DPP v Weber [2017] VSCA 93

1 The respondent pleaded guilty in the County Court at Melbourne to one charge of having intentionally caused serious injury, an offence under s 16 of the Crimes Act 1958. This offence carries a maximum penalty of 20 years' imprisonment.

2 On 15 July 2016, he was sentenced to 23 months' imprisonment, combined with a Community Correction Order ('CCO') of 18 months.

3 The Director of Public Prosecutions ('Director') now appeals against that sentence upon the following, somewhat elaborately stated, ground:

1. The sentence imposed was manifestly inadequate.

In fixing the sentence set out above in this Notice of Appeal, the sentencing Judge -

(a) failed to properly reflect the objective gravity of the offence;

(b) failed to give sufficient weight to the principles of general deterrence, punishment, and denunciation;

(c) failed to give sufficient weight to the consequences of the offence and its impact on the victim;

(d) failed to have sufficient regard to the maximum penalties prescribed for the offence;

(e) failed sufficiently to manifest the denunciation by the court of the type of conduct in which the offender engaged;

(f) gave excessive weight to factors in mitigation;

(g) gave excessive weight to the principles in R v Verdins ('Verdins');

(h) failed to adequately determine which principles of Verdins applied;

(i) gave improper weight, or excessive weight, to a reduction in moral culpability, general and/or specific deterrence as a result of Verdins;

(j) failed to have sufficient regard to the need for protection of the community;

(k) failed to have sufficient regard to the need for just punishment;

(l) failed to have sufficient regard to current sentencing practices with regard to intentionally cause serious injury.

4 On 23 February 2013, at about 7:30 pm, the victim ('RW'), then aged 51, was outside his apartment, gardening. While taking a break from the heat, he sat down on his front steps and drank several beers. There was a small, dark coloured puppy running loose near the front entrance to the building.

5 The respondent, who had never previously met RW, approached him. He challenged RW as to what he was doing with the respondent's dog. For no apparent reason he then began abusing RW who, sensibly, walked away. The respondent then left the area.

6 RW returned to his apartment to get some more beer. He then went out onto the grassy area to the south east side of the building, where he lay down.

7 At that point, the respondent reappeared. Seemingly without the slightest provocation, and without any warning, he launched a vicious attack upon RW. He pinned him to the ground, and proceeded to punch him repeatedly to the head, with both fists. RW tried to protect himself by covering his face with his hands. However, this was to no avail, as the respondent then began kicking him to the body. It was only after the respondent's partner intervened that he desisted from the attack. The respondent and his partner then left the scene together.

8 RW was left dazed and bleeding from facial injuries. He lay on the grass for a time, and eventually made his way to a nearby apartment. The occupants asked him if he needed an ambulance. He told them that he would be alright. He subsequently managed somehow to return, on his own, to his apartment.

9 Shortly afterwards, RW's condition suddenly deteriorated. An ambulance was called and he was taken to hospital. He was admitted to the Intensive Care Unit in a serious condition.

10 RW was diagnosed with internal abdominal bleeding, a mesenteric laceration[1] with an arterial bleed, a devascularised small bowel,[2] bilateral facial fractures and two fractures to the little left finger. He underwent emergency surgery to remove a small section of his bowel, and to repair the arterial bleeding. He was eventually discharged some three weeks later. However, he required further outpatient care for an extended period of time.

11 The medical evidence was to the effect that the injuries inflicted upon RW carried a significant risk to structures such as the brain, the eyes and essential abdominal organs. There was further evidence to the effect that once invasive surgery of the kind that RW required had been carried out, there would be significant blood loss, and a serious risk of infection, particularly for someone who, like RW, had been in poor health for some time.

12 As it happened, RW did suffer complications, including infection and the re-opening of wounds. He was on a soft diet for some weeks. As a result of the surgery, he lost substantial amounts of blood and fluid. He needed a number of blood transfusions. The medical evidence was that, without prompt hospital treatment, he would probably have died.

13 Several weeks after the assault on RW, the respondent was questioned by police. However, it was not until some eight months later that he was arrested, and formally charged. When interviewed, he denied having had anything to do with the attack upon RW, insisting that the allegations against him were false. He claimed that it must have been a case of mistaken identity. He maintained that position until about a month or so prior to the date listed for the commencement of the trial, when he finally decided to plead guilty.

