R v Alexandridis [2008] VSCA 126

2 On 21 August 2007, a jury, having been empanelled in the County Court to determine the appellant's fitness to plead, delivered a verdict that he was fit to stand trial. Following that verdict, the appellant pleaded guilty to one count of intentionally causing serious injury. He was sentenced to four years' imprisonment, with a non-parole period of two years.

3 At the time of the offence the appellant was 34 years of age. He had 93 prior convictions arising from 14 court appearances, prior convictions including offences of causing serious injury intentionally.

4 On the plea in mitigation and before the appellant made submissions, the prosecutor called evidence from a consultant psychiatrist from the Victorian Institute of Forensic Mental Health who had known the appellant in a professional capacity for over ten years. The doctor testified that the appellant had a well established history of paranoid schizophrenia, his psychotic symptoms including paranoid and religious delusional beliefs. There had been no period in the last ten years when the appellant had been entirely symptom-free.

5 The appellant now appeals against his sentence. First, it is alleged that he was not afforded procedural fairness during the course of the plea in mitigation, in which he was unrepresented. During the plea in mitigation he had refused to seek legal representation and conducted his plea in person. Second, it was contended that the sentencing judge failed to mitigate the sentence imposed because of the provocative conduct of the victim. Thirdly, it is said that the sentence is manifestly excessive.

6 It is convenient to first refer to the Crown summary of the offence. The appellant and the victim were both prisoners in the Melbourne Assessment Prison, the victim having arrived at the prison on 27 October 2005. He was let out of his cell the following morning at 8.30. The victim was reading the newspaper after breakfast when the appellant started talking to him. The appellant stated that he was in custody for 'touching up' two 16-year-old girls because he was a masseur. The appellant asked the victim what he was in for, but was informed by the victim that he wanted to keep it to himself. The appellant persisted, saying that he would be his friend. However, after the appellant was unable to obtain any information, he patted the victim on the hand and walked away. A short time later, the victim was reading the paper when the appellant again approached him and started to speak about the two 16-year-old girls. The victim again made it clear that he was not going to tell the appellant for what offences he had been imprisoned. The appellant again patted the victim on the hand and walked off. At approximately 10.15am, the victim was in the lounge area. The victim bent down to pick up a book off the floor. As the victim stood up, the appellant was standing in front of him. The appellant stretched his arm out and slashed the victim across the face, and then ran off towards his cell.

7 Following the attack by the appellant, prison guards assisted the victim. He was taken to the St Vincent's Hospital, where he received treatment. The victim suffered three sharp lacerations to his face and neck: a long wound on the right side of his face from the corner of his nose to his cheekbone, and two parallel wounds to the neck, extending from his Adam's apple to his lower jaw. The wounds inflicted by the appellant required plastic surgery, although no nerve, artery, muscle or salivary ducts were injured. He remained in hospital for four days. It was evident from these injuries that the victim had been slashed at least twice across the face and neck.

8 A search of the kitchen following the attack revealed a blue Gillette razor blade and broken pieces located at the bottom of a rubbish bin, and a metal bread and butter knife that had two razor blades taped on either side was located wrapped in newspaper and placed down the side of the fridge.

9 The learned judge was aware, presumably from the appellant's record of interview, that the appellant disputed the victim's account of why the incident occurred. The appellant alleged both in his interview and on the plea that he had been provoked by the victim, as it was the victim who had patted him on the hand and had then touched his penis. The appellant said that this had caused a flashback to something similar which had happened to him as a child. He claimed that there was a two-minute gap between him being touched on the penis and the attack on the victim. The appellant also told the judge that he wanted the judge to hear from his mother.

10 During the course of argument, the prosecutor initially conceded that, if the appellant satisfied the court on the balance of probabilities that the victim had done as the appellant alleged, the victim's conduct would constitute a mitigating circumstance. Following further lengthy discussion between the judge and the prosecutor, the appellant asserted in emphatic terms that, although he had pleaded guilty, the victim had touched him and it was 'only self-defence'; 'I only assaulted him because he had done something to me.' The prosecutor then adopted a different position, submitting that the appellant's motive for assaulting the victim made little difference, because, as the appellant had said, a period of two minutes had elapsed between the time the victim touched him on the penis and the time that he assaulted the victim. The trial judge appeared to agree with the prosecutor's submission.

11 Following this discussion, the judge asked the appellant if he wanted him to hear from his mother. The appellant's mother then gave evidence. At the conclusion of that evidence, the sentencing judge said to the appellant:

We have heard from those two witnesses, Dr Bell and your mother. Is there anything you wanted to say to me, Mr Alexandridis, about the matter generally, or about what sentence I should impose?'

The appellant then made a submission which related to the nature of the sentence that should be imposed. The matter was then adjourned for sentence until the next day.

12 In his sentencing remarks, the sentencing judge said:

So far as the factual matters set out in this document are concerned [and his Honour was here referring to the Crown's summary of the facts opened at the commencement of the plea], you stated that it was not you who patted the victim on the hand twice but rather that it was he, whom you understood to be a sex offender, and it appears that in fact he was a convicted sex offender who ...

