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[2018] VSCA 230
General information, not legal advice.
Court of Appeal (Vic)
2018-09-11
Mr J, Priest JA, Beach JA, Kaye JA
Original judgment source is linked above.
[2017] VCC 1315 (Judge Smith)
CRIMINAL LAW - Conviction - Application for leave to appeal - Brutal continuing assault by prisoners on prison officers - Jury directions - Case put against applicant that he assaulted complainant and assisted and encouraged co-offender - Whether unanimity direction required as to factual basis upon which jury might find guilt - Unanimity direction now contended for not sought by trial counsel - In context of continuous assault, not reasonably arguable that direction now contended for required to be given.
CRIMINAL LAW - Conviction - Judge's erroneous direction that admission of one accused may be taken into account in case against co-accused - Erroneous direction given concerning issue not in dispute at trial - No exception taken by trial counsel to erroneous direction - Not reasonably arguable that any miscarriage of justice occasioned by giving of erroneous direction concerning issue not in dispute.
CRIMINAL LAW - Conviction - Charge that accused and co-accused intentionally caused serious injury - Co-accused pleaded guilty to charge - Charge proceeded with against accused on limited basis of that accused's own assaults - Whether convicted of different crime from that charged - Not reasonably arguable that any substantial miscarriage of justice occasioned by the pursuit of more limited case against accused - Application for leave to appeal refused.
CRIMINAL LAW - Sentence - Applications for leave to appeal - Brutal, cowardly, continuing attacks by prisoners against prison officers - Not reasonably arguable that total effective sentences of 10 years and 8 years' imprisonment with respective non-parole periods of 7 years and 5 years manifestly excessive - Totality complaint not reasonably arguable - Relevance of deprived backgrounds - Appalling prior criminal records - Aggravating circumstance of prisoners assaulting prison officers performing their duties - Errors contended for by applicants not reasonably arguable - R v De Simoni (1981) 147 CLR 383 referred to - Bugmy v The Queen (2013) 249 CLR 571 referred to - Applications for leave to appeal refused.
1 On 1 October 2015, the applicants, Rangi Pua and Daniel Hope, were prisoners in the Grevillea Unit of Barwon Prison. Mr Wade Sechtig, Ms Tania Wahlert, Mr Jonathan Thompson and Mr Shaun Keenan were prison officers on duty at the prison on that day. A violent altercation, in which the applicants were the aggressors, occurred. The applicants were subsequently indicted on eight charges to which, on arraignment in front of the jury, they pleaded as follows:
Recklessly cause serious injury to Mr Sechtig (alternative to charge 1)
Recklessly cause injury to Ms Wahlert (alternative to charge 3)
Recklessly cause injury to Mr Thompson (alternative to charge 5)
Recklessly cause injury to Mr Keenan (alternative to charge 7)
2 While the Crown accepted Hope's pleas of guilty to charges 1 and 7, it did not accept Pua's pleas of guilty to charges 6 and 8. Following the trial of the applicants, Pua was found guilty of charges 1, 4, 5 and 7. Hope, who had pleaded guilty to charges 1 and 7, was also found guilty by the jury of charges 4 and 5. Both applicants were found not guilty of charge 3. Having regard to Pua's pleas on charges 1 and 7, his conviction on charge 5, and Hopes convictions on charges 1, 5 and 7, no verdicts were taken on the alternatives to those charges (charges 2, 6 and 8).
3 Following plea hearings, on 12 September 2017, Pua was sentenced to a total effective sentence of 8 years' imprisonment, with a non-parole period of 5 years which was directed to commence on the day he was sentenced; and Hope was sentenced to a total effective sentence of 10 years' imprisonment, with a non-parole period of 7 years.
4 Pua now seeks leave to appeal against conviction. His proposed grounds of appeal appear to relate primarily to his convictions on charges 1 and 7. Specifically, Pua's proposed grounds are as follows:
(a) the acts occurring outside the unit (or the acts occurring inside and outside the unit); or, on the other hand,
(b) the acts occurring inside the unit (or the acts occurring inside and outside the unit).
PARTICULARS
(a) Hope was arraigned in front of the jury on charges 1 and 7 to which he pleaded guilty;
(b) The trial judge directed the jury it could rely upon Hope's plea of guilty to charge 1 in proof of charges against Pua.
(c) The trial judge did not direct the jury that they could not take Hope's plea of guilty into account in determining Pua's guilt.
(d) The trial judge did not direct the jury that Hope's record of interview was not evidence in the trials of Pua.
5 In addition to his application for leave to appeal against conviction, Pua also seeks leave to appeal against his sentence. While Hope does not seek leave to appeal against conviction, like Pua, he too seeks leave to appeal against the sentence imposed upon him. Before dealing specifically with the three applications for leave to appeal, it is necessary to summarise briefly the Crown case at trial.
7 As we have already said, on 1 October 2015, Pua and Hope were prisoners in the Grevillea Unit of Barwon Prison. On that day, Hope was angry as a result of the movement of another prisoner from the unit. At approximately 3:45 pm, Pua and Hope were in the exercise yard when they were told by Mr Sechtig and Ms Wahlert that it was time to return to their unit.
8 Mr Sechtig and Ms Wahlert were standing close to the door which led into the unit as Pua and Hope were making their way back from the exercise yard. As Hope approached Mr Sechtig, he punched Mr Sechtig with force to the face multiple times. Mr Sechtig was punched through the door and into the unit. Hope continued to assault him once inside the unit.
9 Pua entered the unit quickly behind Hope and joined in the attack on Mr Sechtig. Both Pua and Hope continued to assault Mr Sechtig while he was on the ground and defenceless.
10 Ms Wahlert entered the unit and unsuccessfully attempted to stop the assault on Mr Sechtig. A number of other prison officers quickly arrived at the scene, including Mr Keenan and Mr Thompson. At one point, Ms Wahlert took out her baton and demanded that Pua get onto the ground. He ignored this instruction and, along with Hope, continued to assault Mr Sechtig and resist the efforts of other officers to subdue him. Pua and Hope both used their feet to stomp on Mr Sechtig's head.
