DPP v Nazari [2010] VSCA 293

2 years, 6 months' imprisonment (6 months cumulative)

4 The total effective sentence imposed was 3 years and 9 months' imprisonment. The Court ordered that the respondent serve a non-parole period of 2 years' imprisonment.

5 The Director of Public Prosecutions has appealed against the sentence imposed, pursuant to s 567A of the Crimes Act 1958. Before turning to the grounds of appeal, I propose to briefly deal with the facts and the principles relevant to such appeals.

6 The facts found by the sentencing judge may be shortly stated.

7 The two victims are brothers and were attending a house party on the evening of 26 December 2008. The respondent and a co-offender also attended the party. After an altercation with the respondent, among others, the victims left the party and drove away. Victim 2 drove the vehicle with his brother (victim 1) in the front passenger seat and their cousin seated in the rear. As the victims were driving away they noticed another vehicle reversing towards them. The victims' vehicle moved out of the way and the other car stopped beside them. The respondent, holding a large knife, and the co-offender, holding an axe, got out of their car and walked to the front passenger's side of the victims' car. The two offenders threatened to kill victim 1. A verbal argument ensued, awakening nearby residents. As lights were turned on in neighbouring houses the group dispersed.

8 The victims then drove home along the Princes Highway, towards Dandenong. Victim 1 received a phone call from the offender who again threatened to kill him. The victims later noticed that the respondent's vehicle was beside theirs. The offenders swerved towards the victims, forcing them to take evasive action. As they attempted to speed off, the victims felt a heavy shunt at the rear of their vehicle. They then veered off the Princes Highway into David Street when they felt another more forceful hit to the rear of their car.

9 The victims stopped their car and the respondent and co-offender approached the passenger's side of the victim's car. The respondent was armed with a knife and the other offender with an axe. They both dragged victim 1 from the vehicle and began hitting him with their weapons. Victim 2 ran to assist his brother and saw the co-offender striking victim 1 to the head with the axe.

10 The respondent then ran towards victim 2 as he tried to run from the scene and punched him in the mouth. Victim 2 fell to the ground at which point the respondent sat on top of him and motioned in downward stabbing motions attempting to stab him.

11 The co-offender yelled out to the respondent that it was time to leave and the offenders then drove off in their vehicle.

12 The victims were both taken to hospital and treated for their injuries. Victim 1 received a fractured skull and a small intracerebral haematoma at his right frontal lobe. He also sustained lacerations to his scalp, left groin region, and left armpit. These injuries required surgical intervention. Victim 2 was treated for three stab wounds to his neck and chest regions, which required suturing.

13 The respondent was arrested by police on 13 February 2009 in South Australia. He was extradited to Victoria and interviewed by police on 16 February 2009. He made partial admissions to his involvement in the incident.

14 The respondent nominated the identity of his co-offender to the police. The police subsequently determined that the co-offender left Australia for the Middle East on 28 December 2008.

15 I now propose to set out the principles relevant to Director appeals, before turning to the parties' submissions.

16 As this Court affirmed in R v Clarke,[1] a Director's appeal should only be brought in a rare and exceptional case, to establish some point of principle. One circumstance which may give rise to the bringing of a Director's appeal is where a sentence reveals such manifest inadequacy or inconsistency with sentencing standards as to constitute error of principle.[2]

17 In dealing with such appeals it is important to bear in mind that sentencing is an exercise of broad judicial discretion and on appeal this Court is not entitled to simply substitute its opinion for that of the sentencing judge. As Charles JA observed in Clarke:[3]

A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact.[4]

18 It should also be noted that when, in dealing with a Director's appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.[5]

(i) the sentences imposed in respect of counts 1, 2 and 3, the total effective sentence imposed and the non-parole period fixed are all manifestly inadequate in the circumstances; and

(ii) the lack of cumulation in respect of counts 1 and 3 was in error in all the circumstances.

20 Turning first to ground 1 and the contention that the sentences imposed were manifestly inadequate, counsel for the Director submitted that significantly greater sentences of imprisonment were called for to appropriately reflect the objective seriousness of the offences and the offending conduct; the effect of the offending on the victims; the need for general and specific deterrence and denunciation; and the respondent's serious violent offender status in relation to count 3.

