DPP v Terrick; DPP v Marks; DPP v Stewart [2009] VSCA 220

CRIMINAL LAW - Appeal - Sentencing - Crown appeal - Duty of prosecutor to assist court - Sentencing judge requested prosecutor's assistance on sentencing range - Request refused - Whether lack of assistance contributed to sentencing error - Whether Crown appeal should be dismissed in exercise of discretion - Appeal allowed - R v MacNeil-Brown [2008] VSCA 190 considered.

1 This is a Director's appeal against the sentences imposed upon the three respondents, who were convicted in the County Court at Shepparton. The first respondent, John Stewart, was found guilty following a jury trial of one count of recklessly causing serious injury and one count of affray. The second and third respondents, Brian Marks and Norman Terrick, each pleaded guilty to one count of intentionally causing serious injury. They were sentenced as set out in Table A.

Table A: Sentences imposed; Crown range**[1]**

2 The Director has appealed against all of the individual sentences, the total effective sentences and the minimum terms imposed on each respondent on the basis of manifest inadequacy. The Director contended that the sentences were so far outside the range reasonably open to the sentencing judge[4] that, in accordance with established principles in relation to Crown appeals, this Court should intervene.[5]

3 As will appear, this appeal raises important (though not new) questions of principle about -

• whether a person who intentionally or recklessly causes serious injury may be held criminally responsible for the resulting permanent disablement of the victim if that degree of injury was not intended or foreseen;
• to what extent an offender's disadvantaged background - in this case, as a member of an indigenous community - mitigates his or her offending, particularly when the offender is a recidivist; and
• the applicable sentencing range for the offences of intentionally causing serious injury and recklessly causing serious injury.

4 The Director did not contend that the sentencing judge had made any specific error. His notice of appeal took the conventional form, setting out the usual particulars of 'manifest inadequacy'.[6] In substance, those particulars assert that the judge gave too much weight to mitigating factors and too little weight to the objective gravity of the offending and to the sentencing objectives of general deterrence, specific deterrence, denunciation and protection of the community.

5 The proposition that too much - or too little - weight was given to a particular sentencing factor is almost always untestable. This is so because quantitative significance is not to be assigned to individual considerations. The question to be addressed when the ground of manifest inadequacy - or, in a prisoner's appeal, manifest excess - is advanced is whether the sentence arrived at was within the range reasonably open to the sentencing judge in the circumstances, taking proper account of all relevant sentencing considerations (whether aggravating, or mitigating, or both). If the conclusion is that the sentence was outside the available range, then it may be inferred that too much or too little weight was given to one or other consideration. But rarely, if ever, will it be possible - or necessary - for the appeal court to reach a conclusion on that question.

6 The respondents' submissions were directed at showing that the sentences were within range. They contended that the sentences imposed approached the highest ever imposed for such offences.[7] They argued that their deprived backgrounds reduced their moral culpability and that their inebriated state affected their appreciation of the likely consequences of their actions. The Court should accept, it was said, that the sentences imposed were not manifestly inadequate when these mitigating factors were given appropriate weight.[8]

7 In the present case, we do not need to decide - and, for the reasons given, could not decide - whether inappropriate weight was given to any particular sentencing consideration. As will appear, the sentencing judge gave careful consideration to all relevant matters. The Director did not suggest otherwise. The judge took pains to inform himself, in advance of the plea hearing, of the key authorities bearing on sentencing range for the offences and on the significance for sentencing of the respondents' highly disadvantaged backgrounds.

8 For the reasons which follow, however, we have concluded that the ground of manifest inadequacy has been made out, and that the sentences imposed must be set aside. We would resentence each respondent to a total effective sentence of 11 years and 6 months, with a non-parole period of 9 years.[9]

9 The offences occurred in the evening of 14 September 2006. The respondents had spent the day drinking alcohol in Shepparton. At approximately 6:00 pm, they returned by bus to Talamba, where they were residents of a facility known as the Percy Green Memorial Rehabilitation Centre, a drug and alcohol rehabilitation facility. Each of the respondents was at the time of these offences subject to a condition that he reside at the Centre. Until about 8:15 pm they continued their drinking in the Centre, sharing a large bottle of port with a Mr Jones who was also a resident.

10 At about 9:00 pm, the respondents, who were by then heavily intoxicated, asked the night-time coordinator of the Centre (Mr Taylor) to drive them into the town of Mooroopna to purchase cigarettes. They continued to drink on the bus. While they were driving along McClennan Street, Marks asked the driver to stop at an ATM so he could withdraw some money. The bus pulled over and the three respondents exited.

11 At this time the victim, Martin Schueth, aged 26, was walking along McClennan Street. He was a German tourist who was visiting Mooroopna. While Marks was at the ATM, Terricks and Stewart confronted Mr Schueth, cornering him against a store window. Marks joined them and a demand for money was made. Punches began to be thrown. As the learned sentencing judge noted, Mr Schueth neither provoked his attackers nor retaliated when attacked.

12 The respondents punched Mr Schueth a number of times until he fell to the ground. According to the sentencing judge, he was then 'savagely kicked to the region of the head'. He tried to prop himself up and protect his head, but to no avail. The respondents appeared to take it in turns kicking Mr Schueth to the upper body and head.

13 According to Mr Taylor, whose evidence at Stewart's trial was quoted by the sentencing judge, 'Marks and Terrick were stomping with their heels around the man's head area'. Stewart joined in the kicking and at one point delivered a savage kick to the victim's head. It was delivered with such force that Mr Schueth's head 'flew back crashing into a shop wall'. He slumped down, motionless. The respondents continued to kick him around the head even though he was obviously unconscious and defenceless.