11 Pua took hold of a prison radio from one of the officers who was attempting to subdue him. He threw the radio directly towards Ms Wahlert before she had the opportunity to use her baton. The radio struck her in the centre of her forehead. Following this, Pua struck Mr Keenan around the head and temple area, causing him to stumble backwards. Hope also punched Mr Keenan with force, causing him to fall to the ground. By this point, there were a number of prison officers present who were attempting to subdue and handcuff Pua and Hope. Both men continued to strongly resist.
12 As a result of the assault on him, Mr Sechtig suffered multiple injuries, including a number of serious injuries. Mr Sechtig's injuries included:
13 The injuries suffered by the other three complainants were as follows. Ms Wahlert sustained a 4 to 5 centimetre laceration to her forehead, which has resulted in a scar that is a constant reminder to her of the crime committed against her. Mr Keenan suffered abrasions and bruising to his forehead, face, scalp and jaw. Mr Thompson suffered bruising to his right temple, swelling to his right eye, and a graze to his right knee.
14 The charges against each applicant were put on two bases: first, on the basis that each applicant was responsible for his own assaults of the complainants; and secondly, on the basis that each applicant was complicit in the other's offending in that they each assisted or encouraged their co-offender's assaults.[1] After Hope pleaded guilty to charge 7, however, the Crown limited the basis upon which charge 7 was put against Pua merely to Pua's responsibility for his own assault of Mr Keenan. At trial, and after Hope's plea of guilty to charge 7, the prosecution disavowed any reliance upon a case that involved Pua being complicit in Hope's assault of Mr Keenan. Having regard to Pua's proposed ground 3, we should note immediately that no objection was taken to this approach by Pua's counsel at trial.[2]
15 Before dealing with Pua's proposed grounds of appeal against conviction, it is necessary to describe the evidence given at trial in more detail.
16 The prosecution called the four complainants, Mr Sechtig, Ms Wahlert, Mr Thompson and Mr Keenan. In addition, it called four other prison officers who were on duty at the relevant time, Mr Joshua Ploeger, Mr Dale Slater, Mr Kagan Cevikkan and Mr Wayne Landkroon. The informant, Detective Senior Constable Daniel McKeegan, also gave evidence. In addition, the prosecution played CCTV footage of the incident taken from inside the Unit. Finally, the prosecution read into evidence medical reports in relation to the injuries suffered by the complainants.
17 Mr Sechtig gave evidence that he and Ms Wahlert were at the entrance to the Unit waiting for the prisoners to come back inside. Mr Sechtig said that as he was standing at the gate he realised that two of the prisoners coming towards him were big and he would have to move out of their way to let them pass. He said that all he recalled was that he turned side on 'and just a huge bang, that's all I remember'. He said he remembered turning side on and then there was 'this massive bang that was like a shock wave go through me and just blackness'.
18 Mr Sechtig's next memory was of struggling to get off his hands and knees and feeling that his shoulder was hurt. He said he managed to get to the door, lean against the wall and 'sort of assess what was happening'. At the door, he remembered looking down and seeing blood spraying and a trail of blood, and thinking 'that's my blood'. Within a short period of time he was surrounded by medical people and other staff rushing in. He gave evidence that he suffered two fractured cheekbones, some broken bones in his nose, a broken right collar bone, nerve damage to his face, a split palate, an injury that involved a portion of his palate breaking away and detaching from his skull and loose teeth. Mr Sechtig was unable to say how he sustained his injuries.
19 Ms Wahlert gave evidence that she and Mr Sechtig were at the gateway to the Unit. Hope came through the door first, ahead of Pua. Hope rushed to Mr Sechtig, put his hand around his throat and punched him in the face four times. Pua was just behind Hope. Ms Wahlert said that Pua 'looked to be rushing behind [Hope] towards [Mr Sechtig]'. She described the punches to Mr Sechtig from Hope as being 'extremely forceful, very hard'. Ms Wahlert said that Mr Sechtig appeared to her to be unconscious before the end of the fourth blow. She said she rushed in between Hope and Pua 'so that Pua couldn't get to [Mr Sechtig] as well'.
20 Ms Wahlert said that the next thing that happened was that Pua was 'punching out'. She got a blow to the face at some point and remembered being pushed backwards and rushing back in again where the door was. The blow she received was to her face. It came from Pua. Ms Wahlert was asked and answered the following questions:
You described receiving the blow from Mr Pua, what's the next thing that happens?---Um I'm not sure.
All right. Did you at any stage call anything out?---Ah yes, I called out, 'Code Blue'.
Can you recall when you did that, was it while you were in the cage area, in the doorway area or somewhere else?---Um it was as I was running between Hope and Pua, like as I was going between Hope and Pua I screamed out, 'Code Blue'.
...
Did Mr Sechtig and Mr Hope, you and Mr Pua eventually move into just inside the door of the Unit?---Yes.
What happened in that area, as best you can recall it?---Um I recall um Mr Keenan running towards us.
Let me ask you specifically, can you recall what Mr Hope was doing at that point?---No.
Can you recall what Mr Pua was doing at that point?---Struggling with um Mr Thompson.
As a result of being struck by Mr Pua, how did that make you feel?---Ah dazed and I, I couldn't hear anything properly.
Were you wearing a radio?---Yes.
What about Mr Sechtig, was he wearing a radio?---Not at that point because ah Mr Pua had his radio.
At what point did Mr Pua take Mr Sechtig's radio?---Before we all ended up out in the Unit.
HIS HONOUR: Sorry, before ?---Before we all ended out in the Unit.
So out of the cage, you mean?---Yeah, he grabbed it while we were still in the cage area.
