Weatherburn v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0143

JAMES WEATHERBURN	Appellant
v
THE KING	Respondent

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JUDGES:	McLEISH, TAYLOR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2023
DATE OF JUDGMENT:	22 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 283
JUDGMENT APPEALED FROM:	DPP v Weatherburn [2022] VCC 1440 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury in circumstances of gross violence – Sentence of 9 years’ imprisonment – Non-parole period 6 years and 6 months – Whether sentencing judge erred in considering whether conduct of defence contributed to undue delay – Extent to which accused had control over length of delay necessarily relevant in assessing unfairness to accused – No specific error – Whether sentence manifestly excessive – Unprovoked attack in public – Repeated strikes to head – Unconscious victim – Assault lasting 18 minutes where appellant had ample opportunity to reconsider actions – Victim sustained serious injuries – General deterrence especially relevant – Appeal dismissed.

Chandler v The Queen [2010] VSCA 338; Arthars v The Queen (2013) 39 VR 613, considered.

Crimes Act 1958, s 15A.

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Counsel
Appellant:		Mr C Hooper
Respondent:		Ms K Hamill
Solicitors
Appellant:	Ann Valos Criminal Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
TAYLOR JA
KAYE JA:

On 28 April 2022, the appellant pleaded guilty in the County Court to one charge of intentionally causing serious injury in circumstances of gross violence, contrary to s 15A of the Crimes Act 1958. He was sentenced on 30 August 2022 to 9 years’ imprisonment with a non-parole period of 6 years and 6 months. The maximum penalty for the offence is 20 years’ imprisonment.
The appellant appeals against the sentence on two grounds. The first is that the judge erred by finding that the mitigatory effect of delay in resolving the matter was reduced because of the way in which the appellant conducted the proceeding. The second is that the total effective sentence and non-parole period are manifestly excessive.
For the reasons that follow, the appeal must be dismissed.

Circumstances of the offending

In the early morning hours of 10 June 2019, the appellant encountered Zeljko Danilovic on the footpath near a Salvation Army store. Both men were in their forties. Mr Danilovic walked away and the appellant followed him, walking closely behind him and grabbing at his belongings. He started to assault Mr Danilovic by kicking and punching him and slapping him in the face, before throwing one of his bags at his head. The assault continued as described below. Closed circuit television from a nearby store captured the whole assault, which lasted for about 18 minutes.
Mr Danilovic continued to walk away while the appellant followed him. In a forecourt adjacent to the footpath, the appellant pushed Mr Danilovic from behind, causing him to stumble forward and fall onto the concrete. The appellant continued assaulting him as he sat on the ground, hitting him in the face twice.
The appellant then took hold of Mr Danilovic’s head and slammed it into the concrete several times. Mr Danilovic did not resist. The appellant kicked Mr Danilovic again, before briefly walking away.
A short time later, the appellant returned and shook Mr Danilovic. He walked away again but came back around 30 seconds later. The appellant moved Mr Danilovic’s head from side to side and resumed assaulting him, this time with what appeared to be a mobile phone, hitting him in the head and throwing the object at his face.
At one stage during the assault, Mr Danilovic seemed to regain consciousness. The appellant kicked him to the face, which appeared to render him unconscious again. The appellant continued to assault Mr Danilovic by kicking him to the body and head and hitting him with the phone.
The appellant then grabbed Mr Danilovic’s body and sat him in an upright position. He bent Mr Danilovic’s head and neck towards his chest, using his full weight on his body. He released him and kicked him several times which caused him to fall back to the ground. The appellant stood on Mr Danilovic’s left foot and leg and kicked him three more times to the body.
Several minutes into the assault, Piper Wetherman, who knew the appellant, walked around the corner along with Gavin Evertsen. She saw Mr Danilovic lying on the ground, bleeding. She then saw the appellant kick him three times to the head, with a running step. Ms Wetherman told the appellant to stop. He told them to go away. After they left, the appellant resumed the assault, kicking Mr Danilovic multiple times before finally desisting.
The appellant caught up to Ms Wetherman and Mr Evertsen and said ‘I’ve fucking killed him’. Ms Wetherman asked why and he replied, ‘He is a paedophile’. By then, it was shortly before 6:00 am. It should be noted, although it does not bear on the appellant’s sentence, that there was no evidence that Mr Danilovic was in fact ‘a paedophile’.
Paramedics arrived around 6:46 am and Mr Danilovic was conveyed to the Alfred Hospital. He was admitted to the intensive care unit where he remained for seven days. He was in an induced coma for three weeks. He was transferred to Caulfield Hospital on 18 July 2019 and returned to the Alfred a month later following a fall. After a further month at the Alfred, he was taken back to Caulfield Hospital where he was admitted to the acquired brain injury (‘ABI’) unit. He remained there for eight months and then resided in 24-hour care units in Glenroy, Cranbourne and Carnegie.
Mr Danilovic sustained serious injuries including multiple fractures to the head and ribs, multiple brain bleeds, a non-reactive pupil in the right eye and soft tissue injuries to his face and abdomen.
Mr Danilovic had previously been diagnosed with an ABI, which arose from two previous incidents. The injuries sustained in the assault on 10 June 2019 were not shown to have exacerbated his pre-existing ABI.

