Ashe v R [2010] VSCA 119

COGHLAN AJA: (The judgment of the Court was delivered by Redlich JA)

**1 In October 2007 the applicant pleaded guilty in the County Court at Melbourne to one count of causing serious injury recklessly. The applicant had confronted the victim on a suburban street, punched him to the ground and then continued to assault him. As a result the victim suffered permanent and near total incapacity. The applicant was sentenced to a term of ten years' imprisonment with a non-parole period of eight years.

2 The applicant sought leave to appeal against this sentence pursuant to s 582 of the Crimes Act 1958 (Vic). Leave was refused, on the basis that none of the proposed grounds of appeal were 'reasonably arguable'. The Applicant has appealed against that refusal and if successful, seeks to have the appeal heard instanter.

3 The details of the offending conduct were agreed between the parties on the plea and are as set out in the reasons of the learned sentencing judge:**

On 14 May 2006 both the prisoner and Frendo went to Leggies Hotel in Moe. They met each other on the road outside the hotel and the prisoner punched Frendo's head, causing him to fall backwards, striking his head on the road. The prisoner then punched Frendo's face three times. When told that he should not leave him on the road to be run over, the prisoner dragged Frendo to the site of the road and threw him down, causing his head to hit the road again. The prisoner walked into the hotel saying, 'You'd better ring an ambulance for that cunt I think I just killed'.

While a man named Mark De Mario was attempting to give succour to the unconscious Frendo, whose face was covered in blood and who had suffered a fit, the prisoner emerged from the hotel and punched the side of Frendo's head. The prisoner was temporarily restrained by bystanders but broke free and was driven away by a friend.

4 Of the final throw, which was perhaps the most violent aspect of the offending, Mr Mercer a taxi driver said:

He literally threw this guy into the gutter and when he landed on I could hear his head hit the ground. It was a horrible sickening sound. I would describe it as a sound like breaking bone or smacking a coconut on the concrete and hearing it crack. I could hear the guy gasping and groan just after he got thrown to the ground, just horrible.

5 In his sentencing remarks the learned judge also said:

This was not a single incident of exclusive violence but a sustained series of attacks aimed at the victim despite his unconscious state and despite the prisoner's own expressive awareness of the result of the attacks, in the expression, 'I think I just killed'.

**6 The applicant turned himself into police and was interviewed shortly after the offending. He admitted the assault but sought to minimise his offending. He denied some aspects of his conduct and maintained that the victim had in fact thrown the first punch. On the plea he admitted the facts as outlined by the prosecution.

7 As a result of the assault the victim suffered haemorrhaging into the brain and has been reduced to a vegetative state. He has suffered permanent incapacitating brain damage. Medical evidence confirming his condition was tendered on the plea.

8 A victim impact statement was tendered by the victim's ex-wife, who wrote of the consequences of the attack on the victim's three children. She said:**

Andrew Frendo was delivered the worst outcome imaginable, he now lays in a hospital bed a vegetable. The past months have been nothing short of living a worst nightmare. My children are suffering everyday... I cannot fully explain on paper how badly this has [a]ffected them.

**9 The applicant was aged 32 at the date of sentencing. He has been convicted of 25 prior offences in eight separate court appearances. Eleven of these offences involved violence or the threat of violence. They include causing injury recklessly, threat to kill, threat to inflict serious injury, assault with a weapon, resisting a police officer, riotous behaviour, reckless conduct endangering serious injury and assaulting a police officer. He has not previously been imprisoned.

10 The applicant is of low cognitive ability and was at the time of the offence habituated to illicit drugs and alcohol. The applicant had been drinking heavily on the night of the incident, although it was not suggested that he was affected by amphetamines or other illicit drugs.

11 It was submitted on the plea, on behalf of the applicant, that he was 'truly remorseful' for what had occurred and reliance was placed upon one of the forensic psychologists reports that the applicant presented as remorseful. This was contested by the Crown who suggested little remorse was demonstrated in his conduct during the period following the attack. Attention was drawn to the record of interview where the applicant said, apparently speaking of the victim, 'you create your own shit and I think he created his own shit'. The sentencing judge made no finding as to remorse.

12 Under ground 1, counsel for the applicant submitted that the learned sentencing judge erred by failing to give sufficient weight to the applicant's 'extremely low range of intellectual functioning'. Evidence was tendered on the plea that the applicant may have suffered frontal lobe brain damage as a result of a motorcycle accident when he was 21 years of age. A report of an examination by a forensic psychologist, was tendered in which it was opined:**

[the applicant's] general cognitive ability as measured by FSIQ [Full Scale Intelligence Quotient], was found to be within the extremely low range of intellectual functioning. As such, his overall thinking and reasoning abilities are exceeded only [by] those of approximately .3 per cent of his age peers. This result is consistent with [the applicant's] report of frontal lobe brain damage.

