Noa v The Queen [2013] VSCA 4

2 For reasons that I will shortly set out, this application for leave to appeal against sentence should be dismissed.

3 After pre-trial legal argument over several days, on the fourth day of the hearing of this case in the County Court, the applicant pleaded guilty to one charge of recklessly causing serious injury contrary to s 17 of the Crimes Act 1958. The penalty for this offence is 15 years' imprisonment.

4 Following a plea hearing conducted over two days (11 September 2012 and 5 October 2012), on 11 October 2012 a judge of the County Court sentenced the applicant to be imprisoned for 2 years, and fixed a non-parole period of 9 months. The sentencing judge declared pursuant to s 6AAA of the Sentencing Act 1991 that, but for the plea of guilty, he would have imposed a sentence of imprisonment of 2 (2) years and 6 months, with a non-parole period of 15 months.

5 By a notice of application for leave to appeal against sentence dated 2 November 2012, and an accompanying written case, the applicant relies on one ground of appeal:

Both the maximum and non-parole period are excessive[1] having particular regard to:

(a) the mental health issues of the Appellant;

(b) good prospects of rehabilitation;

(c) high levels of support;

(d) substantial effects of imprisonment;

(e) limited prior history; and

(f) utilitarian nature of the plea.

6 It is necessary to say something about the facts surrounding the offending. During the evening of Friday 8 October 2010, the applicant, then aged 20 years, consumed alcohol with several others, including his girlfriend and the victim. In the course of the evening (or, perhaps, early the next morning), what the judge described as a 'dispute' arose between the applicant and the victim over the applicant's girlfriend. Although the victim's last memory was of standing in a CFA premises' car park (which was situated near the residential premises where some of the drinking had been taking place), other evidence established that the applicant - as the sentencing judge put it - 'violently assaulted the victim, punching him to the head until he fell to the ground, then punching him whilst he was on the ground'. Although on the plea the applicant's counsel disputed that the applicant kicked the victim to the head whilst he was on the ground, acting on the depositions (as he was entitled to do)[2] the judge was satisfied beyond reasonable doubt that the applicant 'repeatedly kicked the victim in the head'. It cannot be gainsaid that, as the judge observed, the applicant's actions were very serious indeed, and constituted 'a violent and unprovoked assault upon the victim'.

7 As a result of the attack upon him, the victim suffered a fractured eye socket, a broken nose and severe swelling to the head. His victim impact statement tendered on the plea records that, because of the fear flowing from the assault, the victim rarely leaves his house and he has resigned from employment. Relationships with his girlfriend, friends and family have been affected adversely.

8 As I have said, the single ground of appeal - to which six particulars are subjoined in support - claims the sentence imposed is manifestly excessive. The principal focus in the applicant's written case was on the applicant's mental health. In what I take to be an endeavour to invoke the principles in Verdins,[3] it is said that the applicant's 'continued incarceration is continual danger (sic) to himself and others'. I interpret this to be a submission that the sentence of imprisonment imposed 'will weigh more heavily on the offender than it would on a person in normal health'.[4]

9 In his reasons for sentence, the judge noted that the applicant had denied in his record of interview that he assaulted the victim. However, although he also noted that the applicant 'pleaded guilty at a late stage', the sentencing judge took into account in mitigation the plea of guilty as saving the cost of a trial and as sparing witnesses the ordeal of giving evidence. The judge also took into account in the applicant's favour the delay in the matter coming to court, and the fact that in the previous 12 months the applicant had taken steps to rehabilitate himself and 'lead a more constructive life'. Importantly, the judge took into account in the applicant's favour 'the principles[5] applicable to the sentencing of youthful offenders'.[6]

10 It is necessary at this juncture to say something of the applicant's mental health. On the plea, a report by a forensic psychiatrist, Dr Alan Jager, was tendered. The applicant had a long history of psychiatric ill-health. Dr Jager expressed the opinion - which the sentencing judge accepted - that the applicant suffered from Psychotic Disorder Not Otherwise Specified. The judge also accepted Dr Jager's opinion, expressed in a supplementary report, that 'any custodial sentence is likely to weigh more heavily on this individual than a person in normal health'.[7] It should also be noted that, quite distinct from the psychotic disorder, Dr Jager thought that the applicant had an Antisocial Personality Disorder which was 'not amenable to treatment'.

11 Counsel for the applicant on the plea had sought to rely on the applicant's mental condition at the time of the offence as reducing his moral culpability.[8] Very properly, the sentencing judge drew attention to the fact that there was a paucity of material before him to demonstrate that the applicant's psychiatric condition may have borne on the offending and thus moral culpability. Despite the plea hearing being adjourned so that such material might be gathered, on the resumption of the hearing on its second day no expert or other evidence was placed before the judge to draw a direct link between the applicant's psychiatric condition and the commission of the offence. Thus I think the judge was entitled to find that the applicant's 'chronic psychotic condition' did not reduce his moral culpability 'since there is no evidence relating the condition to your offending'.