14 During the course of the plea, counsel for the respondent tendered two clinical reports prepared by a neuropsychologist, Dr Rachel O'Meara. In broad terms, she summarised the respondent's background, including his dysfunctional upbringing, his history of drug and alcohol abuse, and a series of events that had led to his having, in 2013, sustained what she described as a 'traumatic brain injury'.

15 In the second of those reports, Dr O'Meara said:

Mr Weber's cognitive profile which was primary characterised by deficits in attention, speed of processing and executive functioning (which had a secondary impact on new learning), was considered to be highly consistent with a traumatic brain injury ('TBI') as a result of an alleged assault in 2013.

16 The assault to which she referred apparently took place in September 2013, some seven months or so after the commission of the assault upon RW. It occurred when the respondent was attacked in his home. He was struck to the head with a pistol, resulting in a fractured skull. He was also bashed with a baseball bat, and 'tasered'. He spent nine weeks in hospital recovering from his injuries, as well as a further three weeks of convalescence, and lost some mobility after this incident.

17 This was not the only time the respondent had sustained serious injuries as a result of being assaulted by others. In 2008, he was struck a number of blows to the head, resulting in severe jaw fractures, and a loss of consciousness. He spent two weeks in hospital and, as a result of these injuries, suffered some reduced cognitive functioning.

18 Dr O'Meara noted that the respondent had suffered from depression from about the age of 20. This was largely brought about by the suicide of his 'foster brother' in 2012. Thereafter, for a time, he refused to shower or to participate in everyday activities. He told Dr O'Meara that he had planned, at one stage, to commit suicide by jumping in front of a train. He had been prescribed antidepressants to deal with panic attacks, and poor sleep. He said that, in 2014, he had experienced delusions and hallucinations. He claimed to be still having 'panic attacks' when he saw Dr O'Meara.

19 The respondent had a criminal history, described as 'extensive' by the sentencing judge.[3] It is fair to say that it consisted mainly of property offences, including criminal damage, theft and handling. There were also drug offences involving cannabis and amphetamines, and various alcohol related matters. Of more concern, for present purposes, was a prior conviction for unlawful assault.

20 Dr O'Meara's reports outlined the respondent's personal history. He had had a difficult childhood. He had two older brothers. His father died when he was seven. His mother was a drug addict and alcoholic who had had little involvement with her children, and had been violent towards him. He was raised by a 'foster family'. After he sustained his traumatic brain injury in 2013, he ceased to have any contact with the members of that 'foster family'. He claimed that this was because of his embarrassment at his cognitive disability.

21 The respondent was educated only to Year 7. He was expelled from school during that year. He reported having been diagnosed with Attention Deficit Hyperactivity Disorder at the age of seven.

22 After leaving school, the respondent worked with his stepfather as a bricklayer, and began an apprenticeship in that trade at the age of 15. He continued to work as a bricklayer until he was assaulted in 2013. He had not worked since then.

23 The respondent began drinking at about the age of 12. He used cannabis regularly from about that age until almost the time of his arrest. He began using 'speed' from the age of 15, and switched to 'ice' when that drug became more readily available. He used 0.2 to 0.3 grams per day until several months before his foster brother's suicide in 2012. According to Dr O'Meara, he claimed to have given up all 'hard' drugs from that time onwards, save for two or three brief relapses.

24 The respondent was prescribed Valium and Xanax for his anxiety. He started to abuse these drugs after his foster brother's suicide. He continued to do so until his arrest.

25 The judge was told that the respondent had two sons. He was living with his partner of three years at the time of his arrest in 2013.

26 After referring to Dr O'Meara's reports, the judge concluded that the respondent had

deficits ... that come from the traumatic brain injury that happened after the offence against [RW]. It is possible, it might even be probable, that [the respondent] had deficits before, but O'Meara ... is not in a position to comment.[4]

27 The judge specifically noted the respondent's criminal history. He took into account the plea of guilty, saying that it was 'perhaps indicative of remorse.' He noted that the respondent's injuries '[had] had an absolutely profound effect upon him.'