14 The beating continued despite attempts by members of the public to bring it to an end. As the judge noted, witnesses variously described being appalled and sickened by what they saw. At one point a passer-by, Mr Rose, sought to render assistance, but was chased off by Stewart, who tried to kick him and yelled 'Fuck off, you copper dog'. Rose was grabbed by Stewart and they fell to the ground. Stewart left Rose and returned to Mr Schueth. Terrick then advanced towards Rose, yelling 'stab the old cunt'. Rose and Terrick fell to the ground. Rose then ran away and called for an ambulance. At one point Mr Jones, who had also travelled on the bus, attempted to stop the beating by yelling out at the respondents. He was advanced upon by Stewart, who said 'get back on the bus, cunt, and shut up'. Stewart then returned to where Mr Schueth was, and the respondents continued to assault him. Eventually he was left unconscious and bleeding on the footpath.

15 Following the incident the respondents were heard boasting about the injuries they had inflicted on their victim. When they returned to the bus, they threatened Mr Jones and Mr Taylor and told them to 'keep their mouths shut' about the incident.

16 The judge sentenced the respondents on the basis that they had acted in concert. Each was viewed as equally responsible for the attack and its consequences. These conclusions were not challenged on the appeal.

17 The assault has had catastrophic consequences for Mr Schueth. He suffered life-threatening injuries. Upon admission to the Alfred Hospital in Melbourne, he was diagnosed with acute subdural haematoma to the left frontal parietal area. There was a small right side contusion; a collapse of the right lung; an orbital wall fracture (without injury to the eye); and an occipital fracture on the left side. A monitor was placed upon his brain. Surgeons operated to remove the bone of the skull overlying a blood clot, which was then removed.

18 The injuries left Mr Schueth physically and mentally disabled. When he was repatriated to his home in Germany, the prognosis was that he would remain severely disabled for the rest of his life. The judge had before him more recent reports from German doctors who had treated Mr Schueth following his repatriation. They said:

Expressive speech is completely missing. He is able to understand simple orders. He can neither write, read or count. Free sitting is only possible for two minutes. Transfer from wheelchair to bed and vice versa can be done with minor support of a physiotherapist. Walking for a distance of 15 metres is done with the aid of two therapists.

Prepared meals are taken by himself. He can brush his teeth and wash his face, otherwise assistance is needed in activities of daily living. There is urinary and bowel incontinence.

Mr Schueth is thought to remain severely disabled and to need permanent support. Whether he will regain his speech is questionable, the same holds for permanent walking.

19 The respondents are Aboriginal. They were all in their mid-twenties at the date of the offences. Each has a significant criminal record, as set out in Table B (attached), and has abused alcohol and other substances over a long period.

20 Terrick was born on 17 June 1979. He was 26 at the time of the offences and 28 at the date of sentencing. He was brought up in a household characterised by domestic violence and alcoholism. He left school in year 8, is of below-average intellectual capacity and has a limited employment history of work in community development projects. He has twin sons and suffers from alcoholism.

21 The judge accepted that there was alcohol abuse within Terrick's family and violence by his father towards his mother.[10] Terrick led a dislocated existence in childhood, but described his parents as caring. According to a psychologist's report, his alcohol consumption began at 15, increasing to frank alcoholism. As a result, the psychologist reported:

This man is of urgent need of assistance to enable him to abstain from alcohol and drugs and would benefit from attendance at a rehabilitation unit. Clearly, the time he spent at the Percy Green Centre was of no assistance to him.

22 Terrick has 76 previous convictions from 19 court appearances, mostly associated with alcohol abuse. Of particular relevance are convictions for causing injury intentionally; causing serious injury recklessly; causing injury recklessly; assault; assault police; and reckless conduct endangering life. He was on a bond at the time of the offence, having been convicted in June 2006 of assaulting police and resisting arrest. It was a condition of the bond that he reside at the Percy Green Centre, in order to address his alcohol problem.

23 Marks was born on 22 March 1980. He was 26 at the time of the offence and 27 on the date of sentencing. He was born in Bairnsdale. Both of his parents are indigenous and both suffered from serious alcohol abuse problems. They separated before Marks turned four, which led to an unsettled home life involving movement throughout country Victoria and New South Wales. He left school in year 9 and has limited employment history. He is a chronic alcoholic and substance abuser.

24 The judge noted that Marks may have a degree of cognitive impairment, due to either intellectual disability or acquired brain injury from solvent or alcohol abuse. There is no evidence of major mental illness. The judge had before him a number of reports, including that of Mr Healey who concluded:

The alcoholism screening test was indicative of classical symptoms of frank alcoholism, and personality testing revealed thought confusion, hypomanic trend and sociopathic and schizoid features that derived most of their contribution from social alienation.

25 The judge accepted that 'alcohol abuse and violence was a feature of the environment' in which he was raised.[11] As his Honour noted, the psychiatric report of Dr Koh said:

The history Mr Marks gave was that of a man with significant dependence [on] several substances amidst a background history of a traumatic and depressed childhood where he experienced neglect from both parents and grew up in an environment where his elders modelled violent and maladaptive behaviour.

26 Counsel for Marks told the judge that his client was born on an Aboriginal mission in Bairnsdale and that 'his cot was a box fashioned from chicken wire and filled with hay'. His earliest memory was said to be of seeing his mother drunk, wandering from house to house trying to get money for alcohol. It was submitted that, because of his aboriginality, Marks was placed in a position of particular disadvantage and that this was a relevant mitigatory fact.

27 Marks has 39 previous convictions from 11 court appearances. He was on bail at the time of the offending and it was a condition of that bail that he reside at the Percy Green Centre, in order to address his alcohol problem. He has previous convictions for causing injury recklessly; assault by kicking; unlawful assault; aggravated burglary; reckless conduct endangering serious injury; and threatening to inflict serious injury.

28 Stewart was born on 11 April 1979. He was 27 at the time of the offending and 28 at the time of sentence. He was born to an indigenous mother and a non-indigenous father. They separated when he was one year old, with Stewart living at first with his father and later with his mother (who was at this point an alcoholic). He was exposed to alcohol abuse and domestic violence. He completed year 8 at school and has had limited employment. He has been in a relationship since 2003.

