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[2021] VSCA 56
General information, not legal advice.
Court of Appeal (Vic)
2021-03-15
Mr J, Kaye JA
Original judgment source is linked above.
[2020] VCC 1086 (Judge Hassan)
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
CRIMINAL LAW - Application for leave to appeal - Sentence - Applicant stabbed wife five times in domestic violence incident - Applicant pleaded guilty to intentionally causing serious injury - Serious example of offence - Total effective sentence of 7 years' imprisonment with non-parole period of 4 years and 6 months - Whether judge erred by failing to take into account victim's full recovery - Whether judge took into account irrelevant considerations concerning victim's forgiveness of the applicant - Whether judge failed to take into account relevant considerations concerning victim's forgiveness - Whether applicant denied procedural fairness - Whether sentence manifestly excessive - Leave to appeal refused - R v Hester [2007] VSCA 298 considered.
1 The applicant pleaded guilty, before a judge in the County Court, to one charge of intentionally causing serious injury. After a plea that was presented on his behalf, he was sentenced to a total effective sentence of 7 years' imprisonment, with a non-parole period of 4 years and 6 months.
10 years' imprisonment with a non-parole period of 8 years
3 The applicant seeks leave to appeal on three grounds, namely:
Ground 1: The learned sentencing judge erred in failing to take into account the fact that the victim had made a full recovery.
Ground 2: The learned sentencing judge erred in treating the victim's forgiveness with extreme caution, and having regard to it only insofar as it boded well for the applicant's rehabilitation, rather than also taking it into account in assessing the impact upon the victim and in considering the application of the principle of mercy. In particular:
(a) Her Honour took into account irrelevant considerations, namely:
- that forgiveness on the part of a victim of family violence is often attributable to a pattern of behaviour on the part of perpetrators of family violence, who express penitence and persuade their victim to forgive and often to reconcile, in circumstances where:
(i) the applicant had no history of domestic violence; and
(ii) there was no evidence that the victim had ever been the victim of domestic violence by anybody;
- that the applicant's brothers-in-law and her father had 'persuaded' her to forgive the applicant, in circumstances where:
(i) the victim had said no such thing; and
(ii) any such persuasion was not attributable to the applicant in any event:
(a) Her Honour failed to take into account relevant considerations which indicated the victim's forgiveness was genuine and informed;
(b) Her Honour's conclusion was not reasonably open; and in any event
(c) The applicant was denied procedural fairness.
Ground 3: The head sentence and non-parole period are manifestly excessive in light of all relevant matters, including the fact that the applicant called emergency services, his confessions, his very early guilty plea, his lack of relevant prior convictions, his lack of history of violence, and the fact that he was of no risk of reoffending.
4 The offending occurred on 17 January 2020. The applicant and his wife, who was the victim of the offence, had been married for nine years. They had two young sons, who were then aged seven years and four years respectively.
5 During the twelve months before the offence the applicant and his wife had been experiencing matrimonial difficulties, which were caused by the applicant's heavy use of cocaine and his gambling problems. The applicant had become suspicious that his wife was having an affair (which was not true) and he was also resentful of the close relationship which his wife had with her sister. The applicant had never been violent to his wife and he had no relevant previous convictions.
6 On 14 January 2020, three days before the offending, the applicant moved out of the family home and into a hotel. Following his departure, he visited the home each day in order to see his children. On 15 January, he received a payment of $3,000. His wife asked him where the money was, believing that he had wasted it by gambling. The applicant told his wife that he had used it to pay his staff and to purchase products for his cleaning business. His wife did not believe him. She also became concerned that the applicant was using his smoking pipe (shisha) excessively. On 16 January, she threw it into the rubbish bin.