The trial judge's sentencing remarks were then interrupted, the appellant making the following observation:

I didn't know at the time, Your Honour. I never knew at the time, Your Honour.

He touched you on the hand and then on the penis. This apparently caused a flashback to something similar which had happened to you as a child. You stated there was a two-minute gap between the alleged touching on the penis and your offending. Mr Hannan submitted that given this time gap it made little difference from a sentencing viewpoint which view of events was accepted. I therefore indicate that for the purposes of this sentence I proceed on the basis of your version of events, even though, in the absence of sworn evidence from the victim and you, I am not able to determine on the balance of probabilities (see Storey) that your version of events is correct.

13 These passages from the sentencing judge's remarks, are not without their difficulty. It appears that it was the learned sentencing judge's view, which the prosecutor had invited his Honour to adopt, that it made little difference which version of the events was accepted. On that basis his Honour was prepared to assume, without the need to so find, that the victim had acted as the appellant alleged. Accordingly, the sentencing judge did not treat the appellant's version of events as mitigatory. In following that course, I consider that his Honour fell into error.

14 If the appellant was provoked, and if he had experienced a flashback to sexual abuse which he said he encountered as a child, the provocation would have constituted a mitigatory circumstance.[1] And if the appellant's account was accepted, it was strongly arguable that the victim's provocative act did not cease to have mitigatory significance because of the time which elapsed before the assault by the appellant. Accordingly, the sentencing judge was bound to make findings about this disputed event.

15 On the evidence as it stood, it was not open to the judge to make a finding in the appellant's favour because the appellant had not established on the balance of probabilities that he had been provoked. The primary submission advanced on the appeal was that this state of affairs arose because the appellant had been denied procedural fairness. It was submitted by counsel for the appellant that the sentencing judge had fallen into error by not inviting the appellant to give sworn evidence on this issue thereby depriving him of the opportunity to prove those mitigatory circumstances. It is clear that the appellant was not told that that was a course that was open to him. Nor was he told that he carried the burden of proof, which was unlikely to be discharged in the absence of sworn evidence by him. The appellant was thus not afforded the opportunity to properly contest this factual issue and establish a mitigatory circumstance.

16 Counsel for the appellant further submitted that the appellant was particularly dependent upon the judge to ensure that the plea in mitigation was fairly conducted, in view of his severe mental health issues, as Dr Bell had testified that the appellant's mental state at the time of the plea had stabilised considerably since the commission of the offence. Sworn evidence from the appellant as to the circumstances of the offending, it was submitted, may have raised matters more pertinent to sentence than those expressed in the record of interview. The appellant had said a number of things during the plea which, if deposed to, would have provided further mitigatory circumstances.

17 It is uncontroversial that an ingredient of the court's duty to accord procedural fairness involves the giving of a fair opportunity to a party to adduce evidence or make submissions rebutting potential adverse findings. Procedural fairness must be upheld for its own sake, as well as for its consequences. The experience of the common law is that out of fair and lawful procedures will emerge fair and lawful outcomes.

18 The respondent properly conceded that there were matters that supported the view that the appellant had not been afforded an opportunity to adequately raise his claim of provocation and that gave rise to a denial of procedural fairness. But the respondent contended that, if the appellant had given evidence, the Crown would have called the victim, who had denied in his statement that he had touched the appellant. Counsel for the respondent also pointed to other evidence in support of the submission that it could not be said that, had the appellant been afforded the opportunity to do so, he would have established on the balance of probabilities that he had been assaulted by the victim.

19 I consider this argument misconceives the consequences of a failure to accord procedural fairness. Once the possibility is accepted that there could have been a different outcome if there had not been a denial of justice, and that at least appears implicit from the respondent's submission, relief will not be refused unless it can be shown that it would be futile to grant a new hearing as the same outcome would be inevitable.[2] If the appellant gave evidence in accordance with what he had told his Honour during the plea, it was not inevitable that no mitigatory circumstances would have been established.

20 In oral argument, counsel for the appellant invited the Court to act upon the appellant's record of interview, submitting that the judge had in fact made a finding by virtue of the sentencing remarks to which I have already referred. In my view, for the reasons I have already given, the sentencing judge's remarks could not be so construed. His Honour made no findings. In those circumstances, absent agreement by the respondent which was understandably not forthcoming, there were no facts which this Court could act upon which supported the appellant's allegation that there was provocative conduct. Accordingly, it was not possible for this Court to determine what the appropriate sentence should be. In those circumstances the matter should, in my view, be remitted to another judge of the County Court for sentence.

23 The orders of the Court will be that the appeal is allowed. The sentence passed below is quashed and the matter is remitted to the County Court for a hearing to be conducted by a different judge.

[1] R v Kelly [2000] VSCA 164 [14]-[15] (Charles JA); R v Okutgen (1982) A Crim R 262, 266 (Starke J) and R v AWF [2000] VSCA 172; (2000) 2 VR 1.

[2] Stead v Commonwealth Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181 [75], [80], [97].