Kennedy (a pseudonym) v The Queen [2015] VSCA 49

1 On 15 August 2013, the appellant ('DK')[2] pleaded guilty to one charge of intentionally causing serious injury. Almost a year later, on 23 June 2014, he was sentenced as follows:

Intentionally causing serious injury [Crimes Act 1958 s 16]

20 years [Crimes Act 1958 s 16]

2 DK was granted leave to appeal on the single ground that the sentence imposed was manifestly excessive. For reasons which follow, we have concluded that the appeal must be dismissed.

3 DK and the complainant ('R') had known each other for approximately 25 years. DK and his son, who was aged 17 at the time, were staying with R at his property in Thornbury on the evening of Friday 2 September 2011. They planned to depart on an early morning train to Mildura on Saturday 3 September 2011.

4 DK and his son arrived at R's property at 9:00 pm. At some time thereafter, DK left the property and spent the night at a friend's house, while his son stayed at R's property.

5 DK returned to R's property at 7:00 am to collect his son. Upon discovering that he was not there, DK telephoned his son, who told him that R had 'jumped in [his] bed and grabbed [him]'.

6 After the phone call ended, DK immediately turned to R, who had been standing nearby, and punched him to the left side of his face. He continued to punch R repeatedly to the head, as he began to bleed from his nose, mouth and eyes. R fell to the floor and DK began kicking him in the ribs with 'a fair bit of force', such that DK's shoes had blood all over them.

7 At one point, R stood and turned to DK and said 'I'm sorry'. DK then punched him again to the left side of his head. R fell to the ground and DK left him in a pool of blood.

8 On 6 September 2011, R visited a medical clinic where he was identified as suffering from facial bruising, bilateral periorbital haematomas (black eyes), tenderness and pain in the area of his left ribcage and four undisplaced rib fractures.

9 Also on that day DK and his son reported the indecent assault to police in Mildura. The police investigation report notes that, after DK and his son had disclosed the indecent assault to a family friend, DK 'then decided that this incident should be reported to the police even though he stands to also be accused of the physical assault he admits committing on the accused'.

10 In his statement to police, DK described himself as having 'lost the plot and assaulted [R]' and having 'just snapped and lost it'. DK also made the following admissions:

• he had punched R to the head more than nine or 10 times;
• he had kicked R quite a few times;
• at one stage, R was unconscious and DK 'grabbed him and sort of shook him and got him to realise that it's still happening';

• R was passed out, lying on his back with blood on his face, when DK left his property; and
• his intention had been to 'kill' R and to cause him pain.

11 As to the last matter, it was submitted, and we accept, that DK did not in fact intend to kill R. Rather, DK's statement as to an intention to kill was to be understood as an expression of his anger at the reported sexual assault of his son.

12 The judge described DK's offending in the following terms:

You were due to catch a train together up to Mildura so you rang your son. In the course of that phone call your son told you that your friend had made a sexual advance saying words to the effect 'he jumped in my bed and grabbed me Dad'. You attacked your victim upon learning from your son over the phone the barest bones of that allegation. Your attack was forceful and was launched without any notice to your victim who, during that attack, was reduced into a state of unconsciousness. The physical attack was maintained after he went to ground with very many punches and kicks delivered by you. At one point you described trying to rouse him telling him you wanted him to know that he was getting hurt or words to that effect. You told police that you went crazy. It was a merciless attack and you did not hide that fact when speaking to the police. Very happily both for you and for your victim it did not produce as serious a level of injury as it so easily could have, for you left him lying on his back, alone and unconscious in a pool of his own blood and you could have had no real understanding of the true extent of his serious injuries.[3]

13 His Honour summarised DK's background as follows:

Your own early background has not been an easy one, with a violent alcoholic father, much movement of residential premises and, unsurprisingly, with some learning difficulties picked up along the way. That was a long time ago but it is still your background.

You are now aged 43 years of age. You were born back in 1971 and, as I say, you had something of a fragmented and dysfunctional background, as is made plain in those materials placed before me. You were educated to

Year 9 level and consistent with that and consistent with some of the limitations as a result of literacy, you have worked generally in unskilled employment, but for a fair bit of the time since leaving school, you estimate about 60 per cent of the time that you have been in employment since leaving school all those years ago, so you have had a reasonable work history and you also had some voluntary community involvement along the way with involvement of two churches that you have had associations with over the years.