21 Counsel for the Director submitted that the offending conduct was extremely serious and called for condign punishment. Counsel drew attention to the following features of the offending:

• this was an unprovoked and savage attack with lethal weapons;
• the injuries suffered by the victims were severe;
• the repeated use of a motor vehicle to ram the victim's car so it would be forced to stop;
• victim 2 may be characterised as a rescuer, in that he was assaulted when he went to his brother's aid; and
• the offences were not spontaneous, but involved a degree of premeditation.

22 Counsel also submitted that the unexplained difference between the sentences imposed on counts 2 and 3 was indicative of the manifest inadequacy of the sentences imposed.

23 Dealing with the last point first, contrary to the Director's submissions, the difference in the sentences imposed in respect of counts 2 and 3 is readily explicable having regard to the injuries sustained by the two victims. The victim in respect of count 2 suffered a fractured skull and required surgery, whereas the victim in count 3 sustained lacerations which required sutures. Nor is it particularly significant that the injuries to victim 1 were primarily inflicted by the respondent's co-offender. The respondent and his co-offender were acting in concert and hence liable for each other's actions.[6]

24 Returning to the other points advanced on behalf of the Director, I agree with the Director's characterisation of the offending. This was an unprovoked, savage attack with lethal weapons that inflicted severe injuries. The attack also involved a degree of premeditation and the repeated use of a motor vehicle to ram the victims' car to force it to stop. But I am not persuaded that the sentencing judge failed to properly have regard to the nature and gravity of the offending. There was no challenge to his Honour's recitation of the circumstances of the offending. At [31] of his sentencing remarks his Honour observed that '[T]hese are without doubt serious offences, and in all the circumstances I have no alternative to the imposition of custodial sentences'.[7] His Honour was also conscious of the 'considerable suffering' experienced by the victims as a result of the respondent's actions.

25 As to the Director's depiction of victim 2 as a 'rescuer', I am not persuaded that this is supported by the evidence. The crown opening before the sentencing judge deals with the attack on victim 2 in the following terms:

The victims stopped their car and the prisoner and unknown co-offender approached them. They both approached [victim 1's] side of the car. The prisoner was armed with a knife and the unknown offender with an axe. They both dragged [victim 1] from the vehicle and began hitting him with their weapons. [Victim 2] ran to assist his brother and saw the unknown offender striking [victim 1] to the head with the axe.

The prisoner then ran towards [victim 2] as he tried to run from the scene and punched him in the mouth. [Victim 2] fell to the ground. The prisoner then sat on top of him and motioned in downward stabbing motions attempting to stab [victim 2].[8] (Emphasis added).

26 It is apparent from this extract that victim 2 was attacked as he attempted to run from the scene.

27 In dealing with the question of whether the sentences imposed were manifestly inadequate the real issue is whether his Honour gave too much weight to the mitigating factors.

28 Counsel for the Director conceded, properly, that there were significant mitigating factors, namely:

• the respondent pleaded guilty at the earliest opportunity;

29 The essence of the Director's submission was that the mitigating factors were given too much weight by the sentencing judge such that the sentences imposed were manifestly inadequate.

30 A sentencing judge possesses a wide discretion in interpreting the quality and sentencing implications of a plea of guilty[9] and may take into account a range of matters including the strength of the Crown case; the fact that witnesses and the victim's family and friends are spared the trauma of a trial; the community benefit in terms of the time, convenience and money saved; and the demonstrated remorse of the accused.[10] These matters are particularly relevant where there is a plea of guilty to a serious offence. Intentionally causing serious injury is the most serious non homicidal offence against the person. In Hall v R[11] this Court observed that 'the more serious the crimes, the greater the weight to be given to a plea of guilty'.[12]

31 It is common ground that the plea in this case was at the earliest possible opportunity. Generally speaking the earlier the plea the greater the saving to the State and the greater the potential discount. It is also relevant to note the sentencing judge's observation that the respondent's plea and the disclosure of his co-offender's identity indicated that his remorse was sincere. A plea of guilty that is indicative of remorse will ordinarily carry more weight than a plea dictated solely by self-interest.[13] Counsel for the Director did not cavil with the sentencing judge's finding that the plea in this case was indicative of remorse. However, counsel submitted that while the respondent's nomination of his co-offender was a mitigating factor, it did not constitute 'co-operation of a high level' and accordingly should not be accorded substantial weight. This submission was put on the basis that by the time the respondent had identified his co-offender that individual had left Australia for the Middle East.

