Jojic v The Queen [2017] VSCA 77

1 On 27 December 2012, the appellant went to a house where a school friend, Vernon, lived together with Vernon's girlfriend. The three sat in the lounge room and smoked methamphetamine ('ice').

2 After time progressed, the appellant went to the toilet. When he returned to the lounge room, he accused his companions of smoking his ice. They denied that they had done this but the appellant became angry. The appellant then left the premises and drove away but returned a short time later. He demanded to know who had smoked his ice and took out a knife with a 15 centimetre blade. Both Vernon and his girlfriend denied smoking the appellant's ice. The appellant then began a countdown from three, and, on completing the countdown, jumped on Vernon and stabbed him some 20 times causing serious injuries.

3 Colour photographs of Vernon's wounds show injuries to his left and right arms, left leg, upper torso and neck. The wound to the neck was a deep stab wound penetrating to the spine. Another wound penetrated the left arm, severing an artery. Another penetrated one of his lungs. As Priest JA observed on the leave application in this matter, the victim was fortunate that he did not lose his life.[1]

4 In turn, Vernon's victim impact statement records serious ongoing physical and psychological consequences.

5 The appellant was initially charged with intentionally cause serious injury but on 15 March 2016, following pre-trial argument about the admissibility of hospital records containing alleged admissions made by the appellant in a paranoid psychotic state, the prosecution accepted a plea of guilty to recklessly cause serious injury. The plea was accepted by the prosecution on the basis that the appellant was probably in a drug-induced psychotic state at the time of the stabbing.

6 Following a plea hearing on 21 and 22 April 2016, Judge Jordan sentenced the appellant on 22 April 2016 to four years' imprisonment and fixed a minimum non-parole period of two years and nine months. The maximum penalty for the offence is 15 years' imprisonment.

7 Pursuant to leave granted by Priest JA, the appellant now appeals on two grounds:

1. The Sentencing Judge failed to accord the Applicant procedural fairness by failing to indicate that he may not accept the submission, advanced on behalf of the Applicant, that a Community Correction Order ('CCO') alone or term of imprisonment combined with a CCO was the appropriate penalty.
2. The sentence imposed on charge 1 and the non-parole period was manifestly excessive.

Particulars of ground 3:

(a) The Sentencing Judge gave insufficient weight to the following matters:

• The value of the plea of guilty and the circumstances in which it was entered;
• The timing of the plea;
• The Applicant's lack of prior criminal history;
• The relative youth of the Applicant;
• The delay in the charges being heard combined with significant rehabilitation that had occurred throughout the period of the delay;
• The Applicant's prospects for rehabilitation.

8 There were two preliminary contextual matters affecting consideration of the appropriate penalty in this case which form a background to the argument concerning procedural fairness.

9 First, Vernon and his girlfriend did not make statements to Victoria Police identifying the appellant as the attacker until 15 August 2013. The appellant was then arrested on 17 August 2013.

10 In the meantime, following alleged offending in April 2013, the appellant had been arrested and remanded in custody between 8 April 2013 and 13 August 2013 on another charge in respect of which he was ultimately acquitted. Between 17 August 2013 and the grant of bail on 25 September 2013, the appellant then spent a further period on remand with respect to the serious injury charge.

11 Following committal on 16 January 2014, there was a further delay of some two years until 7 March 2016 when the matter came on for trial. During this period, the appellant was acquitted of the alleged April 2013 offence. At the time of sentence, the appellant had thus been on bail for some two years and six months without incident and had served a substantial period of 'dead time' in the previous year.

12 Secondly, on the plea hearing, the appellant's counsel submitted that a Community Correction Order ('CCO') with no custodial sentence was appropriate. Reliance was placed upon the fact that the appellant was young at the time of the offending, being 22 years old, and, in turn, only 25 years old at the date of sentence; had no prior convictions; had pleaded guilty; had offended in the context of drug use, but had a good record on bail; and deserved credit for the dead time.

13 The prosecutor also submitted to the sentencing judge that a prison sentence of less than two years together with a CCO was 'within range'. The prosecutor further submitted that the Court might decline to declare 40 days' pre-sentence detention to facilitate this course.[2] In dealing with the appropriateness of a CCO, the prosecutor stated:

It is submitted that the community will be better protected if the prisoner is treated on a CCO for his drug problems after serving a prison sentence.

14 After discussion with the prosecutor, his Honour confirmed that the combination the prosecutor was contemplating was open 'if the imprisonment is two years or less, otherwise it's not open.'

Your Honour, the prosecution's submission that there should be time spent in custody, or it would be, it's within range that there be time spent in custody to be followed by a community corrections order and its obviously open in the legislation in the Sentencing Act that such orders might be made.

