DPP v Zullo [2004] VSCA 153

9. On 22 December 2003 at approximately 11.00 a.m. the respondent was released from gaol after serving a sentence of 45 days' imprisonment (another 45 days having been suspended) for offences which included intentionally causing injury, criminal damage, making a threat to kill, and possessing a prohibited weapon without a licence. By 8.30 p.m. that evening he was drunk and, with his sixteen-year-old girlfriend, on a train bound for the Elsternwick station.

12. James Peter Blaik, whom I shall call the victim, is 37 years of age. He too was a passenger on the train that night. He did not know or have anything to do with the respondent. But like the respondent, he got off the train at Elsternwick.

15. Unfortunately for the victim, the respondent chose him as a target at which to direct the respondent's anger and violence; and apparently for no better reason than that the respondent did not like the way in which the victim looked at the respondent. Thus, as the victim reached the foyer of the station, the respondent made a vicious and frenzied attack upon him. He punched the victim hard to the face with clenched fists until he fell to the ground. He then knelt down beside the victim and continued to punch him to the face and head until the victim lost consciousness. Then, as the victim lay unconscious and injured on the floor, he kicked the victim to the head and upper body repeatedly, screaming "it's his fault, he shouldn't have looked at me like that" and "I've just got out of prison" and "stop fucking looking at me". Eventually, the respondent was dragged away by a bystander, but the respondent broke away and ran back to where the victim lay unconscious, saying: "I want to finish him off", and again he kicked the victim to the stomach several times.

18. The respondent was arrested near the station at 10.48 p.m. that night and was interviewed by police. During the interview he admitted punching the victim, although not kicking him, and he tried to excuse what he had done by claiming falsely that he had acted in self defence. Meanwhile, the victim had been taken by ambulance to the Alfred Hospital. He had suffered a severe laceration to the right cheek, fractured cheekbones (both), fractured nose (both sides), massive facial bruising and swelling and a closed head injury. He required ventilation and 48 hours of intensive care, and then a further three weeks of in-patient care followed by rehabilitation and treatment at the Caulfield General Medical Centre. It will be a long time, if ever, before he recovers completely from the physiological and psychiatric injuries inflicted by the respondent.

21. At a committal mention in March 2004 the respondent pleaded guilty to one count of intentionally causing serious injury and he was committed to stand trial on that charge at the County Court at Melbourne. He was arraigned before that court on 7 May 2004 and after hearing a plea in mitigation the judge sentenced the respondent to imprisonment for a period of three-and-a-half years with a non-parole period of two-and-a-half years. The Director of Public Prosecutions now appeals pursuant to s.567A of the Crimes Act 1958 on the ground that the sentence was manifestly inadequate.

25. In my judgment the sentence was manifestly inadequate. The maximum sentence for causing serious injury intentionally is 20 years' imprisonment[1]. 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.

28. 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[2]. 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[3].

31. 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.[4] 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.

34. It has also been said that the sentence to be imposed for an offence of causing serious injury intentionally should be considered in the context of what might be appropriate for a case of manslaughter[5]. With respect, I would agree with that sort of approach, provided all that is meant is that a particular case of causing serious injury intentionally may be so grave and productive of consequences so serious as to warrant a penalty similar to the penalty for manslaughter. But I do not accept that a sentence for causing serious injury intentionally may not ever exceed the sorts of sentences that are imposed for less serious forms of manslaughter. A head sentence of six or so years may be imposed for some forms of manslaughter at the lower end of the range, although of course much will depend upon the age and antecedents of the offender and the prospects of rehabilitation. But where a sentence of that order is given for manslaughter, the offence is more often than not a case of accidental homicide. It does not often involve an intention to inflict serious injury. Contrastingly, an intention to cause serious injury is of the essence of the offence of causing serious injury intentionally and in that respect the latter is a graver offence than unintentional homicide. Depending upon the circumstances, I consider that a sentence for a serious case of causing serious injury intentionally may well exceed a sentence for manslaughter at the lower end of the scale.

38. Mr Holdenson, who appeared with Ms Hartnett for the respondent, invoked the observation of King, C.J. in R. v. Osenkowski[6] that:

"[P]rosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."

42. Mr Holdenson contended that any interference with the sentence imposed in this case would transgress that imperative. As he would have it, the judge had perceived within the evidence the prospects of rehabilitation and a need for leniency based upon the respondent's strong work ethic and latter-day recognition of the effects of alcohol, and had formulated a lenient sentencing disposition based upon that perception. Mr Holdenson submitted that there was ample evidence of work ethic and prospects of rehabilitation in the respondent's employment record, and in a psychological report prepared by Ms Pamela Matthews, forensic psychologist, of 8 June 2004, and that it was clear from the judge's sentencing remarks that his Honour had proceeded on that basis. In those circumstances, Mr Holdenson said, this Court should affirm the judge's decision.

