Court of Appeal (Vic)|2011-08-31|Before: Tate JA, Buchanan JA, Ashley JA

Cedic v The Queen [2011] VSCA 258 (31 August 2011)

R v Cedic [2009] VCC 1834 (Judge Chettle)

3 On 4 October 2008, Normin Cedic ('the appellant') violently assaulted Peter Chard, resulting in Mr Chard's hospitalisation. This led to the appellant's arrest. He was charged with intentionally causing serious injury to which he pleaded guilty and for which he was convicted and sentenced. He also pleaded guilty to two summary charges of failing to answer bail. He was sentenced as follows:

[s 16 of the Crimes Act 1958]

[s 30(1) of the Bail Act 1977]

6AAA Statement: The sentence that would have been imposed if the appellant had not pleaded guilty and had been convicted of this offence after trial would have been 9 years' imprisonment with a non-parole period of 6 years and 6 months.

4 He now appeals his sentence to this Court, having previously been granted leave to appeal.

5 The appellant and his partner were at home with her 17-year-old son, three of his friends, her 16-year-old daughter and the daughter's boyfriend.

6 At approximately 10:00pm, an argument broke out between the appellant and his partner. The appellant had been drinking alcohol all day. His partner asked her son to call for assistance from the partner's former boyfriend, Mr Chard, because she was a bit scared. Mr Chard arrived sometime between 10:45pm and 11:40pm. Mr Chard was let into the house by the appellant. He walked down to the back of the house where he found the appellant's partner with her children and their friends. He noted that the appellant's partner looked very upset and he tried to comfort her.

7 Mr Chard was sitting on the floor with his legs crossed facing the appellant's partner and his back was facing the bedroom door. The appellant walked in and asked Mr Chard to go outside to talk, which Mr Chard refused.

8 According to the Crown Opening on the plea, the appellant then grabbed Mr Chard by the hair and punched him a number of times to the temple, knocking him unconscious. The force of the punches caused Mr Chard's head to hit the wall, leaving an imprint in the wall. The appellant then let go of Mr Chard's hair and, being unconscious, he fell to the floor with blood all over his face. While Mr Chard was lying on the floor, the appellant proceeded to kick him in the face, chest, ribs and groin and stomped on his face while verbally abusing him. He tried to break Mr Chard's nose by grinding his foot on it. In all, between 20 and 30 punches and kicks were inflicted on Mr Chard while he lay unconscious and approximately six 'stomps'. The appellant also threatened to break Mr Chard's arm and twisted it behind his back in an apparent attempt to do so. The appellant took a knife of some 15 centimetres in length and held it to Mr Chard's throat, threatening to kill him and everyone in the house.

9 The appellant then stood up and left the house, leaving Mr Chard unconscious on the floor, bleeding from the head. The whole assault lasted about 20 minutes. The appellant's partner and her son were screaming and yelling at the appellant to stop. One of the other people present jumped out of the window and dialled triple zero and another person left the room to call triple zero to report an emergency.

10 Mr Chard was conveyed to the Dandenong Hospital; he was still not fully conscious upon his examination at the hospital. The attending doctor noted that Mr Chard's left eye was deviated laterally and there was blood in his mouth and nose, swelling to the eyes, cheeks and both ears, and broken teeth. A scan revealed multiple right-sided facial fractures and a depressed fractured cheekbone which required that two metal plates be inserted. His eye socket had been broken in two places, his jaw muscle was damaged, his left arm was weakened, his teeth were chipped, and he has endured ongoing trauma in the form of severe anxiety, depression, frustration, sleeplessness, pain, scarring, shaking limbs and memory loss.

11 Mr Chard also suffered considerable psychological and financial problems from the assault, as disclosed in several Victim Impact Statements tendered at the plea hearing. As a result of the attack, Mr Chard lost his job and, having no income, lost his unit (which he had occupied with his daughter) and, at the time of sentencing, was living with his daughter in his mother-in-law's spare room (Mr Chard is a widower). His personality changed dramatically. He became withdrawn and depressed, being very self-conscious of his facial injuries. His older brother described him as going into 'trances', lasting from 30 seconds to five minutes. His doctor stated that he urgently required counselling for depression and severe anxiety.