PROSECUTOR: At the point that Mr Pua grabbed that radio, where was Mr Hope in relation to Mr Sechtig?---Mr Sechtig was sort of like halfway down the - the wall.
Is this inside the Unit?---Inside the um cage still. Hope was still punching him and Pua, I was in between Hope and Pua and Pua reached around and grabbed the radio.
21 A little later in evidence-in-chief, the prosecutor elicited the following evidence:
I just want to take you back to when you were first - well, when you were in the caged area and you first saw the interaction between Mr Hope and Mr Sechtig, that's where you describe the push and then the four blows. And you describe where Mr Pua was at the time that Mr Hope did that?---Yes.
In which direction was Mr Pua facing when Mr Hope was striking Mr Sechtig?---Towards Wade Sechtig.
Perhaps just tell us again, the distance between Hope and Pua at that point?---Between one - under two metres.
HIS HONOUR: Under two metres?---Yes.
PROSECUTOR: Why was it that you moved yourself between Mr Hope and Mr Pua?---Because Mr Pua was going towards Wade Sechtig.
So why was it that you made that decision to get between them, the both of them?---Because I thought that Wade would have a better chance, I knew that I had to keep Pua away from Wade.
22 Mr Keenan gave evidence that he was collecting supplies when he heard some yelling coming from the far end of the day room. He heard 'You're fucked, you fucking dog' being yelled. Upon hearing this, he hit a duress alarm.
23 As to the incident, the first thing Mr Keenan saw was Mr Sechtig stumbling through the day room. Ms Wahlert, Hope and Pua were also there. Hope and Pua were both chasing Mr Sechtig and throwing punches. Both of them were connecting with Mr Sechtig's head. Mr Sechtig had his hands up covering his face trying to protect himself. He was punched multiple times to the point where he went limp and his hands went down. Mr Sechtig went to the ground in a matter of seconds. Hope and Pua were standing over him. Hope and Pua stomped on him, on his head and his upper body 'until he went limp and they continued to stomp on him'. In the course of the altercation, both Hope and Pua hit Mr Keenan.
24 While the other prison officers to which we have referred gave their accounts of the incident, for the purposes of dealing with Pua's proposed grounds of appeal against conviction, it is not necessary for us to set out those accounts here.
25 The CCTV footage of the incident played at trial was taken from a camera inside the Unit. It is difficult to see precisely what occurred before Mr Sechtig, Ms Wahlert, Pua and Hope entered the Unit from outside. The footage, however, shows one continuous assault by Pua and Hope against Mr Sechtig and the other prison officers. From the moment the incident commences on the CCTV footage, it is plain that both Pua and Hope are actively engaged in assaulting Mr Sechtig and any prison officer who comes to his aid, or who is in the vicinity.
26 In relation to the issue of when serious injury was sustained by Mr Sechtig, a medical report prepared by Dr Norman Stanton was read into evidence by the prosecutor. Dr Stanton referred to Mr Sechtig's injuries, saying that oral and maxillofacial surgery was required in respect of Mr Sechtig's fractured facial bones. Dr Stanton expressed the opinion that Mr Sechtig's facial injuries were 'consistent with blunt trauma and are a severe presentation of facial injury'.
27 Neither applicant gave evidence or called any witnesses at trial.
Proposed ground 1: the need for a unanimity direction
28 Under the cover of proposed ground 1, Pua submitted that the jury should have been instructed that, in order to find him guilty on charge 1, the jury had to be unanimous as to whether they were satisfied on the one hand that Pua was complicit in the acts of Hope in the cage outside the Unit or, on the other hand, whether they were satisfied that he either directly caused serious injury to Mr Sechtig or was complicit in Hope doing so inside the Unit. In making that submission, Pua observed that the Crown case was that the attack commenced in a cage outside the Unit with Hope grabbing Mr Sechtig's neck and punching his face with extreme force multiple times; and the attack then continued inside the Unit and included punching and kicking by both Hope and Pua.
29 The submission that there needed to be the unanimity direction now contended for by Pua must be rejected. First, it is of some note that trial counsel for Pua did not seek any such direction from the judge. The issue at trial was whether Mr Sechtig suffered any serious injury after Pua became involved. Initially, the judge directed the jury that they had to be unanimous in their verdicts, but that they may reach unanimous verdicts by different paths of reasoning or by accepting different parts of the evidence. No objection was taken by Pua's trial counsel to this direction.
30 Later, in response to a jury question, the judge gave a more specific direction to the jury, on charges 1 and 2. The judge directed the jury that if 'the serious injury' had been inflicted on Mr Sechtig before Pua started to encourage or assist, then Pua would not be responsible for those serious injuries. Again, no objection was taken by Pua's trial counsel to this direction. Moreover, it accorded with the way Pua's counsel put his case at trial.
31 Secondly, the unanimity direction that Pua now submits should have been given by the trial judge fails to take account of the fact that, on the evidence, the assault on Mr Sechtig by Hope and Pua was one continuous episode, and not a series of discrete acts or events.[3] In Zandipour v The Queen,[4] this Court (Warren CJ, Weinberg and Kaye JJA) reviewed the authorities concerning the relevant legal principles governing unanimity directions.[5] Zandipour was a case involving a conviction for murder where it was contended by the applicant that, in circumstances where it was alleged that his attack on the victim involved discrete acts of swinging him to the ground and then kicking him, the jury should have been directed that it had to be unanimously satisfied as to the precise act that caused death. After reviewing the authorities, the Court said:
The review of the foregoing authorities reveals that, in cases such as this, the Court has applied the principles stated in Walsh. In particular, where the potential causes of the fatal injury were part of one continuous episode, and were not discrete acts or events, a direction is not required to be given to the jury that it must be unanimously satisfied beyond reasonable doubt as to the precise act that caused death. Such a direction is only necessary where, in the context of the facts, the separate potential causes of death could be described as discrete, whether separated as a matter of time or circumstance.[6]
32 As to the resolution of the unanimity issue in Zandipour, the Court said:
In that context, the evidence of the witnesses, and the footage on the CCTV, clearly indicates that the whole assault was one continuous episode, with no significant breaks in time. The kicks to the neck, and the stomp on the head, followed immediately upon the slamming to the ground. It is entirely artificial, and indeed almost unreal, to postulate a different state of mind on the part of the applicant within the one sequence of events.[7]
33 In our view, the present case is on all fours with Zandipour. It would have been entirely artificial to postulate some point in time in the continuous assault of Mr Sechtig where Pua first assisted or encouraged Hope, but after which no serious injury was sustained by Mr Sechtig. Properly characterised, what occurred when Mr Sechtig was set upon was a single transaction which did not require a unanimity direction of the kind now sought.[8] The evidence of Ms Wahlert as to Pua's involvement from outside the Unit, the evidence of Mr Keenan of Pua stomping on Mr Sechtig and the CCTV footage shown to the jury no doubt explained why Pua's trial counsel did not seek any unanimity direction or any direction beyond that given by the judge to which we have already referred.
