009/48556

 Decision under appeal 

Date of Decision:

2010-12-13 00:00:00

Before:

Sides DCJ

File Number(s):

2009/48556

Judgment

1. McCLELLAN CJ at CL: I agree with R A Hulme J.

1. R A HULME J: Mr Amalatheepan Srikantharajah (the applicant) was sentenced by his Honour Judge Sides QC in the District Court at Parramatta on 13 December 2010 for two offences of specially aggravated break, enter and commit serious indictable offence. This is an offence contrary to s 112(3) of the Crimes Act 1900 for which there is prescribed a maximum penalty of imprisonment for 25 years and a standard non-parole period of 7 years.

1. In relation to each charge the serious indictable offence was intimidation, the aggravating circumstance was that the applicant was in company; and the circumstance of special aggravation that there was the intentional infliction of grievous bodily harm. The two offences concerned the one incident but grievous bodily harm was inflicted upon two victims.

1. There was a Form 1 document by which the applicant asked that, when he was sentenced in respect of the first count, his guilt in respect of an offence of intentionally or recklessly destroying property be taken into account.

1. The learned judge imposed a sentence on the first count of 7 years with a non-parole period of 4 years, dating from 1 July 2009. On the second count there was a sentence of 7 years with a non-parole period of 3 years 6 months, dating from 1 July 2012. As a result, the total effective sentence was one of 10 years with a non-parole component of 6 years 6 months. The applicant will become eligible for release on parole on 31 December 2015.

1. The judge took into account the applicant's pleas of guilty which had been first entered in the Local Court. For the utilitarian benefit flowing to the criminal justice system the judge reduced the sentences he otherwise would have imposed by 25 per cent. Accordingly, the starting point for each sentence before this reduction must have been in the order of 9 years 4 months.

Facts

1. The Crown accepted that the written submissions for the applicant contain a fair summary of the judge's factual findings concerning the offences. It is therefore convenient to adopt that summary:

On 17 May 2009, following the Sri Lankan government's announcement of victory in its long-running conflict with the Liberation Tigers of Tamil Eelam, members of the Tamil community gathered at Westmead for a rally, while members of the Sinhalese community gathered at Parramatta Park to celebrate. In the afternoon, a Sinhalese group travelled to Westmead where they encountered a Tamil group and a melee began. Members of the Sinhalese group were injured and fled to a supermarket car park. The Tamil group gathered in the car park of a fast food restaurant across the road, some armed with bats and sticks. A second melee occurred on the roadway. Police arrived and a number of Tamils were arrested and charged but later released.

At about 11.45pm, a group of males including the applicant attended a Westmead home armed with cricket stumps, steel bars, a knife and a drink bottle containing caustic soda. The three occupants, including Mr Weerasinghe (the victim in respect of the first count), awoke to sounds of smashing glass and banging on the front door. Mr Watawala got out of bed and entered the hallway, where he saw someone and heard items being smashed. Mr Watawala entered the bedroom of Mr Weerasinghe and closed the door.

An offender tried to open the door but Mr Watawala and Mr Weerasinghe resisted. The offenders struck the door with implements, smashing a hole in it. An offender put the drink bottle through the hole and squirted the caustic soda, striking both victims in the face. Mr Watawala could not open his eyes and felt burning over his face and hands. Both Mr Watawala and Mr Weerasinghe suffered extreme pain and stopped pushing against the door.

The offenders entered the bedroom and attacked the victims. Mr Weerasinghe was struck with a metal pole, breaking his ankle in two places, and stabbed in the stomach with a sharp implement causing a one-inch deep wound. The little finger of his right hand was broken and his hand was wounded. Mr Watawala was blinded by the caustic soda and he smashed a window with his hands, causing lacerations to his hands and slicing off the tips of his ring fingers. [The sentencing judge observed that this was no doubt in an attempt to flee from the attack (ROS 4)]

Meanwhile, the third occupant of the home ran out the back door and called police. A neighbour heard smashing glass and saw about seven males run from the house, two of whom entered the applicant's car. A passing motorist saw three groups, each comprising three to five males, most of whom were armed with bars and sticks about a metre in length; two groups ran off and the third entered the applicant's car.