29 The judge had before him a report from Ian Joblin, forensic psychologist. Mr Joblin expressed the opinion that Stewart was depressed at the time of the offending, as one of the last close members of his family (an uncle) had recently died. Mr Joblin also stated:

I consider that he [Stewart] has had symptoms of a personality disorder ... The symptoms of that disorder are seen in particular in his inability to cope with difficulties and his persistent return to anti-social behaviour and alcohol and drug abuse. That response pattern is ingrained and therefore consistent with a personality disorder.

...

Against this somewhat negative assessment of Mr Stewart, Mr Stewart presented with an extraordinary degree of insight and intelligence, or intellect, he is literate.

he was not raised in an appropriate family environment. His childhood was totally dysfunctional. There was an early onset of alcohol and drug use. He had no contact with or support from family members.

One could not help but consider that had Mr Stewart been raised in an appropriate environment with an intact family free of alcohol and drug abuse he may well have been able to become a contributing member of the community.

31 Stewart has 149 previous convictions from 16 court appearances between 1996 and 2006. He has convictions for causing injury recklessly; unlawful assault; assaulting police; possessing a regulated weapon; burglary; resisting police; assault in company; theft; threatening to inflict serious injury; making a threat to kill; reckless conduct endangering life; and assault with a weapon. He was on a bond and a suspended sentence at the time the offences were committed, having been convicted in April 2006 on four charges of robbery and one of unlawful assault.

32 As in Terrick's case, it was a condition of Stewart's bond that he reside at the Percy Green Centre, in order to address his drinking problem. On the appeal, certificates were tendered which showed that Stewart has successfully completed a number of prison programmes since his imprisonment for the present offence, and was acting in the role of Koori Prisoner Listener at Port Phillip Prison.

33 On the plea in mitigation, it was argued for each respondent that he was inebriated and, as a result, did not intend to cause 'the full extent of the horrendous injuries that were suffered by the victim'. For example, it was submitted for Terrick that, although he admitted by his plea of guilty to having intended to cause serious injury, it did not follow that he intended the injury 'to have the ... repercussions in terms of the brain damage and long-term effects upon the victim'.

34 His Honour found that each man, now 'confronted with the shocking consequences' of his actions, had 'some limited remorse' for what he had done. The judge said:

Although I accept there is some force in submissions made that none of you intended the full consequences of your actions ie the rendering of Mr Schueth to a state of severe mental and physical disability, the fact remains that you are responsible for his current condition. However, I have taken this submission into account when assessing moral culpability and responsibility for each of you.[12]

35 The appeal submissions for the respondents echoed those advanced on the plea. Counsel for both Marks and Terrick relied on the following statement by Eames JA in DPP (Vic) v Cook:[13]

The severity of the consequences suffered by a victim of a criminal act [is] relevant to sentencing,[14] but however catastrophic they be the extent of the injury and damage flowing from an offence ought not be permitted to swamp all other sentencing considerations. That is especially so where the consequences were unintended: R v Van Boxtel.[15]

It should be noted, however, that his Honour went on to say this:[16]

Whilst it is appropriate that the unintended consequences of the crime ought not overwhelm other considerations, in particular mitigatory factors which ought weigh in favour of the offender, full weight must nonetheless be given to the effect on the victim of the crime. To do less would be to undervalue one of the most important factors in sentencing.

36 Reliance was also placed upon DPP v Fevaleaki.[17] A similar submission was made there, to the effect that, although the offender had intended to cause serious injury, the catastrophic results were unintended. Redlich JA said:

[11] The crime of intentionally causing serious injury is the most serious of the non-homicidal injury offences in which there is a concurrence of serious injury with the intention to cause it. ...

Unlike unlawful and dangerous act manslaughter, which may occur where the offender does not intend the consequences and they are unexpected, the offence with which we are concerned requires proof that the offender intended to cause a serious injury which was sustained by the victim. Here it was submitted that despite the respondent's plea of guilty, the respondent was not to be sentenced on the basis that he intended the catastrophic results of his assault.

[12] A similar argument was advanced in R v Economedes although that was a case concerning the offence of recklessly causing serious injury. The offence of recklessly causing serious injury requires foresight on the part of the offender of the probability of serious injury as a consequence of their conduct and indifference as to whether or not those consequences occur.

[13] In Economedes the offender had repeatedly punched and kicked the victim to the head resulting in severe brain damage which left the victim grossly disabled. The offender had been released by the sentencing judge on a community based order. In dismissing a Director's appeal the Court gave particular emphasis to the fact that the very serious consequences of the attack on the victim were unintended.

[14] On this appeal, counsel for the Director accepted that there were unintended consequences from the respondent's attack. Neither party in submissions identified the serious injury which the respondent intended. In R v Harrison Coldrey J was confronted with a similar dilemma. The offender had pleaded guilty to recklessly causing serious injury. He had punched the victim once to the side of the head causing serious brain damage. On the plea it had been submitted that the serious injury which the offender had foreseen was a loss of consciousness by the victim. Coldrey, J. considered there was a degree of artificiality in such a formulation. In the present case, whatever the serious injury the respondent intended, it was recognised on both sides that the attack produced unintended catastrophic consequences. Although that was acknowledged, it was said on the respondent's behalf that the Director's submission placed too much weight upon the severity of the unintended consequences suffered by the victim, which should not be permitted to swamp other sentencing considerations.

[15] In assessing the adequacy of the sentence imposed, the consequences for the victim must be taken into account whether or not the respondent intended all of those consequences. That said, the fact that the respondent did not intend the profound consequences for the victim has a significant bearing upon the Director's contention that the sentencing judge's discretion miscarried.