Proposed ground 2: the use of admissions by Hope as evidence against Pua
35 Shortly prior to trial, Hope indicated that he would plead guilty to charges 1 and 7. Although those pleas were accepted by the Crown, Hope was arraigned on charges 1 and 7 in front of the jury. There was no discussion about this with the trial judge, and no objection was taken by trial counsel for Pua.
36 In the course of the judge's charge, the jury asked a question about the significance of the magnitude of injury. The question was plainly directed to charges 1 and 2. After hearing argument, and without objection, the judge gave a redirection in the following terms:
I am just for the moment going to talk about charges 1 and 2 with this assist and encourage. ... As regards to the first of those elements, that is that someone committed the offence in question, you must be satisfied that someone did intentionally cause serious injury to Mr Sechtig. Of course with charge 2 you would have to be satisfied that someone recklessly caused serious injury to Mr Sechtig.
The 'someone' in question in this particular case can only be Mr Hope. It is a matter for you as to whether the prosecution has proven that matter to your satisfaction beyond reasonable doubt. Now, you can take into account firstly that you heard Mr Hope admit in this courtroom that he did intentionally cause serious injury to Mr Sechtig. Secondly, you heard oral evidence from the witness box from prison officers as to what happened apropos Mr Hope and Mr Sechtig at the relevant time or times.[9]
37 Under proposed ground 2, Pua complains about the judge's statement that the jury could take into account Mr Hope's admission that he intentionally caused serious injury to Mr Sechtig. Pua's first point is that Hope merely pleaded guilty to charge 1 in front of the jury. There was no evidence of any admission. Pua's second complaint is that it was wrong for the judge to say that any admission by Hope could be used as evidence against Pua.
38 Pua's contention that it was wrong for the judge to tell the jury that they could rely on an admission made by Hope as evidence against Pua must be accepted. With respect, it was wrong for the judge to tell the jury that they could take into account an admission made by Hope as evidence against Pua. This misdirection, however, did not occasion any miscarriage of justice - let alone any substantial miscarriage of justice.
39 First, it may be observed that the direction given by the judge was given without objection by Pua's trial counsel, and no correction was later sought.
40 Secondly, an examination of Pua's counsel's final address discloses that Pua used to his own advantage the fact of Hope's plea of guilty to charge 1. In his final address, Pua's counsel said to the jury:
And it's important to consider that Mr Hope has pleaded guilty to intentionally cause serious injury to Mr Sechtig. His counsel today has said that he did that. He's pleaded guilty to that, and he did that on his own, the striking of Mr Sechtig was on his own and not with the encouragement or involvement of Mr Pua.
...
Mr Hope, as I said, has pleaded guilty to intentionally cause serious injury. There seems to be no reason for it. It seems to be spontaneous and very surprising to everyone, including Mr Pua. He was not there by choice in the airlock. He'd been in the yard with Mr Hope, had to return to his unit and that lockdown was soon after. That's when they have to go to their cells.
He's present but he's got no choice to be present. He's not assisting, he's not encouraging, he's not involved himself. The serious injury to Sechtig occurs then without his involvement either directly or otherwise.
41 Thirdly, there was no issue at trial that the offence of intentionally causing serious injury (charge 1) had been committed by Hope. The fact of the assault was not in contest, nor was the fact that Mr Sechtig suffered serious injury. The issue at trial was whether Pua was complicit (assisted or encouraged) and/or whether Pua himself inflicted serious injury on Mr Sechtig. The existence of any so-called admission made by Hope was not said to be relevant to those issues. The misdirection given by the judge related to the Crown's need to prove that 'someone [Hope]' had intentionally caused serious injury to Mr Sechtig. That issue was, as we have said, not disputed by Pua at trial - indeed it was embraced by him for his own forensic purposes.
42 While the impugned direction should not have been given, again as we have already observed, no issue was taken in relation to it by trial counsel. Trial counsel in fact relied upon Hope's pleas of guilty to charges 1 and 7 for his own forensic advantage by being able to say to the jury that both accused had taken responsibility for their own individual acts which were committed without the assistance or encouragement of the other, and that there should not be findings of guilt based upon one accused's alleged complicity in another's actions. There was therefore no miscarriage of justice.
Proposed ground 3: the taking of the verdict on charge 7
44 As a result of Hope pleading guilty to charges 1 and 7, on the first day of the trial, charges 2 and 8 were amended to delete within them the references to Hope. No amendment was sought to be made to charges 1 and 7.
45 Notwithstanding that no amendment was sought to be made (or was in fact made) to charge 7, that charge was put to the jury against Pua, not as one involving both accused committing an offence against Mr Keenan, but merely on the basis that Pua was responsible for his own assault of Mr Keenan. That is, contrary to the way in which charge 7 was drafted, charge 7 was not put against Pua on the basis that he assaulted Mr Keenan and was also was complicit in an assault committed by Hope on Mr Keenan; it was only put on the basis that Pua was liable for his own actions in respect of Mr Keenan.
