Kilic v The Queen [2015] VSCA 331

Court of Appeal (Vic)|2015-12-08|Before: Redlich JA, Whelan JA

CRIMINAL LAW - Intentionally cause serious injury - Sentencing - Use of fire as a weapon - Victim set alight by ex-partner - Permanent scarring suffered by victim - R v Alipek [2006] VSCA 66; Emery v The Queen [2011] VSCA 212; , discussed - Seriousness of injuries - Consideration of worst category offending for intentionally causing serious injury - Manifest excess - Second highest sentence imposed - ; ; ; , considered - Youthful offender with good prospects of rehabilitation - ; , applied - Offending not pre-meditated - Appeal allowed - Appellant re-sentenced.

CRIMINAL LAW - Practice and Procedure - Application to admit fresh evidence - R v Nguyen [2006] VSCA 184, applied - Whether injuries less serious than thought at time of sentence - Photographs of victim and affidavits of appellant's sister and father not inconsistent with medical evidence at plea hearing - Evidence not fresh evidence - Application refused.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 On 30 March 2015 appellant,[1] then aged 22, pleaded guilty to intentionally causing serious injury. The charge arose out of an incident where he doused his then girlfriend in petrol, and shortly afterwards set her on fire. The appellant also pleaded guilty to two uplifted summary charges of 'use of a prohibited weapon without exemption', and 'dealing with suspected proceeds of crime'. On the same day, very shortly after the conclusion of the plea hearing, the appellant was sentenced to 14 years' imprisonment for the charge of intentionally causing serious injury. The appellant was also sentenced to 12 months' imprisonment on each of the two summary charges and orders of 6 months' cumulation made on each, making a total effective sentence of 15 years' imprisonment. A non-parole period of 11 years was fixed.

2 On 12 August 2015, Redlich JA granted leave to appeal on the following ground:[2]

The individual sentences, orders for cumulation and non-parole period fixed are manifestly excessive; in particular, the learned sentencing judge gave too much weight to aggravating factors and too little weight to mitigating factors, current sentencing practices, the applicable maximum penalties, and the principle of totality.

3 Additionally, leave was granted to add a proposed second ground, namely:

Evidence regarding the impact of the offending upon the victim obtained after the imposition of sentences throws a different light on the circumstances which existed at the time of sentence, thereby revealing a substantial miscarriage of justice.

4 For the reasons that follow, we would refuse leave to appeal on the proposed fresh evidence ground. We would allow the appeal on ground 1, and re-sentence the appellant as set out below.

5 The victim was in a relationship with the appellant at the time of the offending. The relationship had become ruled by the appellant's paranoia and controlling behaviour. The appellant's offending followed upon the victim's decision to leave the relationship. On 27 July 2014 the victim arrived at the appellant's home in a car with mutual friends and parked opposite the appellant's home. At the time, the victim was 12 weeks pregnant with the appellant's child. The sentencing judge described the events as follows:

On that day, the victim and Mr Bond arrived at your address. When Mr Bond went to open the door to get out of his car, he observed you running across the road in an aggressive manner holding a samurai sword above your shoulders pointing it at him. You thrust the sword through the open driver's side window and it went towards the steering wheel. You walked away from the car and verbally abused Bond and the other person, Scott, and the victim. You yelled at the victim saying, 'You're just a fucking slut.'

Bond followed you into the front yard of the house and told you to calm down. You filled a plastic bottle with water and then swung the sword at the bottle, which flew off into a bush and you said, 'This would take some cunt's head off.' You went inside the house and Bond followed you. Bond hid the sword inside the house. He went to the toilet and whilst there, you went outside and walked up to Bond's car. The victim was sitting in the back seat of the car on the right hand side at the time. She locked the door, fearing for her safety. You attempted to open the door, she was frightened, she said you had a terrifying look on your face. You went to the left hand side of the car and opened the other rear door. You sat in the back seat next to the victim.

There was a struggle between you and the victim, in which she was trying to fight you off. You then picked up the fuel container, which had been acquired previously, and poured petrol all over the victim. You got out of the car, leaving her covered with petrol on the backseat. She was crying. A few minutes later, you returned to the car, attempted to pull her outside by grabbing her jumper. She attempted to get out of the car backwards, you grabbed her by the jumper and pulled her back into the car. You then said, 'You want to make my heart burn, now you can burn, bitch.' You held the cigarette lighter to her chest, igniting the petrol. Her hair, face and clothing immediately became engulfed with flames.[3]

6 The victim was taken to hospital in a critical condition where she remained in an induced coma for five days. She thereafter remained in the Intensive Care Unit for nine days, requiring a ventilator to facilitate her breathing. On the basis of the hospital records, a forensic clinician, Dr Jason Schrieber, reported the victim's injuries as life endangering with only a small area of her skin unharmed, either as a direct result of the injuries or associated necessary procedures. In light of the nature and seriousness of the injuries as well as the victim's long term prognosis, she terminated her pregnancy. The termination occurred on 13 August 2014 and the victim was subsequently discharged from the hospital the following day.