Police attended. There was extensive damage to the exterior and interior of the home and most of the furniture in it was destroyed. Ambulance officers attended and conveyed the victims to hospital.

Mr Watawala was placed in a medically induced coma to alleviate his pain. He had sustained moderate to severe burning to his right eye and mild burning to his left eye. His sight returned gradually over two to three months. He had burns to his throat and tongue and his face was scarred. He continued to suffer pain to his eyes and blurred vision. He was unable to work for five to six months, had difficulty sleeping and required counselling. The judge found his injuries were very substantial.

Mr Weerasanghe's broken ankle required fixation and he later required a brace and crutches for three months. He continued to have difficulty standing, running and walking long distances. The fracture to his finger healed. He bore some scarring. He also required counselling.

The applicant was arrested at Sydney airport on 20 May 2009, having obtained a passport and purchased an airfare to the United States the previous day. He told police he was travelling to Canada to attend a memorial service. He declined to be interviewed but police issued a 'form of demand', requiring him to disclose the identity of the occupants of his car at the time of the offences. The applicant claimed he had left his car unattended and did not know who was in it. Subsequent examination of a latex glove found at the entrance to the victim's home revealed DNA consistent with that of the applicant. On 1 July 2009 the applicant attended a police station with a solicitor and declined to be interviewed before being charged with the offences.

In evidence the applicant said that he had been drinking alcohol at a friend's home when others attended, saying they wanted to bash some guys and smash their home as payback for the incident in the afternoon. They travelled in three or four cars to the victim's home. As the applicant was drunk another offender drove his car. On the way, cricket bats and stumps and at least one metal pole were produced. The applicant did not know anyone had caustic soda or a knife or sharp implement. The applicant entered the living room of the home and smashed items of furniture including a television and a microwave oven, but did not participate in the attack on the two victims.

The judge found there was no evidence the applicant was involved in planning the offences and accepted the applicant's decision to become involved was spontaneous. The judge found there was no evidence the applicant knew any offender had caustic soda. However, the applicant participated in the enterprise to bash the victims and "trash" the house with a large number of co-offenders who were armed with various weapons and allowed his car to be used for the purpose. The applicant was thus liable for the injuries caused to the victims, although his role in the enterprise was less than that of the others.

1. The judge assessed the objective seriousness of the offences as falling in the middle of the range. His Honour said that he would have found it to be at a higher level, if not for the applicant's lesser role; he was not involved in any planning, and that he was not aware of the caustic substance being taken to the victims' house.

Subjective circumstances

1. The applicant was aged 25 at the time of the offences. He was born in Sri Lanka and came to Australia with his family in 1992 at the age of 9. The family fled Sri Lanka because they were Tamils and wanted to avoid the conflict in their homeland. The judge referred to evidence that the offender had not been involved in the political upheaval between the Tamils and Sinhalese and did not entertain strong feelings against Sinhalese people.

1. The applicant had obtained his Higher School Certificate and worked primarily in his parents' restaurant. He has been in a relationship with a Sinhalese woman for the two years prior to sentencing and she has visited him whilst he has been in gaol.

1. There had been a previous relationship that broke down in about 2008. According to the Pre Sentence Report, this caused significant anger and distress for the applicant, and led to increased consumption of alcohol as well as depression. His level of alcohol consumption became a concern for his partner and his parents.

1. The judge said that the applicant "could not claim the benefit of good character" on account of his record of previous offences. In 2005 there was a finding of guilt for affray. He was fined and disqualified for driving offences in 2006. In 2008 he was ordered to perform community service for another offence of affray and an offence of being armed with intent to commit an indictable offence. Those orders had not been completed at the time of commission of the instant offences, a matter that the judge regarded as an aggravating feature.

