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[2020] VSCA 63
General information, not legal advice.
Court of Appeal (Vic)
2020-03-26
Mr J, Priest JA, Kyrou JA
Original judgment source is linked above.
CRIMINAL LAW - Appeal - Sentence - Manslaughter by unlawful and dangerous act - Single punch - Sentencing judge imposed mandatory minimum non-parole period - Sentence of 10 years and 6 months' imprisonment with non-parole period of 10 years - Leave to appeal refused - Crimes Act 1958 - , .
1 At about 7.23 pm on 30 May 2017, in the foyer of the Box Hill Hospital, the applicant, Joseph Esmaili, punched Mr Patrick Pritzwald-Stegmann once to the head. As a result of the punch, Mr Pritzwald-Stegmann fell backwards unconscious, striking his head on the floor and suffering catastrophic brain injury from which ultimately he died on 28 June 2017.
2 On 21 November 2018, following a trial in the Supreme Court - in the course of which the applicant claimed that he had acted in self-defence when he struck the fatal blow - a jury found the applicant guilty of manslaughter by unlawful and dangerous act.[1]
3 Following a plea conducted over 1 and 29 March 2019, on 17 April 2019 the trial judge sentenced the applicant to 10 years and six months' imprisonment, with a non-parole period of 10 years.[2] As will appear, the judge considered that, in accordance with s 9C of the Sentencing Act 1991 ('the Act'), she was obliged to impose a minimum non-parole period of that order.
4 The applicant seeks leave to appeal against the sentence. Notwithstanding that there are three grounds of appeal, in written submissions counsel for the applicant made it clear that 'the sole issue on this application concerns the respective mental states of the victim and the [applicant], as to whether the victim was expecting a blow'. The judge's application of s 9C is pivotal to the resolution of the application.
5 As we will explain, none of the grounds has substance. We would therefore refuse leave to appeal.
6 To understand the issue raised in this application it is necessary to summarise the applicant's offending, the critical aspects of which were captured on CCTV footage.
7 On the evening of 30 May 2017, the applicant met a friend, Corey Rogers, and Rogers' girlfriend, at the Box Hill Hospital. They were part of a group visiting a patient. After the applicant and the rest of the group exited the hospital building, they congregated near the hospital doors at the Arnold Street exit in a designated 'No Smoking' area. Some of the group then commenced to smoke.
8 Mr Pritzwald-Stegmann was a cardiothoracic surgeon who worked at the hospital. As he left after his shift through the Arnold Street exit, he saw members of the applicant's group smoking in the clearly signposted non-smoking area. He told one of those in the group, Leigh Clayton, that they should not be smoking there, and he said that was going to let security know. Clayton told Mr Pritzwald-Stegmann to 'fuck off'.
9 Shortly afterward, the applicant re-entered the hospital and turned left, heading towards the public toilets. Mr Pritzwald-Stegmann also re-entered the hospital, only a short distance behind. As he walked towards the front reception counter, Mr Pritzwald-Stegmann told reception staff to call security to move the smokers away from the entrance. As he was walking through the foyer, the applicant overheard what Mr Pritzwald-Stegmann had said to the reception staff and he stopped. He turned towards Mr Pritzwald-Stegmann and called out, 'Why don't you go fuck yourself?'.
10 Apparently having heard the applicant's offensive comment, Mr Pritzwald-Stegmann left the reception desk and walked towards the applicant. He identified himself as a staff member, telling the applicant that he could not talk to him like that. Mr Pritzwald-Stegmann told the applicant that he needed to leave the hospital. The applicant then walked back towards him and said, 'Yeah, whatever, fuck off'. He then turned and walked towards the toilets. CCTV footage shows both during this exchange gesturing in the direction of the exit.
11 Mr Pritzwald-Stegmann followed the applicant as he walked into the area of the lift lobby. The applicant then turned around and walked up close to him in a physically aggressive manner. Mr Pritzwald-Stegmann again pointed towards the exit, telling the applicant that he needed to leave the hospital and that he would escort him out. The applicant responded by saying, 'I need you to suck my dick'. Some spittle from the applicant's mouth then landed on Mr Pritzwald-Stegmann's face. There was a dispute at trial as to whether the applicant deliberately spat in his face - the judge made no finding for the purposes of sentence - but it seems clear that Mr Pritzwald-Stegmann thought it to be deliberate. As the judge described it in her sentencing remarks, he complained 'angrily and repeatedly, about [the applicant] having spat at him'.
12 The applicant then turned and walked towards the toilets, followed by Mr Pritzwald-Stegmann, who was still gesturing in the direction of the exit. Again the applicant turned and walked towards him. The applicant stood in front of him and yelled angrily in his face, before turning and walking once more towards the toilets. Mr Pritzwald-Stegmann followed, complaining about being spat on and loudly demanding that the applicant leave the hospital.
13 Once more, the applicant turned around and walked back. He stood very close to Mr Pritzwald-Stegmann, who removed a bag he was carrying from his shoulder and put it on the floor. Both, the sentencing judge observed, were 'arguing loudly and aggressively'. A little after putting his bag down, Mr Pritzwald-Stegmann put his right arm out in the applicant's direction, in what the judge described as 'a defensive gesture that seemed to be trying to stop [the applicant] from standing too close to him'. The applicant then looked and gestured with his right arm in the direction of the toilets. He then put both his hands behind his back.
14 Without warning, the applicant then rapidly pulled his right hand from behind his back, and punched Mr Pritzwald-Stegmann to the head with a clenched fist, knocking him unconscious. Mr Pritzwald-Stegmann fell to the floor without any attempt to break his fall. When his head hit the floor, he sustained the catastrophic brain injuries which led to his death. The punch, and Mr Pritzwald-Stegmann's uncontrolled fall to the floor, are vividly captured in sickening detail by the CCTV footage.
15 The applicant left immediately - without checking on the welfare of Mr Pritzwald-Stegmann, who was unconscious on the floor - running from the hospital with his companions to a nearby car. He stayed the night at Corey Rogers' home, before going to his father's house. He was arrested and interviewed by police the next day, 31 May 2017.
16 After being punched, Mr Pritzwald-Stegmann remained unconscious on the floor, where he was treated immediately by medical staff. He was taken to the emergency department, before being transferred to The Alfred Hospital, where he underwent two separate surgical operations in an effort to relieve pressure on his brain. Mr Pritzwald-Stegmann was placed in a medically-induced coma, but did not respond to treatment. Eventually, Mr Pritzwald-Stegmann's family made the heartbreaking decision to cease the artificial treatment that was keeping him alive, and he died on 28 June 2017.
