DPP v Marino [2011] VSCA 133

2 I agree with Kyrou AJA that this appeal should be dismissed.

3 The respondent, Vincent Marino, pleaded guilty in the County Court to a single count of recklessly causing serious injury on presentment X01704298; four counts of intentionally causing injury and four counts of armed robbery on presentment W02478222.1; one count of trafficking in a drug of dependence (namely, MDMA) in a commercial quantity and one count of possession of a drug of dependence (namely, cannabis L) on presentment X02680398; and a summary charge of dealing with property (namely, cash of $6,465) suspected of being the proceeds of crime.

4 The single count on presentment X01704298 involved the respondent delivering a single punch to the head of an acquaintance, Ben Thomson, which knocked Mr Thomson to the ground and caused him to suffer severe brain damage and to require long-term, 24-hour support ('king-hit count').

5 The eight counts on presentment W02478222.1 involved the respondent and 11 co-offenders entering a private home without lawful authority, assaulting the four occupants, stealing various items and ransacking the property ('home invasion counts').

6 The drug offences were committed at a time when the respondent was on bail in relation to the king-hit count and the home invasion counts.

7 Following a plea in mitigation of penalty, on 24 August 2009, the respondent was sentenced to an overall total effective sentence of nine years' imprisonment with a non-parole period of five years and six months.[1] The maximum penalty for each offence, the individual sentences and the orders for cumulation that were made by the sentencing judge were as follows:

Total effective sentence for presentment W02478222.1: 4 years' imprisonment

Trafficking in a drug of dependence in a commercial quantity

Dealing with property suspected of being the proceeds of crime

Overall total effective sentence: 9 years' imprisonment

8 Pursuant to s 6AAA of the Sentencing Act 1991 ('Act'), the sentencing judge declared that, had the respondent not pleaded guilty, he would have imposed a total effective sentence of 11 years' imprisonment with a non-parole period of seven years.

9 For the reasons that follow, I would dismiss the Director's appeal.

10 On 14 January 2007, the respondent and 11 co-offenders entered a private home in Hampton without lawful authority. The respondent demanded to know the whereabouts of an individual who was said to owe a drug debt. When the occupants, Michael Grant, James Armstrong, Mitchell Norris and Shane Berger, responded that the individual was not at the premises, they were assaulted by the respondent and his co-offenders, who punched and kicked them, and struck them with a metal pole. The respondent and his co-offenders also threatened to harm the occupants and their families. During the assaults, the respondent was armed with a knife. A number of valuable items were taken from the occupants, including iPods, a laptop, mobile phones, DVDs, clothing, cash and a video camera. When the respondent and the other intruders departed, they stole Mr Armstrong's motor vehicle.

11 As a result of the assaults, Mr Grant had a full thickness laceration to his left ear, which required sutures; Mr Armstrong had a laceration on his nose; Mr Norris had lacerations to the eyebrow and forehead, which required sutures; and Mr Berger had lacerations on the top of his head, which were closed with adhesive. Each victim also had bruises and grazes to the head, face, arms and torso.

12 In his victim impact statement, Mr Grant stated that his earlobe was split almost through and his saliva gland was ruptured, and that he has been diagnosed with severe post traumatic stress disorder. In his victim impact statement, Mr Armstrong stated that he sustained a fractured nose and broken teeth, and that he has been experiencing depression and paranoia. He also stated that the computer equipment that was stolen contained valuable commercial information relating to his business and that the loss of that information resulted in the failure of the business. In his victim impact statement, Mr Norris stated that he sustained a gash on the top of his head, had a chipped tooth removed, and has experienced frequent back pain, depression and difficulty in sleeping.

13 On 27 June 2007, the respondent and Mr Thomson had an argument over the telephone about a drug debt. The respondent became agitated and drove to Mr Thomson's house. Mr Thomson was in the driveway. After they exchanged some words, the respondent punched Mr Thomson to the face with his fist. Mr Thomson fell back and struck his head on the concrete, bleeding from the nose. The respondent panicked and drove off.

14 Mr Thomson suffered a severe head injury. He was placed in an induced coma and required urgent surgery for an intracranial haemorrhage. There was severe compression of the brain and brain stem. He had a left temporal skull fracture and his bone was fractured where he was punched. He suffers from a severe acquired brain injury and epilepsy. He requires assistance in all the activities of his daily life, including toileting, showering, dressing and grooming. He is PEG-fed[2] and it will be some time before he can consume food orally. He is confined to a wheelchair and is unable to speak. He is being cared for in an aged-care facility and will require long-term, 24-hour support.