You were married ... for something like 17 years. The relationship spanned a longer period, as I understand it, but that relationship ended about five years ago. It is clear from the material, including Ms Lechner's report, that you were very badly affected by that unhappy turn of events. The two of you had had three children together and it is clear that you have something of a close bond with your children.

...

You have admitted a criminal history ... It contains some past offending but nothing anywhere near as serious as this offence that I have to deal with. It is true that there is a matter of violence lurking in your past history and that is that matter dealt with back in November of 1999 at the Moe Magistrates' Court of intentionally causing injury. As I say, it was back in 1999 and had a very different setting. I am told that that was an assault upon your wife and one can get some sense as to the relative lack of gravity of that offences by the disposition being an adjourned undertaking with conviction, but that was back in 1999 that it was dealt with.

You have been before the courts a number of times but more recently it has been for driving matters, or minor drug or relatively minor street offences. What it amounts to really is this, your history impedes [your counsel] from standing up and saying you have not been to court before, and he does not say that, but I do not believe that your criminal history has any relevance to my task, given the age of the related matter and the nature of this offence and more importantly the context of this offence, so really I put aside your criminal history.[4]

14 In respect of DK's guilty plea and his co-operation with the police (including reporting his own conduct and making a statement in support of his son's allegations), the judge said:

You have pleaded guilty. It was not at the earliest stage. Whilst you made very complete and full admissions, it would seem that some issue was taken with the level of your intent or maybe the level of injury sustained by your victim and that may have held back the resolution of the matter. You offered to plead guilty to intentionally causing injury, but that offer was rejected and the committal date obtained, the date being May 2013. The matter was ultimately listed for contested committal on that date, but sensibly settled on the day without the need for any witness to be called. So whilst it is not the earliest plea, it is still relatively early. You made very full and complete admissions to the police. In fact, as I have made plain, you reported your own conduct in choosing to make a statement in support of the investigation into your son's allegations, so you put his interests clearly before your own which is a matter of some significance to me. You knew that that had the strong potential to bring trouble down upon yourself, but you felt compelled, given the predicament of your son, to make that statement.[5]

The judge concluded this topic by saying that he would 'pass a lesser penalty because of [DK's] guilty plea, the stage at which it was entered and [DK's] very high level of co-operation with the police'.[6]

15 The judge also found that DK was remorseful[7] and had 'quite decent prospects of rehabilitation'. Additionally, the judge found that DK had a 'relatively low risk of reoffending in a violent way in the future'.[8]

I do have to take into account the context here and it must have some mitigatory weight in my task. That is not to say that it provides an excuse, you know it does not, of course it does not. Clearly enough vigilantism and acts of vigilantism must be suppressed by the courts. You recognise that the appropriate conduct was to inform police, not to take the law into your own hands. Had you done that, justice no doubt would have taken its course and justice taking its course would not have exposed you to the certainty of a far longer prison term than imposed even upon your son's assailant. However, I certainly cannot ignore this setting, one that produced, in my judgment, a sudden loss of control. Your culpability surely must be judged to be less than otherwise may have been the case though, regrettably, the attack was a sustained one and it is inescapable that you were, in the course of the attack, seeking to inflict pain and punishment and you had the wherewithal to achieve that end as you told the police**.** Even going as far as wanting to rouse your victim so he could feel and experience the pain that you knew you were inflicting upon him. It is a pretty stark admission.[9]

17 On the plea hearing, DK submitted that delay was a relevant mitigating factor. The judge analysed delay as follows:

The incident took place on 3 September 2011. You spoke to the police, I think, on 6 September and signed a statement on 8 September 2011. You were interviewed on 12 March 2012 and charges were filed on 14 June 2012, so there had been a delay here of some nine months between your reporting the matter and your being charged. Of course you were reporting the matter in the context of the support provided for your son's allegation and that has to be borne in mind. The police had to take a statement from your victim and that only occurred in February 2012. Once charged, the case has followed a course consistent with your exercising your rights to have a committal and then settling on the day of the committal. In May 2013 therefore you were committed to stand your plea in this court and a plea date was assigned on 16 August 2013. Unfortunately you applied the day before for that plea to be adjourned, and it was, to November 2013. You applied for that date to be adjourned. It was, to April 2014 and then of course you failed to appear and a warrant was then issued by me which has then been executed upon you and has brought you into custody.