13 On the basis of these findings it was submitted, on the appeal, that the applicant was entitled to the benefit of the principles set out in R v Verdins.[1] These principles were said to require the moderation of the sentence to account for :

(a) the applicant's reduced moral culpability;

(b) the need to temper the relevance of denunciation;

(c) the need to temper general deterrence;

(d) the need to temper specific deterrence;

(e) the increased burden of imprisonment on an offender with a condition of the kind suffered by the applicant.

**14 As was recognised by the sentencing judge during submissions made on the plea, the applicant's intellectual disability may have engaged the principles in R v Verdins. These principles were developed in relation to psychiatric disorders and abnormalities but are equally applicable to intellectual disability.[2] In DPP v Patterson this Court cautioned that it is always necessary to consider how the particular condition affected the mental functioning of the offender in the particular circumstances, or how it is likely to affect him in the future. The question will always be whether, in the particular case, it has been shown that the offender's moral culpability, or the significance of general or specific deterrence, is reduced because of intellectual disablement.[3]

15 The Crown contended that no link was shown between the applicant's condition and his offending. The Court was referred to the reasons of the learned sentencing judge where his Honour said:**

Were one to accept the FSIQ functioning at face value, one might conclude that the prisoner wholly lacked qualities of judgment and control and was barely responsible for his actions. As such, he would not be a proper vehicle for general deterrents [sic]. But the facts of this case speak otherwise. This was not a single incident of exclusive violence but a sustained series of attacks aimed at the victim despite his unconscious state and despite his unconscious state and despite the prisoner's own express awareness of the result of the attacks, in the expression, 'I think just killed.' The learned prosecutor draws attention also to the prisoner's attempted minimisation of his actions when interviewed by police.

**16 On the plea it had been submitted that the applicant's judgment had been impaired because of the drugs and the alcohol he had consumed which had resulted in 'significant disinhibition, reduction of impulse control and most importantly a marked reduction of his frustration intolerance and tendency to impulsive reaction'. His Honour, quite correctly in our view,[4] responded during argument to the effect that this was not a case in which voluntary drug taking could be regarded as a mitigating circumstance. The applicant had been taking drugs for a considerable time and must have known the effects upon him so that he was responsible for those effects. The applicant may regard himself as fortunate that it was not contended by the prosecution that this was a circumstance of aggravation.

17 In his sentencing remarks, the sentencing judge referred to the forensic psychologist's reports that the prisoner was habituated to illicit drugs and alcohol and had consumed both in vast quantities in the hours before the attack. His Honour concluded that the ingestion of drugs did not provide any mitigation of the prisoner's conduct and that while the applicant's low intelligence had some effect upon his judgment and control, the applicant knew and controlled what he was doing in taking the drugs and in assaulting the victim. This conclusion reflected the view that his Honour had previously articulated in the course of the plea.

18 It was said without elucidation on the plea that the applicant's low intellectual capacity gave some context as to why he behaved in the 'explosive' manner that he did. It appears from the argument on the plea that his Honour was not prepared to characterise this as a 'single incident of explosive behaviour' but as an assault which continued, with interruptions, for some time, despite attempts by others to restrain the applicant.

19 Great emphasis on appeal was placed on how the applicant's intelligence functioning must have affected his judgment. His conduct, it was said, demonstrated that he had lost control and any appreciation of what he was doing. It was also said that some of his answers in his record of interview showed that his behaviour at the time was bizarre and irrational. His disability did not receive the same emphasis on the plea. We agree with the submission made by the Crown on appeal that it was not established on the plea that there was any causal connection between the applicant's impaired intellectual functioning and his offending behaviour beyond the general assertion, to which we have referred. Nor was it shown by evidence or submission on the plea that the sentence would weight more heavily on the applicant than it would on a person with a higher intellectual capacity.

20 While Verdins states that it is self evident that a prisoner suffering from a mental illness such as severe depression will find prison more burdensome than a person in normal health and that imprisonment may cause a deterioration in such a condition such outcomes are not equally obvious in the case of a prisoner with low intelligence. It is not evident that this condition will necessarily make prison a greater burden. No submission was made or evidence called on the plea that suggested that the sentence should be mitigated on that account. This ground is not made out.

21 Under ground 2 the applicant submits that the learned sentencing judge erred by placing too much weight on the consequences of the assault. The applicant was sentenced on the basis that he had foreseen the probability of catastrophic injury. The seriousness of those injuries was acknowledged but it was submitted that the applicant did not intend that the victim suffer the actual serious injury which he sustained.