15 On 16 September 2008, the respondent was arrested and a search warrant was executed at his home. The police located a small quantity of cannabis, $6,465 in cash, 1,136 MDMA tablets, deal bags, scales, mobile phones and record books detailing drug deals. It is common ground that the cannabis was for the respondent's personal use.

16 The respondent was born on 11 October 1983. He was 23 years of age at the time of the home invasion incident and the time of the king-hit incident, 24 years of age at the time of his arrest and 25 years of age at the time that he was sentenced.

17 The respondent's family was originally from Samoa and has a strong connection to the Congressional Christian Church of Samoa. A brother, who was two years older than the respondent, drowned in New South Wales when the respondent was six years old. Following the drowning, the respondent's father turned to alcohol and became violent and abusive towards the respondent.

18 The respondent completed his VCE and enrolled in a real estate course while working full-time for a real estate company and, subsequently, a building company. During this time, he began to associate with new friends and was introduced to cannabis and, later, ecstasy and amphetamines. His drug-taking resulted in the termination of his employment. He fell further into drug use and earned income by dealing in drugs and collecting drug debts for associates.

19 In 2006, the respondent moved out of the family home. The home invasion incident took place in January 2007 while the respondent used and dealt in drugs, and collected drug debts.

20 The respondent had an infant son who died of SIDS in August 2007. After the death of his son, he endeavoured to stay drug-free. He drove trucks but struggled financially. After he lost his job, he fell back into selling drugs. He committed the trafficking offence to raise money to pay the legal costs of defending the charges arising from the home invasion incident and the king-hit incident.

21 In 2001, when he was 17 years of age, the respondent was charged with intentionally causing injury after he struck another person in the face about five times. He was placed on a good behaviour bond. In 2008, he was charged with unlawful assault after he struck a referee to the head during a paintball match. The matter proceeded by way of diversion and the respondent was required to complete an anger management course.

The plea and the judge's reasons for sentence

22 According to the evidence at the plea, the respondent has been a well-behaved prisoner and has actively participated in a wide range of programs that are available to prisoners. He is considered to be a role model in behaviour and program participation. Out of a large unit of prisoners, he is one of five prisoners who are undertaking a certificate in business studies course with Kangan Institute. He is regarded as a future mentor for young prisoners.

23 The respondent has completed courses in managing stress, horticulture, industrial cleaning, work safety, first aid, food handling, fitness, music and AIDS awareness. He has also completed a number of intensive courses about drugs and anger as well as goal-setting workshops and relapse prevention programs.

24 In a letter to the Court, which was tendered during the plea, the respondent stated that he was deeply and truly sorry, and remorseful, for what he had done to the Thomson family. He said that the focus of his life is to take up educational opportunities with the intention of rebuilding his life.

25 The sentencing judge described the home invasion as involving 'wanton, mindless violence', which has had 'far-reaching and long-term consequences which reach profoundly into the lives of [the] victims'.[3] His Honour described the king-hit incident as 'a cowardly, mindless, brutal attack'[4] and noted that defence counsel had conceded that it was 'a very, very grave example of [that] type of offence.'[5]

26 The judge accepted that the respondent's prospects of rehabilitation were 'good' and were 'a serious consideration' for the purposes of sentencing.[6] His Honour also found that it was necessary that the aims of specific and general deterrence be reflected in the sentence. Having regard to the respondent's plea of guilty and his efforts at rehabilitation while in custody, his Honour concluded that a longer than usual period of parole was warranted.[7]

27 Under cover of ground 1, senior counsel for the Director submitted that the sentence of five years' imprisonment imposed on the king-hit count, the total effective sentence of nine years' imprisonment and the non-parole period of five years and six months were manifestly inadequate. Counsel contended that the judge gave too much weight to mitigating factors and insufficient weight to the aggravating features of the offending, the maximum penalties, the impact on the victims and the respondent's history of violent offending.