17 Since the applicant's case in this Court was principally concerned with the interpretation of s 9C(3) of the Act, and the judge's findings of fact bearing on the application of s 9C(3), the applicant's personal circumstances are not as important to the resolution of the present application for leave to appeal as would ordinarily be the case. That being so, they may be very briefly summarised.
18 The applicant was born in October 1994. He was aged 22 years when he killed Mr Pritzwald-Stegmann, and is now aged 25. His parents separated in acrimonious circumstances when he was young. He left school at the end of Year 10. Since then, he has not been able to complete further education, or to maintain any steady employment. He started abusing drugs and alcohol in his early teens. By the time he was 17 or 18, the applicant was regularly abusing cannabis, alcohol and methamphetamine ('ice'), and subsequently started using heroin.
19 Between May 2013 and October 2014, the applicant was convicted of more than 40 (mainly property-related) offences in Victoria; and, between 2016 and 2017, four minor offences in Western Australia. Save for a conviction for armed robbery in September 2013, most of his prior offences did not involve violence. When he committed the present offence, however, the applicant was on bail in relation to theft and property charges. That is an aggravating feature of his offending.[3]
20 The applicant's psychological condition is also of little or no relevance to the principal issues agitated in this Court. That being so, the relevant evidence may once again be summarised very briefly.
21 For the purpose of sentence, the judge received a report from Mr Luke Armstrong, a consulting psychologist, dated 31 January 2019. Having administered several psychological tests on the applicant, Mr Armstrong assessed the applicant's intelligence as being in the average range. Although the applicant had some symptoms of both Anti-Social Personality Disorder and Borderline Disorder, he did not have sufficient symptoms to justify a diagnosis of either of those disorders. Instead, Mr Armstrong thought the applicant to have 'Other Specified Personality Disorder'. Mr Armstrong believed that, as a result of the applicant's upbringing, he immediately and unconsciously lashed out when faced with external threats to his wellbeing or survival. His opinion was that the applicant also had a Severe Substance Abuse Disorder for each of alcohol, opioids and cannabis. These disorders are defined as Mental Disorders in the current version of the Diagnostic and Statistical Manual of Mental Disorders ('DSM 5').
22 Based on the account that the applicant gave to him, Mr Armstrong expressed the opinion that the applicant's personality disorder contributed causally to the offending, first, by impairing his ability to exercise appropriate judgment (in that he perceived that he was at risk of imminent harm and lashed out as a matter of survival); secondly, by impairing his ability to make calm and rational choices or think clearly, at a time when he experienced an imminent sense of danger; and, thirdly, by impairing his ability to appreciate the wrongfulness of his conduct.
23 It is convenient next to turn to the legislative regime which guided the sentencing judge's fixing of the non-parole period (and, as a concomitant, the head sentence).
24 Section 4A of the Crimes Act 1958 makes provision for a single punch or strike to a person's head or neck to be taken to be a dangerous act for the purposes of manslaughter by an unlawful and dangerous act. It is in the following terms:
4A Manslaughter - single punch or strike taken to be dangerous act
(1) This section applies to a single punch or strike that -
(a) is delivered to any part of a person's head or neck; and
(b) by itself causes an injury to the head or neck.
(2) A single punch or strike is to be taken to be a dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act.
(3) For the purposes of subsection (2), it is irrelevant that the single punch or strike is one of a series of punches or strikes.
(4) A single punch or strike may be the cause of a person's death even if the injury from which the person dies is not the injury that the punch or strike itself caused to the person's head or neck but another injury resulting from an impact to the person's head or neck, or to another part of the person's body, caused by the punch or strike.
Example
If a person punches another person to the head, and that other person falls, hits their head on the road, and dies from the injury resulting from their head hitting the road, the punch may be the cause of their death.
(5) Nothing in this section limits the circumstances in which a punch or strike may be an unlawful and dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act.
(6) In this section -
injury has the same meaning as in Subdivision (4);
strike means a strike delivered with any part of the body.
25 Of central importance to the present application, s 9C of the Act provides:[4]
9C Custodial sentence must be imposed for manslaughter by single punch or strike
(1) This section applies to the sentencing of an offender (whether on appeal or otherwise) for an offence of manslaughter if -
(a) the prosecution served and filed a notice under section 9A in relation to the offence; and
(b) the notice specifies, in accordance with section 9A(3), that it relates to this section; and
(c) the notice has not been revoked under section 9A(8).
(2) In sentencing the offender, the court must impose a term of imprisonment and fix under section 11 a non-parole period of not less than 10 years unless the court finds under section 10A that a special reason exists.
Note
Section 11(3) requires that a non-parole period must be at least 6 months less than the term of the sentence.
(3) Subsection (2) applies to the court in sentencing the offender only if the court is satisfied beyond reasonable doubt that -
(a) the victim's death was caused by a punch or strike that, under section 4A(2) of the Crimes Act 1958, is taken to be a dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act; and
(b) the offender intended that the punch or strike be delivered to the victim's head or neck; and
(c) the victim was not expecting to be punched or struck by the offender; and
(d) the offender knew that the victim was not expecting, or was probably not expecting, to be punched or struck by the offender.
(4) The court may be satisfied of the matters specified in subsection (3)(c) and (d) even if the victim was involved in a confrontation with the offender or any other person before the punch or strike was delivered.
(5) The fact that the offender warned the victim of the punch or strike immediately before delivering it does not mean that the victim was expecting to be punched or struck by the offender.
Example
The offender might only warn the victim of the punch or strike so close to the time of the delivery of the punch or strike that the victim is not expecting to be punched or struck by the offender.
(6) Subsection (2) does not apply to -
(a) a person who is involved in the commission of the offence within the meaning of section 323(1)(a) or (b) of the Crimes Act 1958; or
* * * * *
(b) a person who is under the age of 18 years at the time of the commission of the offence.
(7) In this section -
strike has the meaning given by section 4A of the Crimes Act 1958.
26 An offender may avoid the mandatory consequences flowing from s 9C, however, if he or she can bring himself or herself within the provisions of s 10A of the Act. Given that the applicant did not in this Court challenge the sentencing judge's finding that the applicant had not managed to satisfy the exclusionary provisions of s 10A, however, it is unnecessary to pay those provisions any further attention.
27 For the purposes of sentence, there was a dispute as to whether the minimum non-parole period provision in s 9C(2) of the Act, introduced by the Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 applied to the applicant's case. If s 9C(2) applied, then unless the sentencing judge found that a special reason existed under s 10A, she was required to impose a term of imprisonment upon the applicant and fix a non-parole period of not less than 10 years.
