DPP v Eli [2008] VSCA 209

Court of Appeal (Vic)|2008-10-27|Before: VINCENT and WEINBERG JJA and MANDIE AJA

CRIMINAL LAW - Appeal against sentence - Appeal allowed - Intentionally causing serious injury - Inadequate sentence - Extremely serious permanent injury - Personal responsibility - Personal circumstances - Psychiatric condition - Tsiaras and Verdins

Mr S Ward, Acting Solicitor for Public Prosecutions

1 The respondent pleaded guilty in the County Court at Melbourne, on 21 February 2007, to one count of intentionally causing serious injury (Presentment U02226445).

2 He admitted three previous findings of guilt in the Magistrates' Court at Dandenong on 30 March 2004.[1]

3 After hearing a plea in mitigation of penalty, the sentencing judge, on 19 September 2007, imposed, on that offence a term of 2 years' imprisonment.

4 His Honour also had before him an appeal in relation to a number of sentences imposed in the Dandenong Magistrates' Court on 18 October 2006.[2] They arose from the respondent's possession of a controlled weapon (charge 4); intentionally causing injury (charge 6); unlawful assault (charge 18); four charges of failing to answer bail (charges 12, 13, 14 and 19); recklessly causing injury (charge 16); theft (charge 9) and two charges of possessing a drug of dependence, namely cannabis (charges 10 and 11). A total effective sentence of 1 year and 6 months' imprisonment with a non-parole period of 9 months was fixed and a fine of $500 had been imposed on these charges and a declaration made that the respondent served 145 days in custody.

5 The circumstances of the offending in relation to the matters that came before the Magistrates' Court will be described briefly. Although the sentences imposed for them are not the subject of this proceeding, the conduct in which he engaged is relevant to the consideration of the matters with which we are concerned.

6 On 10 June 2006, at the Springvale Railway Station, the respondent was found in possession of a home-made knife. On 26 June 2006, he stole a motor car. He also pleaded guilty to two charges of possession of cannabis in June 2006 and four charges of failing to answer bail on 11 November 2004, 30 March 2005, 31 August 2006 and 10 May 2007. For this group of offences he had been convicted and an aggregate fine of $500 imposed.

7 Of greater relevance, for present purposes, is the respondent's commission of the following offences.

8 On 6 August 2006 at 10.30pm, the respondent boarded a train to Dandenong and approached a male passenger who was seated listening to music and twice asked him whether he was Indian. The victim twice replied that he was, in response to which the respondent punched him to the head and face with closed fists about 20 times. Persons who had previously been seen with the respondent tried to pull him away but he continued to punch the unfortunate man until he alighted from the train when it stopped at a station. The victim was treated at Dandenong Hospital for bruising and abrasions to his head, face and left hand. The respondent was sentenced to imprisonment for 18 months on a charge of intentionally causing injury for this conduct.

9 On 29 December 2006 at 7.45pm, two men, Shere Hamed Popel, and his cousin, Fazel Hamed Mosevic, were kicking a football in a reserve in Springvale, when the respondent approached them and accused them of 'picking' on children who were playing not far away, which they denied. He grabbed both victims by the neck and bashed their heads together. He then punched Popel about five times in the face, threw him to the ground and punched him numerous times on the body, before saying 'sorry' and walking off. Popel sustained a swollen and bleeding nose, swollen right eye and lips and abrasions to his body. Mosevic suffered pain in his forehead. The respondent was convicted of recklessly causing injury to Popel and sentenced to six months' imprisonment to be served concurrently with the other sentences. He was also convicted of unlawful assault upon Mosevic and sentenced to imprisonment for 3 months to be served concurrently with the other sentences.

10 The sentencing judge allowed the appeal and set aside the sentences imposed. On the offence of intentionally causing injury (charge 6) committed on 6 August 2006, the respondent was convicted and sentenced to 15 months' imprisonment, 9 months of which was ordered to be served cumulatively upon all other sentences imposed by his Honour. For the offence of recklessly causing injury to Popel on 29 December 2006 (charge 16), the respondent was convicted and sentenced to imprisonment for 9 months. On the charge of unlawful assault upon Mosevic (charge 18), the respondent was convicted and sentenced to 6 months' imprisonment.