7 A subsequent police search of the house found three credit cards which were the basis of the summary charge of dealing with property suspected of being proceeds of crime.

8 In handing down the second largest sentence ever imposed on a charge of intentionally causing serious injury, the sentencing judge noted that he could not recall 'a more serious example of this type of offending in [his] 38 years in the criminal law.'[4] In doing so, his Honour made it clear that general deterrence played a significant role in the appellant's sentence, especially given the fact that this was a crime which involved violence in a domestic setting:

The courts have to send a message to the community that violence against women will not be tolerated under any circumstances. The problems of differences in a relationship and the use of drugs such as ice in no way excuse the horrific violence that you inflicted on someone you supposedly cared for. Can we open the newspapers on any day without an account of some man inflicting violence on a woman in a minor or major way?

I made the comment before that it leads me to a conclusion that for some men, it seems like there is a war on women. So I have to impose a sentence that sends a message to the community that this just will not be tolerated.[5]

9 The sentencing judge referred to the fact that at the time of offending the appellant was both on bail and a CCO,[6] and also referred to his prior convictions, including offending related to drugs and weapons. The sentencing judge noted, however, that this was his first offence of violence.[7]

10 In sentencing, his Honour recognised that he was required to balance the appellant's age with other factors, but ultimately considered that his age should not play a significant role:

Your age is a factor that has weighed heavily on my mind, upon my first reading the depositions in this matter. However, there must come a time when the circumstances of the offending push the age of the offending into the background. In my view, this is such a case. I would have imposed a heavier sentence than what I am about to if you had been older, but the sentence I am imposing is a substantial one, in any event.[8]

11 Given that leave to appeal has already been granted in respect of ground 1, it is perhaps convenient to begin with the appellant's proposed fresh evidence ground. The appellant submits that evidence obtained after the imposition of the sentence, relating to the severity of the injuries, throws a 'different light' on the circumstances which existed at the time of sentence, so that the sentencing discretion should be re-opened.

12 At the time of sentencing, the judge had before him the following evidence relating to the injuries of the victim:

photographs taken in hospital over the two-week period following the offending;
a medical report authored by Dr Schreiber, who did not examine the victim, but rather based his report on the hospital photographs (above) and hospital notes taken two weeks after the offending; and
the victim's police statement dated 24 September 2014.

13 Dr Schreiber's report set out that the victim suffered partial and full thickness skin burns, which required

complex surgery and skin grafting with skin harvesting from the patient's own body rendering it necessary to therapeutically wound more areas of skin that were initially not non-involved.[9]

14 The sentencing judge summarised Dr Shrieber's findings in relation to the victim's prognosis:

The doctor said the protracted risk of future thrombosis, infections, immobility and of decreased immunological defence system is high. She will remain scarred possibly to large areas of her body, including in sensitive areas such as the face, breasts and hands with protracted cosmetic and social implications. The future functionality of her hands and limbs will be diminished. Her future quality of life will be diminished. She will require ongoing care in different mental and medical health areas.[10]

15 The report observed that there was evidence of burns to 19 per cent of the total body surface area, which included areas 'essential for life, such as the airways and sensitive areas such as the head, face, neck, breasts, hands and wrists'. It was noted that the victim's treatments were complex, and involved inherent high risks of complications and side-effects, and that the degree of pain and discomfort suffered by the victim was high.

16 The appellant was granted leave to rely on three affidavits, which included exhibits of Facebook photos of the victim taken from her Facebook page in July 2015 as fresh evidence. It is submitted that this evidence, obtained after the imposition of sentence, demonstrates that the 'true significance' of the victim's injuries and prospects of rehabilitation, was not able to be fully comprehended at the time of sentencing. In particular, the appellant submits that the parties, and the Court, at the time of sentencing, held an 'inaccurate impression' as to the likely degree of permanent visible scarring to sensitive areas, such as the victim's face, as well as the future functionality of her hands and limbs.

