DPP v Nikolic [2008] VSCA 226

2 The circumstances surrounding the offending were that, on Friday 22 December 2006, the respondent attended a Christmas party at the Mentone Hotel. The Christmas party was for the employees of his previous employer, John Danks & Sons. By that time the respondent had ceased working for that employer. The respondent and his victim had worked previously with the employer as warehouse storemen. Shortly after 7 pm the respondent approached the victim, who was sitting at a table with co-workers. The respondent greeted the victim and then began speaking aggressively to him. The victim gestured with his hands down in an attempt to pacify the respondent, who then threw three or four punches with both fists to the victim's head while he was still seated. The victim stood up and attempted to throw some punches back in order to defend himself. The respondent pushed the nearby table aside and rained further blows. He delivered approximately twelve punches to the victim in total.

3 An unidentified co-offender came up from behind the victim and joined in the attack. This person was apparently then pulled away by another unidentified person. The respondent threw another punch, knocking the victim to the floor. While he was trying to get back up off the floor, the respondent kicked the victim forcefully in the mouth, knocking him backwards and causing his head to hit the window behind. As a result, the victim suffered quite considerable injuries. He suffered a broken jaw and lost consciousness as a result of the kick. The unidentified co-offender approached the victim again and stomped on his stomach while he lay on the ground. The respondent and the unidentified co-offender then fled from the hotel.

4 The victim was unconscious for a few minutes and then regained consciousness, but suffered considerable pain. He was dazed and shocked and bleeding from his mouth. He was taken to the Alfred Hospital, where he spent four days. He underwent surgery a number of times and eventually returned to work six months later, in June 2007, initially part-time and then full-time. Throughout this period the victim suffered difficult personal circumstances, in that he had been living alone in Australia and found it necessary to arrange for his immediate family to travel from India to Australia to live with him and care for him during his convalescence. In November 2007, the victim underwent further surgery to remove a jaw plate and screws and to extract a number of wisdom teeth that were causing pain. Shortly before the hearing of the plea, the victim was still suffering from ongoing pain in the lower jaw and was being treated for severe depression and anxiety.

5 In a victim impact statement, the victim described his feeling that the attack was racially motivated and that he feared for his life thereafter. He said he did not go out except to work. He described that his jaw is hyper-sensitive and his belief that it may remain in that condition for the rest of his life. In summary, the victim described the offence as changing his life and that of his family. He described his life after the attack as one of ongoing misery.

6 In his record of interview, the respondent told police that the victim had given him 'dirty looks' before the incident and was an angry man. He said the victim was 'acting smart' and twice bumped him before the altercation. The respondent and the victim knew each other, as previously described. The respondent indicated in his record of interview that he had encountered difficulty in his dealings with the victim. Elsewhere, the respondent suggested that he had been bullied by the victim. Immediately before the attack, the respondent said, the victim was being a 'smart arse' when spoken to. He said that the victim leant forward and clenched his fist, at which point the respondent hit the victim because he did not want to be hit first. He said the victim was standing at that time. The respondent said he only hit the victim three times. All these matters were a farrago of lies and are relevant to the matter of remorse.

7 The disposition of the prosecution of the respondent had been very drawn out and in all the circumstances was unsatisfactory. The respondent was interviewed by the police six days after the attack, on 28 December 2006. Five months later, on 1 June 2007, he was charged on summons on multiple counts. The matter was listed for mention in the Magistrates' Court on 1 November 2007, when the presiding magistrate refused summary jurisdiction and listed the matter for a further hearing.

8 On 8 November 2007, the matter was listed and an additional charge of intentionally causing serious injury was filed. Later, on 1 February 2008, the matter was listed for a committal mention and proceeded by way of hand-up brief. The respondent was committed to stand trial on one count of recklessly causing serious injury. He entered a plea of guilty in relation to that charge. However, it is to be observed that he indicated his preparedness to plead guilty as early as November 2007. The matter was subsequently listed for plea in the County Court on 22 May 2008. Hence, by the time of sentence, the respondent had been before the court on three substantial occasions when the potential for a custodial sentence would have borne upon him.

9 At the suggestion of his legal representative and members of his family, the respondent participated in an anger management counselling program in the period leading up to his plea before the sentencing judge. In a report by a psychologist, the respondent advised that he had been bullied when he worked with the victim, who knew how to 'press his buttons'. The psychologist recorded that the respondent realised after the event that he had lost control. He described himself as having been bullied at primary school, punished by his father when he made mistakes as a child, and was taunted when living in New Zealand. In particular, he described himself as mentally bullied at work and sometimes feeling powerless. He told the psychologist that the victim criticised his work and that he felt put down. The psychologist observed:

His experience of being bullied has not been fully resolved, as demonstrated by his extreme reaction when he came face to face with the person who bullied him in a chance meeting.