12 As I have said, the single ground of appeal sought to be agitated claims that the sentence imposed is manifestly excessive. Although that ground is supported by particulars, no complaint of discrete error is made. The approach to a ground raising manifest excess was discussed by Young CJ in R v Kenny:[9]

In order to make good a submission that the sentences passed are excessive, it is essential for an applicant to show that the sentences are manifestly and not merely arguably excessive. Such a submission is not one which is capable of a great deal of elaboration. As the majority of the court said in Williscroft's Case,[10] to which reference has been made during the course of argument, the imposition of a sentence is in the last resort an individual sentencing judge's instinctive synthesis of the various factors involved, and when application is made to this court for leave to appeal on the ground that a sentence imposed in the court below is excessive, the approach of the members of this court must, I think, necessarily be the same. Each member of the court instinctively synthesises the relevant considerations and, having done so, considers whether in all the circumstances he is able to say that the sentence imposed is so obviously excessive that there must have been some miscarriage in the trial Judge's discretion.

13 Approaching the matter in the manner described in Kenny, I am far from persuaded that the sentence passed was manifestly excessive. Indeed, given the unprovoked nature of the attack, and the kicking of the helpless victim while he was incapacitated on the ground, in my opinion the sentence might well be characterised as lenient (even having regard to the various factors going in mitigation).

14 There seems little doubt that the applicant suffers from a chronic psychotic condition that will make incarceration for him more burdensome than for someone unafflicted by such a condition. However, there is no demonstrated connection between the applicant's condition and the offending, such that his moral culpability might be viewed as reduced. Thus general deterrence must be seen as a significant factor in the exercise of the sentencing discretion. It could not sensibly be argued that there is not a disturbing incidence of alcohol fuelled violence prevalent in the community.

15 Moreover, it seems to me that specific deterrence is also important in this case. The applicant has several prior convictions, including a suspended sentence of imprisonment imposed on 26 August 2009 for robbery and recklessly causing injury. Thus, although as one of the particulars to the ground of appeal suggests that the applicant has a 'limited prior history', the applicant cannot draw in his favour upon an unblemished record. The applicant's prior history, involving as it does violence, demonstrates a need for some measure of specific deterrence to be reflected in any sentence passed.

16 Further, although the applicant was able to rely on what the judge described as 'very impressive character witnesses', and on his incipient rehabilitation, the fact remains that the applicant fell to be sentenced for a serious assault which had caused the victim serious injury. As the judge correctly observed, denunciation of the applicant's conduct and just punishment needed to be manifested in the sentence.

17 Given the serious nature of the offence, and balancing the mitigating and aggravating features which were present, in my opinion the judge was correct to reject the submission of the applicant's counsel that a suspended sentence of imprisonment or a community corrections order ought to be imposed, and to conclude that there was no alternative other than to impose an immediate custodial

18 I should add that, in all the circumstances (particularly the state of the applicant's mental health and its effect on him in custody), I think the judge was correct to characterise the prosecution's proffered sentencing range - which suggested a head sentence of 3 to 4 years, and non-parole period of 2 to 2 ½ years - as 'too high'.

19 In my opinion the sentence of 2 years' imprisonment imposed on the applicant was well within the range of sentences properly open in the circumstances of this case. I also think that it was open to the judge to impose the non-parole period of 9 months, being what he described as being 'shorter than it would otherwise have been because of the particular circumstances of this case, especially having regard to [the applicant's] psychiatric condition and good prospects of rehabilitation'. Indeed, I think that the fixing of the non-parole period, which obviously was designed to permit supervision of the applicant for an extended period upon his release, properly balanced the mitigating factors attendant in this case against the serious nature of the offending.

20 For the reasons advanced, in my opinion applicant has failed to demonstrate that the sentence is manifestly excessive. The application for leave to appeal against sentence should be dismissed.

[1] We take this to mean manifestly excessive.

[2] R v Halden (1983) 9 A Crim R 30; R v Medcraft (1992) 60 A Crim R 181.

[3] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[4] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins'), 276 [32], (proposition 5).

[5] Although he did not cite authority, it is likely that the judge was referring to the principles to be drawn from R v Mills [1998] 4 VR 235 and similar cases.

[6] The applicant was born on 21 February 1990. He was 20 years of age when the sentence was committed, and 22 at the time of sentence.

[7] See Verdins, 276 [32], (proposition 5).

[8] See Verdins, 276 [32], (proposition 1).

[9] R v Kenny (Unreported, 2 October 1978, Vic, CCA). See also DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127] (Ashley, Redlich and Weinberg JJA).

[10] R v Williscroft [1975] VicRp 27; [1975] VR 292, 300.