17 The first affidavit was deposed to by a Mr Taaffe, the appellant's solicitor. Materially, exhibited to the affidavit were photos and screenshots, taken from the victim's Facebook page, with the victim's permission. Taaffe had reason to access these photos, based on conversations with the appellant's family which suggested that her Facebook photos depicted the victim to be 'out and about'. Taaffe also deposed to the fact that he had spoken with the victim, who had said that she did not currently require any ongoing physical treatment, but, in the future may require further surgery on her neck to release the tightness of the skin.

18 Taaffe also deposed in his affidavit that the victim and he had arranged to meet in order to discuss the possibility of providing further information in a Victim Impact Statement. The meeting never eventuated. During oral submissions on appeal, counsel for the appellant submitted, correctly, that to have pressed the victim any further was deemed inappropriate by her instructors. That decision was undoubtedly correct.

19 The second affidavit was deposed to by the appellant's father, in which he described having seen the victim 'a few times since she was discharged from hospital.' He deposed that the only sign of injury he had seen was the scarring to the victim's neck, and that when the victim had come to see him 'she moved around fine ... and had no problem doing things with her hands.' The appellant's father said that he observed the victim doing things like 'drinking coffee, using a telephone, smoking, handing [him] a letter and writing things down for [him]', and that as far as he could see 'there were not any problems with her legs or arms.' Further, he confirmed that the Facebook photos which were exhibited to Mr Taaffe's affidavit (and also exhibited to his), reflected how the victim currently looked in person.

20 The third affidavit was by the appellant's older sister. Ms Kilic met the victim for the first time in late August or early September 2014, when the victim came to visit Ms Kilic and her mother. During the visit, she said the victim was wearing a 'hoody' and it was accepted on appeal that this meant Ms Kilic was unable to see the extent of her injuries. Ms Kilic deposed that the victim seemed to 'move and converse with no difficulty.' Ms Kilic deposed that she and the victim had been communicating via Facebook about whether the victim was willing to speak to Mr Taaffe.

21 The fresh evidence that the appellant submits throws a 'different light' on the extent of the victim's injuries can be summarised as:

the victim's ability to use her hands to drink coffee, use the phone, smoke and write something down;
the victim's lack of visible limp;
the victim's ability to move and converse with no difficulty;
photographs from Facebook which do not depict any visible facial scarring; and
the victim stating that she does not currently require ongoing physical treatment.

22 It is clear from the authorities that new evidence relating to events occurring after the imposition of sentence will be admitted on appeal only in 'rare and exceptional' cases. As summarised by Redlich JA in R v Nguyen,[11] the following principles apply to applications to admit 'fresh evidence':

It is common ground that this Court may, in limited circumstances - sometimes described as 'rare and exceptional' - permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:

(i) the new evidence must relate to events which have occurred since the sentence was imposed;

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;

(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;

(iv) the new evidence may be admissible even though the appellant did not refer to the pre-existing state of affairs in the course of the plea;

(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and

(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.

The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.[12]

23 The appellant submits that the 'true significance' of the victim's injuries and prospects of recovery can best be understood by reference to the evidence of the appellant's father and sister, and the Facebook photographs. The appellant submits that this evidence throws a different light on the extent of the victim's injuries. The Facebook photos show that although there is some visible scarring to the victim's neck, the burns to her face are no longer evident. Second, the appellant submits that the affidavits of Mr and Ms Kilic are evidence that her permanent physical injuries are not as extensive as was suggested by the materials tendered on the plea, as the victim appears to be able to move around freely with little or no impairment. The appellant therefore submits that the materials such as the medical report and hospital photos, originally put before the judge at trial were likely to have conveyed an inadvertently misleading impression of the victim's injuries and recovery prospects as the fresh evidence outlined above demonstrates.

24 The Crown submits that the fresh evidence, such as the use of the victim's hands to drink coffee and use the phone, is not at odds with Dr Schreiber's statement regarding future functionality as set out in his report. Further, the Crown submits that the matters put by the appellant do not demonstrate any inaccuracy of the impression shared by the parties or the judge regarding the degree of permanent scarring or functionality.

25 We do not accept that the evidence constitutes fresh evidence. The sentencing judge, in assessing Dr Schreiber's report, recognised that the victim would have permanent scarring and diminished functionality of her hands and limbs. None of the proposed fresh evidence contradicts either of those findings. The fact that the victim was observed to have been able to use her hands to drink coffee, smoke, use the phone, and write something on a piece of paper is not inconsistent with Dr Schrieber's statement regarding future functionality of her limbs. The report, while clearly referring to restrictions, expressed no conclusions as to the nature of those limitations.