There are two matters outstanding said to have arisen in the interim, though they await determination in the Magistrates' Court and it seems likely that you are pleading not guilty, so I do not have any regard to them. So delay is certainly not a large matter raised in mitigation here. Still I take it into account in the way suggested by your counsel.[10]

18 While describing DK's offending as 'undoubtedly serious', his Honour rejected a prosecution submission that he had intended to inflict the maximum possible injury on R.[11] As to the seriousness of the injuries inflicted, the judge concluded that they fell 'somewhere towards the moderate end of the range of seriousness'.[12] The judge noted the concession by counsel for DK that the seriousness of the offending made an immediate term of imprisonment inevitable.[13]

19 In submitting that the sentence was manifestly excessive, DK relied upon the following 10 matters, which were said to make the case 'exceptional':

(a) DK's offending was a spontaneous reaction to the news that R had sexually abused his son;

(b) DK confessed his own offending to police, knowing that he would thereby face being charged. (This was said to be of particular significance, given that R had apparently decided not to report the matter);

(c) DK made frank admissions, pleaded guilty, and was found by the judge to be genuinely remorseful;

(d) while the judge found the injuries to be 'moderate', they 'were towards the lower end of the scale of serious injuries';

(e) although DK had a prior criminal history, the judge did not find this to be of relevance to the sentencing synthesis;

(f) the offending did not involve a weapon, was not committed in company, and did not involve any kicking to the head;

(g) DK, at his age (he is now 44), faced being imprisoned for the first time, and would find that difficult;

(h) DK had good prospects of rehabilitation, and had a relatively low risk of reoffending;

(i) DK's background of deprivation (as described by the judge) was significant; and

(j) the delay between offending and the date of sentence was a relevant mitigating factor.

20 It was not suggested that the sentencing judge had overlooked any of these matters. Each of them was carefully addressed in his Honour's detailed reasons. Rather, the complaint was that the sentence of three years and six months' imprisonment was not reasonably open if proper weight had been given to all of the relevant sentencing factors.[14] In particular, it was said, the judge must have given inadequate weight to the mitigating factors outlined above.

21 We are not persuaded by that submission. This was very serious offending and, but for the matters relied on in mitigation, a substantially longer sentence would have been called for. The judge's assessment of the gravity of the offence should be set out in full:

This was undoubtedly serious offending. It is true it did not occur in a public place, it occurred in the victim's own home and the attack was a merciless one and persisted even when your victim was totally defenceless. He was not fighting back, he was not doing anything. You had some time to deal with your immediate emotional response to the phone call. Still the attack continued. As you told the police, you were a proficient fighter. You did not need to be to render him unconscious. You attacked him with fists, you attacked him with feet. You repeatedly kicked him whilst he was on the ground with, as you told the police, a fair bit of force. This was an attack persisting in the face of virtually no resistance and upon a vulnerable victim. That is something that surely is clearly relevant to an assessment of the gravity of the offence before the court. A stern view must be taken of such conduct, that is sustained violence in relation to a vulnerable, defenceless individual. This was a quite startling attack. I do note that you refrained from kicking your victim to the face or to the head, so there was at least still some level of restraint at some level.[15]

22 The appeal submission relied, in particular, on two mitigating features which call for comment. The first was that the attack was 'a spontaneous response by an emotionally overwhelmed offender'. As noted earlier,[16] the judge accepted that DK had suffered 'a sudden loss of control' and that, as a result, his moral culpability should be viewed as less than it would otherwise have been. That conclusion was consistent with authority.[17]

23 At the same time, the mitigating effect of this circumstance was, necessarily, very limited. As his Honour pointed out, the attack was sustained and 'merciless'. It went well beyond what might be called an instantaneous reaction. The attack involved many punches and kicks, and persisted after DK had had 'some time to deal with [his] immediate emotional response to the phone call'. It was a deliberate and vindictive act on DK's part to rouse R from unconsciousness for the sole purpose of ensuring that he 'could feel and experience the pain'. Further, as the judge noted, the attack was made upon DK only learning 'the barest bones' of the allegation.[18]

24 The second matter was DK's self-reporting. In a very ably presented argument, counsel for DK submitted that his conduct, in giving a detailed report to police of the assault he had committed upon R, was exceptional and was deserving of substantial mitigation, in circumstances where his crime would otherwise have been undetected and gone unpunished.