(a) Manifest inadequacy of the sentence imposed for the king-hit count

28 In relation to the first limb of ground 1, senior counsel for the Director referred to the following specific aggravating features to which, it was said, the sentencing judge failed to have sufficient regard:

(a) the unprovoked and violent nature of the attack on the victim;

(b) the severity of the immediate consequences of the offending, including the occasioning of severe head injuries and the victim's placement on life support while in an induced coma; and

(c) the catastrophic long-term consequences of the offending, including: the victim's severe acquired brain injury and induced epilepsy; the victim's loss of voice, wheelchair dependence, PEG-feeding and ongoing residence at an aged-care facility at the age of 24; and the significant trauma caused to the victim's family.

29 Senior counsel for the respondent submitted that the sentencing judge gave appropriate consideration to each of the above matters and that the sentence of five years' imprisonment was well within the range of sentences that were open to his Honour.

30 I agree. The sentencing judge accurately described the nature and severity of Mr Thomson's immediate injuries and long-term disabilities, and gave appropriate weight to them. His Honour clearly recognised the far-reaching consequences of the respondent's offending for Mr Thomson and his family. By his plea, the respondent must be taken to have admitted all the elements of the offence of recklessly causing serious injury, including that he was aware that the punch would probably cause serious injury to Mr Thomson. The sentencing judge did not find, however, that the respondent was aware that the punch would probably cause the catastrophic injuries that were in fact sustained by Mr Thomson. His Honour made the following comments in relation to the seriousness of the injuries sustained by Mr Thomson:[8]

I am conscious of the danger, in this type of case, that the severity of the consequences suffered by a victim of a criminal act, the extent of the injury and damage flowing from it ought not be permitted to swamp all other sentencing considerations and I have been mindful of this. Clearly the consequences are relevant to sentencing (see [s 5(2)(db)] of the Sentencing Act, DPP v. Cook).[9] This danger is particularly to be borne in mind when the consequences were unintended or were beyond the intended (see [R v] Boxtel).[10]

However, where the consequences are very serious and despite countervailing principles, full weight must nevertheless be given to the effect on the victim. Deciding what in fact could or was foreseen in my view is an artificial and difficult exercise (see reference by ... Redlich [JA] to [R v] Harrison[11] quoting ... Coldrey [J] in DPP v. [Fevaleaki]).[12] Nevertheless, the harm which a 'king hit' or one heavy unexpected punch to the head or face can cause, can no longer be said to be unknown. There have been many such cases, some notorious, and such consequences which flow from the fall which such a hit may cause are well known.

The offence of recklessly causing serious injury ascribes the intention to the consequences or the causing of the serious injury, not the act which is the cause and which is invariably wilful. Reckless disregard of such harm as flows from one punch designed and delivered to knock out quite properly in my view must incorporate an element of retribution based on the recognition that both the attribution of responsibility and the consequences of such conduct upon the victim are valid and covalent perspectives to be born in mind in the sentence (see ... Vincent [J] in [Mallinder]).[13]

31 The above statements are consistent with the principles in the cases to which his Honour referred.

32 The respondent's offending is clearly distinguishable from the offending in Director of Public Prosecutions (Vic) v Terrick[14] to which senior counsel for the Director referred. In that case, this Court held that 'the respondents fell to be sentenced on the basis that they intended to cause (in the case of Marks and Terrick) or foresaw the likelihood of (in the case of Stewart) very serious injuries, if not the injuries that were actually caused.'[15] In the present case, there was a substantial disparity between the probable serious injury that the respondent foresaw and the catastrophic injuries that Mr Thomson actually sustained.[16]

33 In all the circumstances, the sentence of five years' imprisonment for the king-hit count is not manifestly inadequate.

(b) Inadequacy of the total effective sentence and non-parole period

34 During the plea, the prosecutor submitted that the appropriate range for the total effective sentence was nine to 12 years' imprisonment. The total effective sentence of nine years that was imposed fell within that range.

35 Senior counsel for the respondent forcefully submitted that, as the Crown 'got what it asked for', there was no basis for the Director to complain.

36 Senior counsel for the Director contended that the fact that the total effective sentence was within the prosecutor's range did not preclude the Director from submitting to this Court that the sentence was inadequate.

37 It is not necessary for me to examine the circumstances in which the conduct of the prosecution may constrain the grounds of a Director's appeal. This is because, even if this Court were to disregard the fact that the total effective sentence fell within the prosecutor's range and to consider fully on its merits the Director's submission that the total effective sentence is manifestly inadequate, the submission must inevitably fail.

38 The total effective sentence was arrived at after a careful balancing of all the relevant sentencing considerations, and it fairly reflected both the aggravating circumstances of the offending and the strong mitigating circumstances. In the light of the respondent's youth, insight into his offending and extensive efforts at rehabilitation, it was open to his Honour to exercise some leniency within the sentencing range that was available to him.

