Kumar v The Queen [2013] VSCA 191

1 I will invite Buchanan JA to deliver the first judgment.

2 The applicant was arraigned in the County Court and pleaded guilty to an indictment containing a charge of intentionally causing serious injury. After a plea on 17 October 2012, the applicant was sentenced to be imprisoned for a term of 4 years and 6 months. A minimum term of 2 years and 6 months' imprisonment was fixed.

3 The time to file and serve an application for leave to appeal against sentence was filed on 14 November 2012. It appears from an affidavit by one Fiorella Fabian, a solicitor employed by Victoria Legal Aid, that at least from 30 October 2012, the applicant has desired to appeal against sentence. Unfortunately for him, it was not until 10 April 2013 that an application for leave to appeal was finally made.

4 By memorandum dated 4 November 2012, the public defender who represented the applicant at the plea stated in his opinion that there were no reasonable grounds for appeal. On 13 November 2012, the solicitor from Victoria Legal Aid, who acted for the applicant, submitted an application for financial assistance. As a result, the merits of the applicant's case were considered by the appeals team of Victoria Legal Aid. On 17 January 2013, the appeals team advised a legal policy unit of Legal Aid that there were reasonably arguable grounds for appeal. By letter dated 6 February 2013, the applicant's application for legal assistance was refused.

5 On 8 February 2013, Mr McLoughlin, a senior public defender employed by Victoria Legal Aid, was briefed to draft grounds of appeal and a written case. Mr McLoughlin completed the written case on 28 February 2013.

6 On 3 April 2013, Ms Fabian submitted an application for reconsideration of the refusal of funding to the applicant. On 5 April 2013, Ms Fabian was notified that

legal assistance had been granted. Accordingly, on 10 April 2013, an application for leave to appeal against sentence was lodged.

7 The applicant cannot be blamed for the delay and it does not appear that any prejudice has been occasioned thereby. I turn to the prospects of success of the application.

8 In the early hours of 14 March 2011, the applicant and the victim of the crime, Andrew Mackay, were at a night club in South Melbourne. The applicant went to the club with a friend, Danielle LaRose. Ms LaRose danced with the victim and was seen by the applicant to hug and kiss Mr Mackay. The applicant confronted Ms LaRose and raised his hand at her, causing Ms LaRose and Mr Mackay to move apart. Suddenly the applicant raised a beer bottle he had been holding and struck Mr Mackay in the face with it. He then punched Mr Mackay in the face. The applicant dropped the bottle and fled from the scene.

9 Mr Mackay suffered lacerations to his upper and lower ribs requiring stitches, three displaced teeth and two fractured teeth. He incurred medical expenses totalling $22,000 and for a year experienced difficulty in eating. He feels that he has been disfigured.

10 The applicant is 25 years' old. The applicant's father is a policeman in the Punjab where the applicant was raised. The applicant was educated to Year 12 standard. The applicant came to Australia in 2006 on a student visa. He has taken a course in hospitality and has worked as a chef at three restaurants. The applicant has no prior convictions.

11 The applicant married two weeks after the assault upon Mr Mackay. A month or so after the marriage, the applicant's wife left and travelled to the Northern Territory on a working holiday. The applicant told the psychologist that he was confused about his marriage.

12 The psychologist made a report which was tendered in the course of the plea. The psychologist said that in his opinion, the applicant was immature and had been suffering from an adjustment disorder with mixed anxiety and depressed mood. At the time of the offence, he was engaging in stress related drinking. The psychologist said:

As far as I could ascertain, he does not have a general management problem and his offending behaviour was situationally motivated and out of character.

13 The sole ground of the application is that the sentence is manifestly excessive. Counsel for the applicant submitted that the sentence was outside the range, that is, it was a sentence beyond that which a reasonable sentencing judge could impose. This was said to be apparent from the decision of this Court in Winch v The Queen.[1]

14 Winch concerned an appeal from a sentence of five years' imprisonment with a minimum term of three years' imprisonment which was imposed for an offence of recklessly causing serious injury. The offender struck his victim with a glass of beer which broke on impact causing lacerations to the victim's face. The Court allowed the appeal and resentenced the offender to a term of two years and nine months' imprisonment with a nonparole period of 15 months. The Court noted that in none of the 16 County Court cases decided between 2007 and 2009 for recklessly causing serious injury by glassing, that is striking with glass or bottle, had any offender received a sentence in excess of three years and nine months' imprisonment.

