Submissions of the Applicant
55Ms Cox, counsel for the Applicant, submitted that the head sentence imposed upon the Applicant for this offence was manifestly excessive. No challenge was made to the non-parole period, the submission being that a significantly lesser head sentence ought to have been imposed in all the circumstances.
56Ms Cox submitted that the starting point sentence, before application of the 25% discount for the plea of guilty, must have been one of nine years and four months. It was submitted that a starting point sentence of this duration, and the head sentence ultimately imposed in this case, displayed manifest excess.
57Notwithstanding the objectively serious nature of the offence, Ms Cox pointed to a number of favourable factors in this case which the sentencing Judge had acknowledged, being the Applicant's youth and immaturity, the absence of a prior criminal history, his good prospects of rehabilitation, his remorse and contrition, his deprived background and dysfunctional childhood and his early plea of guilty.
58Of course, Ms Cox did not challenge the finding of special circumstances, based upon the need for an extended period of supervision to assist in the Applicant's rehabilitation. Rather, it was submitted that error was evident in the undue length of the head sentence.
59Ms Cox acknowledged that sentencing statistics for offences of this type committed by juvenile offenders would not assist, given the small number of cases involved. Instead, Ms Cox provided a schedule of sentencing cases for offences under s.33 which predated the standard non-parole period system. The submission was made that an examination of the circumstances of these other cases, and the sentences imposed upon the offenders in those cases, fortified a conclusion that the head sentence imposed upon the Applicant was manifestly excessive.
60It was submitted that no reason was given by the sentencing Judge for what was said to be the very significant disproportion between the head sentence and the non-parole period and that this suggested disconformity, even allowing for the finding of special circumstances, supported the contention that the head sentence was excessive: Fajloun v R [2011] NSWCCA 41 at [38].
Submissions of the Crown
61The Crown submitted that it was necessary for the Applicant to demonstrate that the head sentence imposed was unreasonable or plainly unjust, and that having regard to the maximum penalty for the offence and the objective gravity of this crime, manifest excess had not been demonstrated.
62The Crown submitted that the degree of violence used and the ferocity of the attack was a material consideration on sentence (R v Zhang [2004] NSWCCA 358 at [18]), as was the extent and nature of the injuries occasioned to the victim (R v Mitchell [2007] NSWCCA 296; 177 A Crim R 94 at 101 [27]-[28]).
63It was submitted that the Applicant's offence involved an unprovoked and prolonged attack on the victim, which only ended after another person intervened to pull the Applicant away. The offence involved numerous blows, as well as kicking and stomping on the head of the victim. The violence was sustained and substantial. Significantly, the Applicant persisted in the attack even after the victim was curled up on the ground shaking.
64The Crown submitted that the sentencing Judge had proper regard to the considerable objective gravity of the offence and the Applicant's subjective circumstances, leading to a finding of special circumstances with a substantial variation of the statutory ratio to just 42% of the full term.
65The Crown submitted that this was, in reality, an overly generous reduction. It did not mean, however, that the overall term fixed by the sentencing Judge was not appropriate.
66The Crown submitted that the sentence imposed lay within the bounds of the proper exercise of sentencing discretion for this crime and that manifest excess had not been demonstrated.
Determination
67The maximum sentence of 25 years' imprisonment indicates the seriousness with which an offence under s.33 is regarded: R v Zhang at [28]. As Howie J observed in R v Zamagias [2002] NSWCCA 17 at [11], the offence carries the highest maximum penalty prescribed by the legislature short of life imprisonment.
68The seriousness of s.33 offences is emphasised, as well, by the intention required to commit an offence under the section. Intention to cause grievous bodily harm is the mental element for murder, in the event that the victim died: R v Zoef [2005] NSWCCA 268 at [113]; R v Mitchell at 101 [27]. It is this mental element that makes an individual offender liable to a maximum penalty of 25 years, as opposed to 10 years for a s.35(2) offence of recklessly inflicting grievous bodily harm: R v Mitchell at 101 [27].