28 The judge then referred to the second of Dr O'Meara's reports, in which she observed that the respondent's prospects of rehabilitation were likely to be closely related to his ability to abstain from substance abuse, and to avoid peers who might have a negative influence upon him.

29 His Honour also referred to a pre-sentence report dated 5 July 2016, prepared by Community Correctional Services. In that report, the respondent was found to be suitable for a CCO, albeit 'with hesitation'. The report noted that he had previously failed to comply with community based dispositions. The report also assessed him as having a 'high risk' of general re-offending.

30 The judge acknowledged that the Crown was calling for a substantial custodial sentence, given the gravity of the offending. However, he considered it appropriate to moderate the sentence, primarily by reason of the respondent's traumatic brain injury.[5] He noted that this injury had been sustained months after the attack upon RW. He further noted that Dr O'Meara was not able to say positively whether Verdins[6] was available to the respondent, by way of reduction of moral culpability, at the time of the offending. However, she had expressed the view that other aspects of Verdins might be available to him, particularly the additionally burdensome nature of imprisonment, by reason of his brain injury.[7]

31 The judge said that he took Verdins principles into account, though he did not indicate which of those principles specifically he had in mind. He said that he had 'modified substantially' the sentence that he imposed on the basis of those principles, as indeed he must have done to produce the sentence that he did.

32 In his written case, the Director first noted that the maximum penalty for intentionally causing serious injury was 20 years' imprisonment. The sentence of 23 months' imprisonment was less than 10 per cent of that maximum.

33 The Director submitted that the objective gravity of the offending should be viewed as high, this being a serious example of this always serious offence. He submitted that regard should be had to the nature of the attack, which involved a number punches to the victim's head, and a series of kicks to his body. RW was a much older man, who was entitled to feel safe in the garden of his home. It was a premeditated and wholly unprovoked assault. The injuries were life-threatening, and led to RW having to undergo a series of complex operations. He now suffered ongoing problems which were likely to continue well into the future. His prognosis had to be regarded as somewhat uncertain.

34 The Director acknowledged that there were mitigating factors present that warranted a modest reduction in sentence. These included the respondent's plea of guilty which, although belated, had some utilitarian value. In addition, some limited allowance should be made for remorse.

35 The Director also acknowledged that, based upon Dr O'Meara's reports and the respondent's traumatic brain injury, he was entitled to some reduction in sentence by reason of Verdins principles five and six, but any such reduction should be modest. The respondent could also rely to a limited degree upon his sad family background and personal circumstances. Once again, no great weight should be given to these matters.

36 The Director submitted that the judge appeared to have greatly overstated the weight to be accorded to Verdins principles five and six. Because the respondent had sustained his brain injury months after the commission of this offence, it was not open to his Honour to treat his moral culpability as being in any way lessened. Additionally, Dr O'Meara had made it clear, in her second report, that the only relevance of Verdins so far as the respondent was concerned was that imprisonment would be more difficult for him, and potentially could result in some deterioration to his mental health.[8] As such, the 'substantial' reduction in sentence, of which his Honour spoke, had to be viewed as excessive.

37 The Director next submitted that there was no evidence to suggest that the respondent was not an appropriate vehicle for general deterrence. He referred to Dr O'Meara's reports, which made it plain that his condition had improved substantially since the attack upon him in 2013. He was fully capable of carrying out most domestic responsibilities. He was estimated to be of average intelligence. Such deficits as he had centred on attention, speed of information processing and aspects of executive functioning such as working memory and abstract reasoning. His use of illicit substances over many years was likely to have contributed to these cognitive difficulties.

38 Finally, the Director referred to several cases that he submitted could be viewed as comparable, and which showed that the sentence imposed in this case was inadequate. For reasons that are not readily apparent to us, he referred to R v Dooley[9] and R v Giffen.[10] These were both cases of some antiquity and, in relation to Dooley, not really comparable at all.