15 There is an important distinction between the present case and Winch. In that case the offence was recklessly causing serious injury, for which the maximum sentence was 15 years' imprisonment. The applicant, on the other hand, pleaded guilty to intentionally causing serious injury, for which the maximum sentence was 20 years' imprisonment. The offence of recklessly causing serious injury requires foresight of the probability of serious injury and a determination to proceed regardless of that probability. The offence of intentionally causing serious injury requires an intention to inflict serious injury.

16 I do not accept the submission that there is little difference between intent to cause serious injury and foreseeing a high probability of serious injury. The applicant fell to be sentenced as a person who desired to inflict serious harm.

17 The instant case is, I think, a serious example of the offence and ought to attract a higher sentence than the reckless infliction of serious injury by wielding a bottle.[2]

18 The facts of the present case are not dissimilar to those in a number of cases of recklessly causing serious injury. I do not think, however, that the applicant should profit thereby. The fact that the Crown on occasion agrees, for reasons which are usually not revealed, to accept a plea to a lesser crime than that which at first sight seems appropriate, ought not to lead to the imposition of other than proper sentences.

19 In any event, the County Court cases referred to in Winch should not be regarded as a straitjacket limiting the sentencing discretion in cases of causing serious injury. The Court in Winch said:

We agree with the Crown's submission that the general run of sentences imposed for glassing as an instance of recklessly causing serious injury does not sufficiently reflect the fact that such conduct is inherently dangerous, and should not be treated as a less serious form of the offence of recklessly causing serious injury.[3]

20 Counsel for the applicant relied upon the fact that the bottle wielded by the applicant did not break, that the applicant had no prior convictions apart from a conviction for a driving offence, was a good worker, was remorseful, had pleaded guilty at an early stage and had good prospects of rehabilitation.

21 Although I think the fact that the bottle did not break was simply fortuitous, the other factors have some weight. Nevertheless, I think that the sentence, although comparatively stern, was not manifestly excessive. Rather, the sentence was

proportional to the circumstances of the offence by this offender. The attack launched by the applicant was vicious and unprovoked. The victim's conduct could hardly justify being struck in the face with a bottle. The injuries inflicted upon Mr Mackay were painful and longlasting.

22 Although I would extend the time within which to lodge an application for leave to appeal because I think that the application did have some prospect of success, and I would grant leave to appeal, I would nevertheless dismiss the appeal for the reasons I have stated.

23 I, too, would grant leave to appeal but dismiss the appeal. Subject to what follows, I would do so for the reasons which his Honour has given.

24 As has often been stated, the ground of manifest excess is very difficult to establish. It involves demonstrating to the satisfaction of this Court that it was not reasonably open to the sentencing judge, taking all relevant matters into account, to impose the sentence in question on the particular offender for the particular offending. That is a stringent test, founded on the basic principle that sentencing is for judges and magistrates at first instance and not for the Court of Appeal. We intervene only where something is shown to have gone clearly or badly wrong.[4]

25 The question, therefore, is whether the sentence imposed in this case fell outside the range reasonably open to the sentencing judge in these circumstances.

26 Axiomatically, the determination of the range applicable to the case at hand is informed, but not governed, by current sentencing practices for the relevant offence as illustrated by comparable cases of comparable severity. In this regard, the Court recently endorsed what Redlich JA said in Ashdown v The Queen:

[I]t is [current sentencing practice], as revealed by those comparable cases concerned with the relevant category of seriousness of the offence, that will generally inform the range of sentences that are reasonably open to the sentencing judge ...[5]

Consistency in sentencing, fundamental to the administration of criminal justice, requires adherence to current sentencing practice unless a specific circumstance exists which warrants departure from that practice. The law requires that a discretionary decision must be made in conformity with the well settled principles as must appellate review of such decisions. By this judicial method the law promotes consistency in decision making and diminishes the risk of arbitrary and capricious adjudication.[6]

27 There is a particular difficulty confronting a manifest excess argument where the offence is intentionally causing serious injury ('ICSI'). As I noted in Nash v The Queen,[7] there is wide variation in sentencing for this offence. Counsel for the present applicant, a very experienced senior public defender from Victoria Legal Aid, agreed that this was so. The degree of variation is such that it cannot be explained by differences in factual circumstances, or by differences in the personal circumstances of different offenders. This is a matter of concern, as every person standing for sentence for this offence is entitled to expect that he or she will be treated similarly to any other person whose offending and circumstances are comparable.

28 I suggested in Nash, and I reiterate, that the wide variation in sentencing for ICSI may make it appropriate for application to be made to this Court for a guideline judgment under s 6AC(c) of the Sentencing Act 1991 (Vic). Such a guideline would set out the criteria by which the sentencing court would assess the seriousness of a particular instance of ICSI.[8] A guideline of that kind should facilitate the assessment of seriousness in the case at hand, and enable meaningful comparisons to be made between one case and another. Further, reference to a standard set of criteria should make it more readily apparent, both to the person being sentenced and to other courts examining the decision, how the sentence was arrived at.