37 There is, of course, no presumption in criminal law that a person intends the natural and probable consequences of his or her actions.[18] But the Director's submission relied on no such presumption. The submission for the Director was that this was a case of actual intent, in the case of Terrick and Marks, and actual foresight of consequences, in the case of Stewart. That is, the evidence demonstrated that the respondents did intend - or, in the case of Stewart, did foresee - the full consequences of their actions.

38 Counsel for the Director referred to DPP v Lepoidevin,[19] where this Court (Cummins AJA[20]) said:

In my view the learned sentencing judge fell into error in treating as a mitigatory factor that the respondent had not intended to cause injuries of the actual character or magnitude of those sustained by the victim. The respondent, a strong young man, viciously attacked a 16 year old girl by punching, squeezing, banging her head against a metal seat, kicking her in the head and stomping on her face. He knew what he was doing. It was obvious his actions were likely to cause her very serious injury indeed. He told investigating police he intended to hurt her. His plea admitted that he intentionally caused her serious injury. In the circumstances it does not avail the respondent that he lacked the specificity of medically qualified prescience. He stood for sentence for intentionally causing serious injury, into which offence these circumstances fell. The maximum penalty of 20 years' imprisonment reflects the potentiality of the offence.

39 As noted earlier, it was argued for the respondents that, because of their state of intoxication, their judgment was impaired and, as a result, they did not anticipate (and therefore did not intend) the full consequences of their actions. The admitted connection between each respondent's extensive criminal history and his chronic alcohol abuse bespeaks an inability on the part of each man to control his disposition to violent behaviour when under the influence of alcohol. Ordinarily, such circumstances would preclude any moderation of culpability for the injuries sustained by the victim,[21] and might constitute circumstances of aggravation, as the judge pointed out during argument on the plea.[22] It is convenient to defer further consideration of this aspect until we address the allied submission, that each respondent's dependence on alcohol arose out of his disadvantaged upbringing, such as to materially moderate his level of moral culpability and the need for denunciation and general and specific deterrence.

40 In our view, the respondents fell to be sentenced on the basis that they intended to cause (in the case of Marks and Terricks) or foresaw the likelihood of (in the case of Stewart) very serious injuries, if not the injuries that were actually caused. It was conceded during the course of argument on the appeal - rightly in our view - that the respondents intended to cause 'really serious injury', to inflict 'maximum harm' on their victim. In view of the ferocity of the attack and, above all, the persistence of the respondents in attacking the victim after he became unconscious, no other conclusion was reasonably open.

41 Where (as here) an offender intends to cause (or foresees the likelihood of causing) really serious injury to another person, and does so, the fact that the offender did not foresee the precise nature, or extent, of the injuries actually inflicted will not ordinarily reduce the offender's culpability. Even if it be accepted that the respondents did not contemplate the exact nature of the injuries, or the state of permanent disablement, which they inflicted on Mr Schueth, that circumstance does not mitigate their responsibility for what occurred, given that they intended to cause maximum harm or foresaw the likelihood of that consequence.

42 As noted earlier each of the respondents was raised in deprived circumstances, in an indigenous community where alcohol abuse and violence were commonplace. Having informed himself of the leading authorities,[23] the judge accepted that the respondents' 'upbringing in their Aboriginal communities is a relevant matter for proper consideration ...'.[24] He took into account 'the unfortunate position that each of you now finds yourself in, particularly the consequences of your unhappy upbringing and your resort to utilising drugs and alcohol which has led to violence which has been a continuing pattern.'[25]

43 The Director submitted that, in the circumstances, very little weight should have been given to the fact that the respondents were brought up as members of an indigenous community. While it might be accepted that the respondents' dysfunctional backgrounds left them without a proper 'moral compass', they were not forever entitled to rely on their disadvantaged background to mitigate their offending. Any lack of appreciation of moral and legal limits must disappear over time, it was said, whether as a result of maturation or - in the present case - as a result of repeated conviction and punishment.

44 In response it was argued for the respondents that the point had not yet been reached where they could not rely upon their disadvantaged background, and that their 'shocking' backgrounds should be viewed as reducing their moral culpability for the offending.[26] That is, they should be viewed as being less blameworthy for this attack than a person who had committed the same offence but had no such background of disadvantage.

45 This submission - which was not advanced in these terms on the plea - raised the general question of the extent to which an offender's criminal responsibility can be viewed as reduced by background circumstances of hardship, deprivation and violence, and the extent of any such reduction where the offender is a recidivist. At the request of the court, counsel for Marks and counsel for the Director subsequently provided references to a large number of authorities addressing the significance for sentencing of disadvantage in general and of Aboriginal disadvantage in particular. We have been much assisted by that material, in particular by the seminal judgments of Wood J in Fernando[27] and of Eames JA in Fuller-Cust.[28]

46 The following propositions emerge from the authorities:

1. The individual circumstances of an offender are always relevant to sentencing.[29]

2. Circumstances of disadvantage, deprivation or (sexual) violence may be explanatory, if not causative, of the offending or (if relevant) of the offender's alcohol or drug addiction.[30]

3. The (relative) weight to be given to circumstances of disadvantage or deprivation is a matter for the sentencing judge, and will depend on:

(c) the (relative) importance in the particular case of sentencing considerations such as rehabilitation, deterrence (specific and general), community protection and social rehabilitation.[31]

4. The same sentencing principles apply irrespective of the offender's race. Thus, Aboriginal offenders are not to be sentenced more leniently than non-Aboriginal persons on account of their race.[32]

5. In sentencing persons of Aboriginal descent, the court must avoid any hint of racism, paternalism or collective guilt.[33] At the same time, the sentencing court is bound to take into account 'facts which exist only by reason of the offender's membership of an ethnic or other group.'[34]

6. When applying sentencing principles, which are common to all Victorians, a different outcome may result for an Aboriginal offender if it is shown that 'mitigating factors in the background of the offender, or [in the] circumstances of the offence, occurred or had an impact peculiarly so because of the Aboriginality of the offender.'[35]

7. Such considerations require a careful examination of the history of the offender. The relevance of Aboriginality to an offender's disadvantaged background must be established by appropriate evidence.[36]

8. Where the offender has prior convictions, such that considerations of specific and general deterrence and community protection become increasingly important sentencing factors, the significance of personal circumstances will correspondingly decrease.