Procedural history

The appellant was arrested later that day and taken to the Dandenong Police station where he gave a ‘no comment’ record of interview.
An offer to plead guilty to a lesser charge was made in August 2019 and rejected.
A contested committal hearing commenced on 17 December 2019 and continued on 27 October and 3 December 2020.
After two directions hearings, the appellant sought a sentence indication on 30 September 2021, which was refused.
Two further mentions occurred on 7 February and 1 March 2022 to allow for discussions. The matter ultimately resolved on 1 April 2022.

Sentencing remarks

The judge noted that it was not in dispute that this was a serious or ‘high end’ example of the offence of intentionally causing serious injury in circumstances of gross violence.[1] In that regard, he summarised the offending in these terms:
You followed him and pushed him from behind. He tumbled to the ground. He never got up from that point. You then unleashed a serious assault upon him. Punching and grabbing and pushing and generally monstering him. You slammed his head into the concrete multiple times. There was no resistance or movement away from you. You kicked him to the face and he was rendered unconscious.
Over a sustained period, you continued to brutally assault him. Kicks, punches, body crunches, strikes with an object and stompings. This full array of violent behaviour was on display including powerful kicks to the head. He was helpless and had been quickly reduced to that incapacitated state and remarkably, the attack continued. It was at no stage a fight. It was a prolonged and barbaric assault upon someone who was incapacitated. Someone who from the very outset was obviously trying to avoid any confrontation.
The assault involved you taking breaks from time to time and then resuming your attack. At one point when it appeared your victim had regained consciousness and was trying to lift his head off the ground, you stepped in and kicked him to the head, again seemingly causing him to lose consciousness.[2]
[1]DPP v Weatherburn [2022] VCC 1440 [45] (Judge Tinney) (‘Sentencing Remarks’).
[2]Ibid [10]–[12].
The judge took into account the appellant’s substantial criminal history, noting that there was no previous offending of this severity and there were some gaps in that history. The appellant had only one appearance for violent offending, which bore no relationship to the current matter. He had multiple prior dishonesty offences and had served terms of imprisonment, most often for breaching court orders.[3]
[3]Ibid [54].
The judge also referred to the appellant’s ‘significant and longstanding’ issues with drug abuse, which had escalated after the illness and death of his long-term partner in 2018.[4]
[4]Ibid [49]–[51].
The judge then addressed specific matters in mitigation.
First, he said that the guilty plea was ‘not the earliest of pleas’. The appellant chose to run a contested committal where eyewitnesses were challenged.[5] The judge remarked that the appellant could and probably should have finalised the matter ‘some years ago’.[6] There were, however, live issues as to the extent of the residual impact of Mr Danilovic’s physical injuries, as well as a change in the appellant’s counsel. The judge described the defence response dated 28 April 2021 as having been ‘bizarre’ in the light of the evidence; in that response, the appellant asserted that he had not caused the injuries alleged, had not done so intentionally and had not done so in circumstances of gross violence.[7] None the less, the plea was entered at an ‘early enough’ stage and as a result there were ‘some material savings’.[8]
[5]Ibid [60].
[6]Ibid [61].
[7]Ibid [62].
[8]Ibid [63].
In pleading guilty, the appellant had taken responsibility for the offending. The utilitarian benefits of the guilty plea were of extra weight because of the pandemic‑related backlog in the criminal justice system.[9]
[9]Ibid [64]–[66].
Secondly, the judge found that there was some remorse, albeit that there was very little, if any, remorse evident in the psychological report of Alison Mynard upon which the appellant relied.[10]
[10]Ibid [69].
Thirdly, the judge assessed the appellant’s prospects of assessments as ‘quite reasonable’, provided he abstained from drug use and engaged in treatment for mental health issues.[11]
[11]Ibid [76].
Fourthly, the judge accepted that the burden of imprisonment would be greater on the appellant than usual because of ongoing pandemic-related restrictions in the custodial system.[12]
[12]Ibid [81].
Fifthly, the judge addressed the impact of delay. The judge suggested that the question whether delay had given rise to unfairness would be affected by the extent to which a delay is ‘inordinate or unreasonable’, including the extent to which an accused had control over the length of the delay. This element, the judge said, would be more directly engaged where delay is outside the control of the accused, for example because of the tardiness of police or prosecutors.[13]