Mental health issues

1. Letters by Dr John Baker, a consultant psychiatrist at the Marsden St Clinic, and a report by Dr John Roberts, consultant forensic psychiatrist, were tendered on the applicant's behalf and the judge reviewed them at some length.

1. Dr Baker's first letter of 15 February 2009 included that he had diagnosed the applicant with "Alcohol Dependence, Nicotine Dependence and Major Depressive Disorder, Mild Severity". He prescribed certain medication and offered to review the applicant about three weeks later but he did not return.

1. A second letter by Dr Baker dated 12 July 2009, indicated that the applicant had returned for treatment on five occasions in May and June 2009, once before the offences and four times before he was charged. The letter indicates a diagnosis of "Chronic Disorganized Schizophrenia, Nicotine Dependence in remission and Alcohol Dependence in remission". The letter is brief and the basis for the schizophrenia diagnosis is not explained.

1. Dr Roberts saw the applicant in custody in June 2010. He obtained a lengthy history which included reference to the applicant's consultations with Dr Baker. Despite Dr Roberts having been provided with what he described as "substantial documentation", there is reference in the report only to Dr Baker's first letter, not the second.

1. Because the treatment given by the sentencing judge to the applicant's mental condition is one of the grounds of appeal it is appropriate to quote some portions of Dr Roberts' report. The following extracts are relevant to the doctor's opinion as to a causal connection between the applicant's mental condition and his offending behaviour:

"It is my impression that Mr Srikantharajah's behaviour in relation to the offences for which he is now facing Court, was substantially the result of his severe level of alcohol ingestion namely he would fulfil the DSM-IV diagnosis of a substance dependency disorder and in addition to the diagnosis of a substance dependence disorder, he would in my view have fulfilled a diagnosis of psychotic disorder due to alcoholism with hallucinations ...

It is my impression from the information available to me that at the time of the committal of the offences ... he was affected ... by a significant psychiatric illness which would fulfil the DSM-IV diagnoses of:-

• Substance Dependency disorder and
• Alcohol induced psychosis

Such illness may be phenomenologically difficult to distinguish from psychotic depression and/or schizophrenia.

The normality of Mr Srikantharajah's mental status would argue more for a substance induced disorder than a process schizophrenia or major depression. Those diagnoses however cannot be discounted." (AB 186-187)

1. Dr Roberts opined that at the time of the offences the applicant would have been regarded as being mentally ill within the meaning of the Mental Health Act 2007. It is of some significance, however, that he prefaced that opinion with "having regard to the severity of the psychiatric illness described by Mr Srikantharajah". Accordingly, the opinion is dependent upon accuracy of the account provided by the applicant, something about which the sentencing judge had doubts.

1. Dr Roberts then referred to the applicant having responded excellently to treatment, but he recommended long term psychiatric review. Dr Roberts then returned to the issue of the applicant's mental state at the time of the offences:

"It is my impression from the information available to me that the offences for which Mr Srikantharajah is now facing Court and which have caused him to be in custody are the result of a mental illness, the effects of which having regard to his current presentation have largely been reversed by appropriate treatment." (AB 187) (Emphasis added)

1. At the conclusion of his review of the letters and report, the judge observed:

The Court can only infer that Dr Roberts deliberately chose the term "my impression" rather than expressing an opinion about a diagnosis. That is a matter of concern. Of further concern is that Dr Roberts saw the Offender over twelve months after the offences and did not have access to Dr Baker's report of 12 July 2009 which was obviously, amongst other things, based on a more contemporaneous observation and history.

Further, the Offender told the probation officer that he was very drunk when he committed the offences. He told Dr Roberts that he was totally drunk at the time of the offences and his recollection was vague. These parts of his accounts seem to be at odds with Dr Baker's second report that his nicotine and alcohol dependences were in remission. That is also inconsistent with what he told Dr Roberts about his use of liquor and tobacco generally. (AB 21)

1. The judge then referred to other inconsistencies between the histories provided by the applicant to Dr Roberts and Dr Baker. But he also noted that they were not the subject of cross-examination of the applicant.