We now examine some of these propositions in more detail.

47 An offender's background may explain the offending conduct, though whether it provides an excuse is a separate question.[37] Background circumstances may affect the assessment of moral culpability and in addition (or in the alternative) may require some moderation of general or specific deterrence or the need for denunciation, or may bear upon prospects of rehabilitation.[38]

48 Accordingly, facts peculiar to an offender's membership of an indigenous community, or which are a particular consequence of that membership, are to be taken into account if they elucidate some aspect of the commission of the offence or the personal circumstances of the offender. The weight to be attributed to these factors is a matter for the sentencing judge.[39]

49 As Eames JA observed in Fuller-Cust:[40]

To have regard to the fact of the applicant's Aboriginality would not mean that any factor would necessarily emerge by virtue of his race which was relevant to sentencing, but it would mean that proper concentration would be given to his antecedents which would render it more likely that any relevant factor for sentencing which did arise from his Aboriginality would be identified and not be overlooked. Exactly the same approach should be adopted when considering the individual situation of any offender, so that any issue relevant to that offender's situation which might arise by virtue of the offender's race, or history, would not be overlooked by a simplistic assumption that equal treatment of offenders means that differences in their individual circumstances related to their race should be ignored.

50 The prevalence of disadvantage within indigenous communities does not diminish its significance for the individual offender. On the contrary, membership of a community where disadvantage is widespread might compound the difficulties suffered by a particular individual. The social and economic disadvantages often found in indigenous communities are powerful considerations. The fact that disadvantage amongst members of an indigenous community is widespread must not be allowed to reduce the impact of disadvantage as a sentencing factor in a particular case.

51 In the present case, the sentencing judge appreciated that he had to assess the extent to which the circumstances of the upbringing of the respondents - social, environmental and cultural factors[41] - assumed a significance in the application of sentencing principles. Their backgrounds might explain the presence or absence of motive; identify influences which had contributed to the commission of the offence; or reveal circumstances relevant to the nature of the sentence which should be imposed.[42] But background will not necessarily be a mitigating circumstance. As Franklin J said in R v E (a child):[43]

Whilst the factors of Aboriginality, ethnic oppression, socio-economic deprivation, family environment and similar matters or any of them may have relevance in a particular case to the appropriate sentence to be imposed on an offender, none of them is self-executing in the sense that its mere existence necessarily requires a reduction of the penalty otherwise appropriate to the offence.

52 The deprived background of the respondents was relevant to an assessment of the weight to be given to both general and specific deterrence. As Derrington J said in R v Yougie:

Of highest importance is the deterrent effect for the protection of potential victims and the turning of the court's face against violence as a general proposition is justifiable. At the same time it would be wrong to fail to acknowledge the social difficulties faced by Aboriginals in this context where poor self image and other demoralising factors have placed heavy stresses on them leading to alcohol abuse and consequential violence. Its endemic presence in these communities, despite heavy prison sentences, is proof of the serious problem and, to some extent, the limited nature of deterrence in this social context.[44]

53 The respondents' deprived upbringing was also relevant to a consideration of their alcohol abuse and its contribution to the commission of the offence. The sentencing judge was entitled to consider the extent to which, as a result of the respondents' backgrounds, their chronic alcohol abuse was the result of a diminished choice.[45] As we have noted, the abuse of alcohol reflected the environment in which each respondent grew up. As Wood J said in Fernando, there needs to be:

realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities and the gross social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.[46]

54 The Director's submission on the appeal focused on the fact that these respondents were serial recidivists. In those circumstances, the mitigating factors flowing from an offender's personal circumstances must be balanced against the fact that his recidivism increases his moral culpability and the risk of further offending. Recidivism may justify, or even require, a conclusion that an offender has a dangerous propensity and (or alternatively) poor prospects of rehabilitation, such that the offender must be regarded as posing a considerable threat to the community.[47] The need to protect the community then becomes increasingly prominent in the sentencing calculus and the offender's background will attract correspondingly less weight as a mitigating factor, although it should not be regarded as entirely spent.[48]

55 As appears from Table B, the history of each respondent is one of repeated involvement with the criminal justice system. Each has experienced a range of different criminal dispositions, custodial and non-custodial, and yet has continued to exhibit flagrant disobedience to the law. Successive punishments have had no discernible deterrent effect on any of them. In our view, the recent history of each respondent compelled the court to take an extremely bleak view of his prospects of rehabilitation.

56 In our view, community protection had to be viewed as the paramount sentencing principle in this case, having regard to the circumstances of the offending (unprovoked, random and savage), the offenders' escalating criminal history and the established link between alcohol and their record of violence. As has been repeatedly said, those who, when disinhibited by alcohol, engage in unbridled violence in public places must expect severe punishment.[49] As the judge correctly pointed out on the plea, repeat offenders of this kind represent 'a terrible risk to the community'. The kind of random violence which occurred here makes citizens fearful of being on the streets, especially after dark. As the Court said recently in Director of Public Prosecutions v Dowie,[50] the members of our community are entitled to go about their ordinary activities without fear of exposure to physical attack.

57 Each respondent has a history of breaking orders made for the purpose of rehabilitation. Stewart was serving a suspended sentence for four robberies while Marks was on bail and Terrick on a bond. Each was subject to a condition requiring that he reside at the alcohol rehabilitation centre. As noted earlier, the three had been drinking throughout the day before the offending, which illustrates their inability to take advantage of the leniency previously extended to them in the name of rehabilitation.