[13]Ibid [85].
The judge said:
The delay in this case exists in large part as a result of you or your past counsel’s decision to conduct the proceedings in the way that they have been conducted.[14]
[14]Ibid [86].
He referred to the decision to proceed to a contested committal and to contest questions of fact which appeared established by CCTV footage, including whether Mr Danilovic lost consciousness during the attack.[15] The judge also referred to a lengthy period leading into a sentence indication hearing. He continued:
The delay here is not inordinate or undue and is explained by the way the case has been conducted on your behalf. That is just the fact. There were some periods of delay no doubt arising from the pandemic and … some live issues being pursued and explored as to the residual injuries and whether supervening events or earlier events might have contributed to them.
I have set out this level of detail as this is not the sort of delay calling for some censure by the court, nor was your counsel suggesting that it was. The delay is perfectly explicable. That is not to say that it has been easy to have the matter over your head. Of course, it has not. Your counsel speaks of the ‘profound stress’ of having the matter over your head. There is no evidence in support of that proposition at all, none in the expert report which is so heavily relied upon in other areas.[16]
[15]Ibid [87].
[16]Ibid [89]–[90].
The judge accepted that it would have been ‘hard’, albeit not profoundly stressful, for the appellant to have had the matter hang over his head during the period of delay.[17] In the end, he gave the delay ‘some weight’, both in relation to the question of fairness and the appellant’s progress towards rehabilitation, but characterised it as ‘not [a] powerful factor’ in the case.[18]
[17]Ibid [92].
[18]Ibid [93].
Finally, the judge accepted that the appellant suffered from complex post-traumatic stress disorder and grief at the time of offending. He rejected the opinion of Ms Mynard that his mental health conditions played any significant role in the offending,[19] but accepted that there was some ‘modest reduction’ in the appellant’s moral culpability given his ‘poor or sub-optimum state’ arising from those conditions.[20] The weight to be ascribed to general deterrence was also modestly reduced.[21]
[19]Ibid [121]–[122], [125]. Ms Mynard identified the appellant as suffering from complex post-traumatic stress disorder, complex bereavement disorder (resolving), generalised anxiety disorder, social anxiety disorder, stimulant use disorder and alcohol abuse disorder.
[20]Ibid [127].
[21]Ibid [128].
Again, some modest weight was to be given to the possibility that the appellant would suffer an increased custodial burden arising from his mental health conditions.[22]
[22]Ibid [129].
The judge referred to the importance of denunciation, community protection and specific deterrence.[23] General deterrence also ‘loom[ed] large’ and was an important sentencing purpose notwithstanding the moderation just referred to by reason of the appellant’s mental health.[24]
[23]Ibid [168]–[170].
[24]Ibid [171]. See also [128].

Grounds of appeal

On 8 March 2023, the appellant was granted leave to appeal against sentence on the following grounds:
1.His Honour erred in finding that the mitigatory effect of the delay occasioned in the finalisation of the matter was reduced by virtue of the manner in which the appellant elected to conduct the proceedings.
Particulars:
His Honour fell into error in that he determined that the appellant’s election to contest the charge disentitled him to the full mitigatory effect of the delay in the proceedings below.
2.His Honour erred in imposing a non-parole period and head sentence that were manifestly excessive having regard to all of the circumstances.
Particulars:
In fixing the sentence referred to above, the learned sentencing judge imposed a sentence that was manifestly excessive in that his Honour:
(a)failed to give appropriate sufficient weight to the delay occasioned in the appellant’s case;
(b)gave disproportionate weight to the appellant’s election to contest the charge;
(c)failed to give appropriate weight to the mitigatory impact of the appellant’s impaired mental health at the time of the offending;
(d)failed to give appropriate weight to the appellant’s plea of guilty;
(e)failed to give appropriate weight to the appellant’s lack of similar previous offending;
(f)gave insufficient weight to the impacts of the pandemic in increasing the onerous nature of the appellant’s pre-sentence detention; and
(g)imposed a sentence that was outside the range of sentences reasonably open in the circumstances of this offence and the offender.

