DPP v Fevaleaki [2006] VSCA 212

2 The respondent, who is now 23 years old, pleaded guilty in the County Court at Mildura to one count of intentionally causing serious injury and was sentenced to 12 months' imprisonment, to be served by way of an intensive correction order. The Director of Public Prosecutions appealed against this sentence on the ground that it is manifestly inadequate and on the ground that the sentencing judge erred in finding that the Crown had conceded the appropriateness of an intensive correction order on the plea.

3 The Director challenged the sentence imposed on the basis that a term of imprisonment of 12 months was manifestly inadequate and an intensive correction order should not have been made.

4 The offence of which the respondent was convicted occurred in the early hours of Saturday morning, 12 June 2004. In the afternoon of Friday, 11 June 2004, at around 4.30, the respondent, then aged 21, attended a party with relatives and friends at his cousin's house in Robinvale. At around 1 a.m., the respondent, who was affected by liquor, went into the front yard where he saw the victim, Lionel Egan, urinating on a tree. The respondent asked Mr Egan to stop. Mr Egan was substantially affected by liquor. He commenced to swear at the respondent and forcefully pushed the respondent in the chest. The respondent then punched Mr Egan to the head, knocking him to the ground. Mr Egan continued to swear and the respondent then punched him three or four more times to the head. The assault left Mr Egan unconscious. At that point a number of other people, who were with the respondent at the party, appeared. It was decided to move Mr Egan onto the nature strip across the road as it was thought that Mr Egan might make trouble when he awoke. Mr Egan lay there until around 4.30 a.m., when passers-by who had previously assumed he was drunk or asleep became concerned and called the police and an ambulance.

5 The effects of the respondent's assault on the victim were severe. Upon being taken to hospital it was discovered after a CT scan that Mr Egan had a large subdural haematoma, a frontal intracerebral haematoma and was in need of emergency surgery. He underwent an operation to drain the blood from his brain, which involved the removal of part of his skull. Medical reports tendered on the plea indicated that Mr Egan made a good recovery after the operation, though his speech and movement are still moderately affected by the injuries he suffered.

6 On learning that Mr Egan had been taken to hospital and that the police were inquiring into the matter, the respondent immediately turned himself in to police, and made a full statement as to what had occurred. He told police that his intention when he punched Mr Egan was only to "scare him to tell him to stop". He did not think Mr Egan had been badly hurt.

7 The second ground of appeal may be disposed of immediately. Counsel for the Director did not seek to advance any oral argument in support of the contention that the sentencing judge had erred in concluding that a disposition by way of intensive correction order was not opposed by the prosecution. Having regard to the submissions made by the prosecutor on the plea it was open to the sentencing judge to reach that conclusion

8 I turn then to the ground of appeal which was the subject of oral argument. It was submitted on the Director's behalf that in failing to impose a term longer than twelve months which had to be served immediately, his Honour had failed to reflect the objective seriousness of the offence, had given insufficient weight to the seriousness of the injuries sustained by the victim and had failed to give sufficient weight to general deterrence. Mrs Quin, who appeared for the Director, submitted that whilst there were strong mitigating circumstances present, his Honour had placed too much emphasis on the respondent's youth and his prospects for rehabilitation.

9 Section 5(2)(db) of the Sentencing Act 1991 requires the sentencing judge to have regard to any injury which the victim sustained as a direct result of the offence. His Honour, a very experienced judge, made numerous references to the grave nature of the injuries sustained by the victim. His Honour stated in his reasons for sentence that "this is a very serious offence with very, very serious consequences for the victim". His Honour made numerous references to the nature of those injuries describing them as very grave and observing that the respondent was fortunate that he was not before another court facing an even more serious charge. The consequences for the victim were plainly at the forefront of his Honour's considerations.

10 Mr Tehan, Q.C., who appeared with Mr Andrighetto for the respondent, drew attention to the fact that the respondent's conduct had been provoked by both word and act. Despite the respondent's plea, he submitted that the respondent had not intended the actual serious injury sustained by Mr Egan. Mr Tehan drew attention to the fact that the assault took place over a very short time and was without premeditation. The respondent in his answers to investigators said:

"I didn't mean to hurt him that bad, I was just trying to scare him away from there. I didn't mean to put him in hospital or anything like that. I just wanted - I didn't think anything would end up like this."

On the plea the prosecutor had drawn his Honour's attention to these answers. It is evident from the transcript of the plea and his Honour's reasons for sentence that the respondent's explanation was accepted as truthful.

Intent to cause serious injury

11 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.[1] But the specific intention required for this offence is not the intent to do the act that causes serious injury but the intention to cause serious injury.[2] Unlike unlawful and dangerous act manslaughter, which may occur where the offender does not intend the consequences and they are unexpected,[3] 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.