28 By a notice under s 9A(2) of the Act, dated 8 June 2018,[5] the prosecution indicated an intention to seek the minimum non-parole period specified in s 9C(2).
29 Ultimately, the sentencing judge was satisfied beyond reasonable doubt that the applicant fell within s 9C. Her reasons for doing so were spelled out in her reasons for sentence as follows:[6]
[47] The statutory minimum will apply in this case only if I am satisfied beyond reasonable doubt of the following four matters:
(a) First, that Mr Pritzwald-Stegmann's death was caused by a punch to any part of his head or neck that, by itself, caused an injury to his head or neck;
(b) Secondly, that you intended that the punch be delivered to Mr Pritzwald-Stegmann's head or neck;
(c) Thirdly, that Mr Pritzwald-Stegmann was not expecting to be punched by you; and
(d) Fourthly, that you knew that Mr Pritzwald-Stegmann was not expecting, or was probably not expecting, to be punched by you.
[48] In considering the third and fourth matters, there are two further provisions that need to be borne in mind. A court may be satisfied of those matters even if the victim was involved in a confrontation with the offender before the punch was delivered (s 9C(4)). Further, the fact that an offender warns the victim of the punch immediately before delivering it does not mean that the victim is expecting to be punched (s 9C(5)).
[49] I have no trouble being satisfied beyond reasonable doubt as to the first two of those matters:
(a) Given the way the prosecution ran their case, the jury must have been satisfied that you did punch Mr Pritzwald-Stegmann's head. That punch clearly caused an injury to his head, by rendering him immediately unconscious; and
(b) I am also satisfied that you intended to punch Mr Pritzwald-Stegmann's head. You were standing directly in front of him, facing him, with your eyes open. You swung your fist directly towards his head. There was no movement by either of you that might have rendered the contact with his head unintentional.
[50] The third matter I must consider is whether Mr Pritzwald-Stegmann was 'expecting' to be punched. The legislation is not limited to those cases where the victim is hit from behind or from the side; a person who is punched or struck from the front may also not be expecting to be hit. Although you had been loud and abusive throughout your interactions with Mr Pritzwald-Stegmann, you had given him no verbal warning of the possibility of physical violence at any stage of the confrontation. Nor had you done anything physical that might have caused him to expect that you were about to hit him. In fact, immediately before you did hit him, you put both hands behind your back, in an apparently non-threatening gesture. His earlier defensive gesture of putting his right arm out towards you - to make some space, and stop you from getting 'in his face' and spitting at him again - does not indicate that he was expecting to be punched. The fact that he did not seek assistance from security is also consistent with his believing that he was dealing with an insolent, disrespectful 'loud-mouth', not with someone who was likely to turn physically violent. For those reasons, I am satisfied that Mr Pritzwald-Stegmann was not expecting to be punched by you.
[51] The fourth matter I must consider is whether you knew that he was not expecting, or probably not expecting, to be hit by you.
[52] By the time you punched Mr Pritzwald-Stegmann, you knew that he was a member of the hospital staff, who was trying to get you to leave the hospital. You had not warned him verbally that you would hit him, if he didn't stop following or annoying you. At no stage did Mr Pritzwald-Stegmann say anything, or adopt any position, that suggested he thought he might be hit by you.
[53] In your evidence, you said you punched him first, because you thought he was about to punch you. That differed from what you told police, namely, that you punched him because you could not cope with him pressuring you to leave the hospital. Whatever your true reason was for punching him, you had done nothing to indicate that you were about to punch him at that time. On the contrary, just before you put your hands behind your back, you had been pointing in the direction of the toilets and looking away; you then put your hands behind your back in an apparently non-threatening gesture.
[54] In all the circumstances, I am satisfied that when you pulled your right arm out from behind your back, quickly and forcefully, you were well aware that he was probably not expecting to be punched by you at that moment.
30 As we have mentioned, the sentencing judge was not persuaded that the exclusionary provisions of s 10A were engaged. Given the issues joined between the parties in this Court, it is unnecessary to set out her Honour's reasons for that conclusion.
31 The applicant's three proposed grounds of appeal are formulated as follows:
32 Under cover of the first ground, counsel for the applicant submitted that the judge expressly identified four matters of which she had to be satisfied before the mandatory minimum non-parole period applied. Those four criteria were purportedly derived from s 9C(3) of the Act. Counsel submitted that the third and fourth criteria, however, involved 'significant departures' from the statutory tests in ss 9C(3)(c) and (d). The judge's approach to sub-ss (3)(c) and (d) - which counsel claimed was a departure from the Act of real significance - was concerned not with whether the victim was expecting a blow, but rather with whether the victim was expecting a blow of the type actually delivered (that is, in this case, a punch).
33 The applicant's counsel commenced their analysis of the statutory text with an examination of the expressions 'punch' (and 'punched') and 'strike' (and 'struck') in s 9C(3). Since 'punch' is not defined, counsel submitted, it carries its ordinary meaning of a blow with a fist. On the other hand, 'strike' as defined means 'a strike delivered with any part of the body'. The expression 'a punch or strike' in s 9C(3) therefore incorporates a blow with either a closed fist, or with any other part of the body.
34 Furthermore, counsel submitted that the criteria in ss 9C(3)(a) and (3)(b) require a concentration on a punch or strike to the 'head or neck', whereas the criteria in ss 9C(3)(c) and (3)(d) are not so confined. Paragraph (c) of sub-s 9C(3) is concerned with the victim's state of mind with respect to being 'punched or struck by the offender', the generality of those words indicating that it is not concerned solely with a punch or strike to the head or neck, nor indeed with the particular type of punch or strike actually delivered. Rather, so it was submitted, paragraph (c) looks to whether the victim was expecting any kind of punch or strike: that is, a blow with any part of the offender's body, to any part of the victim's body. Counsel contended that the presence of the definite article in paragraphs (a) and (b), and its absence in paragraphs (c) and (d), clearly indicates that this is so. As we understood the submission, the corollary was that, if Mr Pritzwald-Stegmann expected any kind of punch or strike, the provisions of s 9C(3)(c) were not satisfied, and the mandatory minimum provisions in s 9C(2) were not engaged.
35 Counsel for the applicant submitted further that paragraph (d) of sub-s (3) is concerned with the offender's understanding of the victim's state of mind with respect to being 'punched or struck by the offender'.