Ground 1

The appellant submitted that the judge erred by taking account of, or giving inappropriate weight to, the manner in which he conducted his defence. It was submitted that an accused is entitled to call in aid the mitigatory effect of delay resulting from the ‘conventional process of plea negotiation’, and that the only exception to this principle was where the defence had engaged in ‘deliberate delaying tactics’.[25] Otherwise, an accused would be denied the mitigating effect of delay merely because he exercised his right to put the Crown to its proof.
[25]Chandler v The Queen [2010] VSCA 338 [18]–[19] (Maxwell P and Weinberg JA) (‘Chandler’).
The appellant submitted that the delay in his case was caused by the impact of the pandemic, ordinary factors attaching to the listing of criminal matters, his decision to contest aspects of the charge and in particular the question whether the offending exacerbated the effects of the victim’s pre-existing brain injury, which required the obtaining and exchange of expert evidence. It was submitted that, once the prosecution accepted that it could not establish there was any such exacerbation, the matter soon resolved.
The appellant further submitted that, even if the judge had been entitled to take account of the manner in which the defence was conducted, in the absence of ‘deliberate delaying tactics’, the judge erred in reducing the mitigatory effect of delay on account of that conduct. In particular, there was nothing unreasonable in the appellant raising for investigation the question whether the offending had exacerbated the victim’s pre‑existing brain injury, and that issue was ultimately resolved in favour of the appellant.
The respondent submitted that the judge had correctly stated the tests governing the treatment of delay for sentencing purposes, and that his conclusion that some weight should be given to the unfairness caused by the delay in the present case was reasonably open. The respondent submitted that it could not be the case that the reasons for delay are not to be explored, because the history of the matter will inevitably bear on what degree of unfairness, if any, was caused by the relevant delay. That will entail considering who did what and why they did it. The judge undertook that task, and was entitled in doing so to question the utility of some defence decisions. The judge had been correct to rely on Arthars v The Queen,[26] where it was held that the sentencing court ‘must have regard to the degree to which the accused had control over the length’ of the delay.
[26](2013) 39 VR 613, 621 [28] (Redlich and Coghlan JJA and T Forrest AJA) (‘Arthars’).
In our view, the submissions of the respondent should be accepted.
It is well established that there are two ways in which undue delay in resolving a criminal charge may bear on the offender’s sentence. The first is unfairness to the offender. The sentence may be reduced by virtue of the fact that it has been hanging over the offender for an unnecessarily long time, causing anxiety or stress. The second, which is not an issue in this ground of appeal, is that delay may have provided an opportunity for the offender to undergo a degree of rehabilitation, and that progress should so far as possible not be jeopardised.[27]
[27]See, eg, Hicks v The Queen [2016] VSCA 154 [23] (Priest JA, Weinberg JA agreeing at [37]) (‘Hicks’).
In order to take account of any unfairness that has resulted from undue delay, it is inevitably necessary to identify, where possible, the causes of that delay. Where the delay has been brought about by tardiness or other conduct of prosecuting authorities, it will be more likely to qualify as unfair delay than a delay for which the accused person is responsible.[28]
[28]See, eg, Talia v The Queen [2009] VSCA 260 [22] (Ashley and Weinberg JJA); Arthars (2013) 39 VR 613, 621 [28] (Redlich and Coghlan JJA and T Forrest AJA); Arthur v The Queen [2018] VSCA 58 [33] (Priest and Hargrave JJA).