7 On the day of the offending, 17 January, shortly before 2:00 pm, the applicant arrived at the family home to spend time with his children. He went into the garage and saw that his shisha had been thrown into the bin. As a result he became angry. He went into the living room and had a verbal argument with his wife. In the course of the argument, he smashed a glass vase, and threw a water bottle at his wife. It did not strike her, but it hit the wall behind her. In response, his wife picked up a telephone in order to call the police. The applicant grabbed her by the hair and she started screaming. He told her to be quiet. He then dragged her by the hair into the laundry, closed the door, held her on the ground, and took hold of a paring knife from a knife block that was in the laundry. The applicant then stabbed his wife four times in the abdomen and once in the buttock. She initially believed that he was punching her, until she saw blood on her hands and the applicant holding the paring knife.
8 Having stabbed his wife, the applicant telephoned the emergency service number '000' and requested that an ambulance attend. He told the operator 'I just stabbed my wife ... I stabbed my wife with a knife ... I fucking knifed my wife ... I stabbed my wife with a knife'. In response to directions given by the telephone operator, the applicant gave his wife some towels to put on her wounds.
9 At the time of the offence the applicant's children were in the house. When they heard their mother screaming during the incident, they came into the laundry and saw her injured and bloodied on the floor. The applicant told them to go upstairs, which they did with their three cousins, who were also present in the house. The applicant then telephoned his sister and asked her to come and collect the children.
10 While the applicant was waiting for the ambulance, he continued to blame his wife for his actions, saying to her, 'Why you choose to - to lie to me? Like, you push me to do this like, you know? ... See what happened when you listen to your sister?' He also telephoned his wife's sister, who was overseas, to tell her that she was to blame for the problems that he was having with his wife.
11 When the ambulance arrived, the applicant's wife was attended by paramedics at the scene and then transported by ambulance to the Royal Melbourne Hospital. There she was treated for the following injuries: a 15 millimetre laceration to the left upper quadrant of the abdomen; a 10 millimetre laceration to the right upper quadrant of the abdomen; two smaller lacerations below the 10 millimetre laceration; a 10 millimetre full thickness laceration to the stomach; a 10 millimetre laceration to the right lobe of the liver; a 25 millimetre incised wound to the right buttock; and a laceration to the left index finger. A diagnostic laparoscopy was performed to examine the abdominal cavity, which was converted to a trauma laparotomy for repair of the diaphragm, liver and stomach, and an extensive washout of the abdominal cavity, under general anaesthesia. Following that procedure, she was treated, under general anaesthesia, with a washout and closure to the wounds to the left finger and right buttock. She remained under the treatment of the general surgery team at the hospital from 17 January to 24 January 2020.
12 In a report, Senior Forensic Medical Officer, Dr Raymun Ghumman, noted that the incised wounds to the applicant's wife were associated with multiple intra-abdominal injuries to vital organs and structures, namely, the liver, stomach and diaphragm, with local leakage of gastric contents, and which resulted in the pathological accumulation of air and blood within the peritoneal cavity. Those injuries were potentially life-threatening and as such were serious. In the absence of appropriate intervention, the injuries might have caused long-term disability from associated organ or muscle dysfunction, or even death.
13 When the police arrived at the scene, the applicant identified himself and admitted that he had stabbed his wife. He was arrested and transported to the police station. When interviewed, he made full admissions, but he continued to blame his wife and her sister for their marital problems. He also falsely told the police that his wife had provoked him by saying 'Come on hit me, hit me'. The applicant told the police that when he first saw the knife, he only intended to frighten his wife, but that he had lost control and stabbed her.
14 The applicant indicated an intention to plead guilty at an early stage, and he formally pleaded guilty at a committal mention on 7 April 2020. As a result, the matter proceeded by way of a hand up brief.
15 Grounds 1 and 2 are directed to issues relating to the victim impact statement provided by the applicant's wife. In that statement she said as follows:
. 'In this situation I ask the Court to give the greatest possible mercy and compassion to my husband. I look forward to the day when he is released and joined with the family.'