36 The applicant's counsel sought to emphasise that ss 9C(3)(c) and (d) are concerned with whether any blow was expected, rather than with whether a blow that meets the criteria for a dangerous act pursuant to s 4A(2) of the Crimes Act 1958 was expected. All that matters for the purpose of ss 9C(3)(c) and (d), it was submitted, is whether a blow was expected: the degree of force expected, or the form of such force, is irrelevant. Counsel submitted that 'a push, a hip and shoulder, a head-butt, a jab to the stomach, or a kick to the shins, would all constitute a relevant blow in that context'. Hence the narrower approach taken by the judge - which was confined to the expectation of a 'punch' - was erroneous.
37 Counsel for the applicant also submitted that the sentencing judge wrongly treated ss 9C(3)(c) and (d) as being concerned with the mental states of the offender and victim at the particular 'moment' of the punch or strike. It was submitted that, to the contrary, sub-ss (3)(c) and (d) are concerned with the period of time immediately leading up to the blow. The sentencing judge's consideration was, however, inappropriately constrained to the moment in time at which the blow was delivered.
38 In oral argument, counsel for the applicant effectively argued grounds 2 and 3 together. Counsel submitted that the evidence at trial - counsel directed our attention to the evidence of four witnesses - demonstrated that, in the moments leading to the fatal punch, bystanders believed that the incident was about to become physically violent. The victim's action in placing his bag on the ground, and putting his arm out, so counsel argued, suggest a similar 'mindset'. Notwithstanding these matters, however, the sentencing judge erroneously found that the victim was not expecting to be 'punched'. That finding, counsel submitted, was not open, having regard to four matters.
39 First, the judge found that the applicant had not 'done anything physical that might have caused [the victim] to expect that [the applicant was] about to hit him'. That cannot, however, be reconciled with the CCTV footage, which shows the applicant, in the 30 seconds prior to the punch, suddenly turn towards and aggressively approach the victim, lean into him, and yell in his face. The footage, counsel submitted, shows a series of physical actions that were likely to cause the victim to expect that the applicant might deliver a blow.
40 Secondly, the judge found that the applicant putting his arms behind his back was 'an apparently non-threatening gesture'. Counsel contended, however, that the footage belies that finding, in that there was nothing 'apparently non-threatening' in the applicant's ostentatiously aggressive demeanour at that time.
41 Thirdly, the sentencing judge found that the victim's 'earlier defensive gesture of putting his right arm out towards' the applicant was intended 'to make some space, and stop [the applicant] from getting "in his face" and spitting at him again'. Counsel for the applicant contended that the dearth of evidence of the victim's subjective thoughts precluded a finding of such particularity. The evidence was equally consistent with two inferences: either the victim anticipated a physical fight, and wanted space to manoeuvre; or the victim wanted a physical fight with the applicant.
42 Fourthly, the judge found that the victim's failure to seek assistance from security was consistent with him believing that he was not dealing with someone who was likely to turn violent. Given the victim's heated demeanour and angry tone of voice when he was pursuing the applicant, however, counsel submitted that it was far more likely that the victim was acting in the grip of an emotionally charged moment, rather than acting in consequence of an assessment of the prospects of the applicant turning to violence.
43 Even accepting the sentencing judge's construction of s 9C(3) of the Act, counsel submitted, the preconditions for engaging s 9C(2) were not met. The evidence - including both the CCTV footage and eyewitness accounts - suggested not only that the violence was obvious, but that the applicant intended the victim to apprehend that he was about to deliver a blow. It was contended that the judge's reasoning - particularly in considering sub-s 9C(3)(c) - was almost entirely founded on the actions observable in the CCTV footage, rather than on the other evidence in the case. Counsel for the applicant submitted that this Court should not accept the conclusion that the victim was not expecting a blow.
44 In brief summary, counsel for the respondent submitted that the failure to use the definite article in s 9C(3)(c) (and s 9C(3)(d)) was of no significance. When properly construed, the reference in paragraph (c) to being 'punched or struck' plainly refers to the 'punch or strike' contemplated by sub-s 9C(3)(a) and (b). So much is borne out by sub-s (4), which refers to 'the punch or strike' delivered (using the definite article); and sub-s (5), which refers both to 'the punch or strike' delivered (using the definite article) and to being 'punched or struck'. That interpretation is further supported by the Second Reading speech:[7]
The second set of factors resulting in a statutory minimum sentence will apply to cases of manslaughter committed in circumstances involving a coward's punch. These factors will apply where the offender intended that the punch or strike be delivered to the victim's head or neck, the victim was not expecting the punch or strike, and the offender knew the victim was not expecting, or probably not expecting, the punch or strike. This will ensure that the new statutory minimum sentence will apply to an unprovoked and unexpected coward's punch that kills.
45 With respect to grounds 2 and 3, counsel for the respondent submitted that the judge's findings of fact plainly were open to her. Indeed, when pressed by a member of the Court, senior counsel contended that the findings set out above[8] were inevitable.
46 We need not set out all of the evidence to which senior counsel for the respondent referred, but in the course of oral argument he drew the Court's attention to the following passage of the applicant's cross-examination at trial, which deals with the applicant's actions in putting his hands behind his back shortly before punching Mr Pritzwald-Stegmann:
You have put them behind your back. Have you got your fist clenched behind your back?---No, I was just sort of putting my hands away, because, you know, I just didn't want my hands - - -
Putting your hands away?---Yep.
Well you obviously don't feel threatened at that point if you've got your hands away?---Well, I'm trying to sort of, um, in my own way at the time just sort of, you know, I was sort of trying to talk to him and just - but sort of stop the altercation that I felt was happening, and I guess in my own way that was how I was doing it, I suppose.
And you do that by moving in closer to him, is that what you say?---I don't really know. I don't think I was thinking about it that much, it was just sort of, you know, I was just trying to just tell him to get away from me, you know, and it was just sort of happening on a sort of sub-conscious level, I think.
Maybe you moved in closer to him at that stage because you'd already decided to punch him?---Um, no, I don't think so, because I hadn't decided to punch him until he pushed me and then I told him to get away and he still didn't go.
So he pushed you and you told him to get away and then you punched him?---Yeah.
Is that the sequence, you say?---When he sort of pushed me, I told him to get away again and then I thought, you know, he made no indication that he was going to leave me alone, he was still yelling, he was getting physical and then I thought all that could come next, you know, was he's either going to hit me, or, you know, or do something violent, you know.[[9]]
47 On the facts of the present case, in order for s 9C(2) to be engaged - leading consequentially to the imposition of a sentence of imprisonment and the fixing of the minimum non-parole period of 10 years - the sentencing judge had to be satisfied beyond reasonable doubt of four criteria:
• first, that Mr Pritzwald-Stegmann's death was caused by a 'punch' - it could not be sensibly contended that the blow that the applicant delivered fitted any other description - delivered to his head, which caused injury to his head (including injury when his head hit the floor);
• secondly, that the applicant intended that his punch would be delivered to Mr Pritzwald-Stegmann's head (or neck);
• thirdly, Mr Pritzwald-Stegmann was not expecting to be punched (or struck) by the applicant; and
• fourthly, that the applicant knew that Mr Pritzwald-Stegmann was not expecting, or was probably not expecting, to be punched (or struck).