39 For the same reasons, while the non-parole period of five years and six months' imprisonment might be regarded as lenient, it is not manifestly inadequate. It was open to his Honour to impose such a non-parole period so as to allow for a longer than usual supervised release.

Ground 2: Lack of proportionality between non-parole period and total effective sentence

41 Under cover of ground 2, senior counsel for the Director submitted that the lack of proportionality between the non-parole period and the total effective sentence bespoke of error because the non-parole period undermined the relevant sentencing principles of deterrence and denunciation; was not in conformity with conventional sentencing practices; and gave too much weight to matters in mitigation.

42 There is considerable overlap between ground 2 and the second limb of ground 1. My conclusion that the non-parole period was open to his Honour and was not manifestly inadequate largely disposes of ground 2.

43 It is necessary, however, to consider briefly the contention that there is a lack of proportionality between the non-parole period and the total effective sentence and that this lack of proportionality betokens error.

44 The law does not require a fixed ratio between a head sentence and a non-parole period; rather, in a given case, that ratio 'depends on the gravity of the offences and the circumstances of the offender.'[17] The factors that weigh heavily in fixing a head sentence will generally be differently weighed in fixing a non-parole period. In a particular case, the mitigating circumstances may provide a sound basis for fixing a shorter than usual non-parole period.[18]

45 In R v Bolton,[19] Callaway JA stated that, although in the majority of cases the proportion between a non-parole period and a head sentence is between two-thirds and three-quarters, both shorter and longer periods are found.[20] In R v Tran,[21] Redlich JA, with whom Warren CJ and Nettle JA agreed, referred to a report of the Australian Law Reform Commission which concluded that 'case law recognises that the non-parole period is generally set at 60 to 66.6% of the head sentence with the non-parole period increasing to 75% in the worst category of case.'[22] His Honour stated that, as the benefit of the minimum term is for the purpose of the offender's rehabilitation, the sentencing judge's assessment of the offender's prospects of rehabilitation will have a significant bearing on the minimum term to be fixed.[23]

46 In the present case, the judge referred to the extensive evidence about the respondent's efforts at rehabilitation and decided to fix a relatively short non-parole period in order to encourage his rehabilitation. The non-parole period of five years and six months was 61 per cent of the total effective sentence of nine years. Neither this ratio nor the reasons that informed it is inconsistent with the accepted precepts for fixing a non-parole period.

Ground 3: Lack of cumulation in respect of the home invasion counts

48 Under cover of ground 3, senior counsel for the Director submitted that the sentencing judge's failure to direct any cumulation in relation to any of the sentences imposed on the home invasion counts constituted an error of law. According to counsel, this was because the failure meant that the total effective sentence:

(a) did not reflect the totality of the offending conduct and was not 'just and appropriate in all the circumstances';

(b) did not properly reflect the different circumstances of the offending with respect to each of the victims;

(c) did not properly reflect the severe nature of the injuries sustained by each of the victims; and

(d) resulted in the second and subsequent victims becoming 'meaningless statistics'.

49 The home invasion involved a count of armed robbery and a count of intentionally causing injury in respect of each of the four victims. While senior counsel for the Director accepted that it was not necessary for there to be cumulation in respect of each of the two counts relating to the same victim, counsel contended that it was necessary for there to be cumulation as between the four pairs of counts relating to each of the four victims. The correct approach, so it was said, was to provide cumulation of one year for each of the second, third and fourth victims, which would have resulted in a total effective sentence of seven years' imprisonment for the home invasion counts. It was contended that a total of four years - one for each victim - should have been cumulated for those eight counts.

50 Senior counsel for the Director contended that any moderation to cumulation that was made in the light of the principle of totality should have been as between the sentences for each of the three presentments, rather than within the presentment containing the home invasion counts. Counsel submitted that, had the sentencing judge applied the correct approach, the overall total effective sentence would have been 11 years' imprisonment and the non-parole period would have been seven years. In response to questions from the bench, senior counsel for the Director was not able to point to any authority in support of the proposition that, in a case such as this, moderation to cumulation should occur as between presentments rather than within a presentment.