58 In the joint judgment in Veen v The Queen (No 2),[51] Mason CJ and Brennan, Dawson and Toohey JJ referred to the significance of an extensive criminal history in the sentencing process in these terms:

The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.

59 This principle was applied in R v O'Brien and Gloster, where Charles JA (with whom Winneke P and Southwell AJA agreed) stated that:

It is of course clear that no principle of sentencing requires that more severe sanctions be administered to those who persist in their criminal behaviour. But an adverse criminal record may impact on the sentencing process in a number of ways; for example, as an indicator of the offender's moral culpability, his prospects of rehabilitation, his dangerous propensity and the community's need for protection, and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence.[52]

Its application was explained by Batt JA in Fuller-Cust:[53]

Here, the applicant's antecedent criminal history shows that the instant offences were not uncharacteristic aberrations but rather that the applicant manifested in committing them a continuing attitude of disobedience to the law, so that retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. Again, the antecedent criminal history illuminates the applicant's moral culpability in the instant case and shows dangerous propensity on his part and a need to impose condign punishment upon him.

60 In our view, the respondents' prior offending bears significantly on the gravity of the present offence. It shows a more calculated animus.[54] It 'illuminates' their moral culpability.[55] It demonstrates their propensity to re-offend and increases the need for community protection and specific deterrence. It reduces their prospects of rehabilitation.

61 As the judge recognised, and the Crown prosecutor conceded, the deprived and dysfunctional background of the respondents had to be given weight. Having regard, however, to the criminal history of each respondent, their chronic alcohol abuse and the circumstances of the offending, these mitigatory considerations could be afforded little weight.

62 The judge was right to refer to the fact that, because of each respondent's prior experiences of violent offending when drunk, he 'knew before he drank that that is the way in which he [was] likely to behave, yet he still chose to drink'.[56] It was not correct, in our view, to say that because the respondents were alcohol-dependent they were unable to make choices. They made the conscious choice to ask to be driven into Mooroopna; they formed the intention to inflict really serious injury (or, in Stewart's case, foresaw its likelihood); and they had sufficient appreciation of the significance of what they were doing to repel those who tried to intervene, to brag about the injuries caused and to order others to keep silent about what they had seen.

63 We turn next to the significance of what was said to be a lack of premeditation and the absence of use of a weapon.[57] The absence of an aggravating factor does not, of course, constitute a circumstance in mitigation. In many circumstances there will be little to distinguish the culpability of a premeditated attack from a random act of sustained violence. As we have said, random violence is of great community concern, and for good reason. Phillips CJ said in DPP v Lepoidevin:

The learned sentencing judge appears to have laid some store on the respondent's conduct not being premeditated. Indeed, it was not planned but neither was it a case of a single blow struck in anger. It was violence repeatedly pressed home - first by striking her head on the bench, then by a punch to the face, then by a kick to her ribs and then by stomping on her head. This last incident occurred when her head was on the ground (as the respondent's counsel admitted) and when she was no longer in a position or condition to defend herself (as his Honour found). There can be no doubt that, with her head in that position, the respondent intended to cause her extreme pain and suffering.[58]

64 While the fact that a lethal weapon has not been used may constitute the absence of an aggravating circumstance, the capacity of the hands and feet to inflict severe injury on an unconscious victim should not be minimised. There is little merit in the suggestion that an offender who repeatedly and forcefully kicks an unconscious victim to the head is less culpable than one who inflicts injuries with a weapon.

65 In R v MacNeil-Brown,[59] this Court held that the making of submissions on sentencing range was an aspect of the duty of the Crown prosecutor to assist the court. The prosecutor should, if requested to do so,[60] provide a submission on what the Crown says is the sentencing range applicable to the case before the court. As the joint judgment of Maxwell P, Vincent and Redlich JJA explained, the function of submissions on sentencing range is to promote consistency of sentencing and to reduce the risk of appealable error. These are matters of the first importance to the administration of criminal justice and the maintenance of public confidence.[61]

66 The present case provides an excellent illustration of the importance of such submissions being provided. In the course of the prosecutor's submissions on the plea, his Honour referred to a number of decisions of this Court which he had reviewed, dealing with sentencing for the offence of intentionally causing serious injury.[62] He said to the prosecutor that he was 'seeking some guidance'.[63] The following exchange then took place:

HIS HONOUR: Are you going to tell me what the parameters are by way of penalty here?

PROSECUTOR: No your Honour.

HIS HONOUR: I don't get much assistance here do I? I understand the Court of Appeal may be looking at that.

PROSECUTOR: That's correct, yes. I understand ...

HIS HONOUR: Hopefully they will say that the Crown is obliged to give some indication of the parameters one way or another.

67 The judge's reasonable request for assistance on sentencing range was thus flatly refused by the prosecutor. The refusal was consistent with what we understand to have been the policy of the Office of Public Prosecutions in recent years. That policy was, however, directly contrary to views expressed by the Full Court of this Court, as long ago as the 1980s, about the appropriateness of prosecutors giving assistance on sentencing range.[64]

68 The Director's appeal against his Honour's sentence was heard after the decision in R v MacNeil-Brown had been handed down. At the appeal hearing, counsel for the Director did make a submission as to what the applicable sentencing range was for each of the offenders. The elements of that submission are set out in Table A (above), under the heading 'Crown Range'.

69 If, on the plea, the Crown had responded to the judge's request for assistance by giving his Honour the submission on range that this Court was given, we have no doubt that it would have been taken into account. Indeed, if that had occurred, it is entirely possible that the sentencing error of which the Director now complains could have been avoided.

