1 On 16 October 2013 Nettle JA granted the appellant leave to appeal 'on the papers' with respect to a single ground which contends that the individual sentences on each charge, the total effective sentence and non-parole period are manifestly excessive.[1] Having now, however, heard full argument, in my opinion the appeal should be dismissed.

2 On 11 June 2013 the appellant pleaded guilty in the County Court to two charges of attempted theft[2] and one charge of recklessly causing serious injury.[3] He was sentenced to be imprisoned for six (6) months on each charge of attempted theft, and for 54 months on the injury charge. Three (3) months of the sentences on the attempted theft charges were ordered to be served cumulatively on the injury charge, leading to a total effective sentence of five (5) years' imprisonment, upon which a non-parole period of three (3) years and six (6) months' imprisonment was fixed.

3 Pursuant to s 6AAA of the Sentencing Act 1991 the judge declared that but for the plea of guilty he would have imposed a total effective sentence of six (6) years' imprisonment with a non-parole period of four (4) years and three (3) months.

4 During the evening of 30 April 2012, the victim, Michael Jones, was at home at his address in Braybrook. At about 11.30 pm, having been alerted by another to the possibility that a theft was being committed, the victim, his father, his cousin and friends confronted the appellant in the front yard of neighbouring premises about breaking into vehicles. The appellant who, it seems, had attempted to break into two cars, said he was looking for parts for his car. A scuffle then took place between the victim, his father and cousin, and the appellant. The appellant lost the top part of his clothing before fleeing down the street with the three men in pursuit. After a short time the victim's father and cousin gave up the chase, but the victim persisted.

5 Eventually the victim caught up with the appellant and grabbed him, intending to turn him over to the police when they arrived. The two struggled, during which the appellant produced an 11 centimetre long steak knife which he used to stab the victim several times to the body and forehead. Following the infliction of injury to the victim the appellant was able to escape the scene in a taxi.

6 As a result of the stabbing the victim suffered life-threatening injuries. He had cuts to the forehead, and three stab wounds to the torso which had ruptured his spleen and collapsed his left lung. Emergency surgery preserved his life.

7 Following his arrest on 4 May 2013, the appellant participated in an interview with police. He admitted stabbing the victim, but said that he did so in self-defence because the victim would not get off him.

8 The appellant is now 40 years of age, having been born on 26 September 1973.

9 Counsel appearing for the appellant on the plea informed the judge that the appellant had come to Australia from Macedonia with his family when he was 12 years of age. He attended school up until year 10. By the time he finished school the appellant was already using a significant amount of cannabis. Ultimately, at age 21, he graduated to heroin use. The appellant's criminal history, it was submitted, is dominated by offending in support of his heroin use, and his prospects of avoiding future offending were tied to his ability to stay away from heroin.

10 It was put that the appellant's plea had a utilitarian benefit as well as being an expression of his remorse. Since his sister is his sole family member living in Victoria, the appellant would be isolated in custody in this State. Conceding that the appellant had a significant criminal history, counsel submitted that there was nothing to indicate that the appellant has previously committed any offences causing injury.

11 The prosecutor reminded the judge that the victim was rushed to hospital with life-threatening injuries. Further, although the appellant had entered a guilty plea at the initial directions hearing, that occurred after a contested committal where some witnesses were examined.

12 Although given the opportunity to do so, the victim declined to make a victim impact statement. He had, however, made 'a good recovery from the injuries sustained'.

13 The judge declined to hear any submission as to range.[4]

14 The sentencing judge took account of the appellant's plea of guilty, although he noted that it was not made at the earliest opportunity. Moreover, the appellant cooperated with police when interviewed; and, although he was somewhat evasive, he did make significant admissions. Further, the appellant exhibited remorse in a letter that he wrote to the court, in his record of interview and by his pleas of guilty.

15 His Honour noted that the appellant had a long term addiction to heroin and that addiction was connected to his criminal offending; and although such addiction did not mitigate the appellant's culpability, it gave a context to and reason for his offending. The appellant's future depends on staying drug free upon release, and his prior criminal history does not provide encouragement in that respect.

