2 I have had the considerable advantage of having read, in draft, the reasons for judgment prepared by Priest JA. His Honour has concluded that the appeal should be allowed. He considers that the appellant's sentence should be reduced from four years and six months' imprisonment with a non-parole period of two years, to one of three years and six months' imprisonment with a non-parole period of one year and nine months. His Honour's analysis is compelling. I agree with much of his reasoning.

3 Nonetheless, having given this matter anxious consideration, I find myself unable to agree that the appeal should be allowed. I have instead concluded that irrespective of whether the sentencing judge failed to deal with the question of delay correctly, as Priest JA has found, no different sentence should be imposed.[1] For that reason, I would dismiss the appeal.

4 The facts surrounding the commission of this offence are set out in detail in his Honour's reasons for judgment. That saves me the task of having to repeat them. It is sufficient for present purposes to observe that, on the day in question, the appellant launched a vicious and unprovoked attack upon his victim. He punched him to the head, causing him to fall to the ground where he lay motionless. He then delivered anything up to four kicks to the head and body, all of them directed at a man who was entirely helpless. The victim was hospitalised and suffered very serious injury, some of it having residual and perhaps lasting effect.

5 I respectfully agree with Priest JA's conclusion that ground 3 is not made out. The sentencing judge was perfectly entitled, in my view, to express herself as she did

with regard to the effect of this attack upon the victim. As Priest JA notes, no objection was taken, on the plea, to the admissibility of any part of the victim impact statement. While it contained observations that were, on a strict view, hearsay, and involved expressions of opinion, it was entirely legitimate to say, as her Honour did, that:

[The victim impact statement] makes it clear that [the appellant's] actions have had a lasting effect on Mr Sparks. He has suffered some form of brain damage which resulted in him having speech difficulties, although I believe that is not to be permanent, and he suffers frequent headaches. He also had to attend an eye specialist due to bleeding in his eyes and he reports that his eye sight has deteriorated rapidly.

He has difficulty with his levels of concentration and an inability to support any form of pressure in the workplace. His family say that his personality has changed since the attack. He writes that this attack has changed his life for the worse.

[The appellant's] offending is clearly at a very serious level as [he] inflicted an unprovoked attack on a person who was simply going about his working day, resulting in long lasting and serious [e]ffects to his quality of life.[2]

6 In my opinion, properly understood, this passage was not intended to do any more than summarise what the victim himself had said, in his victim impact statement, about the effect of the attack upon him. It goes without saying that her Honour was required, pursuant to s 5(2)(daa) of the Sentencing Act 1991, to have regard to 'the impact of the offence on [the victim] of the offence'.[3]

7 This takes me to ground 2. There is no doubt that the sentencing judge was fully cognisant of the fact that there had been a lengthy delay (some three years) between the date of the offending and the date of sentence. She referred specifically to that fact in her reasons for sentence.[4] It may not matter very much, but it is worth noting that no explanation has been provided as to why the police, having identified

the appellant as the assailant almost immediately after the incident,[5] did not charge him for a period of 16 months or so thereafter. A delay of that order seems difficult to justify. Thereafter, however, events moved at a reasonable pace, particularly since the appellant indicated, all along, that he proposed to contest the charge of intentionally causing serious injury. Indeed, he maintained that stance right up until the very day that the trial was scheduled to commence.[6]

8 As I have already indicated, the sentencing judge referred to delay, as a mitigating factor, in her reasons for sentence. It is true that she did so in the context of specific deterrence, having regard to the evidence before her regarding the appellant's various steps towards rehabilitation in the intervening period between the commission of the offence and the date of sentence. She did not make any mention, in her sentencing remarks, of the stress that the appellant would have been under throughout that period, an aspect of delay that is well understood as a relevant mitigating factor. That may be because counsel who appeared for the appellant on the plea did not place any reliance upon that aspect of delay. Moreover, there was scant evidence that the appellant had in fact been under any particular stress throughout that time.[7]

9 The only evidence regarding stress was to be found in two observations, expressed in the most general of terms, in the psychological report prepared by Mr Tim Watson-Munro. First, that report stated that the 'protracted nature of these proceedings have galvanised this man's longstanding psychological problems, which indeed pre-existed the index offence as a consequence of a number of life stresses'. Secondly, it quoted the appellant as stating that 'he is finding it very difficult to concentrate because of his anxiety concerning the current proceedings'. These observations, buried away in a six page report replete with consideration of other matters, were hardly likely to assume any great prominence in her Honour's sentencing remarks.