11 The judge ordered that 9 months of the sentence imposed on charge 6, 3 months of that imposed on each of charges 16 and 18 be served cumulatively upon each other and upon the sentence imposed on count 1 of presentment no U02226445. This created a total effective sentence of 3 years and 3 months' imprisonment in respect of which a non-parole period of 2 years and 3 months was fixed.

12 The Director has appealed against the sentence imposed for the offence of intentionally causing serious injury for which he had been presented before the County Court, contending that:

The sentence imposed in respect of count 1 (on Presentment U02226445), the total effective sentence and the non-parole period fixed were manifestly inadequate in all the circumstances.

In fixing a term of 2 years imprisonment in respect of count 1 (on Presentment U02226445), the total effective sentence of 3 years 3 months imprisonment and a non-parole period of 2 years 3 months imprisonment, the sentencing Judge -

(a) failed to sufficiently punish the offender to an extent which is just in all of the circumstances;

(b) failed to sufficiently deter the offender or other persons from committing offences of the same or a similar character;

(d) failed to sufficiently protect the community from the offender;

(e) failed to have sufficient regard to the maximum penalty prescribed for the offence;

(f) failed to have sufficient regard to the nature and gravity of the offence, and in particular, the fact that the offending represented a 'serious example' of this type of offending;

(g) failed to have sufficient regard to the offender's culpability and degree of responsibility for the offence;

(h) failed to have sufficient regard to the impact of the offence on the victim of the offence, and the immediate family of the victim;

(i) failed to have sufficient regard to aggravating features of the offending, and in particular -

the use of a weapon in the initial attack
the continued pursuit of the offender after the initial attack

the permanent nature of the injuries inflicted upon the victim
the commission of the offence in a public place.

(k) gave too much weight to mitigating factors concerning the offender, and in particular -

the personal background of the offender, and
the mental illness suffered by the offender.

For avoidance of doubt, the [Director] makes no complaint as to the individual sentences imposed, nor the directions as to cumulation ordered, in respect of the charges the subject of the County Court (Appeal Division) proceedings AP-07-2187.

13 We now turn to the circumstances of the offending involved in the sentence under appeal.

14 On Saturday, 16 September 2006, at about 5.30am, the respondent and the victim, Manifred Broughill, who were unknown to each other, boarded the same carriage of a Cranbourne bound train at the Springvale Railway station. During the journey, there was some conversation between the two men and the respondent moved from his seat in order to sit next to Broughill. As the train approached Sandown Park station, the respondent suddenly grabbed hold of Broughill and dragged him to the floor. He then struck the unfortunate man to the face about ten times with his fist and a glass beer bottle.

15 Friends of the respondent entered the carriage and saw the assault taking place. They heard the victim screaming for help and intervened to stop it. When released, Broughill attempted to escape and crawled into the next carriage through internal adjoining doors. However he was quickly pursued by the respondent. Broughill then ran towards the train doors. At this stage, the train was departing Sandown Park station and had travelled about 200 metres. Either, it would seem, in panic or because he believed that it was the safer option, he pulled the doors open and jumped.

16 Broughill was located about 30 minutes later at the side of the train tracks in a semi-conscious state. He was taken to hospital and was found to be suffering brain haemorrhages, a fractured nose, and multiple abrasions to his body and face. A brain scan was performed, showing brain haemorrhages, and he was transferred to the intensive care unit.

17 The attack was captured on a security camera and became the subject of television news coverage that evening, as a result of which, the respondent attended a police station. When interviewed, he claimed that 'I was just talkin' to him and he told me to shut up, and that he became angry and 'I just wanted to hit him'. He said that he was intoxicated and that he had assaulted the victim to the point of exhaustion.

18 On 6 October 2006, Broughill was diagnosed as having sustained a severe traumatic brain injury. Neuropsychological assessment indicated slow speed of information processing and reduced verbal and visual memory abilities, reduced attention span, organisational skills and reasoning. He remained an inpatient in the acquired brain injury unit at Cedar Court Rehabilitation Hospital for several weeks.