The defence position is that, in all the circumstances that exist, that a community corrections order alone would provide adequate scope for Your Honour to sentence appropriately. The alternative position for the defence is that if Your Honour was to take the view that some time in custody ought be served, it would be my submission that, given there's been just shy of six months in custody since the commission of this offence, that that ought be seen as being sufficient time in custody, and as stated in the dot points, Your Honour, the argument [is] assisted in this way, and that is that subsequent to being incarcerated Mr Jojic has made excellent progress, and the risk would be that that progress would be put in jeopardy by putting him back in the gaol environment.

...

The parameters that are open have been discussed between the prosecutor and Your Honour this morning, and that is that the available period is two years according to s 44, I think it was, s 38 in conjunction with s 44. There is a concession by the Crown, and in my submission an important one in this circumstance, that a sentence involving both dispositions is open to Your Honour.

The Crown don't say the period in gaol, and indeed they are not supposed to, and they don't. That is all fine, but in my submission, Your Honour should consider the parsimony in sentencing issue, and that is that the sentence should be structured in a way to minimise the time in gaol consistent with imposing a sentence that's appropriate and just.

In my submission, Your Honour, the somewhat criticised case of [Boulton] would say that a community corrections order can be a sufficient order for very serious offending, which this is, serious in the sense of the consequences [for] Mr Vernon obviously, serious because of the nature of the behaviour, serious because it's behaviour that seems to flow from ingestion of illicit substances, but in my submission they are strong arguments for why it should be a community corrections order because it would have the effect of continual monitoring of Mr Jojic, and if what I'm saying to Your Honour is accepted by Your Honour, it would allow an umpire to be put in place to - not an umpire, a scrutiniser, some scrutiny to ensure that he's continually on what we assert is the path that he's followed since being in custody, and it would arguable assist him to do that.[3]

16 The terms of this submission make clear that defence counsel appreciated and accepted that the sentencing judge was ultimately not bound to agree with counsel's submission. Shortly after the discussion quoted above, the judge indicated that he had a jury waiting in a part-heard matter and the hearing would have to be adjourned. The prosecutor then stated that if the appellant was to be assessed for a CCO that assessment would take some time. After further discussion, it was agreed that the prosecutor would complete his submissions as at that point in time and the judge would consider the appropriate form of penalty further and adjourn the plea to the following day. The judge made no order for a pre-sentence assessment report.

17 On the following morning, a further exchange took place between defence counsel and the Bench:

COUNSEL: Just before Your Honour proceeds, I understand from my client that no assessment was conducted yesterday in respect of a community corrections order.

HIS HONOUR: That's right.

COUNSEL: I understood Your Honour was seeking one.

HIS HONOUR: Who said that?

COUNSEL: No, I thought that Your Honour was going to seek an assessment.

HIS HONOUR: I never indicated that ever.

COUNSEL: Very well, Your Honour.

HIS HONOUR: You check the transcript if you want to.

COUNSEL: Yes, I checked my notes, Your Honour, and I understood Your Honour was going to. I don't say that an order was made that one [be conducted].

HIS HONOUR: Well, you can check the transcript. I never indicated that in any way, shape or form.

COUNSEL: Very well, Your Honour.

HIS HONOUR: The prosecutor indicated to me that that could be done.

COUNSEL: Yes. I can't take it any further, Your Honour.

HIS HONOUR: Do you want to check the transcript before we proceed?

COUNSEL: No, I don't, Your Honour. I accept what Your Honour says.

18 The appellant now contends that he was denied procedural fairness because the sentencing judge did not indicate to defence counsel that he did not accept that a CCO was appropriate and in turn allow defence counsel to further address him as to the appropriate penalty if no CCO was made.

19 In my view, the submission fails at the threshold. It was perfectly plain both at the conclusion of the first day's hearing and at the commencement of the second day's hearing that his Honour had not at that point determined to refer the appellant for assessment for a CCO. Furthermore, his Honour offered defence counsel time to check the transcript of the first day's hearing before he proceeded to sentence. Counsel did not seek to address the Court further when it became clear that the judge proposed to sentence without further investigating the appropriateness of a CCO. As counsel for the appellant concedes, in the circumstances of this case, it was necessarily implicit in the fact that his Honour refused to direct that the appellant be assessed for a CCO, that he had determined this was not a realistic sentencing option. Counsel neither sought to further address the prosecutor's concession made the previous day nor to address the structure or substance of a sentence without a CCO.