32 There is no evidence to suggest that the respondent knew that his co-offender had left the jurisdiction at the time he identified him to the police. In these circumstances I am not persuaded that the value of the respondent's cooperation should be diminished in the manner contended by counsel for the Director.

33 The sentencing judge also had regard to the impact of incarceration on the respondent:

I do take into account the fact that you are currently suffering from depression in the manner described by Ms Lechner in her report, and I have no doubt that that is an appropriate matter to take into account, and also primarily from the point of view that it will make your period of incarceration the more difficult, as will the fact that you have no family in Australia and, apparently, whilst you have a relationship and your partner supports your, you have only been visited by a single person whilst you have been in prison.

I have no doubt in those circumstances that your period of incarceration will be made more difficult, both from the point of view of your social isolation in Australia, particularly whilst you are in prison, and also from the fact that you are suffering from the conditions set out by Ms Lechner in her report. Accordingly, those matters will be taken into account by me on the basis of the proposition set out in R v Verdins.[14]

34 The absence of family support is likely to make the respondent's experience of prison more onerous than for others and it was appropriate that the sentencing judge take this matter into account.[15] Counsel for the Director accepted that this was so, but argued that, having regard to the sentence imposed, the mitigating factors were given too much weight by the sentencing judge.

35 In addition to the mitigating factors mentioned above, the sentencing judge also had regard to the respondent's personal circumstances. As set out in the report of Ms Lechner, a clinical and forensic psychologist;

Mr Nazari emanates from Afghanistan where he was a witness to immense trauma in the form of invasion of his country and civil war. He has lost many family members; his vocational, social and emotional development has been undermined by his experiences. Mr Nazari shot himself in the knee to facilitate his escape from a Taliban prison. Although he adjusted well to life in Australia in terms of learning the English language and finding employment, he has not addressed the ongoing symptoms of post-trauma and depression. Instead he has self medicated with illicit substances, this inadvertently aggravating his underlying mood disorder. Mr Nazari expresses regret and shame for his actions. With appropriate treatment supports, his prognosis is favourable.

36 The sentencing judge also accepted that the respondent's behaviour in committing these offences was 'very uncharacteristic' and concluded that the respondent's rehabilitation prospects were 'reasonably good'. In view of the evidence before his Honour and the absence of any relevant prior convictions,[16] these observations are unremarkable.

37 By virtue of the sentences imposed the respondent is to be regarded as a 'serious violent offender' within the meaning of the Sentencing Act 1991 ('the Act'). Counsel for the Director submitted that the sentencing judge failed to give sufficient weight to this fact and, in particular, failed to give sufficient weight to the application and operation of s 6D(a) of the Act. The relevant provision of the Act states:

6D Factors relevant to length of prison sentence

If under section 5 the Supreme Court or the County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence -

(a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; ...

38 His Honour dealt with s 6D in the course of his reasons for sentence and said, at [19]:

I do not believe that a sentence longer than that which is in proportion to the gravity of the offence considered in light of its objective circumstances should be ordered.

39 This conclusion was reasonably open in view of his Honour's findings regarding the respondent's prospects for rehabilitation, that the respondent's behaviour in committing these offences was 'very uncharacteristic' and the absence of relevant prior convictions.

40 These were brutal offences attended by aggravating factors, but there are a number of mitigating factors, including the respondent's plea of guilty. It was open to the sentencing judge to provide a substantial discount for the mitigating factors. In all the circumstances I am not persuaded that the sentences imposed were manifestly inadequate. I now turn to consider the second ground of appeal.

41 Ground 2 is directed at the sentencing judge's orders with respect to cumulation. Counsel for the Director submitted that in making such orders his Honour failed to properly reflect the overall criminality of the respondent's conduct and, in the case of the offence represented by count 3, reduced the victim of that count to the level of a meaningless statistic.