39 During the course of oral submissions, senior counsel for the Director drew attention to two additional authorities, DPP v Zullo[11] and Tasevski v The Queen.[12]

40 In Zullo, the respondent had pleaded guilty, at an early stage, to intentionally causing serious injury. He had a lengthy criminal record. The offence involved punching and kicking an innocent victim who had done nothing to provoke such an attack. The injuries inflicted were very serious, and would have long-term effects. The respondent was sentenced, in the County Court, to a term of three years and six months' imprisonment with a non-parole period of two years and six months. On a Director's appeal (to which, at the time, constraints of double jeopardy were applicable) the respondent was resentenced to a term of seven years' imprisonment with a five year non-parole period.

41 Senior counsel referred to the following observations of Nettle JA:

In my judgment the sentence was manifestly inadequate. The maximum sentence for causing serious injury intentionally is 20 years' imprisonment. A sentence of only three-and-a-half years, with a non-parole period of two-and-a-half years, implies that this offence was at or towards the lower end of the scale. But this offence was anything but towards the lower end of the scale. It was a cowardly, unprovoked and vicious attack on a member of the public who was minding his own business and who was doing nothing to warrant any interference with him at all - let alone being beaten senseless - and it has left the man with lasting injuries. It was therefore a serious case of causing serious injury intentionally, with serious aggravating circumstances.

This Court has said repeatedly that those who when disinhibited by alcohol engage in unbridled violence in public places must expect condign punishment in which the principles of general and, on many occasions, specific deterrence will play major roles. Given the age and antecedents of the respondent, there can be no doubt that it should be so in this case. This offence calls for a substantial sentence in order to mark the Court's denunciation of the offence and to provide the sort of specific and general deterrence that is needed. A sentence of only three-and-a-half years' imprisonment with a non-parole period of only two-and-a-half years is for those purposes so inadequate as to reflect an error of principle.

It is said that the longest sentence ever imposed in this State for an offence of causing serious injury intentionally is ten years' imprisonment, and it has been said that it is only the most serious cases of the offence that have attracted a sentence within what is described as 'the very top of the range' of between six and ten years. In the past that may have been so. When it was the case, a sentence for this offence of three-and-a-half years' imprisonment with a non-parole period of two-and-a-half years might have been within the range. But it is no longer the case. 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. The maximum penalty is now almost double that amount. Now the 'very top of the range' is upwards of fifteen years.[13]

42 The Director also relied, in the course of oral submissions, upon Tasevski, in which the applicant was sentenced to a term of seven years and six months' imprisonment upon a charge of intentionally causing serious injury, as a component of a total effective sentence of nine years with a non-parole period of seven years.

43 Justice Nettle, who agreed with Beach JA, dismissed the application for leave to appeal.[14]

The maximum penalty for intentionally causing serious injury is 20 years' imprisonment and, as has been observed on other occasions, it may thus be expected that the worst instances of the offence will attract sentences of 15 years' imprisonment and upwards. The offence of causing serious injury in this case was not among the worst instances of the offence but, as the sentencing judge rightly found, it was serious. Hence, the sentence which his Honour imposed was only half of 15 years.

Certainly, as Tate JA observes, there are other cases in which similar attacks have netted lesser sentences. High authority dictates that we must regard them as relevant comparators. But the complexities of sentencing are not susceptible to precise mathematical comparisons. They necessitate consideration not only of the nature and gravity of an offence and the injury which it may have inflicted but also of the nature and circumstances of the offender, his prospects of rehabilitation and the needs of community protection. Potentially, therefore, the variables are unlimited and, to a large extent, of a nature incapable of any more precise measurement than informed subjective assessment.

Therein lies the essence of the sentencing discretion and why it is that there is no one necessarily correct sentence for a given offence or offender; only a range of sentences above or below which it is error of law to go.

No doubt, some other judges might have assessed things differently and indeed it may be that the majority are likely to have resolved upon a sentence less than was imposed. But to say so is not to conclude that the sentence was manifestly excessive. It is merely to recognise that, within the permitted range of sentencing discretion, views may reasonably differ. I do not accept that a sentence of seven and a half years for a knife attack of the kind in issue lies beyond that range.