1. Critically for the first ground of appeal, the judge concluded his survey of the psychiatric evidence thus:

Apart from saying that he was in need of care to protect himself and others Dr Roberts does not express any opinion about the state of the Offender's judgment or capacity to appreciate the consequences of his act when he committed these offences.

In the Court's view, there is no credible evidence that, because of either mental health issues and/or intoxication, the Offender did not know what he was doing at the time of the offences or its consequences. (ROS 14)

1. The judge also observed that there was no evidence that the applicant's mental health issues had made his time in custody more burdensome and that there was evidence that his state of mental health had improved. (ROS 19)

Other findings

1. Other findings made by the judge included that the applicant had taken steps whilst in custody to rehabilitate; there was remorse, although belated; he had insight into the need to be compliant with taking medication; he was working in a responsible position in the gaol; he had constructive and realistic plans for future employment; and that he had the support of his family and girlfriend. His Honour was satisfied that the prospects of rehabilitation and not re-offending were "reasonable".

1. In formulating the sentences, the judge said that the individual sentences should be the same having regard to one victim being more seriously injured but that the offence on the Form 1 was required to be taken into account in relation to the offence concerning the other victim.

1. The principle of totality was specifically addressed, the judge saying:

In the Court's view, totality requires some considerable accumulation to reflect the fact that there are two victims. In this context he did not claim that he expected only one person to be targeted by those participating in the joint criminal enterprise with him. (ROS 19)

Ground 1: The judge erred in failing properly to take into account the applicant's mental illness

1. Counsel for the applicant acknowledged that the judge had found that the applicant's mental illness was not such as to affect his judgment or appreciation of the consequences of his actions, or such that his time in custody would be harsher than normal. However, it was contended that there was error in his Honour failing to take into account the applicant's "significant mental illness at the time of the offences" in considering the weight to be given to general deterrence (AWS [29] - [30]). In support of this submission, reference was made to well-known authorities on the subject: R v Engert (1995) 84 A Crim R 67 at 68, R v Fahda [1999] NSWCCA 267 at [51], R v Krempin [2003] NSWCCA 263; (2003) 142 A Crim R 56 at [85], R v Hemsley [2004] NSWCCA 228 at [34] and R v Benitez [2006] NSWCCA 21; (2006) 160 A Crim R 166 at [37]-[38].

1. The written submissions for the Crown highlighted many inconsistencies in the evidence that had been before the judge as to the applicant's mental condition at the time of the offences. Much of the material was derived from the history provided by the applicant himself. It was noted that Dr Roberts' "impression" was that at the time of the offences the applicant's principal difficulty was alcoholism. The Crown highlighted his Honour's conclusion that there was no credible evidence that, either because of mental health issues or intoxication, the applicant did not know what he was doing at the time of the offences, or did not appreciate the consequences.

1. It was also noted in the Crown submissions that at the time of sentencing the only significant issue with the applicant was an elevated ingestion of caffeine. I accept that but it would be fair to also observe that Dr Roberts recommended that the applicant should receive "long term possibly indefinite psychiatric review after discharge to ensure that his current excellent response to treatment is maintained" (AB 187).

1. The Crown also submitted that simply because the applicant had issues with the excessive consumption of alcohol, and Dr Roberts had the "impression" that the applicant suffered "significant psychiatric illnesses" found in DSM-IV, this did not necessarily mean that less weight must be given to general deterrence. Reference in this regard was made to remarks of Spigelman CJ in R v Lawrence [2005] NSWCCA 91 at [23].

Determination of ground 1

1. An offender's mental condition can be relevant to the assessment of sentence in a variety of ways: see the very useful summary in the judgment of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177] - [178]. One of the factors identified by his Honour is the basis of this ground of appeal:

It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ...