10 Further, the fact that a sentencing judge does not refer to a particular sentencing consideration in his or her reasons for sentence does not, of itself, mean that the discretion has miscarried.[8]

11 In my opinion, the appellant's contention that the sentencing judge failed to have regard to the factor of delay in all its relevant aspects, and thereby committed specific error, should be rejected. I consider that both the head sentence and the non-parole period imposed in this case were moderate. I am satisfied that the factor of delay, in all its aspects, must have been taken into account, and given appropriate weight.

12 If I am wrong in my conclusion as to the absence of specific error, I would nonetheless dismiss this appeal.

13 It may well be true, as Priest JA notes, that the appellant was in a state of suspense for some three years between the commission of the offence and sentence. It is undoubtedly true that he made some progress towards rehabilitation in that time. Those considerations rendered this a particularly difficult sentencing exercise. Nonetheless, it must be borne in mind that the maximum penalty for this offence is 20 years' imprisonment,[9] and that this was a serious example of offending of this kind. Anything less than the current head sentence, and non-parole period, would, in my view, fail to give proper effect to relevant sentencing considerations. Conduct such as that of the appellant must be denounced in the strongest possible terms. It warrants a substantial term of imprisonment.

14 Self-evidently, I would reject any submission that this sentence was manifestly excessive. In my view, ground 1 has no substance. I would dismiss the appeal.

15 In my opinion this appeal should be allowed for the reasons that briefly follow.

16 On 4 February 2009 the appellant launched an unprovoked and violent assault against a former workmate causing him serious injury. It was not until three years later, on 30 January 2012, that the appellant pleaded guilty in the County Court to a single count of intentionally causing serious injury (an offence for which the maximum penalty is 20 years' imprisonment).[10] Following a plea hearing extending over three days (3, 10 and 15 February 2012), on 29 February 2012 the appellant was sentenced to be imprisoned for four (4) years and six (6) months, and a non-parole period of two (2) years was fixed. Pursuant to s 6AAA of the Sentencing Act 1991, the sentencing judge indicated that, but for the plea of guilty, she would have sentenced the appellant to be imprisoned for five (5) years and six (6) months with a non-parole period of three (3) years. Forensic sample and disposal orders were also made.

17 On 31 October 2012 a judge of this Court granted the appellant leave to appeal against his sentence on three grounds:

1. The sentence imposed, and the non-parole period set, are each manifestly excessive.
2. The sentencing judge erred in failing properly to take into account the three year delay between the offending and the imposition of sentence.
3. The sentencing judge erred in finding that:

(i) the victim had suffered brain damage;

(ii) such brain damage resulted in him having speech difficulties;

(iii) that the offence caused the victim to suffer frequent headaches; and

(iv) that the victim's eyesight had deteriorated rapidly as a result of the offence.

PARTICULARS

(a) The sentencing judge erred in departing from the Prosecution Opening which set out the injuries for which the applicant was to be sentenced;

(b) The sentencing judge erred in failing to accord procedural fairness by alerting counsel to her intention to sentence on the basis of discrete and more severe injuries than those which the prosecution alleged; and

(c) In any case, the sentencing judge erred in making such findings upon material which was insufficient to permit the making of those findings.

18 Discrete error as alleged in the second ground is, in my view, made out. Hence, subject to the Court concluding (as I do) that a different sentence should be imposed,[11] it is for this Court to exercise the sentencing discretion afresh. That renders unnecessary consideration of the first ground claiming manifest excess.