70 It was submitted for Stewart that, if the Court were persuaded that the judge had fallen into error, the appeal should nevertheless be dismissed in the exercise of discretion since the error could be seen to be attributable to the Crown's lack of assistance on the plea. That the discretion exists is not in doubt.[65] The submission highlights the reality that, when parties on a plea refer to the appropriate 'range' without specificity, there is every possibility that the sentencing judge will not know what they have in mind.

71 We would not, however, exercise the discretion in this case. An omission by the prosecution on the plea may in some circumstances be viewed in the same light as a positive submission, but the failure to provide the sentencing judge with the range of sentences which the Crown considered appropriate should not necessarily preclude the Director from bringing an appeal on the ground of manifest inadequacy. We are fortified in that view here because of the seriousness of the criminal conduct being punished, and because the prosecution made clear that it regarded the offence as falling at the upper end of the range of seriousness for this type of offending. We also note that the case was heard before the Court in R v MacNeil-Brown[66] reaffirmed the prosecutor's duty to assist on sentencing range.

72 On appeal, the Director repeated the submission that the features of this case placed it in the worst category of offending of this kind. While recognising the importance of current sentencing practice, he submitted that the Court was required to sentence with reference to the relevant maximum penalty.

73 It was accepted on behalf of all respondents that the seriousness of the offending called for severe punishment. It was said, however, that the available sentencing statistics showed that this was exactly what had occurred. According to Sentencing Advisory Council figures, the median length of sentence between 2002-03 and 2006-07 for the offence of causing serious injury intentionally was three years.[67] The average sentence for the offence ranged from three years in 2004-05 to four years in 2006-07.[68]

74 Each party referred to a number of cases, said to be comparable, where substantial terms of imprisonment had been imposed on counts of intentionally or recklessly causing serious injury.[69] The sentences imposed ranged between 4.5 and 16 years imprisonment. A general overview of the sentences imposed by courts over a substantial period for offences of the same or a similar character must inevitably play its part in provoking the instinctive reaction of any court.[70] Nevertheless, each case must be judged on its own facts.[71] As this Court recently observed in R v Maynard:

care must be taken when making comparisons between individual cases and in using statistics. Statistics do no more than establish minimum and maximum sentences and the average and median sentences imposed over a particular, and necessarily arbitrary period. Indeed, there is a danger that undue reliance upon the average or median sentence imposed during a particular period will distract the sentencing judge from the particular circumstances of the case in hand and has the capacity to distort sentencing in particularly serious cases towards the average or median figure. The statistics cited provide guidance in only a limited way to the sentence that should have been imposed in this case. By themselves, statistics do not establish a sentencing practice.[72]

75 Apart from the maximum sentence prescribed by Parliament, the intuitive synthesis does not rest upon any necessary relationship between different cases.[73] The maintenance of a broad sentencing discretion is essential if justice is to be achieved in the immense variety of sentencing circumstances. Indeed, as explained in MacNeil-Brown, the very concept of sentencing 'range' reflects the fact that sentencing is an exercise of discretion.

76 The principle of consistency in sentencing will generally require that some regard be had to comparable cases. So will the statutory obligation to have regard to current sentencing practices.[74] Since it was accepted in the appeal that this was a 'worst category' case, any comparative analysis would need to focus upon sentences imposed for offences in that category. In a series of decisions handed down in August 2004, this Court sought to 'make clear to sentencing judges and would-be offenders how seriously this offence is to be regarded'.[75] The Court (per Nettle JA) made the following important statements regarding sentencing for intentionally causing serious injury:

1. A sentence of 8 years' imprisonment 'is a long way from the top of the sentencing range for intentionally causing serious injury'.[76]

2. The so-called 'very top of the range' of six to ten years was established when the maximum penalty for causing serious injury intentionally was only twelve years and six months' imprisonment.[77]

3. Now that the maximum penalty is 'almost double that amount', the very top of the range is 'upwards of fifteen years'.[78]

77 As the Court subsequently commented in R v Sa,[79] those statements fell to 'be considered in the light of the substantial aggravating features accompanying the offending in those cases'. The aggravating features common to those cases were that the attack on the victim was unprovoked; the attack continued after the victim had become unconscious; and the victim sustained very severe injuries.[80] The present case has all of those features.

78 The Director drew particular attention in argument to the successive sentencing decisions of judges of this Court in R v Ali Ali,[81] in each case following a retrial. Ali was convicted (at his trial and then at each of the two retrials) of one count of intentionally causing serious injury. Having struck his victim (with whom he was sharing a cell) and made him fall, Ali stomped on his head with both feet a number of times, with full force.

79 The attack was entirely unprovoked. The victim suffered permanent, disabling and catastrophic injury, and was thereafter completely dependent on others for all his needs. The assault was 'so extreme that even experienced criminals were sickened by [the] conduct and prepared to give evidence on behalf of the Crown ...'.[82] Ali had warned the witnesses to say nothing of what they had seen. The parallels with the present case are, once again, obvious. (The most significant difference, so far as Marks and Terrick are concerned, is that Ali pleaded not guilty).

80 Following the first retrial, Teague J sentenced Ali to 16 years' imprisonment, with a minimum of 13 years.[83] (This was the same sentence as had been imposed after the trial). Following the second retrial, Curtain J sentenced him to 15 years' imprisonment with a minimum of 12 years.[84] Her Honour expressly took into account the fact that Ali had by then faced trial three times, which had occasioned both delay and anxiety.[85]

81 The highest sentences previously imposed for an offence should not be regarded as creating a ceiling or a sentencing practice which constrains the imposition of higher sentences in 'worst category 'cases. The need to have regard to current sentencing practices[86] does not mean that the measure of manifest inadequacy is 'capped' or 'collared' by the highest sentences previously handed down. The possibility is not foreclosed that a sentence near the largest previously imposed may be manifestly inadequate.[87]

82 These offences arose out of a vicious and sustained attack by three men acting together. An assault in company is more frightening and - almost always - more lethal than an assault by one, not least because the action of each tends to encourage the others. It is also more cowardly, because of the overwhelming physical superiority of the attackers. Here, the victim was an innocent passer-by walking in a public place. He offered neither provocation nor retaliation.