12 A similar argument was advanced in R. v. Economedes[4] 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.[5]

13 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.[6]

14 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[7] 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.[8]

15 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.

16 It was not disputed on the plea that the respondent had demonstrated immediate and genuine remorse for the victim's plight upon learning the following day that the victim had been taken to hospital. The respondent went to the police station of his own volition the same day. He was fully co-operative with the investigators. In addition to these matters his Honour took into account that the respondent was a young man of good character and without prior convictions. He was in permanent employment and had been described by his employer on the plea as an extremely reliable and excellent employee.

17 The respondent, who is of Tongan extraction, although born in Australia, had lived in Robinvale with his parents since he was four years of age. In his reasons for sentence his Honour stated that he was impressed by the evidence given by the respondent's mother who had sought to ameliorate any ill feeling between the Tongan and Aboriginal communities of Robinvale, Mr Egan being of Aboriginal extraction. Counsel for the respondent submitted that communal healing by indigenous communities following the commission of a crime is a relevant consideration indicative of rehabilitation of the offender.[9] The submissions made on the Director's behalf must be evaluated within this setting.

18 The outline of argument filed on the Director's behalf cited D.P.P. v. Zullo[10], R. v. Huynh[11], R. v. Tafa Sa[12] and D.P.P. v. Lawrence[13] in support of the submission that a substantial and immediate custodial sentence was called for. The argument recorded in the outline of submission, illustrates the proposition oft repeated in this Court, that reference to other cases will be of limited assistance in considering whether there is error in the exercise of the sentencing discretion. The present case is a very different one from any of those relied upon by the appellant. Each of those cases involved offenders with prior convictions and in some cases extensive convictions for crimes of violence. In three of those cases the offender used a weapon in a manner which would inevitably have produced serious injury. In the fourth of those cases the offender had hit and kicked the victim in excess of 20 times. The cases were reviewed by Eames, J.A. in R. v. Tafa Sa[14]. There were substantial aggravating features in each of those cases which are not to be found in the present case.

19 This serious crime has attracted sentences as disparate as terms of imprisonment in excess of 10 years and adjournments without conviction on an undertaking to be of good behaviour. Sentencing statistics published in November 2005 show that in the period between 1997 and 2003 a number of such offenders were placed on intensive correction orders or community based orders while between 16% and 31% of offenders had their sentence wholly suspended. Further, the "Sentencing Snapshot" of the Sentencing Advisory Council shows that in the five year period between 2001 and 2005 approximately half of the people sentenced for intentionally causing serious injury did not receive a period of imprisonment.[15] As the authors of Sentencing - State and Federal Law in Victoria have said:

"It is therefore wrong in principle to suggest that this offence is one with respect to which it is not open to a sentencing judge to consider the question of a non-custodial sentence."[16]

20 An examination of further, more recent decisions of this Court, supports the conclusion that the imposition of an immediate custodial sentence for the offence of intentionally causing serious injury will not always be obligatory.[17] A sentence which does not require an offender to serve an immediate custodial term of imprisonment for the offence of intentionally causing serious injury will not necessarily be manifestly inadequate. The serious nature of this offence will ordinarily call for an immediate custodial sentence but the imposition of a different sentence is not necessarily indicative of sentencing error.

The making of an intensive correction order

21 Although the respondent has already served almost half the period of imprisonment imposed by the judge, within the community and by way of intensive correction order, it is contended on the Director's behalf that a more severe sentence should now be substituted involving the immediate incarceration of the respondent. The grounds of appeal allege error in both the term of imprisonment fixed and in the making of an order that it be served by way of an intensive correction order. If it cannot be said that the term of 12 months' imprisonment was outside the range, the Director will ordinarily face substantial difficulty in establishing manifest inadequacy by the decision to make an intensive correction order.[18] It has been recognised that the Director faces a similar difficulty in seeking to challenge an order that a sentence be suspended where the term of imprisonment is not found to be manifestly inadequate.[19]

22 The criterion on which an order may be made that a sentence of imprisonment of not more than one year be served by way of intensive correction in the community is that the sentencing judge is satisfied that it is desirable to do so in the circumstances.[20] As this is a Director's appeal, the approach of the Court toward intervention must be restrained and it is necessary that the Court be persuaded that the sentencing judge fell into error in concluding that he was satisfied that the making of an intensive correction order was desirable.

