DPP v Kosmidis [2008] VSCA 66

**3 The respondent Theodoris Kosmidis pleaded guilty in the County Court to single counts on two presentments. On presentment C0605368, the respondent pleaded guilty to a count of intentionally causing serious injury at Sunshine on 16 June 2006. On presentment U0221130, he pleaded guilty to a count of affray, also at Sunshine, on 18 July 2006.

4 On the count of intentionally causing serious injury, the sentencing judge sentenced the respondent to six months' imprisonment suspended for a period of 12 months. On the count of affray, the sentencing judge imposed a Community Based Order ('CBO') for a period of 12 months conditional upon the respondent submitting to testing and treatment for any drug or alcohol dependency and for psychological or psychiatric assessment and any other necessary treatment.

5 The Director of Public Prosecutions filed a notice of appeal in respect of both sentences on the basis that they were, in the circumstances, manifestly inadequate.**

The charge of intentionally causing serious injury

**6 On 16 June 2006 at approximately 7.45 pm in company of another male, the appellant, who was then aged 20, violently attacked an unaccompanied inebriated Sudanese man in the precincts of the Sunshine train station. The victim had done nothing in the short time prior to the assault to provoke what was a despicable and aggressive attack carried out in full view of the public and with significant consequences to the victim.

7 The respondent punched the victim, threw him to the wall and then, assisted by his co-offender, kicked and dragged the victim along a tunnel beneath the station. During the course of this malevolent exercise the respondent said words to the effect of 'You black bastard, look at you you're drunk'. The appellant and his co-offender then left the significantly injured victim at the end of the tunnel and decamped.

8 Fortunately, passers-by assisted immediately and the victim was conveyed to the Western General Hospital. He had sustained the following injuries:**

(b) Fractures of the upper and lower parts of the jaw.

(d) Fractures of the bones surrounding the ear canals.

**9 The evidence concerning the extent of the victim's recovery is not extensive. It appears that his hearing was at least temporarily affected and that his ability to eat was also impaired. Unfortunately, the victim was unable to be located at the time when the respondent was sentenced, so any continuing effect of his disabilities was unknown.

10 The respondent, when interviewed by the police some time later, admitted his part in the assault but provided an account of some previous contact with the victim which in some way, he claimed, played a part in his unprovoked and unwarranted attack on the victim.

11 On 18 July 2006 at approximately 4.00 pm and, again, at the Sunshine train station the respondent, in the company of a number of youths (including school students) set upon another innocent victim. The cause of the mob attacking this victim was his failure to share some of his stubbies of beer with them, despite having provided them with beer previously.

12 The respondent, with others, attacked the victim, kicking and punching him both whilst he was on his feet and after he was forced to the ground. The respondent was described by a number of witnesses as playing a leading role in the attack and was seen to punch and kick the victim at various times. It is clear, however, that others, including two co-offenders who were charged, were involved in what was a nasty affray.

13 This incident was, like the previous incident, conducted in open view at a busy time at the train station. Fortunately the station master intervened before any great damage could be inflicted upon the victim who was left with swelling and red marks to his face, eyes, nose, lips and right forearm. He did not require medical attention.

14 The respondent when interviewed by the police provided a discursive and evasive account of the circumstances, denying being involved in the group assault but admitting to slapping the victim in the face.

15 At the time of the offences the respondent was 20 years old and living on his own. The sentencing judge described his family background as dysfunctional. His parents had separated when he was an infant and after his mother's remarriage he experienced considerable difficulties with his stepfather which at times led to physical and verbal abuse. At age 13 he left home and lived with his grandmother. He completed Year 10 at school and then commenced a painting and decorating course at TAFE, completing a year and a half of that course and then obtaining work as a sub-contract painter and decorator. He carried out that job for several years until he changed jobs and took up labouring. He was engaged in this employment at the time of each of the offences.

16 The respondent commenced using cannabis at the age of 13 and at the time of these offences had a serious addiction to ice amphetamine to the extent of using two grams per day. The trial judge accepted that its effect was to cause him to become stimulated and make him aggressive.

18 As will be seen, the sentencing judge placed considerable emphasis on what appears to have been a drastic alteration in the respondent's life subsequent to these charges being laid. Much material was placed before her Honour. Without objection from the Crown, counsel for the respondent brought matters up to date before this Court.

19 The respondent has received extraordinary assistance from DAS West (Western Health Drug and Alcohol Services Program). Through this program, which he has continued to attend, it appears that not only has he been able to eliminate his addiction to ice amphetamine as well as cannabis but has also managed to stabilise his personal life and his relationship with his family.

20 He has attended an in-patient detoxification unit and has availed himself willingly of the out-patient facilities provided by the DAS West staff. He is now engaged to be married with the birth of his child imminent. During 2007 he has worked continuously. He has worked for the past six months for an organisation known as Bay Building Services and is regarded as a totally satisfactory employee. He assists his grandfather, a Greek Orthodox priest, with voluntary community work. His grandfather wrote to the sentencing judge, 'He has truly made a turn around in his life and will continue to do so.'