48 At the risk of repetition, the applicant's counsel contended that the judge erred in her approach to the third and fourth of those criteria. We do not agree.
49 With respect to the third criterion, the judge found that Mr Pritzwald-Stegmann 'was not expecting to be punched' by the applicant. It is evident that the judge proceeded, first, as a matter of fact, on the basis that Mr Pritzwald-Stegmann was not expecting the particular punch that the applicant unleashed; and, secondly, as a matter of law, implicitly by construing s 9C(3)(c) as contemplating that the punch (or strike) that 'the victim was not expecting' was the same punch (or strike) to which sub-ss 9C(3)(a) and (b) refer. It will be remembered that the applicant's counsel contended that, although Mr Pritzwald-Stegmann might not have been expecting the particular punch delivered by the applicant, he should have been 'expecting' some kind of 'strike' (whether a push, or a kick in the shins, or something else). That being so, counsel argued, the provisions of s 9C(2) were not enlivened, because s 9C(3)(c) is intended to pick up any punch or strike, not just the punch or strike to which sub-ss (3)(a) and (b) apply.
50 Neither aspect of the applicant's submissions on the third criterion can be accepted.
51 As a matter of construction, it is plain that the punch (or strike) that 'the victim was not expecting' must be the same punch (or strike) to which ss 9C(3)(a) and (b) refer. There is no substance to the contention that the absence of the definite article in paragraph (c), and the use of the passive form infinitive phrase 'to be punched or struck', indicates a legislative intention that paragraph (c) is intended to embrace any punch or strike, and not just the particular punch or strike at which paragraphs (a) and (b) are aimed. Quite clearly, the meaning to be attributed to the words 'punched' and 'struck' employed in paragraph (c) must be influenced by the use of the words 'punch or strike' in paragraphs (a) and (b). It would make a mockery of the evident intent of s 9C, when the section is considered as a whole, to conclude that paragraph (c) was concerned with any kind of punch or strike.
52 Indeed, the conclusion that paragraph (c) in sub-s (3) is concerned with the particular 'punch or strike' for which paragraphs (a) and (b) make allowance is inescapable when proper regard is paid to sub-ss 9C(4) and (5). Hence, sub-s (4) provides that a court 'may be satisfied of the matters specified in sub-ss (3)(c) and (d) even if the victim was involved in a confrontation with the offender ... before the punch or strike was delivered'. Even more compelling is the language of sub-s (5), which employs both the definite article and the passive form infinitive phrase. Thus, s 9C(5) provides that the 'fact that the offender warned the victim of the punch or strike immediately before delivering it does not mean that the victim was expecting to be punched or struck by the offender'.
53 Moreover, not only was the judge correct to approach the third criterion sub silentio on the basis that s 9C(3)(c) was concerned with the particular punch delivered by the applicant, but her findings of facts are unimpeachable.
54 The judge concluded that Mr Pritzwald-Stegmann was not 'expecting' to be punched. She did so on the basis that, although the applicant had been loud and abusive, he gave his victim no verbal warning of the possibility of physical violence at any stage of the confrontation. Her Honour concluded that the applicant had done nothing physical that might have caused Mr Pritzwald-Stegmann to expect that the applicant was about to punch him. Indeed, immediately before he threw the punch, the judge observed, the applicant put both hands behind his back, in an apparently non-threatening gesture. The victim's earlier action of putting his arm out did not indicate that he was expecting to be punched. Her Honour also thought that the fact that Mr Pritzwald-Stegmann did not seek assistance from security was also consistent with his believing that he was dealing with an insolent, disrespectful 'loud-mouth', not with someone who was likely to turn physically violent.
55 As the Court was at pains to make clear to the applicant's counsel in the course of the hearing, members of the Court had viewed the CCTV footage and had as a result formed certain provisional views about the nature of the interaction between the applicant and the victim, those provisional views not being inconsistent with the conclusions arrived at by the judge. By way of example, a member of the Court observed that the victim's demeanour appeared to be entirely consistent with a man not expecting to be punched, and that the applicant's action in putting his hands behind his back seemed calculated to lull Mr Pritzwald-Stegmann falsely into thinking that the applicant was not about to descend into physical violence. Counsel for the applicant was invited more than once to seek to address the Court's provisionally held views, by playing the CCTV footage and making submissions as to why those provisional views should not inure. In the event, counsel did not take up the invitation.
56 Having viewed the CCTV footage for ourselves, we are of the opinion not only that the sentencing judge's conclusion that Mr Pritzwald-Stegmann did not expect to be punched was open, but that any other conclusion would have been perverse. Mr Pritzwald-Stegmann's demeanour is entirely consistent with an individual endeavouring to deal with an angry, loudmouthed, uncouth lout, who was 'all talk and no action'. His action in putting his bag on the ground was performed with apparent calmness, and not in the manner of an individual who wished to precipitate, or who expected, a physical confrontation. Moreover, his gesture with his arm also appears to have been performed in a manner consistent with somebody endeavouring to ensure that his face could not again be spat in, rather than someone who was inviting physical aggression. But most powerful of all, examination of the footage compels the inference that when the applicant put his hands behind his back, he did so in order to disguise his true intention, and so as to lead Mr Pritzwald-Stegmann into thinking that he was not about to receive a blow to the head. The applicant then unleashed the dreadful blow suddenly and without any warning, at a time when Mr Pritzwald-Stegmann had his arms by his side, and in circumstances where he had no chance of defending himself.
57 As to the fourth criterion, in our view it was well open to the judge to be 'satisfied that when [the applicant] pulled [his] right arm out from behind [his] back, quickly and forcefully, [he was] well aware that [Mr Pritzwald-Stegmann] was probably not expecting to be punched by [him] at that moment'. A viewing of the CCTV footage makes plain that the applicant had done nothing to warn his victim of an impending blow. Indeed, his actions appear to be designed to hide his true intention. In the circumstances, we consider that a contrary inference would not have been open to the sentencing judge.
58 In light of the foregoing, none of the submissions advanced by the applicant's counsel in support of the proposed grounds of appeal can be accepted.