26 Further, with relation to the victim's physical visible scarring, the Facebook photos do not contradict any observation by Dr Schreiber that the victim may suffer permanent scarring to large areas of her body. Notwithstanding the difficulties associated with Facebook photos, which the appellant conceded in his written case, the photos do depict that the appellant continues to have scarring to at least her chest and neck. The purported 'fresh evidence' does not illuminate any further the observations of Dr Schrieber that visible scarring would result.

27 We note further that the affidavit of Ms Kilic referred to her meeting the victim in late 2014. The plea occurred in early 2015. Such evidence as was able to be gleaned from her meeting with the appellant and which it was thought modified the opinions of Dr Schreiber was available at the time of the plea. It was not evidence of an event occurring after plea.

28 The affidavits of the appellant's father and sister do not throw 'significant new light on pre-existing facts'. They do not support the appellant's assertion that the victim's injuries are not as severe as were thought to be the case at the time of sentence.

29 We would refuse leave to appeal on this proposed ground.

30 The appellant submits that the individual sentence, the orders for cumulation and the non-parole period are outside the range of sentences which were reasonably open to the sentencing judge. The appellant acknowledges that the sentence was required to give effect to the principles of general deterrence, denunciation and punishment, and, to a lesser extent, to specific deterrence. Nonetheless, despite the objective gravity of the offence, when regard is had to the circumstances of the offending, the circumstances of the offender, current sentencing practices, the maximum penalties and the principle of totality, it is submitted that the sentence is manifestly excessive.

31 The offending in this case was truly horrific. The intentional setting on fire of any person with ensuing and entirely predictable life-threatening burns to a large part of the body, clearly places the case within the worst category of this offence. The injuries resulted in a period of intense and relentless pain. The aftermath of the injuries involved numerous surgical procedures each of which involved their own risks and complications. The victim required skin grafts taken from healthy parts of her body to replace damaged skin. Due to the physical and mental impact of the injuries, the victim elected to terminate her pregnancy.

32 The use of fire to intentionally inflict serious injuries is a rarity within the criminal law. The appellant submits, however, that when one looks at cases which involve the deliberate infliction of injury by fire, the sentences imposed in similar cases stand in stark contrast to that of the appellant. The judge was provided with a number of authorities during the plea hearing. The appellant submits that consideration of those cases shows that a sentence of the order imposed was manifestly excessive.

33 R v Alipek,[13] involved a victim set alight by her jealous ex-partner. The victim in Alipek was a young woman, who had rejected the prisoner's romantic approaches and proposals of marriage. After being followed by the prisoner, who had grown increasingly jealous that the victim may have been seeing another man, the victim was dragged from a nightclub into the prisoner's car, where his co-offender was sitting in the driver's seat. After driving a short way, the prisoner told the victim he was going to kill her, before having his co-offender collect a can of petrol from the boot. The prisoner then poured petrol over her head and body, grabbed a lighter and set her alight. Afterwards, the prisoner told her he was sorry and to say that it was an accident.

34 The victim in that case suffered burns to 40 per cent of her body, was placed in an induced coma for two weeks and remained in hospital for two months. Eighteen months after the event, she still suffered restricted movement in her arm and neck and had had part of her ear removed. The prisoner also suffered burns to 12 per cent of his body (to his arms, hands and upper chest). He had previous convictions for offences of violence and had spent some time in psychiatric wards.

35 Following a jury trial, the prisoner was convicted of kidnapping and attempted murder, and his co-offender of intentionally causing serious injury. The prisoner was sentenced to 12 years' imprisonment for attempted murder, and five years' imprisonment for the kidnapping - with 3 years to be served concurrently, fixing a non-parole period of 11 years. The co-offender was sentenced to 6 years' imprisonment with a non-parole period of 4 years.

36 The appellant also referred this court to the case of R v Huitt,[14] where a premeditated attack carried out by two offenders using a fire extinguisher and petrol resulted in a victim suffering severe and extensive burning to 55-60 per cent of his body, including to his head, back, arms, hands, buttocks and the backs of his legs. The principal offender pleaded guilty to intentionally causing serious injury, and was sentenced to 6 years with a non-parole period of 3 years and 6 months. His co-offender, who had shown a degree of remorse and lacked any relevant prior convictions, was sentenced to 4 years and 6 months' imprisonment, with a non-parole period of 2 years and 6 months.

37 Two further related cases, Emery v The Queen[15] and R v Rossi,[16] were relied on by the appellant. Rossi and his partner Emery went to the home of Emery's former partner (the victim) with the intention of burning a mattress in his driveway. Rossi was carrying a bucket of diesel fuel and a blow torch. When they arrived, the victim emerged from his home, and he and Rossi exchanged punches. Rossi then threw diesel fuel over the victim and set him alight with the blow torch.