20 This is not a case where the judge departed from an agreed statement of facts without alerting the parties to the need to address potentially adverse findings.[4]

21 Nor is it a case where the Court had regard to evidentiary considerations raised by observations made by the Court or material provided to the Court of which the parties may not have been aware.[5]

22 Nor is it a case where the judge rejected defence submissions concerning probable factual consequences of taking a particular sentencing course after the plea hearing had proceeded on the basis that the prosecution accepted those consequences were probable.[6]

23 Each of the above categories of case is essentially concerned with a fair hearing in respect of the factual matrix upon which a sentencing judge bases his decision.

24 Nevertheless, there is a further category of cases relating to a fair hearing with respect to the appropriate sentencing approach that should be taken in a particular case. Where the prosecution concedes that a particular sentencing approach, put forward by the defence, is appropriate, it would, as the appellant submits, ordinarily be expected that the sentencing judge would indicate that the defence should not assume that the Court accepted that that approach was appropriate if in fact the adoption of that course is problematic or potentially problematic from the Court's point of view.[7]

25 In DPP v Shoan,[8] the Crown appealed to the County Court against the penalty imposed in the Magistrates' Court for 42 counts of criminal damage consisting of graffiti. The magistrate had imposed a community-based order without conviction. The appeal was expressly argued on the basis that what was in issue was the failure to impose a conviction. The County Court judge not only imposed a conviction but also imposed a period of imprisonment. Buchanan JA (with whom Curtain AJA agreed) observed:[9]

At the outset of the appeal in the County Court counsel for the Director said that 'the Director sees the fact of a non-conviction disposition as being the true inadequacy of the sentencing order.' When he began his plea, counsel for the applicant sought to define the ambit of debate. He said:

I am happy to argue the issue simply of conviction or non-conviction if that is all that your Honour is ending up considering, but on the other hand, if your Honour takes the view that we start from the ground floor, then obviously I have to approach it in a different fashion.

After further discussion his Honour said that he understood that the Crown's position was whether a conviction should be recorded. He also said, 'I can't be pre-empted' and 'I am not going to commit myself like an auctioneer at the start of the appeal.' His Honour went on, however, to say that he had to consider s 8 of the Sentencing Act, which is concerned with the discretion of the Court whether or not to record a conviction. Later, he said:

If the ground is narrowed down to the appropriateness or otherwise of a non-conviction, then I am governed by s 8 of the Sentencing Act. So the evidence will have to go to those issues.

Nothing appears from the transcript of the later discussions to alter that position,[10] and counsel on both sides addressed only the question whether a conviction should be recorded. Other sentencing options were ignored.

In my opinion it was reasonable for counsel for the applicant to assume the appeal was limited to the question whether a conviction was to be recorded and to conduct the case on this basis. The County Court judge failed to alert counsel to the possibility that he might depart from the common assumption shared by counsel. That failure deprived him of the assistance of submissions from the applicant concerning alternative sentencing avenues available to him short of a custodial sentence, and, in my view, amounted to a departure from the requirements of procedural fairness. As Kirby P said in Parker v DPP:

Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view.[11]

26 In the present case, the transcript of ongoing discussions with the Bench makes clear that at the end of the first day's hearing:

(a) the judge had identified the need to be satisfied that a period of less than two years' imprisonment was appropriate as a pre-requisite to the imposition of a CCO; and

(b) the judge had not accepted at that point that the applicant was a potential candidate for a CCO and had expressly declined to refer him for assessment in this regard.

27 Further, it was apparent on the second day of the hearing that his Honour, having further considered the matter, did not propose to order that the appellant be assessed for a CCO. This necessarily implied, in the present case, that his Honour did not regard the imposition of a CCO as an appropriate sentencing option.

28 Defence counsel was nevertheless given the opportunity to further consider the transcript of the previous day's hearing and it is apparent that counsel could have made further submissions to address the situation with which he was confronted before the judge proceeded to sentence. Counsel did not take this opportunity and it cannot be said in the circumstances that the matter proceeded to sentence without the appellant being given a fair opportunity to address the matters relevant to his Honour's sentencing decision.

30 The assault on the victim was deliberate and premeditated in that it took place after the appellant had left the premises and returned with the knife and after a further interrogation of the victim and a 'count down'.

31 The wounds inflicted on the victim were both numerous and life-threatening.

32 The effects on the victim were very serious. As the sentencing judge observed:

The Victim Impact Statement needs little elaboration. It bears out the stark reality of the significant physical, cosmetic, emotional and mental trauma and distress that your actions have caused. I am satisfied that a number of these effects will be permanent.[12]

33 The appellant was affected by the ingestion of drugs at the time of offending but the evidence showed that he had used ice for some two years or more prior to the incident and the ingestion of illicit substance cannot be regarded as reducing his moral culpability.