29 As Buchanan JA has noted, it was contended for the applicant that the present offence had many of the characteristics of the typical glassing case described in Winch.[9] (In that case, the offender had pleaded guilty to recklessly causing serious injury ('RCSI'), rather than ICSI). Redlich JA and I described the typical features as follows:

'Glassing' is the description which is applied where one person strikes another with a glass or bottle, typically to the face or the head. If the glass item is not already broken, it will almost inevitably break on impact, making it a most dangerous weapon.

...

That is what occurred in the present case. The appellant struck his victim in the face with a beer pot. It smashed on impact and the victim suffered severe lacerations. He is permanently scarred, both physically and psychologically.[10]

30 Counsel for the applicant also drew attention to the following paragraphs in Winch:

The offence of RCSI is only committed if the offender foresaw the probability that his/her action would cause serious injury to the victim, and went ahead regardless of that probability. This is not mere carelessness, where the offender fails to appreciate the risk of injury. This is conscious disregard of a risk of serious injury which the offender knows to exist.

...

As this court pointed out in Ashe v R, the court's assessment of the seriousness of a particular instance of RCSI will involve considering both the degree of probability that serious injury will result, and the degree of seriousness of the injury thus foreseen. What makes glassing a serious instance of RCSI - almost by definition - is the obvious dangerousness of a glass or bottle (whether broken or not) when used to strike a blow to the face or head. Hence, the offender who is convicted of this offence of recklessness is to be taken to have foreseen a high probability of serious injury.[11]

31 The applicant argued that, because glassing is a serious instance of RCSI, the level of culpability was not significantly greater when the offence charged in respect of glassing was (as here) ICSI. I respectfully agree with Buchanan JA that that is simply not correct.

32 As a matter of criminal responsibility, there is a fundamental distinction between the two cases. In the one (RCSI), a person proceeds with a course of action, reckless as to whether the probable outcome (serious injury) will occur. In the other (ICSI), a person proceeds with a course of action with the conscious intention of causing serious injury. As counsel for the Crown put it, in the latter case the causing of serious injury is what the offender wishes and intends. By the plea, the offender admits that his conduct was purposely directed at producing that result. It is plain, when that distinction is made clear, why ICSI carries a higher maximum penalty (20 years) than RCSI (15 years) and why - other things being equal - glassing done with the intention of causing serious injury should attract a higher penalty than if serious injury is caused recklessly.

33 In support of his submission, Mr McLoughlin drew attention to the table of ICSI sentences attached to my judgment in Nash. He also provided a table, which he himself had prepared, of sentences for offences of both ICSI and RCSI.[12] In the interests of making useful information about current sentencing practices available for the assistance of sentencing judges, I will attach Mr McLoughlin's table as an appendix to my reasons.

34 The material relied on for tabulations such as these is very often taken from the invaluable summaries which the Judicial College of Victoria publishes in its Sentencing Manual. If I may say so, the assistance provided by the Manual would be even greater if, in addition to the summaries, the appeal decisions were assembled in table form with the key features of each case identified. Such a tabulation enables comparisons more readily to be drawn between cases, and distinctions between cases to be more readily apparent. The Court itself has in recent years made its own tabulations of this kind, in order to obtain a clearer picture of current sentencing practices for the relevant offence.[13]

35 Finally, the vast majority of glassing cases appear to be prosecuted, or at least sentenced, as RCSI cases. As counsel for the Crown pointed out, the basis of a plea of guilty is a matter of negotiation, and circumstances will vary from one case to the other. But, if the present was a case in which it was appropriate for the Crown to refuse a plea to RCSI and accept a plea only to the more serious offence of ICSI, then it would seem to follow that the same position should be maintained in many more glassing cases, given that they are so similar factually.

36 As Mr McLoughlin pointed out, it is difficult to see how striking someone deliberately in the face with a glass or bottle, broken or otherwise, could be regarded as anything other than an act of intentional causing of serious injury. I simply make the point that, if this was a case of ICSI, so must many other glassing cases be.

Abdifar v The Queen [2012] VSCA 66

Closed head injuries, a haemorrhage in his right eye, fractured right and left heels, and multiple lacerations and contusions. He needed surgery on his feet and stitches to his face. He was unable to walk or work for a number of months, and lost his job as a result. At the time of sentencing, he was suffering from chronic pain, and had developed post-traumatic stress disorder

A suffered relevant mental illness. Assaulted V because of unpaid drug debt. V was so frightened he jumped from balcony to floor below. Relevant prior convictions.