22 The learned sentencing judge suggested on the plea that there was little to differentiate this case from one of intentionally causing serious injury. His Honour observed that a reasonable person would have realised that there was a grave danger of causing serious injury if not death, and that the applicant had ignored warnings that should have made that risk clear, and continued the attack. This was accepted by counsel for the applicant on the plea, who acknowledged that the applicant's conduct should be placed at the highest end of 'reckless behaviour'. However he maintained that the applicant did not intend to permanently incapacitate the victim.

23 Counsel drew attention to those decisions in which it has been said that whilst unintended consequences must be taken into account in sentencing, they should not be permitted to overwhelm the exercise of the discretion and swamp other sentencing considerations.[5]

24 The Court considered a similar submission in DPP v Terrick[6] where the victim had been left with catastrophic injuries of a similar gravity to those suffered in the present case. The victim had been punched and kicked by three offenders who were acting in concert, and the attack had continued after the victim fell unconscious. Two were convicted of intentionally causing serious injury and one of recklessly doing so. The Court was required to consider the submission, advanced on behalf of the offenders, that they had not foreseen the full consequences of their actions. The Court reviewed the relevant authorities in these terms:**

The appeal submissions for the respondents echoed those advanced on the plea. Counsel for both Marks and Terrick relied on the following statement by Eames JA in Director of Public Prosecutions (Vic) v Cook:

"The severity of the consequences suffered by a victim of a criminal act [is] relevant to sentencing, but however catastrophic they be the extent of the injury and damage flowing from an offence ought not be permitted to swamp all other sentencing considerations. That is especially so where the consequences were unintended: R v Van Boxtel."

It should be noted, however, that his Honour went on to say this:

"Whilst it is appropriate that the unintended consequences of the crime ought not overwhelm other considerations, in particular mitigatory factors which ought weigh in favour of the offender, full weight must nonetheless be given to the effect on the victim of the crime. To do less would be to undervalue one of the most important factors in sentencing."

Reliance was also placed upon Director of Public Prosecutions v Fevaleaki. A similar submission was made there, to the effect that, although the offender had intended to cause serious injury, the catastrophic results were unintended. Redlich JA said:

"The crime of intentionally causing serious injury is the most serious of the non-homicidal injury offences in which there is a concurrence of serious injury with the intention to cause it ... Unlike unlawful and dangerous act manslaughter, which may occur where the offender does not intend the consequences and they are unexpected, the offence with which we are concerned requires proof that the offender intended to cause a serious injury which was sustained by the victim. Here it was submitted that despite the respondent's plea of guilty, the respondent was not to be sentenced on the basis that he intended the catastrophic results of his assault.

A similar argument was advanced in R v Economedes although that was a case concerning the offence of recklessly causing serious injury. The offence of recklessly causing serious injury requires foresight on the part of the offender of the probability of serious injury as a consequence of their conduct and indifference as to whether or not those consequences occur.

In Economedes the offender had repeatedly punched and kicked the victim to the head resulting in severe brain damage which left the victim grossly disabled. The offender had been released by the sentencing judge on a community based order. In dismissing a Director's appeal the Court gave particular emphasis to the fact that the very serious consequences of the attack on the victim were unintended.

On this appeal, counsel for the Director accepted that there were unintended consequences from the respondent's attack. Neither party in submissions identified the serious injury which the respondent intended. In R v Harrison Coldrey J was confronted with a similar dilemma. The offender had pleaded guilty to recklessly causing serious injury. He had punched the victim once to the side of the head causing serious brain damage. On the plea it had been submitted that the serious injury which the offender had foreseen was a loss of consciousness by the victim. Coldrey J considered there was a degree of artificiality in such a formulation. In the present case, whatever the serious injury the respondent intended, it was recognised on both sides that the attack produced unintended catastrophic consequences. Although that was acknowledged, it was said on the respondent's behalf that the Director's submission placed too much weight upon the severity of the unintended consequences suffered by the victim, which should not be permitted to swamp other sentencing considerations.

In assessing the adequacy of the sentence imposed, the consequences for the victim must be taken into account whether or not the respondent intended all of those consequences. That said, the fact that the respondent did not intend the profound consequences for the victim has a significant bearing upon the Director's contention that the sentencing judge's discretion miscarried".

There is, of course, no presumption in criminal law that a person intends the natural and probable consequences of his or her actions. But the Director's submission relied on no such presumption. The submission for the Director was that this was a case of actual intent, in the case of Terrick and Marks, and actual foresight of consequences, in the case of Stewart. That is, the evidence demonstrated that the respondents did intend - or, in the case of Stewart, did foresee - the full consequences of their actions.