10 The psychologist also observed that strong negative emotions such as anger were tolerated within the respondent's circle of friends and family, and that it was culturally acceptable to 'get worked up'. It was otherwise reported by the psychologist that, at the time of the report, dated 19 May 2008, the respondent said he was feeling less angry and not getting as upset. It was observed that the respondent:

now has greater insight into what triggers his anger, has started to identify his unhelpful beliefs and self-talk, and has also begun to challenge his negative thinking. He has begun to consider a wider range of options in response to the situations where he is angered.

The psychologist expressed the professional opinion that the respondent would benefit from additional counselling.

11 The sentencing judge had these matters before her. Her Honour also had a letter of remorse sent by the respondent to the victim shortly before the hearing of the plea. There was no issue that the letter was prepared following advice from the respondent's lawyer.

12 Her Honour set out the personal circumstances of the respondent in her reasons for sentence. At the time of the offending the respondent was 21 and he was 23 at the time of sentence. He attended primary school in Serbia, and then his family migrated to New Zealand and subsequently moved to Australia. His parents separated approximately two years before the sentence and this was said by his counsel to be a factor that affected his behaviour at the time of the offending. At the time, the respondent lived with his mother and her 20-year-old daughter. The respondent supported his mother by depositing his wages into a bank account that his mother was able to draw upon. His mother used those moneys to meet her obligations under the mortgage for the family home. The respondent had completed year 12 and gained entry into a software engineering course at RMIT, but subsequently withdrew. He gained employment as a trainee boilermaker. A reference was provided to the sentencing judge by the employer that was particularly positive.

13 In the course of submissions, the learned sentencing judge indicated her preliminary reflection that the case of the respondent was one that lent itself to either a suspended sentence or an intensive correction order.[1] Her Honour, quite candidly, indicated the difficulty she faced in sentencing because the matter was a very serious example of offending. However, her Honour observed that an intensive correction order remains a sentence of imprisonment and is difficult to serve.

14 In submissions, the prosecutor urged her Honour that the offending was a particularly serious example of the offence of recklessly causing serious injury; moral culpability was high; the injuries suffered by the victim were very serious; the attack occurred in a public place and was unprovoked; notwithstanding the youth and prospects for rehabilitation of the respondent, general deterrence was very important because of the seriousness of the offence and its prevalence; and that the hardship for the respondent was not exceptional. Importantly, the prosecutor submitted that an intensive correction order did not constitute the substantial term of imprisonment appropriate for the case, and that a suspended sentence would be outside the range.

15 In sentencing the respondent, the learned sentencing judge noted five aggravating features of the offending: first, the offence was very serious, involving a frenzied attack; secondly, it occurred in a public place; thirdly, there was no provocation; fourthly, the victim suffered and continues to suffer very serious injury; and lastly, in all the circumstances of the offending, a sentence of imprisonment was required for the purposes of general deterrence, denunciation and punishment.

16 Her Honour observed that the sentence should be for a period which was of sufficient length to reflect the seriousness of the offending. She also observed ten mitigating factors: first, the youth of the respondent; secondly, lack of prior offending; thirdly, no subsequent offending covering the period of 18 months; fourthly, the employment and progress of the respondent; fifthly, his assistance to his family; sixthly, his indication of a plea of guilty at the Magistrates' Court in November 2007; seventhly, the respondent's expression of remorse; eighthly, the respondent's engagement in counselling; ninthly, the respondent's considerable insight to his offending gained as a result of the counselling; and lastly, his good prospects for rehabilitation.

17 However, her Honour was mindful that the prospects of rehabilitation should not in this case outweigh the need for general deterrence. It is apparent from the remarks of her Honour during submissions on the plea, and also the reasons for sentence, that the subject of general deterrence was to the fore of her mind.

18 As already indicated, the Director appeals on the ground of manifest inadequacy. Essentially the submission of the Director was that the gravity of the offending and its aggravating features and the respondent's culpability were not given sufficient weight. No specific error on the part of the sentencing judge was identified. It was, it was said, in the overall scheme of things, a matter of manifest inadequacy when all matters were considered.

19 Careful examination of the transcript of the plea and the judge's reasons reveals that her Honour faced a difficult sentencing task. Clearly, the twelve-month limitation upon an intensive correction order was troubling.[2] Such an order constitutes a sentence of imprisonment, albeit served within the community.[3] The purpose of an intensive correction order as stated by the Attorney-General upon introduction of the legislation makes this plain:

This measure is designed to provide a severe punishment just short of imprisonment but more severe than a community-based order. When a court is considering imposing a term of imprisonment of no more than twelve months it may impose an intensive correction order instead. The intensive correction order will have stringent core conditions attached regarding intensive supervision by community correction officers, attendance at community corrections centres to perform a minimum of 12 hours per week in unpaid community work, and treatment programs.