Bennett v the Queen [2011] VSCA 253

Tiny subarachnoid haemorrhage, a closed head injury with loss of consciousness and post-traumatic amnesia, a laceration to the left ear, a laceration to the left hand requiring mallet finger splinting and being such as would leave permanent disability of a finger, scalp lacerations, and left eye contusions.

B affected by psychiatric/psychological condition. Relevant priors. Subject to CBO at time of offences

DPP v Anderson [2013] VSCA 45

Stab wound to the middle of the back, a large laceration to left upper arm and large lacerations to both upper legs. All three lacerations were to the bone, and required surgical repair. Complete left radial nerve laceration. No neurological return and no function in the fingers and thumb of his left hand. Prognosis in respect of its return is guarded. Several months in hospital and in rehabilitation after the incident. Ongoing physiotherapy. Sclerosis on arm, requiring treatment three times a week.

Attacked a worker in a supermarket after being pursued for shoplifting. Young offender with psychiatric problems and long history of offending, including serious violence.

DPP v Gerrard [2011] VSCA 200; (2011) 211 A Crim R 171

Gaping wound in the neck. Plastic surgery to repair the injury. Full recovery, although neck is scarred.

Highly unusual and extremely powerful mitigating circumstances including exceptional hardship to family.

Emery v The Queen [2011] VSCA 212

Burns causing some scarring but largely without permanent physical disability. Traumatic psychological effects yet to resolve.

Diesel fuel thrown onto V and set alight. E had long history of prior offences including violence.

Fletcher v The Queen [2011] VSCA 4

A fully penetrating stab wound to the hand, cuts to the ribs, wrist, shoulder and thigh from a machete, a stab wound to the shoulder, head cuts, and burns to his penis, testicles and upper legs.

Victim tortured after being involved in a drug rip off. Late PG. Serious prior convictions including violence.

Fram v The Queen [2013] VSCA 96

Loss of six teeth, bruising or soreness to the left side of his head and face, bruising to the right jaw, neck and lower back.

Beaten and kicked by F and 2 others. F unhappy with V's behaviour towards his sister.

Hards v The Queen [2013] VSCA 119

V rendered unconscious by the initial blow from the applicant, a closed swollen left eye, two lacerations to his left eyebrow requiring five stitches, tenderness to the back of his head, a 'blow out' fracture of his left orbit and bruising able to be conservatively managed, surgery not required.

H spear-tackled V and drove head onto concrete pavement then punched and kicked him as he lay unconscious. Earlier argument in bar. H 20 at time and of good character.

Jackson v The Queen [2013] VSCA 14

Left occipital condyle fracture (i.e. a neck fracture); left temporal inter-cranial contusions; left traumatic sub-arachnoid haemorrhage; bilateral fractured eye sockets; abrasions to the forehead, chin, hands and knees; right black eye, loose teeth and two small cuts inside the mouth. Residual brain damage affecting functioning.

J (a building worker) attacked V (a site manager) whom he believed responsible for his employment being terminated. Delay of 3 years in prosecution. Good work history.

Jong v The Queen [2011] VSCA 27

Skull fracture, subdural and subarachnoid haemorrhages in brain, complex fractures to nose, eye sockets, right cheekbone and right jaw and a fracture to arm near elbow. Multiple lacerations and missing teeth. Facial bones had become unhinged from the rest of his skull. Life threatening injuries. 14 days in a coma. Permanent residual cognitive defects.

J and 2 others attacked V after he had yelled at them as they drove past after a night out drinking. Bottle and club lock used. J was 21yo and of previous good character.

Kavanagh v The Queen [2011] VSCA 234

V stabbed in abdomen. Life threatening injuries. Perforated bowel. Ongoing deficits in functioning.

V in relationship with K. Getting ready to leave after argument. K stabbed him without warning and initially refused to call ambulance. K had suffered very deprived life. Psychiatric problems and alcohol related brain damage.

McGillivray v The Queen [2012] VSCA 3

5 stab wounds in back. Emergency surgery. Constant back pain and ongoing headaches. Unable to work for three and a half months after the attack.

McG stabbed V because he felt belittled and insulted by him at a party. 20yo, troubled upbringing. One Children's Court prior for assault with a weapon.

Nash v The Queen [2013] VSCA 172

Left occipital condyle fracture (i.e. a neck fracture); left temporal inter-cranial contusions; left traumatic sub-arachnoid haemorrhage; bilateral orbital fractures (i.e. fractured eye sockets); abrasions to the forehead, chin, hands and knees; and right black eye, loose teeth and two small cuts inside the mouth. Loss of all hearing to right ear and all but six per cent hearing to left ear.