69There is a breadth of conduct and consequences comprehended by s.33: R v Williams [2004] NSWCCA 246; 148 A Crim R 325 at 336 [51]; Heron v R [2006] NSWCCA 215 at [54].
70It is an ingredient of a s.33 offence that the offender has inflicted grievous bodily harm. Section 4(1) Crimes Act 1900 defines "grievous bodily harm" to include any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease. At common law, the words "grievous bodily harm" are given their ordinary natural meaning. "Bodily harm" needs no explanation and "grievous" simply means "really serious": R v Overall (1993) 71 A Crim R 170 at 173; Haoui v R [2008] NSWCCA 209; 188 A Crim R 331 at 356 [137], 360 [160]-[162].
71The extent of injuries sustained by the victim of a s.33 offence is of great significance in assessing the objective gravity of the offence: R v Mitchell at 101 [27]-[28]. Clearly, the imposition of brain injury as a result of direct and sustained attacks to the head of the victim elevates the gravity of the crime: R v Kirkland [2005] NSWCCA 130 at [36]; R v Bobak [2005] NSWCCA 320 at [32]; R v Mitchell at 101 [28].
72However, the objective gravity of a s.33 offence is not determined solely by consideration of the injuries caused, with all the circumstances of the offence being relevant: Testalamuta v R [2007] NSWCCA 258 at [31].
73The absence of planning and premeditation is relevant to objective gravity, although this feature may be diminished (as a factor favouring the offender) given the requisite intention for a s.33 offence: R v Zamagias at [14]. This is expressly so where the attack is sustained and there are opportunities for the offender to desist from the attack but he does not do so: R v Westerman [2004] NSWCCA 161 at [17]. Likewise, where the offender does not voluntarily end the attack, but it is necessary for another person to pull him away to protect the victim: R v Zamagias at [13]; R v Mitchell at 101 [28].
74The fact that a s.33 offence involves an unprovoked, uncalled for and unjustified attack elevates its objective gravity: Matzick v R [2007] NSWCCA 92 at [23]. An attack upon an innocent citizen who is going about his ordinary business is a crime of increased seriousness: R v Woods (NSWCCA, 9 October 1990, Lee CJ at CL, Allen and Badgery-Parker JJ, unreported).
75In the present case, the Applicant was a complete stranger to the victim. Mr Patel was undertaking his work in a unit complex and did nothing to attract the attention of the Applicant.
76Mr Patel was the innocent and unlucky victim selected by the Applicant for violent attention. There was nothing in the evidence to suggest that the attack was racially motivated.
77The mundane context in which the Applicant came to meet Mr Patel renders difficult to understand the ferocious and sustained attack which followed. The Applicant punched Mr Patel repeatedly for no good reason. The Applicant moved away from Mr Patel but returned to him, more than once, to resume the attack. The Applicant had opportunities to desist, but chose not to do so. Throughout the ordeal, Mr Patel did nothing at all to provoke or otherwise encourage the Applicant to resort to violence or to persist in the attack.
78The attack involved escalating violence against a victim whose condition was obviously deteriorating: Ashe v R [2010] VSCA 119 at [27]. At a time when Mr Patel was lying prone on the ground shaking, the Applicant attacked his head by means of kicking and stomping. By this stage, as was obvious, Mr Patel was lying virtually helpless on the ground: R v Ross [2007] VSCA 213; 17 VR 80 at 84 [23]. It seems a matter of irresistible inference that it was this phase of the offence which caused serious brain injury to Mr Patel.
79It is true, as counsel for the Applicant submitted, that no weapon was used by the Applicant during this attack. However, in a practical sense, the Applicant's feet were used as a type of weapon to attack the head of the victim. The power of blows inflicted by the feet of a young man will be substantial. Application of force of this type to the head of a prone and helpless victim will likely cause serious head and brain injury, as happened in this case.
80It was only when another person dragged the Applicant away from the victim that the attack ceased. The Applicant then fled the scene, displaying no concern for the victim.