25 The disclosure of an unknown offence, in circumstances where that offence would likely have remained undisclosed, is a matter that - all other things being equal - is deserving of substantial leniency. In such cases, public policy will likely demand that an accused receive a significant reduction in any sentence that might otherwise have been imposed.[19] Further, as the High Court recently stated, in such a case it may be appropriate to impose a penalty that is disproportionate to the nature and circumstances of the offence.[20]

26 In the present case, however, the mitigating effect of this factor was also heavily qualified. In an important sense, this was not a voluntary disclosure at all. For perfectly understandable reasons, DK wanted to report to police the alleged sexual assault on his son. He did so realising that, in the process, he would inevitably have to disclose his own assault on R. While it is true that this involved DK 'putting his son's interests above his own' - something for which the judge gave him credit - this is very different from the case of true voluntary disclosure where, out of a sense of conscience or remorse, an offender informs police of criminal conduct which would otherwise not have come to notice.[21]

27 DK contends that his submission that the mitigating features in this case were not given proper weight is 'bolstered by the disproportion between the head sentence and the non-parole period'. We disagree. Plainly, the judge fixed a shorter non-parole period than he otherwise might have fixed because of the various mitigating factors to which we have already referred. In doing so, the judge accepted a submission made on behalf of DK that this, in the circumstances, was the appropriate course to take. We see no error in the judge's approach. In our view, one cannot, in the circumstances of this case, reason from the length of the non-parole period fixed by the judge (a non-parole period that some might regard as being at the more lenient end of the available range) to a conclusion that the head sentence was manifestly excessive.

[1] This judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

[2] The abbreviation is used for ease of reference only.

[3] DPP v [Kennedy] (Unreported, County Court of Victoria, Judge Tinney, 23 June 2014) ('Reasons') [4].

[11] Cf Nash v R [2013] VSCA 172, [10].

[14] Clarkson v The Queen (2011) 32 VR 361, 384 [89].

[17] See Arie Freiberg, Fox & Freiberg's Sentencing: State and Federal Law in Victoria (Lawbook Co, 3rd ed, 2014) [4.135]. See also R v Salew [1998] VSCA 141, [22]-[23] (Batt JA, with whom Phillips CJ and Ormiston JA agreed); Pearce v The Queen (1983) 9 A Crim R 146, 150 (Brooking J, with whom Young CJ and Kaye J agreed); The Queen v Alexandridis [2008] VSCA 126, [9] and [14] (Buchanan, Nettle and Redlich JJA); Dow v The Queen [2010] VSCA 274, [15] (Ashley JA, with whom Weinberg JA agreed); and Va v The Queen (2011) 37 VR 452, 460 [35] (Maxwell P, Redlich and Weinberg JJA).

See further, R v Okutgen (1982) 8 A Crim R 262, 266, where Starke J (with whom Crockett and O'Bryan JJ agreed) said: 'The impact of general deterrence in a case where a man has acted in the heat of the moment is not as relevant as it may be in the case of a premeditated violent crime'; R v Farfalla [2001] VSC 99, [21] where Vincent J said:

I consider that whilst the principle of general deterrence should be regarded as possessing less significance in your case, where the jury has not excluded the possibility that you acted under provocation, it should nevertheless be taken into account in the determination of an appropriate sentence;

R v Kelly [2000] VSCA 164 (Charles, Buchanan and Chernov JJA); and Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305, 324 where Brennan J said:

Emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence, though its mitigating effect can be outweighed by a countervailing factor ... The sentencing court takes account of emotional stress in evaluating the moral culpability of the offender just as it is entitled to have regard to the motive for the offence.

See generally, Felicity Stewart and Arie Freiberg, Provocation in Sentencing Research Report (Sentencing Advisory Council, 2nd ed, July 2009), and in particular [1.1.8], [4.2.3], [8.4.3] and [8.5.1].

[19] JBM v The Queen [2013] VSCA 69, [46]-[48] (Weinberg and Priest JJA).

[20] CMB v Attorney-General for New South Wales [2015] HCA 9; (2015) 89 ALJR 407, 423 [77] (Kiefel, Bell and Keane JJ).

[21] See R v Ellis (1986) 6 NSWLR 603, 604.