1. I make four observations in determining this ground of appeal. The first is that it was not submitted for the applicant in the court below that there should be reduced emphasis placed upon general deterrence on account of his mental condition. There have been a number of recent statements in this Court as to appeals against the asserted severity of a sentence raising matters that were never raised at first instance: see, for example, Zreika v R [2012] NSWCCA 44 per Johnson J at [79] - [81]; and BT v R [2012] NSWCCA 128 at [20] per Adamson J; Beldon v R [2012] NSWCCA 194 at [35]-[36] per Johnson J. An appeal against sentence is not the occasion to try and make a better fist of a plea in mitigation than was made at the first attempt. Relevant also is the fact that not only was the sentencing judge in this case extremely experienced in the criminal law, but both the Crown and the applicant were represented by counsel of considerable experience and skill. It is hard to imagine a matter of significance on sentence escaping the attention of them all.

1. The next observation is that simply because an offender may suffer from a mental disorder it does not follow that consequences will follow automatically in the assessment of sentence: R v Engert (1995) 84 A Crim R at 69 per Gleeson CJ.

1. The next point is that the judge made no specific reference to general deterrence. His Honour did refer generally to the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (ROS 19). They include general deterrence. Counsel for the applicant in this Court submitted that it should be inferred that there was no amelioration of the weight he would give to general deterrence because of the absence of any reference by the judge to having done so. Support for this inference was said to be derived from the fact that the judge did refer to some other aspects relevant to the applicant's mental condition (there being no causal connection with the offending and no suggestion that it rendered his custodial conditions more burdensome).

1. It is difficult for the applicant to make good the contention that less weight should have been given to general deterrence when it is not possible to say how much weight was given to it. A bare reference to a list of "purposes of sentencing" that includes general deterrence does not indicate anything about the extent to which it influenced the assessment of sentence. The reference by the judge to other ways in which a mental condition may be relevant indicates that the experienced judge was alive to the relevant principles. The absence of specific reference to the weight to be given to general deterrence may well be explicable because (a) the sentencing remarks were delivered ex tempore, and (b) no submission was made on the subject. The recent remarks of Button J in Stewart v R [2012] NSWCCA 183 are apposite:

[56] Speaking generally with regard to this ground, I do not consider that there is a requirement that sentencing judges emphasise in ex tempore remarks on sentence matters that have not been the subject of emphasis in the plea in mitigation made by defence counsel. If defence counsel at first instance makes a decision barely to refer to a subjective factor that may be open on the evidence, or not to refer to it at all, and the sentencing judge follows that lead in ex tempore remarks on sentence, it will seldom be that an appeal to this Court founded on that approach by the sentencing judge will succeed. That is because an appeal to this Court is not "the occasion for the revision and reformulation of the case presented below" to use the words of Johnson J (with whom McClellan CJ at CL agreed on this aspect; Rothman J not expressing any view with regard to it) in Zreika v R [2012] NSWCCA 44. To adopt a different course in this Court would force sentencing judges to refer to all subjective factors whether or not emphasised, or even relied upon, by defence counsel in the plea in mitigation at first instance. That is hardly consonant with the efficient administration of justice. (Emphasis in original)

1. My third observation on this ground of the appeal is that, in all the circumstances of this case, the evidence of mental illness before the judge could have done little to lessen the consideration that ought to have been given to general deterrence in determining the appropriate sentences. There are three reasons for this. The first is the very serious nature of the offences, particularly as they involved the perpetration of extreme violence for reasons based upon conflict in the applicant's homeland.

1. Secondly, the evidence of the applicant's mental condition had a number of unsatisfactory features as the sentencing judge observed. It did not establish definitively that he suffered from a significant mental illness, or that there was a mental condition that was of a long-term nature beyond dependence upon alcohol.

1. Thirdly, there was evidence before the judge that the applicant had been involved in offences of violence in the past. The applicant's evidence was that the affray in 2005 involved street fights between different groups of people outside a hotel after a function (AB 216). His explanation for his involvement in the offences of affray and being armed with intent to commit an indictable offence in 2008 was that he had been drinking heavily and, armed with a cricket stump, became involved in a group of about eight men who set upon three victims (AB 218).