38 The victim suffered burns to 5-15 per cent of his body, and by the time of sentence his injuries had largely resolved without permanent physical disability. The attack had a lasting psychological effect, and the victim could not work for six months. Following a jury trial, Rossi was convicted of intentionally causing serious injury, and sentenced to 7 years' imprisonment with a non-parole period of 4 years.[17] The sentencing judge found that Rossi had reasonably good prospects for rehabilitation, and although he had considerable prior convictions, none of them pertained to offences of violence. His moral culpability was reduced in a limited way due to his depressive disorder, and psychological state. Emery, had a prior history of violence offences, but had offered to plead guilty to intentionally causing serious injury at a very early stage. On appeal, Emery's sentence was reduced to five years' imprisonment with a non-parole period of three years.

39 As we have said, the appellant relied on these cases before the sentencing judge. He submits that they provide a compelling basis for the conclusion that the sentence imposed was greatly in excess of a sound exercise of the sentencing discretion. The appellant further points to other authority dealing with worst category offending, but not involving the use of fire, in order to demonstrate his argument. The cases of Director of Public Prosecutions v Terrick,[18] and Arthars v The Queen,[19] and Ali v The Queen,[20] provide examples of some of the largest sentences imposed for intentionally causing serious injury and which, it is said, illustrate the excessive nature of the sentence here imposed.

40 In Terrick, three offenders launched an 'unprovoked, random and savage' attack on a German tourist, from whom they had demanded money.[21] The trio punched the victim until he fell to the ground, and then kicked his head and upper body, continuing well past the point at which the victim had lost consciousness. The victim was then left unconscious and bleeding on the ground, suffering life-threatening injuries, with permanent physical and mental disability resulting.

41 Two of the offenders, Terrick and Marks, were aged 26 at the time of the offending, and both had serious prior convictions, including for offences of violence. Both offenders pleaded guilty to intentionally causing serious injury. The Court of Appeal found that

[t]he objective gravity of the offending conduct, considered in conjunction with their antecedents, placed these offences in the worst category of these crimes.[22]

42 On a Director's appeal, Terrick and Marks were each re-sentenced to 11 years and 6 months' imprisonment with a non-parole period of 9 years, allowing for double jeopardy.

43 Arthars involved premeditated offending undertaken by Arthars, Plater and three co-offenders, who went to the victim's home and attacked him, including to his head, with sticks, poles, bats or clubs. The offenders also kicked the victim, whilst lying on the ground unable to defend himself. The victim was left with permanent brain damage and physical disabilities. The offenders were then further involved in retributive abuse of the victim's family.

44 Arthars, who had mental health issues, was sentenced to 9 years and 6 months' imprisonment, and Platers to 10 years' imprisonment. A non-parole period of 7 years was fixed in respect of both offenders. Their appeals against the severity of their sentences were dismissed.

45 We have noted that the appellant here received the second highest sentence for intentionally causing serious injury ever imposed. The only case in which a greater sentence was imposed was in Ali v The Queen.[23] In that case, Ali, whilst incarcerated, engaged in an unprovoked attack on a fellow prisoner who was suffering from mental illness. Ali punched and kicked the victim, and jumped or stomped on his head repeatedly while he was lying on the floor in the foetal position. Following the attack, the victim did not regain consciousness for 13 days. The victim suffered a severe brain injury, from which he will not recover, and was taken to a nursing home, and is unable to walk or care for himself in any way.

46 Ali, who was 38 years old, had 104 prior convictions, including for offences involving violence. He pleaded not guilty, and did not accept responsibility for the offending, telling prison staff that the victim had suffered a fit. After facing three trials, Ali was sentenced to 15 years' imprisonment, with a non-parole period of 12 years.

47 Terrick, Arthars and Ali were all worst category offending. The appellant submits that, despite significant differences in his age, his plea, his remorse, prior convictions, the severity of the attack and the injuries caused, he received almost the same sentence as Ali. The appellant contends that by comparison, it is clear that the present sentence is manifestly excessive. The sentence imposed on the appellant is the second largest sentence ever imposed on a charge of intentionally causing serious injury, including those sentences imposed following a not guilty plea. The appellant submits that the fact that lesser sentences have been imposed in offending where the victim has sustained permanent and significant brain damage, further supports his complaint of manifest excess.