46 It is plain from the transcript of the trial that there was no confusion between trial counsel as to the more limited way charge 7 was put against Pua following Hope's plea of guilty to charge 7. That said, in his charge, the judge wrongly directed the jury that charge 7 was put against Pua on the basis that Pua was complicit in Hope's assault of Mr Keenan.
47 While there was confusion about charge 7 during the judge's charge to the jury (the judge directing the jury that charge 7 was put against Pua on the basis that he was complicit in Hope's actions) this confusion was corrected by counsel informing the judge of his error and the judge then redirecting the jury as to the actual basis upon which charge 7 was put against Pua (namely, that he was responsible for his own assault of Mr Keenan).
48 Under cover of proposed ground 3, the applicant now complains that he was convicted of an offence with which he was not charged - charge 7 not charging him that he alone assaulted Mr Keenan. This complaint has no merit. Again, we observe that no complaint was made by Pua's trial counsel that Pua could not be guilty of charge 7, as formulated, on the more limited basis upon which the charge was put following Hope's plea of guilty to that charge.
49 Even if we were to accept that there was an irregularity in not making some amendment to the indictment, or in not filing a fresh indictment laying the charge of intentionally causing injury to Mr Keenan against Pua alone, in the context of the trial conducted by Pua, there was no substantial miscarriage of justice in taking the verdict that was taken against Pua on charge 7.
50 Generously to Pua, the Crown chose to limit the bases upon which charge 7 was originally put against Pua by not pursuing the case that Pua was complicit in Hope's assault of Mr Keenan. Apart from the judge's misdirection to which we have already referred (and which was quickly corrected at trial) no confusion or any injustice to Pua resulted from the prosecution limiting its case against him under charge 7. Had the issue been raised at trial, the matter could have been rectified by an appropriate application to the trial judge. The notion that when the Crown limits the basis upon which a case has been put against an accused to a subset of the bases upon which the case was previously (and validly) put, without taking some step to amend the record, cannot be accepted.
52 Following their trials, the applicants fell to be sentenced on one charge of intentionally causing serious injury (charge 1), one charge of recklessly causing injury (charge 4) and two charges of intentionally causing injury (charges 5 and 7).
53 On 12 September 2017, the judge sentenced Pua as follows:
Intentionally cause serious injury (Crimes Act 1958, s 16)
Recklessly cause injury (Crimes Act 1958, s 18)
Intentionally cause injury (Crimes Act 1958, s 18)
Intentionally cause injury (Crimes Act 1958, s 18)
2 years to be served concurrently with the sentence of imprisonment imposed on Pua by Judge Pullen on 10 December 2013
54 On the same day, the judge sentenced Hope as follows:
Intentionally cause serious injury (Crimes Act 1958, s 16)
Recklessly cause injury (Crimes Act 1958, s 18)
Intentionally cause injury (Crimes Act 1958, s 18)
Intentionally cause injury (Crimes Act 1958, s 18)
56 Pua seeks leave to appeal against his sentence. His proposed grounds of appeal are:
57 Hope seeks leave to appeal against the sentence imposed upon him by the judge. His proposed grounds of appeal are:
(a) a failure to accord sufficient weight to [Hope's] pleas of guilty in relation to charges 1 and 7;
(b) a failure to accord sufficient weight to the harsh conditions of incarceration suffered by [Hope];
(c) a failure to accord appropriate weight to the relative youth of [Hope]; and
(d) a failure to take into account [Hope's] background of significant disadvantage and institutionalisation.
58 Pua was born on 9 January 1995 and Hope was born on 15 July 1995. Accordingly, both applicants were 20 years of age at the time of offending and 22 at the time of sentencing.
59 In his reasons for sentence, the judge accepted that both applicants had a dysfunctional and unstable upbringing.[12]
60 Pua is of Cook Island heritage. His parents separated when he was about 17. He was sent back to the Cook Islands for part of his childhood. In a report from Ms Carla Lechner (psychologist) tendered on his plea, there is reference to Pua's father being violent towards him and his siblings. Pua attended secondary schooling until Year 10. After that, he worked for a brief period in a factory. He attempted, but did not finish, a mechanic's course. He does not have any other employment history. His history includes substance abuse problems. He commenced abusing methylamphetamine at the age of 14.
61 Hope was expelled from secondary school in Year 7 for assaulting another student. He was removed from his family home and placed in foster care. He never returned to his family unit. His early history included absconding from residential care and living on the streets. He, too, had substance abuse issues, he having commenced to use cannabis and methylamphetamine from about the age of 17. He, too, has little, if any, employment history. From a report written by Dr Adam Deacon, consultant psychiatrist, tendered on Hope's plea, it is apparent that Hope is aware that he has anger management problems. Additionally, Dr Deacon reported that Hope expressed remorse for his offending, particularly in respect of Mr Sechtig.
62 Both applicants have appalling criminal histories, having amassed a substantial number of convictions for serious offences in their relatively short lifespans. Pua's criminal history includes convictions for aggravated burglary, armed robbery, arson, robbery, recklessly causing injury, assault in company and unlawful assault. Hope's criminal history includes multiple convictions for intentionally causing serious injury, criminal damage, robbery and other crimes of violence. It was on the basis of these convictions that Hope was sentenced as a serious violent offender.
63 At the time of his offending and sentencing, Pua was serving a sentence of imprisonment, imposed by Judge Pullen on 19 December 2013, of 6 years and 5 months' imprisonment with a non-parole period of 4 years and 4 months. That sentence was due to end in August 2020, with the non-parole period due to expire in July 2018.