12 The appellant was arrested on 21 October 2008 and gave a 'no comment' interview. For the conduct described above, he was charged with one count of intentionally causing serious injury. He was bailed to appear at the Melbourne Magistrates' Court on 24 October 2008 but failed to attend. When police attended his premises a few days later he answered the door but immediately ran from the premises. The police found him walking some streets away and arrested and charged him with failing to answer bail ('the first summary offence'). He explained his failure to attend court on the basis that he got the dates confused. The appellant was bailed to appear at the Melbourne Magistrates' Court on 31 October 2008 but again he failed to appear. On 24 April 2009, police found the appellant at another address and arrested and charged him again with failing to answer bail ('the second summary offence'). He made no comment in relation to this second failure to answer bail.

13 The appellant indicated an intention to plead guilty at an early stage, at a committal mention on 23 July 2009. On 30 October 2009, the appellant was arraigned and pleaded guilty to the offence of intentionally causing serious injury and the first and second summary offences. He was convicted and sentenced the same day.

14 The appellant was born in 1972 and was 36 years old at the time of the offending and 37 at the time of sentence. He completed schooling to Year 9 then took up an apprenticeship that he did not complete. He has limited literacy skills. He worked in the motorcar industry over a period of 10 years. He was employed in labouring or factory work and was working at a meatworks up until his arrest.

15 The appellant has had two significant relationships, one with a woman with whom he had two children. She was addicted to heroin. The other relationship is with his partner who was present during the attack on Mr Chard. The appellant and his partner had been together for 18 months before the offending took place. The appellant described their relationship to a forensic psychologist as 'ongoing' despite his incarceration.

16 The appellant has 48 prior convictions from 12 court appearances, including various drug and property offences. In particular, the appellant has prior convictions for offences of violence, including:

(1) in 1992, causing injury recklessly and destroying property with intent, (apparently arising out of an incident with his father). For this he was fined $1500;

(2) in February 2003, aggravated burglary, threatening to inflict serious injury and destroying property with intent (this offending apparently involved the appellant wielding a machete as retribution against people he believed had burgled his caravan). For this he was sentenced to a total effective sentence of two years and three months with a minimum term of 12 months;

(3) in October 2003, destroying property intentionally, for which (along with other offences) he was sentenced to a total effective sentence of three months' imprisonment; and

(4) in 2004, causing serious injury recklessly (involving repeated striking and kicking of the victim). For this (and other offences) he received a total effective sentence of 12 months' imprisonment.

17 He also has 11 prior convictions for failing to answer bail from three separate court appearances in June 1998, September 1998 and September 1999.

18 Despite his considerable offending history, there were two periods in the appellant's adult life in which he did not offend. Between 1992 and 1998 no convictions were recorded. At some stage in this period the appellant's father died and this led to drug use and renewed offending. There was also a three-year period between the appellant's release from custody in late 2005 and the instant offences in October 2008 in which there was no offending.

19 Two psychological reports were tendered at the plea hearing. The first was by Mr Joblin, dated January 2003, and had been prepared in relation to the appellant's sentencing for the offence of threatening to inflict serious injury and the property offence outlined above.[1] The other had been prepared by Mr Ball in relation to the instant offending and was dated October 2009. The reports show the appellant had a troubled childhood at the hands of an abusive and violent father. It appears the appellant was at some stage diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). He has a history of heroin and alcohol addiction and has used amphetamine. Mr Ball diagnosed him with severe and chronic post-traumatic stress disorder. While Mr Joblin in 2003 found the appellant to 'have a good intellect and ... good insight', Mr Ball found in 2009 a very different man, namely, a 'psychologically immature man who has a history of poor judgement and who does not appear to learn from his previous mistakes' who had 'limited insight into his own psychological functioning or the effect of his behaviour upon others'.