19 The essential facts of the offending need to be described. LU Simon Builders Pty Ltd ('Simon') were involved in construction at a site in the central business district of Melbourne. Gregory Sparks, the victim, was Simon's site manager. Simon contracted labourers from MC Labour Hire ('MC'). The appellant was an MC labourer so contracted.

20 Shortly before Christmas 2008, Simon terminated MC, thus concluding the appellant's employment. He was, however, asked to work for a short period in the beginning of 2009 due to understaffing. While so employed, on 4 February 2009, at about 1.00pm, the appellant spoke to a group of lunching workers. He told them that he had been terminated from his job, and that he thought Mr Sparks to be responsible. The appellant said he wanted to 'get him'.

21 A little later, in a state of agitation (and, perhaps, affected by alcohol), the appellant confronted Mr Sparks about terminating his employment. Mr Sparks averred that he was not responsible. The appellant started throwing punches at Mr Sparks' head and body. The victim attempted to defend himself by punching back. One of the appellant's punches, however, caused the victim to fall to the ground. While the victim was motionless on the ground, the appellant kicked him four or fives times to the head and body. Mr Sparks eventually regained consciousness and was taken to the Royal Melbourne Hospital.

22 On any view, the victim suffered serious injuries. The Summary of Prosecution Opening ('Opening') alleged the following:

(a) left occipital condyle fracture (i.e. a neck fracture);

(b) left temporal inter-cranial contusions;

(c) left traumatic sub-arachnoid haemorrhage;

(d) bilateral orbital fractures (i.e. fractured eye sockets);

(e) abrasions to the forehead, chin, hands and knees; and

(f) right black eye, loose teeth and two small cuts inside the mouth.

23 When interviewed by the police, the appellant claimed that the victim had initiated the assault and he retaliated to defend himself. He did not believe that he kicked the victim while he was on the ground.

24 There was evidence before the sentencing judge in the form of a report from a consultant forensic psychologist which hypothesised that at the time of offending the applicant was suffering from Anxiety Disorder with features of Depression, coupled to Alcohol Dependence. The proceedings, so it was said, weighed heavily upon the applicant because of his anxiety concerning their resolution; and in particular, should he be incarcerated, the consequences to one of his children who suffers from a serious psychological disability. Curiously, notwithstanding the report, the legal practitioner who appeared for the appellant said nothing on the plea of the consequences of the three year delay.

25 The prosecutor referred but fleetingly to the delay in her response to the plea by the appellant's legal practitioner. She submitted that 'the delay that's also present in this case is largely of the accused's own doing'. If this submission was meant to convey that the attribution of fault for the delay (taken in isolation) was a relevant factor, it was apt to be misleading.[12] In any event, the prosecutor informed the judge that following the offence on 4 February 2009, the appellant was not charged until 22 June 2010; a committal mention occurred on 3 December 2010, when the matter proceeded by way of 'straight hand up brief'; and at a directions hearing in the County Court on 28 March 2011 a trial date of 30 January 2012 was fixed. Counsel for the respondent on the hearing of the appeal was unable to offer any explanation as to why it took the police - who had interviewed the appellant the day after the offence - over 16 months to charge him.

26 As was observed by Maxwell P in Merrett:[13]

The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. Delay constitutes 'a powerful mitigating factor'. In particular, it focuses attention on issues of rehabilitation and fairness.

27 In her sentencing remarks the judge alluded to delay briefly when referring to the need for specific deterrence. She considered specific deterrence to be of 'less importance' in sentencing 'given the time that has elapsed since the commission of this offence, the steps you have taken to rehabilitate yourself and your awareness of the consequences that your behaviour have had (sic) not only on the victim, but also on your own children'. Nowhere in her sentencing remarks did the judge address the anxiety occasioned to the applicant from the matter hanging over his head for some three years, thereby keeping him in a state of suspense as to what would happen to him.[14] Nor did the judge address the rehabilitation that had occurred during the delay more widely as a mitigating factor rather than simply as relevant to the need for specific deterrence. Indeed, in the scant reference she made to it, I cannot discern that the judge regarded the delay in this case as 'a powerful mitigating factor'.