Savage attack on partner's mother ('a frail woman') after argument. History of drug problems. Significant prior convictions.

N C H v The Queen [2012] VSCA 129

Multiple stab wounds including a stab wound to abdomen which perforated colon. Three other stab wounds to abdomen, a stab wound over the left shoulder and a displaced scapular fracture, a stab wound to his left thigh, and a further stab wound near his shoulder. Wounds potentially life-threatening but V recovered. Permanent scarring which causing embarrassment, ongoing psychological effects and a continuing fear of further attack.

Attack by 3 men on club security guard after previous refusals to allow entry. N C H sentence discounted for undertaking to give evidence against co-offenders. Sentence described as stern by court.

Priestley v The Queen [2011] VSCA 378

Perforation in the anterior distal colon, internal bleeding. 10 days in hospital. Breached parole led to reduction in sentence.

P and co-offender attacked V whom they had visited to buy drugs. Stabbed with pen knife. Prior convictions.

Rodden v The Queen [2011] VSCA 9

Lacerations to the neck, two lacerations of the scalp in the occipital region which were treated with staples, a fracture of the right eye socket and a right periorbital haematoma.

Attacked V during aggravated burglary. Accomplice. Serious prior history of violence. Court considered sentence very lenient.

Smith v The Queen [2013] VSCA 112

Spiral fracture of the fibula, an injury to the ankle joint and some ligament damage, deep cut across the inside of right wrist, which partially lacerated the ulnar nerve and lacerated the ulnar artery. Extensive surgery to repair injuries. In hospital ten days, could not work for almost eight months, in plaster for eight months. Lost some strength in hand, lost sensation in a number of his fingers. Stopped running and playing rugby.

S attacked V after alleged slight to his girlfriend in hotel. Came to hotel for that purpose. Subsequently tried to have security footage destroyed.

Trowsdale v The Queen [2011] VSCA 81

Very serious injuries to right eye and to the surrounding area of face. Extensive surgical intervention; severe diminution of vision in right eye with a very uncertain prognosis.

T threw pot glass across bar at V. T aged 24. Resentment arose from Vs dancing with T's girlfriend at a club.

DPP v Batich [2013] VSCA 53

8 separate facial lacerations: to the left side of the head (two), eyebrow, upper eyelid, glabella, chin (two) and lower eyelid. The complainant underwent microsurgery to the frontal nerve branch of the damaged facial nerve.

Judicial review of decision to remit case to Magistrates Court. Issue whether that Court's jurisdiction adequate. 18yo offender under attack by victim.

Ellis v The Queen [2011] VSCA 36

14 centimetre laceration to the left side of face, commencing on his forehead, in front of the hairline, and extending down in the front of and below his left ear and two other lacerations on the scalp of three centimetres each. The lacerations required 17, 3 and 2 stitches respectively.

Struck victim with jug after earlier altercation. Manslaughter prior.

Noa v The Queen [2013] VSCA 4

Fractured eye socket, broken nose and severe swelling to the head. V now rarely leaves house and has resigned from employment. Relationships with girlfriend, friends and family affected adversely.

N 20 yo. Long psychiatric history plus anti-social personality disorder. Unprovoked attack on V with whom he had been drinking. Continued to punch after helpless on the ground. Late PG.

[1] (2010) 27 VR 658 ('Winch').

[2] See DPP v Monteiro [2009] VSCA 105, [11] (Maxwell P).

[3] Winch (2010) 27 VR 658, 664.

1. [4] See, eg, DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127]; Clarkson v The Queen (2011) 32 VR 361, 384 [89]; Mokbel v The Queen [2013] VSCA 118 [106].

[5] Ashdown v The Queen (2011) 219 A Crim R 454, 517 [174] ('Ashdown'), approved in Anderson v The Queen [2013] VSCA 138, [22].

[6] Ashdown (2011) 219 A Crim R 454, 523 [191].

[7] [2013] VSCA 172, [8] ('Nash').

[9] Winch (2010) 27 VR 658.

[11] Ibid 665 [35]-[36] (citations omitted, emphasis added).

[12] As the table makes clear, the sentences are for intentionally causing serious injury unless otherwise indicated.

[13] See, eg, DPP v C P D [2009] VSCA 114; (2009) 22 VR 533 (tables C and D); R v Broadbent [2009] VSCA 320; DPP v Patterson [2009] VSCA 222; Hogarth v The Queen [2012] VSCA 302; DPP v Anderson [2013] VSCA 45.