In addition, program conditions may be imposed requiring the person to undertake residential and/or community-based programs to address personal factors which contributed to their offending behaviour. Examples include anger management programs, alcohol and drug programs, and programs designed to develop living skills and personal responsibility.[4]

20 In judgments in this Court similar observations have been made.[5]

21 An intensive correction order is not a light sentence. It is intended to be, and ordinarily will be, burdensome and will substantially contribute to the punishment of an offender, including where condign punishment is warranted. Importantly, an intensive correction order adds to the range of sentencing options open to the courts to ensure that an offender receives an appropriate sentence. So much was plainly the intention of the Parliament.

22 Turning to the present case, the principles to be applied to a Director's appeal are well known and established.[6] The Court of Appeal will not intervene unless a very clear case of error has been made out.

23 There are significant aspects that arise in this matter. The respondent was not open and candid in his record of interview. He attempted to describe a scenario that portrayed self-defence, or at least provocation on the part of his victim. His account was untruthful. Further, he did not, and has not still, disclosed to the police the identity of his co-offender. This conduct demonstrated a lack of full remorse. When it came to facing the Court in November 2007, the respondent gave the indication to plead guilty but, it seems, only then. He did not express remorse to the victim until after proceeding through his anger management program. It was quite late. Those steps occurred, as observed, at the prompting of his legal advisers, rather than, it might be said, out of genuine remorse.

24 In my view, on the basis of the submissions on behalf of the Director, error has been made out to the requisite level. This was an extremely serious example of recklessly causing serious injury. The maximum penalty is 15 years. The Court was taken to data in the written submissions on behalf of the respondent revealing that, generally speaking, a custodial sentence for this particular offence has been imposed very little. However, by virtue of the maximum penalty, the Parliament has provided an indicator of the gravity with which the offence is viewed.

25 Like the sentencing judge, I am struck by the relative youth, antecedent and post-offending history of the respondent, his employment history, his commitment to his family, his plea, his eventual remorse and insight, and his prospects for rehabilitation. However, the conduct of the respondent was of such a nature that the principle of general deterrence should have greatly influenced any sentence imposed. In so far as her Honour acknowledged general deterrence but then proceeded to list and weigh the mitigating factors of the respondent, those factors were inappropriately and disproportionately weighted so as to preclude sufficient recognition and weighting for general deterrence. Shortly stated, general deterrence was not sufficiently reflected in the sentence and, therefore, manifest inadequacy, in my view, has been made out. A sterner sentence was called for. On this basis, I am satisfied the sentencing judge fell into error and the sentencing discretion is re-opened.

26 I have traversed the aggravating features of the offending and the mitigating factors of the respondent. We were informed largely that the respondent's circumstances were unchanged from the time of sentence, save that he has attended and fulfilled the requirements of the intensive correction order thus far. We were not informed of any change in the victim's circumstances. There are other matters that have changed. The respondent has served one half of the sentence imposed. He faces court for the third time, bearing the fear and anxiety of a custodial sentence. He is a young man in his early twenties who has been forced to carry this difficult burden. In addition, he faces the prospect of double jeopardy, this being a Director's appeal, and so he should receive a sentence somewhat less than might otherwise have been imposed.

27 Counsel for the appellant submitted the offence warranted a sentence three times that imposed. The sentence, it was said, was not within the range even for a merciful sentence, the offending being at the higher end.

28 It must be said that unprovoked assaults in public places by young men affected by alcohol plague the community. They result in dreadful injuries and, tragically on occasion, death. In this case the respondent may well have faced a far graver charge if the injuries to the victim had played out only ever so slightly differently.

29 Weighing all matters up, I am satisfied that the respondent should be re-sentenced. I would set aside the sentence imposed below and sentence the respondent to twelve months' imprisonment. I would fix a non-parole period of six months. I would order accordingly.

31 I agree with her Honour the Chief Justice that the sentence imposed below subordinated the nature and gravity of the respondent's appallingly violent and unprovoked attack on his victim and under-valued the profound and devastating effect on the victim to such an extent that, in this case, the high hurdles confronting a Crown appeal are met, despite all the mitigating factors properly recognised by the learned sentencing judge. In all the circumstances, including the double jeopardy faced by the respondent, I agree with the disposition proposed by her Honour the Chief Justice.

32 The Court will allow the appeal. The Court will set aside the sentence below and in substitution therefor the Court will sentence the respondent to a period of twelve months' imprisonment. The Court will fix a non-parole period of six months.

Mr Billings, is it necessary for the Court to issue a warrant, or is your client in court?

MR BILLINGS: My client is in court, your Honour. He submits himself to the jurisdiction. I seek a certificate, your Honour.

[1] See Sentencing Act 1991 s 19(1).

[2] Sentencing Act 1991 s 19(1).

[3] Sentencing Act 1991 s 19(5).

[4] Parliament of Victoria, Legislative Assembly, Sentencing Bill 1991 (Vic), Second Reading Speech; 19 March 1991, 338 (Mr Jim Kennan, Attorney-General).

[5] See, for example, R v Simmons (1998) 2 VR 14 (Brooking JA).

[6] See R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522-523.