51 The Director's contentions have no basis in the Act[24] or in principle and must be rejected. In a case such as this, the basic steps in sentencing may be summarised as follows. First, the sentencing judge must, by reference to the applicable sentencing considerations, determine an appropriate sentence for each of the counts and designate the highest individual sentence as the base sentence. Secondly, the judge must determine the extent to which there should be cumulation in respect of each sentence. Thirdly, the judge should 'stand back' and consider what is an appropriate overall total effective sentence having regard to the principle of totality. If the total effective sentence that is arrived at by applying the first two steps results in a total effective sentence that infringes the principle of totality, the judge should moderate the cumulation for particular sentences in order to ensure that the total effective sentence complies with that principle.[25]

52 There is no principle which requires the moderation to cumulation to be confined to sentences as between presentments. Depending on the circumstances of the case, moderation may be appropriate in respect of sentences within a presentment or sentences as between presentments, or both. The governing principle is that the sentences must be so cumulated that the principle of totality is not infringed.

53 The cases of Towle v The Queen,[26] R v Guariglia,[27] Director of Public Prosecutions (Vic) v Solomon[28] and R v Scott[29], to which senior counsel for the Director referred, dealt with cases of death or serious injury. It is understandable that, in relation to death and serious injury involving multiple victims, ordinarily, some cumulation is required in respect of the offences relating to each victim. The cases, however, are not authority for the proposition that, where the offending results in any injury to more than one victim, a sentencing judge must provide for some cumulation in respect of the offences relating to each victim. Cumulation may well be appropriate in many such cases. However, as I have already stated, cumulation must be applied in the light of the principle of totality. This was expressly recognised by Winneke P in Guariglia[30] and in Solomon.[31]

54 In the present case, the overall total effective sentence that was imposed was not manifestly inadequate and did not infringe the principle of totality. Moreover, the sentence was within the range submitted by the prosecutor. In those circumstances, it cannot be said that the manner in which the sentencing judge dealt with cumulation involved error.

55 Accordingly, in my opinion, ground 3 is not established.

56 For the above reasons, I would dismiss the appeal.

[1] R v Marino (Unreported, County Court of Victoria, Judge Gucciardo, 24 August 2009) ('Reasons').

[2] This is a process of feeding through a tube attached to the side of the stomach.

[8] Reasons [23]-[25]. The citations for the cases to which his Honour referred have been footnoted. Where the citations were incomplete or did not include reported versions, they have been completed and expanded.

[9] [2004] VSCA 11 (20 February 2004); [2004] VSCA 11; (2004) 141 A Crim R 579, 586-7 [17], [19] (Eames JA).

[10] [1994] VicRp 54; [1994] 2 VR 98, 103-4 (Crockett and Hampel JJ).

[11] [2002] VSC 601 (13 December 2002) [17]-[18].

[12] [2006] VSCA 212 (13 October 2006) [14]-[15].

[13] (1986) 23 A Crim R 179, 187-8.

[14] [2009] VSCA 220 (2 October 2009).

[15] [2009] VSCA 220 (2 October 2009) [40] (emphasis added).

[16] Cf R v Economedes (1990) 58 A Crim R 466, 469.

[17] R v Bolton [1998] 1 VR 692, 699.

[18] R v Detenamo [2007] VSCA 160 (23 August 2007) [27].

[19] [1998] 1 VR 692.

[20] [1998] 1 VR 692, 699.

[21] [2006] VSCA 222 (19 October 2006).

[22] [2006] VSCA 222 (19 October 2006) [27]; Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) 287 [9.26].

[23] R v Tran [2006] VSCA 222 (19 October 2006) [28].

[24] Section 16(1) of the Act provides that, subject to several exceptions which are inapplicable, unless the Court otherwise directs, every term of imprisonment must be served concurrently.

[25] See generally R v Lomax [1998] 1 VR 551, 562-4; DPP (Vic) v Grabovac [1998] 1 VR 664, 676-7, 680-4.

[26] [2009] VSCA 280; (2009) 54 MVR 543, 570-2 [92]-[101].

[27] [2001] VSCA 27; (2001) 33 MVR 543, 547 [20]-[21] ('Guariglia').

[28] [2002] VSCA 106; (2002) 36 MVR 425, 429 [19] ('Solomon').

[29] [2003] VSCA 55; (2003) 39 MVR 166, 178 [25].

[30] [2001] VSCA 27; (2001) 33 MVR 543, 547 [20]-[21].

[31] [2002] VSCA 106; (2002) 36 MVR 425, 429 [19].