83 Fuelled by alcohol and in breach of bond or bail conditions, the respondents engaged in unbridled violence. They maintained a sustained attack upon the victim after he fell to the ground; they kicked him repeatedly to the head and upper body, and continued to do so when it was obvious that he was unconscious. They threatened members of the public who sought to come to the victim's assistance. They left the victim bleeding and unconscious, and gloated about his comatose state after the assault had concluded. They sought to conceal the crime by intimidating the witnesses to their crime. The victim suffered catastrophic, permanent, mental and physical injuries. He is now dependent for support upon his family, which faces very large expenses for medical treatment and ongoing assistance.

84 In our view, the sentences imposed were so manifestly inadequate as to reflect an error of principle. The objective gravity of the offending conduct, considered in conjunction with their antecedents, placed these offences in the worst category of these crimes. Yet the sentences imposed represented (in the case of Marks and Terrick) only 40 per cent of the relevant maximum for intentionally inflicting serious injury and (in the case of Stewart) only 45 per cent for the offence of recklessly doing so.

85 For these reasons, we would allow the Director's appeals against each of the sentences imposed.

Differentiating between 'intentionally' and 'recklessly'

86 In the case of Stewart, the sentencing judge considered himself bound to treat the count of recklessly causing serious injury as necessarily requiring a lesser sentence to that imposed on the counts of intentionally causing serious injury. Both on the plea and on the appeal, the Crown accepted that some distinction could be justified. As was intimated during argument on the appeal, however, we consider that no differentiation in sentence was warranted.

87 In R v Ziday[88] this Court was required to consider sentences imposed upon a mother and daughter, both having participated in a physical attack upon a third person. The daughter was convicted of intentionally causing serious injury, the mother of recklessly causing serious injury. Each received the same sentence. On appeal, it was argued that the principle of parity was offended by the fact that identical sentences had been imposed on the mother and the daughter, despite the five year difference in maximum penalty applicable to the offences and the difference in moral culpability between intent and recklessness as a state of mind.

At first glance some of those submissions are attractive, but sentencing is not a mechanical or mathematical exercise. Quite often there are legal differences between co-offenders, such as different maximum penalties, that make no practical difference when all the circumstances of the offences and of the offenders are taken into account. In particular, if such a difference gives rise to a sense a grievance, it is not a justified sense of grievance. In most cases of the kind that I have in mind they do not give rise to a sense of grievance at all. The co-offenders well and truly understood that they were in it together and there is no unfairness in treating them in the same way.[89]

Agreeing with his Honour's judgment, Redlich JA said:

Where co-offenders cause serious injury to a victim and one is charged with intentionally causing serious injury and the other with recklessly having done so, it does not follow, when all of the circumstances are taken into account, including those personal to each offender, that different sentences should necessarily be imposed on each offender.[90]

89 More recently, Maxwell P observed in DPP v Monteiro that:

There are, of course, more serious instances of [recklessly causing serious injury] and less serious instances of [intentionally causing serious injury], so that there will inevitably be overlap in sentencing for these offences. Other things being equal, however, the intentional causing of serious injury should attract a higher sentence than the reckless causing of the same injury.[91]

90 The present is not a case of 'other things being equal', however. A number of factors serve to demonstrate why Stewart should not receive a lesser sentence than the other respondents. He refused to co-operate with authorities and denied involvement in the offences when interviewed by police. He pleaded not guilty and was convicted following a trial, and hence was not eligible for the discount which Terrick and Marks received for their guilty pleas. He had almost twice as many prior convictions for violence as either Marks or Terrick. The sentencing judge treated the three respondents as equally complicit in the attack but Stewart performed perhaps the most brutal act, by delivering a devastating kick to the victim's unprotected head, following which the victim appeared to lose consciousness.

91 In our view, the circumstances would justify the imposition of the same sentence for the counts of intentionally causing serious injury and recklessly causing serious injury. No justifiable sense of grievance could arise in the present circumstances if the co-offenders were to be treated equally. This being a Crown appeal, however, we consider it inappropriate to follow a course adverse to Stewart which was eschewed by the Crown. We will fix sentences that reflect the Crown's submission that some distinction should be maintained between the sentences for intentionally and recklessly causing serious injury respectively.

92 Stewart also fell to be sentenced on the count of affray. It was a serious example of the offence. In addition to his complicity in the assault on the victim, his conduct in relation to those members of the public who had sought to come to the victims assistance was calculated to terrify bystanders of reasonably firm character.[92] We agree with the Director's contention that a separate sentence on the count of affray (and an order for partial cumulation) was appropriate and would not infringe any notion of double punishment.

93 Allowing for double jeopardy, we would resentence the respondents as set out in Table C.

CBO (12 months); breached and sentenced to YTC for 12 months

4 offences including causing serious injury intentionally and causing serious injury recklessly

6 offences including unlawful assault and causing injury recklessly

ICO for 6 months (breached and ordered to serve 157 days)

13 offences including causing serious injury and assault by kicking

120 days each (served concurrently, and concurrently with above)

15 offences including burglary and resisting police

4 offences including assault by kicking and assaulting police

2 offences causing wilful damage and using indecent language

35 offences including assaulting police, threatening to inflict serious injury

6 offences including reckless conduct endangering serious injury and assaulting police

ICO for 6 months; breached and sentenced to 12 days' imprisonment

12 offences including assault and assaulting police

CBO for 12 months; breached and suspended sentence imposed; breached and 3 month sentence imposed

26 offences including causing injury recklessly and assaulting police

29 offences including reckless conduct endangering life, assault and resisting police

18 and 15 months (both partially suspended), 6 months cumulation; 2 year bond.

[1] See [68] below.