19 His victim impact statement sets out, with respect to the physical consequences of the assault, that -

... I now have difficulties with short term and long term memory loss with little improvement. Balance and fatigue is a new weakness to overcome especially when I have little to no strength Im (sic) now looking to getting a new gym schedule in place. I have bouts of depression as Im (sic) no longer working as an elite apprentice or do anything I previously did as I have trouble seeking clarity in my thoughts as I have received psychological help which Im (sic) now putting into practice. I continue to check in with rehab and doctors although there is limitations as with medication panaforte time will only tell what the future holds.

and in relation to the emotional trauma that he sustained -

I've had depression at times but struggle to talk about it as I don't want medication for such problems. I can no longer catch trains as it's a phobia its (sic) brings on anxiety, stress and depression. I still havnt (sic) set foot on a train since the crime. Public Transport other forms I can no longer travel alone. I've lost my purpose for life and direction Im (sic) heading in. I no longer feel safe, its has taken what self esteem I have left as I seist (sic) to continue to do what I loved such as cooking, going to live sport events, playing sport, going to public places alone such as markets, socially Im (sic) a hermit, I trust no one.

20 Whether viewed from the perspective of the physical social, economic or emotional consequences sustained by Broughill, it is apparent that the effects upon him of the respondent's conduct have been devastating.

21 In support of the appeal, counsel appearing on behalf of the Director submitted that it must be kept clearly in mind that the victim sustained extremely serious permanent injury as a consequence of a wanton and unprovoked attack. There was, he argued, nothing in the circumstances in which the assault took place that could in any way be perceived as possibly mitigating its seriousness. Attributing maximum weight to all of the factors personal to the respondent that could be seen to operate in his favour, including his plea of guilty,[3] and the stage at which it was entered, his youth, his personal background, the absence of any history of violence save for the two offences committed at around the same time, his state of intoxication and the evidence concerning his mental state when committing the offence, it was apparent, he argued, that the seriousness of the behaviour in which the respondent engaged and his level of personal responsibility for it were inadequately reflected in the sentence handed down.

22 We need not recite the principles upon which the Court must act when addressing an appeal by the Crown against sentence on this basis. They are well established and regularly applied.[4]

23 The respondent was aged 21 years at the time of the commission of this offence and the two other violent attacks in which he engaged. He was born in Auckland of Pacific Island descent and came to Melbourne in 1998 with members of his family. He left school after failing to complete Year 10 and had several brief periods of employment prior to working for about 12 months as a 'truck jockey'. He described to Dr Cidoni, a psychiatrist, who assessed him in prison, significant substance use between the ages of 13 and 21, at various stages regularly and heavily consuming marijuana, heroin, amphetamines, benzodiazepines, LSD and infrequently cocaine. Throughout the period, he also engaged in the binge drinking of alcohol, culminating in the consumption of up to 'one slab of heavy beer per day'. The respondent had not been assessed or treated for any psychiatric problems prior to his incarceration for these offences, but he did provide a history of hearing multiple voices in the six months prior to Dr Cidoni's interview and he was provisionally diagnosed when admitted to the Acute Assessment Unit at the Melbourne Assessment Prison as suffering from a first episode psychosis.

24 The initial opinion expressed by Dr Cidoni concerning the respondent's mental state at the time of the commission of the offence was that -[5]

I would speculate that there might be a psychotic element to the offence that Mr Eli either is not clear about or is reluctant to divulge. This might include auditory hallucinations connected to the situation or the victim.

Mr Eli requires further assessment for psychosis and commencement of antipsychotic medication. It is appropriate for him to remain, whilst in custody, in the Acute Assessment Unit.
In the interests of ensuring Mr Eli receive ongoing care, with his consent, I have conveyed my clinical opinion to the Acute Assessment Unit.

Mr Eli also requires specialist input in relation to substance abuse. This should focus on harm minimisation and motivational interviewing.