Counsel for the Director referred to Director of Public Prosecutions v Lepoidevin, where this court (Cummins AJA) said:

"In my view the learned sentencing judge fell into error in treating as a mitigatory factor that the respondent had not intended to cause injuries of the actual character or magnitude of those sustained by the victim. The respondent, a strong young man, viciously attacked a 16 year old girl by punching, squeezing, banging her head against a metal seat, kicking her in the head and stomping on her face. He knew what he was doing. It was obvious his actions were likely to cause her very serious injury indeed. He told investigating police he intended to hurt her. His plea admitted that he intentionally caused her serious injury. In the circumstances it does not avail the respondent that he lacked the specificity of medically qualified prescience. He stood for sentence for intentionally causing serious injury, into which offence these circumstances fell. The maximum penalty of 20 years' imprisonment reflects the potentiality of the offence."[7]

**25 The applicant referred to his comments during the police interview that he was 'dumbfounded and surprised' that the victim was rendered unconscious because of the assault. The Crown submitted that the statement was disingenuous and involved an attempt to minimise his culpability. It was inconsistent with his persistence in assaulting the victim after he had in fact lost consciousness and his contemporaneous statement that he believed he had 'killed' the victim.

26 Like Terrick, this was not a case where 'one punch' or 'an unfortunate act' resulted in catastrophic consequences. In Terrick the court expressed its conclusion on this issue in the following terms:**

In our view, the respondents fell to be sentenced on the basis that they intended to cause (in the case of Marks and Terricks) or foresaw the likelihood of (in the case of Stewart) very serious injuries, if not the injuries that were actually caused. It was conceded during the course of argument on the appeal - rightly in our view - that the respondents intended to cause 'really serious injury', to inflict 'maximum harm' on their victim. In view of the ferocity of the attack and, above all, the persistence of the respondents in attacking the victim after he became unconscious, no other conclusion was reasonably open.

Where (as here) an offender intends to cause (or foresees the likelihood of causing) really serious injury to another person, and does so, the fact that the offender did not foresee the precise nature, or extent, of the injuries actually inflicted will not ordinarily reduce the offender's culpability. Even if it be accepted that the respondents did not contemplate the exact nature of the injuries, or the state of permanent disablement, which they inflicted on Mr Schueth, that circumstance does not mitigate their responsibility for what occurred, given that they intended to cause maximum harm or foresaw the likelihood of that consequence.[8]

**27 In the present case the attack by the applicant was sustained. It comprised four separate attacks of escalating violence against a victim whose condition was obviously deteriorating. The victim's head was thrown towards the ground while he was probably unconscious, and was unable to defend himself. The victim's head was later punched while it was cradled in the arms of a person offering emergency assistance. The probability that maximum injury would be caused must have been apparent. That probability increased each time the applicant returned to inflict further injury on the victim. Such facts compel, the conclusion that the applicant must have foreseen maximum harm would result from his actions. The sentencing judge correctly sentenced the applicant on the basis that he had foreseen the probability of that degree of injury suffered by the victim and had acted with recklessness as to that consequence. This ground is not made out.

28 Under ground 3 the applicant maintains that the sentence and non-parole period are manifestly excessive. He relied on the following matters:**

(a) the applicant's extremely low range of intellectual functioning;

(b) the unintended consequences of the applicant's actions;

(c) the fact that the applicant voluntarily presented himself to police shortly after the offending;

(d) the applicant's plea of guilty; and

(e) the remorse expressed to the forensic psychologist.

**29 At the forefront of the argument was the fact that the sentence was almost the equal to the longest term of imprisonment ever imposed in this State for the offence of recklessly causing serious injury. While conceding the offence was very grave, it was submitted that when one took into account the factors personal to the applicant which become relevant to the categorisation of the seriousness of the offending, it was error for the sentencing judge to have placed this offence in the 'top category of offences of recklessly causing serious injury'. Hence it was submitted that it is possible to conceive of a worse category of offending where some or all of these factors are absent.