42 The challenge to the order for cumulation in respect of counts 1 and 3 can be seen as a particular of the general proposition that the total effective sentence and the non-parole period fixed were manifestly inadequate.

43 The sentencing judge directed that 3 months of the sentence imposed on count 1 and 6 months of the sentence imposed in respect of count 3 be served cumulatively upon the sentence imposed on count 2, resulting in a total effective sentence of 3 years and 9 months' imprisonment. His Honour then fixed a non-parole period of 2 years.

44 The making of orders as to cumulation or concurrency are matters for the exercise of a broad judicial discretion. As this Court recently affirmed in R v Hettiarachchi:[17]

There can be no inflexible rules as to how this is done: what is important is that whether or not cumulation is imposed, and to what extent, must reflect the criminality of the offences, subject to due observance of the totality principle.[18]

45 I am not persuaded that the sentencing judge's decision as to the cumulation of counts 1 and 3 resulted in the imposition of a manifestly inadequate sentence.

46 The total effective sentence was within range, albeit at the low end of the range, but as noted earlier on appeal the court is not entitled to simply substitute its opinion for that of the sentencing judge - it may only interfere if it is satisfied that there is, relevantly in the circumstance of this case, manifest inadequacy. I am not persuaded that the sentences imposed in this case were manifestly inadequate. For those reasons, the appeal was dismissed.

[1] [1996] VICSC 30; [1996] 2 VR 520 (Charles JA, with whom Winneke P and Hayne JA agreed).

[2] See Everett v R [1994] HCA 49; (1994) 181 CLR 295, 300 (Brennan, Deane, Dawson and Gaudron JJ).

[3] [1996] VICSC 30; [1996] 2 VR 520.

[4] Ibid, 522; see further R v Allpass (1993) 72 A Crim R 561, 562-563 (Gleeson CJ, Hunt CJ at CL and McInerney J).

[5] R v Clarke [1996] VICSC 30; (1996) 2 VR 520, 522 (Charles JA). I note that s 289(2) of the Criminal Procedure Act 2009 now provides that 'In considering whether an appeal should be allowed, the Court of Appeal must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed.' By virtue of cl 10(4) of Schedule 4 of the Criminal Procedure Act 2009, this provision applies to an appeal where the sentence is imposed on or after the commencement day, 1 January 2010.

[6] Osland v R [1998] HCA 75; (1998) 197 CLR 316, 350 (McHugh J); McAuliffe v R [1995] HCA 37; (1995) 183 CLR 108, 113-14 (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ).

[7] R v Nader Ali Nazari (Unreported, County Court of Victoria, Judge Parsons, 30 September 2009).

[9] R v Gray [1977] VicRp 27; [1977] VR 225, 232 (Gillard, McInerney and Crockett JJ); approved in R v Donnelly [1998] 1 VR 645, 648 (Charles JA, with whom Winneke P and Hedigan AJA agreed).

[10] R v Donnelly [1998] 1 VR 645, 648-649 (Charles JA).

[11] (1994) 76 A Crim R 454.

[12] Ibid 469 (Crockett and Southwell JJ).

[13] R v Morton [1986] VicRp 82; [1986] VR 863, 867 (Young CJ, King and Beach JJ).

[14] R v Nader Ali Nazari (Unreported, County Court of Victoria, Judge Parsons, 30 September 2009) [25]-[26].

[15] DPP v Nguyen [2010] VSCA 31 (Maxwell P, Bongiorno JA and Ross AJA); see also R v Pereira (1991) 57 A Crim R 46, 48-9 (Carruthers J).

[16] The respondent has one prior conviction for behaving in an offensive manner in a public place on 27 March 2002. The sentencing judge noted that the offence apparently related to urinating in public and he regarded it of 'minimal importance' with respect to sentencing.

[17] [2009] VSCA 270 (Nettle and Weinberg JJA, Hollingworth AJA).

[18] Ibid [83]; Cf R v Hogan [2008] VSCA 279, [29] (Maxwell P, Redlich JA and Robson AJA).