81In R v Wright [1998] VSCA 84, Winneke ACJ (Brooking and Batt JJA agreeing) observed, at [2], that attacks involving kicking and stomping to the victim's head appeared to be "a familiar method of inflicting serious injury in modern times" which ought be regarded by the courts as "abhorrent and worthy ... of condign punishment".
82In Director of Public Prosecutions v Lawrence [2004] VSCA 154; 10 VR 125 at 132 [22], Batt JA (Winneke P and Nettle JA agreeing) observed that persons who commit such an offence "and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both". Batt JA observed (at 132 [22]), citing R v Wright at [6], that an offender's youthfulness and rehabilitation may need to take a "back seat" to specific and general deterrence where crimes of wanton and unprovoked viciousness are involved. In Taskiran v R [2011] VSCA 358, Warren CJ (Hansen JA agreeing) observed at [23] that denunciation and the need to vindicate the values of the community were factors to be added to specific and general deterrence in this respect.
83In a similar vein, Howie J (Giles JA and Fullerton J agreeing) said in R v Mitchell at 101 [29]:
"Violence on the streets especially by young men in company and under the influence of alcohol or drugs is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence."
84It was necessary that both the head sentence and the non-parole period reflect the objective gravity of the Applicant's crime, as well as the need for general deterrence. The Applicant's youth was a most important factor, but the violent nature of the Applicant's crime, committed against an innocent citizen close to a public place, called for substantial weight to be given to general deterrence: AI v R [2011] NSWCCA 95 at [67]-[69].
85At the same time, the sentencing Judge was called upon to take into account the strong subjective factors operating in the Applicant's favour. It was necessary, as well, that the sentencing Judge have regard to the protection of the public at a time when the Applicant comes to return to the community, by way of conditional liberty.
86Although it may, in some cases, be apparent from an unexplained gap between the non-parole period and the head sentence that a disproportionate and manifestly excessive head sentence has been imposed, I am not satisfied that this is the position in the present case. The gap between the two periods here is explained by the substantial indulgence extended to the Applicant after the finding of special circumstances. His Honour set a low non-parole period with an extended period of available conditional liberty, in recognition of the Applicant's youth and need for rehabilitative assistance, against a background of a dysfunctional upbringing and a stable and productive period in custody.
87I have considered the cases referred to in the schedule provided by counsel for the Applicant, keeping in mind the limited approach referred to by the High Court of Australia in Hili v The Queen [2010] HCA 45; 242 CLR 520 at 536-537 [53]-[54].
88The present case may be distinguished from nearly all the sentencing decisions referred to in this schedule. It is common for s.33 offences to be committed in circumstances where the offender and the victim are known to each other and there is a context in which the use of violence commences. That is not the present case. This was an unprovoked attack upon an innocent stranger.
89In any event, sentences imposed upon the offenders in the schedule do not point to manifest excess in this case, even allowing for the youth of the Applicant. The use of extreme violence by a young offender, affected by alcohol, warranted a very substantial custodial sentence. This was because of the wanton and unprovoked nature of the offence itself, the sustained use of violence and the very substantial injuries sustained by Mr Patel, going far beyond the legal threshold for grievous bodily harm.
90It is the case that the Applicant will not be subject to parole supervision for a period exceeding three years after his release, by operation of Clause 228 Crimes (Administration of Sentences) Regulation 2008: R v Sellars [2010] NSWCCA 133 at [22]. This means that, if the Applicant is released to parole at the conclusion of the non-parole period, supervision by the Probation and Parole Service will take place only for a period of three years, with a further period of one year not attracting parole supervision.
91It will remain the case that the Applicant would be liable to breach of parole should he offend in that fourth year. After the benefits of a period of up to three years' supervision in the community, I do not consider that the inability, as a matter of law, for the Applicant to be supervised in the community in the fourth year constitutes a reason to interfere with the otherwise appropriate head sentence imposed in this case.
92I am not persuaded that the head sentence in this case is manifestly excessive. In all the circumstances of the case, including the circumstances of the offence and the Applicant, it has not been demonstrated at the head sentence is unreasonable or plainly unjust.