59 The application for leave to appeal against sentence must be refused.
60 As we have indicated, the judge was not persuaded that the applicant had established a special reason why the statutory minimum non-parole period did not apply, so that she was 'bound to impose a non-parole period of not less than 10 years'. She then observed:[10]
The question that then arises is what the appropriate head sentence should be for manslaughter. The statutory minimum provisions are silent as to what the head sentence should be in a case where a statutory minimum applies; they are concerned only with the non-parole period. The only other relevant provision is s 11(3) of the [Act], which provides that any non-parole period must be at least six months less than the total term of the sentence.
The parties agree that I am required to set the head sentence by reference to the instinctive synthesis process by which judges ordinarily set sentences.
Having regard to the circumstances of the offending, your personal circumstances, and general sentencing principles, for the offence of manslaughter I sentence you to 10 years and 6 months' imprisonment.
61 It will be seen that the application of s 9C(2) in this case has had two undesirable consequences, one related to sentencing principle, and the other practical.
62 First, so far as principle is concerned, the application of s 9C has inverted the conventional and time-honoured method by which head sentences and non-parole periods are imposed. Rather than a judge, through instinctive synthesis, arriving first at an appropriate head sentence, and then fixing a non-parole period which represents the minimum period that justice demands a prisoner must serve before being eligible for conditional release, when s 9C is engaged the exercise of the sentencing discretion is driven by the imposition of the non-parole period. Although mandatory (unless s 10A applies), such an approach is antithetical to general (and venerable) sentencing principles, and, quite plainly, skews the discretionary sentencing exercise.
63 Secondly, as a practical matter, the judge's application of s 9C has led to an unacceptably short prospective period of supervision on parole for the applicant. Plainly, in this case, unfettered by the shackles of s 9C, the sentencing judge would have imposed a head sentence with a non-parole period shorter than 10 years, potentially allowing for a much longer period of supervision on parole. In the
present case, the applicant, who has limited education, who has not held down a steady job and who has been habituated to illicit drugs for years, will be about 33 years of age when his non-parole period expires. Were he to immediately secure parole at the expiry of his non-parole period, he will be subject to supervision for only six months. The undesirability of a man with the applicant's background being returned to the community without extended supervision and support after a decade's incarceration is self-evident. There is no doubt, in our view, that a man in the applicant's position, and thereby the community, would be best served by the applicant being subject to supervised release for a period much greater than six months. It goes without saying, however, that it would have been completely wrong and offensive to principle for the judge to have imposed a disproportionately long head sentence - one greater than justified by the circumstances of the offence and of the offender - so as artificially to allow for a longer potential period of parole.
64 I have had the considerable advantage of reading in draft the reasons for judgment of Priest and Kyrou JJA.
65 While I take a different view of the construction of s 9C(3)(c) and (d), and would grant leave to appeal, I too would dismiss the appeal. This is because, in the particular circumstances of this case, I regard as inevitable the critical findings of fact that were required to fall within the ambit of the provisions as I have construed them.
66 In my view, the words 'punched or struck' in paragraphs (c) and (d) of s 9C(3) must be read as referring to any punch or strike to the head or neck. Those words are not to be confined to the particular punch or the particular strike that caused death, which is the construction preferred by Priest and Kyrou JJA. Nor, however, do they extend to any punch or strike to any part of the body, which is the construction for which counsel for Mr Esmaili plumped.
67 Thus, putting aside the burden and standard of proof for the moment, on the construction I prefer, if a victim were killed by an unexpected kick to the neck from an offender but expected a punch to the head from him, and the offender believed the victim expected a punch to the head (but not a kick to the neck), then neither paragraph (c) nor paragraph (d) would be engaged. Equally, however, if the same victim expected only a punch to the stomach, and the offender knew that the victim was not expecting a punch or strike to the head or neck, then paragraphs (c) and (d) would be engaged.
68 In my opinion, this construction is consistent with the balance of s 9C and its evident purpose, and also with the remarks made in the explanatory memorandum and the Attorney's second reading speech to the Bill that became the Act that introduced these provisions. I shall return to these provisions and extrinsic materials in more detail shortly.
69 Counsel for Mr Esmaili submitted that paragraphs (c) and (d) of s 9C(3) respectively look to whether the victim was expecting, and whether the offender knew that the victim was not (or probably was not) expecting, any kind of punch or strike - i.e. one to any part of the body. On this construction, if the judge hearing the matter was, on the evidence, unable to exclude the reasonable possibility that the victim was expecting, say, a punch to the stomach or a kick to the shins, then paragraph (c) could not apply. Similarly, if the judge considered it reasonably possible that the offender believed that the victim was expecting a punch to the stomach or a kick to the shoulder, then paragraph (d) could not apply either.
70 My concern about Mr Esmaili's counsel's construction is that it would deny the operation of s 9C(2) in circumstances where it is plain that it was intended to apply. When regard is had to the terms of s 9C, as well as the explanatory memorandum and the Attorney's second reading speech, it seems clear enough that the legislature did not have in mind that a victim's expectation of some minor punch to the stomach or kick to the shins would oust the operation of s 9C(3)(c) in circumstances where the victim had not the slightest expectation that he was about to be punched to the head, which blow otherwise satisfied the criteria in s 9C(3)(a) and (b). And yet that is the result dictated by the construction urged by counsel for Mr Esmaili.
71 Thus, in so far as Priest and Kyrou JJA do not accept that that is the correct construction of paragraphs (c) and (d), I agree with them. But, in my opinion, their Honours' construction goes too far in the other direction and cannot be correct either. Let me explain.
72 Consistently with what I understood to be the Director's submission, and by placing particular reliance on the use of the definite article in ss 9C(4) and (5), Priest and Kyrou JJA hold that, for the purposes of s 9C(3)(c) and (d), 'the punch (or strike) that "the victim was not expecting" must be the same punch (or strike) to which ss 9C(3)(a) and (b) refer'.[11] Their Honours also hold that 'the judge was correct to approach the third criterion sub silentio on the basis that s 9C(3)(c) was concerned with the particular punch delivered by the applicant'.[12] Thus, in context, I understand their Honours' reference to 'the same punch (or strike) to which ss 9C(3)(a) and (b) refer' to be a reference to the very punch (or strike) that caused the victim's death (paragraph (a)) accompanied by the requisite intention (paragraph (b)).