21 He pleaded guilty to the charges and did not contest the committal.

22 In relation to the charge of intentionally causing serious injury, the sentencing judge noted the seriousness of the offence and concluded that a term of imprisonment was warranted. She appears to have paid particular regard to the following matters:**

(c) he was using the drug ice at the time of the commission of the offences, and one effect of this drug was to make him aggressive (he having since completely stopped use of that drug);

(d) the respondent had shortly after his arrest begun a process of reformation;

(e) there was impressive evidence of the successful efforts on the part of the respondent towards reformation;

(f) the respondent had not been charged with any subsequent offence;

(h) he had pleaded guilty at the earliest opportunity;

(j) the respondent would be exposed to undesirable influences in prison;

**23 Having taken these matters into account, the sentencing judge imposed a sentence of six months' imprisonment on this count, which she wholly suspended for a period of 12 months.

24 In relation to the affray count, it would seem that the sentencing judge had regard to those factors set out above as favouring a lenient sentence. She imposed a CBO of 12 months' duration with the condition that the respondent be under supervision and that he must submit for testing and treatment for any drug or alcohol dependency and a psychological or psychiatric assessment and any necessary treatment. The respondent was also ordered to participate in programs to reduce the chance of re-offending.

25 The principles governing an appeal by the Director of Public Prosecutions are well known and do not need to be set out in any detail. In Director of Public Prosecutions (Vic) v Bright[1], Redlich JA summarised the position as follows:**

A number of the principles which govern appeals by the Director of Public Prosecutions are set out in R v Clarke. One is that an appeal should not be brought unless the sentence reveals such "manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle". An examination of authorities suggests, as was conceded by the Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be "clear and egregious", the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and "undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes". When re-sentencing the offender the appellate court must pay careful heed to the factor of double jeopardy, inherent in a Crown appeal, arising from the respondent's exposure to sentencing on a second occasion for the same crime. Because of the element of double jeopardy, Crown appeals are regarded as having a "rare and exceptional" character which calls for restraint, even where manifest inadequacy may be present, the Court having an overarching discretion not to interfere. Double jeopardy is a factor which must be considered in both the Court's determination of whether this Court should exercise its discretion to allow the Crown appeal and, where the discretion is exercised, as to the sentence which should be imposed. Any different sentence to be imposed must allow for double jeopardy.

Crown appeals inevitably excite an examination of whether there is reasonable proportionality between the sentence and the gravity of the crime. The objective gravity of the offence must be assessed otherwise other relevant sentencing considerations, and in particular subjective factors, may be given undue weight in arriving at the sentence, rendering it unlikely that the sentence will be commensurate with the seriousness of the crime. (Citations omitted.)

**26 In my view, the sentence passed by the sentencing judge on the count of intentionally causing serious injury was patently inadequate and would, if not varied, undermine public confidence in the courts in dealing with serious criminal offences. Whilst her Honour was entitled to take into account a number of the favourable matters pointing towards a somewhat lenient sentence she failed to have adequate regard to the circumstances surrounding the offence. As I have endeavoured to set out, it was a violent and unprovoked attack upon a defenceless individual, accompanied by racist taunts which left the victim with significant injuries.

The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence and other sentencing objectives are at least equally important.[3]

**28 In this case the sentencing judge, in my view, lost sight of what were important considerations in the sentencing process, namely, just punishment, general deterrence and individual deterrence. Each of these considerations should have led her Honour to impose a far more significant term of imprisonment measured in years rather than months. I am satisfied that the tests set out for a successful Director's appeal have been met and the remaining question is that of the re-sentencing of the respondent by this Court.

29 At the commencement of the appeal the Court indicated its preliminary view that the sentence imposed by the trial judge on a count of intentionally causing serious injury was manifestly inadequate and met the tests laid down for a successful Director's appeal. Counsel who appeared for the Director, in a helpful and candid submission, argued that, in effect, the Director's primary concern was that of the inadequacy of the sentence and not the fact of its suspension. He accepted that a suspended sentence was not inappropriate in respect of the charge of intentionally causing serious injury. Again, helpfully and sensibly, he accepted that in respect of the charge of affray the sentence was, upon reflection, appropriate given the apparent rehabilitation of the appellant particularly as it appeared that the conditions of the CBO had played no small part in ensuring that rehabilitation.

30 Counsel for the respondent put no further oral submissions to the Court other than to affirm their contention that a suspended sentence of imprisonment was an appropriate course in respect of the re-sentencing on the charge of intentionally causing serious injury.

31 The appeal against the sentence imposed on the count of intentionally causing serious injury must be allowed. It is appropriate to wholly suspend the sentence given the clear rehabilitation of the respondent and the application of the double jeopardy principle.

32 The appropriate sentence is one of two years' imprisonment wholly suspended for a period of two years.

33 The appeal in relation to sentence passed for the charge of affray should be dismissed.

(a) that the appeal against the sentence of six months' imprisonment suspended for one year on the count of intentionally causing serious injury preferred by presentment C0605368 be allowed;

(b) in lieu of that sentence, a sentence of two years' imprisonment wholly suspended for a period of two years be imposed;

(c) that the appeal against the sentence in relation to the count of affray preferred by presentment U2221130 be dismissed.

[1] DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538 [10] and [11].

[2] [2002] VSCA 52; (2002) 4 VR 457, 462

[3] R v Nguyen [2007] VSCA 165 [43]