Ali v The Queen [2010] VSCA 182

51 In May 2003, a clinical psychologist reported to an earlier court that in his opinion the applicant had relatively good rehabilitation potential. The sentencing judge in the present case did not accept that opinion. Her Honour said that the psychologist's opinion 'had not been borne out by the passage of years and your continual failure to acknowledge your responsibility for this crime'. Her Honour noted that the psychiatrist who reported in 2007 recorded that the applicant had spent the majority of the past eight years in management units segregated from the general prison population. He remarked that there had been a number of incidents involving positive urine screenings, disruptive behaviour and possession of prohibited objects.

52 Counsel for the applicant in the course of the plea submitted to the sentencing judge that the applicant had a new attitude brought about by the verdict of the jury in the third trial. Her Honour responded:

Be that as it may, you nonetheless still maintain your innocence and therefore show no remorse and in those circumstances I would not regard your prospects for rehabilitation as at all likely. In that regard I am not satisfied that you would benefit from any lengthy or substantial period on parole. You have not demonstrated rehabilitation or any substantive or constructive efforts directed towards your rehabilitation whilst in custody other than in these most recent months. In these circumstances I could not be confident that your efforts will continue or that your rehabilitation would benefit from a substantial period on parole.

53 Counsel for the applicant submitted that her Honour's remarks showed that she took the view that the applicant's prospects of rehabilitation were linked to his plea of not guilty, and that approach failed to recognise his right to a trial and did not take into account other factors that bore upon the question of rehabilitation.

54 The applicant's plea of not guilty is relevant in that it bore upon the question of remorse. His counsel in the course of the plea said the prosecutor commented that there seemed to be no remorse. The applicant's counsel said:

I accept that, your Honour. The reason for that is that Mr Ali still holds the position that he is not the perpetrator of this offence.

The lack of remorse was in turn a factor to be taken into account in determining the applicant's prospects of rehabilitation. It was apparent from her sentencing remarks that her Honour had regard to other circumstances than the plea in canvassing the question of rehabilitation, not least the applicant's extensive criminal record, his conduct in prison and the observations of the psychiatrist and the psychologist and the applicant's failure to take any meaningful steps to effect his rehabilitation save in the months before sentence. In my opinion the sentencing judge did not err in her estimate of the applicant's prospects of rehabilitation.

55 The second ground of the application for leave to appeal against sentence is as follows:

The learned sentencing judge erred by imposing a sentence that in all the circumstances of the case is manifestly excessive in particular with regard to:

(a) the mitigatory effect of the report of Dr Cidoni and his findings of the applicant suffering a major depressive disorder;

(b) the impact of delay upon the circumstances of the applicant's incarceration including his deteriorating mental state;

(c) the applicant's recent steps towards rehabilitation including his compliance with a management plan; and

(d) the length of time the applicant had spent in custody and the totality of his offending.

56 Counsel for the applicant submitted that the psychiatrist's diagnosis of a major depressive disorder should have attracted the application of principles asserted in R v Verdins[6] and should have moderated the need for general deterrence. Counsel criticised the sentencing judge for noting that the psychiatrist described the applicant as being 'mildly depressed and anxious'. Counsel also relied upon the psychiatrist's observation that the applicant 'had been compliant with the preparation of the management plan and had demonstrated for several months, out of the management unit, that he could modify his behaviour' and the fact that a psychologist had engaged in counselling the applicant.

57 In addressing the time the applicant had spent in custody and the totality of his offending, counsel for the applicant noted that the sentencing judge had referred to the fact that the applicant had been in custody for two months in 1999 for offences in respect of which he was ultimately acquitted and to the benefit of a concurrency order made in relation to two subsequent sentences passed in 2000 and 2001 which, but for the success of the applicant's first appeal, would have been served concurrently with the sentence imposed in December 2000. Counsel pointed out that the sentencing judge's remark that 'accordingly, in accordance with the principles of totality in the interests of justice I propose to take into account that lost benefit of seven months' concurrency in fixing the sentence to be imposed in respect of this sentence', was the only reference made in the course of the sentencing remarks to the issue of totality. Accordingly, so it was said, the sentencing judge failed to apply the principle of totality in relation to the overall time the applicant had spent in prison since 16 February 1999 to the date of sentence on 12 September 2007.

58 In my view, the circumstances attending the commission of the offence warrant the conclusion that it was a very serious example of a crime for which the maximum penalty is 20 years' imprisonment. The attack was unprovoked. The victim had a simple manner and appeared vulnerable. The applicant attacked him in order to punish him for a disposition imagined by the applicant. The attack was extremely violent and sustained. The victim offered no resistance and suffered a severe brain injury, which effectively ruined his life. Clearly the offence itself called for condign punishment.