23 Counsel for the respondent informed the Court that on 10 May 2006 the respondent commenced community work pursuant to the intensive correction order. Five days a week the respondent performed maintenance work and grafting of vines at a nursery some 30 miles from Robinvale. Each Saturday the respondent performed 12 hours of unpaid communal work at a church centre within Robinvale. Since his sentence was imposed he has also undergone counselling. Counsel for the respondent placed specific emphasis on the respondent's successful compliance with the rigorous regime attached to the order. He submitted that the disposition of an intensive correction order was the appropriate means of effecting the respondent's rehabilitation particularly having regard to the fact that he was a youthful offender who ought not be sent to adult prison for a first offence if it could be avoided.

24 It is unnecessary to refer to the principles which govern appeals by the Director of Public Prosecutions. They were again discussed in D.P.P. v. Bright.[21] The principle of double jeopardy is a factor which bears not only upon the sentence which should be imposed but upon whether the Court should exercise its overarching discretion to interfere at all. This latter consideration will have particular application where the sentence that has been imposed at first instance has already been served in whole or part in the community and the offender, as in the present case, is exposed for the second time to the prospect of an immediate custodial sentence.

25 Although it is frequently stated that appeals by the Crown should be a rarity, it is now recognised that they are commonplace[22] so that the need becomes heightened for the Court to remind itself that its discretion to intervene is not unfettered. Even if it could be said that the term of a sentence or the order requiring that sentence to be served within the community should be viewed as so lenient as to be manifestly inadequate, this is not a case in which the Court should exercise its overriding discretion to intervene and impose an immediate custodial sentence which would not be of a long duration.

26 It was not in issue that there were powerful mitigating circumstances present which explained his Honour's decision to impose the sentence and make the order that he did. As Eames, J.A. stated in D.P.P. v. Anderson[23] it is a very serious step to imprison a person who has been dealt with and released into the community by a trial judge.[24]

27 I was not persuaded that the public interest required that the term of the sentence or the manner in which it was to be served should be set aside. I therefore find it unnecessary to express any final view as to whether, in the circumstances, the term of the sentence was manifestly inadequate or whether the making of the intensive correction order made it so.

28 For these reasons I joined in the order that the appeal should be dismissed.

29 For the reasons now set out by Redlich, J.A. I agreed on 29 August 2006 that this appeal should be dismissed.

[1] D.P.P. v. Lawrence [2004] VSCA 154; (2004) 10 V.R. 125 at [21] per Batt, J.A.

[2] R. v. Westaway (1991) 52 A.Crim.R. 336 at 337 per Brooking, J.

[3] Wilson v. The Queen [1992] HCA 31; (1992) 174 C.L.R. 313 at 332.

[4] (1990) 58 A.Crim.R. 466

[5] R. v. Crabbe [1985] HCA 22; (1985) 156 C.L.R. 464; R. v. Nuri [1990] VicRp 55; [1990] V.R. 641.

[6] At 469 per Crockett, J. with whom Murphy and Cummins, JJ. agreed; see similarly R. v. Boxtel [1994] VicRp 54; [1994] 2 V.R. 98 at 103.

[7] [2002] VSC 601 at [17]- [18] per Coldrey, J.

[8] The respondent referred to D.P.P. v. Cook [2004] VSCA 11; (2004) 141 A.Crim.R. 579 at [17] per Eames, J.A.

[9] Robertson v. Flood [1992] NTSC 88; (1992) 111 F.L.R. 177.

[10] [2004] VSCA 153.

[11] [2004] VSCA 156.

[12] [2004] VSCA 182.

[13] [2004] VSCA 154; (2004) 10 V.R. 125.

[14] At [17]-[26].

[15] Sentencing Advisory Council, "Sentencing Snapshot" September 2006 No.12.

[16] Fox and Freiberg, Sentencing: State and Federal Law, 2nd edition at [12.304].

[17] In D.P.P. v. Snell [2005] VSCA 131 at [21] per Charles, J.A., [41]-[42] per Eames, J.A., the Court recorded the Director's concession that a fully suspended sentence could be within range. See D.P.P. v. Lawrence at 133 [25] per Winneke, P.; D.P.P. v. Anderson [2005] VSCA 68 at [58] in relation to the offence of recklessly causing serious injury. See also D.P.P. v. Buhagiar Heathcote [1998] 2 VR 540 and R. v. Schowell [2005] VSC 407.

[18] Cf D.P.P v Wilson [2000] VSCA 112; (2000) 1 V.R. 481

[19] D.P.P. v. Oversby [2004] VSCA 208 at [13] per Callaway, J.A. and at [22] per Nettle, J.A.

[20] Section 19(1).

[21] [2006] VSCA 147 at [10].

[22] D.P.P. v. Wilson, per Winneke, P. at [18].

[23] [2005] VSCA 68 at [59].

[24] See also D.P.P. v. Best (1998) 100 A.Crim.R. 127 at 132-3.