30 The maximum penalty for the offence is 15 years' imprisonment.[9] The sentence imposed on the applicant was some 66 per cent of the maximum for the head sentence. In Terrick the third co-offender, who had been found guilty of recklessly causing injury, was re-sentenced on the Directors appeal to 11 years' imprisonment with a non-parole period of nine years. As the Court said in Terrick:**

The highest sentences previously imposed for an offence should not be regarded as creating a ceiling or a sentencing practice which constrains the imposition of higher sentences in 'worst category' cases. The need to have regard to current sentencing practices does not mean that the measure of manifest inadequacy is 'capped' or 'collared' by the highest sentences previously handed down. The possibility is not foreclosed that a sentence near the largest previously imposed may be manifestly inadequate.[10]

**31 The applicant must be taken to have foreseen the probability of maximum harm being caused by his actions and as we have already observed there was little to distinguish it from the offence of intentionally causing serious injury. In some cases, and Terrick was one, no meaningful differentiation in sentence between the two types of offence will be warranted.[11] The culpability of a reckless offender will increase as the degree to which the offender has adverted to the actual consequences of his conduct increases. The offender's culpability in such cases has sometimes been compared with some circumstances of manslaughter where the conduct is sufficiently grave and productive of serious consequences.[12]

32 As has been often pointed out by this Court, the offence of recklessly causing serious injury is a broad one, the elements of which can arise in many circumstances. In the present case the sentencing judge was correct to accept the prosecutor's submission that this was in the worst category of offending. It is not to the point, as was submitted on this appeal, that some characteristic or mitigating factor was present in this case, that might not be present in another. This is the same fallacious reasoning as the submission that the maximum penalty be reserved for the worst imaginable offence. In all the circumstances, including the horrendous injuries suffered by the victim and the continuing nature of the attack, the case was properly judged as one which might be considered in the worst category, not withstanding the presence of the mitigating factors referred to on the plea and on this appeal.[13] We are not persuaded that the sentence imposed was outside the range of discretion available to the sentencing judge. The head sentence is not manifestly excessive.

33 In relation to the non-parole period we are, however, satisfied that the sentencing judge erred and that some reduction in sentence is required. In fixing a non-parole period of eight years' imprisonment the sentencing judge imposed a period of some 80 per cent of the head sentence. Although this court has made clear that there is no usual or standard non-parole period,[14] Callaway JA in R v Bolton & Barker[15] has observed:**

As with the discount appropriate to a plea of guilty, there is no fixed ratio between a head sentence and a non-parole period. In the majority of cases the proportion is between two-thirds and three-quarters, but both shorter and longer periods are found.

**34 A non-parole period which exceeds three-quarters of the length of the head sentence is not necessarily indicative of error as there is no fixed standard for the non-parole period. However, as was said in R v Detanamo,[16] where a non-parole period is imposed which is unusual by comparison with other cases and having regard to the facts of the instant case and the course of the plea, reasons should generally be given. An absence of reference to the sort of factors mentioned by Callaway JA in R v VZ[17] invites appellate scrutiny and may reflect error.[18] In the present case a non-parole period of 4/5 of the head sentence appears high in the circumstances of the case. That is not to say that in all circumstances such a ratio will be inappropriate. As was pointed out by Coghlan JA in argument, the longer the head sentence may be, the shorter the non-parole period might be as a proportion of the head sentence. Here, unfortunately, the reasons of the sentencing judge provide no explanation of the reasons for the non-parole period adopted.

35 In our view, the non-parole period is manifestly excessive and should be reduced. Having regard to the applicant's intellectual disability, his lack of relevant prior convictions and the evidence on the plea of familial support, there is no basis for the imposition of a non-parole period which is longer than that customarily imposed. We would fix a new non-parole period of seven years' imprisonment.

[1] [2007] VSCA 102; (2007) 16 VR 269.

[2] R v McIntosh [2008] VSCA 242, [84]-[104]; DPP v Patterson [2009] VSCA 222, [43].

[3] R v Wise [2007] VSCA 266 (Ashley JA).

[4] R v Martin [2007] VSCA 291; (2007) 20 VR 14; DPP v Arvanitidis [2008] VSCA 189, [28]-[29].

[5] DPP v Fevaleaki [2006] VSCA 212; (2006) 165 A Crim R 524, 527-528, DPP v Cook [2004] VSCA 11; (2004) 141 A Crim R 579, 586-7; R v Boxtel [1994] VicRp 54; (1994) 2 VR 98, 103-104; R v Economedes (1990) 58 A Crim R 466.

[6] [2009] VSCA 220.

[7] Ibid [35]-[38] (citations omitted).

[9] Section 17 Crimes Act 1958 (Vic).

[10] [2009] VSCA 220, [81] (citations omitted).

[12] DPP v Zullo [2004] VSCA 153, [11] (Nettle JA).

[13] See DPP v Terrick [2009] VSCA 220.

[14] R v Tran [2006] VSCA 222, [27]-[28]; R v Ng and Siu [2009] VSCA 218, [28].

[15] [1998] 1 VR 692.

[16] [2007] VSCA 160, [26].

[17] [1998] VSCA 32; [1998] 7 VR 693.