73 My difficulty with their Honours' construction, however, is that it might result in the application of s 9C(2) to behaviour that could not have been intended to be caught by paragraphs (c) and/or (d). For example, on this construction, if a victim, in the course of violent confrontation, expected a vicious punch to the head by an offender but, in the course of that confrontation, was unexpectedly kneed or kicked to the head or neck, which blow otherwise satisfied the criteria in s 9C(3)(a) and (b) (and therefore killed him), then paragraph (c) would be met as well. Paragraph (d) would also be satisfied if the offender believed that the victim expected a punch to the head, but not the knee or kick to the head or neck. Examples like this can be multiplied.
74 As I have said, I do not think it can reasonably be supposed that this behaviour fits with the intention behind s 9C. In the explanatory memorandum to the Bill that became the Act that ushered in ss 4A and 9C, the following (among other things) was said in respect of the proposed s 9C:[13]
This provision applies where an offender, without any warning, hits someone from behind and to the back of their head, as well as other scenarios where an offender fatally assaults a person (such as, where the offender sprints up to someone from the side, and punches their head).
The [B]ill also makes clear that the sentencing judge may be satisfied that the aggravating factors apply even where there was a prior confrontation between the offender and the victim. The intention is that the aggravating factors capture the gravamen of the coward's punch attack, which is that the offender caught the victim unawares, completely off guard and, in a sense, defenceless.
76 In my opinion, it would be wrong to say of the hypothetical I gave a moment ago that 'the offender caught the victim unawares, completely off guard and, in a sense, defenceless'. Nor does that hypothetical sound sufficiently meaningfully like the examples given in the explanatory memorandum to warrant inculpation as a so-called 'coward's punch attack'.
77 Of course, extrinsic materials are of only limited assistance and the provisions must be construed principally by reference to the words used in those provisions themselves and the surrounding provisions. But, in my view, it is clear that paragraphs (c) and (d) are to be read in the way I have suggested.
78 Contrary to the views of Priest and Kyrou JJA, in my opinion, the use of the definite article in ss 9C(4) and (5) does not render inescapable 'the conclusion that paragraph (c) in sub-s (3) is concerned with the particular "punch or strike" for which paragraphs (a) and (b) make allowance'.[16] Instead, it seems at least equally open to read the use of the definite article in subsections (4) and (5) as merely a means of linking the concept being explained in each provision back to the type of act that will qualify as a dangerous act for the purposes of s 4A and which is incorporated into s 9C(3)(a).
79 In those circumstances, it strikes me as more persuasive that the absence of the use of the definite article in paragraphs (c) and (d) must have been a deliberate choice by the legislature so as to ensure the provision would not be read in the manner contended for by the Director and accepted by Priest and Kyrou JJA. Had the legislature intended that those paragraphs be read in that fashion, it would have been a simple matter to draft them in clear terms to convey that meaning.
80 Counsel for Mr Esmaili submitted that, to read paragraphs (c) and (d) in the way ultimately construed by Priest and Kyrou JJA requires an unjustified reading in of the italicised and underlined words in the following passage: 'the victim was not expecting the punch or the strike that killed him by the offender'. As I understood their submission, it also involves an unjustified jettisoning of the words 'to be punched or struck'. I agree.
81 Another difficulty, as I see it, with that construction is that it assumes, unrealistically and unworkably, that there would ever be an occasion on which a victim expected the particular punch or strike that killed him. While the greatest bowlers in cricket history might claim to be able to land the ball on a 20-cent piece at will, the truth is that they cannot. While it is no doubt harder to do such a thing than it is to land a punch precisely where intended on someone who is, by definition, within arm's reach at the moment of impact, the reality is that the same type of limitation besets the greatest boxers and martial artists. A talented boxer might throw a hundred punches in a bout, none, or perhaps one or two, of which will land close to precisely where he was intending. If the champion boxer cannot be too precise about where his punches will land, it is unreasonable to expect that the victim who is fatally felled by a particular punch or strike will have appreciated that that particular punch or strike was coming or where it might land. If that is correct, the construction arrived at by Priest and Kyrou JJA will almost never admit of a defence, whatever other physical violence the victim might have expected. This simply cannot be right.
82 That said, my construction also involves a reading in of words. In particular, I construe paragraph (c) (and, with necessary adaptation, paragraph (d)) as if the relevant words were: 'the victim was not expecting to be punched or struck to the head or neck by the offender'. But there is no jettisoning of words on this construction.
83 Further, in my view, the words 'head or neck' relate directly, and quite seamlessly, to the immediately preceding provisions, namely paragraphs (a) and (b). Consider again the Attorney's second reading speech, where this was said:[17]
This [B]ill sends two very clear messages. First, a punch or strike to the head is a dangerous act that can kill. It can no longer be an excuse to plead ignorance to this fact or to the fact that a victim may die as a consequence of hitting the ground because a punch or strike. Public awareness of the dangers of a single punch has grown in recent times thanks to committed social campaigns and media attention, and this [B]ill ensures that the legislation clearly reflects and reinforces the community's understanding of what is dangerous.
84 Now, while the Attorney, at this point, was referring more directly to the modified notions of dangerousness and causation referred to in s 4A, the fact is that those notions are incorporated in s 9C(3)(a) and, less directly, in paragraph (b). Thus, while the offender who causes a victim's death by a punch or strike to the head is taken to have committed a dangerous act, given the Attorney's view that it is no longer an excuse to plead ignorance of the fact that a punch or strike to the head is a dangerous act that can kill, it must also be reasonable to construe paragraph (c) as ousting from the ambit of this so-called coward's punch law situations in which the victim was expecting a deemed dangerous act of any kind (namely, a punch or strike to the head or neck) but not the particular dangerous act that killed him. Indeed, it would be incongruous if it were otherwise.
85 In my opinion, this construction also achieves an appropriate balance between, on the one hand, ensuring that the gravamen of the coward's punch attack - 'which is that the offender caught the victim unawares, completely off guard and, in a sense, defenceless' - is caught by the provisions and, on the other, ensuring that these punitive provisions do not apply to those cases in which the victim had, or reasonably possibly had, an expectation of being punched or struck to the head or neck, even if he did not expect the particular punch to the head or neck that killed him. The former is properly described as a coward's punch attack; the latter is not. The former falls within the ambit of the provisions; the latter does not.
86 For these reasons, I am satisfied that paragraphs (c) and (d) should be construed in the manner I have suggested.
87 That said, at least in one respect, it might be said that the judge applied a construction that was more favourable to Mr Esmaili. When dealing with paragraph (c), her Honour said that she was satisfied that 'Mr Pritzwald-Stegmann was not expecting to be punched by [Mr Esmaili]'.[18] Similarly, for the purposes of paragraph (d), the judge concluded that she was satisfied that, 'when [Mr Esmaili] pulled [his] right arm out from behind [his] back, quickly and forcefully, [he was] well aware that [Mr Pritzwald-Stegmann] was probably not expecting to be punched by [Mr Esmaili] at that moment'.[19] Her Honour did not, in terms, limit those findings to an expectation of a punch to the head. On the other hand, she did not speak of a strike at all.