20 The sentencing judge took into account the appellant's troubled background and, while he considered that it was not an excuse for his violent behaviour, he accepted that it gave some context and explanation. The sentencing judge also took into account the appellant's plea of guilty as sparing the community the time and expense of a criminal trial, and as sparing Mr Chard and his family the associated trauma of a trial. He accepted that the appellant had showed some remorse.

21 The sentencing judge also took into account the appellant's limited intellectual ability and the appellant's experience to some degree of post-traumatic stress as a result of the abuse from his father. However, he considered that the circumstances of the offending rendered the commission of the offence of intentionally causing serious injury to be at the 'moderate to upper level'. It had, in the judge's view, 'catastrophic' consequences on Mr Chard. The prolonged nature of the assault (some 20 minutes) was also an aggravating factor. The sentencing judge observed that the appellant had

an explosive rage that sees you go off ... and you went off on this night. Alcohol fuelled anger sees you inflict violence, and extreme violence.

(1) Ground One: the sentences imposed on the offence of intentionally causing serious injury and on the second summary offence, the order for cumulation in respect of those sentences, and the non-parole period fixed, were manifestly excessive; and

(2) Ground Two: the sentencing judge erred in failing to give sufficient weight to the appellant's plea of guilty.

23 The appellant did not challenge the sentence imposed in relation to the first summary offence (three months' imprisonment).

24 On the appeal, the appellant emphasised various factors in mitigation, including:

(2) the appellant's 'limited ability' and diagnosis of post-traumatic stress disorder;

(3) the appellant's troubled background and its connection to the offending;

(4) the fact that the violent attack upon Mr Chard did not occur in a public place;

(5) the injuries to Mr Chard were not at the highest level of seriousness;

(6) the appellant had some 'guarded prospects' for rehabilitation; and

(7) the fact that the appellant had not offended between his release from custody in late 2005 and the instant offences (about three years later).

25 The appellant also relied upon various sentencing statistics which showed, with respect to the 335 people who had been imprisoned for intentionally causing serious injury between 2004-05 and 2008-09, that:

(1) the median term of imprisonment was three years and six months;

(2) imprisonment terms ranged from three months to 15 years; and

(3) only 30 prisoners received a sentence of seven years or longer (slightly less than nine per cent).

26 It is plain from recent judgments of the High Court[2] and of this Court[3] that what is important in sentencing is consistency of principle. In ensuring consistency of principle, statistics drawn from somewhat similar cases will have limited utility.[4]

27 It is also apparent from the wide range of sentences imposed for the offence of intentionally causing serious injury that the circumstances in this category of offending may differ greatly. It is the unique circumstances of each case to which a sentencing judge must give primary regard.

28 The appellant's challenge to the sentence of six months on the second summary offence was that it stood as half of the available maximum in circumstances in which there had been no conviction for failing to answer bail since 1999 and there was an innocent explanation (going to the wrong court) which was neither accepted nor rejected by the sentencing judge.

29 The challenge to the order for cumulation accepted that there was a statutory presumption for cumulation when a person commits an offence while released on

bail in relation to another offence.[5] Here the first and second summary offences were committed while the appellant was released on bail for the offence of intentionally causing serious injury. It was argued, however, that the order for cumulation contravened the principle of totality.

30 In my opinion, the ground of manifest excess has not been made out in relation to any of the individual sentences imposed, the order for cumulation, nor the total effective sentence. The particulars of the indictable offence are horrific. While the offence was not carried out in a public place, it was carried out in front of several children and the appellant's partner, all of whom must have been terrified when the appellant threatened to 'kill them all'. The persistent, unprovoked, prolonged and bloody attack on an unresponsive, unconscious man and the attempts by the appellant to break Mr Chard's nose and arm reveal the considerable degree of criminal culpability involved in the offending.

31 Furthermore, the offending has crippled Mr Chard psychologically and financially in circumstances in which he was an innocent party.

32 While there have been periods of good behaviour in the appellant's otherwise substantial criminal history, his prior convictions, particularly those convictions for offences involving violence, provide evidence that his prospects of rehabilitation are guarded. In these circumstances (while taking into account the appellant's troubled upbringing), the sentence for the offence of intentionally causing serious injury was, in my opinion, within range.