28 The respondent submitted that there is no reason to suppose that the judge did not take delay into account simply because she did not refer to it. In my view, however, delay was such an important mitigatory feature in the circumstances of this case, it might have been expected that, had the judge afforded it proper relevance, so much would have been reflected in her sentencing remarks. It was not. I think therefore that there is force in the submission that the judge failed relevantly to take the delay into account (or, at least, did not give it adequate weight)[15]. Ground 2 should be upheld.

29 Ground 3 is troubling. The Opening[16] was silent as to suggested brain damage, speech difficulties, headaches and deteriorating eyesight referred to in the victim impact statement. These manifold difficulties were described by the victim in his victim impact statement, and were apparently taken into account by the sentencing judge.

30 Although some of the impugned parts of the victim impact statement were not supported by any medical evidence,[17] and were in part based on hearsay, the legal practitioner then appearing for the appellant did not - as he was entitled, if not obliged, to do[18] - object to its contents.[19] It might be assumed that there were sound forensic reasons for him following the course that he did. Thus, although in my view it would have been desirable for the prosecution to have made it clear - if it be the case - that it relied on the alleged medical conditions outlined in the victim impact statement in addition to those described in the Opening; and it would also have been desirable for the sentencing judge, if she were minded to go beyond the Opening, and make use of material in the victim impact statement[20] (some of which was of dubious admissibility), to make plain to the appellant's legal practitioner that she intended to adopt that course;[21] no error resulted from the failure to do so. It was incumbent on the appellant's legal practitioner to make plain to the judge that the contents of the victim impact statement were challenged. Absent any such challenge, in my opinion the sentencing judge was entitled to act on its contents. It is unrealistic to contend that it might have been anticipated that she would not do so. Ground 3 is not made out.

31 In view of the conclusions I have reached on ground 2, it is unnecessary to consider ground 1. Error having been shown, the live issue is whether the Court considers that a different sentence should be imposed. As I have said, I think it should.

32 There is no gainsaying that the offence was serious, involving as it did an unprovoked attack on an innocent victim which resulted in what were (on any view) severe injuries.

33 As against that, the applicant had a good work record, and was described by a character witness as a caring, responsible and trustworthy person. He has limited prior convictions (none of which involve violence), and the offence occurred at a time when he was under great emotional stress. Importantly, there was significant delay in the case being resolved, which occasioned him great anxiety (including worry concerning his disabled child). Moreover, albeit late, he pleaded guilty, thus saving the victim from the trauma of giving evidence and the community the cost of a trial.

34 Since, as with manslaughter, the circumstances of the offence of intentionally causing serious injury widely vary, the sentences commonly imposed widely vary. Some cases involve protracted savagery, while others a single blow; some involve the use of an almost infinite variety of weapons, while others fists or feet; and some result in gross and permanently disabling injuries to victims, while in others the injuries barely cross the threshold of 'serious'. Thus, at the low end of the spectrum, suspended sentences of imprisonment have been imposed by this Court;[22] whilst at the high end, this Court has dealt with cases where the head sentence is in double figures.[23] For this reason, although the respondent's counsel is to be commended for her diligence in research, I do not find the sentencing cases that she took the Court to[24] particularly helpful in arriving at an appropriate sentence in this case.

35 As I have said, I would allow the appeal. Balancing, as best I am able, all relevant factors, in lieu of the sentence passed in the County Court, I would impose a sentence of three (3) years and six (6) months' imprisonment, and fix a non-parole period of one (1) year and nine (9) months. Otherwise, I would confirm the orders made by the County Court. I declare that but for the plea of guilty, I would have imposed a sentence of five (5) years' imprisonment, with a non-parole period of two years (2) and six (6) months.