34 The judge was correct to characterise the offending as a very serious example of the offence. The attack on the victim was extremely savage.

35 On the other hand, the appellant could call in aid his youth, lack of prior convictions, plea of guilty, good record in recent years, including 31 months on bail, and time in custody constituting 'dead time'.

36 The judge noted that no evidence was produced to support the defence submission that the appellant was highly motivated to work.[13] Likewise, no evidence was called as to the appellant's personal circumstances subsequent to Court Integrated Services Program reports from 2013. Further, evidence of remorse was limited. The defence position up until trial was that the appellant denied that the was the stabber of his victim. Accordingly, his Honour was not persuaded that the appellant's prospects of rehabilitation were more than guarded when regard was also had to the nature of the offending.[14] The finding was open to his Honour and it is not the subject of specific challenge by way of a ground of appeal.

37 His Honour recognised that the appellant could call in aid the dead time of 129 days on remand in relation to another matter for which he had been acquitted.[15] His Honour said he took some account of this period.[16] The appellant could also rely on the delay which had occurred between committal and sentence. His Honour did not expressly refer to this factor in his reasons, but it was not urged on him by defence counsel as a discrete factor and it may be assumed that he was conscious of it as a contextual consideration, particularly as a chronology had been submitted to him.

As well as matters personal to you which I have referred to, I must take into account other relevant sentencing considerations. General and specific deterrence must be given weight in the sentence I will impose. The community cannot and will not tolerate offending which so seriously compromises a citizen's right to feel safe from an altogether too frequent form of violence in the nature of stabbings.

It is offending that can have devastating physical and emotional consequences involving in this case stabs being so deep as to penetrate the lung and spine, as well as severing an artery in the left arm. The message must be clear and consistent that appropriate punishment will result in such circumstances.

Your sentence must manifest the community's denunciation of your conduct and impose just punishment. I must protect the community from any repetition of this type of offending. I must seek to deter you from other offending as well as deterring others.

Your use of ice, leading to self-induced psychotic state might provide some explanation of your offending to a degree but provides no excuse. General deterrence requires primary concern in this type of offending involving use of a weapon as dangerous as a large knife. These are without doubt serious offences.[17]

39 In my view, the sentence of four years' imprisonment imposed by his Honour was reasonably open for the reasons that he gave. No question of manifest excess arises with respect to it. His Honour was not bound to accept that a CCO was appropriate.[18]

40 On the other hand, it seems to me that, given the period of dead time that the appellant had served and the delay between the offending and his sentence, the non-parole period fixed was stern and requires some further specific consideration.

41 The sentencing judge was required to ask himself, in all the circumstances of the case, 'what is the minimum term that justice requires that the person being sentenced should serve?'.

42 The weight to be given to the dead time was of course a matter within his discretion.[19] It did not create an entitlement to a discount.[20] Nor did it fall to be considered as a simple mathematical exercise.[21]

43 Nevertheless, in the present case, the serving of a substantial period of dead time followed by an even more significant period of delay during which the appellant had remained of good behaviour were factors of some significance in terms of an appropriate non-parole period in the present case. The effect of the non-parole period specified was that, taking dead time into account, the appellant, having offended as a young man, was required to serve three years and one month in custody after the offence and before becoming eligible for parole.

44 This was one of the cases where the approach adopted by the Court of Appeal in Kheir v The Queen[22] might be thought appropriate. The prisoner in Kheir had previously served 10 months on remand for an unrelated offence before being acquitted of it. In sentencing for unrelated offending, the judge reduced the sentence by five months in order to take account of this 'dead time'. Buchanan JA, with whom Hollingworth AJA agreed, stated what he regarded as the appropriate approach in such a case:

The detention was not doubly warranted, as was the case in R v Renzella and in R v Heaney. The applicant was only remanded on charges other than those giving rise to this sentence. Further, it is now known that the charges in respect of which the applicant was on remand resulted in an acquittal. As a matter of justice, the applicant should not have served any term of imprisonment. His Honour alone was in the position to correct the injustice for in this jurisdiction there are no other means of compensating the applicant. It is unsatisfactory that only those offenders who are sentenced for the commission of further crimes are compensated for incarceration on charges which do not lead to conviction.

In the absence of any circumstances which warranted a different result, I am of the opinion that the sentencing judge should have had regard to the entire period of detention. That is not to say that the period must be treated with mathematical precision, as if it were a period to which s 18 of the Sentencing Act 1991 did apply or as credit in a bank kind of balance. The sentencing judge should consider what effect the imposition of a further period of imprisonment will have on the overall period of incarceration, having regard to the principle of totality and the determination of a sentence that is appropriate to the criminality of the offender considered overall. For example, in a particular case it may be appropriate to impose a sentence notwithstanding that the time already served in detention would exceed a sentence that was otherwise appropriate.