Current sentencing practice: intentionally causing serious injury

48 Sentencing judges are required by s 5(2)(b) of the Sentencing Act 1991 to have regard to current sentencing practice. While sentences imposed in other cases are not precedents, nor should they be considered to restrict the sentencing judge's instinctive synthesis, they do play a role in informing the instinctive synthesis, 'particularly insofar [as] such an overview may provide a general guide to current sentencing practices'.[24] Current sentencing practice, including an examination of comparable cases, can provide a relevant 'yardstick' by which a sentencing court may ensure consistency in sentencing and in the application of the relevant legal principles.[25] It does not offend the principle of intuitive synthesis, nor is it unhelpful to a sentencing judge to be aware of the patterns of sentencing. That is not to say the range of sentences imposed in the past necessarily fixes the boundaries within which future sentences must be passed, but an examination of the circumstances of other worst category offending for intentionally causing serious injury and in particular, such offending by the use of fire, informs a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle.

49 Notwithstanding the unequivocal seriousness of the present offending, which justifies its categorisation as a worst case offence, it must be recognised that the objective gravity of cases falling within this category will vary as will the characteristics of the offenders.

50 We turn to an examination of the subjective characteristics of the appellant.

51 First, the appellant submits that being 22 years old at the time of sentencing, his youth was a relevant consideration. While not afforded a great deal of weight, it is clear that the sentencing judge did consider that the appellant's youth played a role in sentencing, as referred to earlier. The judge said:

Your age is a factor that has weighed heavily on my mind, upon my first reading the depositions in this matter. However, there must come a time when the circumstances of the offending push the age of the offending into the background. In my view, this is such a case. I would have imposed a heavier sentence than what I am about to if you had been older, but the sentence I am imposing is a substantial one, in any event.[26]

52 The general primacy of an offender's youth as a sentencing consideration was emphasised in Azzopardi v The Queen,[27] where Redlich JA (with whom Coghlan and Macaulay AJJA agreed) said:

Firstly, young offenders being immature are therefore 'more prone to ill-considered or rash decisions'. They 'may lack the degree of insight, judgment and self-control that is possessed by an adult'. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. As Vincent JA explained in Director of Public Prosecutions v SJK & GAS:

In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the

situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.

Secondly, courts 'recognize the potential for young offenders to be redeemed and rehabilitated'. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, 'is one of the great objectives of the criminal law'. The added emphasis for the purposes of sentencing on realisation of a young offender's potential to be rehabilitated is further justified because of the community's interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending. As stated in R v Lam & Ors,

A primary objective of the criminal justice system is to achieve crime prevention to protect the public. The rehabilitation of an offender should not be seen as a consideration inimical to that objective. Crime prevention to protect the public and the rehabilitation of the offender are interlinked objectives. In sentencing there is thus a broad public interest in taking into account the youth of the offender.

Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender's prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community. As Fox J stated in R v Dixon:

The reasons are obvious enough: the prisoners are kept in unnatural, isolated conditions, their every activity is so strictly regulated and supervised that they have no opportunity to develop a sense of individual responsibility, they are deprived of any real opportunity to learn to live as members of society, their only companions are other criminals...

When, therefore, a court has to consider whether to send a young person to gaol for the first time, it has to take into account the likely adverse effects of a gaol sentence. A distinct possibility, particularly if the sentence is a long one, is that the person sent to gaol will come out more vicious, and distinctly more anti-social in thoughts and deed than when he went in. His own personality may well be permanently impaired in a serious degree. If he could be kept in gaol for the rest of his life, it might be possible to ignore the consequences to society, but he will re-enter society and often while still quite young. His new-found propensities then have to be reckoned with. A substantial minority of persons who serve medium or long gaol sentences soon offend again.[28]

53 In this context the appellant emphasised the importance of rehabilitation of young offenders, especially given the 'corrupting influences' that incarceration may have on such offenders,[29] in exercising the sentencing discretion. The appellant submits that the following factors, of which only the final two were considered by his Honour, 'bode well' for his prospects of rehabilitation:

(i) the appellant began using ice at the age of 13, and had been 'bingeing' on the drug for 3-4 days at the time of offending. Since being imprisoned, clear urine screens have been returned;

(ii) the appellant has made genuine efforts to better himself, undertaking a number of programs and courses in gaol, including programs relating to works skills, drug and alcohol abuse, mental health, stress management, work planning and life skills, relapse prevention, family law, conflict management and communication skills;

(iii) the appellant had previously worked as a bricklayers' labourer, demonstrating a willingness to be a productive member of society;[30] and

(iv) the appellant has had the continued support of his family and friends.[31]

54 His Honour noted that it was difficult to assess the appellant's prospects of rehabilitation, noting that he had been

'given chances before and do not seem to have accepted them. This is [his] first instance of acting violently, but it is an horrific example of it.[32]

55 As his Honour endeavoured to do, the mitigating considerations of youth must be balanced against the objective gravity of the offending. The more serious the nature of offending, the less weight will be afforded to an offender's youth. As Redlich JA further observed in Azzopardi:

[t]he general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitagatory consideration of youth be viewed as all but extinguished.[33]

56 In the present case, his Honour did not completely extinguish the mitigatory consideration of youth. Rather, as part of the instinctive synthesis, he concluded, having regard to the degree of criminality associated with the offending conduct, youth could not play a predominant role in sentencing the appellant.