16 The applicant was born on 1 June 1976 in Northern Iraq. His family belonged to a minority religious community which was the subject of persecution. Ultimately, the applicant fled Iraq with one of his brothers when he was in his early teenage years. Having lived in a refugee camp in Turkey, and subsequently having spent some time in Greece, he finally settled in Australia as a refugee in about 1995. He initially worked in a number of jobs. In 2004, he established a cleaning business, which was successful.
17 The applicant's mother lived with him until her death about two and a half years before the offending. Her loss was a matter of deep grief to him. Soon after her death he commenced using cocaine. In the period immediately preceding the offending, his use of that substance escalated significantly. In the final months he was spending up to $1,500 per week on the drug.
18 On the plea, the applicant tendered a number of character references. He also relied on a report of Dr Andrew Carroll, a consultant forensic psychiatrist. Dr Carroll expressed the view that the applicant had a cocaine use disorder in the context of which he had developed a cocaine-induced psychotic disorder that was current at the time of the offending. Counsel for the applicant correctly accepted, on the plea, that the applicant's drug induced intoxication, and his drug induced disorder, did not qualify as a mitigating circumstance.
19 In mitigation, counsel for the applicant relied on the spontaneous and unpremeditated nature of the offending. Emphasis was placed on the applicant's early plea, his admissions to the offending, his remorse, his lack of previous convictions, his strong work ethic, his strong ongoing family support, and the more onerous conditions of custody due to the COVID-19 pandemic.
21 The judge noted the contents of the applicant's wife's victim impact statement. In a passage, which is the subject of ground 1 and ground 2, her Honour stated:
Courts have for some time now recognised that forgiveness on the part of a victim of family violence is often attributable to a pattern of behaviour on the part of perpetrators of family violence, who express penitence and persuade their victim to forgive and often to reconcile. Ms Clough's [the applicant's wife] statement, in which she refers to having been persuaded by male family members to forgive you, suggests that this may have been what has occurred here. Evidence of forgiveness of the victim of family violence should be treated by courts with extreme caution. However, the authorities also recognise that the forgiveness of the victim may bode well for an offender's rehabilitation and, in your case, I am prepared to accept that Ms Clough's forgiveness will motivate you to rehabilitate in order to have a better relationship with her and, in particular, with your children.[4]
22 The judge then turned to the applicant's personal circumstances. Her Honour noted that the applicant only had one irrelevant minor criminal conviction, and that he enjoyed strong family support and support from his community.[5]
23 The judge took into account that, in the context of the current COVID-19 pandemic, the conditions of imprisonment are more onerous. Her Honour also took into account that this was the first time that the applicant had been in custody, and that he would suffer anguish from the separation from his family and particularly his children.[6] The judge also noted that the applicant had used his time in custody productively, having undertaken drug and alcohol counselling, and that random tests had been negative for drugs or alcohol.[7]
24 The judge accepted that the offending was not premeditated, and that when he came upon the knife, he used it 'opportunistically'.[8] Her Honour, nevertheless, regarded the applicant's offending as a serious example of the offence of causing serious injury and she considered that the applicant's moral culpability was high.[9] Her Honour accepted that the applicant felt 'deep and genuine remorse'. She also noted that the applicant had strong family support, that previously he had been a person of good character with a strong work ethic, and that he did not have a relevant criminal history. Her Honour regarded the applicant's prospects of rehabilitation to be excellent, and she did not regard the applicant as a risk of reoffending.[10] However, she also observed that '... general deterrence, denunciation and just punishment loom large'.[11]
25 In support of ground 1, counsel for the applicant submitted that in assessing the gravity of the applicant's offending, the judge failed to take into account that the victim had fully recovered from the injuries inflicted on her by the applicant. In particular, counsel relied on a passage in the sentencing reasons, in which the judge noted that the offence had caused serious injury to multiple vital organs of the victim, but did not mention that she had made a complete physical recovery. Counsel submitted that by failing to take into account that the victim had made a full recovery from the injuries, the judge overestimated the gravity of the offending by the applicant.
