DPP v Gebremeskel [2005] VSCA 171

• referred to photographs which showed the state of the burns on 31 March 2004, 3 April 2004 and 1 February 2005;

• noted opinion that the extent of ultimate cosmetic disability was uncertain as at May 2004;

• noted a victim impact statement dated 4 February 2005 in which Miss Keflezkhi made mention of anxiety, embarrassment, of being restricted in what she could wear, and of being inhibited in social activities;

• noted a psychologist's opinion dated 28 June 2004 to the effect that with appropriate treatment the victim would be able to manage her symptoms of anxiety;

• stated his inability to decide whether the cause of the injuries was on the one hand boiling water or on the other hand, as the respondent had asserted, freshly brewed tea;

• accepted none the less that the import of the respondent's plea was that the respondent had intended to cause serious injury to a defenceless victim;

• noted the respondent's personal, social and employment circumstances as follows:

- He was a man of 30, who had been born and who had grown up in Eritrea.

- Aged 13, he had been sent to the United States, in effect to avoid the impact of the long-running civil war in that country.

- In 1998, in the United States, he had met his wife and had travelled to this country, marrying in that year.

- At time of plea he had two children aged respectively four years and eleven months.

- At the time of the offence he had been estranged from his wife, but was now reconciled.

- He was shown to have been involved in affairs within the Eritrean community, first of all in Queensland and latterly in Victoria.

- He had been described by the parish priest of the local Coptic Church as a quiet and gentle man, the offence being out of character.

- He had been shown to have worked hard as a taxi driver, first of all in Brisbane and then in Melbourne.

• noted that the respondent had co-operated with the police from the outset, had made admissions on the day of the offence, and had always been prepared to plead guilty to recklessly causing serious injury;

• made a finding that the respondent was remorseful;

• noted the absence of any prior convictions;

• stated that denunciation of the respondent's conduct was an important sentencing consideration;

• noted conflicting submissions whether the respondent should be required to serve an immediate custody sentence;

• concluded that the respondent should not be required to serve such a sentence.

7 In support of his contention that the sentence imposed was manifestly inadequate, counsel for the Director, whilst accepting that this was not a case of domestic violence strictly so-called, submitted that the respondent's attack violated the conception that a person should be able to feel safe when visiting a friend's home. He further submitted that the attack had led to serious consequences. At the time of sentencing there was still significant cosmetic and psychological disability. The former was disclosed by photographs dated 1 February 2005. The latter emerged from the victim impact statement dated 4 February that year in which Miss Keflezkhi described symptoms comparable to those which had led the psychologist, Ms Kardaras, to diagnose post-traumatic stress disorder in May and June 2004. He submitted, again, that the sentencing remarks were utterly silent as to the place of deterrence in the sentencing process. That should not lead to a conclusion that the judge had not adverted to deterrence. But it should lead to a conclusion that deterrence had been accorded insufficient weight. Counsel submitted also that examination of the sentencing remarks showed disproportionate attention to mitigating features; this pointing to a failure to sufficiently put into the balance the serious nature of the offence, both in general terms and in the circumstances of the particular case.

8 Asked by Vincent, J.A. whether he was submitting that a sentence of 12 months' imprisonment would have been manifestly inadequate - that is, absent the additional feature of suspension in whole - counsel responded that he would not have thought such a sentence would have provoked an appeal. He appeared to agree that what made the sentence manifestly inadequate was that it had not provided for a period of actual incarceration.

9 The responses to which I have just referred were seized upon by respondent's counsel. That led counsel for the Director to qualify somewhat the concessions which he had made. I am not concerned to hold counsel to such concessions. I accept that they were made in the running, and without mature thought. It is also undoubtedly the fact that it is for the Court, not counsel, to pronounce upon the question whether a sentence was manifestly inadequate. The significance of the responses was rather, as I see it, that faced with responding to questions from the Court, and armed with good knowledge of the circumstances of the matter, a very experienced Senior Crown Prosecutor's instinctive response was to say, in effect, that 12 months' imprisonment should not have been considered outside the range, absent suspension in whole. That does not conclude the question whether the sentence was manifestly inadequate. But it is a useful window, in my opinion, to resolution of the question which the Court must decide.