1. A clear signal needs to be sent about the consequences for those who engage in alcohol-fuelled violence, particularly where the perpetrators are repeat offenders. Having regard to the three features to which I have just referred, this was a case in which the consideration to be given to general deterrence was significant, even taking the most generous view of the applicant's mental condition.

1. I am not prepared to infer that there was error in the approach taken to general deterrence in this case. The individual sentences imposed for such serious offences, having regard to the maximum penalty and standard non-parole period, and even with the allowance of a significant reduction for the applicant's early pleas of guilty, do not indicate to me that general deterrence played an excessive role in the synthesis of all factors relevant to the assessment of sentence. I would reject this ground.

Ground 2: The aggregate sentence is unreasonable and/or plainly unjust

1. This ground concerns the fact that the sentence for count 2 was accumulated upon the sentence for count 1 by 3 years. There was no challenge to the individual sentences aside from the issue in ground 1; it was the total effective sentence that was asserted to be "unreasonable or plainly unjust".

1. It was acknowledged for the applicant that the sentencing judge did consider the issue of totality. But it was submitted, "the extent to which the sentences were actually accumulated indicates that the boundaries of a proper exercise of discretion were exceeded" (AWS [35]).

1. In support of this submission, it was contended that there was a considerable degree of overlap between the two offences; they each contained a number of common elements. Reference was made to R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 and R v Hilton [2005] NSWCCA 317; (2005) 157 A Crim R 504. There was also reference to the cautionary note sounded in the judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40] about double punishment for offences containing elements which are common.

1. In this case, it was said that the two offences contained the common elements of breaking and entering the victims' premises whilst in company. There was discrete criminality in terms of intimidation and infliction of grievous bodily harm upon different victims. It was accepted that partial accumulation of the sentences was warranted in order that the overall sentence adequately reflected the harm to the victims. However, it was submitted that the accumulation of three years exceeded what was warranted.

1. The written submissions for the applicant referred to six other cases where the discretion regarding the extent of concurrency and accumulation had been exercised in arguably analogous circumstances. The lesser degree of accumulation in those cases was said to demonstrate that the extent of the accumulation in this case was erroneous. In oral submissions, counsel suggested that a degree of accumulation in the order of one to two years would have been open, but that three years exceeded the boundaries of a reasonable exercise of discretion.

1. The Crown criticised the approach taken in the applicant's written submissions, comparing the degree of partial accumulation in other cases involving sentencing for multiple offences, in an attempt to characterise the degree of accumulation in this case as excessive. It was submitted that there is "no generally applicable formula to be followed when addressing the issue of totality". The issue is primarily a matter for a sentencing judge to assess in the light of principles referred to in cases such as Cahyadi v R [2007] NSWCCA 1 at [27]-[28], and in the light of the unique facts and circumstances of the case at hand.

1. In the Crown's submission the gravity of the applicant's offences lay in the terrorising of, and infliction of severe injuries upon, the two victims. Reference was made to the victims having suffered "terrible injury (some of it permanent), pain and suffering". In addition, there was the need to take into account the property damage offence when sentencing for the first count. As a result, it was submitted that the aggregate term derived from the degree of partial accumulation was just and appropriate.

Determination of ground 2

1. I accept the Crown's submission that it is futile to examine what occurred in the other cases when determining a question concerning the application of the totality principle. The degree to which sentences are ordered to be served concurrently, or cumulatively, partly or wholly, is very much a matter for the discretion of a sentencing judge based upon the unique facts and circumstances of the case at hand.

1. In the present case, whilst there were a number of common elements in the two offences, the most significant aspect of the charges, and what substantially elevated their seriousness, was the harm occasioned to the victims. That harm has been summarised earlier but it is worth noting in further detail.