57 The sentencing judge found that the appellant was genuinely remorseful for his actions. His role in attempting to extinguish the flames, resulting in extensive burns to his hands and arms, and his phoning emergency services, showed some limited degree of concern for the victim's fate. His remorse for what he had done to the victim is more amply demonstrated by his enquiries of the hospital as to her well- being and his early plea of guilty.[34]

58 The extensive burns to his hands and arms, caused the appellant to spend three days in hospital.[35] This, it is argued, demonstrated a degree of additional punishment. It is not apparent from the sentencing remarks, delivered almost immediately after the plea, whether this was taken into account. His conduct in the immediate aftermath to the offence together with the fact that he did not bring the petrol to the scene, did however enable the judge to conclude that the offence was not premeditated.

59 His Honour referred to the appellant's previous criminal record arising from two appearances in the Magistrates' Court, and three in the Children's Court.[36] The history involved a weapons charge, but no prior convictions for violence. In describing the appellant's previous convictions as 'numerous', complaint is made that it is not clear from the sentencing remarks whether his Honour appreciated the limited seriousness of that prior offending and thus afforded it more weight than was warranted. Be that as it may, in committing the subject offence, the appellant breached a community corrections order and his bail. These were rightly treated as aggravating circumstances.

60 Every judge, no matter that they may have great experience in the area of the law in which they are presiding, is at risk of being unduly influenced by factual matters which are unexpectedly placed before them. The hospital photographs tendered on the plea, and seen for the first time by his Honour and defence Counsel on the plea, were objectively horrific. They were taken two weeks after the victim was admitted to hospital, and show, in quite graphic details, the nature of her burns, showing large areas of her skin affected by deep and full thickness burns. They were the sort of matter that was inherently likely to illicit an emotional response.

61 The appellant made much of the fact that the hospital photographs played a significant role in the exercise of the sentencing judge's discretion. During the course of the plea, counsel for the defence referred to the lack of a victim impact statement. His Honour replied, 'Well do I need one? I've seen the photos. Has your client seen the photos?' The appellant then relies upon the fact that the judge proceeded to sentence the appellants within a few moments after the conclusion of the plea in mitigation. Strong criticism was made by the appellant of the haste with which such a large sentence was imposed.

62 It is not at all clear what knowledge, if any, the sentencing judge had of this matter before he commenced hearing the plea in mitigation that day. But given the nature and seriousness of the offence and the fact that his Honour was obviously entertaining the prospect of imposing a very substantial term of imprisonment, it would have been prudent to take some further time to give measured consideration to the submissions made on the plea and to consider to what extent the authorities relied upon by the appellant should be weighed in the sentencing calculus.

63 In Director of Public Prosecutions v OJA,[37] Nettle JA, with whom Ashley and Redlich JJA agreed, warned of the dangers of allowing emotional responses to cloud a sentencing judge's exercise of discretion:

... For as Hayne J said in Ryan, the sort of emotion which offending of this kind evokes must be put aside. Disgust and revulsion for the offender and sympathy for the victims cannot be allowed to cloud the sentencer's vision. Sentencing principles in general and the Sentencing Act 1991 in particular demand that a sentencing judge balance against the enormity of OJA's offending such mitigating factors as there may be; that OJA be granted an appropriate level of discount on sentence in recognition of his guilty plea, and an added significant or considerable discount for disclosing offences which might otherwise not have come to light; that the judge avoid the imposition of a crushing sentence; that the sentence be such as to facilitate the realisation of whatever prospects of rehabilitation may remain; and that the judge pay heed to current sentencing practices.[38]

64 We consider there to be much force in the appellant's submissions that in such circumstances the instinctive synthesis will not necessarily align with one's first instincts and that the wisdom occasioned by time and calm reflection is likely to have been of benefit to the sentencing exercise.

65 The instinctive synthesis required the judge to give proper weight to the enormity of the appellant's offending including its obviously devastating effect upon the victim. The fact that the injuries were inflicted within a relationship of trust between the appellant and the victim is an aggravating circumstance. The circumstances required significant weight to be afforded to general deterrence, specific deterrence and denunciation.