64 At the time of his offending, Hope was serving terms of imprisonment that were due to be completed on 23 December 2015, less than 3 months after the offending for which he fell to sentenced by Judge Smith. Following the completion of those terms of imprisonment on 23 December 2015, Hope was held on remand until his conviction and ultimate sentencing by the judge on 12 September 2017. It was this period on remand that gave rise to the period of 629 days pre-sentence detention that was declared by the judge in respect of Hope.
65 The judge commenced his reasons for sentence with a description of the applicants' offending.[13] In describing the offending, the judge recorded the submissions made on behalf of both applicants that he should not be satisfied that Mr Sechtig was stomped on by them. The judge said, however, that having watched the CCTV closely, and considered carefully the evidence of Mr Keenan, he was satisfied beyond reasonable doubt that both applicants used their feet to stomp on Mr Sechtig's head.[14] The judge went on to say that:
I am satisfied that, when you did so, Mr Sechtig was on the ground and not capable of defending himself.[15]
66 After describing the offending, the judge set out in some detail the backgrounds of the applicants, including a summary of their prior convictions.[16] The judge then set out some applicable sentencing principles (punishment, deterrence, the establishment of conditions that might facilitate rehabilitation, denunciation and protection of the community). With reference to s 5(2) of the Sentencing Act 1991, the judge noted, amongst other things, that the applicants had each pleaded guilty to some offences (Pua to charges 6 and 8, and Hope to charges 1 and 7) 'but not at a particularly early time'.[17]
67 The judge described in some detail the victim impact statements of Mr Sechtig, Ms Wahlert, Mr Thompson and Mr Keenan.[18] As the judge noted, each of the complainants was still suffering at the time of sentencing of the effects of the crimes committed against them by the applicants. In particular, the judge referred to the 'devastating physical and emotional impact' of the assault on Mr Sechtig, stating:
Doctors advised him that he was lucky to be alive. He has been advised by a psychiatrist never to return to work in the prison system again. He has understandable concerns about whether he will ever obtain employment. From a physical perspective, his memory has been affected, he has constant facial pain and discomfort requiring medication, his sinus issues resulting from the assault have resulted in him snoring loudly at night which wakes both him and his wife. He notes that it feels like he is wearing a tight mask across his face and a heavy mouthguard. His recreational hobby of cycling has been affected. He is unable to sleep on his preferred side because of pain with pressure on his cheekbone, upper teeth and the area near his left eye. He states that he has facial discomfort every waking moment as a consequence of nerve damage.[19]
68 Next, the judge identified five aggravating features of the applicants' offending:
(1) The offences were committed while the applicants were in custody and against prison officers who were merely performing their usual duties in an entirely appropriate manner.
(2) The offences were unprovoked and committed without warning.
(3) The attack on Mr Sechtig continued 'well after it must have been apparent to [both applicants] that he was unable to defend himself'.
(4) The attack continued even after other prison officers arrived, with both applicants continuing to violently resist attempts to restrain them.
(5) None of Mr Sechtig, Ms Wahlert, Mr Thompson nor Mr Keenan 'were in any way responsible for [the applicants] apparent anger resulting from the transfer of [their friend] to another unit at the prison', and none did anything to provoke the attack.[20]
69 The judge accepted the submissions of the applicants' counsel that the following matters went in mitigation of the sentences to be imposed upon them:
(1) The applicants were both young, immature and probably more prone to ill-considered and rash decisions. The judge, however, noted that the applicants would have fully appreciated the consequences of their offending conduct, noting that Mr Sechtig was not a large man and Ms Wahlert was 'a woman of small frame'. The judge described the complainants as 'soft targets', the attack upon whom was 'cowardly'.
(2) Both applicants had a dysfunctional and unstable upbringing. In accepting this proposition the judge, however, referred to Director of Public Prosecutions v Terrick[21] and four of the propositions relating to the relevance of an offender's deprived background (propositions 1, 2, 3 and 8).[22] The judge also noted again that both applicants had significant prior convictions, saying that specific and general deterrence and community protection were important sentencing factors for both applicants.
(3) Both applicants have had limited education.
(4) Both applicants are at risk of becoming institutionalised given their records of incarceration to date.
(5) The attack on the complainants 'was of relatively short duration and no weapon was used in it'. The judge, however, said that the relatively short duration of the offending was due to the number of prison officers who intervened and eventually overpowered both applicants, 'neither of [whom] showed any sign of ceasing [their] violence voluntarily'.[23]
70 The judge recorded that submissions had been made to him that the applicants' conditions in custody have been harsher compared with others as a consequence of the management regimes imposed upon them. The judge said:
You have effectively been in isolation since your offending. However, there was no evidence before me as to your behaviour in prison or the particular reasons for those regimes. Further, I consider that, in the absence of evidence, it is inappropriate for me to speculate as to the regimes likely to be in place in the future. Nevertheless, I have taken into account that your time in custody from October 2015 to date appears to have been relatively harsh in both of your cases.[24]
71 The judge concluded by saying that the principles of protection of the community, denunciation, general deterrence to the prison community, and specific deterrence to the applicants were 'the important principles here'.[25] As to whether the sentences he would impose should be served wholly concurrently, the judge said that he did not consider that this was appropriate, given the aggravating factors to which he had referred and the fact that there were different victims involved in the offences.[26]
72 The crimes committed by the applicants for which they fell to be sentenced were serious examples of serious offences. The attack on the prison officers (and in particular Mr Sechtig) was brutal, cowardly and unprovoked. Crimes of this kind call for stern punishment.