26 In response, counsel for the respondent noted that in her sentencing reasons the judge referred to the medical evidence, and to the victim impact statement, both of which indicated that the victim's physical injuries had healed. Further, counsel noted that, in the plea, it was not submitted on behalf of the applicant that the fact, that the victim had made a full recovery from her injuries, should be taken into account in the judge's assessment of the seriousness of the offending. Rather, when the judge, on a number of occasions, in the course of the plea noted that the offending was very serious, counsel then acting for the applicant did not submit to the contrary. Further, it was submitted, the extent to which the victim has recovered from the injuries is but one of many factors which inform the assessment of the gravity of the offending.
27 The submissions, made by counsel for the applicant under ground 1, are based on two propositions, namely, that in assessing the seriousness of the applicant's offending the judge did not take into account that the victim had made a full recovery from her physical injuries, and, secondly, that by not doing so, the judge erred in her assessment of the gravity of the applicant's offending. On analysis, neither proposition is reasonably arguable.
28 In her sentencing reasons, the judge quoted an extract from the report of Dr Ghumman, which described the victim's injuries, and which stated that, although they might have caused long-term disability or even death, nevertheless, given that the victim had received timely and appropriate surgical care, it was unlikely the injuries would lead to long-term impairment or loss of bodily function.[12] Although when later assessing the gravity of the applicant's offending, the judge did not again refer to that circumstance, nevertheless it could not be inferred that her Honour overlooked it, or failed to take it into account, in determining that the applicant's offending was a serious example of the offence of causing serious injury and that his moral culpability was high.
29 The judge's characterisation of the applicant's offending, and of his moral culpability, was well justified and perfectly correct. On three occasions during the course of the plea, the judge expressly stated that she regarded the applicant's offending as 'very serious', and that it involved a 'very very bad' instance of domestic violence. On each occasion, counsel for the applicant agreed with that assessment of the gravity of the offending.
30 That concession, so made by counsel on the plea, was correct. In the incident in question, the applicant physically overpowered the his wife in her own home, and violently stabbed her five times with the knife. In doing so, he penetrated her vital organs, and he inflicted injuries on her that were potentially life-threatening. The attack occurred in the family home where she was entitled to feel safe and protected. As her husband, it was the duty of the applicant to care for and protect her. The attack took place in the presence of her (and applicant's) two young children, and three other children, who were also present in the home. Notwithstanding that, fortunately, the victim has made a good recovery both physically and emotionally from the violent assault upon her, nevertheless it could not be gainsaid that this was a serious example of the offence of causing serious injury, and that the applicant's moral culpability for that offending was high.
31 Accordingly ground 1 is not reasonably arguable.
32 In support of ground 2, counsel for the applicant noted that in the plea it had been submitted on behalf of the applicant that the principle of mercy should be applied in view of the fact that the applicant's wife had stated, in her victim impact statement, that she forgave the applicant. However, in sentencing the applicant, the judge confined the relevance of the victim's forgiveness to an assessment of the applicant's prospects of rehabilitation. Counsel submitted that in that respect the judge erred. In particular, the victim did not say or imply that she had been persuaded or induced by male family members to express forgiveness of the applicant. Rather, it was submitted, there was a strong indication that the victim's forgiveness was genuine. In particular, in the victim impact statement, the victim did not seek to minimise the offending. There was no history of domestic violence. The victim understood that the applicant's behaviour was caused by his addiction to drugs, and she understood that he was dealing with those issues while in custody.
33 In those circumstances it was submitted that the judge erred in failing to take into consideration the victim's forgiveness as a factor relevant to the principle of mercy. Further, it was submitted, the judge took into account irrelevant considerations in assessing the relevance of the victim's forgiveness. Finally, it was submitted, the applicant was not afforded procedural fairness. At no stage did the judge raise with counsel the question whether the victim's father and brothers-in-law had sought to persuade or induce the victim to forgive him. Thus, the defence did not have the opportunity to address and rebut the application of the generalisation, expressed by the judge, concerning expressions of forgiveness by victims in cases such as the present.