16 The judge observed that the appellant will be isolated in custody since, apart from his sister, his family resides in Queensland.

17 Significantly, the judge noted that the appellant's offending was serious; his victim was gravely injured and could have died.

18 Expressing the view that the appellant has not been deterred by prior sentences, and that he had continued to carry a knife when he offended, the judge drew attention to the fact that the appellant had admitted extensive criminal history with numerous convictions. Whilst the prior convictions were predominantly for dishonesty and drug-related offending, there were three charges of armed robbery. Of particular significance, on 2 February 2010 the appellant had been convicted of 'assault, assault police, seven charges, and using an offensive weapon to prevent lawful detention, eight charges, and use an offensive weapon to commit an indictable offence, three charges'. Such prior criminal history demonstrates that the appellant had in the past used weapons to commit offences and to seek to avoid being apprehended.

19 Counsel for the appellant, the judge noted, had conceded that a period of imprisonment was the only sentencing option available. Further, '[s]pecific deterrence, general deterrence and denunciation are significant sentencing factors' in the appellant's case.

20 On the appeal, the appellant's counsel submitted that the sentencing judge erred in his assessment of the appellant's moral culpability, and gave too much weight to general deterrence and denunciation. It was argued that by not moderating the application of those principles as a consequence of the context in which the appellant stabbed the victim, the judge erred. Reliance was placed on the remarks of Starke J in Okutgen.[5]

21 Further, it was submitted that the sentencing judge 'misread' the appellant's criminal history and 'overstated' the appellant's 'prior violence-related offending'. Specifically, it was put that the judge had made 'material' errors, in that he sentenced the appellant on the basis that he:

• was imprisoned on three charges of armed robbery in 1999, when in fact he was imprisoned on one charge only of attempted armed robbery;
• was convicted of seven charges of assault police on 2 February 2010, when in fact he was sentenced on one charge only of assault police on that date;
• was convicted of eight charges of using an offensive weapon to prevent lawful detention on 2 February 2010, when in fact he was only convicted of one such charge on that date; and
• was convicted of three charges of using an offensive weapon to commit an indictable offence on 2 February 2010, when in fact he was convicted of one such charge on that date.

22 Additionally, it was submitted that the judge placed too much weight on specific deterrence following his 'erroneous reading' of the appellant's criminal record, and in light of his failure to find that the appellant 'was acting defensively when he stabbed the victim'. Moreover, it was argued that the sentencing judge made a discrete finding which was unsupported by the evidence, in that he found that the appellant used the knife 'like you have in the past'. That finding emphasised that specific deterrence was given too much prominence in the sentencing task.

23 It was further submitted that the individual sentences imposed (particularly the sentence imposed on charge 3), the orders for cumulation, the total effective sentence and the non-parole period imposed are each manifestly excessive given the context in which the offence of recklessly causing serious injury was committed and given the appellant's pleas of guilty; remorse; willingness to facilitate the course of justice, reflected by his pleas, admissions, and co-operation with investigating police; and isolation whilst in custody.

24 In resisting the contention that any component of the sentence was manifestly excessive, the respondent first of all distinguished the decision in Okutgen. In that case the applicant 'was not out committing other crimes at the time of the infliction of the injury, he was found to have been subjected to considerable provocation and proffered a lawful excuse for having a loaded rifle'. Further, the applicant in that case did not have any prior convictions and 'was otherwise of exemplary character'.

25 It was conceded by the respondent's counsel, however, that the judge had 'misread the interstate prior criminal history' of the appellant and 'erroneously referred to the [appellant] having a more extensive prior criminal history than he in fact had'. The sentencing judge, so it was argued, correctly referred to the appellant's violence related prior criminal history 'but overstated the amount [sic.] of charges that the applicant had been sentenced for'. These errors, it was submitted, were immaterial in the circumstances of this case, since 'it was not the number of prior convictions but rather the nature of the prior convictions that had an adverse effect on the sentence imposed'. The appellant 'had an appalling criminal history for crimes of violence and weapons'. Thus, specific deterrence was a relevant sentencing principle that required appropriate weight in the sentencing discretion.