73 Moreover, it was correct for the sentencing judge to observe that it was an aggravating circumstance of the applicants' crimes that their offences were committed while they were in custody and against prison officers who were merely performing their usual duties in an entirely appropriate manner. The common law has long recognised that it is an aggravating circumstance to assault a law enforcement or corrections officer while performing his or her duty.[27] Redlich JA (with whom Buchanan and Nettle JJA agreed) explained the reason for this, in respect of police officers, in Director of Public Prosecutions v Arvanitidis.[28] His Honour said:
It is a serious offence to assault police officers in the execution of their duty ordinarily requiring a significant element of deterrence in the sentences to be imposed.[29] The courage of police officers in protecting lives and property is something upon which the community depends. It is incumbent on the Court to impose appropriate sentences to demonstrate support for the authority of police officers who undertake a difficult, and dangerous task in the execution of their duties in maintaining law and order.[30] Ambulance officers, and others performing such essential public duties, are to receive a similar measure of support and protection. Where the offender knows or ought to have known that the victim was discharging a public duty of this sort, a more severe sentence will usually be imposed to deter such persons from violent assaults on them when performing their duties.[31] But the question which arises on this appeal is whether the circumstances required the sentencing judge to adopt such an approach in fixing the sentences.[32]
74 The same reasoning applies with equal force in respect of prison officers performing the essential public duties that they perform. An inmate of a prison who intentionally inflicts serious injury on a prison officer can ordinarily expect to receive a substantial term of imprisonment in addition to any term then being served. Moreover, denunciation and general deterrence will usually be paramount considerations in the sentencing of offenders who commit such crimes against prison officers. We turn now to consider the individual applications for leave to appeal against sentence.
75 Pua's proposed grounds of appeal against sentence raise four complaints:
76 There is no substance in any of Pua's complaints. Moreover, even if any of Pua's complaints of specific error were arguable, there is no reasonable prospect that this Court would impose a less severe sentence than any of the sentences first imposed, or that this Court would reduce Pua's total effective sentence.[34]
77 In respect of his De Simoni point, Pua submitted that, on charge 1, he was convicted of intentionally causing serious injury contrary to s 16 of the Crimes Act 1958. Section 15A of the Crimes Act creates the offence of intentionally causing serious injury in circumstances of gross violence. Section 15A(2) provides that circumstances of gross violence include:
(e) the offender continued to cause injury to the other person after the other person was incapacitated; [or]
(f) the offender caused the serious injury to the other person while the other person was incapacitated.
78 Pua submitted that, in holding at Reasons [23] and [24] that Pua stomped on Mr Sechtig's head when Mr Sechtig 'was on the ground and not capable of defending himself', the judge took into account an aggravating circumstance that warranted a conviction for the more serious offence of intentionally causing serious injury in circumstances of gross violence. That submission must be rejected.
79 First, the judge did not hold that Mr Sechtig was 'incapacitated'. The judge merely observed that he was on the ground and not capable of defending himself. That was a relevant circumstance to be taken into account as part of Pua's offence contrary to s 16 of the Crimes Act. It was not a finding in the terms required by either of paragraphs (e) and (f) of s 15A(2).
80 Secondly, De Simoni is, in any event, distinguishable from the present case on the facts. De Simoni was a case concerning a robbery where the accused had also wounded his victim. In that case, there was an act of violence in the course of the robbery that was part of the offence charged, but the resultant wounding was not - the wounding should have been charged as a particular under a provision of the Western Australian Criminal Code (s 582), creating a different offence.[35] In the present case, however, the intentional causing of serious injury was a continued or continuous assault, one aspect of which was that it continued after Mr Sechtig was on the ground, incapable of defending himself. De Simoni does not, in the circumstances of this case, require the judge to ignore the very circumstances that constituted the offence with which Pua was charged.
81 Thirdly, for the reasons already given in relation to the seriousness of the offending against Mr Sechtig, we are not persuaded that any different sentence should now be passed. The sentence imposed on charge 1 was, and indeed the other sentences imposed upon Pua with the orders resulting in the amount of cumulation upon the sentence earlier imposed by Judge Pullen were, if anything, at the lower end of the range of available sentencing options. It would have been open to the sentencing judge to have passed a significantly longer sentence on Pua - particularly so in relation to charge 1.
82 What we have already said about seriousness and whether any different sentences should now be passed is sufficient to dispose of the balance of Pua's proposed grounds of appeal. For completeness, we should say that we also do not accept that the judge committed a totality error or erred in reducing the mitigatory weight of Pua's deprived background on account of his prior convictions. In our view, the judge appropriately synthesised two competing sentencing considerations, arriving at a sentence about which no valid complaint can be made by Pua.
83 Specifically, so far as Pua's complaint that the judge erred in reducing the mitigatory weight to be given to his deprived background on account of his prior convictions is concerned, we note that at no point in his reasons for sentence did the judge say that this was what he was doing. Further, in our view, there is nothing in the reasons to suggest that the judge failed to give the full weight required to Pua's deprived background in accordance with what was said by the plurality[36] in Bugmy v The Queen.[37]
84 Moreover, while the plurality in Bugmy said that the effects of profound childhood deprivation do not diminish with the passage of time and should be given full weight notwithstanding any long history of offending,[38] the Court went on to say:
However, this is not to suggest as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[39]
85 Pua's application for leave to appeal against sentence must be refused.
86 Hope's proposed grounds of appeal against sentence raise two complaints:
87 There is no substance in either of Hope's complaints. Moreover, even if Hope's complaint of specific error was arguable, there is (as with Pua's case, and for the reasons already expressed) no reasonable prospect that this Court would impose a less severe sentence than any of the sentences first imposed, or that this Court would reduce Hope's total effective sentence.[40]
88 In relation to the issue of parity, Hope observed that despite pleading guilty to charges 1 and 7 (where Pua pleaded not guilty to those charges) Hope received a sentence that was two years' longer than Pua on charge 1 and the same sentence as Pua on charge 7. This was submitted by Hope to infringe the principles governing parity.