Conversely, an accused will not be entitled to call in aid the mitigatory effect of undue delay which has resulted from deliberate delaying tactics on their own part. Although there is authority to the effect that, with that exception, there is no other occasion for a sentencing judge to investigate the underlying reasons for the delay,[29] that observation cannot be taken, nor was it intended, to prevent a sentencing judge from identifying the circumstances which have given rise to delay in any given case. To the contrary, the ‘reasons and circumstances surrounding any delay need to be examined in each case’.[30]
[29]Chandler [2010] VSCA 338 [19] (Maxwell P and Weinberg JA).
[30]Zhou v The Queen [2014] VSCA [22] (Nettle and Beach JJA and Almond AJA). See also Arthars (2013) 39 VR 613, 621 [28] (Redlich and Coghlan JJA and T Forrest AJA).
That task must be undertaken because it will be more unfair for an accused to suffer delay which he or she has had no part in causing. This does not mean, as the appellant posited, that the sentencing judge becomes involved in a granular analysis of the conduct of the defence. Nor does it mean that the accused is penalised for exercising his or her right to defend a criminal charge. The sentencing judge is merely identifying whether, in all the circumstances, the time that has been taken for the sentence to be imposed has weighed unfairly on the accused. Necessarily, that requires identifying the degree to which the accused had control over the length of the delay.[31]
[31]Arthars (2013) 39 VR 613, 621 [28] (Redlich and Coghlan JJA and T Forrest AJA); Hicks [2016] VSCA 154 [23] (Priest JA, Weinberg JA agreeing at [37]); Sergi v DPP (Cth) [2015] VSCA 181 [45] (Maxwell P, Redlich and Beach JJA).
In the present case, the judge did not accept the submission made on the appellant’s behalf, absent any evidentiary basis,[32] that he had suffered ‘profound stress’ as a result of having the matter hanging over his head.[33] There is no challenge to that conclusion. The judge did, however, give some weight to the hardship suffered by the appellant as a result of the time taken, notwithstanding that, through his actions, the appellant had contributed to the delay.[34] As explained above, the judge was not only entitled but bound to consider the extent to which the applicant had contributed to the delay. No error has been identified in the judge’s approach.
[32]Tones v The Queen [2017] VSCA 118, [38]–[39] (Maxwell P, Redlich and Kyrou JJA).
[33]Sentencing Remarks [90].
[34]Ibid [93].
Nor did the judge err in the manner in which he undertook this task. It was open to the judge to question the conduct of aspects of the defence, including the committal and the defence response, in circumstances where the offending was vividly depicted in the CCTV recording and the request for a sentence indication was bound to be fruitless.[35] The judge accepted that there was a genuine issue as to the extent of residual impact arising from the injuries the appellant inflicted.[36]
[35]Ibid [62]. At the relevant time, the sentence indication could only be as to whether the judge was likely to impose an immediate term of imprisonment, in circumstances where s 10 of the Sentencing Act 1991 mandated a term of imprisonment in the absence of special reasons and a term of imprisonment was inevitable in any event: see Criminal Procedure Act 2009, s 207, as at 30 September 2021. Section 207 has since been amended by s 111 of the Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Act 2022, which commenced on 16 February 2022.
[36]Sentencing Remarks [63].
In the circumstances, we do not accept that the judge erred in his approach to the question of delay or that he gave insufficient weight to the unfairness to the appellant that resulted from that delay. We therefore reject ground 1.