26 Before moving on, I should pause to observe that, so far as the appellant's prior convictions were concerned, the judge did not derive much assistance from counsel at either end of the Bar table. The prosecutor should have been in a position to assist his Honour as to the circumstances of the relevant prior offences. Moreover, both counsel should have been in a position to inform the judge as to whether, by the commission of the instant offences, the appellant had been in breach of interstate parole and a bond (as appears to be the case from a simple reading of the filed Criminal Record). Any such breach might have been relevant as an aggravating factor of the present offences. Further, if any such breach attracted action by interstate authorities, it may have been relevant to the invocation of the principle of totality. The judge was not, however, given adequate assistance concerning those matters. But since neither the appellant or respondent in this Court sought to make any moment of the apparent breaches, they can for present purposes be ignored.

27 Returning to the respondent's submissions, as to the use of the knife it was submitted that the appellant's prior criminal history demonstrated that he had in the past used weapons to commit offences and to seek to avoid being apprehended.

28 The respondent argued that the instant case was a serious example of the offence of recklessly causing serious injury. Use of a weapon makes the offence more serious as it heightens both the probability of serious injury and the degree of seriousness of the probable injury.[6] The fact that the weapon used was a dangerous weapon - a knife - increases the relevant seriousness even further.[7] It was pointed out that the victim in this case was stabbed at least five times, three times to the body and twice to the forehead. The victim received cuts to the forehead and life-threatening injuries, including a ruptured spleen and a punctured left lung. He was required to undergo emergency surgery and was hospitalised.

29 In my opinion, no aspect of the sentence passed properly can be characterised as excessive. Indeed, in my view the individual sentences imposed on each count, the degree of cumulation ordered, the total effective sentence and non-parole period are, in the particular circumstances of this case, moderate.

30 Although a deal of reliance was placed by the appellant's counsel on the fact that the sentencing judge had in some respects misinterpreted the appellant's criminal history - a matter conceded by the respondent - it will be remembered that the complaint agitated under the cover of the sole remaining ground of appeal is one of manifest excess, not specific error. And although one may sometimes infer that a manifestly excessive sentence has resulted from a misapprehension as to a material fact, that is not this case.

31 I agree with the oft made observation that a contention that a sentence is (or is not) manifestly excessive does not admit of much in the way of sustained argument.[8] A sentencing judge instinctively synthesises factors relevant to the exercise of the sentencing discretion and arrives at a sentence which he or she thinks appropriate. An appellate court approaches the task of assessing whether a sentence is manifestly - as opposed to merely arguably - excessive in much the same way. Members of the appellate court synthesise all relevant factors.[9] Having done so, however, even should the appellate court regard the impugned sentence as stern, or even if the members of the appellate court would not themselves have passed the same sentence, there is no mandate for appellate intervention unless the sentence is outside the range of those open in the sound exercise of discretion.[10]

32 Bringing into balance, as best I am able, all relevant features, I am not persuaded that the sentence is manifestly excessive in any of the ways suggested by the appellant.

33 The conclusion is inescapable, in my view, that the appellant had armed himself with the steak knife so as to use it to avoid apprehension if challenged when involved in his planned thieving. To that extent his offence was not bereft of premeditation. He would have anticipated that the use of the knife had the capacity to cause serious injury, and was willing to use it so as to inflict serious injury. This was not a case where there was the opportunistic use of makeshift weapon. The appellant had deliberately armed himself before setting forth to steal. These features aggravated his offending.