33 With respect to the six month sentence on the second summary offence, it is enough to note the appellant's lengthy history of failing to answer bail. Furthermore, the circumstances of the appellant's failure to answer bail on the second summary offence resulted in him being at large for six months, until he was eventually found at a different address. The sentence for the second summary offence was within range.

34 With respect to the order for cumulation, I consider that the principle of totality is not offended in circumstances where the only order for cumulation related to the second summary offence and where there was no overlap between the circumstances of this offence and the offence of intentionally causing serious injury.

The order for cumulation was within range.[6]

35 The appellant's objection to the non-parole period was not the subject of detailed submissions. In light of the appellant's criminal history, there is nothing about the fixing of the appellant's non-parole period in this case that would bespeak error.

37 The second ground advanced by the appellant was that the sentencing judge failed to give sufficient weight to the appellant's guilty plea, as evidenced by the sentencing judge's declaration under s 6AAA of the Sentencing Act 1991 with respect to the sentence he would have imposed but for the guilty plea.

38 There have been significant criticisms of s 6AAA.[7]

39 Putting those criticisms to one side for the determination of this case, the appellant's submission is that he did not receive an appropriate 'discount' for his early plea of guilty. He submitted that the 'discount' given with respect to the head sentence (calculated by reference to the sentencing judge's declaration under s 6AAA of the Sentencing Act) amounted to 16.7 per cent, and only a 15.4 per cent deduction in relation to the non-parole period. It was argued that such discounts were not 'substantial'[8] and that a substantial discount is to be expected when a plea is made, as here, at the earliest possible opportunity. It was also argued that, in addition to the normal benefits of an early plea of guilty, in this case several child witnesses were spared the trauma of giving evidence at the committal and at trial.

40 However, while this issue was framed as a separate ground of appeal, I consider that in substance the ground is here really a particular of the first ground, that of manifest excess. In an appropriate case, a discount for a plea of guilty may be so unreasonable that it itself constitutes specific error.[9] However, in this case, the discount is not, on its face, erroneous. The discretion involved in affording a discount for a guilty plea is necessarily wide.[10] I would here uphold the complaint only if I were satisfied that the sentence was outside the range.[11] As I have explained above, I am not so satisfied. I would dismiss ground two.

[1] See [16](2) above.

[3] Hudson v The Queen [2010] VSCA 332.

[4] Hili v The Queen [2010] HCA 45; (2010) 85 ALJR 195, 205-7; Hudson v The Queen [2010] VSCA 332.

[5] Section 16(3C) of the Sentencing Act 1991 provides: 'Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term'. Section 16(1A)(e) also removes any presumption of concurrency with respect to any term of imprisonment imposed 'on any person for an offence committed while released on bail in relation to another offence'.

[6] A question may have arisen as to whether the sentencing judge sufficiently directed that the term of imprisonment imposed on the appellant for the first summary offence was not to be served cumulatively. Section 16(3C) (set out above in n 5) creates a presumption in favour of cumulation in these circumstances in the absence of a direction by the court. I consider that the orders made by the sentencing judge are sufficiently clear to indicate that the three-month term of imprisonment imposed for the first summary offence was not to be served cumulatively.

[7] R v Flaherty (No 2) [2008] VSC 270; (2008) 19 VR 305 (Kaye J), Samac v The Queen [2011] VSCA 171, [88]-[89] (Ashley JA). The Crown had foreshadowed an objection to the notional 's 6AAA sentence' on constitutional grounds based on Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51. The objection so framed was not pursued at the hearing of the appeal and I do not consider it here.

[8] R v Howard [2009] VSCA 281, [16] (Nettle JA).

[9] R v Howard [2009] VSCA 281.

[10] R v Low [2002] VSCA 167; (2002) 135 A Crim R 79, 88 [30] (Callaway JA).

[11] R v Feretzanis [2003] VSCA 8, [45] (Callaway JA).

Cedic v The Queen [2011] VSCA 258

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Judgment (73 paragraphs)

Cedic v The Queen [2011] VSCA 258 (31 August 2011)

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Cases Cited (3)