In the present case I can perceive no reason for failing to give the applicant credit for the entire period of ten months' detention.[23]

45 It is true, as the respondent submits, that a non-parole period representing approximately 68 per cent of the sentence would normally be regarded as well within the range for this type of offending. But, given the appellant's relative youth, the fact that he has served 129 days in prison by way of 'dead time', his plea of guilty and the elapse of some 31 months on bail without incident prior to sentence, I incline to the view that a lesser non-parole period was appropriate.

46 Nevertheless, it is not sufficient to establish manifest error that this Court is persuaded that it would itself have imposed a lesser penalty.[24] As the High Court has repeatedly emphasised, this is because of the critical role the sentencing judge's discretion plays in the criminal law.[25] When regard is had, in particular, to the objective gravity of the offending and his Honour's finding with respect to prospects of rehabilitation, it cannot be said that the non-parole period was so unreasonable and plainly unjust as to demonstrate manifest excess.[26]

47 The non-parole period was not so wholly outside the range of sentencing options available as to call for interference by this Court. Accordingly, the appeal should be dismissed.

48 I agree. When I granted leave to appeal on ground 1, lack of procedural fairness, I did so on the basis that I regarded it as being reasonably arguable that the sentencing Judge did not give the appellant's counsel adequate warning that he was

not minded to act on the prosecution's concession that a CCO, combined with a period of imprisonment, was within the appropriate sentencing range. Having now had the benefit of full oral argument, however, I am not persuaded that this ground is made out. Shortly before he imposed sentence, the Judge made it clear to counsel that he did not intend to have the appellant assessed for a CCO, yet counsel did not seek to make any further submissions as to why the Judge should not depart from the prosecution's concession. Had he wished to, counsel could have done so. In those circumstances, it cannot be said that there was any relevant failure to afford the appellant procedural fairness.

[1] Jojic v The Queen (Unreported, Supreme Court of Victoria, Justice Priest, 31 August 2016) [4].

[2] A submission made prior to this Court's decision in DPP v Grech [2016] VSCA 98.

[4] Cf R v Duong (1998) 4 VR 68, 77; R v Lowe [2009] VSCA 268 [16]-[17].

[5] Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; [2007] 17 VR 492; R v Fisher [2009] VSCA 100; (2009) 22 VR 343.

[6] R v Stubberfield [2010] SASC 9; (2010) 106 SASR 91.

[7] R v Rule [2008] VSCA 154 [47]-[48].

[8] [2007] VSCA 220.

[9] Ibid [25]-[26] (citation in original).

[10] Part of the plea was not transcribed. Counsel for the respondent accepted that the possibility of imprisonment was not raised during any part of the plea.

[11] (1992) 28 NSWLR 282, 296. See also Brand v Parson [1994] VicRp 17; [1994] 1 VR 252, 257 (Coldrey J); R v Duong [1998] 4 VR 68, 77-8 (Kenny JA).

[12] DPP v Jojic (Unreported, County Court of Victoria, Judge Jordan, 22 April 2016) [34] ('Reasons').

[15] As to the concept of dead time, see generally the judgment of Tate JA (with whom Weinberg and Mandie JJA relevantly agreed) in Karpinski v The Queen [2011] VSCA 94. Tate JA analysed the decisions in R v Renzella [1997] 2 VR 88; R v Stares [2002] VSCA 70; (2002) 4 VR 314; R v Chimirri [2003] VSCA 45; R v McMahon [2006] VSCA 240; Warwick v The Queen [2010] VSCA 166; and R v Wade [2005] VSCA 276.

[18] DPP v Borg [2016] VSCA 53; McGrath v The Queen [2015] VSCA 176.

[19] Warwick v The Queen [2010] VSCA 166 [10]-[11], [19].

[20] R v Kotzman [1999] VSCA 27; [1999] 2 VR 123, 137.

[21] R v McMahon [2006] VSCA 240 [19]-[21].

[22] [2012] VSCA 13.

[23] Ibid [16]-[18] (citations omitted).

[24] Lowndes v The Queen [1999] HCA 29; (1995) 195 CLR 665, 671-2 [15].

[26] Clarkson v The Queen (2011) 32 VR 361, 384 [89]; The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ), 568 [56] (Bell and Gageler JJ); The Queen v Kilic [2016] HCA 48; (2016) 91 ALJR 131, 140-1 [36].