Ground 2

In relation to the question of manifest excess, the appellant relied on matters personal to the offender. He did not challenge the judge’s characterisation of the offending as serious or ‘high end’. He also conceded that the offending was protracted in its nature and that an immediate term of imprisonment was the only available sentencing disposition. Counsel highlighted the question of delay, and the way in which the judge approached the report of Ms Mynard, in particular the finding that the appellant was suffering the effects of post-traumatic stress disorder and a complex grief disorder at the time of the offending. It was not suggested that the first limb of Verdins[37] was engaged, but the judge had accepted that these mental health conditions were relevant to an assessment of the appellant’s circumstances.
[37]Verdins v The Queen (2007) 16 VR 269.
Reliance was also placed on the lack of similar previous offending on the part of the appellant, the onerous nature of his pre-sentence detention in light of the impact of the COVID-19 pandemic and the judge’s finding that the appellant had ‘quite reasonable’ prospects of rehabilitation if he remained free of drugs and addressed his mental health issues. It was submitted that the appellant had strong support in the community and that the offending had been out of character and an aberration.
The appellant relied on a series of cases, which it was said established a current sentencing practice which revealed that the sentence imposed was outside the applicable range.[38] The appellant submitted that factors that were absent from the present case, including the use of weapons, injuries causing ongoing effects, preparation and planning, explained the higher sentences among these cases.
[38]DPP v Hudgson [2016] VSCA 254; Hope v The Queen [2018] VSCA 230; Ferrer v The Queen [2016] VSCA 295 (‘Ferrer’); R v Tiba [2021] VSC 515; DPP v Whittle [2017] VCC 2017; Gencev v The Queen [2021] VSCA 188 (‘Gencev’); R v Kilic (2016) 259 CLR 259; DPP v Farha [2017] VCC 1386; R v Ravenhorst [2015] VSC 308; Wallace v The Queen (2012) 35 VR 520; Bennett v The Queen [2011] VSCA 253; Barfoot v The Queen [2011] VSCA 282; Chol v The Queen [2016] VSCA 252; Jackson v The Queen [2013] VSCA 14; Cedic v The Queen [2011] VSCA 258; Nash v The Queen (2013) 40 VR 134 (‘Nash’); Lukudu v The Queen [2019] VSCA 248; DPP v Evans [2019] VSCA 239; Robbins v The Queen [2012] VSCA 34; Charles v The Queen (2011) 34 VR 41; Arthars (2013) 39 VR 613; DPP v Terrick (2009) 24 VR 457 (‘Terrick’); DPP v Grech [2016] VSCA 98; DPP v L’Eveille [2018] VSCA 60; DPP v Kemp [2015] VSCA 108; DPP v Weber [2017] VSCA 93; Nicholls v The Queen [2016] VSCA 250; Webster v The Queen [2016] VSCA 329; Taseveski v The Queen [2014] VSCA 135; DPP v Zullo [2004] VSCA 153 (‘Zullo’); Picone v The Queen [2015] VSCA 5; Xiberras v The Queen [2014] VSCA 170; Umar v The Queen [2014] VSC 645; Mann v The Queen [2011] VSCA 189; Spanos v The Queen [2012] VSCA 253; Smith v The Queen [2012] VSCA 133; Kennedy (a pseudonym) v The Queen [2015] VSCA 49; Frost v The Queen [2012] VSCA 282.
The respondent submitted that the judge had appropriately given modest weight to the appellant’s mental health conditions, noting that it was virtually impossible to disentangle the effects of those conditions from the substance abuse which had plainly played a part in the offending. The judge had also taken appropriate account of the appellant’s prospects of rehabilitation and his limited prior criminal history. However, the grave nature of the attack made protection of the community an important consideration.
Counsel for the respondent referred to the factors bearing on sentencing for intentionally causing serious injury identified in the judgment of Maxwell P in Nash and submitted that, apart from the fact that the appellant acted alone in the offending, the list of factors all pointed to a higher sentence. The appellant’s proven intent was to cause really serious injury, and the assaults did cause particularly serious injuries which included multiple fractures, five separate brain bleeds and soft tissue injuries, necessitating seven days in intensive care followed by 21 days in an induced coma. The victim was vulnerable, lying on the ground and effectively if not actually unconscious. The attack lasted 18 minutes and although it was largely inflicted without a weapon, the appellant hit the victim multiple times to the head with a mobile phone.
The respondent submitted that the sentences imposed for the offence of intentionally causing serious injury in circumstances of gross violence indicated that the sentence was not an outlying one.[39]
[39]Ferrer [2016] VSCA 295; Gencev [2021] VSCA 188; Van Kempen v The Queen [2023] VSCA 26 (‘Van Kempen’).
The question on the appeal is not whether the judge imposed the correct sentence. There is no single correct sentence. Nor is the issue whether we would have imposed the same sentence as the judge. The question is whether the sentence imposed was wholly outside the range of sentencing options available to the judge.[40] The appellant must show that something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[41]
[40]R v Abbott (2007) 170 A Crim R 306, 309–10 [13]–[15] (Maxwell P, Eames JA agreeing at 312 [22], Habersberger AJA agreeing at 312 [23]); [2007] VSCA 32.
[41]Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P), citing Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