89 The principles governing parity are well established.[41] As was said in R v Collins:
Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a 'marked' or 'manifest' disparity between sentences which gives rise to a justifiable sense of grievance on an appellant's part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did. When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.[42]
90 In Hilder v The Queen,[43] Maxwell ACJ identified 'the true nature of the question which must be addressed when the ground of parity is advanced' as being 'whether it was reasonably open to the judge in the circumstances of the case to differentiate - or fail to differentiate - between the co-offenders in the way that he or she did'.[44] His Honour went on to say that there was a 'close analogy with the stringency of the test of manifest excess', and then said that, for a parity ground to succeed, 'it must be shown that the conclusion as to sentence differentials was not reasonably open'.[45]
91 In Ryan v The Queen, Weinberg, Whelan and Priest JJA said:
As to parity, an appellate court will intervene where there exists such a manifest discrepancy between the sentences imposed on co-offenders as to engender a justifiable sense of grievance that justice has not been done. The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria, it does not involve judgment about the feelings of the person complaining of disparity. Because sentencing is a discretionary exercise the authorities emphasise that the disparity must be 'marked' or 'manifest'. No justifiable grievance arises in circumstances where differences between co-offenders mean that it was reasonably open to the sentencing judge to differentiate in the way in which he or she did.[46]
92 In our view, there are a number of reasons why it was open to the judge to sentence Hope to a longer term of imprisonment on charge 1, and then to the same sentence on charge 7 as that imposed on Pua. First, while both applicants had bad criminal records, Hope's was significantly worse so far as offences of violence were concerned.
93 Secondly, Hope was sentenced as a serious violent offender, whereas Pua was not so sentenced. The sentencing of Hope as a serious violent offender engaged the provisions of ss 6D and 6E of the Sentencing Act 1991. Specifically, the judge was required to regard the protection of the community from Hope as the principal purpose for which sentence was to be imposed. Moreover, unless the sentencing judge otherwise directed, there was a presumption that Hope's sentences were to be served cumulatively upon each other.
94 Thirdly, the judge (correctly in our view) regarded Hope as the 'primary assailant',[47] with Pua merely following Hope's lead. That is not to downplay in any way the seriousness of Pua's offending, but it is a matter properly to be taken into account when considering Hope's sentence.
95 Fourthly, again as the judge observed, both applicants pleaded guilty to some offences 'but not at a particularly early time'.[48] Additionally, again as the judge also observed, Hope's pleas were made to charges that were 'very strong', and those pleas were not likely to have resulted in the trial being reduced in length or in fewer witnesses being called.[49]
96 Taking into account all of the mitigating factors relied upon by Hope, and in particular those matters particularised in Hope's proposed ground 2, we are simply unable to see any basis upon which it could be said that the sentences imposed upon him were manifestly excessive or breached parity principles. Hope's application for leave to appeal against sentence must be refused.
97 Pua's applications for leave to appeal against conviction and sentence, and Hope's application for leave to appeal against sentence, will be refused.
[1] See ss 323 and 324C of the Crimes Act 1958.
[2] Not counsel who appeared for Pua in this Court.
[3] Cf Lane v The Queen [2017] NSWCCA 46, where the Crown case left to the jury was that there were two discrete acts which were said to be deliberate and to have caused death: ibid [42] (reversed on a different ground in Lane v The Queen (2018) 92 ALJR 689, 697-8 [49]-[51]).
[4] (2017) 53 VR 256 ('Zandipour').
[8] See R v Heaney [2009] VSCA 74; (2009) 22 VR 164, 173-4 [28]-[33], 190-1 [85]-[93]; R v McCarthy (2015) 124 SASR 190, 222-5 [114]-[124], 256-285 [230]-[323]; Zandipour (2017) 53 VR 256, 272-7 [64]-[89].
[10] DPP v Hope [2017] VCC 1315 [102] ('Reasons').
[21] [2009] VSCA 220; (2009) 24 VR 457 ('Terrick').
[27] As to corrections officers performing their duties, see R v Schneidas (No 1) (1980) 4 A Crim R 95, 100; R v Keating (1993) 65 A Crim R 315, 323.
[28] [2008] VSCA 189; (2008) 202 A Crim R 300 ('Arvanitidis').
[29] R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551 [42]-[43] (Wood CJ at CL); R v Stone (1995) 84 A Crim R 218.
[30] R v Hamilton (1993) 66 A Crim R 575; Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 515; (2002) 137 A Crim R 196 [22] (Spigelman CJ).
[31] R v Nagy [2003] QCA 175; [2004] 1 Qd R 63 [46]-[47] (Williams JA), [72]-[74] (Muir J). It has been suggested that the decision in R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381 may be applicable. See Colin Howard, Australian Criminal Law (1st ed, 1965) 109, 116.
[32] Arvanitidis [2008] VSCA 189; (2008) 202 A Crim R 300, 314 [50] (citations in original).
[33] (1981) 147 CLR 383 ('De Simoni').
[34] See s 280(1) of the Criminal Procedure Act 2009.
[35] De Simoni (1981) 147 CLR 383, 394 (Gibbs CJ).
[36] French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.
[37] (2013) 249 CLR 571, 594-5 [42]-[44] ('Bugmy').
[38] But Cf Bugmy (2013) 249 CLR 571, 598 [56] (per Gageler J).
[40] See s 280(1) of the Criminal Procedure Act 2009.
[41] See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; Roujnikov v The Queen [2015] VSCA 97 [24]-[25]; Collins v The Queen [2015] VSCA 106 ('Collins'); Ryan v The Queen [2016] VSCA 255 ('Ryan').
[42] Collins [2015] VSCA 106 [23] (citations omitted).
[43] [2011] VSCA 192 ('Hilder').
[45] Ibid [38]; Collins [2015] VSCA 106 [23].
[46] Ryan [2016] VSCA 255 [42].
(1981) 147 CLR 383
(2013) 249 CLR 571
(2018) 92 ALJR 689
(2017) 53 VR 256
(2009) 22 VR 164
(2015) 124 SASR 190
(2009) 24 VR 457
(1962) 107 CLR 381
(1984) 154 CLR 606
(1997) 189 CLR 295
(2011) 244 CLR 462