10 Counsel for the respondent submitted that by no stretch could the sentence be regarded as one that would outrage the community. The circumstances in which the offence had been committed needed to be borne in mind. The respondent had stood accused of being a thief whilst in his own home by a visitor to the home. The accusation had been made in the context that the respondent, his accuser and others in the house were members of a relatively small Eritrean community in Melbourne. It had been made against a devout Christian, and a churchgoer. The judge had specifically declined to find that the respondent had planned the attack from the time when he entered the kitchen. That was to be gleaned from his Honour's inability to find that what had been poured over the victim was on the one hand boiling water or on the other hand freshly brewed tea. There was no specific error complained of in the sentencing remarks. If there was any deficiency in the judge's reasoning, it did not require a conclusion that the sentence imposed had been manifestly inadequate. The sentencing discretion was not to be constrained to exclude the power to impose a merciful sentence. Given the concession that a 12-months sentence was not outside the available range, the only question was whether the respondent should have been required to serve a period of actual incarceration. Even if the Court was persuaded to such a view, the period must have been short, and it would not justify allowing a Director's appeal. Such appeals have been said to involve an aspect of "double jeopardy", that having a consequential reducing effect upon substitute sentences.

11 In my opinion, in some respects this was quite a serious example of a serious crime. It was serious in that to throw boiling liquid over the body of a young woman, unexpectedly, was abhorrent behaviour. It was serious in that such action was likely to cause considerable injury. It was certainly likely to cause great immediate pain and skin damage. It was at least possible that long-term skin damage would result. It was very much on the cards that pain and skin damage would be accompanied by adverse psychological sequelae. There was material before the court which indicated that the physical and psychological consequences which could have been forecast had in fact eventuated; and that at least they were not spent at the time of sentence. Those considerations, in my opinion, would tend in favour of a substantially greater sentence than the learned sentencing judge imposed, and in favour of some part at least of that sentence involving immediate custody.

12 But that was not the whole story. First, the incident occurred, as I have explained, in a context where the respondent was evidently under considerable strain - a man repeatedly accused in his own home, and within a relatively small community, of being a thief; his victim being the person who could be described as the alternative thief; and who was at the same time one of his accusers.

13 Second, upon the judge's finding, which was not challenged, a substantial period of premeditation was in substance excluded. The respondent's act was to be viewed as one which was essentially spontaneous.

14 Third, there were many mitigatory features. The respondent was a young, hard-working married man. He had established himself in Australia after the disruption of being uprooted from his country of birth at a relatively young age and of spending years in the United States before migrating here. He was shown to be a generally gentle, churchgoing man involved in the development of social programmes for young Eritreans in this country. He was without convictions. He had assisted the police from the outset. He had always been willing to plead guilty to a count of recklessly causing serious injury. He was, according to the judge's finding, remorseful for what he had done.

15 Despite the significant matters running in his favour, had I been passing sentence upon the respondent I would, as presently advised, have passed a significantly heavier sentence of imprisonment; and I would have required some part of that sentence to be served by immediate incarceration. But that is not the test. The question is whether it can be concluded that the sentence which was imposed was manifestly inadequate. In that connection, as senior counsel for the respondent rightly submitted, the discretion of a judge to pass a merciful sentence is not to be gainsaid. So viewed, having regard to the competing considerations, and having some regard to the instinctive responses of counsel for the Director to the questions posed by Vincent, J.A., I cannot conclude that the sentence, most particularly his Honour's decision to suspend the entirety of the period of imprisonment which he imposed, was outside what was legitimately available.

16 Before concluding I should make reference to two matters that have concerned me. First, as I read it, the learned sentencing judge did not express any conclusion about the likelihood or otherwise of the victim suffering long-term cosmetic or psychological injury. He simply recited somewhat contradictory material of which he was seized. It is therefore impossible to know upon what precise basis - that is, as to extent and permanence of injury - he sentenced the respondent. The most that can be said, I think, is that the sentence reflected there being then extant cosmetic and psychological disability. I do regard his Honour's sentencing remarks as being deficient in that respect. Such a deficiency might, not must, aid a conclusion that the sentence imposed was manifestly inadequate. Particularly in light of the approach of counsel for the Director, I do not use the deficiency in that way in this case.

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17 Second, it is true that the learned judge did not refer to deterrence - general or specific - in his sentencing remarks. But counsel for the Director fairly conceded that this experienced judge was not likely to have overlooked such a matter. That is the more likely when it was the subject of specific submission by the prosecutor. This is one of those cases where the failure of a judge to mention that he took a particular measure into account should not, in my opinion, be taken to mean that he did not consider it. The sentence which his Honour passed is explicable without supposing any such failure of consideration. Counsel for the respondent submitted that the period of suspension, viewed relevant to the period of imprisonment, showed that specific deterrence had in fact been taken account of by the learned sentencing judge. It is not necessary to address that submission.

18 In the event, I would dismiss the appeal.

21 The Court's order is that the Director's appeal is dismissed.

An indemnity certificate is granted to the respondent.