It is true that the offending did not involve a weapon and that the appellant does not have a history of violence of this kind. It is also true that no long-term brain injury can be ascribed to the attack. It is to the appellant’s credit that he has taken positive steps while in custody and has returned clean drug screens, and has shown some insight into his offending, such that the judge identified reasonable prospects of rehabilitation provided he remains free of illegal drugs and deals with his mental health issues. There is also his guilty plea which, as the judge found, was made at a sufficiently early stage in the proceeding for it to have had utilitarian benefit. It also facilitated the course of justice. There was scope for some modest allowance in respect of the appellant’s mental health conditions and his rather limited expression of remorse. As the sentencing judge found, some weight was also to be given to the effects of delay in resolving the matter, under both the unfairness and the rehabilitation limbs.
In our view, however, the sentence imposed in this case, while certainly high, was within the range available to the sentencing judge. This was an unprovoked and brutal attack on a defenceless victim, which continued after he had become unconscious, as a result of which he sustained very severe injuries. It took place in a public street over an extended period, during which the appellant had ample opportunity to reconsider his actions and refrain from further violence. Instead, although he desisted in the attack on a number of occasions, he then resumed it with vigour.
The cases relied upon by the parties on the question of current sentencing practice reveal that the offence of intentionally causing serious injury, with or without circumstances of gross violence, is one which can take such a variety of forms as to make identification of current sentencing practice especially difficult.[42] The cases do not reveal that there is any specific factor, such as use of a weapon or assault in company, which were not features of the present case, which explains the sentences at the upper end of the range. Each case involves its own particular circumstances and generalisations of that kind are not necessarily helpful. It is worthy of note, however, that a sentence of eight years and 10 months was upheld in Van Kempen v The Queen, upon which the respondent relied, for very similar offending which was somewhat less serious in its immediate effects but had significant ongoing impacts that would continue to require treatment and rehabilitation.[43]
[42]Nash (2013) 40 VR 134, 145–6 [55] (Priest JA, Coghlan JA agreeing at 146 [60]).
[43]Van Kempen [2023] VSCA 26, [2]–[4] (Kennedy and Taylor JJA). Specific error was argued but there was no ground alleging manifest excess.
In the present case, the duration of the attack stands out, continuing and resuming as it did, when it was plain that Mr Danilovic was unconscious. The assault was entirely gratuitous; Mr Danilovic had given the appellant no cause to attack him. Throughout the assault, he was utterly helpless. The absence of a weapon (apart from the phone) is of little moment when an offender is repeatedly kicking a senseless victim to the head. And although the initial attack seems to have been spontaneous, the fact that the assault was repeatedly renewed means that the appellant had the opportunity to reflect on what he was doing. As the sentencing judge noted, the case has the aggravating features highlighted in Director of Public Prosecutions v Terrick,[44] namely that the attack was unprovoked, it continued after the victim had become unconscious and the victim sustained very severe, albeit not catastrophic, injuries.
[44](2009) 24 VR 457, 476 [77] (Maxwell P, Redlich JA and Robson AJA) (‘Terrick’).
The judge was right to say that general deterrence looms large in cases such as this. The Court warned in Terrick:
As has been repeatedly said, those who, when disinhibited by alcohol, engage in unbridled violence in public places must expect severe punishment.[45] ... The kind of random violence which occurred here makes citizens fearful of being on the streets, especially after dark. As the Court said recently in Director of Public Prosecutions v Dowie,[46] the members of our community are entitled to go about their ordinary activities without fear of exposure to physical attack.[47]
[45]Zullo [2004] VSCA 153; R v Stevenson [2000] VSCA 161 [27] (Winneke P).
[46][2009] VSCA 154 [31] (Maxwell P, Vincent JA and Coghlan AJA).
[47]Terrick (2009) 24 VR 457, 471 [56] (Maxwell P, Redlich JA and Robson AJA).
More particularly, we refer to what was said in Wan v The Queen,[48] a case involving an attack similar to the present case but which turned out to be fatal:
To stomp repeatedly on the head of a person lying defenceless on the ground is obviously unlawful and exceptionally dangerous to the victim’s life. … Violence of this kind, which is all too prevalent, is … likely to fall within the higher range of offences of manslaughter. … [T]he seriousness of such conduct … calls for stern denunciation and the imposition of a sentence which it may be hoped may deter others from similar conduct.[49]
[48][2019] VSCA 81.
[49]Ibid [38] (McLeish and T Forrest JJA).
For these reasons, the sentence has not been shown to be outside the range available to the sentencing judge. We therefore reject ground 2.

Conclusion

The appeal must be dismissed.
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[2023] VSCA 283

22 November 2023