After a further interview, some weeks later in September 2007, he stated -

Mr Eli is a 22-year-old gentleman who presents with psychotic episode of six months' duration. This episode is consistent with a diagnosis of Bipolar Disorder. His illness has been adequately treated and is now in remission.
Mr Eli also suffers from Polysubstance Abuse, particularly alcohol. On the positive side, he described significant reduction in use of the other substances in recent years.
As mentioned previously, Mr Eli has only one past conviction for heroin-related offences. This, his first assault, occurred in the context of alcohol intoxication. He does not display disturbance of personality, in particular antisocial personality.

and again 'speculated' that 'there might be a psychotic element to the offence'.

However, in a final report requested by the respondent's legal representatives concerning the possible relationship between the client's psychiatric condition and the offending, Dr Cidoni asserted -[6]

As indicated in the prior reports, Mr Eli was suffering from a severe psychiatric illness, Bipolar Disorder, prior to his incarceration. This disorder was untreated and was characterised by elevated mood, grandiose delusions and auditory hallucinations.

As Mr Eli was not psychiatrically assessed at the time of the offence, it is difficult to be definitive about the relationship between his psychiatric disorder and the offence.

Mr Eli was mentally ill at the time of the offence. This view is supported in the history given by both Mr Eli and his aunt, and Mr Eli's subsequent presentation whilst in custody.
Mr Eli is not able to recall the specific symptoms at the time of the offence to enable a direct causal link to be established for the purposes of a mental impairment defence.

(a) There is a direct causal link between the offending and his delusions and hallucinations, and that Mr Eli cannot recall it. This would not be unexpected in someone who may have been acutely psychotic, or

(b) The illness had an effect by virtue of its effect on his judgement, impulsivity and behaviour. Regardless of which is the case, the illness must be seen as a significant mitigating factor, particularly given that such behaviour was most uncharacteristic of Mr Eli.

Mr Eli has been successfully treated and has responded well to that treatment. In this context, the risk of reoffending is reduced.

25 This report, gives rise to more than one question. There was certainly no evidence relating to the conduct of the respondent at the time of the commission of the offences that could be seen to support in any fashion the possibility that he was hallucinating. He told the police that he was very intoxicated and became angry when he was told to 'shut up' by the victim.

... This, his first assault, occurred in the context of alcohol intoxication. This assaultative behaviour appears uncharacteristic of Mr Eli and is unlikely to be fully explained by the intoxication alone. Mr Eli has been intoxicated on very many occasions in the past, and has not engaged in such behaviour. He does not display disturbance of personality, in particular antisocial personality.

However, it does not appear that Dr Cidoni was ever provided with the record of the interview in which this explanation was given and which, it should be noted, was conducted with the respondent on the day after the offence. This absence was observed by the judge in the course of the hearing -

[HIS HONOUR] The difficulty with that opinion as I see it is that the record of interview reads quite well, it's quite good description. It's an open and substantially as the prosecution alleged. There is no suggestion of any irrational behaviour. It reads as a straight forward - and that was taken the day after the incident.

[COUNSEL] Yes, it's full of admissions and one has to accept that. There might be some difficulty with memories and one could put that down to a high level of intoxication but my submission, the judgment - this is really what I'm submitting is that Your Honour can find based on the material of Dr Cidoni that he most likely would have been unwell at the time, that impairs his judgment, his judgment and assessment of what to do and impulse control, all of that, things of that nature and to act in such an inexplicable way - not jut once but on the other occasions. One really has the answer, my submission is, in these reports of Dr Cidoni. [However] the doctor was not made aware that the respondent had engaged in two other violent assaults at around the same time, and had accepted the history given to him that the respondent had not abused substances other than alcohol in the preceding six months. (Our interpolation)

[HIS HONOUR] The reports of Dr Cidoni do not appear to - they make no reference to the record of interview and the record of interview as I say reads as a normal record of interview and none of these problems of understanding the charges or difficulty giving instructions which he touches on in relation to possible intellectual incapacity, appear to be there.

In any event, to reason that the absence of a history of violence whilst intoxicated renders unlikely the possibility that his conduct on the occasion in question could be explained by his state of intoxication at that time presents more than one difficulty and would clearly require a far greater investigation and analysis of his background than was performed here.