45. That contention is not persuasive. It may be that there was an indication of a strong work ethic. And it may be that the respondent had vouchsafed Ms Matthews some degree of recognition of the connection between his consumption of alcohol and his propensity to commit violent criminal assaults. But the former was equivocal. It amounted to no more than what had been said by the respondent to Ms Matthews and was repeated in the plea in mitigation. And the latter rose no higher than was recorded in paragraphs 6, 11, 26, 27, 32, 50 and 52 of Ms Matthews's report, of which even the more favourable were hardly impressive. They were:

"11. He told the writer that most of his assault-related offences were associated with alcohol use, and said, 'This is the last time I'm coming to a jail. I need to address my alcohol problem. It would be nice to be at the stage where I can have a few glasses of wine, but currently I cannot always guarantee that I will be controlled. Unfortunately, I keep drinking, lose control of my thoughts, and continue to drink." "32. He said his long-term goals were to continue to work for Richmond Oysters and to deal with his demons, that he did not want to go back to jail, and his eventual goal was to be able to restrict himself to a few glasses of wine with a meal and a normal life. He felt it would be more difficult to achieve his alcohol-related goals, compared to his employment-related goals. He told the writer, 'I have a normal life, except when I am drinking and in fights.' He said that he has a good relationship with the people he works with." "50. He said that as an adult, it only takes three drinks for him to get drunk, and that he can get drunk quite quickly. He said that prior to his previous incarceration at Port Phillip Prison, he was drinking at least every second day four to seven cans of UDL after work. He would also drink a few scotches with the boss after work. His friend, Al, would pick him up from work, and they would have a few drinks at a bar ... " "52. He acknowledged that on occasion, his alcohol intake leads to a loss of capacity for him to think properly or to think rationally. In relation to speeding, he said he has been caught a number of times and has lost his licence for drinking. He said that he has no intention of seeking a return of his licence, saying, 'When I can stop drinking, when I can have just one or two drinks, I will go for my licence again. I had two cars that I had to sell.' He said he was not prepared to drink and drive, as he could end up a paraplegic or kill someone."

49. Moreover, Ms Matthews's report also contained the following unfavourable observations, to which Mr Holdenson did not refer:

"85. On the Violence Risk Assessment Guide (VRAG) an actuarial instrument that is also based on a significant body of research, Mr Zullo is assessed as having a 50% chance of re-offending over the next 7 years. Significant factors contributing to his assessment are: his history of alcohol abuse, past history of violent behaviour and criminal history including non-violent offences." "95. ... Mr Zullo is yet to reach the conclusion that his best course of action would be to abstain from alcohol completely. He lacks insight into how his emotional presentation of post trauma symptoms and impulsiveness interact with the disinhibitory effect of alcohol. He requires involvement in rehabilitative programs that address his alcohol related behaviour." (Emphasis added.) "97D. It is the writer's view that Mr Zullo's lifestyle and associates act as significant destabilisers. It is further the writer's view that he lacks insight into this aspect of his overall offending and that he would benefit from involvement in relapse prevention programs that examine factors influencing his offence behaviour and strategies to change these factors." (Emphasis added).

53. Then, when one turns to the judge's sentencing remarks, it will be seen that it is just not the case that the judge was persuaded that the respondent's chances of rehabilitation were favourable - indeed the converse was the case - and it is plain that his Honour did not proceed on any basis other than that there was a need for both specific and general deterrence, and for public protection. As his Honour put it:

"13. Dr Le[ahey] and Ms Matthews are at one in that you do not suffer from any major psychiatric disability. Your aggressive behaviour is triggered by alcohol consumption. Dr Le[ahey] says drinking of even moderate amounts of alcohol leads to significant disinhibition and you become temporarily disposed to anger. Ms Matthews also notes that in your case alcohol is a disinhibitor and that clearly was what occurred to you on this day. You drank alcohol almost immediately upon release from prison and turned on this hapless man and mercilessly beat him." "14. I acknowledge that you have participated in a drug and alcohol program at Moreland Hall whilst in prison and the record of that is contained in Exhibit 1. I acknowledge your plea of guilty. It was made at an early stage and counsel relied on it and you are entitled to a discount on sentence for that plea and you also have a lengthy period of pre-sentence detention. I take that matter into consideration but I am far from satisfied that you are rehabilitated from the alcohol problem that you possess and that apparently has been the cause of most of your extensive criminal history." (Emphasis added.) "15. The sentence must, in your case, acknowledge principles of specific and general deterrence and indeed consideration of protection of the public ... "

57. The judge was clearly correct so to identify the relevant sentencing principles. The only problem in this case is that the proper application of those principles called out for a sentence far greater than was imposed.

61. There being an error of principle in the way in which the matter was dealt with by the judge below, it is necessary to re-sentence the respondent. I start by reiterating that in my opinion this was a serious case of intentionally causing serious injury with serious aggravating circumstances. I also think it to have been an outrageous offence. For it was not only cowardly and unprovoked, and causative of serious lasting injuries - which were enough in themselves to make it really serious - but it was also committed in circumstances which reflected utter contempt for the rights of others to go about their business peacefully and safely. This respondent had evidently learned so little from his more than 60 prior convictions from 20 court appearances; felt such little remorse for the consequences of his past offending; and had so little respect for the rights and wellbeing of others, that upon the very day he was released from prison after serving a sentence for intentionally causing injury, he chose to cause serious injury intentionally by bashing the victim senseless.