More precisely, given that this was an unprovoked knife attack on an innocent stranger, lawfully going about his business in a public place, which caused him life threatening physical injuries and thus far unresolved traumatic psychological sequelae, committed by the applicant while released on bail pending trial for another albeit less serious knife attack on another victim only seven months before, I am unable to conceive of a sentence of seven and half years' imprisonment as manifestly beyond the bounds of just punishment.[15]

45 In his written case, senior counsel for the respondent referred to relevant authorities dealing with the ground of manifest inadequacy.[16] He submitted that, on a Crown appeal, such inadequacy is not of itself a sufficient basis for appellate intervention. It is only where the inadequacy constitutes or demonstrates 'error in principle' that such intervention will be warranted.

46 The written case then contended that the sentence under challenge did not reflect any error of principle, or gross departure from the appropriate range. The sentencing judge had paid proper regard to all relevant matters, save perhaps for the issue of delay. The failure to take that into account was of no consequence because delay would, in any event, have been a mitigating factor.

47 In support of these submissions, it was contended that, although the judge had described the respondent's criminal record as 'extensive', it was in fact relatively modest. It was said that the respondent had no history of violence other than one charge of unlawful assault, committed in or before 2009.

48 In fact, the respondent's prior convictions, as recorded in his Criminal History Report, extend over five pages, and include some 28 separate convictions.

49 Next, the written case referred to Boulton v The Queen,[17] and the Court's well-known statements concerning CCOs. Boulton was said to have 'dramatically changed the sentencing landscape.' The combination sentence imposed in this case, which included the stringent conditions attached to the CCO, was said to be entirely appropriate, and within range.

50 Finally, the respondent challenged the Director's reliance upon Dooley and Giffen, it being said that both cases long predated Boulton, and that Dooley was in no sense truly comparable.

51 It was submitted that the judge had been entitled to give significant weight to principles five and six of Verdins, and to moderate the sentence accordingly. It was further submitted that the respondent's upbringing and appalling family background also merited a substantial reduction in penalty.

52 As a last resort, it was submitted that this was a case where the residual discretion should be exercised. It was said to be unfair and counterproductive for a man with the respondent's cognitive deficits, who believed he would be able to serve his sentence in the community upon the expiration of his term of imprisonment, to now find himself having to serve a significantly longer period of imprisonment without any opportunity to undertake a CCO.

53 In support of that submission, the respondent filed an affidavit shortly before the hearing of this appeal.[18] In that affidavit, the respondent deposed that he has successfully completed a number of programs and courses. He is currently employed as the meal trolley billet. He further said that he has undergone a number of random drug tests, which have all returned negative results. He is prescribed methadone.

54 The respondent reports a number of events which he says will make his prison time more onerous. He has been assaulted and had property stolen from him while in prison. Due to the threats made against him he has been housed with protection prisoners, and claims that he will remain there for the duration of his sentence.

55 The respondent also reports that his grief at the unexpected death of his two year old son has exacerbated his depression.

56 We decline to exercise that residual discretion. Nothing contained in the affidavit warrants taking that course. However, we should make it clear that, in resentencing the respondent (as we shall), we have taken into account the additional matters raised on his behalf in the affidavit, and have reduced the sentence that we otherwise have imposed to reflect those matters.

57 This was, as the Director submitted, a wholly unprovoked, cowardly and brutal attack by an offender who had prior convictions, as well as some subsequent matters involving violence. The victim sustained extremely serious injuries that had ongoing consequences.

58 Merely summarising the matter in that way makes it puzzling to see how the judge could have arrived at a sentence of only 23 months' imprisonment,[19] albeit one combined with a CCO of 18 months. Certainly, there is nothing in his Honour's sentencing remarks which adequately explains why such a lenient sentence was imposed.[20]

59 Sentences for intentionally causing serious injury have increased significantly in recent years. The starting point in terms of assessing current sentencing practice for this offence is Nash v the Queen.[21] There, the offender had kicked his kneeling victim in the face causing permanent disability. He pleaded guilty. He was sentenced to seven years' imprisonment on that count, notwithstanding the mitigating effect of impaired mental functioning on his part. His appeal was dismissed.