27 The other possibility mentioned, namely that the underlying illness from which Dr Cidoni opined that the respondent was suffering may have affected his judgment, impulsivity and behaviour also appears to rest, in part, upon the doctor's understanding that the behaviour in which he engaged was 'most uncharacteristic'. Whether, had he been told of the other attacks, his view that the respondent's conduct on this occasion could be so described would have remained the same is, of course, unknown. It is at least uncertain that he would have so positively asserted that the respondent did not display disturbance of personality if he had known of the other incidents. Similarly, his opinion concerning the possibility that the respondent was hallucinating, when there appears to have nothing to support it in the evidence relating to any of the three incidents, may well have been revised.

28 As the members of this Court stated in DPP v Weidlich[7] which was handed down this morning -

The Court in Tsiaras[8] and Verdins[9] recognised that sometimes as a consequence of the contribution made to the commission of an offence by a mental disorder from which a perpetrator was suffering at the time, it would be unjust to attribute to the offender a full measure of personal responsibility. The presence of the disorder could bear upon the sentencing judge's assessment of the individual's motivation and level of culpability, prospects of rehabilitation, the need for specific deterrence and the appropriateness of giving full effect to the principle of general deterrence. However it follows, when addressing the question of the significance of the disorder for these purposes, that the nature and extent of its possible effect upon the offender's behaviour must be carefully explored.[10]

29 In the present case, Dr Cidoni formed his opinion on the basis of the limited history provided to him and on the presentation of the respondent when he was in custody and clearly in a very disturbed state, (the reasons for which might also require further investigation.) He was not informed of matters relevant to the making of a proper assessment and accepted the history of substance abuse given to him as sufficiently reliable to base his opinion in part upon it. Again, had he known of the other matters, it is reasonable to assume that the possibility that the respondent was affected by alcohol or drugs at those times would have been pursued.

30 His Honour does not appear however to have regarded these deficiencies in the material as particularly significant, although he acknowledged that 'It is most unfortunate that Dr Cardone (sic) was not informed of all the matters presently before this Court' and pointed out that 'as late as 11 March 2008 Dr Cardone (sic) had not been informed of your pleas in the Magistrates' Court and in this Court'. He nevertheless concluded that

Between 6 August 2006 and 29 December 2006 you committed three savage attacks in public places on persons who were strangers to you. There appears to be a racial element in two of those attacks. I accept that in relation to sentencing for all offences a substantial reduction in sentence must be allowed on account of your mental illness at that time.

31 There was, in our view, no adequate exploration of the possible relationship between the respondent's mental state and his offending. Some moderation of the sentence to reflect the contribution that his underlying problem may have made, of course, would have been understandable, but in view of the uncertainty of the position, the extent, of any such amelioration if any, would have to be regarded as limited. Consequently we consider that there is force in the Crown contention that, on the basis of the evidence before him, his Honour fell into error in determining that 'a substantial reduction in sentence must be allowed on account of your mental illness at that time'. This error resulted in the imposition of a sentence that simply did not reflect the seriousness of the respondent's conduct, his level of personal culpability and the vindication of the rights of his victim.

32 The rights and safety of the members of this community who travel on the public transport system must be protected. It cannot be accepted that they will be exposed to abuse, violence or the threat of personal injury as they go about their ordinary activities using these facilities. Those who physically or verbally interfere with or endanger them must anticipate that the response of the courts will be stern. In short, there must be no doubt in anyone's mind that conduct of the kind in which the respondent engaged will simply not be tolerated. General deterrence is an important sentencing consideration in cases of the present kind for this reason.

33 There was one further argument advanced on behalf of the respondent to which we must direct attention.

34 It rested upon the fact that some of the injuries suffered by the victim were sustained when he jumped from the moving train. This was not a case, the argument proceeded, in which the respondent had intended the catastrophic consequences of his conduct and he should not be visited fully with them. Reliance was placed in this context upon the judgment of Redlich JA with whom Callaway JA and Coldrey AJA agreed in DPP v Fevaleaki where it was said -

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 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.

35 A distinction can be reasonably made between the culpability of an offender who intends to bring about what Coldrey AJA described as the 'profound consequences' of his or her conduct and one who did not so intend or who failed to appreciate the possibility of the actual result. But as Eames JA pointed out in DPP v Cook[11] -

While it is appropriate that the unintended consequences of the crime ought not overwhelm other considerations, in particular mitigatory factors which ought weight 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. In this case I have concluded that the sentence imposed did not reflect adequately the seriousness of the offence and the need for deterrence and overvalued the factors bought to bear in mitigation.