66 In assessing whether the sentence is manifestly excessive it is important to recognise the limitations on the use that may be made of the worst category offending authorities relied upon by the appellant and in particular those involving the use of fire to intentionally inflict serious injury. Those limitations were well explained in Hudson v The Queen,[39] in these terms:

An attempt to demonstrate that within the determined category - the worst category of the offence - there were worse cases which had attracted the same sentence or that there were cases no worse which had attracted a lesser sentence, does not disclose whether the challenged sentence is unreasonable or unjust.

...

Different types of worst category cases

Once there are features of the offending which require it to be characterised as falling within the worst category, the sentence will not become unreasonable or unjust because a lesser sentence has been passed in a like case or the same sentence has been passed for a case said to have worse features. The 'worst' category is to be understood as the joint judgment in Veen v The Queen described it:

... the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category.

...

Reference to features of 'comparable' cases in that worst category which are not present in the case under examination will not demonstrate that the impugned sentence is beyond the range of sentences that were available to the sentencing judge in the exercise of his discretion.[40]

67 Notwithstanding the latitude that must therefore be extended to sentencing judges, particularly when sentencing for an offence falling within the worst category, there is such a disparity between the sentence imposed and current sentencing practice as illustrated by the authorities relied upon by the parties, that we are satisfied that there has been a breach of the underlying sentencing principle of equal justice.[41] The sentence imposed is unjustifiably disparate from other sentences imposed for worst category offending by offenders in comparable circumstances.

68 Subtle distinctions between serious injuries should be eschewed but without minimising the horrific injuries suffered by the victim, there is a clear distinction to be made here from those cases where the victims have sustained lifelong major physical or mental disabilities. When this consideration is combined with the lack of premeditation, the appellant's genuine remorse, youth and lack of relevant prior offending, and prospects for rehabilitation, the conclusion is, on our view, inescapable that the sentence imposed on the primary charge was well beyond a reasonable exercise of the sentencing discretion.

69 Ground 1 also extended to two summary charges, the first involving the use of the samurai sword, and the second involving three stolen credit cards found in the appellant's premises. The sentences imposed on both of these offences, constituting 50 per cent of the maximum available penalty, were in our opinion also manifestly excessive. Given the separate nature of the offending, some degree of cumulation of each charge was necessary, but in our opinion the amount of cumulation was also excessive.

70 In the result, for the reasons we have given, we would allow the appeal and re-sentence the appellant to a term of imprisonment of 10 years and 6 months on charge 1, 6 months' imprisonment on charge 8 (use of prohibited weapon), and 3 months' imprisonment on charge 9 (deal with property suspected of being proceeds of crime. We would order that 3 months of the sentence on charge 8, and 1 month of the sentence on charge 9 be served cumulatively with the sentence on charge 1, making a total effective sentence of 10 years and 10 months' imprisonment. We would fix a non-parole period 7 years 6 months.

[1] The appeal also included an application for leave to appeal in respect of ground 2, which read: evidence regarding the impact of the offending upon the victim obtained after the imposition of sentences throws a different light on the circumstances which existed at the time of sentence, thereby revealing a substantial miscarriage of justice.

[2] DPP v Kilic (Unreported, Court of Appeal, Redlich JA, 12 August 2015).

[3] DPP v Kilic [2015] VCC 392, [5]-[7] ('Reasons').

[12] Ibid [36]-[37] (citations omitted).

[17] A subsequent appeal against sentence was dismissed, see Rossi v R [2012] VSCA 228.

[19] (2013) 39 VR 613 ('Arthars').

[21] Terrick [2009] VSCA 220; (2009) 24 VR 457, 471 [56].

[24] DPP v Zhuang [2015] VSCA 96, [30] (citations omitted).

[25] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, [49] [53]-[54] ('Hili'). See further Arie Freiberg, Fox & Freiberg's Sentencing: State and Federal Law in Victoria (Lawbook, 3rd ed, 2014) 451-5 [6.235].

[28] Ibid 53-55 [34]-[36] (citations omitted).

[33] Azzopardi [2011] VSCA 372; (2011) 35 VR 43, 57 [44].

[38] Ibid 192 [17] (citation omitted).

[40] Ibid 618-620 [36]-[38] (citations omitted).

[41] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610 (Mason J); 610 (Gibbs CJ), 616 (Wilson J), 623-4 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ), 333 (Kirby J)).

At a glance

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Judgment (124 paragraphs)

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Cases Cited (7)