60 The case is particular instructive because of the sentencing table annexed to the judgment. It shows that sentences for this particular offence range from two years' imprisonment to 11 years' imprisonment, with the majority in the range of five to seven years. That accords broadly with the Sentencing Snapshot for intentionally causing serious injury, which indicates that the median sentence for this offence during the period 2011 to 2015 was between four and six years' imprisonment. The average sentence in 2014 to 2015 was five years and two months' imprisonment, up from four years and four months' imprisonment in 2011 to 2012.

61 It seems that sentences for intentionally causing serious injury have increased still further since 2013 when Nash was decided. For example, in Webster v The Queen,[22] a sentence of seven years' imprisonment with a non-parole period of five years and six months was held to be within range. The Court referred to a series of cases which were said to illustrate the more serious category of this offence, in particular Tasevski v The Queen, to which we have earlier referred.[23]

62 Other cases cited in Webster include Wallace v The Queen.[24] There, on a plea of guilty, the applicant was sentenced to six years and six month's imprisonment with a non-parole period of four years and six months. The non-parole period was described as 'well open' to the sentencing judge.

63 In the present case, there was little to be said by way of mitigation on behalf of the respondent. He could certainly rely upon his plea of guilty, and to some degree upon Verdins principles five and six. He could also call in aid his disadvantaged background.

64 When all is said and done, however, this was an offence that called for the imposition of a significant term of imprisonment. Deterrence, both general and specific, were of primary importance. Neither was given anything like the weight that it merited.

65 It follows that the sentence was manifestly inadequate, so much so that it reflected an 'error of principle'.

66 We would allow the appeal, set aside the sentence imposed below, and resentence the respondent to a term of five years' imprisonment with a non-parole period of three years.

67 Pursuant to s 6AAA of the Sentencing Act 1991 the Court declares that but for the applicant's plea of guilty the total effective term of imprisonment that would have been imposed would have been seven years' imprisonment with a non-parole period of five years.

[1] A tear of the mesentery, a membrane attaching the bowel to the back of the abdominal wall.

[2] This means the bowel is not provided with blood.

[3] The respondent also had a number of subsequent convictions, including possession of a controlled weapon without lawful excuse, assault with a weapon and unlawful assault. Plainly, these subsequent convictions were relevant to the need for specific deterrence, and the respondent's prospects of rehabilitation.

[4] DPP v Weber (Unreported, County Court of Victoria, Judge Pilgrim, 15 July 2016) ('Sentencing Remarks'), [28].

[6] [2007] VSCA 102; (2007) 16 VR 269.

[7] His Honour was invited to sentence upon the basis that Verdins principles five and six were applicable. Counsel who appeared for the respondent on the plea eschewed any reliance upon principles one to four. The same position was taken in the respondent's written case. In oral argument before this Court, senior counsel for the respondent sought to invoke also principles two and three. That submission was without foundation.

[9] [2006] VSCA 269 ('Dooley').

[10] [2006] VSCA 219 ('Giffen').

[11] [2004] VSCA 153 ('Zullo').

[12] [2014] VSCA 135 ('Tasevski').

[13] Zullo [2004] VSCA 153, [8]-[10].

[14] Justice Tate would have allowed the appeal and reduced the sentence on the charge of intentionally causing serious injury to one of six years' imprisonment.

[15] Tasevski [2014] VSCA 135, [3]-[7].

[16] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634; DPP v Mwamba [2015] VSCA 338.

[17] [2014] VSCA 342; (2014) 46 VR 308.

[18] The Crown did not take issue with the contents of the affidavit, insofar as they related to objective facts.

[19] This is yet another example of a sentence of just below two years' imprisonment, combined with a CCO, which reflects an approach to sentencing that has been deprecated by this Court on several occasions (see, for example, Sianas v DPP [2016] VSCA 84; DPP v Basic [2016] VSCA 99; DPP v Hudgson [2016] VSCA 254; DPP v Cooper (a pseudonym) [2017] VSCA 8).

[20] The respondent submitted that this was a moderate sentence, and not even to be characterised as lenient. That submission can only be described as extraordinarily bold.

[21] (2013) 40 VR 134.

[22] [2016] VSCA 329.

[23] [2014] VSCA 135.

[24] [2012] VSCA 114; (2012) 35 VR 520.