34 In response, counsel for the respondent submitted that the appeal for mercy, that was made to the sentencing judge at the plea, was not supported by evidence of unusual circumstances which would justify the application of that principle. While the evidence established that the applicant had undertaken a number of courses while on remand, nevertheless the steps taken by him could not be regarded as extraordinary attempts on his part to rehabilitate.
35 Counsel further submitted that ordinarily the courts have considered that expressions of forgiveness by a victim should be treated with some caution and must not be given undue weight in the sentencing process, because of the various factors which may contribute to the state of forgiveness felt by a victim. Counsel submitted that the judge did not find or suggest that the applicant himself, through male family members, had persuaded the victim to forgive him. Accordingly, the judge did not make any adverse finding against the applicant in that respect. Rather, it was submitted, the judge correctly took into account the expression of forgiveness by the victim as supporting the applicant's prospects of rehabilitation.
36 Finally, counsel for the respondent submitted that as the judge did not make any adverse finding against the applicant, that he had unduly persuaded the victim to forgive him, the complaint about procedural fairness must fail. Further, counsel noted that in the course of discussion with counsel on the plea, the judge gave counsel the opportunity to address the issue on which her Honour remarked in the course of her reasons for sentence.
37 The passage in the judge's reasons, which I have quoted above, and which is the subject of ground 1 and ground 2, reflect the observations made by Neave JA in R v Hester,[13] in which her Honour stated:
I wish only to add the following comments. It is a common pattern of behaviour for perpetrators of domestic violence to express penitence and persuade their victims to reconcile. For a number of complex reasons which have been discussed in the social science literature dealing with this issue, many victims are assaulted on several occasions before they summon the courage to leave an abusive relationship. Often they require considerable support in order to do so. In my view, these are matters which should be given considerable weight by a judge who is considering the weight that should be given to a victim impact statement made by a person who has been the victim of domestic violence. I therefore agree with the comments of Simpson JA in _R v G_len that evidence of forgiveness of the victim of domestic violence should be treated with extreme caution.[14]
38 Contrary to the contention in ground 2(d), it is quite clear that counsel acting for the applicant in the plea was properly on notice that the judge might take into account the considerations discussed by Neave JA, in that passage, when determining the weight to be attributed to the expression by the victim that she forgave the applicant.
39 In the outline of prosecution submissions that were filed on the plea, the prosecutor referred to the victim impact statement, and submitted that the considerations, outlined by Neave JA in Hester, were relevant to the use that the court should make of that victim impact statement. In the course of submissions made on the plea, counsel for the applicant submitted that the decision in Hester should be distinguished, because in that case the offender had a long history of engaging in family violence. Later in the plea, the judge, in discussion with the prosecutor, noted the comments made by Neave JA in Hester, and asked the prosecutor whether, nevertheless, the forgiveness expressed by the victim could be taken into account in an assessment of the applicant's prospects of rehabilitation, and in assessing the effects of the offence on the victim. The prosecutor agreed with that proposition.
40 Subsequently, on the adjourned hearing of the plea, the judge, in the course of discussion about the admissibility of a further letter that had been provided by the victim, noted that she was '... mindful of the authorities about how to treat forgiveness of the victim, and I'll refer to that in the sentencing remarks.' Her Honour then noted that she considered that, consistently with the authorities, the fact that the applicant had been forgiven by the victim boded well for his rehabilitation. In response, counsel for the applicant did not seek to take issue with her Honour's observation.
41 In those circumstances, counsel for the applicant on the plea was plainly on notice that the judge had in mind the application of the principles stated by Neave JA in Hester. Accordingly, it could not be reasonably maintained that there was any want of procedural fairness in the reference by the judge to those considerations in her sentencing reasons.