1. Mr Weerasanghe (count 1) required surgery for the stab wound to his stomach. This stab wound required four stitches and another stab wound to his right hand required six stitches. There was a fracture to his little finger. Surgery was also required in respect of a broken ankle. A plate was inserted with numerous pins to hold the ankle in place. After a cast was removed he was required to wear a foot brace and walked with the aid of crutches for three months. The corrosive substance caused scarring to his face. As at October 2010, Mr Weerasanghe experienced difficulty in running, walking long distances and standing on the fractured ankle. His little finger had healed. Some scarring remained. He had received psychological counselling.

1. In a victim impact statement, Mr Weerasanghe said that his recovery from the surgeries was very painful. He had been unable to carry out day-to-day activities and required assistance from others. He found it difficult to sleep due to pain. He suffered decreased concentration and interest in leisure activities and did not socialise. He felt vulnerable, frightened and terrified of being assaulted again.

1. A psychiatrist reported in April 2010 that Mr Weerasanghe had moderate symptoms of Post-Traumatic Stress Disorder. He had continuing symptoms of anxiety and lived in constant fear. The doctor was of the opinion that his psychological condition would gradually improve over the ensuing three to four years.

1. Mr Watawala (count 2) was placed into a medically induced coma for some 48 hours in the Burns Unit at Concord Hospital in order for him to cope with extremely severe pain. It was first thought that he would lose his sight. After further assessment it was found that the burns to his right eye were moderate to severe, with those to his left eye mild. He also had a haze to his right eye. Fortunately he regained his sight after two to three months. The Facts document records that "he can now see out of both eyes, however when he reads for periods he suffers from pain in the eyes, blurred vision and headaches".

1. Mr Watawala was unable to talk for the first month or two due to significant burns inside his throat. He still had visible scarring to his face and hands. An assessment was to be made some months subsequent to the applicant's sentencing as to the possibility of further surgery. He was off work for five to six months and also had difficulty sleeping. Psychological counselling had been necessary.

1. In a victim impact statement, Mr Watawala said that he had to defer his university studies for six months. He had lost six to twelve months of income. He found it difficult to obtain employment in hospitality because of his appearance. His attention span and ability to concentrate were diminished. The cost of medication and treatment had been a burden. Psychological impacts included a loss of interest in leisure activities and socialisation. He felt vulnerable, frightened and terrified that he may be assaulted again. He experienced violent flashbacks of the assault and had recurring nightmares.

1. An "initial report" of a clinical psychologist dated 24 August 2009 included that Mr Watawala was reminded of the incident each time he looked in a mirror. He was diagnosed with Post Traumatic Stress Disorder.

1. A subsequent report by another clinical psychologist prepared 12 months after the incident included a diagnosis of Chronic Post-Traumatic Stress Disorder. The condition was said to be moderate in intensity and chronic in nature. The author noted that Mr Watawala had "experienced a marked deterioration in his functioning across several domains including family, interpersonal, social, educational, occupational and psychological areas". The author also noted he had suffered "permanent scarring to parts of his body that will remain as a lifelong reminder of the assault".

1. The harm, both physical and psychological, occasioned to both victims was substantial, but more in the case of Mr Watawala. The justification for imposing the same sentence for each count was that in sentencing for the count concerning Mr Weerasanghe there was the need to take into account the offence on the Form 1. The applicant said in his evidence that he understood the venture he joined was one to "bash these guys and trash their house". Photographs of the house indicate that the property damage was substantial. The statement of the offence in the Form 1 includes the particular that the damage was of a value greater than $15,000.

1. The effect of the partial accumulation of the sentences is that the applicant will serve a further 2 years 6 months in mandatory custody for the offence concerning Mr Watawala after his non-parole period for the offence concerning Mr Weerasanghe expires. He has an additional parole period of 3 years for the offence concerning Mr Watawala after the parole period for the offence concerning Mr Weerasanghe expires. Having regard to the extremely serious nature of the harm occasioned to Mr Watawala, such additional periods of imprisonment cannot be said to be unreasonable, or plainly unjust.

Orders

1. I proposed the following orders:

1. Leave to appeal allowed.

2. Appeal dismissed.

1. SCHMIDT J: I agree with R A Hulme J.

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Decision last updated: 20 September 2012