59 Counsel for the applicant stressed the psychiatrist's diagnosis of a major depressive illness. The psychiatrist, however, qualified that opinion by noting 'the information from the medical file, which suggests that the disorder is in the mild end of the spectrum'. Moderation of a need for general deterrence is limited where depression is the result of conviction and incarceration.[7] The sentencing judge accepted that the process of the trials and appeals had been a source of anxiety to the applicant and said that due allowance would be made for that in the sentencing process. Her Honour also said that the delay in resolving the question of the applicant's guilt was to be taken in account in determining the appropriate sentence. As to the applicant's recent efforts to rehabilitate himself, the sentencing judge concluded that they were unlikely to continue, a conclusion which in my view is open to her.

60 With respect to the principle of totality, her Honour took into account the periods which the applicant had spent in custody which were not reckoned as pre-sentence detention, being a period of 86 days in 1999, a period of 62 days in 2000 and a period of 152 days in 2001. The period between 1999 and 2007 referred to by

counsel for the applicant was declared to be pre-sentence detention. It thereby reduced the period of incarceration. It was not also to be taken into account by reducing the sentence on account of totality.

61 I would refuse the application for leave to appeal against sentence.

62 I agree with Buchanan JA for the reasons he has given that the applications for leave to appeal against conviction and sentence should be refused.

63 I would make these additional observations in relation to the appeal against conviction. Under ground 1, the applicant submitted that the trial judge should have exercised the residual discretion described in cases such as Rozenes v Beljajev[8] and The Queen v Pearce[9] to which Buchanan JA has referred. In this context it is to be remembered that where the probative value of the evidence exceeds any prejudice - and I use that term in the sense explained in Festa v The Queen - so that no cause arose for the exercise of the Christie discretion, no other discretion resides with the trial judge to exclude evidence said to be unreliable unless that unreliability cannot be adequately exposed before the jury.

64 The applicant contended here that as the impugned evidence of the unreliable witness dovetailed with the rest of the prosecution case, it was less likely that the unreliable features of the witnesses' evidence would be recognised by the jury. But if the factors which make the witnesses' evidence unreliable are capable of identification before the jury, the degree to which the witnesses' evidence is consistent with other evidence relied upon does not afford a basis for the exclusion of the evidence. In my view each of the factors which are now relied upon by the applicant were capable of being exposed for the consideration of the jury. As the probative value of that evidence exceeded its prejudicial value there was no basis

65 In relation to ground 5, the primary issue in the trial was whether it was the applicant who inflicted the serious injuries the subject of the charge. On appeal it was said that once the jury was satisfied as to that fact, the jury would then be satisfied of the applicant's guilt. It was submitted for the prosecution to use the alleged lies as supporting an inference of guilt would involve a bootstrap argument as the prosecution would have to prove the very facts upon which the guilt of the accused depended. To reason in such a way was circular and impermissible.

66 The fact that a lie may relate to an essential part of the prosecution case does not deny it the character of an implied admission where evidence may establish its falsity and the motive for which it was told. The decision of the High Court in Edwards is predicated on the view that there is no circular reasoning involved in the contention that the jury, by accepting that a lie has been told which constitutes an implied admission, would necessarily be deciding the whole case.[10] That was recognised by this Court in The Queen v Laz, which drew a distinction between such lies and a lie which could only be established by the jury's ultimate conclusion of guilt.

67 Here, before concluding the applicant's guilt, the jury would also have had to be satisfied that the applicant possessed the necessary mens rea. Even though the lies relied upon involved the assertion of facts central to the prosecution case, the prosecution could rely upon them where the lies were established by evidence which did not prove the guilt of the applicant. That evidence established that the assertions were false and were told because of the realisation that the truth would implicate the applicant in the commission of the offence charged.

68 It should also be noted that the applicant did not seek to advance any argument in support of ground 5, sub-s (b).

69 I agree with the conclusions to which the learned presiding judge has come in relation to each application for leave to appeal and I do so for the reasons which he has expressed. I also agree generally with the remarks of Redlich JA.

70 The orders of the Court will be that the application for leave to appeal against conviction and the application for leave to appeal against sentence are dismissed.

[1] R v Christie [1914] AC 545.

[2] Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533; R v Peirce [1992] VicRp 17; [1992] 1 VR 273; R v McLean & Funk [1991] 1 Qd R 231.

[3] Exception was taken to a point relating to corroboration, but there was no exception to the substance of her Honour's warning.

[4] Cf R v Laz [1998] 1 VR 453, 466 (Ormiston and Charles JJA, Vincent AJA). See Edwards v R [1993] HCA 63; (1993) 178 CLR 193, 210 (Deane, Dawson and Gaudron JJ).

[5] [2005] VSCA 302; (2005) 13 VR 257.

[6] [2007] VSCA 102; (2007) 16 VR 269.

[7] See R v RLP [2009] VSCA 271, [30].

[8] [1995] VicRp 34; [1995] 1 VR 533.

[9] [1992] VicRp 17; [1992] 1 VR 273.

[10] R v Lam (Ruling 18) [2005] VSC 292.