42 In written submissions filed in support of the plea, counsel then acting for the applicant submitted that the case was one in which it was appropriate that the judge extend mercy to the applicant. Counsel relied on a number of mitigating factors in support of that contention. Principally, it was submitted that it was appropriate to extend mercy because the applicant had successfully rehabilitated, so that there was no necessity to protect members of the public from the applicant. Although, in the written submissions, counsel referred to some aspects of the victim impact statement, counsel did not, in advancing those submissions, refer to or rely on the fact that the applicant's wife had forgiven him for his offending.
43 The question whether a judge should, in an appropriate case, extend mercy or leniency towards an offender, is very much a matter for the exercise of the discretion by the sentencing judge. The principles, that govern the exercise of mercy in sentencing, were recently discussed in the joint judgment of Priest and Weinberg JJA in DPP v Milson.[15] In essence, mercy may justify the imposition of a more lenient sentence, but mercy must be exercised on considerations that are supported by the evidence and which make an appeal, not just to sympathy, but also to well-balanced judgment.
44 The relevance of victim impact statements has also been considered in a number of cases. As Eames JA stated in R v Skura,[16] victim impact statements ensure that sentencing judges have a full appreciation of the consequences of the criminal conduct on the victims of the crime. However, victim impact statements should not be misused to produce a sentence which is unfair. As Eames JA noted, '... sentencing is not the function of the victims of crime, but of the State, through the judiciary.'[17]
45 In the present case, it could not be reasonably maintained that the fact, that the judge did not consider the case one in which 'mercy' should be extended to the applicant, constituted an error in the exercise of the sentencing discretion. As I have already discussed, the judge correctly concluded that the offence committed by the applicant was a serious instance of the offence of intentionally causing serious injury. It would be most difficult to comprehend how mercy can be properly extended in a case in which a man has overpowered his wife in her home, and proceeded to violently stab her five times with a knife, thereby penetrating her vital organs and putting her life at risk.
46 It would seem, from the reference by the judge to the factors discussed by Neave JA in Hester, that her Honour inferred that the victim had been persuaded by male family members to express forgiveness for the applicant. While it is arguable that such an inference may not have been open on the evidence in the case, nevertheless, for the reasons that I have discussed, that observation by the judge could not materially have affected the question whether her Honour should have extended mercy to the applicant. Further, and relevantly, the judge correctly took into account that the victim's forgiveness would motivate the applicant to rehabilitate in order to have a better relationship with her.
47 In those circumstances, I am not persuaded that it is reasonably arguable that the judge fell into sentencing error as contended in ground 2.
48 In addressing ground 3, counsel for the applicant acknowledged that the offence was inherently very serious. However, she submitted that there were a number of mitigating factors pertaining to the offending. The applicant had no history of violence, the offence was unpremeditated, he had attended the family home for a lawful purpose, the offence was committed spontaneously and it was of a short duration. Further, the applicant called an ambulance and confessed immediately.
49 Counsel further relied on the following mitigating factors: the applicant pleaded guilty at the earliest possible opportunity; the applicant was genuinely remorseful; he came from a difficult and disadvantaged background, having lived in a refugee camp in Turkey for eight months, later spending two further years in Turkey and then in Greece before settling in Australia as a refugee; he had an impressive work history; the applicant was of good character; he had family support and community support; the applicant had taken serious steps to address his addiction to cocaine, which affected him at the time of the offence; the applicant had excellent prospects of rehabilitation; and the applicant's imprisonment was more burdensome because it was his first time in custody, he suffered anguish at being separated from his children, and he (as with all prisoners) was subject to significant restrictions in jail due to the COVID-19 pandemic. In those circumstances, it was submitted that the head sentence and the non-parole period are manifestly excessive.