34 Moreover, without again luxuriating in the details of the injuries inflicted upon the victim, they were, as I have already said, life-threatening. Without surgical intervention the victim would likely have died. By his plea to the charge of recklessly causing serious injury the appellant acknowledged that when he wielded the knife he foresaw the probability that he would cause the victim serious injury (rather than some injury not of a serious nature).[11]

35 His arming himself with the knife, and his foresight that when using it he foresaw the probability of causing serious injury, must fall to be considered against the backdrop of the appellant's prior criminal history. Despite the fact that the sentencing judge misapprehended the precise extent of that history, the appellant nonetheless had relevant prior convictions which had been imposed by interstate courts for using an offensive weapon to commit an indictable offence, attempted armed robbery and assault (quite apart from many drug-related, dishonesty and breaking and entering offences). Although, of course, he is not to be punished again for those prior offences, the appellant's prior history is relevant as bearing on his moral culpability, his prospects of rehabilitation, his dangerous propensities and the concomitant need for the community's protection, and the increased importance of specific deterrence in the sentencing process.[12]

36 I acknowledge that there was some mitigation in the form of the plea of guilty which, although entered after a committal at which witnesses were required to give evidence, certainly had utilitarian value; that there was limited cooperation with the police; and that the appellant will be somewhat isolated from his family when serving his sentence. As against those mitigating aspects, this was a serious example of the offence of recklessly causing serious injury. This Court has often remarked on the dangerousness of knives, given the obvious risk in their use of damage to a victim's internal organs and blood supply and thus to life.[13] Those who would

venture forth with a knife anticipating its use to inflict injury, and those who would use knives foreseeably to inflict serious injury, need to be deterred from so doing. And the appellant, given his history, himself needs to be deterred from going armed to assist in the commission of offences.

37 Axiomatically, every case must depend on its own particular facts, and every sentence must be the product of the features (both aggravating and mitigating) peculiar to that case. When regard is had to current sentencing practises for the offence of recklessly causing serious injury perpetrated by the use of a knife and resulting in life-threatening injuries, in my opinion the sentence of four and a half years' imprisonment here fixed for the offence cannot be said to be outside the range of those properly open, notwithstanding the appellant's plea of guilty (and other mitigating features).[14]

38 So far as the sentences for the charges of attempted theft are concerned, given the appellant's prior convictions for dishonesty they are, in my view, unremarkable. The degree of cumulation imposed also is, in my view, proper. Further, in my opinion the non-parole period cannot be said to be manifestly excessive, and is proportionate to the head sentence. Particularly given the appellant's history, I fail to see that any lesser period would necessarily be appropriate.

39 For the foregoing reasons, in my opinion the sentence passed is not manifestly excessive. The appeal must be dismissed.

[1] Leave was refused with respect to a ground asserting that the sentencing judge erred by finding that the appellant had armed himself with a knife to avoid apprehension, and by not finding that the appellant acted defensively ('albeit excessively and disproportionately') when he stabbed the victim.

[2] Crimes Act 1958, ss 74 and 321M. The maximum penalty is five years' imprisonment.

[3] Crimes Act 1958, s 17. The maximum penalty is fifteen years' imprisonment

[4] See R v MacNeil-Brown; R v Pigott (2008) 20 VR 6.

[5] R v Okutgen (1982) 8 A Crim R 262, 266.

[6] Ashdown v R (2011) 219 A Crim R 454, [19].

1. [8] R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v The Queen [2013] VSCA 4, [12]; Allen v The Queen [2013] VSCA 44, [51]-[52]. See too Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6].

[10] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-672, [15].

[11] R v Campbell [1997] 2 VR 585, 592-3 (Crockett and Hayne JJ); Ignatova v R [2010] VSCA 263; Ashdown v R (2011) 219 A Crim R 454, 463 [18]; James v The Queen [2013] VSCA 55, [148].

[12] R v O'Brien and Gloster [1997] 2 VR 714, 718.

[13] Ashdown v R (2011) 219 A Crim R 454, 463-4 [19]-[20].

[14] See Winch v The Queen (2010) 27 VR 658; Ashdown v R (2011) 219 A Crim R 454.