36 I should add this. Sometimes it is said that, where this Court imposes a sentence not much different to that imposed at first instance, it is 'tinkering'. Against that backdrop, I am conscious of the fact that, in particular, the non-parole period I propose might appear to some minds to be not markedly different to that imposed at first instance. In my view, however, no complaint of tinkering may legitimately be made where error has been shown - and this Court's discretion as to sentence is thereby enlivened - since it is the duty of the Court to consider whether a different sentence should be imposed.[25]

[1] Criminal Procedure Act 2009 s 281.

[2] R v Jackson (Unreported, County Court of Victoria, 29 February 2012, Judge Cotterell) [6]-[8] ('Sentencing Remarks').

[3] See also Sentencing Act 1991 s 8K as to the purpose of the provision of victim impact statements.

[5] The appellant was interviewed by police the day after the incident, and stated that it was the victim who had initiated the assault.

[6] The appellant offered to plead guilty to the lesser charge of recklessly causing serious injury, but the Crown can hardly be criticised, in the particular circumstances of this case, for having rejected that offer.

[7] The fact that the applicant was not charged until June 2010, having previously told the police that he had acted in self-defence, might indicate that he was not under particular stress for at least the period leading up to that time.

[8] See, eg, R v Le Van Huu [1999] VSCA 40, [30] (Phillips CJ): 'Of course, a judge is not obliged to specifically advert to every matter he has considered in composing a sentence'; DPP v Gebremeskel [2005] VSCA 171, [17] (Ashley JA); R v Piacentino [2007] VSCA 49; (2007) 15 VR 501, 511 [47] (Eames JA); R v Koumis [2008] VSCA 84; (2008) 18 VR 434, 440 [64] (Redlich and Kellam JJA, Osborn AJA); Dowe v The Queen [2012] VSCA 39, [32] (Weinberg JA).

[9] Crimes Act 1958 s 16.

[10] Crimes Act 1958, s 16.

[11] Criminal Procedure Act 2009, s 281(1)(b).

[12] R v Merrett [2007] VSCA 1; (2007) 14 VR 392, 400 [35].

[14] R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444, 447; R v Tiburcy [2006] VSCA 244; (2006) 166 A Crim R 291, 292-3[3]; R v Merrett [2007] VSCA 1; (2007) 14 VR 392, 400 [34]-[36].

[15] R v Talia [2009] VSCA 260, [21]-[24]; R v Merrett [2007] VSCA 1; (2007) 14 VR 392, 400 [38].

[16] The Opening was prepared for an anticipated trial. By s 182(2)(a) of the Criminal Procedure Act 2009 it is provided that a Summary of Prosecution Opening must outline 'the manner in which the prosecution will put the case against the accused'.

[17] Section 8M of the Sentencing Act 1991 permits a written statement signed by a medical expert on 'medical matters' to be attached to a victim impact statement.

[18] By s 8L(3) of the Sentencing Act 1991 a court 'may rule as inadmissible the whole or any part of a victim impact statement, including the whole or any part of a medical report attached to it'. See also R v Swift [2007] VSCA 52; (2007) 15 VR 497, 498[7].

[19] R v Swift [2007] VSCA 52; (2007) 15 VR 497, 498[7].

[20] The purpose of a victim impact statement is 'assisting the court in determining sentence': Sentencing Act 1991, s 8K(1).

[21] R v Swift [2007] VSCA 52; (2007) 15 VR 497, 498[7].

[22] For example, DPP v Gerrard [2011] VSCA 200; (2011) 211 A Crim R 171 (a three year suspended sentence for what is colloquially referred to as a 'glassing').

[23] For example, Robbins v R [2012] VSCA 34 (an attack with a claw hammer, where on appeal a head sentence of 11 years' imprisonment was upheld, but a non-parole period of seven years was substituted); DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457 (where sentences of 11½ years' imprisonment, with non-parole periods of 9 years, against two respondents were substituted on appeal, for a savage attack on an innocent victim which resulted in catastrophic injuries).

[24] Jacobs v R [2011] VSCA 238; Bennett v R [2011] VSCA 253; Abdifar v R [2012] VSCA 66.

[25] Mok v R [2011] VSCA 38, [25].