50 In response, counsel for the respondent submitted that the judge correctly described the offending by the applicant as a serious example of the offence of causing serious injury. Counsel further noted that the judge correctly found that the applicant's moral culpability was high. In those circumstances, it was submitted that the sentencing purposes of general deterrence, denunciation and 'just punishment' were required to be given some prominence in the sentencing synthesis. It was submitted that the applicant's conduct immediately after the attack did not mitigate his offending. While the applicant confessed to stabbing his wife, at the same time he untruthfully stated that she was to blame for his conduct. During his police record of interview, the applicant continued to blame his wife. Counsel noted that the applicant only achieved remorse after a period of incarceration when cocaine had ceased to affect him.
51 Counsel further noted that the judge correctly took into account, and gave appropriate weight to, the mitigating factors, including the applicant's early plea, his strong family and community support, and his good work ethic. However, in view of the seriousness of the offending, it was submitted that the principle of general deterrence should be given particular weight. In that respect counsel referred to DPP v Evans,[18] where the Court of Appeal stated:
... Violence of this kind is alarmingly widespread, and extremely harmful. It is never justified. The sentences imposed must convey that message strongly.
For similar reasons ... statements by such an offender to the effect of 'I just snapped' [do not] in any way mitigate the seriousness of the offending or reduce the offender's moral culpability. Such self-justifying statements are, regrettably, all too common in cases of family violence. Marital breakdown is stressful and upsetting for all concerned. But resort to violence can never be condoned.[19]
52 Taking those matters into account, counsel for the respondent submitted that the sentence imposed by the judge was quite lenient. Accordingly it was submitted that the sentence was not manifestly excessive.
53 In order to succeed on the ground that the sentence imposed on him was manifestly excessive, the applicant must demonstrate that the sentence was wholly outside the range of sentencing options available to the judge. In other words, it must be demonstrated that the sentence, imposed on the applicant, was so excessive as to bespeak error by the judge in the exercise of her sentencing discretion, notwithstanding that no specific error may be identified in her Honour's reasons for sentence.[20]
54 The starting point, in considering ground 3, is that, for the reasons already discussed, the offence committed by the applicant was a serious instance of the offence of intentionally causing serious injury. In the absence of cogent mitigating circumstances, the sentence imposed on the applicant might well be characterised as particularly lenient.
55 The applicant did have available a number of important mitigating factors. He pleaded guilty at the earliest opportunity. Immediately after the assault, he summoned the emergency services. The applicant readily confessed to his offence, albeit that he did so with a qualification that detracted from the quality of the confession. The judge found that the applicant had achieved genuine remorse and insight into his conduct. The applicant came from particularly difficult circumstances, leaving Iraq as a refugee, and living in refugee camps overseas until he and his family found a home in Australia. Since arriving in this country, the applicant has commendably had a strong work ethic, and he has no relevant previous convictions. He had strong family and community support. The judge found that the applicant has excellent prospects of rehabilitation.
56 Taken together, that combination of mitigating circumstances were certainly particularly cogent. However, as I have noted, in the absence of mitigating circumstances, the head sentence and the non-parole period would be properly characterised as being lenient. In that way, the sentence reflected that the judge gave material weight to the mitigating factors relied on by the applicant. In light of the gravity of the offending, and the important weight to be given to the sentencing purposes of general deterrence and denunciation, I do not consider that it is reasonably arguable that the sentence imposed on the applicant was wholly outside the range of sentencing options available to the judge.
58 For the foregoing reasons I do not consider that any of the three proposed grounds of appeal are reasonably arguable. It follows that the application for leave to appeal must be refused.
[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
[2] DPP v Packard (a pseudonym) [2020] VCC 1086 ('Reasons').
[13] [2007] VSCA 298 ('Hester').
[15] [2019] VSCA 55, [51]-[54]. See also R v Osenkowski (1982) 30 SASR 212, 212-3 (King CJ).
[16] [2004] VSCA 53, [12]-[13].
[19] Ibid [84]-[85] (Maxwell P, T Forrest and Weinberg JJA).
[20] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Haper JJA); DPP v Macarthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).
Packard (a pseudonym)
The Queen [2021] VSCA 56
(2011) 32 VR 361
(1982) 30 SASR 212