88 As will be seen, however, even if the judge did apply an erroneous construction of paragraphs (c) and (d), it made no difference in this case. Further, given the importance of the point to the administration of criminal justice in this State, I would grant leave to appeal on this point alone in any event.
89 The reason why an erroneous construction could make no meaningful difference in this case, and also the reason why the appeal must be dismissed, is that the findings that would engage the relevant provisions under my preferred construction were inevitable.
90 Like Priest and Kyrou JJA, I too have studied the CCTV recordings closely. They make for terribly sad viewing. The punch delivered by Mr Esmaili was sickening. Its consequences were of course catastrophic for Mr Pritzwald-Stegmann and his loved ones.
91 I have also had regard to the particular pieces of evidence given by those present at the hospital at the time of the assault to which counsel for the applicant specifically referred the Court, and to the evidence of Mr Esmaili, to which senior counsel for the Director referred.
92 While there are some weak indicators in the evidence that the hapless Mr Pritzwald-Stegmann might have anticipated some sort of violence from Mr Esmaili, I think that it was not only well open to the judge to be satisfied, beyond reasonable doubt, that the victim was not expecting to be punched by him, but that such a finding was inevitable. While, in some quarters, seeing an aggressive man put his hands behind his back may, perversely, be seen as a sure sign that an attempt at serious violence is about to occur, there was no reason to think that it was reasonably possible that Mr Pritzwald-Stegmann thought such a thing. Instead, I think the evidence compelled the finding that he took that particular gesture for what it was intended to convey - namely, that Mr Esmaili was not intent upon physical violence. Equally, applying the construction of paragraph (c) that I favour, on the evidence before the judge, it was inevitable that there would be a finding, beyond reasonable doubt, that Mr Pritzwald-Stegmann was not expecting, at any point prior to or at the time of the punch that killed him, any punch or strike to the head or neck by Mr Esmaili.
93 Similarly, in my view, in the context of what had gone before, it was not only well open to conclude, beyond reasonable doubt, that that particular gesture by Mr Esmaili was designed to lull Mr Pritzwald-Stegmann into believing (mistakenly) that no physical violence would be forthcoming, but it was also inevitable that any trier of fact would conclude that Mr Esmaili knew that his victim was not expecting, or was probably not expecting, any punch or strike to the head or neck by him.
94 The only qualification I would place on the latter finding is this. To have a requirement that an offender knew what a victim was not expecting (or what he was probably not expecting) is a troublesome concept. It would be difficult, if not impossible, to prove that an offender actually knew such a (negative) thing. He may well believe it as firmly as he can; but it is difficult to say that he actually knows it. But I take it that the word 'knew' in this context is to be treated as satisfied by a belief (of an absolute kind). Thus, paragraph (d) is to be read as if it says that 'the offender believed that the victim was not expecting, or was probably not expecting, any punch or strike to the head or neck by the offender'. Put another way, the type of 'knowledge' required by paragraph (d) can be satisfied by belief (of an absolute kind).
95 While Mr Esmaili's behaviour might not quite fit the classic or more informal description of a coward's punch attack - namely, a king-hit from behind or the side when the victim had not the slightest inkling of any impending violence - it was still a low act that, as it happens, inevitably was caught by the provisions in s 9C(3)(c) and (d).
96 In the end, if the judge made any error, it was of no consequence; and, in any event, no different result could be reached on the evidence. The judge was right to find that s 9C(2) applied in this case.
98 Finally, I should add that I agree with the remarks made by Priest and Kyrou JJA in their postscript concerning the inversion of conventional sentencing principle effected by s 9C(2). Recently, I made similar remarks in a related context.[20]
99 I also agree that an unfortunate by-product of s 9C(2) in this case is that the still relatively young Mr Esmaili will have, at most, only six months' supervision in the community after serving at least ten years in prison. In my view, it would be far more conducive to his prospects of rehabilitation, and therefore more likely to achieve protection of the community in the longer run, if the judge had been allowed to fix a more conventional non-parole period of, say, seven years on a proportionate head sentence of the order imposed by her Honour. In that way, after seven or so years in custody, if his progress warranted release on parole, Mr Esmaili might be supervised for around three years while attempting to reintegrate into the community. Under the existing sentence, however, he will have very little, if any, supervision post release, which in turn is likely to make it more difficult for him to reform and reintegrate into the community.
100 Other jurisdictions have tried similar approaches to sentencing and failed. It is a great pity that we are making the same mistakes.
[1] By virtue of s 5 of the Crimes Act 1958, the maximum penalty is 20 years' imprisonment.
[2] The applicant also pleaded guilty to the summary offence of committing an indictable offence whilst on bail, and was sentenced to one month's imprisonment (to be served concurrently with the sentence for manslaughter).
[3] R v Gray [1977] VicRp 27; [1977] VR 225, 229-230; R v Treloar and Butler (1989) 43 A Crim R 75, 80 (Crockett J); R v Basso & Frazetto [1999] VSCA 201; (1999) 108 A Crim R 392, 397-8 [21]-[26] (Chernov JA), 404-5 [57]-[63] (Charles JA); DPP v Galea and Mosut [2000] VSCA 87; (2000) 112 A Crim R 507; R v Pop [2000] WASCA 283; (2000) 116 A Crim R 398; Georges v The Queen [2015] VSCA 82, [31] (Priest JA); Samuels-Orumnwense v The Queen; Osifo v The Queen [2015] VSCA 152, [110] (Priest JA); DPP v Milson [2019] VSCA 55, [66] (Priest and Weinberg JJA). See also s 16(3C) of the Sentencing Act 1991.
[4] Emphasis added to parts of sub-ss (3), (4) and (5).
[5] The notice had not been revoked under s 9A(8). See s 9C(1)(c).
[6] DPP v Esmaili [2019] VSC 218 ('Reasons').
[7] Hansard, Legislative Assembly, 20 August 2014, 2824 (emphasis added).
[13] Explanatory Memorandum, Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Bill 2014, p 10 (my emphasis).
[15] Hansard, Legislative Assembly, 20 August 2014, 2824 (my emphasis).
[17] Hansard, Legislative Assembly, 20 August 2014, 2823-2824 (my emphasis).
[20] See Mammoliti v The Queen [2020] VSCA 52, [66]-[69].
Esmaili
The Queen [2020] VSCA 63