36 A somewhat similar situation to that under consideration here came before the New South Wales Supreme Court in R v Grimes.[12] In language somewhat different from that which would be employed today but powerfully making the same point, Innes J stated -

A series of savage and brutal attacks had been made and were being continued by the prisoners upon the deceased, an unoffending and defenceless old man in feeble health, whose only fault apparently was that he was a Chinaman, and to the shame of the other men in the compartment who looked on without remonstrance or interference with the cruel and lawless brutality of the prisoners, the prisoners were only too likely to persist, and indeed were actually persisting in the outrage upon the deceased. The deceased had by the brutal violence of the prisoners been put into a state of the greatest terror and trepidation, and as a last resource to save his life - in such imminent peril at the hands of his assailants - he is constrained to throw himself from the railway carriage, and is thereby killed. Is it not almost an insult to a reasonable intelligence to say that in such a case the assailants are not the murderers or, at all events, the felonious slayers of the deceased?

It seems to me that, in the context of causation, the principle is best formulated as follows: where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused's conduct. Whether it is necessary for the prosecution to establish also that the mode of escape adopted is a natural consequence of the victim's apprehension for his or her safety does not arise here for the deceased had no means of escape other than jumping out of the window in the situation posited. The question could arise only in circumstances where the victim does something irrational or unexpected, in which event it might be more difficult to establish that the injury sustained was a consequence of the accused's act and not the product of the victim's voluntary act. In such a situation much may turn on the nature and extent of the well-founded apprehension of the victim; and it is to be expected that persons fearful for their own safety forced to react on the spur of the moment will not always make a sound or sensible judgment and may act irrationally.

37 Although the courts in those cases were concerned with the issue of causation, it was in the context of the attribution of criminal responsibility for unintended consequences and, specifically, where those consequences resulted from the unexpected and possibly irrational act of the victim.

38 Understandably no argument was advanced before us to the effect that, in the present case, the chain of causation had been broken by the victim's act in leaping from the train or that his conduct unreasonably exposed him to a risk of further or more serious injury. It was undisputed that, after being savagely set upon by the respondent, the victim tried to escape from his predicament by crawling into the next carriage. He was pursued and, clearly in fear, leaped from the train to avoid being further attacked. The injuries that he then sustained were not only the direct result of the respondent's actions performed with the intention of causing serious injury to him, but were consequences for which the respondent could reasonably be held fully responsible. He could hardly be heard to say that having induced such fear by his criminal behaviour that the victim responded in this fashion, he should not be held accountable for the full extent of the injuries suffered. To echo the rhetorical question posed by Innes J - would it not be almost an insult to a reasonable intelligence to say otherwise.

39 Bearing in mind the personal factors that operated in the respondent's favour,[14] to which we have earlier referred, the effects of our contemplated re-sentencing by reference to the totality principle and after making proper allowance in accordance with the principle of double jeopardy, we have concluded that this appeal must succeed and the respondent re-sentenced.

40 The order of the Court is that the appeal is allowed and the sentence imposed in the Court below is quashed. In lieu thereof, the respondent is sentenced to imprisonment for 4 years and 6 months.

41 The Orders for cumulation made with respect to the summary offences will remain in place. This creates a total effective sentence of 5 years and 9 months' imprisonment in respect of which a non-parole period of 3 years and 6 months is fixed.

[1] They related to one charge of trafficking in heroin and two of possession of that drug.

[3] In the County Court on 21 February 2008. Sentence [9].

[10] DPP v Weidlich [17]. We are concerned here only with the significance of the presence of a disorder at the time of the commission of the offence and not its relevance for other sentencing purposes. It should be mentioned that as we understand the position, at no stage has it been suggested that the incarceration of the respondent would have been rendered more onerous in consequence of his mental state and that the sentence should have been ameliorated on that ground.

At a glance

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Judgment (97 paragraphs)

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Cases Cited (1)