64. No doubt the respondent was drunk and no doubt he has personality defects that make him angry and violent when he is drunk. But upon his own admission he was not so drunk as to be incapable of forming the intention to inflict serious injury. And his previous experience meant that he knew before he drank that that is the way in which he was likely to behave. Yet still he chose to drink. In this case, therefore, drink was not an excuse; it was another aggravating factor.

67. I take into account in the respondent's favour that he pleaded guilty at a relatively early stage and I consider that he is entitled to a significant discount on sentence because of that plea.[7] I also take into account in the respondent's favour the psychiatric report prepared by Dr Leahey, consulting psychiatrist, in which it is said that the respondent's insight is good and that he understands what he has done and that his remorse regarding his actions was appropriate and appeared genuine. But with all respect, I discount what is said in that report about remorse. It is very easy for a prisoner to profess remorse, and sometimes what is said is genuine. But where there has been repeated offending, time and time again, there comes a point such as has come in this case where actions speak louder than words.

70. Finally, I give recognition to the element of double jeopardy involved in having an offender face sentence more than once in respect of the same crime[8] and I proceed accordingly on the basis that the sentence to be imposed should not be as severe as the Court would otherwise impose.[9]

73. I reject, however, a further submission made by Mr Holdenson, to the effect that even if this Court were disposed to increase the head sentence set by the judge below, it would not be appropriate for this Court to alter the non-parole period. In my opinion, the non-parole period set by the judge below was as manifestly inadequate as the head sentence on which it was based.

76. Bearing in mind the very serious nature of this offence, the obvious need for specific deterrence in the case of this prisoner and the continuing need for general deterrence of crimes of this type, and balancing those considerations against the others to which I have referred, I have concluded that the sentence to be imposed on the respondent should be seven years' imprisonment, and that he should serve not less than five years before being eligible for parole.

79. 24 I add that were it not for the respondent's plea of guilty and the principle of double jeopardy to which I have referred, I would impose a significantly longer head sentence, but that I have set the non-parole period having regard to Ms Matthews's and Dr Leahey's opinions that the prospects of rehabilitation would be considerably enhanced if the respondent chose to give up alcohol altogether. Of course it is a matter for the respondent whether he chooses to take that step.

83. For the reasons given, I would allow the appeal and set aside the sentence the subject of appeal. I would order instead that the respondent be sentenced to seven (7) years' imprisonment with a non-parole period of five (5) years.

87. For the reasons given by Nettle, J.A., I too would allow this appeal and substitute the sentences which he proposes.

91. I also agree with Nettle, J.A. But, since I gave the principal judgment in one of the cases he has cited, R. v. Lee[10], I add, having refreshed my memory from my notebook, that as a result of a clear indication by the then Chief Crown Prosecutor at the commencement of the hearing of that application it almost immediately turned into what the then Chief Justice described in the case as a re-sentencing exercise. That is, there was no real dispute that the offender's application should succeed. The maximum penalty at the time of offending in that case was imprisonment for 12 years and six months, whilst that for manslaughter was then imprisonment for 15 years.

98. The formal orders of the Court are as follows:

In lieu thereof this Court imposes a sentence of seven years' imprisonment.

We order the respondent to serve a minimum term of five years' imprisonment before becoming eligible for parole.

Pursuant to s.18 of the Sentencing Act we declare that the respondent has served 241 days of the sentence we have imposed. We order that the fact of that declaration and its details be entered in the records of the Court.

106. The Court will direct that a certificate pursuant to the Appeal Costs Act be granted to the respondent.

[1] Crimes Act 1958, s.16.

[2] R. v. Stevenson [2000] VSCA 161 at [27].

[3] Supra, at pp.522-3; DPP v. Scott [2003] VSCA 25; (2003) 6 V.R. 217 at p.222.

[4] Fox & Freiberg, Sentencing, State and Federal Law in Victoria, 2nd Ed. at [12.303], but see

[5] R. v. Meizys 1/10/90; R. v. Pratt 28/4/95; R. v. Lee 19/8/97, BC 9703974 at p.7; Fox & Freiberg, supra at [12.303].

[6] (1982) 30 S.A.S.R. 212 at pp.212-213, which was reiterated by Charles, J.A. in R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at p.523.

[7] Cameron v. The Queen (2002) 209 CLR 339 at pp.343-4 [13]-[15]; cf. R. v. RND [2002] VSCA 192, BC 200207256 at [18] - [21], per Eames, J.A.

[8] R. v. Allpass (1993) 72 A.Crim.R. 561 at p.562[2], per Gleeson, C.J.

[9] Griffiths v. The Queen [1989] HCA 39; (1989) 167 C.L.R. 372 at p.383.

[10] Unreported, Court of Appeal, 21 August 1997.